[Cite as Westbrook v. Swiatek, 2012-Ohio-2451.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

WILLIAM WESTBROOK : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Sheila G. Farmer, J. 

-vs- : 

 : Case No. 11-CAE-09-0080 

VALERIE SWIATEK, ET AL., : 

 : 

 : 

 Defendants-Appellants : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas, Case No. 06 CV H 08 

0683 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: May 30, 2012 

APPEARANCES: 

For Appellants: For Appellee: 

 

QUINTIN F. LINDSMITH O. JUDSON SCHEAF, III 

NATALIE T. FURNISS 10 W. Broad St., Suite 700 

JAMES P. SCHUCK Columbus, OH 43215 

100 S. Third St. 

Columbus, OH 43215 ANTHONY M. HEALD 

 125 N. Sandusky St. 

 Delaware, OH 43015 
Delaney, P.J. 

{¶1} Defendants-Appellants Alum Creek, Inc., Rennob, Inc., and Whittington, 

Inc. appeal the August 18, 2011 and September 15, 2011 judgment entries of the 

Delaware County Court of Common Pleas granting indemnification of fees and 

expenses to Plaintiff-Appellee William Westbrook. 

FACTS AND PROCEDURAL HISTORY 

{¶2} This matter was originally filed on August 1, 2006 by Westbrook as an 

action, for among other things, an accounting and dissolution of a “joint 

venture/partnership agreement” between himself and Valerie Swiatek, Victoria Bonner, 

Deborah Bonner (“Bonner Daughters”), ABL Group, Ltd., Alum Creek, Inc., Cobbleton 

Bachman LLC, Cobbleton II LLC, Rennob, Inc., SR 37 at Old State LLC, and 

Whittington, Inc. (“Bonner Companies”). Westbrook alleged a written “Memo of 

Understanding” (“MOU”) memorialized the joint venture/partnership agreement. The 

MOU was between Westbrook and Charles Bonner. The MOU was signed by 

Westbrook and Bonner in their individual capacities on June 24, 1999. 

{¶3} The general terms of the MOU were such that Mr. Bonner, either 

individually or through one of several Bonner Companies (referred to as Bonner 

Interests in the MOU), would provide the financing for the purchase of property found by 

and to be developed by Westbrook. The pertinent terms of the MOU were as follows: 

Pursuant to the “Standard Deal,” wherein Westbrook would receive 30% of the profits, 

the Bonner Companies would receive 65% and Michael Suhovecky (Mr. Bonner's 

accountant) would receive 5%. A losing transaction would result in zero gain or loss to 

Westbrook. On “Sour Deals” where there was money fronted but no deal made, the 
Bonner Companies would take 100% of the loss. Mr. Bonner could continue to do deals 

on his own, with or without Westbrook. Mr. Bonner provided Westbrook with 

administrative support such as office space and accounting services. Westbrook was 

considered an employee of one of the Bonner Companies to the extent necessary to 

qualify Westbrook under the corporation's health coverage plan. “The remainder of his 

status will be an independent contractor, associate, officer and/or partner depending on 

the particulars of each deal.” (MOU, Working Relationship.) Westbrook also served as 

an officer of various Bonner Companies. Westbrook was the president of Alum Creek, 

Inc., vice president of Whittington, Inc., and vice president of Rennob, Inc. (Bonner 

Companies Amended Counterclaim, August 8, 2007.) 

{¶4} Westbrook and Mr. Bonner operated under the terms of the MOU until Mr. 

Bonner's death in September 2003. Before his death, Mr. Bonner reorganized the 

Bonner Companies' boards of directors and appointed the Bonner Daughters to the 

boards in addition to three outside directors. Westbrook continued working on the 

pending real estate projects after Mr. Bonner died. According to the complaint, these 

projects include the Cobbleton Property, the Hummel Property, Woods at Cumberland, 

McCammon Chase Property, Lithopolis Property, Huntley Property, and Noble Property. 

