[Cite as Beneficial Mtge. Co., Inc. v. Dickerson, 2014-Ohio-5045.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Beneficial Mortgage Company, Inc.,                    :

                 Plaintiff-Appellant/                 :
                 Cross-Appellee,
                                                      :                  No. 14AP-282
v.                                                                    (C.P.C. No. 06CV-10370)
                                                      :
Sandra J. Dickerson,                                                 (REGULAR CALENDAR)
                                                      :
                 Defendant-Appellee/
                 Cross-Appellant.                     :


                                            D E C I S I O N

                                   Rendered on November 13, 2014


                 Ulmer & Berne LLP, John M. Alten, Melissa L. Zujkowski
                 and Reem S. Henderson, for plaintiff-appellant/cross-
                 appellee.

                 Kevin E. Humphreys, for                     defendant-appellee/cross-
                 appellant Sandra J. Dickerson.

                APPEAL from the Franklin County Court of Common Pleas and
                         on Objections to the Magistrate's Decision

DORRIAN, J.

        {¶ 1} Defendant-appellee/cross-appellant, Sandra J. Dickerson, filed a motion to
dismiss the appeal filed by Beneficial Mortgage Company, Inc.                      Beneficial Mortgage
Company, Inc. filed a notice of appeal on April 7, 2014. Appellee argues that Beneficial
Mortgage Company, Inc. does not have standing to bring the appeal. On June 6, 2014,
Beneficial Mortgage Company, Inc. moved for leave to amend the notice of appeal to
substitute "Beneficial Mortgage Co. of Ohio" or "Beneficial Financial I Inc." as the name of
the appellant.
        {¶ 2} Pursuant to Civ.R. 53(D), Loc.R. 13(M) and App.R. 34(B), this matter was
referred to a magistrate (1) to conduct an evidentiary hearing to determine whether
No. 14AP-282                                                                                                2


Beneficial Mortgage Company, Inc. has the right to appeal the trial court's judgment, and
(2) to hold oral argument on Beneficial Mortgage Company, Inc.'s motion to amend the
notice of appeal.
        {¶ 3} The magistrate issued the appended decision, including findings of facts
and conclusions of law. The magistrate recommends that this court (1) grant
appellee/cross-appellant's motion to dismiss this appeal, and (2) deny Beneficial
Mortgage Company, Inc.'s motion for leave to amend the notice of appeal.
        {¶ 4} Beneficial Mortgage Company, Inc.1 (hereinafter "objector")2 has filed
objections to the magistrate's decision granting the motion to dismiss and denying the
motion to amend. In the objections, for the first time, counsel for objector refers to the
name Beneficial Mortgage Company, Inc. as a "scrivener's error" and a "mere oversight,"
"harmless naming imperfection," "but a few typographical characters [different]," and an
"[innocent] technical error [or] mistake." (Response, 3-8.) Counsel argues that it would
be "draconian" to elevate form over substance by granting the motion to dismiss and
denying the motion to amend as the magistrate has recommended.
        {¶ 5} Up until the actual hearing before the magistrate, however, the same
counsel argued tenaciously that objector is the successor to Beneficial Mortgage Co. of
Ohio. Indeed, in the May 5, 2014 response to appellee's motion to dismiss, counsel
stated: "The true rights [to appeal] are Beneficial Mortgage Company, Inc.'s because the
originally named entity-plaintiff has ceased to exist and Beneficial Mortgage Company has
succeeded to those rights." (Emphasis sic.) (Response, 10.) Apparently counsel made the
same representations to the trial court in its pleadings and motions as he has noted on
pages 4-5 of his response.           Counsel further stated: "In reality, 'Beneficial Mortgage
Company of Ohio' ceased being an active company years ago.                          Beneficial Mortgage
Company, Inc. succeeded to the rights related to Dickerson's mortgage. While no formal
Rule 25 motion was filed in the underlying action, Beneficial advised the trial court and


1 Appellee argues that the objections of Beneficial Mortgage Company, Inc. are a legal nullity because it is
axiomatic that objections cannot be tendered in judicial proceedings by or on behalf of a non-existent entity.
Without deciding this issue, in the interest of justice, we will consider the merits of the objections.
2 Throughout his decision, the magistrate refers to Beneficial Mortgage Company, Inc. as "appellant."

