COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69481 PLATINUM FINANCIAL SERVICES : LTD. ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION NEIL W. GURNEY, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-252976 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: IRWIN DINN (#0006032) DAVID B. HOCHMAN (#0016166) STEVEN B. POTTER (#0001513) DINN, HOCHMAN & POTTER 5885 LANDERBROOK DRIVE, #205 CLEVELAND, OHIO 44124 For Defendant-Appellee, Neil W. Burney, et al.: JULIUS R. GERLACK (#0003121) JOHN F. BURKE (#0059974) JEFFREY M. EMBLETON (#0006480) ELI MANOS (#0006468) MANSOUR, GAVIN, GERLACK, & MANOS 55 PUBLIC SQUARE, SUITE 2150 CLEVELAND, OH 44113-1994 (CONTINUED ON NEXT PAGE) - ii - For Appellee, Kahn, Kleinman, Yanowitz & Arnson: TIMOTHY T. BRICK (#0040526) ALTON L. STEPHENS (#0011505) GALLAGHER, SHARP, FULTON & NORMAN 7TH FLOOR, BUCKLEY BLDG. 1501 EUCLID AVENUE CLEVELAND, OHIO 44115 For Ulmer & Berne: WILLIAM H. BAUGHMAN (#0017485) KATHRYN M. MURRAY (#0036739) MARK O'NEILL (#0017502) WESTON, HURD, FALLON & HOWLEY 2500 TERMINAL TOWER 50 PUBLIC SQUARE CLEVELAND, OHIO 44113 - 3 - SPELLACY, C.J.: Plaintiffs-appellants Platinum Financial Services Limited Partnership I, Platinum Financial Services Limited Partnership, Soft-Lite/Mintz/Value-Line Limited Partnership, Joseph J. Jacobson, and Daniel F. Goldstein ("appellants") appeal the judgment of the trial court granting defendant-appellees Neil W. Gurney, Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. and Ulmer & Berne's ("appellees") motions for summary judgment. Appellants assign the following errors for our review: I. THE TRIAL COURT ERRED BY GRANTING GURNEY AND KAHN, KLEINMAN SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED BY GRANTING ULMER & BERNE'S MOTION FOR SUMMARY JUDGMENT. III. THE TRIAL COURT ERRED BY GRANTING KAHN, KLEINMAN'S MOTION TO STRIKE. IV. THE TRIAL COURT ERRED BY DENYING THE MOTION TO STRIKE DEPOSITION OF FRED SHINER. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. A complete review of the record reveals the following facts. On June 1, 1993, appellants filed a complaint against appellees alleging attorney malpractice. Appellants' complaint was subsequently amended on July 2, 1993. On November 18, 1994, appellee Ulmer & Berne filed its motion for summary judgment. On March 6, 1995, Neil Gurney ("Gurney") filed his motion for summary judgment. And, on March 7, 1995, - 4 - Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. ("Kahn, Kleinman") filed its motion for summary judgment. Subsequently, on May 10, 1995, the trial court overruled Ulmer & Berne's motion for summary judgment as to the claims of appellants Platinum Financial Services Ltd. Partnership I ("Platinum I"), Platinum Financial Services Partnership ("Platinum"), Soft-Lite/Mintz/Valu-Line Limited Partnership ("Soft- Lite"), and Joseph J. Jacobson ("Jacobson"), and granted Ulmer & Berne's motion for summary judgment as to the claims of Daniel Goldstein ("Goldstein"). (Journal Entry, May 10, 1995). Ulmer & Berne, on May 31, 1995, filed a motion for reconsideration of the trial court's ruling on its motion for summary judgment. On August 23, 1995, the trial court set forth the following rulings: 1) Gurney's motion filed 3-6-95 for summary judgment is granted (Journal Entry, August 23, 1995); 2) Kahn, Kleinman's motion filed 3-7-95 for summary judgment is granted (Journal Entry, August 23, 1995); and 3) Ulmer & Berne's motion filed May 31, 1995, for reconsideration is granted and request for oral hearing is moot. Ulmer & Berne's motion for summary judgment is granted. (Journal Entry, August 23, 1995). On June 29, 1995, Kahn, Kleinman filed a motion to strike depositional testimony and a motion for sanctions; and on August 9, 1995, appellants filed a motion to strike deposition of Fred Shiner and for sanctions. On August 23, 1995, the trial court granted Kahn, Kleinman's motion to strike and overruled Kahn, Kleinman's - 5 - motion for sanctions. (Journal Entry, August 23, 1995). Furthermore, the trial court denied appellants' motion to strike deposition of Fred Shiner and motion for sanctions. (Journal Entry, August 23, 1995). I. Platinum I was organized in the late 1980s for the purpose of financing retail installment sales contracts for home improvements. Platinum I would then resell the finance paper to other financial agencies. Platinum is the general partner of Platinum I. Soft-Lite is the general partner of Platinum. A network of home improvement contractors (dealers) were limited partners of Platinum I whose obligation was to give Platinum I the first opportunity to finance the home improvement contracts, as well as to purchase from Soft- Lite any of the items and products required for the home improvements. Platinum I also financed home improvements for contractors who were not limited partners. Beginning in January of 1990, Platinum I entered into dealer agreements with dealers in the states of Ohio, North Carolina and South Carolina. Mr. Gurney and Ulmer & Berne were hired to perform all of the legal services necessary for the organization and formation of Platinum I. Gurney was also responsible for preparing, approving and/or reviewing all documents Platinum I would require for the operation of its business. In particular, Gurney was responsible for the preparation of a single form package - 6 - of documents (the "First Paper") which included a variety of documents to be resold to other financial institutions. Thus, Gurney was responsible for insuring that all documents complied with applicable state and federal laws. Gurney was also required to generate employment agreements for certain Platinum I employees. Once Platinum I was developed, Gurney continued to act as general counsel. On or about November 14, 1990, however, Gurney left Ulmer & Berne and became a partner at appellee Kahn, Kleinman. (Depo., Gurney, June 9, 1994, p. 40). While at Kahn, Kleinman, Gurney continued to represent and act as supervising attorney for appellant Platinum I. Prior to leaving Ulmer & Berne, Gurney was aware that Platinum I had been talking to and communicating with dealers about the business. (Depo. Gurney, June 9, 1994, p. 55). Subsequently, Gurney became aware that Platinum I was trying to sell its paper to Associates Financial Services, Inc. ("Associates"). On or about January 15, 1991, Gurney was informed by appellee Goldstein that there was a problem with the First Paper. In particular, Associates had raised certain technical legal issues regarding the First Paper. (Depo., Gurney, June 9, 1994, p. 76). Gurney contacted Associates' lawyer Mr. Russell, and as a result, proceeded to revise the First Paper. (Depo., Gurney, June 9, 1994, p. 114). Subsequently, in the summer of 1991, a second set of documents (the "Second Paper") was drafted. - 7 - In February 1991, three employees from Associates traveled to Platinum I to inspect its portfolio. Mr. Fred Shiner, Operations VP at Associates, was one of the three individuals present. Mr. Shiner stated that his visit to Platinum I was brief. In particular, Mr. Shiner stated: It was a short call. * * * What stands out is that when I looked at some of the - - a portion of the receivables that there was - -the people - - the payments weren't there and these receivables had been open approximately, to the best of my recollection, like three to six months in time period and there's (sic) no payments being made and they're already in default. And when I asked if there was something I was overlooking and missing, the answer I received, you know, seemed too much of an excuse, so I pretty much stopped what I was doing because I just felt it was unnecessary to go any farther, and thanked the person for their (sic) time and really packed my bags and left. (Depo., Shiner, p. 18). After Mr. Shiner left Platinum I, Associates decided not to purchase the portfolio. (Depo., Shiner, p. 19). In particular, Shiner decided that the First Paper should not be purchased because Platinum I's loans had significant delinquencies. (Depo., Shiner, p. 20). And, according to Mr. Shiner, although he did not have the ultimate decision making power, if he said to his superiors that Associates should not buy the paper, it would be unlikely that the purchase would go through. (Depo., Shiner, p. 21). Mr. Shiner further stated that neither of the other two men with him at the time he inspected the portfolio, Mr. Knapp or Mr. Killian, would have had the authority to approve or reject the paper being offered - 8 - by Platinum I. (Depo., Shiner, p. 28). Subsequently, Platinum I was informed that Associates was not interested in purchasing the portfolio. On February 13, 1991, Platinum I temporarily suspended operations. Following the suspension of operation, Platinum I attempted to increase the amount of capital reserve. In April of 1991, Platinum I began doing business with Security Pacific Financial Services. (Depo., Goldstein, p. 337). During its initial dealings with Platinum I, Security Pacific expressed concerns regarding legal sufficiency of the paper used by Platinum I, specifically the late charge charged by Platinum I. However, the legal issue was rectified and Security Pacific proceeded to purchase the paper from Platinum I on or about May 6, 1991. (Depo., Cieslewicz, p. 43, 45). Security Pacific, however, purchased the paper at a discount, not because of the quality of the paper or the paperwork itself, but because the interest rate that Platinum I was receiving on its paper was not as high as the interest rate Security Pacific required. (Depo., Cieslewicz, p. 39-41). Platinum I began doing