Michael A. Lawrence James Gibian, City of Cleveland, Michael … · Michael A. Lawrence, hereby give notice of their appeal as of right to the Supreme Court of Ohio from the Decisions

16^7

IN THE SUPREME COURT OF OHIO

STATE ex rel. THE CITYOF CLEVELAND, et al. 13 - 0866

Relators-Appellants,

V.

THE HONORABLE JUDGEMICHAEL ASTRAB

Respondent-Appellee

On Appeal of Right from the CuyahogaCounty Court of Appeals,Eighth Appellate District

Court of AppealsCase No. 12-AP-098608

NOTICE OF APPEAL OF RELATORS-APPELLANTS CITY OF CLEVELAND,MICHAEL MCGRATH, JAMES GIBIAN, PATRICK J. MCCLAIN AND

MICHAEL A. LAWRENCE

BARBARA A. LANGHENRY ( 0038838)

Director of Law

TIMOTHY J. MCGINTYProsecuting Attorney ofCuyahoga County, Ohio

Awatef Assad (0065535) (Counsel of Record)Assistant Director of LawDepartment of Law, City of Cleveland601 Lakeside Avenue, Rm.106Cleveland, OH 44114(216) 664-2800(216) 664-2663 (fax)[email protected]

Counsel for Relators-AppellantsCity of Cleveland, Michael McGrath,

James Gibian, Patrick J. McClain, and

Michael A. Lawrence

NORA E. GRAHAM (Counsel of Record)

(0079609)Assistant County Prosecutor8th Floor, Justice Center1200 Ontario StreetCleveland, Ohio 44113(216) 443-7814(216) 443-7602 (fax)[email protected]

Counsel for Respondent-AppelleeThe Honorable Judge Michael Astrab

MAY 3 0 2013CLEKK UF COURT

SUPREME COURT OF OHIO

NOTICE OF APPEAL OF RELATORS-APPELLANTS CITY OF CLEVELAND,MICHAEL MCGRATH, JAMES GIBIAN, PATRICK J. MCCLAIN, AND

MICHAEL A. LAWRENCE

Relators-Appellants, City of Cleveland, Police Chief Michael McGrath, Cleveland Police

Sergeant James Gibian, Cleveland Police Officer Patrick J. McLain and Cleveland Police Officer

Michael A. Lawrence, hereby give notice of their appeal as of right to the Supreme Court of

Ohio from the Decisions and Judgment Entries of the Cuyahoga County Court of Appeals,

Eighth Appellate District, entered in State of Ohio ex rel. City of Cleveland et al., v. Judge

Michael Astrab, Court of Appeals Case No. 12-AP-098608, which were announced and

journalized on April 19, 2013.

Specifically, Appellants hereby appeal the Eighth District's Decisions and Judgment

Entries Denying the City of Cleveland, Police Chief Michael McGrath, Cleveland Police

Sergeant James Gibian, Cleveland Police Officer Patrick J. McLain, and Cleveland Police

Officer Michael A. Lawrence's Petition and Complaint for Writ of Mandamus, Relators' Motion

for summary judgment, and Relators' Application for Peremptory Writ of Mandamus, or In the

Alternative, an Alternate Writ of Mandamus, as well as the court's correcting entries filed April

23, 2013. Said judgment entries are attached. Appellants further appeal the Eighth District's

Decision and Judgment Entry granting Respondent's Motion for Summary. Said judgment entry

is also attached, as well as the court's correcting entry filed April 23, 2013.

Pursuant to S.Ct.Prac.R. 5.01(A)(3), this appeal constitutes an "appeal of right" because

this action originated in the Cuyahoga County Court of Appeals, Eighth Appellate District, and

invokes the appellate jurisdiction of the Supreme Court.