Nevertheless, because we determine that Beneficial Mortgage Company, Inc. does not have standing to bring
this appeal, it cannot then be the appellant in this action. Therefore, we will refer to Beneficial Mortgage
Company, Inc. as "objector."
No. 14AP-282                                                                                                3


the parties of this through the pleadings listed above." (Response, 6.) Also in the
response, counsel asks that the motion to dismiss be denied or that, "[i]n the alternative,
under Civil Rule 25(C) the court should allow Beneficial Mortgage Company to substitute
in as a plaintiff-appellant." (Response, 11.)
        {¶ 6}    In her reply brief and at the hearing before the magistrate, appellee
produced certified records from the Ohio Secretary of State that the Secretary has no
record of a business entity named "Beneficial Mortgage Company, Inc."3 Only then did
objector concede that Beneficial Mortgage Company, Inc. is a nonexistent entity and that
it was a mistake to put the name Beneficial Mortgage Company, Inc. on the notice of
appeal.     Counsel for objector stated: "We always understood that entity to be the
successor liability entity for the servicing of the mortgage. That's different than who
actually holds the note and has standing as a plaintiff on the note.                          That was a
misunderstanding." (Tr. 38.)
        {¶ 7} We begin by noting that objector does not object to any of the magistrate's
findings of fact; therefore, we adopt them as our own.
        {¶ 8} Objector focuses its arguments on the magistrate's decision to deny the
motion to amend the notice of appeal. Objector's counsel argues that the magistrate
misapplied Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), and Ambrosia
Coal & Constr. Co. v. C.B.G. Inc., 7th Dist. No. 00C.A. 101 (2001), in determining whether
to grant objector's motion to amend the notice of appeal. Objector asserts the magistrate
did not consider the criteria set forth in Transamerica to determine whether it was
appropriate to grant the motion to amend.
        {¶ 9} In Transamerica, the Supreme Court of Ohio stated that it was appropriate
to grant a motion to amend a notice of appeal where "the mistake was made in good faith,
no prejudice accrued as a result, dismissal constituted a disproportionate sanction, the
client was punished for the fault of his counsel and the dismissal frustrated the overriding


3 It must be noted that, within the course of 35 days, from the time objector filed its notice of appeal on
April 7, 2014, to the time appellee filed its reply to objector's memorandum contra the motion to dismiss on
May 12, 2014, appellee was able to obtain records from the Ohio Secretary of State evidencing the true
successor in interest and the non-existence of objector. Yet, objector's counsel appears to have made no
effort to do the same from the time it first represented to the trial court that objector was the successor in
interest to the filing of its memorandum contra to dismiss the appeal in which it represented the same to this
court.
No. 14AP-282                                                                              4


objective of deciding cases on their merits." Id. at 322, citing Natl. Mut. Ins. Co. v.
Papenhagen, 30 Ohio St.3d 14 (1987).
       {¶ 10} In his decision, the magistrate found the facts in this case to be more
analogous to the facts in Ambrosia, than the facts in Transamerica.            Here, as in
Ambrosia, a "non-existent entity" is moving to amend the notice of appeal. These facts
are distinguished from the facts in Transamerica where the original appellant had
standing to appeal in his own right. They are likewise distinguished from the facts in the
precursor cases objector cites in its brief in support of its argument. See Papenhagen
(where the Supreme Court of Ohio reversed the decision of the court of appeals
dismissing an appeal due to the appellant listing two case captions and case numbers on a
single notice of appeal form), and Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio
St.2d 257 (1982) (where the Supreme Court of Ohio reversed the decision of the court of
appeals dismissing an appeal due to the appellant providing the date of the trial court's
decision on a decision to deny new trial, rather than the date of the trial court's final
judgment entry). In neither of these cases was the question presented whether a non-
existent entity with no standing to appeal, which filed a notice of appeal, may move to
amend the notice of appeal to include an existing entity with standing to appeal after the
time for filing a notice of appeal has expired.
       {¶ 11} For the reasons stated in the magistrate's decision, we likewise find
Ambrosia to be persuasive. Here, as in Ambrosia, the jurisdiction of the court was never
invoked prior to the time expiration for the filing of the notice of appeal. Accordingly, we
adopt the magistrate's conclusion to deny objector's June 6, 2014 motion to amend the
notice of appeal.
       {¶ 12} As noted above, objector focuses his argument on the motion to amend the
notice of appeal. Objector did, however, also object to the magistrate's decision to grant
appellee's motion to dismiss. Nevertheless, objector did not object to the magistrate's
conclusions that: "Beneficial Mortgage Company, Inc. is not a successor of plaintiff
Beneficial Mortgage Co. of Ohio"; "We do know by an official record of the Ohio Secretary
of State that the secretary has no record of an entity known as 'Beneficial Mortgage
Company, Inc.' "; "It can be noted that there is no evidence before this court showing that
an entity described as 'Beneficial Mortgage Company' is a successor to plaintiff Beneficial
No. 14AP-282                                                                               5