business with Household Finance at this time as well. (Depo., Goldstein, p. 337). In the spring of 1992, Platinum I began experiencing difficulties with both Security Pacific and Household Finance. On April 9, 1992, Security Pacific notified Platinum I that it had been acquired by Bank of America and that it no longer was going to - 9 - be purchasing home improvement paper. (Depo., Cieslewicz, p. 59). The termination of Security Pacific's relationship with Platinum I, however, did not have anything to do with Platinum I itself or Platinum I's loan documents. (Depo., Cieslewicz, p. 58). On May 4, 1992, Household Finance returned certain accounts to Platinum I and decided not to purchase any further accounts from Platinum I because the financial statements were unacceptable. Furthermore, Household Finance felt that Platinum I's ability to continually honor warranties was questionable. (Depo., Gurney, p. 123; see also Household Finance Letter, May 4, 1992). Subsequently, in early May 1992, Joseph Jacobson met with Gurney to discuss the dissolution of Platinum I's business. (Depo., Gurney, p.131). And, on May 27, 1992, Gurney drafted and faxed Scott Jacobson a letter which set forth that Platinum I had decided to discontinue its operation. On June 17, 1992, Platinum I was notified by one of its customers, ITT Consumer Financial Corporation, that the Second Paper contained legal deficiencies. (See ITT Letter, June 17, 1992). II. For the purpose of this appeal, appellants' third and fourth assignments of error will be addressed first. In their third assignment of error, appellants contend that the trial court erred in granting appellee, Kahn, Kleinman's motion to strike. In particular, appellants contend that it was improper - 10 - for the trial court to strike deposition testimony of Daniel Knapp, Daniel Goldstein, and Joseph Jacobson, as well as the testimony of appellants' expert witnesses. Appellants further contend that the trial court erred in striking their claim that Security Pacific refused to purchase Platinum I's paper due to legal defects. The admission or exclusion of relevant evidence is within the sound discretion of the trial court and its decision to admit or exclude such evidence cannot be reversed absent a showing of an abuse of discretion. In Re Whaley (1993), 86 Ohio App.3d 304, 316, citing Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269. Initially, we will address appellants' claim that the depositional testimony given by Daniel Knapp was inappropriately stricken from the record. Appellants argue that Knapp, an employee of Associates, had the right to make statements in his representative capacity on matters within the scope of his employment. Thus, the knowledge Knapp obtained constituted the words of the corporation. Furthermore, appellants contend that the testimony was admissible in that it constituted part of the res gestae. Kahn, Kleinman, on the other hand, states that Knapp's statements regarding the reasons why Associates decided not to purchase the First Paper from Platinum I constituted hearsay and were therefore inadmissible. Evid.R. 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." - 11 - In the case sub judice, Knapp testified as follows: Q: Now, you mentioned something about late charges as a problem that you learned about. Were there other problems that you also learned about? A: I think the late charge was the biggest issue. That and the completion of certifi- cates, if I remember right. Those documen- tations was (sic) missing in the files. Q: Do you know was one of the 2 things you mentioned, the late charges and the completion certificate issues, was one more significant than the other? A: I think the late charge issue was the major of the 2, if I am not mistaken. Q: Okay. And who did you get that understanding from? A: From Larry Killian. (Depo., Knapp, p. 38-40). Knapp further testified that: A: So, therefore, we could be holding paper that we can't collect on. Q: And was that something you just knew or something that was discussed between you and Larry? A: No. I believe that was discussed between home office attorneys and Larry Killian. Q: Okay. A: The attorneys from home office, I believe, didn't want to take that chance. (Depo., Knapp, p. 40). Q: Were you with Larry when he discussed the decision with Dan Goldstein? A: To pass on the paper? - 12 - Q: Yes. A: I don't think at that point in time that particular day Larry told him that he wasn't going to buy the paper. I think it was over the telephone. Q: Okay. Do you know whether or not Larry contacted Dan or whether Fred contacted Dan? A: I think it was Larry. Q: Okay. Now, you mentioned earlier that Dan was very upset when he heard of the decision? A: Yes. Q: How did you learn that he was upset? A: Well, because he called me. Q: And