[Cite as Hill v. Steel Ceilings, Inc., 2011-Ohio-6040.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



DANIEL HILL                                           :   JUDGES:
                                                      :   Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                           :   Hon. Sheila G. Farmer, J.
                                                      :   Hon. Patricia A. Delaney, J.
-vs-                                                  :
                                                      :
STEEL CEILINGS, INC.                                  :   Case No. 11-CA-38
                                                      :
         Defendant-Appellant                          :   OPINION




CHARACTER OF PROCEEDING:                                  Appeal from the Court of Common
                                                          Pleas, Case No. 09CV2064



JUDGMENT:                                                 Affirmed




DATE OF JUDGMENT:                                         November 18, 2011




APPEARANCES:

For Plaintiff-Appellee                                    For Defendant-Appellant

MARK E. DEFOSSEZ                                          MARIBETH DEAVERS
CURTIS M. FIFNER                                          250 East Broad Street
495 South High Street                                     Suite 900
Suite 300                                                 Columbus, OH 43215
Columbus, OH 43215
Licking County, Case No. 11-CA-38                                                         2

Farmer, J.

       {¶1}   On December 2, 2009, appellee, Daniel Hill, filed a complaint against

appellant, Steel Ceilings, Inc., claiming an intentional tort for a workplace accident.

Appellee's fingers were crushed while operating a panel bending machine at work.

       {¶2}   On February 4, 2011, appellant filed a motion to bifurcate the trial

pursuant to Civ.R. 42(B) and R.C. 2315.21(B). Appellant sought to bifurcate the liability

and damages portions of the trial and the compensatory and punitive damages portions

of the trial. A hearing was held on March 16, 2011. By judgment entry filed March 22,

2011, the trial court denied the motion.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error is as follows:

                                             I

       {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

MOTION OF DEFENDANT STEEL CEILINGS, INC. TO BIFURCATE THE TRIAL

UNDER CIV. R. 42(B)."

                                             II

       {¶5}   "THE TRIAL COURT ERRED IN DENYING THE MOTION OF

DEFENDANT STEEL CEILINGS, INC. UNDER R.C. §2315.21(B)."

                                             I

       {¶6}   Appellant claims the trial court erred in denying its request to bifurcate the

liability portion of the intentional tort claim from the damages portion pursuant to Civ.R.

42(B). We disagree.
Licking County, Case No. 11-CA-38                                                      3


       {¶7}   Appellee suggests that a denial of a Civ.R. 42(B) motion is not a final

appealable order because it does not affect a substantive right. In Myers v. Brown, 192

Ohio App.3d 670, 2011-Ohio-892, ¶9-10, this court found the following:

       {¶8}   "Both the Hanners [v. Ho Wah Genting Wire & Cable SDN BHD, Franklin

App. No. 09AP-361, 2009-Ohio-6481] court and the Havel [v. Villa St. Joseph,

Cuyahoga App. No. 94677, 2010-Ohio-5251] court found a trial court's order denying a

motion to bifurcate implicitly determines that the mandatory bifurcation language in R.C.

2315.21(B) is unconstitutional.    Hanners, supra, at paragraph 13; Havel, supra, at

paragraph 19.

       {¶9}   "We find that the order appealed from implies the bifurcation language in

the statute is unconstitutional, although it does not state so expressly. We conclude we

have jurisdiction to review the matter."

       {¶10} Without suggesting error in this decision, in the interest of judicial

economy, we will address the trial court's denial.

       {¶11} A trial court's decision to grant or deny bifurcation of trial under Civ.R.

42(B) rests with the trial court's sound discretion. Garg v. State Automobile Mutual

Insurance Co., 155 Ohio App.3d 258, 2003-Ohio-5960. In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983) 5 Ohio St.3d 217.

       {¶12} In its judgment entry filed March 22, 2011, the trial court reviewed the

arguments of both parties and specifically found bifurcation under Civ.R. 42(B) was not

necessary:
Licking County, Case No. 11-CA-38                                                         4


         {¶13} "In the Court's view, counsel will be able to present clear argument so as

to alleviate any possible confusion or prejudice. The jury will also receive the benefit of

proper and adequate instruction from the Court that will aid them in properly determining

the issues of liability and any potential damages. For these reasons, the first aspect of

Defendant's motion to bifurcate under Rule 42 is denied."

         {¶14} After reviewing the arguments herein, we cannot find the trial court's

decision rose to any level of an abuse of discretion.

         {¶15} Assignment of Error I is denied.

                                              II

         {¶16} Appellant claims the trial court erred in denying its request for bifurcation

pursuant to R.C. 2315.21(B). Appellant invites this court to reverse our previous rulings

in light of Hanners, supra. We are not so inclined and disagree with appellant's position.

         {¶17} In Myers, supra, at ¶14-17, this court stated the following relative to

Hanners and R.C. 2315.21(B):

         {¶18} "The Hanners court found that R.C. 2315.21(B) is a substantive law

because even though it mandates particular procedures for tort actions, the legislative

intent was to create and define a defendant's right to ensure that the jury does not

inappropriately consider the defendant's misconduct when determining questions of

liability or compensatory damages. Hanners, supra, at paragraph 28.

         {¶19} "By contrast, the Havel court found that the statute is procedural, because

it 'plainly and unambiguously regulates the procedure at trial for determining

compensatory and punitive damages in a tort action.' Havel at paragraph 29. We

agree.
Licking County, Case No. 11-CA-38                                                          5


       {¶20} "We find that R.C. 2315.21(B) is not substantive, because it does not

create or define rights and duties giving rise to a cause of action. The statute gives

defendants no additional rights, but sets out the procedural rules whereby courts can

better protect the rights to a jury and to due process that the parties have always

possessed.

       {¶21} "We find that R.C. 2315.21(B) clearly conflicts with the Supreme Court's

Rules, and the Rule controls.      We also conclude that insofar as R.C. 2315.21(B)

mandates bifurcation, it is unconstitutional, because it violates Section 5(B), Article IV of

the Ohio Constitution."

       {¶22} This court recently reaffirmed this decision in Plaugher v. Oniala, Stark

App. No. 2010 CA 00204, 2011-Ohio-1207.

       {¶23} Assignment of Error II is denied.

       {¶24} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.


                                              s/ Sheila G. Farmer_____________



                                              s/ William B. Hoffman___________



                                              s/ Patricia A. Delaney_______________

SGF/sg 1028                                                  JUDGES
[Cite as Hill v. Steel Ceilings, Inc., 2011-Ohio-6040.]


                     IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT



DANIEL HILL                                               :
                                                          :
         Plaintiff-Appellee                               :
                                                          :
-vs-                                                      :        JUDGMENT ENTRY
                                                          :
STEEL CEILINGS, INC.                                      :
                                                          :
         Defendant-Appellant                              :        CASE NO. 11-CA-0038




         For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.




                                                          s/ Sheila G. Farmer_____________



                                                          s/ William B. Hoffman___________



                                                          s/ Patricia A. Delaney_______________

                                                                   JUDGES
