[Cite as Ayers v. Cleveland , 2017-Ohio-8571.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105074

DAVID AYERS

PLAINTIFF-APPELLEE/ CROSS-APPELLANT

vs. CITY OF CLEVELAND, ET AL.

DEFENDANTS-APPELLANTS/ CROSS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-846683

BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: November 16, 2017ATTORNEYS FOR APPELLANTS

Robert M. Wolff Mark V. Webber Littler Mendelson P.C. 1100 Superior Avenue, 20th Floor Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE Michele L. Berry The Law Office of Michele L. Berry 114 East 8th Street Cincinnati, Ohio 45202

Russell Ainsworth Ruth Z. Brown Michael Kanovitz Loevy & Loevy 311 North Aberdeen Street, 3rd Floor Chicago, Illinois 60607 For David Leneghan David M. Leneghan 200 Treeworth Blvd., Suite 200 Broadview Heights, Ohio 44147EILEEN T. GALLAGHER, J.: {¶1} Defendant-appellant/cro ss-appellee, city of Cleveland (“the City”), appeals from the judgment of the common pleas court gr anting 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 Plaintiff’s motion for summary judgment and deni ed Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s claim for i ndemnification 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 su mmary 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. {¶2} In his cross-appeal, Ayers raises th e following assignments of error:

1. The trial court errone ously 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 judgment. {¶3} 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-a ppeal to be moot based on our resolution of the City’s appeal. I. Procedural History A. Underlying Criminal Case {¶4} In December 2000, Ayers was convicted of a ggravated murder, aggravated burglary, and aggravated robbery. The c onvictions stemmed from the murder and robbery of seventy-six year old victim, Dorothy Brown. 1 Ayers was sentenced to a term of 20 years to life on the

1 For underlying facts, see Ayers v. Cleveland , N.D.Ohio No. 1:12-CV-753, 2013 U.S. Dist.aggravated murder count, ten years on the a ggravated burglary count, and ten years on the aggravated robbery count. Each term wa s ordered to be served consecutively. {¶5} 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 senten ced 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, J., dissenting). {¶6} 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 Cour t for the Northern Dist rict of Ohio, Eastern Division. The petition raised the following grounds fo r relief (1) the prosecutor willfully withheld exculpatory evidence from the defe nse; (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 th e eve of trial; (3) Ayers’s Sixth Amendment right to counsel was violated when the jailhouse in formant, acting as a state agen t, 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). {¶7} 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 st ate 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:

LEXIS 25992, * 3-12 (Feb. 25, 2013).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 c ounsel was violated, and that the Ohio Court of Appeals unreasonabl y ruled to the contrary. Ayers v. Hudson , 623 F.3d 301 (6th Cir.2010). {¶8} Following the Sixth Circuit’s judgment, th e state chose not to pursue a new trial against Ayers. Ayers was released from prison on September 12, 2011. B. Federal Court Complaint {¶9} On March 27, 2012, Ayers filed a complaint in th e district court, a lleging federal and state law claims against Detectives Michael Cipo (“Cipo”), Denise Kovach (“Kovach”), and the City (collectively “the defenda nts”). On July 20, 2012, Ayers filed an amended complaint, raising causes of action for viola tions of due process, malicious prosecution, interference with the right to counsel, failure to intervene, civil c onspiracy, intentional misre presentation, intentional infliction of emotional distress, negligent supervision, respondeat superior, and indemnification under R.C. 2744.07(A)(2). The complaint alleged th at Cipo and Kovach violated Ayers’s Sixth Amendment right to counsel by using jail inform ant Donald Hutchinson to unlawfully interrogate Ayers. In addition, Ayers alleged that Cipo and Kovach fabricated evidence and perjured themselves in an effort to convict Ayers. {¶10} The defendants moved to dismiss, or in th e 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 politi cal subdivision fail to uphold its duty, the statute outlines a mechanism for Ohio courts to consider the employee’s claimsand to “order the political subdivision to defend the employee in the action.” Therefore, the indemnifica tion claim does not survive. Ayers , N.D.Ohio No. 1:12-CV-753, 2013 U.S. Dist. LEXIS 25992, * 52 (Feb. 25, 2013). {¶11} In March 2013, the matter proceeded to a jury trial against Cipo and Kovach on Ayers’s remaining claims for vi olation of due proce ss, malicious prosecuti on (both federal and state), interference with the right to counsel, c onspiracy, 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 a dditional $390,000 in costs and attorneys fees. 2 {¶12} After the civil judgment was entered ag ainst Cipo and Kovach, the City’s Chief Assistant Director of Law, Joseph Scott (“defendant Scott”), on behalf of the det ectives, 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 fore bear collection efforts against them personally . See City’s exhibit No. 1, First Set of Admissions, No. 5. In a letter da ted March 27, 2013, Ayers, through counsel, rejected the offer. Ayers subs equently rejected a similar offer to assign the

detectives’ indemnifica tion rights in May 2013. C. Ayers Attempts to Reinstate his Indemnification Claim in the District Court {¶13} 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 st atute, or filed a grievance against the City pursuant to the procedure set forth in the parties’ Collective Bargaining Agreement (“CBA”).

2 The judgment against the detectives was a ffirmed by the Sixth Circuit on December 2, 2014. Ayers v. Cleveland , 773 F.3d 161 (6th Cir.2014).See Article XXII of the CBA, pp. 41-44. Instead, th e City entered into an agreement with bankruptcy counsel, David M. Leneghan (“defe ndant Leneghan”), on April 24, 2013, “to assist [Cipo and Kovach] with personal, individual bankruptcy proceedings” in an effort to secure the discharge of their debt. {¶14} Cipo passed away on July 9, 2013. 3 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 ma tter, Leneghan admitted “that at some point between March 8, 2013 a nd 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 Plaintiff’s Request for Admissions, No. 9. On Novemb er 12, 2013, the bankruptcy court discharged Kovach’s personal liability for the $13,210,000 judgment debt. {¶15} Following the bankruptcy proceedings, Ayers filed a motion with the district court

to reinstate his state law indemn ification 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 indemnificati on claim for lack of subject matter jurisdiction. In its opinion, th e 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 doe s not relate to the violati on of any federal rights. Further, the parties to this case are not di verse. Thus, the district court does not have original jurisdiction over this claim.

