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Haga v. Albex Aluminum3/7/2005
and passes to his or her personal representative, and may be instituted for the benefit of the estate. See Shinaver v. Szymanski (1984), 14 Ohio St.3d 51, 55, 471 N.E.2d 477. Therefore, we conclude that decedent's personal representative is the sole party authorized to file a Notice of Appeal to a dismissal of actions that survive the death of the person. As is stated above, no personal representative of Dickey's Estate ever filed a timely Notice of Appeal in this case.
{ } While appellants argue that they should be permitted to substitute Amber Jean Haga, the new Administratrix, who was appointed on December 22, 2003, for Barnard pursuant to App. R. 29, we disagree. App.R. 29 states, in relevant part, as follows:
{ } "(B) Substitution for other causes
{ } "If substitution of a party in the court of appeals is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (A)." (Emphasis added).
{ } In the case sub judice, the Administratrix, who was represented by different counsel than appellants , did not file a Notice of Appeal and, therefore, was not a party to the appeal. From the record, it is clear that Patricia Barnard was the Administratrix of record at the time the Notice of Appeal was filed by appellants, but for some unknown reason, declined to appeal the trial court's order granting summary judgment to appellees. Appellants cannot substitute Amber Jean Haga, the new Administratrix, for appellants themselves.
{ } In addition, pursuant to R.C. 2505.04, " n appeal is perfected when a written notice of appeal is filed, in the case of an appeal of a final order, judgment, or decree of a court, in accordance with the Rules of Appellate Procedure." App.R. 4(A) specifies that a party shall file a notice of appeal "within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure." In the case sub judice, the Administratrix, who was the proper party to perfect an appeal as representative of the decedent's estate, did not file an appeal within the time set forth in App.R. 4. A timely appeal, therefore, has been not been perfected.
{ } We find, therefore, that since the Administratrix of the decedent's estate did not file a Notice of Appeal, there has been no legally sufficient Notice of Appeal filed and this Court has no jurisdiction to hear appellants' appeal.
{ } Accordingly, the appeal is dismissed for lack of jurisdiction.
By: Edwards, J. and Wise, J. concur
Hoffman, P.J. dissents
Hoffman, P.J., dissenting
{ } Because I would grant appellant's Motion to Substitute Administratrix for the Estate of Roger Lee Dickey, I dissent from the majority's disposition of this case.
JUDGE WILLIAM B. HOFFMAN
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the within appeal is dismissed. Costs assessed to appellant.
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