Tabbaa v. Raslan , 2012 Ohio 367 ( 2012 )

[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