State v. Vercillo

2022 Ohio 4411

• Court: Ohio Court of Appeals
• Decided: December 8, 2022
• Docket: 22-COA-032
• Status: Published

Opinion

[Cite as State v. Vercillo, 2022-Ohio-4411.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX. REL., JUDGES: L.A. Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Relator Hon. Craig R. Baldwin, J.

-vs- Case No. 22-COA-032 THE HONORABLE JUDGE DAMIAN J. VERCILLO and THE ASHLAND COUNTY JUVENILE & PROBATE COURT

Respondents OPINION

CHARACTER OF PROCEEDINGS: Writ of Prohibition

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: December 8, 2022

APPEARANCES:

For Relator For Respondent

WESLEY C. BUCHANAN FRANKIE H. SCIALDONE THOMAS L. ERB, JR. Mazanec, Raskin & Ryder Co., L.P.A. ANNA K. LEY 100 Franklin’s Row 50 South Main Street, Suite #625 34305 Solon Road Akron, Ohio 44308 Cleveland, Ohio 44139 Ashland County, Case No. 22-COA-032 2

Hoffman, P.J. {¶1} On October 4, 2022, Relator L.A. filed a Verified Complaint for Writ of

Prohibition against Respondents the Honorable Judge Damian J. Vercillo and the

Ashland County Juvenile & Probate Court.1

INTRODUCTION

Facts

{¶2} L.A. is the defendant in the case captioned J.N. v. L.A., Ashland County

Juvenile Case No. 2020-4016. Complaint, ¶ 3. Judge Vercillo is a visiting judge assigned

to the Ashland County Juvenile Court by the Ohio Supreme Court. Id., ¶ 4. On February

21, 2020, J.N. (father) filed a complaint to determine parentage rights with the Ashland

County Juvenile Court. Id., ¶ 6. L.A. is the biological mother of the child at issue. Id., ¶ 8.

{¶3} On October 2, 2020, the Ashland County Juvenile Court conducted a

hearing at which the parties indicated they had reached an agreement. Id., ¶ 9. Father’s

counsel represented to the trial court that he would prepare the journal entry to file with

the court. Id., ¶ 10. The juvenile court gave the parties 15 days to file the journal entry

recognizing the settlement. Id., ¶ 11.

{¶4} On December 3, 2020, Judge Vercillo dismissed father’s complaint for

failure to file the journal entry. Id., ¶ 12. After December 3, 2020, L.A. moved to Florida

with the minor child at issue. Id., ¶ 14. On March 5, 2021, father filed a motion for relief

1We dismiss Respondent Ashland County Juvenile & Probate Court because it is not sui juris. “ ‘A court is defined to be a place in which justice is judicially administered. It is the exercise of judicial power, by the proper office or officers, at a time and place appointed by law.’ Todd v. United States (1895), 158 U.S. 278, 284, 15 S.Ct. 889, 891, 39 L.Ed. 982. Absent express statutory authority, a court can neither sue nor be sued in its own right.” State ex rel. Cleveland Mun. Court v. Cleveland City Council, 34 Ohio St.2d 120, 122, 296 N.E.2d 544 (1973). Ashland County, Case No. 22-COA-032 3

from judgment of the juvenile court’s December 3, 2020 order. Id., ¶ 15. Father requested

relief under Civ.R. 60(B)(5). Id.

{¶5} On May 25, 2021, Judge Vercillo conducted a hearing. Id., ¶ 17. On June

28, 2021, the juvenile court issued a journal entry granting father’s motion for relief from

judgment. Id., ¶ 18. L.A. appealed the juvenile court’s ruling to this Court. Id., ¶ 19. On

March 24, 2022, we reversed and remanded the juvenile court’s decision finding:

[T]he trial court abused its discretion when it determined that Father

was entitled to relief from judgment without full consideration of the GTE

Automatic factors. As Father did not file an appellee’s brief, we accept the

Mother’s statement of the facts and issues as correct and reverse the

judgment because Mother’s brief reasonably appears to sustain such

action. App.R. 18(C).

***

The judgment of the Ashland County Court of Common Pleas,

Juvenile Division is reversed, and the matter remanded for further

proceedings consistent with this Opinion and law.

{¶6} J.N. v. L.A., 5th Dist. Ashland No. 21-COA-014, 2022-Ohio-974, ¶ 36, 37.

{¶7} Shortly following this Court’s decision, on April 26, 2022, L.A. filed a

parentage action in the 18th Judicial Circuit for Seminole County, Florida. Id., ¶ 26. The

Florida action is allegedly ongoing. Id., ¶ 28. Ashland County, Case No. 22-COA-032 4

{¶8} On July 19, 2022, Judge Vercillo issued a journal entry stating if either party

wanted a hearing under the GTE Automatic factors, the party should notify the juvenile

court within 30 days. Id., ¶ 22. On August 2, 2022, father requested a hearing. Id., ¶ 23.

On August 15, 2022, Judge Vercillo issued a notice of hearing. Id., ¶ 24. L.A. responded

to father’s request to a hearing on August 23, 2022. Id., ¶ 25.

{¶9} L.A. thereafter commenced this original action to prohibit the

reconsideration of father’s motion to vacate the dismissal of his original complaint for

parentage. In response to the writ, Judge Vercillo filed a Motion to Dismiss on November

8, 2022. L.A. filed a Memorandum in Opposition to Respondent’s Motion to Dismiss on

November 21, 2022. On November 30, 2022, Judge Vercillo filed a reply in support of his

motion. This matter is now ripe for review.

ANALYSIS

{¶10} In the present action, L.A. asks this Court to issue a writ of prohibition

preventing Judge Vercillo from exercising jurisdiction in J.N. v. L.A., Ashland Case No.

2020-4016 due to the pending parentage action in Florida.

Required elements for a writ of prohibition

{¶11} To be entitled to a writ of prohibition, L.A. must establish: (1) Respondent is

about to exercise judicial power, (2) the exercise of power is unauthorized by law, and (3)

denying the writ would result in injury for which no adequate remedy exists in the ordinary

course of law. (Citation omitted.) State ex rel. Duke Energy Ohio, Inc. v. Hamilton Cty.

Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d 299, ¶ 16. “If

a lower court patently and unambiguously lacks jurisdiction to proceed in a cause,

prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and Ashland County, Case No. 22-COA-032 5

to correct the results of prior jurisdictionally unauthorized actions.” Id. at ¶ 17, quoting

State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶

12, citing State ex rel. Dannaher v. Crawford, 78 Ohio St.3d 391, 393, 678 N.E.2d 549

(1997).

{¶12} “Where jurisdiction is patently and unambiguously lacking, [a relator] need

not establish the lack of an adequate remedy at law because the availability of alternate

remedies like appeal would be immaterial.” Id., quoting State ex rel. Sapp v. Franklin Cty.

Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 15, citing State

ex rel. Columbus S. Power Co. v. Fais, 117 Ohio St.3d 340, 2008-Ohio-849, 884 N.E.2d

1, ¶ 16.

Judge Vercillo is about to exercise judicial power.

{¶13} With regard to the required elements for a wit of prohibition to issue, there

is no dispute Judge Vercillo is about to exercise judicial power by reviewing J.N.’s motion

for relief from judgment on remand from this Court. This element required for the issuance

of a writ of prohibition is satisfied.

Judge Vercillo’s exercise of judicial power is authorized by law.

{¶14} Next, we must determine whether the juvenile court patently and

unambiguously lacks jurisdiction to proceed in reviewing J.N.’s motion for relief from

judgment. L.A. contends, “this Court reversed the Juvenile Court by explicitly delineated

all of the GTE Automatic factors and found for L.A.. * * * Thus, there is nothing for the

Juvenile Court to do, but to keep the case dismissed.” Complaint, ¶ 35. In support of this

conclusion, L.A. cites Stafford v. Hetman, 8th Dist. Cuyahoga No. 72825, 1998 WL

289383, *1 (Jun. 4, 1998), where the court of appeals explained the dismissal of an action Ashland County, Case No. 22-COA-032 6

without prejudice relieves the court of all jurisdiction over the matter and the action is

treated as though it was never commenced. Thus, L.A. concludes Judge Vercillo’s order

dismissing the case divested the juvenile court of jurisdiction to proceed. Id., ¶ 37.

{¶15} L.A. further maintains Judge Vercillo lacks jurisdiction under Ohio’s Uniform

Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). According to L.A., she and

the minor child have lived in Florida since December 2020, L.A. allegedly initiated a

parentage action in Florida and Florida is allegedly the “home state” of the child under the

UCCJEA. Id., ¶ 26, 39, 42.

{¶16} We disagree with L.A.’s arguments and conclude Judge Vercillo does not

patently and unambiguously lack jurisdiction to address J.N.’s motion for relief from

judgment. First, L.A.’s statement that there is nothing for the juvenile court to do following

our reversal except to keep the case dismissed ignores the fact that the case was

reversed and remanded “for further proceedings consistent with this Opinion and law.”

J.N. v. L.A., 2022-Ohio-974, at ¶ 38. L.A. disregards the “reversed and remanded”

mandate from this Court and instead claims this Court did the fact finding for Judge

Vercillo, concluded none of the GTE Automatic factors were met and therefore, it is

unreasonable for Judge Vercillo to hold a hearing on J.N.’s motion to vacate judgment.

(Relator’s Response to Motion to Dismiss, p. 5) L.A. is incorrect on this point. The Court

did not address the GTE Automatic factors on appeal, but instead remanded the case to

Judge Vercillo to do so.

{¶17} Case law is clear that “[w]hen a judgment is reversed and remanded for

further proceedings, the trial court may take up the matter at the point where the first error

was committed.” In re C.P., 187 Ohio App.3d 246, 2010-Ohio-346, 931 N.E.2d 1105, ¶19 Ashland County, Case No. 22-COA-032 7

(10th Dist.), citing In re G.N., 176 Ohio App.3d 236, 2008-Ohio-1796, 891 N.E.2d 816 ¶

11. “In other words, the action is reinstated in the trial court in precisely the same condition

it was in before the action that resulted in the appeal and reversal.” Id., citing In re Walker,

162 Ohio App.3d 303, 2005-Ohio-3773, 833 N.E.2d 362, ¶ 13 (11th Dist.), quoting

Armstrong v. Marathon Oil Co., 32 Ohio St.3d 397, 418, 513 N.E.2d 776 (1987).

{¶18} In this case, we reversed and remanded this matter to the juvenile court

because Judge Vercillo failed to consider all of the GTE Automatic factors when he

granted J.N.’s motion to vacate judgment. The effect of our remand was to place the

parties in the position of being back before the juvenile court without Judge Vercillo having

issued a ruling on J.N.’s motion to vacate judgment. This is the exact condition the case

was in before Judge Vercillo abused his discretion by failing to apply all of the GTE

Automatic factors prior to vacating his previous dismissal of the case.

{¶19} Further, L.A.’s argument that the juvenile court lacks jurisdiction to act under

the UCCJEA overlooks the fact that Judge Vercillo is not addressing the merits of the

previously dismissed parentage action on remand – he is only addressing J.N.’s motion

for relief from judgment. The issue of whether Judge Vercillo has jurisdiction to act under

the UCCJEA is not currently before the juvenile court. In fact, the parentage action,

concerns about the UCCJEA and whether Florida is the minor child’s “home state” only

become ripe for consideration if the juvenile court grants J.N.’s motion to vacate

judgment. It is only at that point that parentage actions would be pending in both Ohio

and Florida.

{¶20} For these reasons, we conclude Judge Vercillo does not patently and

unambiguously lack jurisdiction to address J.N.’s motion to vacate judgment. Ashland County, Case No. 22-COA-032 8

L.A. has an adequate remedy at law {¶21} Having determined Judge Vercillo does not patently and unambiguously

lack jurisdiction to reconsider father’s motion to vacate, it is unnecessary to analyze

whether L.A. has an adequate remedy at law.

{¶22} However, we note under L.A.’s Exhibit F (UCCJEA summary) attached to

the Original Action for Writ of Prohibition, this document specifically indicates:

Before hearing a custody proceeding, an Ohio court must determine

whether a child custody proceeding is pending in another state.

If another state, with similar jurisdiction as Ohio, has a pending child

custody proceeding, then the Ohio court shall:

▪ Stay its proceeding and communicate with the court of the other

state.

▪ If the courts do not determine that Ohio is a more appropriate

forum, then the Ohio proceeding shall be dismissed.

{¶23} Thus, even if Judge Vercillo grants J.N.’s motion to vacate judgment and

reinstates the parentage action, he will be required to determine whether the parentage

action remains pending in Florida. If so, Judge Vercillo will need to take the actions

outlined under the UCCJEA before proceeding with the reinstated parentage action. Ashland County, Case No. 22-COA-032 9

{¶24} Therefore, L.A. has an adequate remedy at law available to her if Judge

Vercillo proceeds with addressing J.N.’s motion to vacate judgment and subsequently

vacates the judgment.

{¶25} For the foregoing reasons, we grant Respondents’ Motion to Dismiss. The

Clerk of Courts is hereby directed to serve upon all parties not in default notice of this

judgment and its date of entry upon the journal. See Civ.R. 58(B).

{¶26} MOTION GRANTED.

{¶27} CAUSE DISMISSED.

{¶28} COSTS TO RELATOR.

{¶29} IT IS SO ORDERED.

By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur

HON. WILLIAM B. HOFFMAN

HON. JOHN W. WISE

HON. CRAIG R. BALDWIN