[Cite as Flynn v. Fairview Village Retirement,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95695

JOHN T. FLYNN, ET AL. PLAINTIFFS-APPELLEES

vs.

FAIRVIEW VILLAGE RETIREMENT, ETC., ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-715680

BEFORE: Boyle, J., Stewart, A.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: February 21, 2013 ATTORNEYS FOR APPELLANTS SABER HEALTHCARE GROUP, L.L.C., ET AL.

James P. Myers Paul-Michael Lafayette Brant Poling Poling Petrello 1100 Superior Avenue Suite 1110 Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEES

For John T. Flynn, et al.

David H. Krause Joyce E. Carlozzi Seaman Garson, L.L.C. 1600 Rockefeller Building, 16th Floor 614 West Superior Avenue Cleveland, Ohio 44113

For Michael Francus

Dirk E. Riemenschneider Buckingham, Doolittle & Burroughs One Cleveland Center, #1700 1375 East Ninth Street Cleveland, Ohio 44114 MARY J. BOYLE, J.:

{¶1} This appeal is before this court on remand from the Ohio Supreme Court

for application of Havel v. Villa St. Joseph,

,

,

.

{¶2} The underlying case involves a nursing home negligence action filed by

plaintiffs-appellees, John T. Flynn and Judy Gordon, executors of the estate of Gladys F.

Feran, deceased, against appellants, Fairview Village Retirement Community, Ltd.,

d.b.a. Larchwood Village Retirement Community, Saber Healthcare Group, L.L.C., and

Saber Management, Inc., as well as Michael Francus, owner of Larchwood Village

Retirement Community, and several unknown entities and individuals. Appellees’

complaint alleges negligence, violation of the Ohio Nursing Home Patients’ Bill of

Rights, violation of federal law under C.F.R., Title 42, wrongful death, and falsification

of medical records. Appellees request both compensatory and punitive damages.

{¶3} Appellants moved to bifurcate the trial to separate appellees’ claims for

compensatory damages from their claims for punitive damages, pursuant to R.C.

2315.21(B)(1). The common pleas court denied the motions, and appellants appealed.

{¶4} This court sua sponte dismissed the appeal for lack of a final, appealable

order under R.C. 2505.02. The Ohio Supreme Court accepted the appellants’ appeal of

our dismissal and ultimately concluded that a denial of a motion to bifurcate under R.C.

2315.21(B) is a final, appealable order under R.C. 2505.02(B)(6). Flynn v. Fairview Village Retirement Community, Ltd.,

,

,

, ¶ 8. The court noted that under R.C. 2505.02(B)(6), “an order is a final,

appealable order if it is ‘[a]n order determining the constitutionality of * * * any changes

made by Sub.S.B. 80 of the 125th general assembly, including the amendment of section

* * * 2315.21 of the Revised Code.’” Id. at ¶ 6. The court further explained that “by

denying appellants’ motion to bifurcate under R.C. 2315.21(B), the trial court implicitly

determined that the S.B. 80 amendment to the statutory provision is unconstitutional, i.e.,

that Civ.R. 42(B) prevails over the conflicting statutory provision.” Id. at ¶ 7.1

{¶5} We now turn to the application of Havel,

,

,

, to the appellants’ appeal of the trial court’s denial of

their motions to bifurcate under R.C. 2315.21(B). In Havel, the Ohio Supreme Court

answered a certified question as to the constitutionality of R.C. 2315.21(B), holding that

R.C. 2315.21(B) creates a substantive right to bifurcation in tort actions where both

compensatory and punitive damages are sought, and therefore, it does not violate the

separation of powers required by the Ohio Constitution. Id. at ¶ 5. In reaching this

conclusion, the court expressly rejected the idea that a trial court could refuse to

bifurcate punitive damages from compensatory damages in a tort action pursuant to

Civ.R. 42(B); instead, the court held that “R.C. 2315.21(B) supersedes Civ.R. 42(B).”

We note that whereas R.C. 2315.21(B) provides for mandatory bifurcation of 1

compensatory and punitive damages in a tort action upon the motion of any party, Civ.R. 42(B) vests a trial court with discretion to order a separate trial of any claim or issue when doing so would promote convenience, avoid prejudice, or when it would be economically prudent or efficient to do so. Id.

{¶6} Applying Havel to the instant case, we find that the trial court erred in

denying appellants’ motions to bifurcate. Under R.C. 2315.21(B), the trial court has no

discretion to deny a motion to bifurcate the punitive damages issue in a tort case when a

party files a motion requesting bifurcation. Havel at ¶ 26. Indeed, “R.C. 2315.21(B)

creates a substantive right to bifurcation in tort actions when claims for compensatory

and punitive damages have been asserted.” Id. at ¶ 36. Here, appellants filed a

motion requesting bifurcation, which appellees did not oppose. Given that Civ.R.

42(B) is superseded by R.C. 2315.21(B), the trial court’s decision denying the motion to

bifurcate constitutes reversible error.

{¶7} Accordingly, we sustain appellants’ sole assignment of error, reverse the

judgment of the trial court, and remand for further proceedings.

It is ordered that appellants recover from appellees costs herein taxed.

The court finds there were reasonable 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.

MARY J. BOYLE, JUDGE MELODY J. STEWART, A.J., and SEAN C. GALLAGHER, J., CONCUR