COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73164 GEORGETTE ROARK, ET AL. : : ACCELERATED DOCKET PLAINTIFF-APPELLEES : : JOURNAL ENTRY vs. : : AND U.S. TRUCK & TRAILER SALES, : INC. : OPINION : DEFENDANT-APPELLANT : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-306371. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellees: Mark W. Ruf, Esq. Hoyt Block, Suite 300 700 West St. Clair Avenue Cleveland, Ohio 44113 For Defendant-appellant: John M. Manos, Esq. Michael A. Iacobelli, Jr., Esq. Manos, Pappas & Stefanski Co.,LPA 1600 Guildhall Landmark Office Towers 45 W. Prospect Avenue Cleveland, Ohio 44115 PER CURIAM: -2- An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). In the case at bar, defendant-appellant U.S. Truck & Trailer Sales, Inc. appeals from the trial court's orders denying its pre- trial motion for summary judgment and granting plaintiffs-appellees Al and Georgette Roarks' (collectively Roark ) motion for directed verdict on the claim of negligence per se. For the reasons adduced below, we reverse. A review of the record on appeal indicates that on July 28, 1994, Mrs. Roark, who was the titled owner of a 1979 Kenworth truck, exchanged her vehicle for a 1984 Freightliner tractor owned by the defendant. The Roarks received a trade-in allowance of $5,500.00 for their 1979 vehicle in the straight exchange of the two tractors. The Roarks took physical possession of the Freightliner tractor on July 28, 1994. At the time of the transfer of possession of the vehicles, defendant had not yet obtained the title to the Freightliner and the Roarks did not want to pay state sales tax on the conveyance. The defendant advised the Roarks that they could transfer the title as a tax exempt conveyance, but that the Roarks had to provide a signed sales tax exemption and a copy of the Roarks' common carrier lease agreement to the defendant for the use of the county title bureau in preparation of the certificate of title. On August 8, 1994, the defendant received -3- the title to the Freightliner, which they in turn mistakenly sent to another customer, not the Roarks. On September 6, 1994, the defendant received from the Roarks a certificate of exemption. This certificate, which provided that the Freightliner tractor was to be used Directly in the rendition of Public Utility Services, was signed by Georgette Noss, who is also known as Georgette Roark. On October 7, 1994, the Roarks faxed the defendant a copy of a lease agreement (which agreement was signed and executed also on October 7, 1994) with a common carrier. The title to the Freightliner tractor was issued by the defendant in the Roarks' name on October 7, 1994, but the defendant mistakenly provided the incorrect vehicle identification number ( VIN ) for the Freightliner tractor on the title. On October 13, 1994, the incorrect VIN was discovered, and the Roarks were sent the corrected title on October 25, 1994. The Roarks received the corrected title on November 1, 1994. The Roarks' lawsuit was filed on April 5, 1996, and alleged two causes of action. First, breach of contract by the defendant in failing to provide a valid title to the Roarks until November 1, 1994. Second, negligence in defendant sending title to the tractor to a third-party. It was alleged that these actions prevented the Roarks from using the tractor from July 28 to November 1, 1994, causing economic loss of income to the Roarks from the non-use of the tractor during that period. -4- In February of 1997, a panel of court-ordered arbitrators found in favor of the defendant. This arbitration decision was appealed by the Roarks to the trial court. On April 16, 1997, the defendant filed a motion for summary judgment, which was opposed by the plaintiffs on May 2, 1997, and denied by the trial court without opinion on June 3, 1997. A two-day trial commenced on August 12, 1997. As admitted by the parties, the defendant moved for a directed verdict at the close of plaintiffs' case-in-chief, arguing in the motion the same grounds as previously raised in the unsuccessful motion for summary judgment. The court's journal reflects that the court denied defendant's motion for directed verdict, but granted plaintiffs' motion for directed verdict on the claim of negligence per se before proceeding with the closing arguments of the parties. See Journal Vol. 2118, page 762. It is not stated in the record that the defendant renewed its motion for directed verdict at the close of all evidence. The jury returned a verdict in favor of plaintiffs on the negligence claim in the amount of $500.00, and in favor of defendant on the breach of contract claim. This appeal was originally filed pursuant to App.R. 9(D), but the praecipe was subsequently amended by the defendant-appellant on November 6, 1997 to reflect an accelerated appeal under App.R. 11.1 and Local App.R. 25(A)(1) with no transcript required. To date, no transcript of the jury trial has been filed with this court. The lone assignment of error presented states: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT U.S. TRUCK & TRAILER -5- SALES, INC., BY DENYING THE DEFENDANT- APPELLANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF-APPELLEES' NEGLIGENCE CLAIM AND FOR ENTERING A DIRECTED VERDICT FOR THE PLAINTIFF- APPELLEE GEORGETTE ROARK FOR NEGLIGENCE PER SE. In addressing the argument concerning the ruling on the motion for summary judgment we note the following: Any error in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made. Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, syllabus. The general rule of mootness enunciated in Whittington was subsequently ameliorated in Wein v. Seaman Corp. (Wayne, 1996), 116 Ohio App.3d 189, 194, discretionary appeal overruled (1997), 78 Ohio St.3d 1457 (error in denying a motion for summary judgment not harmless for appellate purposes where the issues contained in the motion are subsequently raised at trial and the denial of the motion for summary judgment was predicated upon purely a question of law). Accord Horvath v. Nationwide Mut. Fire Ins. Co. (1996), 108 Ohio App.3d 732, 735. In the case at bar, the defendant's motion for summary judgment asserted a question of law: Whether the economic loss (lost income resulting from the non-use of the tractor) experienced by the plaintiffs as a result of the negligence of the defendant stated a cognizable claim for relief absent a demonstration of concurrent physical injuries or property damages. See Motion for -6- Summary Judgment at 4. Therefore, pursuant to Wein, the ruling on the motion for summary judgment is not moot for appellate purposes. It is well settled that lost income/profits in a negligence setting are indirect economic losses. Queen City Terminals, Inc. v. Gen. Am. Transp. Corp. (1995), 73 Ohio St.3d 609, 614, citing Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co. (1989), 42 Ohio St.3d 40, 43-44. Equally well settled is the following: In order to recover indirect economic damages in a negligence action, the plaintiff must prove that the indirect economic damages arose from tangible physical injury to persons or from tangible property damage. Queen City Terminals, Inc., supra, at syllabus. The Roarks alleged only indirect economic damages in their claim for negligence. As a matter of law, the Roarks did not demonstrate a cognizable claim for relief. Civ.R. 56. Accordingly, the trial court erred in denying summary judgment on the negligence claim. The second section of this assignment argues that the trial court erred in granting plaintiffs' motion for directed verdict on the claim of negligence. Given our determination that the trial court should have granted summary judgment on this claim, the treatment of the negligence claim relative to a directed verdict standard is irrelevant and moot. App.R. 12(A)(1)(c). Assignment affirmed. Judgment reversed. -7- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee its costs herein taxed. It is ordered that a special mandate issue out of this Court directing said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate procedure. ______________________________ JAMES M. PORTER, P.J. ______________________________ TERRENCE O'DONNELL, J. ______________________________ JAMES D. SWEENEY, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .