Luri v. Republic Servs., Inc.

• Decision Date: 04 September 2014
• Docket Number: No. 100539.,100539.
• Citation: 18 N.E.3d 844
• Parties: Ronald LURI, Plaintiff–Appellant v. REPUBLIC SERVICES, INC., et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

18 N.E.3d 844

Ronald LURI, Plaintiff–Appellant

v.REPUBLIC SERVICES, INC., et al., Defendants–Appellees.

No. 100539.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 4, 2014.

Irene Keyse–Walker, Benjamin C. Sasse, Tucker Ellis, L.L.P., Richard C. Haber, Shannon J. Polk, Haber Polk Kabat, L.L.P., Michelle Pierce Stronczer, Pierce Stronczer Law, L.L.C., Cleveland, OH, for appellant.

Robin G. Weaver, Trevor G. Covey, Squire Sanders (US), L.L.P., Cleveland, OH, for appellees.

Before: BOYLE, A.J., CELEBREZZE, J., and STEWART, J.

Opinion

FRANK D. CELEBREZZE, JR.

, J.

{¶ 1} Appellant, Ronald Luri, brings this appeal from the trial court's decision to grant appellees, Republic Services, Inc. (“Republic”), Republic Services of Ohio Hauling, L.L.C. (“Ohio Hauling”), Republic Services of Ohio I, L.L.C. (“Ohio I”), Jim Bowen (“Bowen”), and Ron Krall (“Krall”) (collectively known as “appellees”), a new trial. On remand from the Ohio Supreme Court for the application of its decision in Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552, 963 N.E.2d 1270

(“Havel ”), the trial court found that bifurcation on motion was required and ordered a new trial. Luri claims that the trial court erred when it found the Ohio Supreme Court's decision required a new trial. After a thorough review of the record and law, we affirm the trial court's decision.

I. Procedural History

{¶ 2} This court has previously recited the factual and procedural posture of this case in Luri v. Republic Servs., 193 Ohio App.3d 682, 2011-Ohio-2389, 953 N.E.2d 859 (8th Dist.)

. After our decision, appellees appealed to the Ohio Supreme Court for review of our holding that the mandatory bifurcation provision in R.C. 2315.21 was unconstitutional. Luri separately appealed this court's application of punitive damages caps. The Ohio Supreme Court accepted review of both appeals and stayed briefing for its decision in a pending case dealing with the same bifurcation statute, Havel. On July 3, 2012, the Ohio Supreme Court remanded the case to the trial court for application of its decision in Havel. The court also dismissed Luri's appeal as moot.

{¶ 3} The trial court allowed the parties to brief the impact of Havel on the case and held a hearing. The court issued a decision and entry on October 4, 2013. There, the court found that bifurcation on motion was required and its prior failure to grant appellees' motion required a new trial. It also addressed Luri's arguments that any error was harmless or invited. The trial court found that the error was neither.

{¶ 4} Luri then filed the instant appeal assigning one error:

I. The trial court erred when it vacated the 2008 judgment on a jury verdict and ordered a new trial.

II. Law and Analysis

A. Standard of Review

{¶ 5} This court reviews the trial court's decision to grant a new trial following remand differently based on the type of decision. If the determination is a matter of law, this court's review is de novo. However, if the decision calls for the exercise of the court's discretion, it is reviewed for an abuse of that discretion. Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970)

, paragraphs one and two of the syllabus. A de novo standard of review gives no deference to the lower court's determination, while an abuse of discretion standard recognizes that the trial court is in the best position to resolve the issue and gives deference to the court's decision absent an arbitrary, unconscionable, or unreasonable exercise of discretion. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Here, the trial court determined that it had no discretion because bifurcation was mandatory. So, as a matter of law, a new trial was required. It also determined, as a matter of law, that the error was not harmless. See

Hayward v. Summa Health Sys., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 23 (whether an error prejudices a substantial right is a question of law).

B. Application of Havel

{¶ 6} The Ohio Supreme Court determined that bifurcation as outlined in R.C. 2315.21(B)

created a substantive right, which takes precedence over the discretionary bifurcation provision in Civ.R. 42(B). Havel at the syllabus. It held that R.C. 2315.21(B) “does more than set forth the procedure for the bifurcation of tort actions: it makes bifurcation mandatory.” Id. at ¶ 25.