{¶5} In mid-2005, the relationship between the parties deteriorated. On June 

25, 2005, Westbrook was informed that the Bonner Daughters intended to downsize the 

active real estate development operations of the Bonner Companies and the MOU was 

terminated with respect to the current projects, except the Cobbleton and Huntley 

properties. In September 2006, Westbrook was informed he was no longer authorized 

to act in any representative capacity on either the Cobbleton or Huntley properties. 
{¶6} Shortly thereafter, this litigation ensued in the Delaware County Court of 

Common Pleas. After the filing of the original complaint, Westbrook sought the 

appointment of a receiver. The trial court appointed a receiver in June 2007. However, 

the appointment was vacated by this Court on December 10, 2008, in Westbrook v. 

Swiatek, 5th Dist. Nos. 07 CAE 09 0046, 07 CAE 11 0058, 2008-Ohio-6477 

(“Westbrook I”). The Ohio Supreme Court declined jurisdiction to hear the case on April 

22, 2009. 

{¶7} In the meantime, the litigation continued between the parties. In 2007, the 

Bonner Companies asserted counterclaims against Westbrook. ABL Group, Alum 

Creek, Cobbleton I and II, Whittington, and Rennob asserted the following claims: (1) 

slander of title for Westbrook’s initiation of the lawsuit claiming an ownership right in the 

real estate parcels comprising the Cobbleton property; (2) declaratory judgment that the 

Bonner Companies are the owners to the exclusion of Westbrook of the real estate 

parcels comprising the Cobbleton property; and (3) negligence of the Westbrook in 

performing his task of preparing the real estate parcels comprising the Cobbleton 

property for development and/or sale. On July 2, 2007, the trial court granted 

Westbrook’s motion to dismiss count one of the Bobber Companies’ counterclaims. On 

August 8, 2007, the Bonner Companies filed amended counterclaims asserting the 

following claims: (1) declaratory judgment that the corporate defendants are the owners 

to the exclusion of Westbrook of the Cobbleton property; (2) breach of fiduciary duty by 

Westbrook to the Bonner Companies by concealing his positions; (3) breach of contract 

as to sour deals by failing to allow the defendants to treat Cobbleton as a sour deal and 

allow the defendants to sell the property to recover expenses; and (4) breach of 
fiduciary duty by Westbrook by failing to perform his obligations as project manager to 

assure that the contingencies in the Dominion contract would be met. 

{¶8} On August 9, 2007, Westbrook filed an amended complaint adding claims 

for indemnification and advancement of legal expenses for defense of the 

counterclaims. The corporate regulations of Alum Creek, Rennob, and Whittington 

provided for indemnification and advancement of attorney’s fees and expenses as 

follows: 

 Section 5.01. Indemnification. The corporation shall indemnify 

any officer or director of the corporation who was or is threatened to be 

made a party to any threatened, pending or completed action, suit or 

proceeding, whether civil, criminal, administrative or investigative 

(including, without limitation, any action threatened or instituted by or in 

the right of the corporation), by reason of the fact that he is or was a 

director, officer, employee, agent or volunteer of the corporation, or is or 

was serving at the request of the corporation as a director, trustee, 

officer, employee, member, manager, agent or volunteer of another 

corporation (domestic or foreign, nonprofit or for profit), limited liability 

company, partnership, joint venture, trust or other enterprise, against 

expenses (including, without limitation, attorneys’ fees, filing fees, court 

reporters’ fees and transcript costs), judgments, fines and amounts paid 

in settlement actually and reasonably incurred by him in connection with 

such action, suit or proceeding if his act or omission giving rise to any 

claim for indemnification under this Section 5.01 was not occasioned by 
his intent to cause injury to the corporation or by his reckless disregard 

for the best interests of the corporation, and in respect of any criminal 

action or proceeding, he had no reasonable cause to believe his conduct 

was unlawful. It shall be presumed that no act or omission of a person 

claiming indemnification under this Section 5.01 that gives rise to such 

claim was occasioned by an intent to cause injury to the corporation or 

by a reckless disregard for the best interests of the corporation and, in 

respect of any criminal matter, that such person had no reasonable 

cause to believe his conduct was unlawful; the presumption recited in 

this Section 5.01 can be rebutted only by clear and convincing evidence, 

and the termination of any action, suit or proceeding by judgment, order, 

settlement or conviction, or upon a plea of nolo contendere or its 

equivalent, shall not, of itself, rebut such presumption. * * * 

 Section 5.05. Advances for Expenses. The provisions of Section 

1701.13(E)(5)(a) of the Ohio Revised Code do not apply to the 

corporation. Expenses (including without limitation, attorneys’ fees, filing 

fees, court reporters’ fees and transcript costs) incurred in defending any 

action, suit or proceeding referred to in Section 5.01 shall be paid by the 

corporation in advance of the final disposition of such action, suit or 

proceeding to or on behalf of the officer or director promptly as such 

expenses are incurred by him, but only if such officer or director shall first 

agree, in writing, to repay all amounts so paid in respect of any claim, 

issue or other matter asserted in such action, suit or proceeding in 
defense of which he shall not have been successful on the merits or 

otherwise if it is proved by clear and convincing evidence in a court of 

competent jurisdiction that, in respect of any such claim, issue or other 

matter, his relevant action or failure to act was occasioned by his 

deliberate intent to cause injury to the corporation or his reckless 

disregard for the best interests of the corporation, unless, and only to the 

extent that, the Court of Common Pleas of Delaware County, Ohio or the 

court in which such action or suit was brought shall determine upon 

application that, despite such determination, and in view of all of the 

circumstances, he is fairly and reasonably entitled to all or part of such 

indemnification. 

{¶9} On August 8, 2007, the Bonner Companies filed a separate suit in 

Franklin County Court of Common Pleas against Westbrook and Mr. Suhovecky, in their 

role as corporate officers and asserted claims of fraud, breach of contract and breach of 

fiduciary duty. Ultimately, that suit was transferred and consolidated with this action in 

Delaware County. 

{¶10} Westbrook filed a motion on August 28, 2007 requesting a hearing on 

the “Interim Award of Legal Fees.” Westbrook argued he was due the advancement of 

his attorney’s fees and expenses under the corporate regulations of Alum Creek, 

Rennob, and Whittington. On October 2, 2008, the trial court granted Westbrook's 

motion. The trial court, citing law from the State of Delaware, noted that the 

construction and interpretation of the corporate regulations is a question of law. 

Second, the trial court determined that whether a corporate official is entitled to 
advancement of legal expenses can be brought before the court by motion. The trial 

court proceeded to examine the corporate regulations and Ohio law, specifically R.C. 

1701.13(E), which permits an Ohio corporation to establish indemnification and 

advancement provisions for its officers and directors. The trial court concluded that 

Westbrook was entitled to advancement of attorney fees and expenses from the 

corporations. 

{¶11} On August 12, 2008, ABL Group, Cobbleton I and II, and Rennob filed a 

second amended counterclaim asserting the following claims: (1) declaratory judgment 

that the corporate defendants are the owners to the exclusion of Westbrook of the 

Cobbleton property and declaratory judgment that Defendant SR 37 at Old State is the 

owner of the Huntley property; (2) breach of contract as to sour deals by failing to 

allow the defendants to treat Cobbleton as a sour deal and allow the defendants to sell 

the property to recover expenses; (3) breach of fiduciary duty by Westbrook to 

purported partnership by failing to perform his obligations as project manager; (4) 

breach of fiduciary duty by Westbrook by taking action to cause the collapse of the 

sale of 63 units of Cobbleton property to Dominion for $637,000 in September 2007; 

and (5) tortious interference with contract by taking action to cause the collapse of the 

sale of 63 units of the Cobbleton property to Dominion. The August 12, 2008 second 

amended counterclaim withdrew the officer-based claim of breach of fiduciary duty. 

{¶12} On October 31, 2008, the Bonner Companies voluntarily dismissed 

without prejudice the other officer-related counterclaims. 

{¶13} The trial court held a hearing on November 5, 2008 to determine the 

amount of legal expenses to be advanced by the corporations. By entry filed 
December 10, 2008, the trial court awarded $227,975.75 in attorney’s fees and 

$12,976.31 in expenses to Westbrook. The Bonner Companies were ordered to pay 

these amounts by January 12, 2009. The trial court deferred the final hearing on 

indemnification until after the trial occurred in the case. 

{¶14} The Bonner Companies appealed the award to this court, which 

dismissed the appeal for lack of a final, appealable order. The Ohio Supreme Court 

declined jurisdiction to hear the case. 