what did he say? A: He couldn't understand why we would not want to buy this paper with those corrections on it. At that point in time I said, "I don't make those decisions." (Depo., Knapp, p. 46-47). It is clear from Knapp's testimony that he did not make the decision not to purchase the paper, nor was he in the position to make such a decision. Furthermore, Knapp's testimony establishes that he was informed by Killian that the legal problems with the paper were the reason Associates decided not to purchase the paper. Though the trial court granted appellees' motion to strike Knapp's testimony, the record does not reflect why the evidence was - 13 - excluded. However, the record does reflect that Knapp's knowledge regarding why Associates decided not to purchase the First Paper from Platinum I was obtained through out-of-court statements made to Knapp by other people and offered by appellants to prove the truth of the matter asserted. Thus, Knapp's statements were inadmissible hearsay. Evid.R. 801. Appellants further contend that it was error for the trial court to strike testimony of Daniel Goldstein regarding the refusal of Associates to purchase the First Paper. In particular, Mr. Goldstein testified as to a conversation that he had with Mr. Killian, an employee of Associates, regarding the purchase of the paper. A: * * * Their meeting broke. Larry came into my office, wanted to have a meeting with me, explained to me that he was very pleased with the quality of the paper, the way it was put together and presented to him and the ease with which they were able to go through it, however, at this time they would be unable to purchase the paper from us. I then asked him why. He proceeded to explain to me that he was uncomfortable with the way Platinum had set up its handling of paper work with one document in multiple states. He said that is practically impossible to accomplish and that it was an amateurish act on our part. Based that there were problems with the paper work, even though we had sent out our letters to correct those problems, he still wasn't confident that the contract holders wouldn't have some claims against Associates and at this point in time he didn't feel we were ready to do business with them. (Depo., Goldstein, p. 286). - 14 - As with Knapp, the knowledge Goldstein had obtained relating to Associates' failure to purchase the First Paper is hearsay. Goldstein testified to out-of-court statements made to him by Mr. Killian and these statements were offered by appellants to prove the truth of the matter asserted. Because no exception to the hearsay rule applies, Golstein's testimony was properly excluded by the trial court as inadmissible hearsay. Evid.R. 801. Appellants further contend that the trial court erred in excluding testimony of Joseph Jacobson. Testimony given by Mr. Jacobson reveals that he believed the failure and eventual shut down of Platinum I was due to the legal insufficiency of the First Paper and Second Paper. (Depo., Joseph Jacobson, pp. 36-37, 45, and 54). However, the knowledge which Mr. Jacobson had regarding the refusal of various parties to purchase the Paper came through statements made to him by other individuals. In particular, Mr. Jacobson testified that: A: They didn't buy the paperwork because of the problems with the paper, that's correct. Q: Why do you believe that? A: Why do I believe that? Q: Yes, sir? A: Because they said that they couldn't do business with our paperwork, that it wasn't correct paperwork for them for the industry, and that the paperwork was legally incorrect, and they couldn't buy it. Q: Who said that? - 15 - A: I can't say exactly who, but I would say probably the gentleman who came in on February 13th probably was the final guy who said that to Danny. Because we were expecting a check that day, so I don't think anybody had told him before that time. So that gentleman who came in to give us a check must have said that to Danny. Q: Did anyone speaking on behalf of Associates ever say it to you directly? A: No. Q: Have you ever seen anything in writing stating that that's the reason that Associates did not buy Platinum paper? A: I don't believe so. Q: And your recollection is that Mr. Goldstein reported to you that he was told in person by whoever it was that came from the Associates that Associates was not going to buy the paper for that reason? A: Yes. (Depo., Joseph Jacobson, pp. 80-82). In the present case, appellants acknowledge that the testimony supra was properly excluded. However, appellants contend the trial court improperly struck the remainder of Mr. Jacobson's testimony. The motion to strike filed by Kahn, Kleinman, however, only focused on Mr. Jacobson's testimony supra. In its motion, Kahn, Kleinman did not request that the trial court strike all of Mr. Jacobson's testimony as argued by appellants. Therefore, the trial court properly excluded this testimony as double hearsay, out-of-court statements offered to prove the truth of the matter asserted. - 16 - Included in its motion to strike, Kahn, Kleinman further requested the trial court to strike appellants' claim that Security Pacific refused to purchase Platinum I's paper due to legal defects. In particular, Kahn, Kleinman asserted that appellants' claim was unsupported by the evidence and was directly contrary to the testimony of Edwin Ghegan and Thomas Cieslewicz. Appellants, however, contend that admissible evidence supporting their claim does exist. As stated supra, admission or exclusion of evidence is within the sound discretion of the trial court. See, Whaley, supra. In the case sub judice, two employees of Security Pacific testified that Security Pacific did, in fact, purchase the First Paper from Platinum I. The purchase of the First Paper, however, was discounted by Platinum I because the interest rate being charged on the First Paper was much lower than the interest rate Security Pacific required. Moreover, both individuals testified that the legal defects in the Paper had been resolved or Security Pacific would not have purchased the paper. Q: Again, we were discussing the discount and why it was purchased at a discount. And your explanation was that Security Pacific needed to yield 16 percent and the seller's or the portfolio's yield was 13.99 percent? A: Yes, that's true. (Depo., Ghegan, p. 43). Q: Is it your understanding that the problem with the late charge in the Platinum paper was resolved? - 17 - A: Yes. Q: Otherwise, Security Pacific would not have purchased the paper? A: Yes. (Depo., Ghegan, p. 49-51). Mr. Cieslewicz, a region manager of Security Pacific, also testified regarding the purchase of the Paper from Platinum I. Q: Is this a form letter that Platinum submitted to Security Pacific in response to Security Pacific's request that they advise their customers regarding the issue with the late charge? MR. POTTER: Objection. A: Yeah. Q: Did this letter satisfy Security Pacific? A: It must have because we went ahead with the purchase then in April. (Depo., Cieslewicz, p. 43). Q: Looking at this document, is it fair to say that Security Pacific decided to purchase a package of paper from Platinum on or about May 6th, 1991? A: That would have been the day the check changed hands from us to them, to Platinum, so I kept saying April. It looks like it was the first week of May. Q: Fair enough. So in fact Security Pacific did decide to purchase a package of paper from Platinum on or about May 6th, 1991? A: This was the first package, correct. Q: The answer is yes to my question? A: Yes. - 18 - (Depo., Cieslewicz, p. 45). On April 9, 1992, Security Pacific informed Platinum I that it would no longer be dealing in the home improvement financing field and that it would no longer be doing business with them. (Letter Security Pacific, April 9, 1992). This decision by Security Pacific had nothing to do with Platinum I or the loan documents. (Depo., Cieslewicz, p. 58). The testimony of Ghegan and Cieslewicz clearly shows that Security Pacific initially had a problem with the legality of the loan documents. However, their testimony also reveals that Security Pacific went ahead with the purchase of the Paper and that the legal issues had been corrected. Therefore, the trial court did not abuse its discretion in granting Kahn, Kleinman's motion to strike appellants' claim that Security Pacific did not purchase the paper due to legal insufficiencies. Finally, appellants argue that the trial court improperly granted Kahn, Kleinman's motion to strike expert testimony. Kahn, Kleinman's motion to strike set forth that the reports of Thomas Good, Douglas Whaley, Michael Calhoun, and Lewis Burke did not comply with Civ.R. 56(E) or Evid.R. 702 through Evid.R. 705. It is within the sound discretion of the trial court to determine the admissibility of expert testimony on a case-by-case basis. Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 157. Accordingly, the appellate court will not reverse the - 19 - decision of the trial court absent an "abuse of discretion". State v. Sage (1987), 31 Ohio St.3d 173. It is elementary that, except in unusual circumstances, an action in legal malpractice may not be maintained without expert testimony. Generally, however, expert testimony is introduced to support plaintiff's theory that his attorney failed to exercise the standard of care ordinarily exercised by attorneys in handling the matter in question. Rice v. Johnson & Sindell, et al. (August 26, 1993), Cuyahoga App. No. 63648, unreported. In the present case, however, appellants sought to introduce expert reports in order to prove