{¶ 7} This court has previously addressed the bifurcation requirement after Havel. Flynn v. Fairview Village Retirement Community Ltd., 8th Dist. Cuyahoga No. 95695, 2013-Ohio-569, 2013 WL 655711, ¶ 6

. Applying the holding in Havel, this court held, “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.” As Luri points out, this does not end the inquiry in this case. Luri claims that a new trial was not mandated by the decision in Havel because it is procedurally distinguishable from the present case. In many of the cases dealing with the constitutionality of R.C. 2315.21(B) decided by courts of appeals, the appeal was taken from an order denying or granting a motion to bifurcate. See, e.g., Havel. Luri distinguishes the present case by pointing out that appellees failed to immediately appeal the bifurcation decision and a full trial has taken place.

{¶ 8} Luri argues that Republic invited the error by moving the court for bifurcation under both the discretionary Civ.R. 42(B)

and the mandatory statute. Often motions are made with alternative arguments. The fact that Republic moved under both provisions for bifurcation did not invite any error.

{¶ 9} Parties are not guaranteed a trial free from error. Only errors that prejudicially affect a substantial right are reversible. Hayward, 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, at ¶ 24

. “Under the concept of harmless error, it is neither prudent nor appropriate for this court to order a trial court to remedy an error that does not affect the outcome of the case; i.e., ‘this court may not reverse the trial court unless a substantive right is affected.’ ” Children's Hosp. Med. Ctr. of Akron v. S. Lorain Merchs. Assn. Health & Welfare Benefit Plan & Trust, 9th Dist. Summit No. 22881, 2006-Ohio-2407, 2006 WL 1329679, ¶ 7, quoting Kelley v. Cairns & Bros., Inc., 89 Ohio App.3d 598, 608, 626 N.E.2d 986 (9th Dist.1993), citing Leichtamer v. Am. Motors Corp., 67 Ohio St.2d 456, 474–475, 424 N.E.2d 568 (1981). Therefore, even though bifurcation was mandatory, a new trial is not required where the error is harmless.

{¶ 10} The trial court must and did analyze whether the failure to bifurcate was harmless error. See Civ.R. 61

; R.C. 2309.59. Republic argues that no such analysis is required based on the Ohio Supreme Court's holding in Havel. If the trial court's duty was simply to order a new trial, the Ohio Supreme Court could have easily remanded the case for a new trial. It did not. The court remanded the case to the trial court for application of Havel —a procedurally different case that did not address whether the failure to bifurcate caused harm. Therefore, this court must determine whether the failure to bifurcate prejudicially impacted a substantial right.

{¶ 11} The evidence introduced at trial that appellees argued should have been reserved for the punitive damages phase falls into two categories—evidence of wealth and evidence of malice. Evidence that Republic employees fabricated evidence in an attempt to establish that Luri was terminated for cause was introduced to demonstrate malice. This evidence of malice is so intertwined with appellees' defense that it cannot feasibly be left out of the compensatory damage phase. This evidence was used by Luri to rebut appellees' arguments that Luri was terminated for cause.

{¶ 12} Evidence of wealth was also the subject of testimony during trial. Luri's cross-examination of a Republic executive brought forth, at first unsolicited, information about Republic's value as a company. Without prompt, the executive offered that the company was worth $3 billion. As a follow-up, Luri's attorney inquired if Republic earned $300 million in profits last year. Luri then relied on this information in closing arguments. The trial court found this constituted harm enough to grant Republic a new trial. In fact, “[t]he most common reason for bifurcating is to exclude evidence of the defendant's wealth or net worth from the compensatory damages phase * * *.” Cain v. Pittsburgh Corning Corp., 9th Cir. Nos. 90–16668, 90–16802, 90–16669, 90–16803, 1992 WL 78092, 1 (Apr. 20, 1992)

. See also

S.S. v. Leatt Corp., N.D.Ohio No. 1:12 CV 483, 2014 WL 356938 (Jan. 31, 2014).

{¶ 13} In Volpe v. Heather Knoll Retirement Village , 9th Dist. Summit No. 26215, 2012-Ohio-5404, 2012 WL 5872749

, the Ninth District applied Havel to a decision by the trial court denying bifurcation and found that it was unnecessary to disturb a jury award after trial. In that case, the jury had awarded significant compensatory damages, but declined to award any punitive damages. The court held that the trial court's refusal to bifurcate “the trial and giving an instruction on punitive damages was harmless because it did not affect [the defendants'] substantial rights.” Id. at ¶ 20. This was because the complained of error, an improper jury instruction on punitive damages, was normally remedied by vacation of the punitive damages award. There was no punitive damages award in that case. The lack of prejudice that runs through Volpe is not present here. Luri was awarded significant compensatory and punitive damages where evidence of wealth and jury instructions on both types of damages were presented in a single trial after motion for bifurcation. According to the holding in Havel, Republic was entitled to have those issues tried separately, and this court cannot say that the error did not affect the outcome....