COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73614 AND 73615 TERRI L. LEE, ET AL. : ACCELERATED DOCKET PLAINTIFFS-APPELLANTS : : JOURNAL ENTRY v. : : AND [CASE NO. 73614] : SUNNYSIDE HONDA, ET AL. : OPINION : [CASE NO. 73615] : PER CURIAM NORTH COAST AUTO CREDIT : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1998 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court, Nos. CV-323283 and CV-314022. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Debra J. Dixon, Esq. James L. Deese, Esq. Dixon & Ours 700 West St. Clair Avenue Suite 216 Cleveland, OH 44113 For Defendant-Appellee: William F. Scully, Jr., Esq. Reminger & Reminger 113 St. Clair Avenue, Suite 430 Cleveland, OH 44114 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the -2- Cuyahoga County Court of Common Pleas, the briefs and oral argument of counsel. Plaintiffs-appellants Lee and Thornington ( appellants ) appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted summary judgment in favor of the defendants- appellees North Coast Auto, Jim Nicholson and Sunnyside Honda, Sunnyside Hyundai, Saturn of Sunnyside, Sunnyside Auto, Inc. ( appellees ). For the reasons stated below, we affirm. The facts giving rise to this appeal are as follows. On September 7, 1994, Karen Wright (a non-party to this action) purchased a used vehicle from North Coast Auto Credit. Certificate of title was issued to Wright on October 12, 1994. On August 23, 1996, appellants timely refiled their complaint against North Coast Auto Credit Inc. alleging personal injuries as the result of a collision which occurred on January 15, 1995 due to the negligent operation of the motor vehicle driven by Karen Wright while bearing a dealer tag of North Coast Auto. This complaint alleged that at the time of the motor vehicle collision Wright was an employee and/or agent of North Coast Auto Credit Inc. On January 15, 1997, appellants filed a separate complaint against Sunnyside Honda, Sunnyside Hyundai, Saturn of Sunnyside, Sunnyside Auto, Inc. and Jim Nicholson alleging injuries suffered as a result of the negligence of Karen Wright who was in the course and scope of her employment and agency with these appellees, and that appellees negligently entrusted the vehicle to Wright. The cases were consolidated in the trial court. On March 17, 1997, appellees -3- North Coast Auto Credit, Inc., the Sunnyside entities and Nicholson filed a joint motion for summary judgment in the consolidated matter. On November 7, 1997, after briefing, the trial court granted appellees' motion finding no genuine issue of material fact existed and that appellees were entitled to judgment as a matter of law. Appellants timely appeal and advance a single assignment of error. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS NORTH COAST AUTO CREDIT, INC, SUNNYSIDE HONDA, SUNNYSIDE HYUNDAI, SATURN OF SUNNYSIDE, SUNNYSIDE AUTO, INC. AND JAMES NICHOLSON. Appellants assert that summary judgment was improvidently granted to appellees contending that a jury question existed as to whether Wright was acting as an agent for North Coast at the time of the collision which caused their injuries. Specifically, appellants assert that where Wright was operating her vehicle with North Coast's dealer tags a rebuttable presumption arose that she was operating the vehicle on North Coast's business. Appellants argue that because Ohio law permits the issuance of dealer tags only to licensed automobile dealers and because North Coast did not own the vehicle, then North Coast created by operation of law an agency relationship with Wright. We do not agree. This court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. An appellate court applies the same test as a trial court which test is set forth in Civ.R. 56(C) which specifically provides that before summary judgment may be granted it must be determined that: -4- (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United Inc., (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. In accordance with Civ.R. 56(E), a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial. Chaney v. Clark Cty. Agricultural Soc., (1993), 90 Ohio App.3d 421. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Dresher, supra; Celotex, supra at 322. Appellants rely on R.C. 4503.30 for the proposition that the presence of dealer tags on Karen Wright's vehicle automatically made her an agent of North Coast and the Sunnyside entities. Moreover, appellants' cite Fredericks v. Birkett L. Williams Co. (1940), 68 Ohio App. 217 for the proposition that the use of dealer tags upon the vehicle creates a rebuttable presumption of agency. R.C. 4503.30 provides: -5- Any placards bearing the distinctive number assigned to a dealer may be displayed on any motor vehicle owned by or lawfully in the possession or control of the dealer, his agent or employee and shall be displayed on no other vehicle. We do not find that the wording of statute creates an agency relationship nor do we find case law to support such a proposition. Moreover, we find appellants' reliance on Fredericks to be misplaced and find the facts of Fredericks to be distinguishable from the case at hand. Unlike the facts in the matter sub judice, in Fredericksthe title to the vehicle remained in the dealership, dealer tags were on the vehicle and the driver of the vehicle was the manager of the dealership at the time of the accident. Appellees, in support of their motion for summary judgment, presented verified answers to interogatories in compliance with Civ.R. 56(C) to demonstrate that Karen Wright was not in an agency or employment relationship with these appellees. Moreover, the evidence submitted by appellees supports the conclusion that Wright was the owner of the vehicle. We find that the presence of dealer plates on the vehicle alone is insufficient to render the dealership responsible for the injuries. See, Lesick v. Manning (December 17, 1992), Columbiana County App. No. 911-C-70, unreported. We also find that under the facts of the matter before us, the presence of the dealer tags on a vehicle owned by an individual does not create a rebuttable presumption of agency. Accordingly, appellants cannot prevail on their claims of negligence against appellees. Motion for summary judgment on appellants' negligence claims was properly granted. -6- To prevail on a claim of negligent entrustment, appellants must establish that the motor vehicle was driven with permission of the owner, the driver was in fact incompetent, and the owner knew or had knowledge of such facts as to imply at the time of the entrustment that the entrustee was unlicensed or incompetent or unqualified. Gulla v. Straus (1950), 154 Ohio St. 193; see, also, Pierce v. Harris (Feb. 25, 1993), Cuyahoga App. No. 64212, unreported. In this case, the evidence clearly reveals that Karen Wright was the owner of the vehicle at the time of the accident. Accordingly, the trial court properly granted summary judgment to appellees on appellants' claim for negligent entrustment. Stillwell v. Johnson (1991), 76 Ohio App.3d 684, 690. Judgment affirmed. -7- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .