Friday First District Roundup 6-12-20

Each Friday, we highlight decisions of the First District Court of Appeals in the past week. For question about these cases, contact Vanessa Seeger.

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In re: D.M., L.W., and L.M.
Case #C200043

Quote from Judge Zayas' Opinion:

Appellant F.W. (“Mother”), appeals from the judgment of the Hamilton County Juvenile Court that terminated her parental rights to her three minor children, D.M., L.W., and L.M., and placed the children in the permanent custody of the Hamilton County Department of Job and Family Services (“HCJFS”). We reverse the juvenile court’s judgment and remand the cause for further proceedings.

This case is about the custody of three young children born to two young parents. D.M was born on August 4, 2014, L.W. was born on July 5, 2015, and L.M. born June 2, 2016. Mother was 15 when she had her first child, and the children’s father, D.M., (“Father”) was 16.

On September 10, 2015, HCJFS filed a complaint and motion for an interim order of custody for L.W. and D.M., claiming that the parents were not able to adequately provide care or protect the health and well-being of the children. In support, the agency alleged that L.W., who was born premature at 26 weeks, tested positive for marijuana at birth, and that while Mother was in the hospital with L.W., she was unable to account for the whereabouts of her older child, D.M., except to state that he was staying with an uncle. L.W. remained in the NICU at Cincinnati Children’s Hospital at the time of the agency’s filing. The motion was amended to include Mother, as Mother was also a minor

Abdallah Al-Zubi, D.D.S., One Stop Dental and Denture, Inc. v. Cosmetic Implant Dental Center of Cincinnati, Inc., Jack A. Hahn
Case #C190406

Quote from Judge Mock's Opinion:

Plaintiffs-appellants Abdallah Al-Zubi, D.D.S., Mai Azzam, D.D.S., and One Stop Dental and Denture, Inc., (collectively, “One Stop”) appeal the trial court’s judgment denying their motion to enforce the settlement agreement entered into with defendants-appellees Cosmetic and Dental Implant Center of Cincinnati, Inc., and Jack A. Hahn, D.D.S., (collectively, “Dr. Hahn”). For the following reasons, we affirm.

In February 2012, One Stop purchased Dr. Hahn’s dental practice for approximately $600,000. The Asset Purchase Agreement (“the APA”) recognized that Dr. Hahn had received payments from dental patients for services that had not yet been performed. Accordingly, the APA required Dr. Hahn to turn over those prepaid fees to One Stop on the date One Stop took possession of the practice.

State of Ohio v. Curtis Hill
Case #C190337

Quote from Per Curiam Opinion:

Defendant-appellant Curtis Hill appeals the Hamilton County Common Pleas Court’s judgment dismissing his Crim.R. 32.1 motion to withdraw his guilty pleas. We affirm the court’s judgment.

Hill was convicted in 2002 upon guilty pleas to aggravated robbery and two counts of kidnapping, along with accompanying firearm specifications. The trial court sentenced him to prison terms totaling 31 years and included in the judgment of conviction notice that, “[a]s part of the sentence in this case, the defendant is subject to the post release control supervisions of R.C. 2967.28.”

In the direct appeal, we rejected Hill’s challenges to his sentences and to the voluntary nature of his guilty pleas, concluding that, “[i]n accepting Hill’s pleas, the trial court complied with the requirements of Crim.R. 11(C),” and that “Hill entered his pleas knowingly and voluntarily.” State v. Hill, 1st Dist. Hamilton No. C020137, 2002-Ohio-7079, ¶ 1 and 2. For those reasons, we affirmed the trial court’s findings of guilt. But we remanded for resentencing on the firearm specifications. On remand, Hill was resentenced to prison terms totaling 28 years. He took no direct appeal from that judgment.

State of Ohio v. Edward Smith
Case #C190289

Quote from Judgment Entry:

Defendant-appellant Edward Smith advances two assignments of error on appeal, both challenging the Hamilton County Common Pleas Court’s judgment denying his motion to vacate his conviction and sentence. In 1998, following Mr. Smith’s conviction for murder and an accompanying firearm specification, this court reversed the trial court’s judgment and remanded for a new trial. See State v. Smith, 130 Ohio App.3d 360, 720 N.E.2d 149 (1st Dist.1998). On remand, the jury once again found Mr. Smith guilty of murder and an accompanying firearm specification, and he received a 15- year-to-life sentence on the murder charge and a three-year sentence on the specification. Mr. Smith subsequently appealed his conviction, which this court in turn affirmed. See State v. Smith, 1st Dist. Hamilton No. C-990689, 2000 WL 1643583, *1 (Nov. 3, 2000). In the interim since his conviction, Mr. Smith filed numerous postconviction petitions, his most recent motion, filed in February 2019, titled “Vacate Void Judgment/Sentence.” The trial court recast this motion as a postconviction petition, ultimately denying it, as well as other pending postconviction petitions the court had before it.