the issue of proximate causation. The expert report of Thomas Good was based upon financial reports and data supplied to Mr. Good by appellants. Mr. Good's report determined that appellants had been negligent and that "as a direct result of the defective paper, Platinum I suffered operating losses which it was unable to recover as they were forced to liquidate the business." (See, Good Report). Douglas J. Whaley also determined that appellees had been negligent in their representation of appellants and stated that "[n]o lender not welcoming a lawsuit would purchase the forms Mr. Gurney drafted." (See, Whaley Report). The expert report drafted by Lewis Burke, based on the materials sent to Mr. Burke by appellants, also found the documents to be legally insufficient. (See, Burke Report). Evid.R. 703 provides: "The facts or data in the particular case upon which an expert bases an opinion or inference - 20 - may be those perceived by him or admitted in evidence at the hearing." Evid.R. 705 states, in its entirety: "The expert may testify in terms of opinion or inference and give his reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise." The Supreme Court of Ohio has held: "The hypothesis upon which an expert witness is asked to state an opinion must be based upon facts within the witness' own personal knowledge or upon facts shown by other evidence." Burens v. Indus. Comm. of Ohio (1955), 162 Ohio St. 549, paragraph one of the syllabus. See, also Sowers v. Middletown Hosp. (1993), 89 Ohio App.3d 572. Herein, appellants sought to introduce the reports of their expert witnesses. Such reports not only contain each expert's conclusion that appellees breached the duty of care owed to appellants, but the reports also contain the experts' hypothesis of why Platinum I eventually failed. Appellants' experts, in order to formulate a hypothesis as to why Platinum I failed, were restricted to facts shown by evidence in the record and their own personal knowledge of why various companies chose not to do business with Platinum I or why Platinum I's Paper was sold at a discount. The record, however, does not indicate that appellants' experts discussed the case with any representative of Associates, Security Pacific, Home Financial, or ITT. Furthermore, the expert witness reports were based solely upon information given to them by appellants, much of which has - 21 - been previously determined to be inadmissible. Thus, the trial court properly determined that appellants' experts did not have personal knowledge regarding Associates' failure to purchase appellants' paper; Security Pacific's decision to purchase appellants' paper at a discount and eventually discontinue business with appellants; or appellants' decision to terminate operation of Platinum I prior to learning of the legal defects of the Second Paper. Accordingly, the trial court properly granted appellees' motion to strike and appellants' third assignment of error is overruled. III. In their fourth assignment of error, appellants contend that the trial court erred by denying their motion to strike the depositional testimony of Fred Shiner. In particular, appellants argue that the Shiner deposition violated Massachusetts Rules of Civil Procedure. Appellants further assert that the deposition violated both Civ.R. 30(E) because it did not contain Mr. Shiner's signature and Civ.R. 32(A) in that appellees did not file the deposition at least one day prior to the summary judgment hearing. On August 1, 1995, Kahn, Kleiman filed its notice to take Mr. Shiner's deposition, and on August 7, 1995, the deposition of Fred Shiner, an Associates representative, was taken in Massachusetts. Subsequently, Mr. Shiner's deposition was filed with the trial - 22 - court on August 9, 1995. On August 23, 1995, an errata sheet and signature page to the deposition of Fred Shiner was filed. Appellants suggest that a conflict of law issue exists because Mr. Shiner's deposition testimony was taken in Massachusetts. In Morgan v. Biro Mfg. Co. (1984), 15 Ohio St.3d 339, the Supreme Court of Ohio held that when a choice-of-law issue is presented, Ohio courts are to review the question in light of the approach set forth in the Restatement of the Law of Conflicts. 