{¶15} Ultimately, the Bonner Companies refused to pay the advancement and 

were found in contempt of court. In their appeal of the contempt order, the Bonner 

Companies raised four assignments of error. Relevant to this appeal, the Bonner 

Companies argued in their first assignment of error the trial court erred in awarding 

fees and expenses because Westbrook presented limited evidence at the 

advancement hearing. The third assignment of error stated the trial court erred in 

finding the Bonner Companies were in contempt because the advancement order was 

erroneously issued. We affirmed the trial court’s decision to find the Bonner 

Companies were in contempt in Westbrook v. Swiatek, 5th Dist. No. 2009 CAE 05 

0048, 2010-Ohio-2868 (“Westbrook II”). The Ohio Supreme Court declined jurisdiction 

to hear the case. 

{¶16} Westbrook filed a second amended complaint on February 12, 2008. 

Count ten of the complaint requested indemnification and contribution from Valerie 

Swiatek only pursuant to common law and statute. In count eleven, Westbrook 

requested contractual indemnification against Alum Creek, Rennob, and Whittington 

pursuant to the corporate regulation Section 5.01. 
{¶17} The Bonner Daughters and the Bonner Companies filed a motion for 

summary judgment as to all claims asserted by Westbrook. The trial court granted 

summary judgment in favor of the Bonner Daughters and the Bonner Companies as to 

twelve counts of Westbrook’s second amended complaint. The trial court denied 

summary judgment as to breach of contract against the Bonner Daughters, 

indemnification against Valerie Swiatek, and indemnification against Alum Creek, 

Rennob, and Whittington. The indemnification claims were reserved for hearing after 

a trial on the merits on the remaining breach of contract cause of action. 

{¶18} The claim of breach of contract against the Bonner Daughters proceeded 

to a jury trial. The trial court granted the Bonner Daughters’ motion for directed verdict 

pursuant to Civ.R. 50(A) and entered judgment in their favor. 

{¶19} Westbrook appealed the disposition of his claims against the Bonner 

Daughters and the Bonner Companies in Westbrook v. Swiatek, 5th Dist. No. 09 CAE 

09 0083, 2011-Ohio-781 (“Westbrook III”). This court affirmed the decisions on 

February 14, 2011. 

{¶20} On April 28, 2011, the trial court held a hearing on Westbrook’s claim for 

indemnification against Alum Creek, Rennob, and Whittington. At the hearing, only 

three witnesses testified: John McDonald, Westbrook’s expert; Jud Scheaf, 

Westbrook’s attorney; and Anthony Heald, Westbrook’s attorney. The parties filed 

pre-hearing and post-hearing briefs. 

{¶21} Upon consideration of the evidence presented at the hearing and the 

briefs, the trial court issued its decision on August 17, 2011 to award Westbrook 

indemnification of litigation expenses in the amount of $453,374.04, plus post-
judgment interest and pre-judgment interest in the amount of $40,514.27. The trial 

court previously awarded Westbrook advancement of expenses on December 10, 

2008 and February 14, 2011 in the amount of $391,362.31. The trial court ordered 

Alum Creek, Rennob, and Whittington to immediately pay Westbrook $102,526. 

{¶22} Upon motion of Alum Creek, Rennob, and Whittington, the trial court 

amended the August 18, 2011 judgment entry to delete the statement that the parties 

were to immediately pay Westbrook. Instead, the trial court granted a judgment for 

Westbrook and against Alum Creek, Rennob, and Whittington as to Count 11 of 

Westbrook’s complaint in the amount of $102,526. 

{¶23} It is from this judgment Alum Creek, Rennob, and Whittington now 

appeal. 

ASSIGNMENTS OF ERROR 

{¶24} Alum Creek, Rennob, and Whittington raise three Assignments of Error: 

{¶25} “I. THE TRIAL COURT ERRED IN AWARDING WESTBROOK 

INDEMNIFICATION FOR FEES AND EXPENSES HE INCURRED IN RESPONSE TO 

CLAIMS BROUGHT BY COMPANIES THAT HAD NO INDEMNIFICATION BYLAWS 

AND FOR CLAIMS THAT HAD NOTHING TO DO WITH HIS FORMER POSITION AS 

AN OFFICER THEREBY FAILING TO ALLOCATE BETWEEN ‘COVERED’ AND 

‘NON-COVERED’ CLAIMS. 

