[Cite as Dunham v. Ervin, 2019-Ohio-1860.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Kimberly Dunham, : 

 Plaintiff-Appellee, : 

 No. 18AP-325 

v. : (C.P.C. No. 12JU-509)

Shawn Ervin, : (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on May 14, 2019 

 

On brief: Shawn Ervin, pro se. Argued: Shawn Ervin. 

 

APPEAL from the Franklin County Court of Common Pleas, 

Domestic Relations Division, Juvenile Branch 

PER CURIAM. 

{¶ 1} Defendant-appellant, Shawn Ervin, appeals from a judgment of the Franklin 

County Court of Common Pleas, Domestic Relations Division, Juvenile Branch, overruling 

appellant's objections and adopting a magistrate's decision that dismissed appellant's 

motions without prejudice. For the following reasons, we dismiss this appeal for lack of a 

final appealable order. 

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} This custody proceeding has a lengthy litigation history commencing in 

January 2012. Relevant to this appeal, appellant filed (1) a motion to modify parental rights 

filed on August 11, 2015; (2) a motion for an anger assessment filed on January 27, 2016; 

(3) a motion to compel filed January 27, 2016; (4) a motion for psychological examination 

filed June 30, 2016; and (5) a motion for change of venue filed December 28, 2016. The 
No. 18AP-325 2 

motions were heard by a magistrate at an evidentiary hearing on October 23, 2017. The 

appellee and the guardian ad litem appeared at the hearing. Appellant failed to appear. 

{¶ 3} Based upon appellant's failure to appear at the hearing and his failure to pay 

the guardian ad litem fees previously ordered by the magistrate, the magistrate dismissed 

appellant's motions without prejudice for failure to prosecute.1

{¶ 4} Appellant timely filed objections to the magistrate's decision. The trial court 

overruled appellant's objections in a 12-page decision and judgment entry and adopted the 

magistrate's decision. 

{¶ 5} Appellant appeals, assigning the following errors: 

I: Perjury in [J]udge Gills['] decision 

II: Omission of facts from Judge Gill 

III: Fraudulent documents from Judge Gill 

IV: Forgery by the Juvenile court or an official of said court 

V: Collusion with intent to defraud 

VI: Bribery 

VII: Manipulation of rules and law, (Constructive litigation) 

VIII: Discrimination 

IX: Destruction and/or concealing evidence 

II. LEGAL ANALYSIS

A. Lack of a final appealable order 

{¶ 6} Before we can reach the merits of appellant's assignments of error, we must 

determine whether this court has jurisdiction to review the judgment that appellant has 

appealed. Ohio appellate courts have jurisdiction to review only final appealable orders of 

lower courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 

2501.02. If an order is not a final appealable order, the appellate court lacks jurisdiction 

and the appeal must be dismissed. Nnadi v. Nnadi, 10th Dist. No. 15AP-13, 2015-Ohio-

 

1 Pursuant to an order dated January 27, 2016, the magistrate ordered appellant to make certain payments 

to the guardian ad litem. That order also notified appellant that failure to pay the required guardian ad 

litem fees could result in a dismissal of the claims. 
No. 18AP-325 3 

3981, ¶ 11, citing Prod. Credit Assn. v. Hedges, 87 Ohio App.3d 207 (4th Dist.1993). 

Appellate courts have the duty to sua sponte examine any deficiencies in jurisdiction. Price 

v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-1221, ¶ 7. 

{¶ 7} When determining whether a judgment or order is final and appealable, an 

appellate court engages in a two-step analysis. First, the court must determine if the order 

is final within the requirements of R.C. 2505.02. Second, if the order satisfies R.C. 2505.02, 

the court must determine whether Civ.R. 54(B) applies and, if so, whether the order 

contains a certification that there is no just reason for delay. Gen. Acc. Ins. Co. v. Ins. Co. 

of N. Am., 44 Ohio St.3d 17, 21 (1989). A trial court's order is final and appealable only if it 

satisfies the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). Denham v. New 

Carlisle, 86 Ohio St.3d 594, 596 (1999). 

{¶ 8} Generally, a dismissal without prejudice is not a final appealable order, so 

long as the claims dismissed can be refiled. Nnadi at ¶ 16, citing Johnson v. H & M Auto 

Serv., 10th Dist. No. 07AP-123, 2007-Ohio-5794, ¶ 7. "This is because a trial court's 

dismissal without prejudice places the parties in the same position they were in before they 

filed the action." Id.; see also Kopina v. Kopina, 5th Dist. No. 13CA30, 2014-Ohio-287, ¶ 19 

(judgment dismissing contempt motion without prejudice in a domestic dispute is not a 

final appealable order). 

{¶ 9} Here, the trial court dismissed appellant's motions without prejudice. There 

is no indication in the record that appellant is barred from refiling the motions. Therefore, 

the judgment at issue is not a final appealable order, and we sua sponte dismiss this appeal 

for lack of jurisdiction. 

Appeal dismissed.

KLATT, P.J., DORRIAN and LUPER SCHUSTER, JJ.