2

Respectfully submitted,

BARBARA LANGHENRY (0038838)Director of Law

17

By:AWATEF SAD (0065535)Assistant Director of LawCity of Cleveland, Department of Law601 Lakeside Avenue, Room 106Cleveland, Ohio 44114-1077Tel: (216) 664-2716Fax: (216) 664-2663E-mail: aassadgcity.cleveland.oh.us

Counsel for Relators-AppellantsCity of Cleveland, Michael McGrath,James Gibian, Patrick J. McClain, andMichael A. Lawrence

3

CERTIFICATE OF SERVICE

A copy of the foregoing Notice of Appeal was mailed this ^ day of May, 2013,

regular U.S. mail, postage prepaid to:

Nora E. GrahamAssistant County Prosecutor8tb Floor, Justice Center-Courts Tower1200 Ontario StreetCleveland, OH 44113Counsel for Respondent-Appellee

And

Rhonda Baker Debevec, Esq.William B. Eadie, Esq.Spangenberg Shibley & Liber, L.L.P.1001 Lakeside Avenue, EastSuite 1700Cleveland, OH 44114Counsel for Amici CuriaeNicholas DiGirogio, et al.

Awatef Assa- 00655 5)Assistant Di ctor of Law

4

APR 19 2013,

Court of Appeals of Ohio, Eighth District

County of CuyahogaAndrea Rocco, Clerk of Courts

S/O EX REL., CITY OF CLEVELAND, ETAL

ORIGINAL ACTION

THE HONORABLE JUDGE MICHAEL ASTRAB

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Date 04/19/13

Journal

Writ denied. See Journal Entry and Opinion of-same date.

FILED AND JOURNALIZED

PER APP,R, 22(C)

APR 19 2013

C H "To CL ERKOFTH PPEALSBy Deputy

Presiding Judge KATHLEEN ANN KEOUGH,Concurs

Judge KENNETH A. ROCCO, Concurs ^-^- LEILEEN T. GALLAG ERJudge

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Relator

Respondent

COA NO.98608

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ORIGINAL ACTION

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MOTION NO. 458987

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Motion by Relators for summary judgment is denied. See journal entry and opinion of same date.

FILED AND JOURNALIZEDPER APP.R. 22(C)

APR19 2013

CUY 0 ' CLERKOFTH 7 F^ PPEALSBy Deputy

Presiding Judge KENNETH A. ROCCO,Concurs

Judqe KATHLEEN ANN KEOUGH, ConcursEILEEN T. GALLAGHERJudge

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Relator

-vs-

COA NO.98608

ORIGINAL ACTION


Respondent MOTION NO. 457459

Date 04/19/13

Journal

Motion by Respondent for summary judgment is granted. See journal entry and opinion of same date

FILED AND JOURNALIZEDPER APP.R. 22(C)

APR 20 13

CUYAH N Y CLERKOFTHE 0 R 0 PEALSBy I Deputy

Presiding Judge KATHLEEN ANN KEOUGH,Concurs

Judge KENNETH A. ROCCO, Concurs •(If `• ^

EILEEN T. GALLAG ERJudge

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Relator COA NO.98608

ORIGINAL ACTION

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Date 04/19/13

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Application by Relators for peremptory writ of mandamus or in the alternative, an alternate writ of ...^

....^.^^mandamus is denied.

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iiECEIVED FOR 'FILING'

p-pR192-Q13

CUYA 0 CLERK.ALSPEOF TH C IOKBy peputY

Presiding Judge KATHLEEN ANN KEOUGH,

Concurs

Judge KENNETH A . ROCCO, Concurs t i • ^ ^----EILEEN T. GALLAGHERJudge

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Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Andrea Rocco, Clerk of Courts


Relator

-vs-


Respondent

Date 04/23/13,

COA NO.98608

ORIGINAL ACTION

MOTION NO. 464332

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APR 2 3 2013

C A C U JT'f CLERKO F APPEALS

By Gep^Y

Journal

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Sua sponte, the following orders, as rendered by this court on April 19, 2013, are corrected nunc pro tunc,

as follows:

1) Motion No. 462058 - "Writ denied. See journal Entry and Opinion of same date." - Judge Kenneth A.Rocco is the Presiding Judge and Judge Kathleen Ann Keough concurs in judgment only;

2).Motion No. 459890 - " Motion by Relators for leave to file repfy brief instanter in support of their motionfor summary judgment is granted." - Judge Kenneth A. Rocco is the Presiding Judge;

3) Motion No. 456397 - "Application by Relators for peremptory writ of mandamus or in the alternative, analtemative writ of mandamus, is denied." - Judge Kenneth A. Rocco is the Presiding Judge and JudgeKathleen Ann Keough concurs in judgment only;

4) Motion No. 458987 - "Motion by Relators for summary judgment is denied. See joumai entry andopinion of same date." - Judge Kenneth A. Rocco is the Presiding Judge and Judge Kathleen Ann Keoughconcurs in judgment only; and

5) Motion No. 457459 - "Motion by Respondent for summary judgment is granted. . See journal entry andopinion of same date." - Judge Kenneth A. Rocco is the Presiding Judge and Judge Kathieen Ann Keoughconcurs in judgment only.