{¶26} “II. THE TRIAL COURT ERRED IN MAKING A FACTUAL FINDING 

‘THAT ALL OF THE COUNTERCLAIMS AROSE ‘BY REASON OF THE FACT’ THAT 

THE PLAINTIFF SERVED AS A DIRECTOR, OFFICER...OF THE CORPORATION” 
WHERE THE PLAINTIFF PRESENTED NO SUCH EVIDENCE AND COUNSEL’S 

TESTIMONY ESTABLISHED THE OPPOSITE. 

{¶27} “III. THE TRIAL COURT ERRED IN THE CALCULATION OF PREJUDGMENT AND POST-JUDGMENT INTEREST WHICH WAS BASED UPON AN 

UNDERLYING FEE AWARD THAT WAS EXCESSIVE.” 

ANALYSIS 

I., II. 

{¶28} For ease of discussion, we consider the first and second Assignments of 

Error together. Alum Creek, Rennob, and Whittington argue in their first Assignment 

of Error the trial court erred in failing to allocate between covered and non-covered 

counterclaims when it granted Westbrook indemnification for attorney’s fees and 

expenses based his defense against all the counterclaims raised by the Bonner 

Companies. The parties contend in their second Assignment of Error, that Westbrook 

failed to establish the counterclaims arose by reason of the fact he was an officer or 

director of Alum Creek, Rennob, and Whittington. For the reasons that follow, we 

disagree. 

{¶29} Westbrook is a former officer of Alum Creek, Rennob, and Whittington. 

Alum Creek, Rennob, and Whittington are governed by corporate bylaws providing for 

advancement and indemnification of attorney’s fees and expenses if the officer or 

director is a party to a civil action by reason of the fact that he is or was a director, 

officer, employee, agent, or volunteer of the corporation. 

{¶30} In this case, ABL Group, Alum Creek, Cobbleton I and II, Whittington, 

and Rennob brought counterclaims against Westbrook. The trial court found in its 
August 18, 2011 judgment entry granting indemnification that the parties agreed 

Westbrook was entitled to indemnification for his fees and expenses incurred in 

defending the following counterclaims: (1) negligence claim asserted by Rennob; (2) 

breach of fiduciary duty claim in August 8, 2007 amended counterclaim; (3) fraud 

claim by Whittington; and (4) breach of fiduciary duty by Whittington. The remaining 

counterclaims were slander of title, contingent claim for breach of fiduciary duty to 

purported partnership, breach of fiduciary duty regarding Dominion sale, and tortious 

interference with contract regarding Dominion sale. The trial court held that all of the 

counterclaims arose “by reason of the fact” Westbrook was a director, officer, 

employee, agent, or volunteer of the corporation and were part of one action, suit, or 

proceeding. The trial court further determined the corporate regulations, authored by 

the corporate defendants, did not require the officer or director to separate the 

counterclaims. (Judgment Entry, Aug. 18, 2011.) 

{¶31} Alum Creek, Rennob, and Whittington cite to the “law of allocation” to 

argue Westbrook was required to allocate his litigation expenses for his defense of the 

counterclaims between those brought by the companies not covered by the corporate 

bylaws and those brought by the companies with corporate bylaws providing for 

indemnification. Alum Creek, Rennob, and Whittington state the party seeking 

recovery of attorney fees must allocate between the covered and non-covered claims 

and a failure to meet this burden will result in a denial of an award of attorney’s fees in 

its entirety. See Abel v. Keybank, U.S.A., N.A., N.D.Ohio No. 03 CV 524, 2005 WL 

2216938 (Sept. 12, 2005); Inserra v. J.E.M. Bldg. Corp., 9th Dist. No. 2973-M, 2000 

WL 1729480 (Nov. 22, 2000). 
{¶32} This court reviewed the parties’ “law of allocation” argument in 

Westbrook II. As stated in the facts above, Westbrook sought an advancement of the 

legal fees for his defense of the counterclaims of the Bonner Companies. Westbrook 

based his motion for advancement on Sec. 5.05 of the corporate bylaws. The trial 

court awarded Westbrook attorney’s fees and expenses to be paid by January 12, 

2009, but deferred the final hearing on indemnification until after the trial occurred in 

the case. The judgment was not paid and Westbrook filed a motion to show cause. 

The trial court sustained Westbrook’s show cause motion. 

{¶33} Valerie Swiatek, Victoria Bonner, Deborah Boner, Whittington, Alum 

Creek, Rennob, and ABL Group appealed the contempt judgment in Westbrook II. 

While the parties raised assignments of error as to the law of contempt, the parties 

argued in their first and third assignments of error the basis of the trial court’s 

contempt finding, the advancement order, was in error. 

{¶34} The first assignment of error contended there was no evidence 

Westbrook was entitled to the advancement of fees and expenses. In support of the 

argument, the parties stated, “[p]laintiff submitted no evidence of allocation between 

‘covered’ and ‘non-covered’ claims.” The parties argued that only four counterclaims 

were covered by the advancement and indemnification provisions of the corporate 

bylaws. When Westbrook requested the advancement of his attorney’s fees and 

expenses pursuant to the corporate bylaws, he was required to allocate between the 

covered and non-covered counterclaims. 
{¶35} In reviewing the parties’ arguments in Westbrook II, we analyzed 

advancement and indemnification provisions as provided by statute and by the 

corporate bylaws. We stated: 

 R.C. 1701.13(E)(2) provides for indemnification of corporate 

officers. It states: 

 A corporation may indemnify or agree to indemnify any person 

who was or is party ... to any threatened, pending or completed action or 

suit by or in the right of the corporation to procure a judgment in its favor, 

by reason of the fact that he is or was a director, officer, employee, or 

agent of the corporation ... against expenses, including attorney's fees, 

actually and reasonably incurred by him in connection with the defense 

or settlement of such action or suit, if he acted in good faith and in a 

manner he reasonably believed to be in or not opposed to the best 

interests of the corporation ...” 

 The statute further provides that the corporation may agree to pay 

these fees and expenses in such proceedings “in advance of the final 

disposition of the action, suit or proceeding, as authorized by the 

directors in the specific case, upon receipt of an undertaking by or behalf 

of such ... officer ... to repay such amount if it shall ultimately be 

determined that he is not entitled to be indemnified by the corporation.” 

R.C. 1701.13(E)(5). This right is commonly referred to as 

“advancement.” 
 Indemnification and advancement statutes were enacted to attract 

qualified candidates into corporate service by protecting their personal 

assets from depletion by litigation that results from that service and to 

develop sound corporate management. William Knepper & Dan Bailey, 

Liability of Corporate Officers and Directors, (7th ed.), Volume 2, Section 

22.01. Advancement is a corollary remedy to indemnification by 

providing immediate funds to officers for ongoing litigation expenses, 

which may become significant, prior to the outcome on the merits. The 

right to indemnification or recoupment is established after the merits are 

determined by a jury or court. Under some circumstances, such as here, 

a corporation may be reluctant to advance funds to an officer who is 

perceived by the corporation as being unfaithful, or fear the funds will 

never be paid back. 

 Ohio law does not require corporations to provide indemnification 

or advancement: it just gives them the power to do so. It is undisputed 

that the corporate Appellants opted to do so in this case. 

* * * 

 The Ohio Supreme Court has held that the rules and regulations 

of an Ohio corporation, not in contravention of any statutory provision, 

have the force of “contracts” as between the corporation and its 

members and as between the members themselves. Knight v. Shutz

(1943) 141 Ohio St. 267, 47 N.E.2d 886, citing with approval State ex. 
Rel. Schwab, Pros. Atty., v. Price (1929) 121 Ohio St. 114, 167 N.E. 366, 

syllabus. 

 Therefore, this is essentially a matter concerning the contractual 

interpretation of the indemnification and advancement provisions to be 

followed by the parties as set forth in the corporate regulations. 

Westbrook II, 5th Dist. No. 2009 CAE 05 0048, 2010-Ohio-2868, ¶21-25, 28-29. 

{¶36} Upon our review of the trial court’s fee award and the arguments on 

appeal, we affirmed the trial court’s decision to award Westbrook advancement of his 

fees and expenses. 