1 Restatement of the Law 2d, Conflict of Laws 350, Section 122 provides: "[a] court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local rules of another state to resolve other issues in the case." (See also, The Limited Stores, Inc. v. Pan American World Airways, Inc. et al. (February 8, 1991), Franklin App. No. 89AP-502, unreported, aff'd [rev'] on other grounds, 65 Ohio St.3d 66.) Therefore, the trial court appropriately applied the Ohio procedural law in proceeding with Mr. Shiner's deposition in Massachusetts. Civ.R. 32(A) provides, in pertinent part: Every deposition intended to be presented as evidence must be filed at least one day before the day of trial or hearing unless for good cause shown the court permits a later filing. Appellees filed the deposition of Mr. Shiner on August 9, 1995, and the summary judgment hearing conducted by the court was August 10, 1995. Civ.R. 30(E) requires that the deposition be signed by the witness, unless the parties by stipulation waive the signing or the - 23 - witness is ill or cannot be found or refuses to sign. Mr. Shiner's deposition, however, did not contain his signature. Thus, Mr. Shiner's deposition was not properly filed on August 9, 1995. However, although both Civ.R. 32(A) and Civ.R. 30(E) are mandatory, Civ.R. 32(A) permits a deposition to be filed at a later time when the trial court finds good cause for the delay. Armstrong v. Diamond Shamrock Corp. (1982), 7 Ohio App.3d 296. A decision of the trial court finding good cause for delay will not be disturbed on appeal, absent a showing that the trial court abused its discretion in making such a determination. Id. The deposition of Mr. Shiner was taken by Kahn, Kleinman on August 7, 1995. Appellants' counsel was present at the deposition and had the opportunity to cross-examine Mr. Shiner. Subsequently, appellants should have been on notice that Kahn, Kleinman possibly intended to use the depositional testimony of Mr. Shiner. Further- more, Kahn, Kleinman, on August 23, 1995, subsequently filed an errata sheet and signature page to deposition of Fred Shiner. Because appellants were given notice that Mr. Shiner was going to be deposed, were present at the deposition, had an opportunity to question Mr. Shiner, the deposition was filed one day prior to the summary judgment hearing, and Kahn, Kleinman subsequently filed a signature page, the trial court did not abuse its discretion in denying appellants' motion to strike the deposition of Fred Shiner. Accordingly, appellants' fourth assignment of error is overruled. - 24 - IV. In their first assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of Neil Gurney and Kahn, Kleinman. The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to 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. Lovsin, et al. v. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported. Turner v. Turner (1993), 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In the instant case it cannot be stressed too much that the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108 as modified by Dresher v. Burt (1996), 75 Ohio St.3d 280. In order to prevail on a claim of legal malpractice, appellants must establish that there was an attorney-client relationship between the parties, that Gurney breached the duty to exercise the requisite knowledge, skill, and ability ordinarily used by members of his profession, and that appellants' losses were - 25 - proximately caused by Gurney's breach of duty. Greene v. Barrett (1995), 102 Ohio App.3d 525, 531-532. Thus, in order to succeed in an action for attorney malpractice, appellants must affirmatively show the existence of each element. For purposes of this appeal, the issue of proximate cause will be addressed first. In the present case, appellants argue that since the record contains considerable evidence from which a jury could conclude that appellees' negligence proximately caused damage, summary judgment should not have been granted. Moreover, appellants assert that determination of proximate cause is a decision to be made solely by the trier of fact and that deter- mination of causation may be based upon reasonable inferences. In Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, the court stated that proximate cause is normally a question of fact. However, where appellants have failed to provide any evidence on the issue of causation, no question of fact is present. Seimon v. Becton Dickinson & Company (November 29, 1993), Cuyahoga App. No. 63949, unreported. In the instant case, summary judgment was properly granted in favor of appellees. Appellees presented evidentiary materials and depositional testimony indicating that there were no genuine issues of material fact regarding the failure of various companies to purchase appellants' First Paper. In particular, testimony was introduced that Associates refused to purchase appellants' Paper, not because of legal defects, but because payments were not being - 26 - made on the receivables. (Depo., Shiner, pp. 19-22). Furthermore, testimony was introduced that Security Pacific purchased appellants' Paper at a discount, not because of legal defects in the documents, but because the interest rate charged by appellants was not high enough. Moreover, Security Pacific ended its relationship with appellants because it was no longer interested in doing business in the