[Cite as Torbeck v. Indus. Mfg. Co., 2015-Ohio-3041.] 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Appeal Dismissed 

Date of Judgment Entry on Appeal: July 31, 2015 

Freking & Betz, LLC, Randolph H. Freking and Brian P. Gillan, and Matt MillerNovak, Godbey & Associates, for Plaintiff-Appellant, 

Vorys, Sater, Seymour, and Pease L.L.P., Daniel Buckley, Mary C. Henkel, J.B. 

Lind, David F. Hine and Katherine G. Barnes, for Defendants-Appellees. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

RICHARD TORBECK, 

 Plaintiff-Appellant, 

 and 

TORBECK INDUSTRIES, INC., 

 Plaintiff, 

vs. 

INDUSTRIAL MANUFACTURING 

COMPANY, 

PENCO PRODUCTS, INC., 

 and 

MERLYN JARMAN, 

 Defendants-Appellees. 

 

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

APPEAL NO. C-140533 

TRIAL NO. A-0909776 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

MOCK, Judge. 

{¶1} Plaintiff-appellant Richard Torbeck appeals the trial court’s entry 

granting judgment to defendants-appellees Industrial Manufacturing Company, Penco 

Products, Inc., and Merlyn Jarman on plaintiff Torbeck Industries, Inc.’s, claims for 

breach of the duty of loyalty and misappropriation of trade secrets. Because Torbeck 

lacks standing to pursue these claims, which were brought solely by Torbeck Industries, 

we dismiss the appeal. 

Factual and Procedural Posture 

{¶2} Torbeck Industries and its principal shareholder and president, Richard 

Torbeck, sued Industrial Manufacturing Company, Penco Products, Inc., and Jarman 

(“the defendants”). In the third amended complaint, Torbeck Industries alleged claims 

for breach of contract, tortious interference with business relationships, 

misappropriation of trade secrets, fraud, breach of the duty of loyalty, and civil 

conspiracy. Both Torbeck and Torbeck Industries alleged claims for fraud and civil 

conspiracy. 

{¶3} The defendants filed a motion to bifurcate the case as to liability and 

damages, which the trial court granted. Following a bench trial on liability, the trial 

court issued a decision in favor of Torbeck Industries on its claims for breach of contract, 

tortious interference with a contract, misappropriation of trade secrets, and breach of 

the duty of loyalty. The trial court took the civil conspiracy and fraud counts under 

submission. It dismissed the remaining claims. 

{¶4} A damages trial subsequently took place. At the close of the plaintiffs’ 

case, the defendants moved for a directed verdict, which the trial court granted. The 

trial court subsequently issued a decision dismissing the claims which it had taken under 
OHIO FIRST DISTRICT COURT OF APPEALS

3

submission. As a result, the trial court entered a final judgment for the defendants on all 

of the plaintiffs’ claims. 

{¶5} Torbeck filed a timely notice of appeal. The caption of the notice of 

appeal listed “Torbeck Industries et al.” as plaintiffs and “Industrial Manufacturing Co. 

et al” as defendants. The body of the notice of appeal, however, stated that “Notice is 

hereby given that Plaintiff Richard Torbeck appeals to the Court of Appeals from the 

order granting the defendants’ motion for a directed verdict * * * .” The notice of appeal, 

likewise, listed counsel as attorneys for the appellant (singular). 

{¶6} In three assignments of error, Torbeck argues the trial court erred in 

granting the defendants’ motion for a directed verdict on Count X for breach of the 

duty of loyalty and Count VII for misappropriation of trade secrets, and for failing to 

award punitive damages as to the misappropriation-of-trade secrets claim. 

{¶7} The defendants argue that Torbeck cannot appeal from the judgment 

on those counts, because the claims were brought by Torbeck Industries, which is not 

a party to this appeal because it was not listed as an appellant in the notice of appeal. 