Mortgage Co. of Ohio."; " 'Beneficial Mortgage Co.' is clearly not a successor to plaintiff";
and "[I]t is clear that appellant has no legal interest in bringing this appeal." (Appendix
¶ 39, 40, 42 and 44.) Accordingly, we adopt as our own the magistrate's conclusion to
grant appellee's April 21, 2014 motion to dismiss the appeal.
       {¶ 13} Finally, we find to be moot appellee/cross-appellant's July 31, 2014 motion
to strike Beneficial Mortgage Company, Inc.'s reply filed July 30, 2014. We further sua
sponte dismiss the conditional cross-appeal of appellee/cross-appellant. Appellee/cross-
appellant stated in her notice of appeal that: "This conditional cross-appeal by Dickerson
is conditioned upon the event that the Court of Appeals, Tenth Appellate District of
Franklin County, Ohio, grants any relief to the Appellant or Beneficial by way of reversal
or modification of: (a) the Trial Court's Judgment Entry dated October 11, 2012; and/or
(b) the March 10, 2014, Decision and Entry Denying Plaintiff's October 25, 2012, Motion
for Judgment Notwithstanding the Verdict and Motion for a New Trial." (Emphasis sic.)
As objector's appeal is being dismissed, no such relief will be granted, and, therefore,
dismissal of the conditional cross-appeal is warranted.
       {¶ 14} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of objector's objections, we find the magistrate has properly
determined the pertinent facts and concluded to deny the motion to amend the notice of
appeal and to dismiss the appeal. We, therefore, overrule objector's objections to the
magistrate's decision, and we adopt the magistrate's findings of fact and conclusions of
law.   Further, we find to be moot appellee/cross-appellant's motion to strike and,
therefore, sua sponte dismiss the conditional cross-appeal of appellee/cross-appellant.
                                          Objections overruled; motion to amend the
                                          notice of appeal denied; motion to dismiss the
                                          appeal granted; motion to strike found to be
                                          moot; conditional cross-appeal sua sponte
                                          dismissed.

                            KLATT and O'GRADY, JJ., concur.
                                    __________
No. 14AP-282                                                                            6


                                     APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

Beneficial Mortgage Company, Inc.,         :

              Appellant/                   :
              Cross-Appellee,
                                           :
v.                                                            No. 14AP-282
                                           :           (C.P.C. No. 06CV-10370)
Sandra J. Dickerson,
                                           :           (REGULAR CALENDAR)
              Defendant-Appellee/
              Cross-Appellant.             :




                         MAGISTRATE'S DECISION

                                Rendered on June 27, 2014



              Ulmer & Berne LLP, John M. Alten, Melissa L. Zujkowski
              and Reem S. Henderson, for appellant/cross-appellee.

              Kevin E. Humphreys, for            defendant-appellee/cross-
              appellant Sandra J. Dickerson.


                            ON MOTION TO DISMISS

        ON MOTION FOR LEAVE TO AMEND THE NOTICE OF APPEAL


       {¶ 15} This appeal originated on April 7, 2014 when a notice of appeal was filed by
an attorney who identified the appellant as "Beneficial Mortgage Company, Inc." On April
21, 2014, appellee, Sandra J. Dickerson filed a motion to dismiss challenging appellant's
standing to bring this appeal. On June 6, 2014, appellant moved for leave to amend the
notice of appeal.
No. 14AP-282                                                                              7


