[Cite as Fleenor v. Karr, 196 Ohio App.3d 555, 2011-Ohio-5706.]




                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                      PIKE COUNTY


FLEENOR,                                              :
                                                      :
            Appellant,                                :           Case No: 10CA814
                                                      :
            v.                                        :
                                                      :           DECISION AND
KARR,                                                 :           JUDGMENT ENTRY
                                                      :
            Appellee.                                 :           Filed: November 1, 2011



                                           APPEARANCES:

        Seif & Shugart, L.L.C., Jason Shugart, and D. Dale Seif Jr., for appellant.

        Rodeheffer and Miller, Ltd., and Stephen C. Rodeheffer, for appellee.



        KLINE, Judge

        {¶ 1} Rae L. Fleenor appeals the judgment of the Pike County Court of

Common Pleas, which found R.C. 2315.21(B) to be substantive and, therefore,

constitutional. As a result, the trial court bifurcated Fleenor’s trial in accordance with

R.C. 2315.21(B). On appeal, Fleenor argues that R.C. 2315.21(B) is procedural and,

therefore, unconstitutional.         Because R.C. 2315.21(B) clearly and unambiguously

regulates the procedure for determining compensatory and punitive damages in a tort

action, we agree. Accordingly, we sustain Fleenor’s assignments of error and reverse

the judgment of the trial court.
Pike App. No. 10CA814                                                             2


       {¶ 2} On September 28, 2007, Fleenor filed a complaint against Sharon H. Karr.

Later, in a third amended complaint, Fleenor asserted several tort claims and requested

punitive damages.

       {¶ 3} The trial court scheduled a trial for October 18, 2010. On October 12,

2010, Karr filed a motion to “bifurcate the trial on damages in accordance with R.C.

§2315.21.” Specifically, Karr requested that “the initial phase of the trial in this matter

deal solely with the issues of liability and compensatory damages, if any. [And] in the

event the jury returns a verdict as required in §2315.21(B)(1)(b)[,] that the issue of

punitive damages be tried in a second stage.”

       {¶ 4} On October 18, 2010, the trial court granted Karr’s motion to bifurcate.

The trial court found (1) that R.C. 2315.21(B) applies to the present case, (2) that R.C.

2315.21(B) requires bifurcation upon the motion of a party, and (3) that the trial court

would not have been inclined to bifurcate the trial but for R.C. 2315.21(B). Additionally,

the trial court held that “R.C. 2315.21(B) is substantive and, therefore, does not violate

the separation of powers required by the Modern Courts Amendment of 1968, Section

5(B), Article IV of the Ohio Constitution[.]”

       {¶ 5} Fleenor appeals from the trial court’s decision to bifurcate the trial in

accordance with R.C. 2315.21(B). In her appellate brief, Fleenor asserts the following

two assignments of error: I. “The trial court committed reversible error by holding R.C.

§2315.21(B)(1) is constitutional, when R.C. §2315.21(B)(1) eliminates the judicial

discretion whether to bifurcate a trial into two phases pursuant to Civ.R.42(B) under the

authority of the Modern Courts Amendment of 1968, Section 5(B), and Article IV of the

Ohio Constitution.” II. “The trial court committed reversible error by violating Ohio’s
Pike App. No. 10CA814                                                            3


separation of powers doctrine when the Court determined the procedural matter of

bifurcation of trial was governed by R.C. §2315.21(B)(1) instead of Civ.R. 42(B).”

       {¶ 6} Before addressing Fleenor’s assignments of error, we must note the

following procedural deficiency. In her appellate brief, Fleenor has failed to separately

argue her assignments of error as required by App.R. 16(A)(7). Instead, Fleenor has

presented just one argument in support of both assignments of error. And under App.R.

12(A)(2), we may choose to disregard any assignment of error that an appellant fails to

separately argue. Therefore, we could exercise our discretionary authority to summarily

overrule Fleenor’s assignments of error. See Newman v. Enriquez, 171 Ohio App.3d

117, 2007-Ohio-1934, at ¶ 18; Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio

App.3d 12, 2005-Ohio-2303, at ¶ 22, citing Park v. Ambrose (1993), 85 Ohio App.3d

179, 186; State v. Caldwell (1992), 79 Ohio App.3d 667, 677, fn. 3.         We choose,

however, to address Fleenor’s assignments of error in the interest of justice.

Furthermore, we will address her assignments of error together.

