State ex rel. Mcie v. Vercillo , 2019 Ohio 2145 ( 2019 )

[Cite as State ex rel. Mcie v. Vercillo, 2019-Ohio-2145.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX. REL., : JUDGES:
SONJA MCIE, : Hon. Patricia A. Delaney, P.J.
: Hon. Craig R. Baldwin, J.
Relator : Hon. Earle E. Wise, Jr., J.
:
-vs- :
: Case No. 19-COA-005
HONORABLE DAMIAN VERCILLO, :
JUDGE :
:
and :
:
ASHLAND COUNTY COURT OF :
COMMON PLEAS :
:
Respondents : OPINION
CHARACTER OF PROCEEDING: Writ of Prohibition
JUDGMENT: Denied
DATE OF JUDGMENT: May 30, 2019
APPEARANCES:
For Relator For Respondent
SONJA MCIE, PRO SE No Appearance
138 Chateau Circle
Orrville, OH 44667
Ashland County, Case No. 19-COA-005 2
Wise, Earle, J.
{¶ 1} Relator Sonja Mcie filed a Petition for Writ of Mandamus on February
19, 2019 wherein she requested a writ of mandamus issue requiring Respondent to
appoint counsel for her. On February 25, 2019, Relator filed an “Amended Petition for
Writ of Procedendo” requesting Respondent be prohibited from proceeding until Relator’s
appeal is resolved.
{¶ 2} The Ohio Supreme Court has stated that “it is elementary law that
when a party substitutes an amended petition for an earlier one, this constitutes an
abandonment of the earlier pleading and a reliance upon the amended one. The earlier
pleading becomes functus officio.” (Emphasis deleted.) State ex rel. Talaba v. Moreland,
132 Ohio St. 71, 75, 5 N.E.2d 159 (1936). We therefore will only address the cause of
action listed in the Amended Petition for Writ of Prohibition.
{¶ 3} Relator, Sonja Mcie, has filed a Complaint for Writ of Prohibition
requesting a writ issue prohibiting the Ashland County Juvenile Court from holding a
hearing on a motion to terminate her visitation with her children. For the reasons that
follow, a writ of prohibition will not issue.
{¶ 4} “For a writ of prohibition to issue, [a petitioner] must prove that [the
respondent] has exercised or is about to exercise judicial power without authority to do
so and that the state lacks an adequate remedy in the ordinary course of law. State ex
rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13.”
State ex rel. O'Malley v. Russo, 2019-Ohio-1698.
{¶ 5} Relator filed a motion for appointment of counsel requesting the trial
court appoint counsel to represent her on the motion to terminate visitation. The trial
Ashland County, Case No. 19-COA-005 3
court denied the request for appointed counsel. Relator filed an appeal to this Court from
the denial of the request for appointed counsel. At the time of the filing of the appeal, a
hearing was scheduled on the motion to terminate visitation. She also filed the instant
petition in this Court as well as a motion to cancel the hearing with the trial court. The
trial court granted the motion to cancel the hearing.
{¶ 6} Relator does not suggest in her petition that Respondents lack all
authority to hear the underlying case. Rather, she argues Respondents lack jurisdiction
to hear the motion to terminate visitation while an appeal is pending in this Court.
{¶ 7} Because the trial court cancelled the hearing, Relator cannot
establish Respondents are exercising or about to exercise unauthorized judicial power.
Relator has already obtained the relief she seeks on the petition. The instant petition
became moot when the trial court issued the order granting the motion to cancel the
hearing below. For these reasons, the request for writ of prohibition is denied.
By Wise, Earle, J.
Delaney, P.J. and
Baldwin, J. concur.
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