Lakeview Loan Servicing, LLC v. Tyahnna Austin
Case #C190284

Quote from Judgment Entry:

In 2012, defendant-appellant Tyahnna Austin bought a home with money she borrowed from American Financial Resources. That loan was executed through a promissory note and was secured by the property through a mortgage deed. That mortgage was assigned to plaintiff-appellee Lakeview Loan Servicing, LLC, (“Lakeview”). After Austin defaulted on her payments of the mortgage, Lakeview filed a foreclosure action. The trial court granted Lakeview’s motion for summary judgment and granted the foreclosure. Austin appealed that decision in the instant appeal. The case then proceeded to a sheriff’s sale. Austin filed an “objection to sale,” because “the * * * case is currently being heard in the Common Pleas Appellate Division Hamilton County Clerk Of Courts Case Number C1900284.” But Austin did not file a motion to stay the proceedings pending the appeal nor did she post an appeal bond. The trial court overruled her objection after a hearing. Austin made no further attempts to stay the proceedings in either the trial court or this court. The property was sold at auction, the proceeds of the sale were ordered disbursed by the trial court, and the home is now owned by a third party.

The William Powell Company v. OneBeacon Insurance Company, Federal Insurance Company
Case #C190212

Quote from Judge Zayas' Opinion:

This is another appeal in a years-long insurance-coverage dispute involving asbestos-related liabilities. The insured, plaintiff-appellant/cross-appellee The William Powell Company (“Powell”), appeals the portions of the trial court’s judgment favorable to the insurers, defendant-appellee/cross-appellant OneBeacon Insurance Company (“OneBeacon”) and defendant-intervenor-appellee Federal Insurance Company (“Federal”).

The threshold issue before us is whether excess-liability insurance policies (hereinafter, “excess policies”) issued by OneBeacon and Federal to cover periods between 1969 and 1977 support a vertical-exhaustion or a horizontalexhaustion method of insurance coverage. “Horizontal exhaustion reflects the idea that all triggered primary policies must be exhausted before any excess policy will be triggered. Vertical exhaustion, on the other hand, means that, based on the policy language, an excess policy is considered excess only to the primary policy directly below it.” Viking Pump, Inc. v. Century Indemn. Co., Del.Super. No. 10C-06-141 FSS CCLD, 2014 WL 1305003, *6 (Feb. 28, 2014). Following a three-week bench trial, the trial court concluded that horizontal exhaustion applies and ruled against Powell. We disagree and reverse the trial court’s judgment.

HSBC Bank USA, N.A., As Trustee, in Trust for the Registered Holders of Ace Securities Corp. Home Equity Loan Trust, Series 2006-FM2, Asset Backed Pass-Through Certificates v. Carleen Dates
Case #C190187

Quote from Judgment Entry:

Plaintiff-appellee HSBC Bank USA, N.A., as Trustee, in trust for the registered holders of ACE Securities Corp. Home Equity Loan Trust, Series 2006-FM2, Asset Backed Pass-Through Certificates (“HSBC Bank”) filed a foreclosure action against defendant-appellant Carleen Dates. Dates had purchased the house in 2006, executing a note in favor of Fremont Investment & Loan. The note was endorsed in blank by Fremont and later assigned to HSBC Bank in 2011. After the foreclosure action was filed, HSBC Bank filed a motion for summary judgment, which the trial court granted in 2014. The property was sold in December of 2018, and the sale was confirmed by the trial court on February 8, 2019, with an amended entry filed on March 7, 2019.

Dates appeals, raising four assignments of error. She first claims that the trial court abused its discretion when it confirmed the sale of the property. “[W]hen foreclosure proceedings have reached the confirmation stage, ‘the rights and responsibilities of the parties can no longer be challenged’ and ‘a party is limited to challenging whether the sale proceedings conformed to law.’ ” (Citation omitted.) ¶ 7. As the Ohio Supreme Court explained, “[b]ecause of this limited nature of the confirmation proceedings, the parties have a limited right to appeal the confirmation.” CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio1984, 11 N.E.3d 1140, ¶ 40. Nothing in Dates’s argument in this assignment of error actually addressed the limited issue of the confirmation proceedings, but rather attacks the underlying foreclosure decision. Because Dates failed to present an argument supporting a finding that the trial court abused its discretion when it confirmed the sale of the property, we overrule Dates’s first assignment of error.