[Cite as Am. Surface Solutions, L.L.C. v. N. Am., 2019-Ohio-2909.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

AMERICAN SURFACE SOLUTIONS, : 

L.L.C., 

 Plaintiff-Appellee, : 

 No. 107225 

 v. : 

 

NICHOLAS NORTH AMERICA, : 

ET AL., 

 Defendants-Appellants. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: July 18, 2019 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-17-875451 

 

Appearances: 

Bradley Hull, for appellee. 

James Alexander, for appellant. 

KATHLEEN ANN KEOUGH, J.: 

Defendants-appellants, Nicholas North America (“North America”), 

and SteepleJacks of America, L.L.C. (“SteepleJacks”) (collectively “appellants”), 

appeal the trial court’s decision entering judgment against them and in favor of 

plaintiff-appellee, American Surface Solutions, L.L.C. (“appellee” or “American 
Surface”). For the reasons that follow, we reverse the trial court’s judgment and 

remand for further proceedings. 

In February 6, 2017, American Surface, through its owner Justin 

Morales (“Morales”), filed a complaint against appellants, Christopher Hardin, 

American Surface Solutions Group, L.L.C., Network Solutions, L.L.C., and Citizens 

Financial Group, a.k.a. Citizens Bank, raising causes of action for fraud, tortious 

interference with business relations, negligence with willful and wanton 

misconduct, negligence, civil theft, conversion, deceptive trade practices, unjust 

enrichment, and fraud in the inducement. The complaint arises out of allegations 

that Hardin, without authority, contracted and engaged in work under the guise of 

American Surface, but retained all profits and incurred debts. It was alleged that 

Hardin’s grandfather, North America, facilitated, perpetuated, and concealed 

Hardin’s conduct by establishing a business similar in nature and name to that of 

American Surface, and allowing Hardin to utilize North America’s business, 

SteepleJacks, as his business operations. American Surface claimed that based on 

appellants’ conduct, they were liable for expenses incurred from unpaid invoices and 

work not being completed and damage to the business’s reputation. 

On the same day that the complaint was filed, American Surface 

sought and obtained a temporary restraining order (“TRO”) against appellants, 

including a restraint against bank accounts belonging solely to SteepleJacks. 

Subsequently, in March 2017, the parties relevant to this appeal, reached an 
agreement regarding the content of the TRO and it was dismissed; the TRO 

remained in effect against Hardin. 

At the February 8, 2018 final pretrial, the trial court granted 

appellants’ counsel’s oral motion to withdraw. The record reflects that at the hearing 

the trial court warned appellants that a continuance of the February 28 trial would 

not be granted. Moreover, the trial court advised that although North America could 

represent himself, he could not represent SteepleJacks. 

Two days prior to trial, new counsel for appellants filed a notice of 

appearance and also requested a continuance of trial. The motion to continue was 

denied the following day. On February 28, the day of trial, appellants appeared with 

counsel, who stated that his presence was for the limited purpose of seeking a 

continuance. He indicated that he had been recently retained and was not prepared 

to go forward with trial; he would need a continuance. The trial court noted that the 

continuance was previously denied. It also stated on the record that North America 

was advised at the final pretrial that no continuances of trial would be granted and 

that he could not represent SteepleJacks during the proceedings. Because counsel 

was unable to proceed and the continuance was denied, North America represented 

himself pro se. 

Additionally, because SteepleJacks was not represented by counsel, 

the trial court proceeded to conduct a “default” hearing against SteepleJacks. 

Following the presentation of evidence, the trial court entered a general “default 

judgment” in favor of American Surface and against SteepleJacks in the amount of 
$72,066.61. The court held the determination of punitive damages in abeyance until 

after the trial on the claims against North America. 

A jury was empaneled and American Surface’s claims solely against 

North America were presented to the jury with the following testimony and 

evidence. 

Morales testified that he owns “American Surface Solutions, L.L.C.,” 

a rubber pour-in-place business, that was informally started in 2015. He officially 

registered his business with the Ohio Secretary of State on May 5, 2016. According 

to Morales, he created the name, logo, and graphics in 2015. He stated that he 

created the name “American Surface Solutions” from his previous concrete company 

named “Resurfacing Solutions.” He stated that he got into the field of rubber 

resurfacing through his friend, Hardin, who used to be in the pour-in-place business 

prior to Hardin’s incarceration for getting paid to do jobs, but not performing the 

work. Hardin’s prior business was named “American Safety Surface.” According to 

Morales, Hardin’s company went under due to Hardin’s conduct and Morales 

thought he could help out his friend. Plaintiff’s exhibit No. 9 was an email sent in 

February 2014 from Hardin’s email “americansurface@aol.com” to Morales asking 

about whether he “ever look[ed] over my business and see what u wanna do? Busy 

season starts in a week or two.” 

Morales testified that he believed that Hardin did not act in good faith 

in attempting to generate business on behalf of American Surface. He stated that 
they never agreed on distribution of profits and disagreed on “the cut” Hardin 

should receive from jobs performed. 

In fact, Morales discovered in January 2017 that Hardin was doing 

business under the guise of American Surface. Hardin created business cards and 

letterhead with American Surface’s logo, but they did not contain any contact 

information relating to American Surface — the address was that of SteepleJacks. 

The business cards reflected that Hardin was the “owner/project manager” of 

American Surface. 

Morales testified about a contract that was obtained through 

discovery purportedly between American Surface and Fasting Enterprises, a 

company in Washington D.C. The contract provided that the proposed start date 

would be October 17, 2016, with an estimated finish date of December 17, 2016. The 

contract was executed by “Chris Morales, V.P., American Surface Solutions.” The 

contract was for $114,760. An accompanying letter provided that American Surface 

has “been in business for 10 years.” Morales stated that this statement was not true 

as to his company; only Hardin’s prior company would qualify. Additionally, 

Morales stated that the references that were listed were not associated with 

American Surface. 

Morales stated that he did not authorize the contract and that his 

business did not receive any compensation from Hardin under this contract. Once 

he discovered the existence of the contract, Morales had to take out a loan to correct 

Hardin’s work and was damaged $7,000. 
Morales also testified about a job that Hardin contracted for and 

partially completed at a children’s learning center in Indiana. Morales testified that 

he became aware of the contract when the center’s coordinator contacted him and 

advised him that the work was not completed, but that the money was paid. Based 

on the information that he was provided, Morales testified that Hardin prepared an 

estimate on March 31, 2016, for the center. The contract was signed by the center 

on May 4, 2016, and by Hardin on May 10. It contained Hardin’s personal contact 

information and a website “www.americansurfacesolutions.com, but was faxed 

between the parties using SteepleJacks’ fax number. The contract provided for 

removal of the existing wooden structure, the purchase and installation of new 

playground equipment, and repair and resurface of an existing play area. The total 

contract price was $68,120. 

Morales testified that the center issued two checks payable to 

“American Surface Solutions.” The checks were issued on May 5, 2016, and 

September 30, 2016, in the amounts of $42,040 and $20,750, respectively and 

endorsed by “American Surface Solutions.” According to bank records, the May 

check was deposited into a Citizen’s Bank Account owned by “Nicholas North 

America, d.b.a. American Surface Solutions.” Morales testified that he never 

received, endorsed, or deposited these checks. 

Morales also discovered at this time that he did not own the website 

domain “www.americansurfacesolutions.com.” According to Morales, Hardin 

encouraged him to use the host company “Big Tuna” to set up a website. Morales 
testified that he was paying for this service, but discovered that the domain name 

“americansurfacesolutions.com” was registered to SteepleJacks on December 30, 

2015. When he asked Hardin to change ownership of the domain name to him, 

Hardin told him “nice try” and laughed it off. Accordingly, Morales was forced to 

create a new website: “americansurfacesolutions.net.” 

Morales told the jury about negative reviews that American Surface 

received on various web-based search engines. Both reviews warned about doing 

business with American Surface and Hardin stating that money was paid, but no 

work was ever performed. 

Morales gave testimony about a truck rental from Penske that he did 

not authorize. According to Morales, he was contacted by Penske for an unpaid 

balance of $2,276.61 for a truck rental to “American Surface Solutions.” Based on 

the records he received through discovery, Morales stated that Hardin rented a 

Penske truck on two occasions — May 17 and 23, 2016. The rental agreement noted 

that the address for American Surface Solutions was the physical address of 

SteepleJacks. Morales stated that he did not pay the outstanding invoice — 

$2,276.61 was still due and owing. 

Morales also testified about bank records received through discovery. 

He stated that the Citizen’s Bank Account, owned by “Nicholas North America, d.b.a. 

