COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59659 : JAMES A. SLATER, et al. : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION : J. ROSS HAFFEY, JR., et al. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT FEBRUARY 6, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 097745 JUDGMENT: Affirmed in part, Vacated in part, and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANTS: FOR DEFENDANT-APPELLEES: HARLEY J. MCNEAL ALAN M. PETROV MCNEAL, SCHICK, ARCHIBALD, 630 Bulkley Building & BIRO CO., L.P.A. 1501 Euclid Avenue 10th Floor, Illuminating Bldg. Cleveland, Ohio 44115 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Plaintiffs-Appellants James A. Slater and James A. Slater Inc. timely appeal the trial courts granting summary judgment to Defendants-Appellees J. Ross Haffey, Jr. ("Haffey"), John W. Bosco ("Bosco"), and Bernard, Haffey & Bosco Co., L.P.A. ("the Firm"). The sole issue before this court is whether the trial court erred in granting summary judgment because of the one year statute of limitations of R.C. 2305.11(A). For the reasons stated below, we affirm the summary judgment granted in favor of Haffey and the Firm, however, we reverse the decision as to Bosco. Appellants filed a complaint on September 13, 1985 seeking damages for malpractice against Appellees arising out of their attorney-client relationship. Appellees filed an answer on February 6, 1985. Appellees filed a notice of stay pursuant to the order of the United States Bankruptcy Court for the Northern District of Ohio. The basis of the stay was the Chapter 11 Bankruptcy proceeding filed by Bosco. On June 6, 1989, the trial court granted a stay of all proceedings against Bosco. On November 20, 1989, Haffey and the Firm filed a motion for summary judgment and claimed that recovery was barred because of the one year limitations on actions under R.C. 2305.11(A) and in the alternative relief should not be granted due to the lack of proximate cause. On January 3, 1990, the trial court granted the motion, and contrary to the stay and to the fact that Bosco did -3- not move for summary judgment, the trial court included Bosco in the summary judgment relief. On January 17, 1990, Appellants filed a 60(B) motion to vacate requesting leave to respond to Haffey's and the Firm's motion for summary judgment. The motion was granted, and Appellants were given until January 24, 1990 to file a brief in opposition to motion for summary judgment. Appellants filed their brief in opposition on January 24, 1990. Appellees' motion for summary judgment was supported in pertinent part by a letter dated February 24, 1982 from Haffey to the Common Pleas Court announcing his withdrawal as counsel for Appellants in Northwestern Service Corp. v. Slater. The letter indicated it was a copy which was sent to Appellants. Appellants' brief in opposition was supported in pertinent part by a letter dated October 11, 1984 from counsel for Northwestern Service Corp. to the Common Pleas Court law clerk and the affidavit of Appellant Slater. The letter indicated that Appellants were represented by Haffey at a September 21, 1984 hearing. One of the unresolved issues in the letter was whether Appellants were represented by counsel in the proceeding. Finally, the letter indicated that at the September 21, 1984 hearing the trial court instructed Appellants through Appellee Haffey to retain counsel. An objection was raised to the letter. Appellant Slater's affidavit "alleges" that Appellees -4- represented him on September 21, 1984, but fails to indicate that Appellant Slater had any personal knowledge. The trial court found that the claim for malpractice was filed on September 13, 1985 and relates to the Appellees' representation of Appellants in their case against Northwestern Service Corp. The trial court further found that Appellees withdrew from the case on February 24, 1982. The letter with which Appellants supplemented their brief in opposition to summary judgment was found not to be well taken, because it was not in compliance with Civ. R. 56(E) and Appellees objected to its consideration. Appellant Slater's affidavit was found to only "allege" certain facts and was not found contra- dictory to Haffey's withdrawal. On March 19, 1990, the trial court granted summary judgment in favor of all of the Appellees. In its opinion and order, the trial court concluded that there was no genuine issue as to whether the parties' attorney-client privilege ended more than one year before Appellants filed their complaint. Therefore, the trial court