{¶37} In the present appeal, Alum Creek, Rennob, and Whittington argue 

Westbrook’s claim for indemnification must fail because he did not allocate between 

the covered and non-covered counterclaims. Westbrook counters this court should 

apply the law of the case doctrine to overrule the parties’ first Assignment of Error 

because we have already examined and overruled the law of allocation argument as 

applied to Westbrook’s claim for advancement in Westbrook II. 

{¶38} In Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 

329, the Ohio Supreme Court discussed the law of the case doctrine and stated as 

follows: 

 The law of the case is a longstanding doctrine in Ohio 

jurisprudence. “[T]he doctrine provides that the decision of a reviewing 

court in a case remains the law of that case on the legal questions 

involved for all subsequent proceedings in the case at both the trial and 

reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d at 3, 11 OBR 1, 462 
N.E.2d 410. The doctrine is necessary to ensure consistency of results 

in a case, to avoid endless litigation by settling the issues, and to 

preserve the structure of superior and inferior courts as designed by the 

Ohio Constitution. State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 

29, 32, 13 O.O.3d 17, 391 N.E.2d 343. 

Hopkins, ¶ 15. 

{¶39} We do not find persuasive the argument that the law of the case doctrine 

resolves the issue. In Westbrook II, we stated, “[t]he Appellants’ dismissal of the 

counterclaims did not convert the trial court’s rulings into a ruling on Westbrook’s claim 

for indemnification, which is a separate and distinct legal claim. In addition, the trial 

court stated: ‘[t]he Court hereby defers the final hearing on indemnification until after 

the trial occurs in this case.’” Westbrook II, 5th Dist. No. 2009 CAE 05 0048, 2010-

Ohio-2868, ¶44. 

{¶40} Indemnification is a separate and distinct legal claim from advancement, 

barring us from utilizing the law of the case doctrine. However, we find Westbrook II

provides guidance in determining the applicability of the law of allocation to 

Westbrook’s claim for indemnification. 

{¶41} In this appeal, we have the same parties, the same corporate bylaws, 

and most significantly, the same counterclaims as those analyzed in Westbrook II. 

The parties in Westbrook II argued Westbrook was not entitled to advancement under 

the corporate bylaws because he did not allocate between the covered and noncovered counterclaims. The parties in the present appeal argue Westbrook is not 

entitled to indemnification because he did not allocate between the covered and non-
covered counterclaims. While indemnification is a separate and distinct legal claim, in 

this case, indemnification and advancement as provided for in the corporate bylaws 

are the opposite sides of the same coin. 

{¶42} Based on the authority of Westbrook II, we find the trial court did not err 

in finding Westbrook was not required to allocate the counterclaims in order to be 

entitled to indemnification of his legal fees and expenses. 

{¶43} As to the second Assignment of Error, we find this analysis to be 

applicable to the trial court’s finding Westbrook was entitled to indemnification by 

reason of the fact he was a director, officer, employee, agent, or volunteer of the 

corporation. 

{¶44} The first and second Assignments of Error of Alum Creek, Rennob, and 

Whittington are overruled. 

III. 

{¶45} Alum Creek, Rennob, and Whittington argue in their third Assignment of 

Error the trial court erred in awarding pre-judgment and post-judgment interest 

because the underlying award for indemnification was in error.

{¶46} Based upon our disposition of the first and second Assignments of Error, 

we overrule the third Assignment of Error.
CONCLUSION 

{¶47} For the foregoing reasons, we overrule the first, second, and third 

Assignments of Error of Defendants-Appellants, Alum Creek, Rennob, and 

Whittington. 

{¶48} The judgment of the Delaware County Court of Common Pleas is 

affirmed. 

By: Delaney, P.J. 

Hoffman, J. and 

Farmer, J. concur. 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. SHEILA G. FARMER 

 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

WILLIAM WESTBROOK 

 

 Plaintiff - Appellee 

 

-vsVALERIE SWIATEK, et al. 

:

:

:

:

:

:

:

:

:

 JUDGMENT ENTRY 

 Case No. 11 CAE 09 0080 
 Defendants-Appellants 

 

:

:

:

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellants. 

 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. SHEILA G. FARMER