The opinion, as journalized on April 19, 2013, remains unchanged.

Presiding Judge KENNETH A. ROCCO,Concurs

Judge KATHLEEN ANN KEOUGH, ConcursEILEEN T. GALLAGHERJudge

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APR 19 2013,

Cuurt of tppEats of bioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 98608

STATE, EX REL. CITY OF CLEVELAND, ET AL.

RELATORS

vs.

JUDGE MICHAEL ASTRAB

RESPONDENT

JUDGMENT:W- -RIT -D- ENIED

Writ of MandamusMotion Nos. 457459 and 458987

Order No. 462058

RELEASE DATE: April 19, 2013

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ATTORNEYS FOR RELATORS

Barbara LanghenryDirector of LawAwatef AssadAssistant Law DirectorJoseph F. ScottChief Assistant Director of LawCity of Cleveland601 Lakeside Avenue, Room 106

Cleveland, Ohio 44114

ATTORNEYS FOR RESPONDENT

Nora E. GrahamAssistant County Prosecutor8th Floor, Justice Center1200 Ontario StreetCleveland, Ohio 44113

Rhonda Baker DebevecWilliam B. EadieSpangenberg Shibley & Liber, L.L.P.1001 Lakeside Avenue, EastSuite 1700Cleveland, Ohio 44114 FILED AND JOURNALIZED

PER APP,R. 2.2(C)

,9k 19, 2013

CUY. 0 A 0 CLERKOF T^ì C T ^PPEALSBy J Deputy

EILEEN T. GALLAGHER, J.:

{¶ 1} The relators, which consist of the city of Cleveland, Cleveland Police

Chief Michael McGrath, Cleveland Police Sergeant James Gibian, Cleveland

Police Officer Patrick J. McLain, and Cleveland Police Officer Michael A.

Lawrence, have filed a complaint for a writ of mandamus. The relators seek an

order from this court that requires the respondent, Judge Michael Astrab, to

comply with the mandate of this court as rendered in DiGiorgio v. Cleveland, 8th

Dist. No. 95945, 2011-Ohio-5878 ("DiGiorgio II"). For the following reasons, we

decline to issue a writ of mandamus on behalf of the relators.

FACTS

{¶ 2} The facts, which are pertinent to this original action in mandamus,

are gleaned from the relators' complaint for a writ of mandamus, the

respondent's motion for summary judgment, the relators' brief in opposition to

the respondent's motion for summary judgment, the relators' motion for

summary judgment, the respondent's brief in opposition to the relators' motion

for summary judgment, and the relators' reply brief in support of their motion

for summary judgment:

1) On August 4, 2007, Joseph DiGiorgio and Virginia DiGiorgio were

pedestrians crossing Prospect Avenue near its intersection with E. 14th Street,

Cleveland, Ohio.

2) Virginia DiGiorgio was struck and killed by a stolen automobile that

was being pursued by two Cleveland Police Officers.

3) On August 4, 2009, a lawsuit was filed in the Cuyahoga County Court

of Common Pleas by Joseph DiGiorgio and Virginia DiGiorgio, the deceased,

against the relators, the driver of the automobile, and the passengers of the

automobile that struck the deceased. See DiGiorgio v. Cleveland, Cuyahoga C.P.

No. CV-700625 ("DiGiorgio I").

4) The complaint, as filed in the Cuyahoga County Court of Common Pleas,

contained ten counts:

A) Count 1- Cleveland Police Officers acted negligently, recklessly,

willfully and/or wantonly in their initiation, continuation, and manner in

conducting a high speed pursuit of a stolen motor vehicle.

B) Count 2 - city of Cleveland and the Cleveland Police Chief

recklessly, willfully, and wantonly failed to provide appropriate and necessary

training with regard to the pursuit of suspects.