       {¶ 16} Earlier, on May 23, 2014, this magistrate, pursuant to App.R. 34(B), was
appointed to conduct an evidentiary hearing to determine whether appellant has the right
to appeal the trial court's judgment. Later, on June 9, 2014, this court instructed the
magistrate to also hold oral argument on appellant's motion to amend the notice of
appeal.
       {¶ 17} On June 18, 2014, the magistrate held an evidentiary hearing and oral
arguments of counsel.     This magistrate's decision shall render findings of fact and
conclusions of law along with a recommendation to the court regarding appellee's
April 21, 2014 motion to dismiss and appellant's June 6, 2014 motion for leave to amend
the notice of appeal.
Findings of Fact:
       {¶ 18} 1. On August 10, 2006, Beneficial Mortgage Co. of Ohio filed in the Franklin
County Court of Common Pleas ("common pleas court" or "trial court") a complaint
against defendant Sandra J. Dickerson ("Dickerson") seeking a judgment in the amount of
$25,421.91 together with interest on a promissory note executed by Dickerson. The
plaintiff also sought foreclosure of certain mortgage deeds securing the promissory note.
The note and mortgage deeds were regarding certain real estate located at 940-950 East
Broad St., Columbus, Ohio.
       {¶ 19} 2. According to official records kept by the office of the Ohio Secretary of
State, effective December 31, 1996, Beneficial Ohio Inc., a Delaware corporation, merged
with Beneficial Mortgage Co. of Ohio. As a result of the merger, the corporate title of the
survivor was changed to Beneficial Ohio Inc.
       {¶ 20} 3. Thus, almost a decade prior to the August 10, 2006 filing of the common
pleas court action, the named plaintiff, Beneficial Mortgage Co. of Ohio, had ceased to
exist in that name due to the merger. At the time of the filing of the complaint, Beneficial
Ohio Inc. was the survivor of the merger.
       {¶ 21} 4. On June 26, 2008, Dickerson filed an amended answer and
counterclaim. The counterclaim was filed against Beneficial Mortgage Co. of Ohio, the
named plaintiff in the common pleas court action.
No. 14AP-282                                                                                8


        {¶ 22} 5. On May 29, 2009, plaintiff, Beneficial Mortgage Co. of Ohio, filed its
answer to Dickerson's counterclaim.       The pleading does not indicate that Beneficial
Mortgage Co. of Ohio had ceased to exist.
        {¶ 23} 6. According to official records kept by the office of the Ohio Secretary of
State, effective March 18, 2011, Beneficial Ohio Inc., a Delaware corporation, merged into
Beneficial Financial I Inc., a California corporation
        {¶ 24} 7. Following a lengthy jury trial during June 2012, the trial court entered
judgment on October 11, 2012. On plaintiff's breach of contract claim, the trial court
entered judgment for Dickerson and against plaintiff. The trial court noted that plaintiff
had withdrawn its foreclosure claim.
        {¶ 25} On Dickerson's claim for negligent misrepresentation, the jury returned a
verdict in favor of Dickerson and against plaintiff. Based on the jury verdict, the court
entered judgment for Dickerson and against plaintiff in the amount of $1,127,793.
        {¶ 26} During the trial, the court entered directed verdicts in favor of plaintiff and
against Dickerson on several of Dickerson's claims.
        {¶ 27} The trial court's judgment entry enters judgment on the negligent
misrepresentation claim in favor of Dickerson and specifically against plaintiff, Beneficial
Mortgage Co. of Ohio.
        {¶ 28} 8. Prior to the June 2012 trial, several plaintiff motions were filed in which
plaintiff was unexplainably identified as Beneficial Mortgage Company, Inc. However, in
the attorney signature block, the attorney continued to be identified as "Attorney for
Plaintiff Beneficial Mortgage Co. of Ohio." The earliest of these motions brought in the
name of Beneficial Mortgage Company, Inc., was filed on March 10, 2010. However, at no
time did the attorneys for the plaintiff file a Civ.R. 25 motion for a substitution of the
plaintiff.
        {¶ 29} 9. On October 25,        2012,   a Civ.R. 50(B) motion for          judgment
notwithstanding the verdict, or, in the alternative, for new trial, was filed in the name of
"Plaintiff Beneficial Mortgage Company, Inc." However, the attorney signature block
identified the plaintiff as "Beneficial Mortgage Co. of Ohio."
        {¶ 30} 10. On March 10, 2014, the trial court entered its decision denying the
Civ.R. 50(B) motion.      In its decision, the trial court refers to "Plaintiff, Beneficial
No. 14AP-282                                                                                 9