3 It is unclear from this record if Ayers, as a creditor, presented a claim in the probate court against Cipo’s estate following his death.* * * After considering these factors, the C ourt declines to exercise supplemental jurisdiction. The state courts are best su ited to decide whethe r a plaintiff rather than an employee can bring a direct action for indemn ification under claim Ohio Revised Code § 2744.07(A) a nd 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). {¶16} On November 5, 2014, Ayers moved the ba nkruptcy court to reopen Kovach’s bankruptcy proceeding “for the limited purpose of cl arifying 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 Fe bruary 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 inde mnification, if any, which may be available against Debtor’s former employer, the C ity of Cleveland. The permanent injunction is hereby modifi ed for cause as set forth herein. D. Ayers’s Indemnification Claim Against the City in the Common Pleas Court {¶17} 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 cont ract, aiding and abetting, abuse of process, unjust enrichment, specific performance, and civ il conspiracy. The complaint further alleged causes of action against defendant s Scott and Leneghan for torti ous interference, aiding and abetting, abuse of process, and civil conspiracy.{¶18} On November 5, 2015, the trial court gran ted defendant Leneghan’s motion to dismiss the abuse of process claims levied agai nst him, but denied his request to dismiss the remaining claims of tortious interference, conspiracy, and aiding and abetting. {¶19} 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 partia l summary judgment on the limited issue of whether R.C. 2744.07(A)(2) affords Ayers relief. On the same day, the C ity and defendant Scott filed a joint motion for partial summary judgment, arguing that Ayers lacked standing to bring an indemnification claim against th e City under R.C. 2744.07(A)(2). {¶20} On October 12, 2016, the trial court grante d Ayers’s motion for partial summary judgment on the issue of indemnification and de nied the City and defe ndant Scott’s motion for summary judgment. The court de termined 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 indemnificati on claim and dismisse d all other claims levied against the City and defendants as moot. {¶21} The City now appeals from the trial court’s judgment granting summary judgment in favor of Ayers. In addition, Ayers cross-appeal s the trial court’s failure to include an award of attorney fees, costs, and statutory in terest in its October 12, 2016 judgment. II. Law and Analysis {¶22} In its sole assignment of error, the City argues the trial court erred by granting summary judgment in favor of Ayers on his statutory indemnifica tion claim under R.C. 2744.07(A)(2).{¶23} We review the grant of summary judgmentde 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 “[1] no genuine issue of material fact remains to be litigated, [2] the moving party is entitled to judgment as a matte r of law, and, [3] viewing the evidence most strongly in favor of the nonmoving party, reas onable minds can reach a conclusion only in favor of the moving party.” Id

. {¶24} R.C. Chapter 2744 governs political subdivision tort liability. In this case, Ayers sought summary judgment under R.C. 2744.07(A)(2) to compel the City to indemnify Kovach for

the full amount of the federal cour t judgment rendered against Kovac h, plus interest. On appeal, the parties dispute whether R.C. 2744.07(A)(2) provi des creditors with standing to enforce the statute, as the trial court f ound, or whether R.C. 2744.07(A)(2) “onl y creates a cause of action for employees of political subdivisi ons,” as the City contends. {¶25} R.C. 2744.07(A)(2) provides: Except as otherwise provided in this division, a political subdivision shall indemnify and hold harmless an employee in the amount of any judgment, other than a judgment for punitive or exemplary damages, that is obtained against the employee in a state or federal court or as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to persons or property caused by an act or omission in connection with a g overnmental or proprie tary function, if at the time of the act or omission the empl oyee was acting in good faith and within the scope of his employment or official responsibilities. The parties’ CBA contains a similar provision at Article XXV III, ¶ 62. {¶26} On its face, we agree with the trial court that “the plain reading of [R.C. 2744.07(A)(2)] is to indemnify an employee of a po litical subdivision against whom a judgment is rendered arising from an act or failure to act in the course of employme nt while acting in good faith.” The statute does not provi de a procedure for obtaining i ndemnification and suggests thatthe political subdivision’s duty to indemnify and hold harmless attaches immediately upon the issuance of the judgment against the employee. See Paolisso v. Edison Local Bd. of Edn ., 7th Dist. Jefferson No. 90-J-36, 1992 Ohio App. LEXI S 490, * 10 (Feb. 5, 1992) (“In accordance with the plain meaning of the statute, it logically follows that the duty to indemnify and hold harmless arises at the time judgment is entered.”). {¶27} In this case, the City did not indemnify Kovach or Cipo. Moreover, the City has provided no evidence to suggest the detectives were not entitled to indemnification pursuant to the conditions set forth in the statute. As stated by the trial court, the C ity, throughout the federal proceeding, “took the position that [the detectiv es’] alleged acts were done in good faith and within the scope of the detectives’ employment and official duties.” Thus, it appears that the City did, in fact, fail to satisfy its statutory obligation to hold its employees harmless under R.C. 2744.07(A)(2). To be clear, however, the City’s obligations under R.C. 2744.07(A)(2) are owed to Cipo and Kovach. As such, it is their rights , as City employees, that were infringed upon by the City’s failure to comply with the statute. However, Cipo and Kovach are not parties to this case and this court has no authority to remedy the shortfalls of the City’s dealings with its employees. {¶28} Here, the limited question before this court is whether Ayers, as a judgment creditor, has standing to bring a private cause of action against the City to enforce the City’s obligations to Kovach and Cipo under R.C. 2744.07(A)(2). We find he does not. {¶29} The doctrine of standing requires a litigant to be in the proper position to assert a claim, and the party’s inquiry must be within th e zone of interest inte nded to be protected or regulated by the statute. Taylor v. Academy Iron & Metal Co. , 36 Ohio St.3d 149, 152, 522 N.E.2d 464 (1988). In establishing the state’s en tire administrative and re gulatory scheme, thelegislature expressly authorizes and designates th e authority to enforce particular regulations and statutes to certain persons and agencies. New Boston Coke Corp. v. Tyler , 32 Ohio St.3d 216, 218, 513 N.E.2d 302 (1987). It is a basic doctrine of statutory construction that when the legislature has authorized an action to be instituted by a particular person or office, the suit may not be instituted by another. Crull v. Maple Park Body Shop , 36 Ohio App.3d 153, 521 N.E.2d 1099 (12th Dist.1987). {¶30} In determining whether statutes may create a private cause of action for enforcement, the Ohio Supreme Court has held that a “statutory policy” may not be implemented by the Ohio courts in a private civil action absent a clear implication that such a remedy was intended by the Ohio Legislature. Fawcett v. G. C. Murphy & Co. , 46 Ohio St.2d 245, 249, 348 N.E.2d 144 (1976). Ohio courts appl y a three-part test adopted from Cort v. Ash , 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for determining wh en a private cause of action arises by implication under a particular statute. The three prongs of the test ask (1) are the plaintiffs in a class for whose special benefit the statute was enacted; (2) is there any indication of legislative intent, explicit or implicit, either to create or deny a private cause of action; and (3) is it consistent with the underlying purposes of the legislative sche me to imply such a remedy for the plaintiffs? Strack v. Westfield Cos. , 33 Ohio App.3d 336, 337, 515 N.E.2d 1005 (9th Dist.1986); Elwert v. Pilot Life Ins. Co. , 77 Ohio App.3d 529, 602 N.E.2d 1219 (1st Dist.1991). {¶31} After careful review, we find Ayers cannot sa tisfy the foregoing criteria, because (1)

his asserted claims are not within the zone of interest intended to be protected or regulated by R.C. 2744.07(A)(2), and (2) a private cause of action by a judgment creditor does not arise by implication under R.C. 2744.07(A)(2). In our view , the purpose of R.C. 2744.07(A)(2) is not to benefit third parties who have been injured by the acts of a st ate employee, but rather, to shield theemployee from financial ruin resulting from an act committed in good faith and within the scope of employment. As referenced by Ayers in his a ppellate brief, the drafters’ intent in constructing R.C. 2744.07(A)(2) was to “insulat e Teflon-coated employees from liability.” Thus, the explicit purpose of the statute is to protect municipal employees; not to provi de an avenue for creditors to collect a monetary judgment from a political subdivision. {¶32} In addition, we decline to adopt Ayer s’s position that R.C. 2744.07(A)(2) has a “secondary purpose of ensuring that members of the public harmed by public employees’ tortious