held that Appellants' claim against Appellees was barred by the statute of limitations pursuant to R.C. 2305.11(A). The trial court further reasoned that the statute of limitations bars recovery against Bosco. Thus, the trial court concluded that its summary judgment was a final appealable order. Before addressing Appellants' sole assignment of error, this -5- court must address the plain error which occurred when the trial court granted summary judgment in favor of Bosco. In Donovan v. Sunmark Industries, Inc. (1983), 10 Ohio App. 3d 219, this court held that: The imposition of the automatic stay prohibits the court from proceeding with the merits of a case pending before it where that action seeks to collect a claim against the bankruptcy petitioner. Any other result would permit the person with the protection of the stay to pursue resolution of the dispute in his favor, as was done here, while tying the hands of the party seeking relief. Id. at 221-222. (Citations omitted.) In the instant case, the stay from the United States Bankruptcy Court works as an "injunction" which prohibits any action taken for or against the Bankruptcy petitioner which attempts to reach his assets. Donovan at 221. But see, Cardinal Federal S. & L. Assn. v. Flugum (1983), 10 Ohio App. 3d 243. (Held automatic bankruptcy stay provisions only extend to the debtor filing bankruptcy proceedings and not to non-bankrupt co- defendants.) Therefore, the order granting summary judgment is vacated with respect to Bosco. All proceedings involving Bosco are remanded and ordered held in abeyance pending the resolution in the bankruptcy court or relief from the stay. Donovan at 222. Appellants' sole assignment of error states: THE TRIAL COURT *** ERRONEOUSLY GRANTED THE MOTION FOR SUMMARY JUDGMENT FILED BY THE APPELLEES *** Appellants argue that summary judgment should not have been granted because there is a genuine issue of material fact as to when the attorney-client relationship ended. We disagree. -6- "A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, citing, Celotex v. Catrett (1986), 479 U.S. 319. In a cause of action for legal malpractice, the client has the burden of proving that the complaint was filed within one year running of the statute of limitations: Under R.C. 2305.11(A), a cause of action for legal malpractice accrues and the one-year statute of limitations commences to run either when the client discovers or, in the exercise of reasonable diligence should have discovered, the resulting damage or injury, or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. Omni-Food & Fashion, Inc. v. Smith (1988), 38 Ohio St. 3d 385, paragraph one of the syllabus. In the instant case, Appellees supported their motion for summary judgment with Haffey's letter which suggests that he was permitted to withdraw from representation of Appellants on February 24, 1982. Appellants failed to challenge the authenticity or the accuracy of the letter. In response, Appellants supported their brief in opposition to summary judgment with a letter and affidavit. The letter was not admissible for purposes of summary judgment because it was not authenticated and Appellees objected to its admission. Civ. R. 56(E) and Evid. R. 901. See also, Tomlinson v. Cincinnati (1983), 4 Ohio St. 3d 66. -7- The affidavit which purports to authenticate the letter is not based upon the affiants' personal knowledge. Personal rather than second-hand knowledge of the facts is essential for and must be averred in a valid affidavit. E.g., Olverson v. Butler (1975), 45 Ohio App. 2d 9. Appellant Slater's statement that he "alleges" representation as late as September 21, 1984 does not suggest personal knowledge. Therefore, the trial court properly found that there was no genuine issue as to any material fact that the attorney client relationship ended on February 24, 1982, because Appellants failed to meet their burden to produce admissible evidence in compliance with Civ. R. 56(E) that would suggest otherwise. See, Wing. As a result, the trial court properly held that the statute of limitations, pursuant to 2305.11(A), barred Appellants' action against Appellees Haffey and the Firm. Thus, Appellants' sole assignment of error is not well taken. Judgment is affirmed as to Haffey and the Firm, but vacated, remanded and stayed pending bankruptcy proceedings as to Appellee Bosco. -8- It is ordered that Appellees and Appellants share the 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. Exceptions. NAHRA, P.J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .