Dunham v. Ervin , 2019 Ohio 1860 ( 2019 )

[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.