C) Count 3 - Cleveland Police Chief recklessly, willfully and/or

wantonly failed to ensure that Cleveland Police Officers were adequately trained

with regard to the proper pursuit of suspects.

D) Count 4 - city of Cleveland and Cleveland Police Chief

recklessly, willfully and/or wantonly failed to ensure that Cleveland Police

Officers were adequately supervised.

E) Count 5 - city of Cleveland, Cleveland Police Chief and

Cleveland Police Sergeant directly participated and/or implicitly authorized,

approved and/or knowingly acquiesced to the Cleveland Police Officers' conduct

during the high speed chase, that demonstrated a deliberate indifference to the

public's safety.

F) Count 6 - directed at driver and passengers of the automobile

and not relevant to this original action.

G) Count 7 - directed at driver and passengers of the automobile

and not relevant to this original action.

H) Count 8- a survivorship claim based on any pain and suffering

experienced by the decedent before her death.

I) Count 9 - negligent infliction of emotion distress

J) Count 10 - loss of consortium

5) On October 2, 2009, the relators filed a joint answer denying liability

with preservation of the affirmative defense of immunity pursuant to R.C.

Chapter 2744.

6) On June 2, 2010, the relators filed a joint motion to dismiss and/or

motion for judgment on the pleadings based upon a claim of sovereign immunity

per R.C. Chapter 2744.

7) On October 15, 2010, the relators' motion to dismiss and/or motion for

judgment on the pleadings was denied.

8) On October 29, 2010, the relators appealed the denial of their motion to

dismiss and/or motion for judgment on the pleadings and raised two assignments

of error.

9) On November 10, 2011, this court, in DiGiorgio II, held that the trial

court erred by denying the joint motion to dismiss and/or motion for judgment

on the pleadings and reversed the ruling on the issue of sovereign immunity per

R.C. Chapter 2744. This court held that:

Because no exception to immunity applies to appellees' second,third, fourth, and fifth causes of action, the City is immune fromliability. Likewise, Chief McGrath and Sergeant Gibian arestatutorily immune on these claims as asserted against them intheir official capacities. It is well settled that a suit against anemployee of a political subdivision in the employee's official capacityis an action against the entity itself and the employees are entitledto the same immunity due the political subdivision.

Finally, because there is no exception to immunity for the training,supervision, or discipline of police officers, appellees' assertion thatit should be allowed to amend its complaint is without merit because

any amendment would be futile.

In their second assignment of error, the municipal defendants arguethat appellees' attempts to evade the City's immunity and to imposeindividual liability on Chief McGrath and Sergeant Gibian byalleging reckless and wanton misconduct fails because thecomplaint does not allege sufficient facts to establish such conduct.Hence, they contend that the trial court should have granted theirmotion for judgment on the pleadings with respect to appellees' firstcause of action, as well as the second, third, fourth, and fifth causesof action as asserted against Chief McGrath and Sergeant Gibian intheir individual capacities. They further contend that the eighth,

ninth, and tenth causes of actions fail as well.

"While a complaint attacked by a * * * motion to dismiss does notneed detailed factual allegations, the [plaintiffs'] obligation toprovide the grounds for their entitlement to relief requires more

than labels and conclusions, and a forallegations mustelements of a cause of action will not do. Factual

be enough to raise a right to relief abo^hat are ntlsupported'byConclusory statements in a complaintfacts are not afforded the presumption of veracity and are

insufficient to withstand a motion to dismiss.they"While

msbeconclusions can provide the framework of a c plaint,supported by factual allegations" to survive a motion to dismiss.

Here, appellees' complaint alleges willful and wanton misconductbut does not allege sufficient facts to support that conclusion. Thefactual allegations of the complaint allege only that as she wascrossing Prospect Avenue with her husband, Virginia DiGiorgio wasstruck and killed by someone driving a stolen car that was beingpursued by the police. These "circumstances" do not demonstratewillful and wanton misconduct by the police. The fact that an

individual was struck and killed by a stolen vehiclenstrate willful and

the police is not sufficient, by itself, to dwanton misconduct. Appellees' allegation that the officers' highspeed chase was willful and wanton "under the circumstances" ismerely a conclusory statement about the officers' conduct that isdesigned to evade the City's immunity, but is not supported bysufficient factual allegations. As the municipal defendants argue intheir brief, "[appellees'] complaint only parrots an exception toimmunity without suggesting facts to support that legal conclusion."