Mortgage Company Inc." The plaintiff, Beneficial Mortgage Co. of Ohio, as named in the
complaint, is not mentioned in the trial court's decision.
       {¶ 31} 11. On April 7, 2014, a document captioned "Notice of Appeal" was filed in
this court. Under the caption, the document states:
              Notice is hereby given that Plaintiff-Appellant Beneficial
              Mortgage Company, Inc., appeals to the Court of Appeals,
              Tenth Appellate District, Franklin County, Ohio, from the
              Court's Judgment Entry dated October 11, 2012, as well as its
              March 10, 2014 Decision and Entry Denying Plaintiff's
              October 25, 2012 Motion for Judgment Notwithstanding the
              Verdict and Motion for a New Trial (the "JNOV Denial
              Order"). This notice is timely pursuant to App.R. 4(B)(2). A
              copy of the Judgment Entry and the JNOV Denial Order
              being appealed are attached as Exhibits A and B,
              respectively.

       {¶ 32} Thereunder, the last line of the attorney signature block states: "Attorneys
for Plaintiff Beneficial Mortgage Company, Inc."
       {¶ 33} 12. On April 17, 2014, Dickerson filed a notice of conditional cross-appeal.
       {¶ 34} 13. On April 21, 2014, as earlier noted, Dickerson moved for dismissal of
this appeal, arguing that appellant lacked standing to bring this action.
       {¶ 35} 14. On June 6, 2014, as earlier noted, appellant moved for leave to amend
the notice of appeal. Appellant requests that it be granted leave to substitute "Beneficial
Mortgage Co. of Ohio" or "Beneficial Financial I Inc." as the name of the appellant.
       {¶ 36} 15. The parties have submitted exhibits to this court as requested by the
magistrate. On June 5, 2014, appellant filed a "notice" that presents five official
documents kept by the Ohio Secretary of State. Also on June 5, 2014, Dickerson filed six
official documents kept by the Ohio Secretary of State.          Dickerson also submitted
documents from other courts pertaining to Beneficial Financial I Inc.
       {¶ 37} 16. Among her exhibits, Dickerson submits a May 8, 2014 certification of
the Ohio Secretary of State that the secretary has no record of a business entity named
"Beneficial Mortgage Company, Inc."
Conclusions of Law:
No. 14AP-282                                                                               10


          {¶ 38} It is the magistrate's decision that this court deny appellant's June 6, 2014
motion for leave to amend the notice of appeal. It is further the magistrate's decision that
this court grant appellee's April 21, 2014 motion to dismiss this appeal.
          {¶ 39} Analysis begins with the finding that appellant Beneficial Mortgage
Company, Inc. is not a successor of plaintiff Beneficial Mortgage Co. of Ohio. However, as
shown by the official records of the Ohio Secretary of State, Beneficial Ohio Inc., was a
successor by merger of plaintiff Beneficial Mortgage Co. of Ohio.            Also, Beneficial
Financial I Inc. is currently a successor by merger of plaintiff Beneficial Mortgage Co. of
Ohio.
          {¶ 40} In fact, the corporate status of appellant remains unclear even though
appellant was given ample opportunity by this court, through its magistrate, to clarify.
We do know by an official record of the Ohio Secretary of State that the secretary has no
record of an entity known as "Beneficial Mortgage Company, Inc." Significantly, at oral
argument, upon questioning by the magistrate, appellant's counsel could not identify the
state of incorporation of appellant, and counsel has failed to submit as evidence to this
court any official record that identifies the corporate status of appellant. This scenario
contrasts sharply with statements of appellant's counsel made in appellant's May 5, 2014
response to Dickerson's April 21, 2014 motion to dismiss. Therein, appellant's counsel
states:
                Beneficial Mortgage Company, Inc. is not purporting to
                appeal/quasi-intervene based on some independent
                relationship to the underlying facts where the true party in
                interest has chosen not to pursue those rights. The true
                rights are Beneficial Mortgage Company, Inc.'s because the
                originally named entity-plaintiff has ceased to exist and
                Beneficial Mortgage Company has succeeded to those rights.

(Emphasis sic.)