       {¶ 7} Fleenor argues that R.C. 2315.21(B) is procedural and, therefore,

unconstitutional.

       {¶ 8} We review the constitutionality of a statute on a de novo basis. See, e.g.,

State v. Anderson, Athens App. No. 09CA18, 2009-Ohio-7014, at ¶ 4. Nevertheless,

because all legislative enactments enjoy a strong presumption of constitutionality, “we

must presume the constitutionality of the statute at issue.” State v. Benson (1992), 81

Ohio App.3d 697, 700, citing Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193,

199, overruled on other grounds by Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460.
Pike App. No. 10CA814                                                                 4


       {¶ 9} The Eighth District Court of Appeals addressed the constitutionality of

R.C. 2315.21(B) in Havel v. Villa St. Joseph, Cuyahoga App. No. 94677, 2010-Ohio-

5251. Thus, to frame the issue, we will quote from Havel at length.

       {¶ 10} “Section 5(B), Article IV of the Ohio Constitution states that the Ohio

Supreme Court is vested with exclusive authority to ‘prescribe rules governing practice

and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify

any substantive right. * * * All laws in conflict with such rules shall be of no further force

or effect after such rules have taken effect.’ Pursuant to this constitutional authority, the

Supreme Court has adopted the Rules of Civil Procedure, which ‘prescribe the

procedure to be followed in all courts of this state in the exercise of civil jurisdiction.’

Civ.R. 1(A).

       {¶ 11} “Where a conflict arises between a rule and a statute, the court’s rule will

control for procedural matters; the legislature’s statute will control for matters of

substantive law. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d

368, 2008-Ohio-2637, ¶28; State v. Slatter (1981), 66 Ohio St.2d 452, 454[.] A statute

is invalid and has no force or effect if it conflicts with the Ohio Rules of Civil Procedure.

Rockey v. 84 Lumber Co. [(1993),] 66 Ohio St.3d 221, 223; In re Coy [(1993),] 67 Ohio

St.3d 215, 219.

       {¶ 12} “The statute at issue here, R.C. 2315.21(B), as amended by S.B. No. 80,

effective April 7, 2005, states that ‘[i]n a tort action that is tried to a jury and in which a

plaintiff makes a claim for compensatory damages and a claim for punitive or exemplary

damages, upon the motion of any party, the trial of the tort action shall be bifurcated

* * *.’ (Emphasis added.)
Pike App. No. 10CA814                                                             5


       {¶ 13} “Civ.R. 42(B) of the Ohio Rules of Civil Procedure also addresses

bifurcation and provides that ‘[t]he court, after a hearing, in furtherance of convenience

or to avoid prejudice, or when separate trials will be conducive to expedition and

economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-

party claim, or of any separate issue or of any number of claims * * *.’ (Emphasis

added.)

       {¶ 14} “Hence, the statute and the rule are in conflict. One requires bifurcation in

a tort action; the other does not.” Havel v. Villa St. Joseph, 2010-Ohio-5251, at ¶ 4-8.

       {¶ 15} In Havel, the Eighth Appellate District found that R.C. 2315.21(B) is

procedural and, therefore, unconstitutional. According to the court, “The language of

R.C. 2315.21(B) plainly and unambiguously purports to regulate bifurcation procedure in

trials of tort cases—a matter already regulated by Civ.R. 42(B).          Where a statute

conflicts with a rule of procedure, the rule controls on procedural matters. Accordingly,

insofar as R.C. 2315.21(B) conflicts with Civ.R. 42(B), we find it unconstitutional, in

violation of Section 5(B), Article IV of the Ohio Constitution.” Havel at ¶ 30.

       {¶ 16} The Tenth District Court of Appeals, however, reached the opposite

conclusion in Hanners v. Ho Wah Genting Wire & Cable, Franklin App. No. 09AP-361,

2009-Ohio-6481.     In reaching its decision, the court relied upon the “statement of

findings and intent” as found in the “uncodified language associated with R.C.

2315.21(B)[.]” Id. at ¶ 24-25. As a result, the court held the following: “[B]ased on the

General Assembly’s express intent to create a right of bifurcation to address potential

unfairness, we conclude that [R.C. 2315.21(B)] is substantive.            In reaching this

conclusion, we do not consider the wisdom of the General Assembly’s public policy
Pike App. No. 10CA814                                                                   6


choices. * * * Instead, having determined that the General Assembly’s intent was to

create a substantive right for certain litigants, we conclude that R.C. 2315.21(B) does

not conflict with Civ.R. 42(B) in such a way as to violate the separation of powers

required by Section 5(B), Article IV of the Ohio Constitution.” Hanners at ¶ 30.

       {¶ 17} Because of the conflict between Havel and Hanners, the Supreme Court

of Ohio is currently considering the following issue: “Whether R.C. 2315.21(B), as

amended by S.B. 80, effective April 7, 2005, is unconstitutional, in violation of Section

5(B), Article IV of the Ohio Constitution, because it is a procedural law that conflicts with

Civ.R. 42(B).” Havel v. Villa St. Joseph, 127 Ohio St.3d 1530, 2011-Ohio-376. We

must address the same issue in the present case. That is, do we agree with Havel or

Hanners? Or, in other words, is R.C. 2315.21(B) substantive or procedural?

       {¶ 18} “Substantive laws or rules relate to rights and duties giving rise to a cause

of action, while procedural rules concern the ‘machinery’ for carrying on the suit.” Myers

v. Brown, Stark App. No. 2010-CA-00238, 2011-Ohio-892, at ¶ 13, citing Norfolk S. RR.

Co. v. Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, at ¶ 16. Thus, to interpret R.C.

2315.21(B) and determine whether the statute is substantive or procedural, “[w]e must

first look to the plain language of the statute itself to determine the legislative intent. * * *

We apply a statute as it is written when its meaning is unambiguous and definite.”

Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, at ¶ 11.                Furthermore, “an

unambiguous statute must be applied in a manner consistent with the plain meaning of

the statutory language.” Id. That is, if a statute is unambiguous, we need not apply

additional principles of statutory construction. See, e.g., State v. Robinson, 124 Ohio

St.3d 76, 2009-Ohio-5937, at ¶ 31 (“Because the language of [the statute] is clear, it is
Pike App. No. 10CA814                                                             7


not necessary to resort to other means of interpretation”); Watters v. Ross Cty.

Children’s Servs. (Feb. 18, 2000), 4th Dist. Nos. 99CA9 and 99CA12, 2000 WL 228254.

        {¶ 19} Here, despite the presumption of constitutionality, we agree with Havel.

See also Myers at ¶ 17 (“[I]nsofar as R.C.2315.21(B) mandates bifurcation, it is

unconstitutional, because it violates Section 5(B), Article IV of the Ohio Constitution”).

In our view, “the legislative intent is clear from the statute: R.C. 2315.21(B) plainly and

unambiguously regulates the procedure at trial for determining compensatory and

punitive damages in a tort action.” Havel, 2010-Ohio-5251, at ¶ 29. Thus, we find that

R.C. 2315.21(B) is procedural and, therefore, unconstitutional.

        {¶ 20} Because we agree with Havel, we also find the following: “[T]he

mandatory bifurcation language of R.C. 2315.21(B) is unconstitutional because it

purports to legislate a strictly procedural matter already addressed by the Civil Rules. It

is readily apparent that the language of R.C. 2315.21(B) regarding bifurcation of the

damages portion of a trial does not ‘grant a right or impose a duty that gives rise to a

cause of action,’ or even relate to those rights.       Instead, the statute clearly and

unambiguously specifies ‘the machinery for carrying on the suit’ by telling courts the

‘procedural prioritization’ for determining compensatory and punitive damages at trial.

Furthermore, it purports to tell courts what evidence a jury may consider, and when—

another area governed by the Civil and Evidence Rules.” Havel, 2010-Ohio-5251, at

¶ 27. We further agree that R.C. 2315.21(B) “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.” Myers, 2011-Ohio-892, at

¶ 16.
Pike App. No. 10CA814                                                              8


       {¶ 21} Finally, because the legislative intent is clear from the plain language of

R.C. 2315.21(B), it would be improper for us to consider additional means of statutory

interpretation. Therefore, we agree that “the Tenth District’s determination in Hanners,

reached by reference to sources other than this clear and unambiguous statute,

conflicts with well-settled rules of statutory construction.” Havel at ¶ 29.

       {¶ 22} Accordingly, we sustain Fleenor’s two assignments of error and reverse

the judgment of the trial court. We remand this cause to the trial court for further

proceedings consistent with this opinion.

                                                                         Judgment reversed

                                                                      and cause remanded.



ABELE, J., concurs.

MCFARLAND, J., dissents.

                                _____________________
