Haga v. Albex Aluminum3/7/2005
JUDGMENT: Dismissed
{ } Plaintiffs-appellants Amber Jean Haga , Chrystal Lee Dickey, Chad Lee Garabrandt and Tina Weimer, as Guardian to Cora Lee Dickey, appeal from the August 6, 2003, and September 9, 2003, Judgment Entries of the Stark County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{ } Appellee Albex Aluminum, Inc. is a wholly owned subsidiary of appellee RVM Industries, Inc. Roger Lee Dickey, was hired by appellee Albex on June 23, 2000, as an age oven operator. On August 7, 2000, while operating the oven's exit door, Dickey [hereinafter "the decedent"] was killed after the oven door fell on him.
{ } The decedent was survived by his spouse, Patricia Barnard, and his three adult children, appellants Amber Jean Haga, Chrystal Lee Dickey, and Chad Lee Garabrandt. Appellant Tina Weimer is the guardian of Cora Lee Dickey, the decedent's minor child. The decedent's children shall hereinafter be referred to as "appellants."
{ } Subsequently, Barnard, as Administratrix for the Estate of Roger Lee Dickey and in her individual capacity, along with appellants filed a complaint against appellees Albex Aluminum, Inc. and RVM Industries, Inc. Barnard and appellants, in a second amended complaint filed on October 2, 2002, asserted claims for employer intentional tort, intentional or reckless infliction of severe emotional distress, and wrongful death pursuant to R.C. 2125.01 et seq. against appellee Albex and asserted wrongful death and alter ego (piercing of the corporate veil) claims against appellee RVM.
{ } Both appellee Albex and appellee RVM filed Motions for Summary Judgment. Pursuant to a Judgment Entry filed on August 6, 2003, the trial court granted the motions, finding that appellees were entitled to summary judgment on the intentional tort claim. The trial court, in its entry, stated in footnote 1 as follows: ecause the Court finds that the Defendants are entitled to summary judgment on the intentional tort claim, the Court will not address Plaintiffs' additional claims (intentional or reckless infliction of severe emotional distress; alter ego (piercing the corporate veil); wrongful death)." The trial court indicated that its order was a final appealable order.
{ } Thereafter, on August 19, 2003, appellants filed a Notice of Dismissal without Prejudice pursuant to Civ.R. 41(A) of "ALL party Defendants, Defendant Does, causes of action and claims in the above-entitled action."
{ } On August 22, 2003, appellee Albex filed a "Motion to Amend Judgment of August 6, 2003, NUNC PRO TUNC," seeking an order revising the trial court's August 6, 2003, Judgment Entry "so as to expressly dismiss, with prejudice, the claims set forth in Counts 2, 3 and 4 of Plaintiffs' Second Amended Complaint." Appellee, in its motion, stated, in relevant part, as follows:
{ } "While Court did not explicitly dismiss the non-intentional tort claims, it is apparent that the Court considered these claims to be based upon and dependent upon the viability of the intentional tort claim so that if the intentional tort claims were dismissed, the other claims must also fail as a matter of law.
{ } "Specifically, Plaintiffs Claim 4 is for the wrongful death of Roger Dickey. In that the wrongful death claim is the same identical claim as the intentional tort claim, dismissal of one is tantamount to dismissal of the other.
{ } "Finally, Plaintiff's Claim 2 for intentional or reckless infliction of severe emotional distress is, by its very allegations, based upon the identical assertions made with respect to the intentional tort claims, which were dismissed. Therefore, the dismissa
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