conduct will be made whole.” Wh ile making a plaintiff-creditor “whole” may be incidental to the protections afforded to employees under R.C. 2744.07(A)(2), the language of the statute in no way suggests that it was enacted to protect the interests of judgment creditors . See Click v. Springfield , 2d Dist. Clark No. CA 2342, 1988 Ohio App. LEXIS 742 (Mar. 4, 1988) (stating that the sole legislative intent of R.C. 2744.07 is to hold employees harmless from any potential liability). If, for example, R.C. 2744.07(A)(2) was created to benefit thir d parties, the statute would extend its protections to all acts committed by employees of the political subdivision in the course of their employment, and not just those committed in good faith. {¶33} Accordingly, we find R.C. 2744.07(A)(2) does not provide Ayers with a private cause of action against the City to enforce its statutory obligation to indemnify its employees. Regardless of this court’ s disfavor with the City’s conduct in this matter, Ayers lacked legal standing to pursue a claim for indemnificati on under R.C. 2744.07(A)(2) and providing him with a remedy under the statute would be inc onsistent with its underlying purpose. {¶34} The dissent suggests that our holding cr eates an “unrecognized and unintended exception to the law” by finding “that political subdivisions will not be obligated to indemnify judgments against its employee pursuant to R.C. 2744.07.” To be clear, that is not the holding ofthis court. In fact, it is the exact opposite. As stated, the clear language of the statute obligates the political subdivision to indemnify an employ ee in the amount of any judgment “immediately upon the issuance of the judgment against the employee” if the conditions of R.C. 2744.07(A)(2)

are met. See ¶ 26, supra . However, when the political subdivi sion fails or declines to comply with that obligation, only the employee has st anding to enforce its rights under R.C. 2744.07(A)(2), not a third-party creditor. To th e extent a third-party creditor believes the political subdivision’s conduct was inappropriate, it may pursue legal action against the political subdivision on other grounds, as Ayers has in this case. {¶35} We further note that Ayers has not argued, or otherwise set forth a basis for this court to conclude, that he shared a sufficient relationship with the nonparty detectives such that he had third-party standing to pursue this action. See N. Canton v. Canton , 114 Ohio St.3d 253, 2007-Ohio-4005, 871 N.E.2d 586, ¶ 14. (To have standi ng, the general rule is that “a litigant must assert its own rights, not the claims of thir d parties.”). Any benef it Ayers claims under R.C. 2744.07(A)(2) is merely incidental to the statutor y rights afforded to the detectives under the

statute. {¶36} Consistent with our statutory interp retation, Ohio courts analyzing R.C. 2744.07(A)(2) have overwhelmingly held that the stat ute does not create a pr ivate cause of action for judgment creditors. In Piro v. Franklin Twp ., 102 Ohio App.3d 130, 141, 656 N.E.2d 1035 (9th Dist.1995), the Ninth Distri ct held that R.C. 2744.07(A)(2) does not remove a political subdivision’s immunity; rather, it obligates the politi cal subdivision to indemnify its employees if they are found liable for a good faith act that is re lated to a governmental or proprietary function.

Id. The Piro court emphasized that “requiring the s ubdivision to indemnify its employees is entirely different from imposing dir ect liability on the subdivision.” Id

.{¶37} In his complaint, Ayers did not allege that the City was directly liable for the acts of its employees. Rather, Ayers argued that he “has legal standing to enforce his judgment against the City as a judgment creditor.” (Emphasi s added.) However, “R.C. 2744.07(A)(2) creates a statutory obligation to indemnify rather than a means to enforce a judgment .” (Emphasis added.)

Stengel v. Columbus , 74 Ohio App.3d 608, 612, 600 N.E.2d 248 (10th Dist.1991). Thus, Ayers cannot invoke R.C. 2744.07(A)(2) to collect a j udgment rendered against Cipo and Kovach. Rather, it is the detectives, al one, who have standing to enfo rce their statutory right to indemnification. If, as here, the employee does not seek to remedy the political subdivision’s failure to indemnify, the judgment creditor is left to satisfy its judgment from the employee — i.e., the liable party. {¶38} Federal courts have reached similar conclusions. In an analogous case involving an

indemnification cause of action brought against the city of Cleveland by wrongfully imprisoned plaintiffs, the United States District Court for the No rthern District of Ohio held that “the right of indemnification [under R.C. 2744.07(A)(2)] is the ri ght of the employee; it does not create a cause of action or any enforceable right against the city in favor of a plaintiff who sues a municipal employee.” Ajamu v. Cleveland , N.D.Ohio No. 1:12CV1320, 2016 U.S. Dist. LEXIS 98127, * 1093 (July 27, 2016), citing Maruschak v Cleveland , N.D.Ohio No. 1:09 CV 1680, 2010 U.S. Dist. LEXIS 52811, at *6, fn. 8 (May 28, 2010). See also Shoup v. Doyle , S.D.Ohio No. 3:12-CV-351, 974 F.Supp.2d 1058 (Sept. 24, 2013) (“ R.C. 2744.07(A)(2) does not provide Shoup with a cause of action against the City or anyone; it imposes a duty on the City to defend its employees from her claims.”). {¶39} In an effort to avoid the implications of the foregoing precedent, the trial court attempted to distinguish the cases on grounds that they involved motions to dismiss that wereraised prior to a final judgment against an employee of the political subdivision. We are not persuaded by the trial court’s suggestion that R.C. 2744.07(A)(2 ) provides Ayers with standing to pursue a cause of action against the City , in contravention of the holdings in Ajamu , Marushak , and Shoup , merely because this case involves a post-j udgment complaint for indemnification. In our view, the federal court’s in terpretation of R.C. 2744.07(A)(2), and the restrictions placed on those who are entitled to enforce the statute apply equally to the procedural and factual circumstances presented in this case. Ayers’s inability to establish his standing to pursue a private cause of action under R.C. 2744.07(A)(2) is not predicated on the procedural timing of the allegation, but is based on the ex press language and legislative intent of the statute. {¶40} Further, we are equally unpers uaded by the case law relied on by the trial court in its decision granting summary judgment in favor of Ayers. The trial court correctly noted that the United States District Court for the Northern District of Ohio has permitted a similar

indemnification cause of action to proceed against a political subdivision. In Vaughan v. Shaker Hts., N.D.Ohio No. 1:10CV0609, 2011 U.S. Dist. LEXIS 136198 (Nov. 28, 2011), aff’d in part, rev’d in part , 514 Fed.Appx. 611 (6th Cir. 2013), the plaintiff sought to hold the city of Shaker Heights liable for the compensatory damages resulting from the actions of a Shaker Heights Police detective committed within the scope of his employment. Ultimately, the Vaughan court denied the city’s motion to dismiss the plaintiff’s indemnification claim against the City, stating that R.C. 2744.07(A)(2) “requires the City of Shaker Height s to indemnify [the de tective]’s conduct for compensatory damages if that conduct was carried out in good fa ith within the scope of his employment.” Id . at * 14.{¶41} After careful considerati on, we decline to follow Vaughan . While Vaughan certainly supports Ayers’s position, it is evident that the holding in Vaughan is an outlier and its precedential value is minimal given the federal court’s more recent holding in Ajamu

. {¶42} We find the trial court’s reliance on Memphis v. Roberts, 528 S.W.2d 201 (Tenn.1975), to be equally unpersuasive. In Memphis , the appellant-city sought review of a judgment of the trial court in favor of the employee-fireman in his action to compel the city to indemnify him and pay judgments entered against him for damages arising out of his performance

of his official duties. 4 Thus, Memphis involves an employee’s proper attempt to enforce the political subdivision’s obligation to indemnify h im and does not address the issue of whether a judgment creditor has standing to pursue such an action. The Memphis case only addressed the issue of whether an employee is required to satisfy the judgme nt rendered against him as a condition precedent to indemnity by the city — an issue not presently before this court. Accordingly, the trial court’s reliance on Memphis is factually and legally misplaced. {¶43} Based on the foregoing, and in accordance with Ohio federal and state precedent, we find Ayers’s claim of indemnification against the City fails as a matter of law. Accordingly, we find the trial court erred in granting su mmary judgment in favor of Ayers. {¶44} Our holding, however, does not resolve Ay ers’s case entirely. While Ayers does not have standing to enforce the City’s ob ligations under R.C. 2744.07(A)(2), his remaining claims for tortious interference, breach of contract, aiding and ab etting, abuse of process, unjust enrichment, specific performance, and civil conspi racy are no longer rendered moot and must be resolved. On remand, the tria l court shall addre ss Ayers’s remaining causes of action to

4 Ultimately, the Memphis court rejected the city’s argument that the fireman-employee was required to satisfy the judgment rendered against him as a condition precedent to indemnity bydetermine whether the defendants’ actions following Ayers’s jury award, including the City’s failure to comply with the R.C. 2744.07(A)(2) and the circumstances surrounding Kovach’s bankruptcy proceedings, subjected the City or defe ndants Scott and Leneghan to civil liability. {¶45} We recognize that Ayers and the City have conflicting interpretations of the CBA

and “the total amount of indemnif ication the City is obligated to pay on behalf of one or more

officer defendants.” 5 However, a legal interpretation of the indemnification rights and responsibilities under the CBA is not cu rrently before this court. Nevertheless, we reference the disagreement concerning the amount the City was required to indemnify Kovach only to highlight the apparent conflict of interests in having the City represent Kovach following the civil judgment. Given the City’s interpretation of the CBA and their interest in indemnifying Kovach for the minimum amount required under the CBA, it is unclear whether the City’s representation of Kovach was intended to protect its own best interests, or the pe rsonal interests of its employee. In our view, these circumstances relate directly to the actions of the City and the representations

the city. 5 The City contends that the CBA places a $1,000,000 cap of the City’s statutory obligations. In support of its position, the City cites paragraph 66 of the CB A, which provides: The total amount of indemnification to which the City is obligated to pay on behalf of one or more officer defendants or potentia l defendants arising out of a transaction or occurrence, which is the subject matter of allegations against the officers and/or co-defendants, shall be limited to the lower of either One Million Dollars ($1,000,000.00), or the amount of any deductible, self-ins ured retention, or uninsured primary level, under any polic y of insurance paid by the City which provides coverage for the transaction or occurrence. In opposing the City’s interpretation, Ayer s cites Paragraph 68 of the CBA, which provides that the CBA’s provisions regarding the Legal Representation of Officers “shall not be construed in any way to impair, alter, limit, modify, abrogate, or restrict any * * * benefit provided by law to the * * * officer.” Ayers ar gues that the unequivocal language set forth under Paragraph 68 reflects the signatories’ agreemen t that the CBA does not govern or restrict a defendant-officer’s right to be held harmless “ in the amount of any judgment ” pursuant to R.C. 2744.04(A)(2). (Emphasis added.)made to Kovach prior to the bankruptcy proceedin gs, and resolution of thes e issues will ultimately shed light on Kovach’s motivation to forego her rights under R.C. 2744.07(A)(2) and pursue personal bankruptcy. {¶46} We further note that the conclusions reached by this court regarding the City’s failure to comply with R.C. 2744.07(A)(2), and perhaps future judgment s on Ayers’s remaining causes of action, may have impli cations in Kovach’s bankruptcy case. While the bankruptcy court did not have the authority to “to effectively provide an a ssignment of Kovach’s statutory indemnification rights to Ayers” as the dissent suggests, the court has demonstrated a willingness to modify the discharge inj unction if deemed necessary. Upon review of the bankruptcy materials attached to the parties’ motions for summary judgment, it is evident that while Ayers was listed as a creditor in the petition documents, Kovach’s right to indemnification was not referenced. Thus, it is unclear from this reco rd whether the bankruptcy court was aware of Kovach’s right to indemnification and, if it was not, whether the City’s obligation under the

statute would have altered the bankruptcy court’s decision to grant Kovach a discharge. We reiterate that Kovach, unlike Ayers, is an in tended beneficiary of R. C. 2744.07(A)(2) and she is entitled to enforce the City’s obligations under both the statute and the CBA. {¶47} With respect to the dissent’s concerns with the implications this opinion may have on the City’s future dealings with its employees, we emphasize that our resolution of this appeal relies solely on our interp retation of R.C. 2744.07(A)(2). It is not an endorsement of the City’s actions in this matter. To the contrary, the C ity’s post-judgment involve ment in the detectives’ representation appears to be, as characterized by Ayers, “unprecedented.” However, this court must remain cognizant that while the City’s actions may appear unsettling on the surface, allegations pertaining to the legality of the City’s post-judgment conduct has yet to be resolved bya trier of fact. At this point, Ayers and the City have not been afforded the opportunity to develop the facts through litigation, and conclusory statements con cerning the interaction between the City and the officers between the civil judgment and the bankruptcy proceedings are premature at this time. We have no information regarding the detective’s intentions or participation in the post-judgment legal maneuvers, or whether the Cleveland Police Patrolmen’s Association had any knowledge of the City’s recommendation to the detectives to enter bankruptcy in lieu of enforcing their indemnification rights. Similarly, it is equally unclear whether the City zealously represented its employ ees or merely protected its own interests. {¶48} The dissent’s concerns with the City’s c onduct are justified. However, it is this court’s hope that this decision will avoid future analogous fact patte rns in this county by strongly reiterating to employees of political subdivisions th at, subject to restrictin g contractual language, they have the absolute right to be held har mless for judgments rendered against them under R.C. 2744.07(A)(2), regardless of the representations made to them by the political subdivision. Moreover, if the developed facts of this case demonstrate, as the dissent concludes, that the City perpetrated an “undisclose d conflict of interest,” “engaged in practices” that are against public policy, or illegally “orchestrated a scheme” to deprive Ayers of the judgment, the City will be held accountable for their conduct upon resoluti on of Ayers’s remaining claims. {¶49} Based on the foregoing, we find R.C. 2744.07(A)(2) does not provide Ayers with standing to initiate a private cause of action against the City. The City’s sole assignment of error is sustained. Having determined Ayers is not entitled to enforce R.C. 2744.07(A)(2) against the City, Ayers’s first and second cross-a ssignments of error are rendered moot. {¶50} Judgment reversed and remanded. It is ordered that appellant rec over from appellee costs herein taxed.The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into

execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE FRANK D. CELEBREZZE, JR., J., CONCURS; MARY EILEEN KILBANE, P.J., DISSENTS WITH SEPARATE OPINION MARY EILEEN KILBANE, P.J., DISSENTING: {¶51} I respectfully dissent. I would affirm the judgment of the trial court and proceed to address Ayers’s cross-claim. {¶52} Ayers was convicted in December 2000. Af ter suffering over a decade of wrongful imprisonment, Ayers prevailed on his federal habeas corpus cla ims and was released from prison in 2011. He subsequently prevaile d in a federal action against K ovach and Cipo for violating his civil rights. The district court originally dismissed his claim against the City for statutory indemnification, finding it was premature until a j udgment was rendered agai nst the detectives. {¶53} After judgment was rendered, the district court declined to exercise supplemental jurisdiction over the state law claim. Instead, the district court directed Ayers to pursue the statutory indemnification claim in state court. In doing so, the district court “reject[ed] the notion that only Detectives Cipo and Kovach as employees [could] assert a claim for

indemnification.” Ayers v. Cleveland , D.D.C. No. 1:12-CV-00753, 2014 U.S. Dist. LEXIS 72116, *5 (May 6, 2014). The court reasoned that “[t]o hold otherwise would defeat thestatute’s purposes of sparing m unicipal employees from having to pay a judgment prior to

indemnification and to ensure members of the public harmed by munici pal employees are made

whole.” Id. The district court further found that [t]he state courts are best suited to decide whether a plaintiff rather than an employee can bring a direct action for indemnificati on under * * * Ohio Revised Code § 2744.07(A)(2) and whether the City of Cleveland’s collective bargaining agreement’s $1 million cap on indemnification is compatible with Ohio law. Ayers , N.D. Ohio No. 1:12-CV-00753, 2014 U.S. Dist. LEXIS 94472, *4. {¶54} In the instant case, the sole issue decided by the lower court’s decision was whether R.C. 2744.07(A)(2) required the City to indemnif y its employees and pay Ayers the judgment rendered in the federal civil rights case. The trial court found that it did. For this reason, the trial court did not reach Ayers’s alternative claim for indemnification based on the City’s collective bargaining agreement with the detectives and found a ll of the remaining counts in Ayers’s complaint moot. Although the trial court did not address Ayers’s claim for attorney fees and costs, this court has juri sdiction over this appeal under Ci v.R. 54(B) and because the trial court found there was no ju st reason for delay. {¶55} The majority finds that the City was obligated to indemnify and hold Kovach and Cipo harmless from the judgment pursuant to th e conditions of R.C. 2744.07(A)(2). However, the majority concludes that only Kovach and Cipo had standing to enforce the mandatory indemnification provisions of the statute. {¶56} I strongly disagree for the following r easons. First, I do not agree with the majority’s conclusion regarding the statutory intent behind R.C. 2744.07(A)(2). Second, I do not agree that only the employee has standing to enforce the City’s duty to pay a judgment where there is no dispute regarding th e employee’s statutory right to indemnification. Third, I wouldfind that Ayers, as a judgment creditor, is the real party in interest and has standing to assert the employees’ statutory rights to indemnification against the City to satisfy the judgment. I agree

with the United States District Court for the Northern District of Ohio that the state court was best

suited to address Ayers’s claims. See Ayers , N.D. Ohio No. 1:12-CV-753, 2014 U.S. Dist. LEXIS 94472, *4; Ayers , N.D. Ohio No. 1:12-CV-753, 2014 U.S. Dist. LEXIS 72116, *5. Statutory Intent and Pri vate Cause of Action under R.C. 2744.07(A)(2) {¶57} R.C. 2744.07(A)(2) provides: (2) Except as otherwise provided in this division, a political subdivision shall indemnify and hold harmless an employee in the amount equal to any judgment , other than a judgment for punitive or exemplary damages, that is obtained against the employee in a state or federal court * * * that is for damages for injury, death, or loss to person or property caused by an act or omission in connection with a governmental or proprietary function, if at the time of the act or omission the employee was acting in good faith and within the scope of employment or official responsibilities. (Emphasis added.) {¶58} The majority indicates that Ohio courts use the three-part test established by Cort, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, to determine whether a private cause exists to enforce a statute. However in 2011, this court indicated that “there is ample authority for the proposition

that the Cort test is no longer valid.” Grey v. Walgreen Co. , 197 Ohio App.3d 418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 8 (8th Dist.). In Grey, we indicated that the sole inquiry as to whether a private right of action existed is determined by examining legislative intent. {¶59} We must construe the statute to carry out the intent of the General Assembly. State

v. Roberts , 134 Ohio St.3d 459, 2012-Ohio-5684, 983 N.E.2d 334, ¶ 12. Courts must “avoid[ ] adopting a construction of a statut e that would result in circumventing the evident purpose of the

enactment” and we must avoid c onstructions that lead to “unr easonable or absurd results.” Stateex rel. Cincinnati Post v. Cincinnati , 76 Ohio St.3d 540, 543, 668 N.E.2d 903 (1996). Recognizing that Ayers has standing to enfor ce the City’s statutory indemnification and hold harmless obligations furthers the legislature’s purpose for enacting the statute as a remedy intended by the law. {¶60} The majority implicitly recognizes that th e legislature obviously intended to create a private cause of action against the City for i ndemnification of the j udgment and to hold its employees harmless when it enacted R.C. 2744.07(A )(2). The majority, however, views the only purpose of the indemnification a nd hold harmless provisions of th e statute is “to shield the employee from financial ruin resulting from an act committed within the scope of employment.” I disagree. {¶61} The plain terms of the statute evince the intent to satisfy judgments where persons are injured as a result of a municipal employ ee’s conduct committed in good faith in the course and scope of employment, without a triggering even t. The terms of the statute could not be more

clear. It states: “a political subdivision shall indemnify and hold harmless an employee in the amount equal to any judgment , other than a judgment for punitive or exemplary damages, that is obtained against the employee in a state or fe deral court[.]” (Emphasis added). R.C. 2744.07(A)(2). {¶62} The statute clearly does not allow for the City to finance the liable employees’ personal bankruptcies in lieu of i ndemnifying them. In most cases, it would likely be more cost effective for the City to require the employee to declare personal bankruptcy than to indemnify the judgments. The purpose of the st atute is for the City to pay th e judgment, without a triggering event, not for the City to help its employees evade the financial consequences of a judgment that

