[Cite as Tabbaa v. Raslan, 2012-Ohio-367.]


                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97055




                       MOHAMMAD TABBAA, ET AL.
                                                      PLAINTIFFS-APPELLEES

                                                vs.

                                LILA RASLAN, ET AL.
                                                      DEFENDANTS-APPELLANTS




                                             JUDGMENT:
                                              AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-714923

        BEFORE: Cooney, J., Stewart, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: February 2, 2012
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ATTORNEYS FOR APPELLANTS

Jorge Luis Pla
Raslan & Pla, LLC
1701 East 12th St., Suite 3GW
Reserve Square Building
Cleveland, Ohio 44114

David Ledman
35000 Chardon Road
Suite 105
Willoughby Hills, Ohio 44094


ATTORNEY FOR APPELLEES

David A. Corrado
Skylight Office Tower, Suite 410
1660 W. Second Street
Cleveland, Ohio 44114-1454




COLLEEN CONWAY COONEY, J.:

      {¶ 1} Defendants-appellants, Lila Raslan, et al. (“Lila”), appeal the trial court’s

granting the motion to disqualify her attorney, Jorge Pla (“Pla”), and the firm of Raslan

and Pla, LLC, which was filed by plaintiffs-appellees, Mohammad Tabbaa, et al.

(“Tabbaa”).   Finding no merit to the appeal, we affirm.

      {¶ 2} In 2002, Tabbaa and Fares Raslan (“Fares”) became business partners,

opening Luna’s Deli and Grille (“Luna’s”) in Fairlawn, Ohio.     Tabbaa and Fares hired
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Fares’s wife, Lila, an attorney, to help them form a limited liability company. Tabbaa

alleges that Lila’s law partner, Pla,1 also assisted in this representation, thus serving as

counsel for Tabbaa.

       {¶ 3} In 2003, Tabbaa and Fares purchased the property on which Luna’s was

located.   Once again, they hired Lila, and allegedly Pla, to assist them in forming a

second limited liability company, Kay Properties, LLC, in order to purchase the property.

 Fares and Tabbaa were also represented by the firm in securing a loan with National

City Bank (“NCB”) in order to purchase the property. Fares alleges that he and Tabbaa

later transferred their shares of the business and the property to their wives, Lila Raslan

and Luna Tabbaa.

       {¶ 4} In 2007, Luna’s began to fail financially.    Kay Properties also defaulted on

its loan with NCB. NCB foreclosed on the property and filed an action against Tabbaa

and Fares.    Tabbaa and Fares filed cross-claims against each other.        Pla represented

Fares in that action. Tabbaa filed a motion to disqualify Pla from representing Fares due

to a conflict of interest.   The trial court granted Tabbaa’s motion.   Fares did not appeal

the trial court’s ruling but filed a motion to reconsider. However, prior to the court’s

ruling on the motion to reconsider, Pla withdrew and a new attorney filed a notice of




          The firm in which Lila and Pla were partners was originally named Raslan, El-Kamhawy
       1


& Pla, LLC, but the firm underwent a name change in 2009 and is now Raslan & Pla, LLC.
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appearance.    The trial court subsequently found Fares’s motion for reconsideration to be

moot.

        {¶ 5} The trial court granted summary judgment to NCB and bifurcated Tabbaa’s

and Fares’s cross-claims from the NCB foreclosure. Tabbaa and Fares then dismissed

the cross-claims.     Tabbaa alleges that Pla subsequently purchased the foreclosed

property from NCB at auction and is now a necessary and indispensable witness in that

case.

        {¶ 6} In 2010, Tabbaa filed the instant case, seeking declaratory relief against

Lila, arguing that Lila has no interest in the business or property because the alleged

transfer to Lila and Luna Tabbaa had no legal effect.     Lila and Fares filed counterclaims

against Tabbaa.     Pla filed a notice of appearance on behalf of Lila.   In September 2010,

Tabbaa filed a motion to disqualify Pla, which was “dismissed” by the trial court without

prejudice.    Months later, counsel for Tabbaa orally renewed the motion to disqualify Pla

and the trial court granted the motion.

        {¶ 7} Lila now appeals, raising six assignments of error.

        {¶ 8} A trial court’s decision to disqualify a litigant’s attorney is a final,

appealable order. Carnegie Cos., Inc. v. Summit Properties, Inc., 183 Ohio App.3d 770,

2009-Ohio-4655, 918 N.E.2d 1052, ¶ 17 (9th Dist.), quoting Russell v. Mercy Hosp., 15

Ohio St.3d 37, 472 N.E.2d 695 (1984), syllabus.
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      {¶ 9} In her first assignment of error, Lila argues that the trial court abused its

discretion in granting Tabbaa’s motion to disqualify attorney Pla because the Dana2 test

was not applied. In her second assignment of error, Lila argues that the trial court abused

its discretion in granting Tabbaa’s motion to disqualify attorney Pla because there was no

attorney-client relationship between Pla and Lila.      In her third assignment of error, Lila

argues that the trial court abused its discretion in granting Tabbaa’s motion to disqualify

attorney Pla because Tabbaa never alleged an attorney-client privilege.         In her fourth

assignment of error, Lila argues that the Dana test was not met because Tabbaa failed to

demonstrate that attorney Pla acquired confidential information.