          {¶ 41} Apparently, appellant's counsel no longer holds to the above-quoted
statements because there is now a motion to amend the notice of appeal that, in effect,
removes any claim that Beneficial Mortgage Company, Inc. is a successor to plaintiff
Beneficial Mortgage Co. of Ohio.
No. 14AP-282                                                                               11


       {¶ 42} It can be noted that there is no evidence before this court showing that an
entity described as "Beneficial Mortgage Company" is a successor to plaintiff Beneficial
Mortgage Co. of Ohio. Appellant did submit official records of the Ohio Secretary of State
showing a trade name registration for "Beneficial Mortgage Co." and a trade name
cancellation for "Beneficial Mortgage Co." The records regarding an entity known as
"Beneficial Mortgage Co." are irrelevant to the matters before this court. Moreover, it is
not entirely clear what appellant's counsel is endeavoring to suggest by submitting the
records of a trade name registration and subsequent trade name cancellation for an entity
known as "Beneficial Mortgage Co." "Beneficial Mortgage Co." is clearly not a successor to
the plaintiff.
       {¶ 43} Given that appellant, Beneficial Mortgage Company, Inc., is not a successor
to plaintiff Beneficial Mortgage Co. of Ohio, appellant could not have successfully sought
to be substituted for plaintiff by way of a Civ.R. 25 motion filed in the trial court.
Presumably, Beneficial Financial I Inc. could have been substituted, but, as earlier noted,
a Civ.R. 25 motion was never filed in the trial court.
       {¶ 44} Based upon the above analysis, it is clear that appellant has no legal interest
in bringing this appeal. Clearly, appellant was not a party below, nor could it have been
made a party by substitution.         Appellant is not a successor to plaintiff, Beneficial
Mortgage Co. of Ohio, against whom the judgment lies.
       {¶ 45} App.R. 3(A), captioned "Filing the notice of appeal," provides:
                 Failure 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.

       {¶ 46} App.R. 3(D), captioned "Content of the notice of appeal," provides:

                 The notice of appeal shall specify the party or parties taking
                 the appeal; shall designate the judgment, order or part
                 thereof apealed [sic] from; and shall name the court to which
                 the appeal is taken.

       {¶ 47} App.R. 3(F), effective July 1, 2013, is captioned "Amendment of the notice of
appeal." The rule provides:
No. 14AP-282                                                                       12


              (1) When leave required. A party may amend a notice of
              appeal without leave if the time to appeal from the order that
              was the subject of the initial notice of appeal has not yet
              lapsed under App.R. 4. Thereafter, the court of appeals
              within its discretion and upon such terms as are just may
              allow the amendment of a notice of appeal, so long as the
              amendment does not seek to appeal from a trial court order
              beyond the time requirements of App.R. 4.

(Emphasis sic.)
       {¶ 48} Prior to July 1, 2013, App.R. 3(F) captioned "Amendment of the notice of
appeal" stated in its entirety:
              The court of appeals within its discretion and upon such
              terms as are just may allow the amendment of a timely filed
              notice of appeal.

       {¶ 49} The 2013 staff notes regarding the July 1, 2013 amendment of former
App.R. 3(F), state:
              App.R. 3(F) is amended to clarify the procedure for
              amending a notice of appeal. Amending a notice of appeal is
              an efficient mechanism for appealing from a trial court order
              different from the order referenced in the initial notice of
              appeal without having to file a second notice of appeal and
              then seeking to consolidate the two appellate cases. The
              amendment clarifies that no leave is required to amend a
              notice of appeal if the time to appeal from the order
              identified in the initial notice of appeal has not yet lapsed
              under App.R. 4; * * *. By contrast, leave is required if a party
              seeks timely to appeal from a subsequent trial court order
              after the time to appeal from the originally appealed order
              has expired under App.R. 4; the decision whether to grant
              leave at that point is discretionary, reflecting the general
              reluctance to permit such amendments, see, e.g., Rickard v.
              Trumbull Twp. Zoning Bd., 11th Dist. Nos. 2008-A-0024,
              2008-A-0027, 2008-A-0025, 2008-A-0028, and 2008-A-
              0026, 2009-Ohio-2619, ¶ 42, but also recognizing the
              potential efficiencies of avoiding a second appeal if the
              orders in question are inter-related. In all events, however,
              an amended notice of appeal may not be used to appeal from
              a trial court order if the time to appeal from that order has
              already lapsed under App.R. 4.
No. 14AP-282                                                                            13


       {¶ 50} In Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), the court had
occasion to apply App.R. 3(A) and (D).
       {¶ 51} In Transamerica, in June 1987, an automobile driven by Lori Watkins
collided with a truck operated by Terry Nolan and a third vehicle driven by Adam Sohn.
Nolan and three passengers in the Watkins vehicle were killed as a result. Anthony
Wallace was one of the three passengers killed. Appellants, Linda and Dennis Wallace,
are the parents of Anthony Wallace.
       {¶ 52} The trial court entered judgment for the Wallaces, but this court reversed.
The cause came before the Supreme Court of Ohio pursuant to the allowance of a motion
to certify the record.
       {¶ 53} Pertinent here, in a unanimous decision, the Transamerica court states:
               As a preliminary matter, we must first determine whether
               the court of appeals was correct in holding that it lacked
               jurisdiction over the appeal of Linda Wallace. The notice of
               appeal filed in the court of appeals designated the appellants
               as “Dennis Wallace et al.” The court of appeals held that the
               notice failed to comply with App.R. 3(D) and that the defect
               was jurisdictional. App.R. 3(D) provides that the “notice of
               appeal shall specify the party or parties taking the appeal.”
               The court of appeals relied on its decision in Seipelt v.
               Motorists Mut. Ins. Co. (1992), 81 Ohio App.3d 530, 611
               N.E.2d 917, which relied on the reasoning in Torres v.
               Oakland Scavenger Co. (1987), 487 U.S. 312, 108 S.Ct. 2405,
               101 L.Ed.2d 285. In Torres the Supreme Court held that the
               designation “et al.” fails to provide the notice required under
               the similar federal rule and acted as a jurisdictional bar.

               Although the relevant portion of the version of Fed.R.App.P.
               3 considered in Torres was virtually the same as App.R. 3,
               we do not interpret the Ohio rule so strictly. Ohio App.R.
               3(A) provides, “Failure 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.” * * * App.R. 3(A) is controlling.
               Pursuant to App.R. 3(A), the only jurisdictional requirement
               for the filing of a valid appeal is the timely filing of a notice of
               appeal. 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
No. 14AP-282                                                                              14


              warranted, and its decision will not be overturned absent an
              abuse of discretion.

              The court of appeals abused its discretion by refusing to
              consider the appeal of Linda Wallace. We have held that the
              failure to file separate notices of appeal for cases that had
              been consolidated in the trial court, as required by local rule,
              is not a jurisdictional defect. Natl. Mut. Ins. Co. v.
              Papenhagen (1987), 30 Ohio St.3d 14, 30 OBR 21, 505
              N.E.2d 980. We reasoned that the court of appeals had
              abused its discretion by dismissing the appeal when the
              mistake was made in good faith, no prejudice accrued as a
              result, dismissal constituted a disproportionate sanction, the
              client was punished for the fault of his counsel and the
              dismissal frustrated the overriding objective of deciding
              cases on their merits. Use of the term “et al.” might not
              always be appropriate, but here appellees were not
              prejudiced by the use of the designation. All parties were
              aware of the interests of Linda Wallace and proceeded under
              the assumption that she was a party. Therefore, the court of
              appeals abused its discretion by failing to consider her
              appeal.

(Footnotes omitted.) Id. at 322-23.

       {¶ 54} In Ambrosia Coal & Constr. Co. v. C.B.G. Inc., 7th Dist. No. 00C.A. 101
(2001), the court distinguished the Transamerica case when it dismissed an appeal
pursuant to App.R. 3(D). In denying an App.R. 3(F) motion to amend the notice of
appeal, the court held that a party to the action below who was prosecuting the appeal had
failed to invoke the court's appellate jurisdiction because the party was not named as an
appellant on the notice of appeal.
       {¶ 55} In Ambrosia, the appellee (hereinafter "Ambrosia") leased premises to the
appellant (hereinafter "C.B.G. Inc."), who thereafter assigned the lease to Leber, Inc.
       {¶ 56} Ambrosia's complaint in forcible entry and detainer named C.B.G., Inc., and
Leber, Inc., as defendants.     On summary judgment, Ambrosia obtained a writ of
restitution against Leber, Inc. In May 2000, a notice of appeal was filed listing only the
defendant C.B.G. Inc. as taking an appeal.
No. 14AP-282                                                                             15


       {¶ 57} In September 2000, the brief of appellant was filed listing Leber, Inc. as the
appellant. Earlier, the corporate charter of C.B.G. Inc. was cancelled for failing to file a
corporate franchise tax.
       {¶ 58} In October 2000, the appellee filed its motion to strike the brief filed by
Leber, Inc., and to dismiss the appeal. The appellant responded to the motion to dismiss
and also moved to amend its notice of appeal to include Leber, Inc. as a plaintiff-
appellant.
       {¶ 59} In denying the motion to amend the notice of appeal and dismissing the
appeal, the Ambrosia court explained:
              Appellee argues that C.B.G., Inc. and Leber, Inc. are not
              identically situated. C.B.G., Inc. no longer exists and the
              outcome of the appeal would have no affect on it. Leber, Inc.,
              the tenant under the lease as an assignee, failed to file a
              notice of appeal within the time period required under the
              appellate rules.

              The Twelfth District Court of Appeals held in Seinpelt v.
              Motorists Mutual Ins. Co. (1992), 81 Ohio App.3d 530:

              “ * * * failing to specify the parties taking the appeal is more
              than an ‘excusable informality’; it constitutes a failure of the
              parties to appeal and is therefore a jurisdictional bar.”

              While Seinpelt would appear to be no longer upheld in view
              of the later Transamerica decision regarding the use of “et
              al.” in characterizing the parties appellant, it is relevant in its
              application of App.R. 3[D] requiring that the parties taking
              the appeal be specified in the notice of appeal. In this case
              there is no designation of Leber, Inc. as taking an appeal nor
              is there a designation that C.B.G., Inc., et al. was taking an
              appeal. (Emphasis added).
              Furthermore, the motion for leave to amend filed by
              appellant, C.B.G., Inc. is a nullity as it no longer exists.
              Leber, Inc. did not separately file a notice of appeal and such
              failure is a jurisdictional bar to this court to consider any
              assignment of error raised by Leber, Inc.

              App.R. 3(F) permits this court to amend a timely filed notice
              of appeal. Leber, Inc. did not timely file an appeal, and may
              not use a non-existent entity to bootstrap itself on to the
              notice of appeal.
No. 14AP-282                                                                                16


              Properly perfecting an appeal is jurisdictional. See Guy v.
              City of Steubenville (Jan. 15, 1998), Jefferson App. No. 97-
              JE-22, unreported. To properly perfect an appeal it was
              incumbent upon Leber, Inc. to file a notice of appeal within
              thirty (30) days after the judgment of April 26, 2000. It did
              not timely file the notice required so as to invoke the
              jurisdiction of this court to review any claimed error as to it.

              As Leber, Inc. is not a party to this appeal, the appellee's
              motion to strike the brief filed on behalf of Leber, Inc. on
              September 26, 2000, is sustained. Moreover, appellee's
              motion to dismiss this appeal is sustained, as C.B.G., Inc. has
              been dissolved and no longer exists, which also dictates that
              we deny the motion for leave to amend to add Leber, Inc. as
              a party appellant.

Id.
       {¶ 60} Ambrosia compels denial of appellant's motion for leave to amend the
notice of appeal. Ambrosia also compels dismissal of this appeal.
       {¶ 61} Appellant, Beneficial Mortgage Company, Inc., was not a party to the
proceedings below, could not have been made a party to the proceedings below, and has
no legal interest in bringing this appeal. Thus, the April 7, 2014 notice of appeal failed to
invoke the appellate jurisdiction of this court. Consequently, the April 7, 2014 notice of
appeal may not be used to bring the real party in interest into this appeal. That is, the
April 7, 2014 notice of appeal may not be used to bring either Beneficial Mortgage Co. of
Ohio or Beneficial Financial I Inc. into this appeal. To allow the amendment of the notice
of appeal would in effect allow an appeal beyond the time requirements of App.R. 4.
       {¶ 62} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny appellant's June 6, 2014 motion for leave to amend the notice of appeal. It is
further the magistrate's decision that this court grant appellee's April 21, 2014 motion to
dismiss.


                                           /S/ MAGISTRATE
                                           KENNETH W. MACKE
No. 14AP-282                                                                 17


                          NOTICE TO THE PARTIES

           Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
           as error on appeal the court's adoption of any factual finding
           or legal conclusion, whether or not specifically designated as
           a finding of fact or conclusion of law under Civ.R.
           53(D)(3)(a)(ii), unless the party timely and specifically
           objects to that factual finding or legal conclusion as required
           by Civ.R. 53(D)(3)(b).