We are not persuaded by appellees' argument that their factual

allegations sufficiently alleged willful and wanton misconductbecause the complaint alleged that the officers engaged in a high-speed pursuit of "a 13-year-old in the city's theater district." The

complaint never mentions Hairston's age, mention that thethe stolen car was a juvenile, and it makes noDiGiorgios were in the "theater district." Accordingly, the first

cause of action should have been dismissed.

^*^

Because the scant factual allegations of appellees' complaint areinsufficient to allege any exception to immunity regarding theofficers' operation of their motor vehicle, the City is immune fromliability, and the trial court should have granted the motion todismiss with respect to the first cause of action. Because the City isimmune from liability, Count 8, the survivorship claim relating toany pain and suffering experienced by Virginia DiGiorgio before shedied, necessarily fails, and the trial court should have also dismissed

that count.

Civ.R. 8(A) requires a complaint to contain "a short and plainstatement" of operative facts demonstrating "that the party isentitled to relief[.]" "[T]he pleading standard Rule 8 announces doesnot require `detailed factual allegations,' but it demands more thanan unadorned, the-defendant-unlawfully-harmed-me accusation. Apleading that offers `labels and conclusion' or à formulaic recitationof the elements of a cause of action will not do.' Nor does a complaintsuffice if it tenders `naked assertions[s]' devoid of `further factual

enhancement."'

Here, even under the broad notice-pleading requirements of Civ.R.8, it is apparent that, as with Count 1, appellees' assertions ofreckless and/or willful and wanton conduct in Counts 2 through 5 ofthe complaint are merely "naked assertions" unsupported by anyfactual allegations. Appellees' assertions merely allege an exceptionto immunity, without any factual allegations demonstrating recklessor willful and wanton behavior by Chief McGrath or SergeantGibian. Hence, they are insufficient to withstand a motion to

dismiss.

Appellants' second assignment of error is sustained.

Judgment reversed. (Citations omitted.) DiGiorgio II, ¶ 32.

10) On April 25, 2011, the respondent issued an order that dismissed all

claims raised against the relators in DiGiorgio I. The order provided that:

By mandate of the 8th District Court of Appeals, per a decisionissued November 10, 2011 (2011-Ohio-5878) in this matter, thecourt has been ordered to dismiss the following defendants from theaction: the city of Cleveland, Chief of Police Michael McGrath,Sergeant James Gibian, Officer Patrick J. McLain and OfficerMichael A. Lawrence. The court further dismisses, per the mandateof the Court of appeals, counts 1 through 5 of the complaint in theirentirety and dismisses counts 8, 9, and 10 as they relate to anyallegations against the above-named defendants. This actionremains pending against all remaining defendants. The dismissalsherein are without prejudice and are otherwise than upon the

merits. * * *

11) On April 25, 2011, the respondent also issued an order that provided

that:

Plaintiff(s) Nicholas DiGiorgio (P1) and Joseph DiGiorgio (P2)renewed motion for leave to file pltfs' first amended complaint,instanter, with memorandum in support, filed 04/06/2012, is deniedas moot. The Eighth District Court of Appeals, on 11/10/11, issueda decision reversing the decision of a prior judge that denied amotion for judgment on the pleadings with regard to immunity ofthe municipal defendants in this action. This court has conducteda detailed reading of the decision and is of the position that it isunder a mandate from the Court of Appeals to dismiss themunicipal defendants from this action. No dicta existed in thedecision with regard to remand or allowance for further hearing onmotions that relate to the municipal defendants. As the plaintiffs'motion for leave to file their first amended complaint relates tothose same municipal defendants, this court is of the position thatit is without jurisdiction to rule on the motion. As such, the motion

is denied as moot.

12) On May 17, 2012, the relators appealed the order of April 25, 2012,

which dismissed the relators from the civil action pending before the respondent.

See DiGiorgio v. Cleveland, 8th Dist. No. 98374.

