Wheatt et al v. City of East Cleveland et al

Filing 418

Order signed by Judge James S. Gwin on 5/11/2020. The Court disqualifies East Cleveland Law Director from continued representation of defendants Johnstone and Perry. The Court orders defendants Johnstone and Perry to obtain new representation within 30 days of this order. New counsel must file a response to Plaintiff's motion for judgment within 21 days of appearing. (S,KM)

Case: 1:17-cv-00377-JG Doc #: 418 Filed: 05/11/20 1 of 4. PageID #: 9050

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------------------DERRICK WHEATT, et al.,
:
:
Plaintiffs,
:
:
vs.
:
:
CITY OF EAST CLEVELAND, et al.,
:
:
Defendants.
:
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CASE NOS. 1:17-CV-377 &
1:17-CV-611 (consolidated)
OPINION & ORDER

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene Johnson brought this civil
rights action claiming that Defendants Vincent Johnstone and Michael Perry 1 violated their
constitutional rights. As part of this action, Plaintiffs also sued the City of East Cleveland,
Johnstone and Perry’s employer, claiming that the City had to indemnify Defendants
Johnstone and Perry. 2
East Cleveland’s Law Director, Willa Hemmons, represented all three Defendants.
The case went to trial. On November 15, 2018, a jury returned a $15 million
verdict for the Plaintiffs. 3
After trial, Plaintiffs moved for judgment on their indemnification claim against the
City of East Cleveland. 4 Plaintiffs said Ohio Revised Code § 2744.07(B) required public

1

Defendant Michael Perry passed away on December 9, 2018. Doc. 393. On October 22, 2019, the Court
substituted Karen Perry, as Executor of Michael Perry’s Estate, as the Defendant in place of Michael Perry.
Doc. 404.
2
Plaintiffs also asserted state law claims for indemnification against the Defendant City of East Cleveland.
Doc. 1 (in No. 1:17-CV-377) ¶¶ 255-57; Doc. 1 (in No. 1:17-CV-611) ¶¶ 260-62.
3
Doc. 349.
4
Doc. 375.

Case: 1:17-cv-00377-JG Doc #: 418 Filed: 05/11/20 2 of 4. PageID #: 9051
Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
entities, such as East Cleveland, to pay the judgments entered against their employees, here
Defendants Perry and Johnstone. 5
Defendants, all three of whom were still represented by Hemmons, jointly opposed
Plaintiffs’ motion. 6 Defendants argued, inter alia, that the Court should deny Plaintiffs’
motion because “the law on the Indemnification [sic] issue” was unsettled, but would be
addressed in a case contemporaneously pending before the Ohio Supreme Court 7—Ayers

v. City of Cleveland. 8
The Court held Plaintiffs’ motion for judgment on the indemnification claim in
abeyance pending the Ohio Supreme Court’s decision in Ayers. 9 In its abeyance decision,
the Court observed “that it is completely improper for the City of East Cleveland to
represent Defendants Johnstone and Perry on this issue.” 10 The Court said, “Because
Defendants Johnstone and Perry have a conflicting interest in whether to contest
indemnification, East Cleveland’s representation presents an obvious conflict of interest.”11
On March 25, 2020, the Ohio Supreme Court issued an opinion in Ayers. 12
Plaintiffs then renewed their motion for judgment on the indemnification claim. 13
Defendants again jointly opposed the motion, implying that the City need not indemnify
Perry and Johnstone. 14

5
6
7

Id.

Doc. 376.

Id.

2020-Ohio-1047. In Ayers v. City of Cleveland, the Ohio Supreme Court considered whether Ohio Revised
Code § 2744(A)(2) gives a judgment creditor standing to proceed directly against a municipality when the
employee does not seek indemnification. Id.
9
Doc. 394.
8

Id.
Id.
12
Ayers, 2020-Ohio-1047.
10
11

13
14

Doc. 414.
Doc. 415.

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Case: 1:17-cv-00377-JG Doc #: 418 Filed: 05/11/20 3 of 4. PageID #: 9052
Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
As the Court observed in its prior order, it remains patently inappropriate and
unethical for the City of East Cleveland’s Law Director to represent Perry and Johnstone on
the indemnification issue. The City’s interests are directly adverse to Perry and Johnstone’s
interests. With the personal judgment against Perry and Johnstone, they are individually
liable to pay. East Cleveland’s indemnification argument prejudices Perry and Johnstone.
The Ohio Rules of Professional Conduct apply in this Court. 15 Ohio Rule of
Professional Conduct 1.7(b) provides that a lawyer must not “continue the representation of
a client if a conflict of interest would be created.” 16 A conflict of interest exists if the
representation of one client would be “directly adverse to another current client.” 17
Hemmons’s continued representation of Defendants Johnstone and Perry is a
flagrant violation of the standards of professional conduct, especially given the Court’s
earlier order noting the inappropriateness of continued joint representation.
“Trial courts have the ‘inherent power to disqualify an attorney from acting as
counsel in a case when the attorney . . . will not comply with the Code of Professional
Responsibility and when such action is necessary to protect the dignity and authority of the
court.’” 18 The Court finds it necessary to exercise its inherent authority here.
ORDER
The Court DISQUALIFIES East Cleveland Law Director Willa Hemmons from
continued representation of Defendants Johnstone and Perry. The Court ORDERS
Hemmons to immediately provide Defendants Johnstone and Perry with a copy of this
15

Loc. R. 83.7(a).
OH ST R.P.C. 1.7(b). There are certain exceptions to this rule, none of which are applicable here.
17
OH ST R.P.C. 1.7(a).
18
Holbrook v. Benson, 3 N.E. 3d 788, 791 (Ohio App. 5th 2013) (quoting Horen v. Toledo Pub. Sch. Dist.
Bd. of Edn., 882 N.E.2d 14, ¶ 21 (Ohio App. 6th 2007)).
16

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Case: 1:17-cv-00377-JG Doc #: 418 Filed: 05/11/20 4 of 4. PageID #: 9053
Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
Order and to file a statement with the Court notifying the Court that she has done so.
Hemmons must then cease representation of Defendants Johnstone and Perry.
The Court ORDERS Defendants Johnstone and Perry to obtain new representation
within 30 days of the date of this order. Defendants Johnstone and Perry’s new
representation must file a response to Plaintiff’s motion for judgment on the
indemnification claim within 21 days of appearing.
IT IS SO ORDERED

/

Dated: May 11, 2020

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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