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Haller v. Goodyear Tire & Rubber Co.6/26/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, The Goodyear Tire & Rubber Co. ("Goodyear"), appeals the judgment of the Summit County Court of Common Pleas. We affirm.
I.
On December 27, 1995, Heidi Haller was injured when a vehicle driven by Ben Morris collided with the vehicle in which she was a passenger and her husband, David Haller, was the driver. At the time of the accident, Mr. Morris was an employee of Goodyear, who was acting within the course and scope of his employment. Goodyear owned the vehicle which Mr. Morris was driving.
On August 28, 1997, Mr. and Ms. Haller ("the Hallers") filed a complaint in the Medina County Court of Common Pleas, case number 97 CIV 0924 ("Haller I"), naming Mr. Morris as a defendant. The complaint was later amended to include Goodyear as a defendant. In the complaint, Mr. Haller filed a claim for bodily injury, alleging that, as a proximate result of the defendants' negligence, he sustained serious physical and emotional injuries. Ms. Haller asserted a loss of consortium claim against the defendants. On December 9, 1997, the Hallers voluntarily dismissed their case without prejudice, pursuant to Civ.R. 41(A)(1)(a).
On December 16, 1997, the Hallers filed a complaint, case number CV 97 12 6232 ("Haller II"), naming Mr. Morris and Goodyear as defendants. In this complaint, Ms. Haller asserted a claim for personal injury resulting from the defendants' alleged negligence. Mr. Haller filed a loss of consortium claim. On June 3, 1998, the Hallers voluntarily dismissed the action, pursuant to Civ.R. 41(A)(1)(a). On November 12, 1998, the Hallers filed a "Motion to Correct the Record," in which they requested that the trial court enter a nunc pro tunc order making the June 3, 1998 dismissal pursuant to Civ.R. 41(A)(2), instead of Civ.R. 41(A)(1)(a). Goodyear opposed this request. On December 1, 1998, the trial court granted the Hallers' motion and "correct " the June 3, 1998 "order" to "reflect that the [Hallers'] action be dismissed pursuant to [Civ.R.] 41(A)(2)."
On December 23, 1998, the Hallers "refiled" their complaint from Haller II in case number CV 98 12 5027 ("Haller III"). The causes of action alleged in Haller III were identical to those asserted in Haller II. On November 20, 2000, Goodyear and Mr. Morris moved for summary judgment in Haller III, arguing that the Hallers' second dismissal pursuant to Civ.R. 41(A)(1)(a) in Haller II acted as an adjudication upon the merits and that the trial court did not have jurisdiction to enter the December 1, 1998 nunc pro tunc entry. Accordingly, the defendants asserted that the complaint filed in Haller III was barred by res judicata due to the operation of the "two-dismissal rule" of Civ.R. 41(A)(1). The Hallers did not respond in opposition. The trial court never expressly ruled on the summary judgment motion; therefore, it is presumed to be denied. See State ex rel. V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469.
A jury trial was held on June 11 and 12, 2001. Prior to the jury being empanelled, the Hallers dismissed all of their claims against Mr. Morris with prejudice. Additionally, Mr. Haller dismissed his loss of consortium claim against Goodyear with prejudice. Therefore, the sole remaining claim presented to the jury was Ms. Haller's claim for personal injury against Goodyear. In a verdict journalized on June 29, 2001, the jury found in favor of Ms. Haller in the amount of $10,000. This appeal followed.
II.
Goodyear asserts two assignments of error for review
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