resulted from their tortious conduct.{¶63} Even if we assume that the sole purpose of the statute is to protect the detectives from the injurious effects of the judgment, allowing the City to force Detective Kovach into bankruptcy by refusing or obfuscating the City’s responsibility to indemnify, the judgment does not accomplish that purpose. It defeats it. The City’s end run in the instant case is circuitous. It circumvents the purpose of R.C. 2744.07(A)(2 ) and the City’s duty under the statute to indemnify its employees for the judgments rendered against them. {¶64} The General Assembly did not intend to expose police officers to bankruptcy as a result of judgments entered against them for good faith acts committed in the scope of their employment. Quite the opposite is true. The le gislature intended to pr otect our police officers

from financial ruin under those ci rcumstances. There is nothing in the statute that limits the private right of action to enforce the City’s indemnification obligations to the employees of the political subdivision, and we should not read that into the statute. Doing so creates both unreasonable and absurd results by denying pers ons injured by the conduct of City employees acting within the scope of their employ ment of any meaningful relief. {¶65} The majority’s decision turns on who it be lieves can pursue this private cause of action. The cases the majority relies on to make this distinction invol ve different statutory language or cases in different pro cedural postures. For example, in Strack , 33 Ohio App.3d 336, 515 N.E.2d 1005, the appellate c ourt determined that “R.C . 3901.20 and 3901.21, and Ohio Adm. Code 3901-1-07, proscribing unfair trade practices in the insurance industry, do not create an implied private cause of action in favor of insureds.” Strack at syllabus. However, the Strack court found that “[n]owhere in the Ohio statutor y or regulatory framework proscribing deceptive trade practices in insurance does it provide a civ il remedy to a private party aggrieved by aninsurer.” Id . at 337. Instead, the law expressly impos ed the duty to enforce the law on the superintendent of insurance. {¶66} The instant case is factually dissimilar from Strack because R.C. 2744.07(A)(2) is silent on who can pursue the private cause of ac tion against the City. I see no valid reason to preclude a judgment creditor from pursuing the action when the creditor has a judgment against the employees and there is no dispute that the City is obligated to indemnify and hold its employees harmless from that judgment. {¶67} The majority conflates th e authority that a political subdivision’s statutory obligation to indemnify its employees with the di fferent principle of la w that precludes a party from advancing a claim that would impose directliability on the subdivision during the litigation phase. The majority relies upon Piro , 102 Ohio App.3d 130, 656 N.E.2d 1035. Piro did not address whether a judgment cr editor could pursue a post-judgme nt claim for indemnification against a City. It held that the plaintiff could not pursue a direct cause of action against the political subdivision for the tor tious acts of its employees. {¶68} The distinct principles of law recognize, as the district court did, that a judgment creditor’s claim for indemnification against the City is premature until the issue of the municipal employee’s liability is determined by a final judgment. Ayers is not using R.C. 2744.07(A)(2) to impose direct liability on the City; he is asserting a post-judgment claim to enforce the City’s

indemnification and hold har mless obligations that were automatically triggered by the judgment. The very nature of indemnification is indirect liability whereby one party is obligated to cover the liability of another party. {¶69} I agree with the trial court’s analogy that Ayers’s indemnification action against the City is akin to post-judgment proceedings ag ainst a tortfeasor’s in surance company. Theinsurance company is not directly liable to the injured party during the litigation of the negligence claim. But the insurer is obligated to indemnify its insured tortfeasor and directly pay the judgment to the judgment creditor once the insure d is found liable within the coverage terms of the policy by a judgment. {¶70} The statutory indemnity claim was not part of the substantive liability issue in the civil rights action; rather, it is the relief afforded to pay the judgment once the verdict and judgment were returned that found the detectives liable. No one could pursue the statutory indemnification claim until that judgment was rendered. {¶71} The City has no defense to its mandatory indemnity obligations because it admits

that the detectives were found lia ble for conduct carried out in good faith within the scope of their employment. Further, the bankruptcy court found that Ayers can pursue this claim against the City, in Kovach’s name, without violating the bankruptcy orders. 11 U.S.C. 524 provides that “discharge of a debt of the debtor does not a ffect the liability of any other entity on, or the property of any other entity for, such debt.” The majority does not address this aspect of the case, which effectively provided an assignment of Kovach’s statut ory indemnification rights to Ayers. {¶72} The Tenth District in Stengel, 74 Ohio App.3d 608, 600 N.E.2d 248 (10th Dist.1991), found that where the statute provides indemnity against liability, the City (as indemnitor) becomes liable and the cause of acti on accrues when the liability of the municipal employees arises by entry of a judgment against the municipal employee. Id. at 613. Under the statute, the City’s indemnification obligations we re triggered by the judg ment and did not require any actual payment by the municipal employee. Id. Stengel was an indemnity action brought by the judgment creditor against the City. The Stengel court did not resolve whether thejudgment creditor had standing to bring the stat utory indemnification claim against the City and limited its analysis to the various statutes of limitations that might apply to the claim. {¶73} This is a state law claim and the federal law interpreting it is inconsistent. Nonetheless, I find, as th e trial court did, that Vaughan , N.D. Ohio No. 1:10CV0609, 2011 U.S. Dist. LEXIS 136198 (Nov. 28, 2011), aff’d in part, rev’d in part , 514 Fed.Appx. 611 (6th Cir.2013), to be directly on point. In Vaughan , the federal court f ound that R.C. 2744.07(A)(2) requires the City to indemnify judgments entered against a Shaker Heights detective for liability resulting from good faith acts related to a govern mental or proprietary function. “The clear statutory terms require the City of Shaker He ights to indemnify Det ective Hyams’s conduct for compensatory damages if that conduct was carried out in good fa ith within the scope of his employment.” Id . at *4. Therefore, the federal court re fused to dismiss the judgment creditor’s indemnification claim against the City. In this case, there is a judgment against the City’s employees for the good faith acts committed in the sc ope of their employment. There is nothing in the statutory language that should bar Ayer s from asserting this claim against the City. {¶74} The majority considers Vaughan to be an outlier and opts to rely instead upon the

federal decision in Ajamu , N.D. Ohio No. 1:12CV1320, 2016 U.S. Dist. LEXIS 98127, *5-6 (July 27, 2016), which in turn cited Maruschak , N.D. Ohio No. 1:09 CV 1680, 2010 U.S. Dist. LEXIS 52811, at *6, fn. 8 (May 28, 2010). However, the trial court in this case clarified that Maruschak had no probative value in resolving the issue of Ayers standing to bring this claim against the City. Specifically, the trial court stated:

Maruschak * * * is a ruling on a motion to dismiss and is not dispositive of the issues in this case. Interestingly, that case was remanded to the Common Pleas Court and was assigned to this Court’s docket. The issue present in this case did not arise in the Maruschak case before this Court becau se it reached a settlement.(Emphasis added.) Trial Court’s Decision on Summary Judgment at p. 3. The trial court

further noted that the Ajamu court adopted dicta from the Maruschak decision in finding that the right to indemnification was the right of the employee and was not enforceable against the City.

Id

. 6 {¶75} Ajamu did not involve an attempt by a judgme nt creditor to assert a post-judgment statutory indemnification claim against the City. The court correctly recited that R.C. 2744.07(A)(2) “does not remove a political subdi vision’s immunity; rather, it obligates the political subdivision to indemnify its employees if they are found liable for a good faith act that is related to a governmental or propr ietary function.” (Emphasis added.) Ajumu at *5, citing, Piro, 102 Ohio App.3d 130, 656 N.E.2d 1035

. Until the judgment against the municipal employee is rendered, a plaintiff’s statutory indemnity claim is premature. The authority upon

which Ajamu relied was a mere footnote in the fe deral district court’s decision in Maruschak

. {¶76} In Maruschak , the plaintiff had not obtained an y judgment against the City’s employees. The federal districtcourt dismissed some counts a nd then declined to exercise jurisdiction over the remaining state claims that were remanded to the Cuyahoga County Court of Common Pleas. Coincidentally, the claims that were remanded to the state court in Maruschak were assigned to the docket of the same jurist that found Ayers does have standing to pursue a post-judgment statutory indemnification claim against the City in this case. It was unequivocally

stated that this issue was not a ddressed, resolved, or decided in Maruschak because the case

settled.

6 The dicta was taken from fn. 8 in the Maruschak opinion.{¶77} I disagree that Vaughn is an outlier and submit that it sets forth the proper rule of

law. Id., N.D. Ohio No. 1:10CV0609, 2011 U.S. Dist. LEXIS 136198; see also Ayers , D.D.C. No. 1:12-CV-00753, 2014 U.S. Dist. LEXIS 72116 at *5 (w here the district c ourt rejected “the notion that only detectives Cipo and Kovach as employees [could] assert a claim for indemnification.”). I would find that the legislature did intend to create a private right of action to enforce the City’s indemnity and hold harmless obligations. Ayers has Standing to Bring the Claim {¶78} Standing is “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce , 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27. A true party in in terest is able to demonstrate an injury in fact, “which requires a showing that the party has suffered or will suffer specific injury.” Camp St. Mary’s Assn. of W. Ohio Conference of the United Methodist Church, Inc. v. Otterbein

Homes , 176 Ohio App.3d 54, 2008-Ohio-1490, 889 N.E.2d 1066, ¶ 13 (3d Dist.2008). {¶79} Generally, a party must pursue its own claims and lacks standing to assert the rights of another. However, a thir d party may assert the rights of another where the following conditions are met: “a claimant (i) suffers its own injury in fact; (ii) possesses a sufficiently ‘close’ relationship with the person who possesses the right, and (iii) shows some ‘hinderance’ that stands in the way of the claimant seeking relief.” N. Canton v. Canton , 114 Ohio St.3d 253, 2007-Ohio-4005, 871 N.E.2d 586, ¶ 14. {¶80} The majority did not apply the law regard ing third-party standing. I would find that Ayers satisfies all three requirements of third-party standing, which in turn would allow him to enforce the City’s duty to indemnify the judgme nt against its employees who violated his civil rights. Id . His ability to do so furthers not only the secondary purpose of the statute, which isto compensate parties w ho were injured by the City’s employ ees who were acting in good faith in the course of their employment, but it also serves the primary purpose of the statute, which is to protect those employees from suffering financial ruin. It will eliminate the ability of the employer to manipulate, deceive, or coerce their employees into declaring bankruptcy as a means of avoiding the City’s own inde pendent statutory obligations to pay the judgment — which is exactly what happened in this case. Ayers Suffered His Own Injury in Fact {¶81} The City provided both Kovach and Cipo w ith a defense in the 2012 civil rights action pursuant to R.C. 2744.07. At no point did the City ever reserve its rights to deny its indemnification obligations pursu ant to R.C. 2744.07(A)(2). The tr ial court order indicates “[i]t was confirmed during a hearing befo re this Court that Cleveland defended the detectives without any reservation of rights and took the position that a ll of their actions were taken within the course and scope of their employment a nd done in good faith.” This is an established and irrefutable fact at this stage of the litigation. The City’s mandatory statutory inde mnification obligations were triggered as a matter of law upon entry of the judgment. The City has no basis upon which to deny or dispute its statutory obligation to indemnify and hold the detectives harmless from the judgment debt. The statute is silent as to who may pursue a statutor y indemnification claim when the City breaches its indemnification duty. {¶82} The majority is actually reading a limitation into the statute as to who can bring this

claim. This court should not read a limitation into the statute that the le gislature chose not to include, especially where it only serves to reward the City’s transparent, self-serving efforts to avoid its clear statutory obligations to pay this judgment. The majority’s interpretation of thestatute will not provide any protection to political subdivision employees and will operate to cause them the very financial ruin and distress that the statut e was designed to prevent. {¶83} If Ayers is not permitted to pursue this cl aim, he will suffer harm because he will not be able to collect from the City on the judgment. Ayers Possesses a Sufficiently “Close” Relationship with the Person who Possesses the Right {¶84} Ayers, who is entitled to receive payment of the judgment, has a close relationship with Kovach, who would be otherwise obligated to pay it but for the statutory indemnification provisions of R.C. 2744.07(A)(2). Both parties have an interest in having the City’s indemnification obligations enforced. Neither party receives any benefit, and both suffer financial detriment if the City is allowed to breach its duty to pay the judgment. {¶85} There is no requirement that a municipal employee has to first pay any amount of the judgment to the plaintiff or that the employee has to make any formal demand to the City to trigger the statutory indemnifi cation obligations of R.C. 2744.07(A)(2). Once the judgment is entered, the City’s duty to pay the judgment in the full amount is automatic. There is no requirement that the employee has to file an acti on or do anything to trigger the City’s duty to indemnify the entire amount of the judgment. Ayer s, who is the judgment creditor, is the real party in interest and has standing to assert the statutory indemnification claim even if the liable employee chooses to forego it.

This Record Demonstrates a “Hi nderance” that St ood in the Way of Kovach and Cipo Pursuing Statutory I ndemnification {¶86} The City’s machinations in this case hi ndered Kovach and Cipo from even asking the City to indemnify the judgment and hold them harmless. The City provided the detectives with representation in the civil rights action. The City then failed to advise them of their rightsto indemnification, and instea d, hired private counsel to ha ve Kovach declare personal bankruptcy. 7 {¶87} It must be observed that a jury awarded Ayers this judgment because Kovach and Cipo violated his civil rights to the point where he spent over a decade in prison and suffered extensive damage as a result of their actions. By finding only Kovach and Cipo have the power to compel the City to satisfy the judgment, we would be empowering the very same people who violated Ayers’s civil rights to expose him to further damage by eliminating his ability to have the judgment satisfied. Ayers is a Real Party in Interest — Assignment of Rights is Unnecessary {¶88} The majority agrees that the City has no basis to deny the claim, but insists that either Kovach or Cipo must formally assert it. The majority and the City refer to certain post-judgment offers that were made by the City to assign the detectives’ indemnification rights to Ayers in exchange for his agreement to forbear co llection efforts against them directly. This was unnecessary and not required by the law to trigger the City’s statutory indemnification obligations. {¶89} First, the City conceded at oral argument that it has never require d this type of an assignment in any other case where it has satisfied a judgment pursuant to its statutory indemnification provisions of R.C. 2744.07. Even if it did, such assignment would be worthless if we proceed to find that the law permits the City to finance the muni cipal employee’s personal bankruptcy in order to extinguish its own obligati ons to indemnify these judgments. There is no basis in the statute or anywhere else that would authorize the C ity (who is ultimately responsible