home improvement financing field. Appellants also argue that appellees' negligence in drafting the Second Paper proximately caused it to eventually terminate operations. This claim is also unsupported by the record. The record does, however, reveal that appellants informed Gurney in May 1994, that they wished to terminate operations for financial reasons. (See Plaintiff's Exhibit 52). And, only after appellants had already made the decision to terminate operations, were they informed by ITT, in June 1994, that the Second Paper was legally insufficient. (See, ITT Letter, June 17, 1994). Appellants have failed to support their claim that appellees' negligence proximately caused the eventual demise of Platinum I. All of the evidence sought to be introduced by appellants which would have raised an issue of material fact was found by the trial court to be inadmissible. (See discussion supra). Thus, the trial court properly found that appellants had failed to present any evidence of proximate causation and properly granted summary judgment. - 27 - Accordingly, appellants' first assignment of error is overruled. V. In their second assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of Ulmer & Berne. Before addressing whether the trial court erred in awarding summary judgment in favor of Ulmer & Berne, this court will address whether appellants' legal malpractice action against Ulmer & Berne was barred by Ohio's one-year statute of limitations. The statute of limitations applicable to legal malpractice actions is set forth in R.C. 2305.11(A) which states in relevant part: "[a]n action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * *." Zimme v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54, 56-57. The Supreme Court of Ohio further determined that under R.C. 2305.11(A) "an action for legal malpractice accrues and the statute of limitations begins to run when there is 1) a cognizable event (the "discovery rule"), or 2) when the attorney-client relationship for that particular transaction or undertaking terminates (the "termination rule"), whichever occurs later." Id. at 58. A cognizable event has been defined as an event whereby the client discovers or should have discovered that his injury was related to his attorney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney. Id. - 28 - On or about November 1, 1990, appellants' relationship with Ulmer & Berne terminated when Gurney left Ulmer & Berne and became a partner at Kahn, Kleinman. After Gurney left Ulmer & Berne, he no longer performed any of appellants' work with any attorneys from Ulmer & Berne. (Depo., Gurney, June 9, 1994, p. 180). Nor did Gurney know of any work which Ulmer & Berne continued to perform for appellants. Id. Based on the termination rule, we find that appellants' cause of action for legal malpractice against Ulmer & Berne accrued in November 1990 when Gurney left Ulmer & Berne, became a partner at Kahn, Kleinman and took appellants' file with him. However, this does not complete our inquiry. We must now determine when appellants' legal malpractice action accrued under the discovery rule. Then we must compare the accrual dates based on the termination and the discovery rule. Whichever date is later will be the accrual date for the commencement of the statute of limitations in appellants' malpractice action. In this case, we find that the cognizable event, whereby appellants discovered or should have discovered that they had been injured by Gurney's action and were put on notice of their need to pursue possible remedies against appellees, occurred on February 13, 1991, when they contend Associates refused to purchase the First Paper due to its legal insufficiency. Comparing the accrual date of appellants' legal malpractice action under the discovery rule, which is February 13, 1991, with - 29 - the accrual date under the termination rule, which is November 1990, we find that the accrual date based on the discovery rule is the later. Thus, February 13, 1991, is the accrual date for the commencement of the statute of limitations in appellants' legal malpractice action. Under R.C. 2305.11 (A), a legal malpractice action must be brought within a year after the cause of action accrued. Zimmie, supra at 59. Since the complaint was filed on June 1, 1993, approximately two and a half years after February 13, 1991, appellants' legal malpractice action against Ulmer & Berne is barred by Ohio's statute of limitations. Accordingly, appellants' second assignment of error is overruled. Judgment affirmed. - 30 - 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. DAVID T. MATIA, J. and TIMOTHY E. McMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This 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(B) 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 .