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

COURT OF APPEALS

ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX. REL., 

L.A.

JUDGES:

Hon. William B. Hoffman, P.J.

Hon. John W. Wise, J.

 Relator Hon. Craig R. Baldwin, J.

-vsCase No. 22-COA-032

THE HONORABLE JUDGE DAMIAN J.

VERCILLO and THE ASHLAND 

COUNTY JUVENILE & PROBATE 

COURT

 Respondents O P I N I O N

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 

1 We 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