COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67746 ADOLFO M. ALVAREZ : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION RAYMOND J. SCHMIDLIN : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION MAY 4, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 261610 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: VINCENT F. GONZALEZ, ESQ. ROBERT J. FOULDS, ESQ. 2159 West Boulevard DAVID B. HENDERSON, ESQ. Cleveland, Ohio 44102 Dyson, Schmidlin & Foulds Co., L.P.A. 5843 Mayfield Road Cleveland, Ohio 44124 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Plaintiff-appellant Adolfo M. Alvarez appeals from an adverse summary judgment rendered in favor of defendant-appellee Raymond J. Schmidlin on plaintiff's legal malpractice claim. Plaintiff claims the trial court erred in granting summary judgment on the one year statute of limitations for legal malpractice (R.C. 2305.11(A)). We find no error and affirm the summary judgment granted below. Plaintiff retained defendant on May 7, 1992 to defend him in a case in Cuyahoga County Common Pleas Court entitled Weidlund v. Alvarez, C.P. Case No. 231744. The case was set for binding arbitration and heard on November 5, 1992. On November 9, the arbitration panel awarded Weidlund a $105,000 judgment against plaintiff. Plaintiff was notified of the judgment by defendant on November 12. On November 16, 1992, plaintiff paid defendant for his services and informed him he would seek counsel from a bankruptcy attorney, thereby terminating the attorney-client relationship with defendant. On November 23, 1993, plaintiff filed his legal malpractice complaint based on defendant's legal representation in the Weidlund case. On May 20, 1994, defendant filed his summary judgment motion based on the one year statute of limitations. On June 15, 1994, a pretrial conference was held. At that pretrial conference, plaintiff requested leave to file a brief in opposition to the - 3 - motion for summary judgment. According to defendant, the court granted leave and ordered plaintiff to file his brief by July 7, 1994. Plaintiff contends he had until July 27 to respond. On July 14, 1994, no opposition brief having been filed, the court granted summary judgment in favor of defendant. Plaintiff filed his opposition to the motion for summary judgment on July 27, 1994. Defendant contends that the court incorrectly transcribed the date to which leave was granted and that the court improperly granted summary judgment without opposition. Plaintiff's sole assignment of error states as follows: I. THE COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF APPELLEE'S AFFIDAVIT. The burden was on plaintiff to affirmatively address the statute of limitations defense raised by summary judgment. There is nothing in the record to support plaintiff's assertion that he had until July 27, 1994 to respond to the summary judgment motion, as there is no order in the file which indicates the date the court set for plaintiff's response. Where a party moves for summary judgment based upon the statute of limitations, the opposing party may not merely rely on his pleadings, but is under an affirmative duty to show, by affidavit or other evidentiary materials, that a genuine issue of material fact exists as to the statute of limitations defense. Riley v. Montgomery (1984), 11 Ohio St.3d 75, paragraph two of the syllabus; Francis v. Cleveland (1992), 78 Ohio App.3d 593, 597; Drakatos v. - 4 - Ford Motor Co. (July 5, 1990), Cuyahoga App. No. 58723, unreported at 3; Bd. of Educ. of Cleveland City School Dist. v. Lesko & Assoc. (April 12, 1990), Cuyahoga App. No. 56592, unreported at 8. To be considered under Civ. R. 56(E), an affidavit attached in support of a motion for summary judgment must set forth factual statements of which the affiant has personal knowledge; opinions may be included as long as they are rationally based on the affiant's perceptions and are helpful in determining the critical issue in the case. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 689. If the nonmoving party fails to respond with appropriate evidentiary materials, the affidavit of the moving party will be accepted as true. Lawrence R. Barker Co., L.P.A. v. Overseas Dev. Corp. (1989), 64 Ohio App.3d 545, 548; Gannett v. Booher (1983), 12 Ohio App.3d 49, 50; Strauch v. Gross (1983), 10 Ohio App.3d 303, 304; Stemen v. Shibley (1982), 11 Ohio App.3d 263, 268. In the case at bar, the only evidence before the court indicated that the attorney-client relationship was terminated on November 16, 1993. The defendant's affidavit in support of his motion for summary judgment was proper under Civ. R. 56(E) because it was based upon the personal knowledge of defendant. Youssef v. Parr, Inc., 69 Ohio App.3d at 689. R.C. 2305.11(A) provides a one year statute of limitations for a plaintiff to commence a legal malpractice action. An action for legal malpractice accrues and the statute of limitations begins to run when there is a cognizable event whereby the client discovers - 5 - or reasonably should have discovered that his injury was related to his attorney's act or omission and noticed a need to pursue his possible remedies against the attorney, or when the attorney-client relationship is terminated in the particular matter for which the attorney was retained, whichever occurs later. Zimmie v. Calfee, Halter and Griswold (1989), 43 Ohio St.3d 54, syllabus; Spencer v. McGill (1993), 87 Ohio App.3d 267, 278. The term "cognizable event" is an event sufficient to alert a reasonable person that in the course of legal representation his attorney committed an improper act. Spencer v. McGill (1993), 87 Ohio App.3d at 278. For example, in Gray v. Austin (1992), 75 Ohio App.3d 96, the court found that the granting of summary judgment against a party was a cognizable event which put that party on notice of his attorney's alleged negligence. See, also, Zimmie v. Calfee, Halter and Griswold (1989), 43 Ohio St.3d at 58 (cognizable event occurred when trial court invalidated the antenuptial agreement prepared by the defendant); Spencer v. McGill (1993), 87 Ohio App.3d at 278 (cognizable event occurred when appellant preparing to make distributions, became aware attorney redrafted partnership agreement without authority and when limited partner sought to enforce the new redrafted pay-out provision); McDade v. Spencer (1991), 75 Ohio App.3d 639, 642 (cognizable event occurred when plaintiff was cited for contempt for failing to comply with the settlement agreement); Cutcher v. Chapman (1991), 72 Ohio App.3d 265, 266 (cognizable event occurred when court entered - 6 - summary judgment in favor of the insurance company based on plaintiff's failure to bring a lawsuit within one year pursuant to the policy). In the instant case, plaintiff was hit with a binding arbitration award of $105,000. He claims he did not authorize his counsel to enter into the binding arbitration. The attorney-client relation-ship between defendant and plaintiff was terminated on November 16, 1993 when plaintiff paid defendant for his services and informed him he would seek counsel from a bankruptcy attorney. These were cognizable events. Plaintiff failed to commence a legal malpractice action within the one year statute of limitations required by R.C. 2305.11(A). His suit was not filed until November 23, 1993. The defendant's affidavit established without contradiction that: on November 11, 1992, counsel received notice of the arbitration award and notified plaintiff of same by regular U.S. mail; defendant also discussed the arbitration award with plaintiff by telephone on November 12, 1992; on November 16, 1992, plaintiff met with defendant at his office and further discussed the Weidlund case; at that point, plaintiff paid defendant for his services and terminated their attorney-client relationship with regard to the Weidlund case, indicating that he would seek the advice of an experienced bankruptcy attorney. (Schmidlin Aff. 5-9). The evidence before the court established that plaintiff failed to commence his action within the one year statute of limitations for legal malpractice. The cognizable event and the termination of - 7 - the attorney-client relationship all occurred by November 16, 1993. Therefore, both events triggering the statute of limitations for legal malpractice claims occurred over one year before the commencement of plaintiff's action. Plaintiff's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. DONALD C. NUGENT, PRESIDING JUDGE JAMES M. PORTER, JUDGE TERRENCE O'DONNELL, 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 journalization, at which .