Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS Robert M. Wolff Mark V. Webber
Littler Mendelson P.C.
ATTORNEYS FOR APPELLEE Michele L. Berry The Law Office of
Michele L. Berry Ruth Z. Brown Michael Kanovitz Loevy &
David Leneghan David M. Leneghan
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, J.
Defendant-appellant/cross-appellee, city of Cleveland
("the City"), appeals from the judgment of the
common pleas court granting summary judgment in favor of
plaintiff-appellee/cross-appellant, David Ayers
("Ayers"), on his claim for indemnification
pursuant to R.C. 2744.07(A)(2). The City raises the following
assignment of error for review:
1. The trial court erred as a matter of law when it granted
Plaintiffs motion for summary judgment and denied
Defendant's motion for summary judgment seeking dismissal
of Plaintiff s claim for indemnification under R.C.
2744.07(A)(2) which limits standing to assert such claims to
employees of political subdivisions. The court further erred
in failing to grant summary judgment to Defendant because the
underlying debts of the police officers to Plaintiff had been
extinguished and there was no debt for the City to indemnify.
In his cross-appeal, Ayers raises the following assignments
1. The trial court erroneously omitted the $390, 000 award of
attorney fees and costs in the underlying civil rights case.
2. Plaintiff is entitled to statutory interest on the Ayers
After careful review of the record and relevant case law, we
reverse the trial court's judgment granting summary
judgment in favor of Ayers and remand for proceedings
consistent with this opinion. We further find Ayers's
cross-appeal to be moot based on our resolution of the
Underlying Criminal Case
In December 2000, Ayers was convicted of aggravated murder,
aggravated burglary, and aggravated robbery. The convictions
stemmed from the murder and robbery of seventy-six year old
victim, Dorothy Brown. Ayers was sentenced to a term of 20 years
to life on the aggravated murder count, ten years on the
aggravated burglary count, and ten years on the aggravated
robbery count. Each term was ordered to be served
On September 12, 2002, this court affirmed Ayers's
convictions but reversed his sentence and remanded for
resentencing. State v. Ayers, 8th Dist. Cuyahoga No.
79134, 2002-Ohio-4773. On remand, Ayers was again sentenced
to life in prison. The Ohio Supreme Court denied leave to
appeal with one justice dissenting. State v. Ayers,
98 Ohio St.3d 1424, 2003-Ohio-259, 782 N.E.2d 78 (Pfeiffer,
In January 2004, Ayers filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. 2254 with the United States
District Court for the Northern District of Ohio, Eastern
Division. The petition raised the following grounds for
relief (1) the prosecutor willfully withheld exculpatory
evidence from the defense; (2) the prosecutor engaged in
misconduct by withholding incriminating evidence, making
improper remarks in his closing argument, and extracting a
jailhouse confession from Ayers on the eve of trial; (3)
Ayers's Sixth Amendment right to counsel was violated
when the jailhouse informant, acting as a state agent,
obtained the confession; and (4) the evidence was
insufficient to sustain the convictions. On September 27,
2007, the district court denied Ayers's petition.
Ayers v. Bradshaw, N.D.Ohio No. 1:04CV0133, 2007
U.S. Dist. LEXIS 71946 (Sept. 27, 2007).
On appeal, the United States Court of Appeals for the Sixth
Circuit reversed the decision of the district court and
remanded the case with instructions for the district court to
grant a conditional writ of habeas corpus, giving the state
of Ohio 180 days within which to provide Ayers a new trial
or, failing that, to release him. The Sixth Circuit stated,
in pertinent part:
Because the State "intentionally creat[ed] a situation
likely to induce [Ayers] to make incriminating statements
without the assistance of counsel, " * * * we hold that
Ayers's Sixth Amendment right to counsel was violated,
and that the Ohio Court of Appeals unreasonably ruled to the
Ayers v. Hudson, 623 F.3d 301 (6th Cir.2010).
Following the Sixth Circuit's judgment, the state chose
not to pursue a new trial against Ayers. Ayers was released
from prison on September 12, 2011.
Federal Court Complaint
On March 27, 2012, Ayers filed a complaint in the district
court, alleging federal and state law claims against
Detectives Michael Cipo ("Cipo"), Denise Kovach
("Kovach"), and the City (collectively "the
defendants"). On July 20, 2012, Ayers filed an amended
complaint, raising causes of action for violations of due
process, malicious prosecution, interference with the right
to counsel, failure to intervene, civil conspiracy,
intentional misrepresentation, intentional infliction of
emotional distress, negligent supervision, respondeat
superior, and indemnification under R.C. 2744.07(A)(2). The
complaint alleged that Cipo and Kovach violated Ayers's
Sixth Amendment right to counsel by using jail informant
Donald Hutchinson to unlawfully interrogate Ayers. In
addition, Ayers alleged that Cipo and Kovach fabricated
evidence and perjured themselves in an effort to convict
The defendants moved to dismiss, or in the alternative, for
summary judgment. On February 25, 2013, the district court
granted summary judgment in favor of the City, dismissing all
claims raised against the City. With respect to Ayers's
cause of action for indemnification against the City, the
district court found that the claim was premature, stating:
The duty to indemnify accrues upon issuance of a judgment
against the employee for compensatory damages caused by an
act or omission in connection with a governmental function.
Should the political subdivision fail to uphold its duty, the
statute outlines a mechanism for Ohio courts to consider the
employee's claims and to "order the political
subdivision to defend the employee in the action."
Therefore, the indemnification claim does not survive.
Ayers, N.D.Ohio No. 1:12-CV-753, 2013 U.S. Dist.
LEXIS 25992, * 52 (Feb. 25, 2013).
In March 2013, the matter proceeded to a jury trial against
Cipo and Kovach on Ayers's remaining claims for violation
of due process, malicious prosecution (both federal and
state), interference with the right to counsel, conspiracy,
and intentional infliction of emotional distress. At the
conclusion of trial, a jury returned a verdict in favor of
Ayers, and the trial court entered judgment against the
detectives in the amount of $13, 210, 000. On May 9, 2013,
the judgment was enlarged to include an additional $390, 000
in costs and attorneys fees.
After the civil judgment was entered against Cipo and Kovach,
the City's Chief Assistant Director of Law, Joseph Scott
("defendant Scott"), on behalf of the detectives,
offered to assign to Ayers any indemnification claims that
the detectives might have had against the City in exchange
for an agreement by Ayers to forebear collection efforts
against them personally. See City's exhibit No.
1, First Set of Admissions, No. 5. In a letter dated March
27, 2013, Ayers, through counsel, rejected the offer. Ayers
subsequently rejected a similar offer to assign the
detectives' indemnification rights in May 2013.
Ayers Attempts to Reinstate his Indemnification Claim in the
Following the entry of judgment against the detectives, the
City did not indemnify Cipo or Kovach pursuant to R.C.
2744.07(A)(2). In addition, neither Cipo or Kovach sought to
enforce their right to indemnification under the statute, or
filed a grievance against the City pursuant to the procedure
set forth in the parties' Collective Bargaining Agreement
("CBA"). See Article XXII of the CBA, pp.
41-44. Instead, the City entered into an agreement with
bankruptcy counsel, David M. Leneghan ("defendant
Leneghan"), on April 24, 2013, "to assist [Cipo and
Kovach] with personal, individual bankruptcy
proceedings" in an effort to secure the discharge of
Cipo passed away on July 9, 2013. On July 29, 2013, Leneghan
filed a petition for Chapter 7 bankruptcy on Kovach's
behalf. The petition listed Ayers as a creditor and the $13,
210, 000 judgment as a debt. In the course of discovery in
this matter, Leneghan admitted "that at some point
between March 8, 2013 and July 29, 2013, Joseph Scott
communicated to [him] that language in the [CBA] limited
Cleveland's obligation to indemnify Kovach for the Ayers
Judgment to $1 million." Ayers exhibit No. 33,
Leneghan's Response to Plaintiffs Request for Admissions,
No. 9. On November 12, 2013, the bankruptcy court discharged
Kovach's personal liability for the $13, 210, 000
Following the bankruptcy proceedings, Ayers filed a motion
with the district court to reinstate his state law
indemnification claim against the City. On May 6, 2014, the
district court granted Ayers's motion to reinstate the
claim. However, on July 11, 2014, the district court vacated
its May 6, 2014 order and dismissed Ayers's state law
indemnification claim for lack of subject matter
jurisdiction. In its opinion, the court declined to exercise
supplemental jurisdiction, stating:
Plaintiff Ayers's indemnification claim is a state law
claim. It does not arise out of any federal statutes and it
does not relate to the violation of any federal rights.
Further, the parties to this case are not diverse. Thus, the
district court does not have original jurisdiction over this
After considering these factors, the Court declines to
exercise supplemental jurisdiction. The state courts are best
suited to decide whether a plaintiff rather than an employee
can bring a direct action for indemnification under claim
Ohio Revised Code § 2744.07(A) and whether the City of
Cleveland's collective bargaining agreement's $1
million cap on indemnification is compatible with Ohio law.
Ayers v. Cleveland, N.D.Ohio No. 1:12-CV-753, 2014
U.S. Dist. LEXIS 94472, * 3-4 (July 11, 2014).
On November 5, 2014, Ayers moved the bankruptcy court to
reopen Kovach's bankruptcy proceeding "for the
limited purpose of clarifying the applicability of the
discharge injunction in connection with the pursuit of
indemnification proceeds against [the City]." The motion
was granted on December 10, 2014. On February 19, 2015, the
bankruptcy court issued an order, stating, in relevant part:
IT IS HEREBY ORDERED, that it will not be a violation of the
discharge injunction if David Ayers pursues a state court
action against the Debtor's name only and only against
the amount of indemnification, if any, which may be available
against Debtor's former employer, the City of Cleveland.
The permanent injunction is hereby modified for cause as set
Ayers's Indemnification Claim Against the City in the
Common Pleas Court
On June 8, 2015, Ayers filed the present action against the
City and defendants Scott and Leneghan in the court of common
pleas. The complaint asserted various causes of action
against the City, including claims for statutory
indemnification pursuant to R.C. 2744.07(A)(2), tortious
interference, breach of contract, aiding and abetting, abuse
of process, unjust enrichment, specific performance, and
civil conspiracy. The complaint further alleged causes of
action against defendants Scott and Leneghan for tortious
interference, aiding and abetting, abuse of process, and
On November 5, 2015, the trial court granted defendant
Leneghan's motion to dismiss the abuse of process claims
levied against him, but denied his request to dismiss the
remaining claims of tortious interference, conspiracy, and
aiding and abetting.
Following discovery, the parties agreed to address the
threshold question of whether Ayers is entitled to seek
indemnification from the City pursuant to R.C. 2744.07(A)(2).
On August 9, 2016, Ayers filed a motion for partial summary
judgment on the limited issue of whether R.C. 2744.07(A)(2)
affords Ayers relief. On the same day, the City and defendant
Scott filed a joint motion for partial summary judgment,
arguing that Ayers lacked standing to bring an
indemnification claim against the City under R.C.
On October 12, 2016, the trial court granted Ayers's
motion for partial summary judgment on the issue of
indemnification and denied the City and defendant Scott's
motion for summary judgment. The court determined that
"the right to indemnification attached upon the final
judgment in the federal case and Ayers has the right to
proceed directly against [the City] to recover the
judgment." Accordingly, the trial court entered judgment
against the City in the amount of $13, 210, 000 on the
statutory indemnification claim and dismissed all other
claims levied against the City and defendants as moot.
The City now appeals from the trial court's judgment
granting summary judgment in favor of Ayers. In addition,
Ayers cross-appeals the trial court's failure to include
an award of attorney fees, costs, and statutory interest in
its October 12, 2016 judgment.
Law and Analysis
In its sole assignment of error, the City argues the trial
court erred by granting summary judgment in favor of Ayers on
his statutory indemnification claim under R.C. 2744.07(A)(2).
We review the grant of summary judgment de novo using the
standard set forth in Civ.R. 56. Argabrite v. Neer,
Slip Opinion No. 2016-Ohio-8374, ¶ 14. Summary judgment
is appropriate only when " no genuine issue of
material fact remains to be litigated,  the moving party
is entitled to judgment as a matter of law, and,  viewing
the evidence most strongly in favor of ...