7 The City entered into an agreement with defe ndant-Attorney Leneghan in April 2013 to assist Kovach and Cipo with personal bankruptcy proceedings in an effort to secure the discharge of their debt. Cipo passed away in July 2013.to pay the judgment) to assign the officer’s rights of indemnification to a third party who has obtained the judgment ag ainst the officer. {¶90} In any case, the assignment of the defendant detectives’ indemnification rights, if accomplished, seems to be a distinction without a difference. The City knew it had the statutory obligation to pay the judgment and hold its detectives harmless from it, given the fact that they never disputed that all actions were done in good faith and with in the scope of employment. There are several references in this record where the City paid monetary judgments directly to the prevailing parties thereby holding their employees harmless, without requiri ng an assignment and without having any demand to do so from the lia ble employees. It is difficult to comprehend why the City even made this overture to assign the detectives’ statutory rights. If the City had any intention of paying the judgme nt, it could have just done so. {¶91} Even if Ayers had been assigned the detec tives’ statutory rights to indemnification, Ayers would still be a third party who the majority finds is not entitled to pursue the claim because the assignment of indemnification rights contradicts the majority’s argument as to the invalidity of a thir d-party claimant. {¶92} Furthermore, if an assignment is deem ed necessary, Ayers obtained it through the Kovach bankruptcy proceedings. The bankrupt cy court granted Ayers’s motion to reopen Kovach’s bankruptcy case specifically to allow him to pursue a state court action against the City in Kovach’s name. The bankruptcy court r ecognized Ayers’s standing to pursue the indemnification claim against the City as the real party in interest. This would not violate the discharge injunction because the City was obligated to pay the judgment pursuant to its statutory indemnification obliga tions, not Kovach.{¶93} In the instant case, the City did not indemnify the detectives from the judgment and did not even advise them of their rights to inde mnification. Instead, the C ity actively participated in an effort to deprive Ayers of the judgment by orchestrating a scheme to take the liable detectives through bankruptcy. The City used taxpayer dollars to hire defendant-Attorney Leneghan to represent Kovach through personal ba nkruptcy in an effort to discharge this debt, with the ultimate goal of extinguishing the City’s liability for the judgment. The record contains the City’s engagement letter with Leneghan, who would only be paid if he filed for bankruptcy on the detectives’ behalf. (Exhibit No. 28 to Ayers’s motion for partial summary judgment). Leneghan had no financial incentive to pursue indemnification from the City and there was a clear

conflict of interest between the City (that was fundi ng the personal bankruptcy legal representation) and Leneghan’s c lients (which were the detectives declaring bankruptcy). This

conflict was not disclose d to Kovach or Cipo. {¶94} All of these factors demonstrate how th e employees were hindered from pursuing their own claims against the City for indemnification and to be held harmless from the judgment. Based on the foregoing, I would find that Ayers, as a real party in interest , can pursue his statutory indemnity claim against the City. No Dispute that Statutory Indemnification was Triggered {¶95} Because the City defended Kovach and Cipo without a reservation of rights, it is now estopped from denying its statutory indemnifi cation obligations to satisfy the judgment. See Oladeinde v. Birmingham , 118 F.Supp.2d 1200, 1211 (N.D. Ala.1999). In Oladeinde , the City attempted to deny its obligations to indemnify a judgment entered against its officers after having

defended them without a reservati on of rights. The court detailed a lengthy history of the City’s practice to pay judgments entered against its em ployees and the troubling aspects of the City’sobvious conflict of intere st in continuing to represent th e detectives once the judgment was rendered that triggered their indemnification obligations. Id. The court held the City was obliged to indemnify the judgment and reasoned: [a]s a matter both of equity and of pub lic policy, the negative consequences that would result from allowing a public employer to deny indemnification under circumstances like th ese far outweighs any benefits to employers. Unless there is indemnity, a municipality’s pecuniary interest lies in having no liability or minimal liability for itself.

Id. at 1212. {¶96} Applying similar reasoning, the City is precluded from avoiding its statutory obligation to indemnify the judgment entered agai nst its employees here. The City has, on other occasions, paid judgments directly to the judgment creditors after unsuccessfully defending its employees in lawsuits. The City continued to represent the detectives post judgment and failed to advise them of their rights to have the City pay the judgments. The C ity’s undisclosed conflict of interest led Kovach to declare bankruptcy, wh ich was against her inte rest, but furthered the pecuniary interests of the City. {¶97} I further find that the majority opinion is in conflict with the se ttled precedent in this district that recognizes the City’s automatic statutory obligation to indemnify its employees for acts committed in the scope of em ployment and in good faith. See Lyons v. Teamhealth Midwest

Cleveland , 8th Dist. Cuyahoga No. 96336, 2011-Ohio- 5501 (“Although the law provides that political subdivision employees may be sued indi vidually * * * the political subdivision remains obligated to indemnify and defend its empl oyees pursuant the terms of R.C. 2744.07.” Id. at ¶ 56.) The instant case creates a previously unrecognized and unint ended exception to the law that clearly encourages political subdivisions to atte mpt to minimize their own obligation to indemnify these types of judgments by compelling their employees to pursue personal bankruptcy andfunding it with taxpayer dollars. The conflict created is the majority’s holding that political subdivisions will not be obligated to indemnify judgments entered against its employees pursuant to R.C. 2744.07 if the City successfully aids or a ssists the employee in avoiding or extinguishing the debt, or in circumstances wh ere the individual is no longer em ployed with the municipality, i.e., fired, retired, deceased. {¶98} I respectfully dissent from the majority’s decision that would allow the City to avoid its statutory indemnification obligations by engaging in practices that are against the interests of its employees, that undermine the purposes of the st atute, and are against public policy. I would

find that under these circ umstances, the judgment creditor has standing to pursue the statutory indemnification claim created by R.C. 2744.07(A )(2) once judgment is rendered against the municipal employee resulting in compensatory damages for conduct committe d in the course and scope of employment and in g ood faith. Alternatively, I find th at the bankruptcy court’s order conferred standing upon Ayers to pursue the cla im in Kovach’s name because the bankruptcy order did not discharge the City’s oblig ations to indemnify the judgment. {¶99} Because I would affirm the trial court’ s decision, I would proceed to address Ayers’s cross-claim. The federal jury ente red its $13,210,000 verdict against the detectives on May 9, 2013, and as the majority notes, the judgme nt was enlarged to include an additional $390,000 in costs and attorney fees. I would fi nd in favor of Ayers on his cross-claim and remand the matter to have the trial court enter an order directing the City to pay the judgment rendered by district court in the full amount, includi ng costs and attorney fees. Indeed, the state

trial court was best suited to decide these issues and did so properly.