Mast v. Doctor's Hospital North

350 N.E.2d 429, 46 Ohio St. 2d 539, 75 Ohio Op. 2d 556, 1976 Ohio LEXIS 662

• Court: Ohio Supreme Court
• Decided: June 30, 1976
• Docket: No. 76-56
• Status: Published

Opinions

Per Curiam.

Before the advent of the Ohio Buies of Civil and Appellate Procedure the case law of this state clearly held that the reversal and vacation of an erroneous verdict for damages required á trial de novo as to all issues in the ease. See Edelstein v. Kidwell (1942), 139 Ohio St. 595; Markota v. East Ohio Gas Co. (1951), 154 Ohio St. 546.

It is the opinion of a majority of this court, however, that App. B. 12 (D), in conjunction with Civ. B. 42(B), authorizes a Court of Appeals to order the retrial of only those issues, claims or defenses the original trial of which resulted in prejudicial error, and to allow issues tried free from error to stand.

App. B. 12(D) vests the court with the necessary authority to order a trial court to exercise its powers under Civ. B. 42(B) to separately try any claim or issue, when such separation is “in furtherance of convenience or to avoid prejudice, oí when separate trials will be conducive to expedition and economy.”' Civ. R. 42(B)..

Accordingly, for the foregoing reasons,- the certified question is answered in the affirmative, and the cause is remanded to the Court, of Appeals with instructions to remand the cause to the Court of Common Pleas for a re-, trial upon only the issue of damages.

Judgment accordingly.

O’Neill, C. J., Herbert, Corrigan, Celebrezze, W.. Brow^ and P. Brown, JJ., concur.