13) On June 4, 2012, this court dismissed the appeal filed by the relators

in DiGiorgio v. Cleveland, 8th Dist. No. 98374, for lack of a final appealable

order and held that:

Sua sponte, the appeal and cross-appeal are dismissed per R.C.2505.02 and Civ.R. 54(B). A review of the order indicates thatclaims remain pending in the lower court and the court failed to findthat there is no just reason for delay. See Civ.R. 54(B). * * *

14) On June 27, 2012, the relators file a complaint for a writ of mandamus.

15) On August 6, 2012, the respondent filed a motion for summary

judgment with a supporting affidavit.

16) On September 28, 2012, the relators filed a joint motion for summary

judgment and brief in opposition to the respondent's motion for summary

judgment.

17) On October 18, 2012, the respondent filed a brief in opposition to the

relators' motion for summary judgment.

18) On November 2, 2012, the relators filed a reply brief in support of their

motion for summary judgment.

MANDAMUS: STANDARD OF REVIEW

{¶ 3} In order for this court to issue a writ of mandamus, the relators must

establish: (1) the relators possess a clear legal right to the requested relief; (2)

the respondent possesses a clear legal duty to perform the requested relief; and

(3) there exists no other adequate remedy in the ordinary course of the law.

State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-

6432, 838 N.E.2d 658; State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental

Retardation & Dev. Disabilities, 72 Ohio St.3d 205, 1995-Ohio-215, 648 N.E.2d

823; State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978);

State ex rel. Natl. City Bank v. Bd. of Edn., 52 Ohio St.2d 81, 369 N.E.2d 1200

(1977). Mandamus is an extraordinary remedy that is to be employed with

caution and only when the right is clearly established and should not be issued

in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d

1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113

N.E.2d 14 (1953); State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 614 N.E.2d

827 (4th Dist.1992). Mandamus shall not issue in doubtful cases. State ex rel.

Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th

Dist.1993). Finally, mandamus may be employed to require a lower court to

comply with and not proceed contrary to the mandate of a superior court. State

exrel. Jelinek v. Schneider, 127 Ohio St.3d 332, 2010-Ohio-5986, 939 N.E.2d 847;

State ex rel. Non-Emps. of Cateau Estates Resident Assn. v. Kessler, 107 Ohio

St.3d 197, 2005-Ohio-6182, 837 N.E.2d 778.

LEGAL ANALYSIS

J¶4) In the case sub judice, the relators argue that mandamus must issue

based upon the failure of the respondent to follow the mandate as rendered by

this court in DiGiorgio II. Specifically, the relators argue that the opinion

rendered by this court in DiGiorgio II required the respondent to dismiss all of

the relators from DiGiorgio I with prejudice. Thus, the relators argue that they

possess a clear legal right to be dismissed from DiGiorgio I, with prejudice, per

Civ.R. 41(B); the respondent possesses a clear legal duty to dismiss the relators

from DiGiorgio I, with prejudice, per Civ.R. 41(B); and, there exists no other

adequate remedy in the ordinary course of the law. We disagree.

{¶5} This court is in the best position to interpret our mandate and

determine whether the respondent followed the judgment as rendered in

DiGiorgio II. State ex rel. Pyle v. Bessey, 112 Ohio St.3d 119, 2006-Ohio-6514,

858 N.E.2d 383. Moreover, the use of an original action to enforce an appellate

judgment is not widespread because there exists numerous other means of

enforcement, e.g., appeal or a motion for contempt. State ex rel. Obojski v.

Perciak, 113 Ohio St.3d 486, 2007-Ohio-2453, 866 N.E.2d 1070; Dzina v.

Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202.

{¶6} The opinion, as rendered by this court in DiGiorgio II, reversed. the

judgment rendered in DiGiorgio I, which denied the relators' motion to dismiss

as premised upon sovereign immunity per R.C. Chapter 2744. The judgment of

this court did not mandate a dismissal of the relators with prejudice, but simply

found that it was error to deny the relators' motions to dismiss for judgment on

the pleadings and remanded the matter. In addition, sovereign immunity per

R.C. Chapter 2744 provides a political subdivision and its employees with a

cloak of immunity from tort liability upon demonstration of one or more of the

five limited exceptions contained within R.C. 2744.02(B). Contrary to the

relators' suggestion, sovereign immunity per R.C. Chapter 2744 does not involve

the benefit of a qualified immunity that in essence constitutes immunity from

suit. The relators' reliance upon "qualified immunity/immunity from suit," as

discussed by the Supreme Court of Ohio in Summerville v. Forest Park, 128 Ohio

St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, is misplaced.Summerville

specifically involved federal "qualified immunity/immunity from suit" from

claims brought under 42 U.S.C. 1983 and simply established that the denial of

a motion for summary judgment, in which a political subdivision or its employee

sought qualified immunity from claims brought under 42 U.S.C. 1983 is a final,

appealable order.