      {¶ 10} Lila’s first four assignments of error require this court to review the factual

findings of the trial court in order to evaluate whether it abused its discretion in

disqualifying attorney Pla based on alleged conflicts of interest. However, Lila has

failed to file a transcript of the hearing where the court reconsidered the motion to

disqualify. The record on appeal must contain the transcripts of proceedings held in the

trial court as well as papers and exhibits filed below. App.R. 9(A). The appellant has

the duty to ensure that the record on appeal contains any transcripts “necessary for the

determination of the appeal[.]” App.R. 10(A).

      It is axiomatic that the party challenging a judgment has the burden to file
      an adequate record with the reviewing court to exemplify its claims of error.
        Absent certification of an adequate record, a reviewing court must


       Dana v. Blue Cross & Blue Shield, 900 F.2d 882, 889 (6th Cir.1990).
      2
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       presume regularity of the proceedings and affirm the judgment of the trial
       court. West v. Allstate Ins. Co., 8th Dist. No. 87825, 2007-Ohio-76, ¶ 8,
       citing Chaney v. East, 97 Ohio App.3d 431, 435, 646 N.E.2d 1138 (8th
       Dist. 1994).

       {¶ 11} Moreover, Lila’s options were not limited to the actual transcript.       If a

transcript is unavailable, an appellant may submit an App.R. 9(C) statement or an App.R.

9(D) agreed statement of the case in lieu thereof.    Lila has provided neither a transcript

nor a suitable alternative.

       When portions of the transcript necessary for resolution of assigned errors
       are omitted from the record, the reviewing court has nothing to pass upon
       and thus, as to those assigned errors, the court has no choice but to presume
       the validity of the lower court’s proceedings, and affirm. Knapp v.
       Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

Consequently, we are unable to determine whether the trial court abused its discretion or

failed to apply the Dana test, as alleged. See also Easterwood v. Easterwood, 9th Dist.

No. 09CA0043-M, 2010-Ohio-214.

       {¶ 12} Therefore, we presume the regularity of the trial court’s proceedings and

find that the court did not abuse its discretion in disqualifying attorney Pla.

       {¶ 13} Accordingly, Lila’s first four assignments of error are overruled.

       {¶ 14} In her fifth assignment of error, Lila argues that res judicata does not

preclude this matter because the previous case was voluntarily dismissed.

       {¶ 15} Having presumed regularity in terms of the trial court’s decision to grant

Tabbaa’s motion to disqualify, the question of whether res judicata applies is now moot.

       {¶ 16} Accordingly, Lila’s fifth assignment of error is overruled.
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       {¶ 17} In her sixth assignment of error, Lila argues that the trial court abused its

discretion in failing to follow proper procedure in ruling on attorney Pla’s

disqualification.

       {¶ 18} First, Lila argues that after Tabbaa’s counsel orally renewed his motion to

disqualify Pla in June 2011, she was not given seven days to reply in writing. Lila also

argues that she was not given a hearing on the matter.

       A trial court, however, is not required to hold a hearing on every motion to
       disqualify counsel on the basis of a conflict of interest. Shawnee Assoc.,
       L.P. v. Shawnee Hills, 5th Dist. No. 07CAE050022, 2008-Ohio-461, ¶ 34
       (finding that Kala [v. Aluminum Smelting & Refining Co., Inc., 81 Ohio
       St.3d 1, 688 N.E.2d 258 (1998),] stands for the proposition that a trial court
       must hold an evidentiary hearing on “side-switching” cases, not all cases);
       Harsh v. Kwait, 8th Dist. No. 76683, at 3-4, (Oct. 5, 2000); Luce v.
       Alcox, 10th Dist. No. 04AP-1250, 2005-Ohio-3373, ¶ 6. Holmer v.
       Holmer, 3d Dist. No. 13-07-28, 2008-Ohio-3228, at ¶ 25.

Lila was aware of the grounds for disqualification because the motion was filed in

September 2010. Thus, the “hearing” held on reconsidering the motion in June 2011

provided her an opportunity to be heard on the issues raised.

       {¶ 19} Accordingly, Lila’s sixth assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellees recover of appellants 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.
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      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
MARY EILEEN KILBANE, J., CONCUR