Thus, the defendants argue that we are precluded from considering any arguments 

on behalf of Torbeck Industries. 

{¶8} App.R. 3(D) provides that the notice of appeal “shall specify the party 

or parties taking the appeal.” In Torres v. Oakland Scavenger Co., 487 U.S. 312, 

317-318, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the United States Supreme Court 

held that a notice of appeal that contained the designation “et al.” failed to provide 

the notice required under Fed.R.App.P. 3 and acted as a jurisdictional bar to those 

parties who were not expressly named in the notice of appeal. 

{¶9} In Transamerica Inc. v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 

(1995), the Ohio Supreme Court addressed the dismissal of an appeal for lack of 
OHIO FIRST DISTRICT COURT OF APPEALS

4

jurisdiction where the notice of appeal had designated the appellants as “Dennis 

Wallace et al.” The Twelfth District Court of Appeals, relying upon Torres, had held 

that it lacked jurisdiction to hear Linda Wallace’s appeal because the notice of appeal 

failed to specific the party or parties taking the appeal in compliance with App.R. 

3(D). Id. at 321. 

{¶10} The Ohio Supreme Court acknowledged the similarity between App.R. 

3(D) and Fed.R.App.P. 3, but declined to interpret the Ohio rule as strictly as the 

Torres court had interpreted the federal rule. In doing so, the Supreme Court 

focused on the language in App.R. 3(A), which provides the “[f]ailure of an appellant 

to take any step other than the timely filing of a notice of appeal does not affect the 

validity of the appeal, but is ground only for such action as the court of appeals 

deems appropriate, which may include dismissal of the appeal.” Id. at 322. 

{¶11} The Ohio Supreme Court held that 

[p]ursuant to App.R. 3(A), the only jurisdictional requirement for a 

valid appeal is the timely filing of a notice of appeal. [Thus], when 

presented with other defects in the notice of appeal, a court of appeals 

is vested with discretion to determine whether sanctions, including 

dismissal are warranted, and its discretion will not be overturned 

absent an abuse of discretion. 

Id. at syllabus. 

{¶12} Thus, the Ohio Supreme Court held that the notice of appeal, which 

had designated the appellants as “Dennis Wallace et al,” was not a jurisdictional 

defect and did not bar the appellate court from hearing the appeal of Dennis 

Wallace’s wife, Linda Wallace. Id. at 322. The court held that the use of the term “et 

al.” might not always be appropriate, but that the appellees were not prejudiced by 
OHIO FIRST DISTRICT COURT OF APPEALS

5

use of the designation because “all parties were aware of the interests of Linda 

Wallace and proceeded under the assumption that she was a party.” Id. Therefore, 

the Ohio Supreme Court held that the court of appeals had abused its discretion by 

dismissing her appeal. Id. at 322-323. 

{¶13} In Grand Council of Ohio v. Owens, 86 Ohio App.3d 215, 218, 620 

N.E.2d 234 (10th Dist.1993), which predated the Supreme Court’s opinion in 

Transamerica, the Tenth Appellate District “addressed a motion filed by defendants 

seeking an order ‘dismissing for lack of jurisdiction all purported plaintiffsappellants which [we]re not specified in the notice of appeal.’ ” The original notice 

of appeal filed by the plaintiffs had stated: “[n]otice is hereby given that The Grand 

Council of Ohio, the Order of United Commercial Travelers of America (“UCT”), et al. 

(the plaintiffs herein), hereby appeal * * *.” The defendants argued that the phrase 

“et al.” contained in both the caption and in the body of the notice of appeal was 

inadequate to meet the requirements of App.R. 3(D), which provides that “[t]he 

notice of appeal shall specify the party or parties taking the appeal.” Thus, the 

defendants maintained that the plaintiffs’ failure to specify each of the individual 

appellants in the notice of appeal precluded the court of appeals from exercising 

jurisdiction over the appeal of any plaintiffs except UCT. 

{¶14} The Tenth District disagreed. It acknowledged that while the better 

practice may be to name all the parties appealing, App.R. 3(A) did not make such a 

requirement jurisdictional. Id. at 219. The Tenth District further noted that the 

plaintiffs had subsequently filed a motion to amend the notice of appeal to name 

every party, which the court had granted. As a result, it denied the defendants’ 

motion to dismiss the appeal. Id. 
OHIO FIRST DISTRICT COURT OF APPEALS

6

{¶15} In this case, Torbeck argues that we should employ the reasoning in 

Transamerica and Grand Council to permit the appeal by Torbeck Industries. But 

we find both cases to be factually distinguishable. Here, there is no defect on the face 

of the notice of the appeal. The caption of the notice of appeal states: “Torbeck 

Industries, et al” plaintiffs. The body of the notice of appeal, however, designates 

only Richard Torbeck as the appellant and does not use the term “et al.,” as did the 

notices of appeal in Transamerica and Grand Council. The notice of appeal also lists 

counsel as attorneys for the appellant (singular). Because Torbeck Industries is not 

designated as an appellant in the notice of appeal, it is not a party to this appeal. See 

State v. Langston, 6th Dist. Lucas No. L-12-1014, 2012-Ohio-6249, ¶ 12. 

{¶16} In the third amended complaint, Torbeck did not allege an interest in 

Counts VII (misappropriation of trade secrets) and X (breach of the duty of loyalty), 

and the complaint specified only that Torbeck Industries alleged damages as to those 

claims. Yet, Torbeck challenges on appeal the trial court’s ruling on the defendants’ 

motion for a directed verdict on Torbeck Industries’ claims for breach of the duty of 

loyalty and misappropriation of trade secrets, claims that were raised only by 

Torbeck Industries. Torbeck, however, has no standing to assert error as to these 

claims. 

{¶17} Generally, a litigant must assert his own rights and not the rights of 

third parties. City of N. Canton v. City of Canton, 114 Ohio St.3d 253, 2007-Ohio4005, 871 N.E.2d 586, ¶ 14. Ohio law provides that a duty of loyalty is owed to the 

corporate employer, not its officers. See Veterinary Dermatology, Inc. v. Bruner, 1st 

Dist. Hamilton No. C-040648, 2005-Ohio-5552, ¶ 16 (“In order to demonstrate that 

an employee breached her duty of loyalty, the employer must demonstrate that the 

employee engaged in competition with the employer.”). Likewise, Ohio law provides 
OHIO FIRST DISTRICT COURT OF APPEALS

7

that the company, not its corporate officer, owns the company’s trade secrets. 

Therefore, Torbeck has no standing to assert error as to those claims on Torbeck 

Industries’ behalf. Century Business Servs. v. Barton, 197 Ohio App.3d 352, 2011-

Ohio-5917, 967 N.E.2d 782, ¶ 28 (8th Dist.) (noting that trade secrets belonged to 

corporation, not its president and CEO). 

{¶18} Because Torbeck did not raise these claims in the trial court and was 

not aggrieved by the judgment relating to misappropriation of trade secrets and the 

duty of loyalty, he lacks standing to challenge the trial court’s judgment as it relates 

to those claims. See Langston, 6th Dist. Lucas No. L-12-1014, 2012-Ohio-6249, at ¶ 

8 (“[a]n appeal lies only on behalf of an aggrieved party who must demonstrate that 

he has a present interest in the litigation and is prejudiced by the judgment appealed 

from.”); Trust U/W of A.J. Woltering, 1st Dist. Hamilton No. C-970913, 1999 Ohio 

App. LEXIS 420, *4-5 (Feb. 12, 1999). As a result, we dismiss Torbeck’s appeal. 

Appeal dismissed. 

HENDON, P.J., and STAUTBERG, J., concur.

Please note: 

 The court has recorded its own entry this date.