{¶ 7} Mandamus is the appropriate remedy to enforce the mandate of this

court. State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State

Univ. Bd. Of Trustees,108 Ohio State Univ. Bd. Of Trustees, 108 Ohio St.3d 288,

2006-Ohio-903, 843 N.E.2d 174. However, the relators must still establish

entitlement to the requested extraordinary relief, specifically enforcement of our

mandate, by clear and convincing evidence. State ex rel. McCaffrey U. Mahoning

Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877.

"Clear and convincing evidence is that measure or degree of proof which is more

that a mere `preponderance of the evidence,' but not to the extent of such

certainty as is required `beyond a reasonable doubt' in criminal cases, and which

will produce in the mind of the trier of facts a firm belief or conviction as to the

facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus. Mandamus does not lie based upon

the facts and argument as presented by the relators. Thus, we find that the

relators have failed to establish that they possess a clear legal right to dismissal

with prejudice in DiGiorgio I or that the respondent possesses a clear legal duty

to enter dismissal in DiGiorgio I with prejudice.

{¶8} It must also be noted that the relators possess adequate remedies at

law in the ordinary course of the law by way of appeal should the trial court

allow for amendment of the complaint in DiGiorgio I. Any amendment of the

complaint in DiGiorgio I, in an attempt to subject the relators to tort liability,

would be immediately subject to the remedies contained within R.C. Chapter

2744. The existence of an adequate remedy at law prevents this court from

issuing a writ of mandamus on behalf of the relators. State ex rel. Mosier v.

Fornof, 126 Ohio St.3d 47, 2010-Ohio-2516, 930 N.E.2d 305.

{¶9} Finally, in general, if the allegations of a complaint for a writ of

mandamus indicate that the real objects sought are a declaratory judgment and

a prohibitory injunction, the complaint does not state a cause of action in

mandamus and must be dismissed for want of jurisdiction. State ex rel. Phillips

v. Lorain Cty. Bd. of Elections, 93 Ohio St.3d 535, 537, 757 N.E.2d 319 (2001),

quoting State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634, 716 N.E.2d

704 (1999). The complaint must be examined to see whether it actually seeks to

prevent, rather than compel, official action. State ex rel. Cunningham v. Amer

Cunningham Co., L.P.A., 94 Ohio St.3d 323, 2002-Ohio-789, 762 N.E.2d 1012.

{¶10} Herein, it is abundantly clear that the relators, through their

complaint for a writ of mandamus, (1) seek a declaratory judgment that R.C.

Chapter 2744 provides a political subdivision and its employees with immunity

from suit, and (2) seek a prohibitory injunction preventing the amendment of the

complaint in DiGiorgio I in order to forestall additional legal proceedings against

the relators. Thus, relators' claim for mandamus fails on its face. State ex rel.

Sheppard v. Cleveland, 108 Ohio St.3d 1506, 2006-Ohio-1329, 844 N.E.2d 852;

State ex rel. Mackey v. Blackwell, 106 Ohio St.3d 261, 2005-Ohio-4789, 834

N.E.2d 346.

{¶11} Accordingly, we grant the respondent's motion for summary

judgment and deny the relators' motion for summary judgment. Relators to pay

costs. The court directs the clerk of court to serve all parties with notice of this

judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{ ¶ 12} Writ denied.

^^ --t-ÊILEEN T. GALLAGHE , JUDGE

KENNETH A. ROCCO, P.J., CONCURS;KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY

Michael A. Lawrence James Gibian, City of Cleveland, Michael … · Michael A. Lawrence, hereby give notice of their appeal as of right to the Supreme Court of Ohio from the Decisions

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