American Surface Solutions,” was opened on March 3, 2016, and closed in June 

2016. He stated that he did not authorize this bank account to be opened. The 

records show that the May check received from the Indiana learning center was 
endorsed by American Surface Solutions and deposited into the account. According 

to Morales, the records reveal that money was transferred between this account and 

accounts owned by North America and SteepleJacks. Additionally, checks were 

issued from this account payable to Hardin, cash, and other individuals. According 

to Morales, the signatures on the signature line of the checks were the signatures of 

“Nick America” and Hardin; no checks were endorsed by North America. Morales 

denied that he ever authorized any deposits, transfers, or payments from this 

account. 

North America’s Role 

Morales testified that North America did not have any authority to act 

on behalf of American Surface both before and after it was formally organized. 

According to Morales, he sued SteepleJacks and North America because the money 

that Hardin collected doing jobs under the guise of American Surface was deposited 

into accounts that North America had control over, including the Citizens Bank 

account, and Hardin used SteepleJacks’ business address and operations — the 

business that North America owned. 

Morales further stated that through discovery he obtained a 

handwritten document that indicated how Hardin and North America would split 

the profits from American Surface Solutions. Morales indicated this was how 

Hardin was going to “pay back” North America. 

 
Damages 

Morales testified that he suffered damages in the amount of 

$72,066.61 based on three separate incidents. First, he stated that $62,790 was paid 

to “American Surface Solutions” from the Indiana learning center — the job was 

performed under his company name, but not paid to his company. He stated that 

he had to take out a loan to correct the job that Hardin contracted for with Fasting 

Enterprises, but stated he only suffered damage in the amount of $7,000. Finally, 

he stated that he suffered damages in the amount of $2,276.61 for the unpaid Penske 

bill. 

North America’s Testimony 

North America was called as a witness by American Surface on crossexamination. He testified he was trying to help his grandson, Hardin, with a 

business venture. North America testified that he formed “American Surface 

Solutions” in December 2015, which is when he admitted that he owned the domain 

name “americansurfacesolutions.com” and that he did not give it to Hardin to turn 

over to Morales even after North America was made aware of the situation. North 

America testified that he formally established “American Surface Solutions Group” 

with the Ohio Secretary of State for his grandson, who operated the business solely 

on his own. North America stated that his grandson had 12-years of experience in 

the rubber pour-in-place field and that his grandson previously ran a business — 

“American Safety Surface” doing this type of work. He stated he set up the business 
for his grandson who had just been released from jail. And because of Hardin’s 

felony record, he could not get any money to open the business or bank accounts. 

North America stated that he know about Morales’s company, 

American Surface in December 2015. He agreed that Morales did not authorize him 

to create the business “American Surface Solutions Group” or do anything 

associated with American Surface. He further admitted that his company, 

SteepleJacks, is not in the rubber pour-in place business. 

Morales rested his case pending admission of exhibits, which North 

America did not object. After a prompt from the trial court, North America moved 

for a directed verdict, which the court granted on the fraud in the inducement claim. 

Additionally, plaintiff dismissed the civil theft claim. North America did not call any 

witnesses, including himself. 

Verdict 

The jury entered a unanimous general verdict in favor of American 

Surface and against North America in the amount of $72,066.61. During the 

punitive damages phase of the trial, the jury heard testimony from Morales. A 

majority of the jury awarded punitive damages in favor of American Surface and 

against North America in the amount of $20,000. A majority of the jury also found 

that American Surface should be awarded attorney fees. The trial court then heard 

testimony from Morales and Attorneys Bradley Hull and Janet Volle regarding 

attorney fees. Following the testimony, the trial court modified the attorney fee 

request and awarded attorney fees in favor of American Surface and against North 
America and SteepleJacks in the amount of $19,855.50. The court order that the 

attorney fees be paid jointly and severally by North America and SteepleJacks. The 

trial court also ordered punitive damages in favor of American Surface and against 

SteepleJacks in the amount of $20,000. 

Appellants now appeal, raising five assignments of error. Additional 

relevant facts and procedural background will be discussed under the relevant 

assignment of error. 

As a preliminary matter, American Surface contends that the appeal 

should be dismissed as untimely. We disagree. On March 6, 2018, the trial court 

entered final judgment, following the jury verdict. Appellants timely filed their 

motion for a new trial on April 3, 2018, — 28 days following the judgment. See Civ.R. 

59. The trial court denied the motion on April 25, 2018; the appeal was filed on May 

23, 2018. Accordingly, the appeal was timely. 

I. Temporary Restraining Order 

In their first assignment of error, appellants contends the trial court 

erred in issuing a prejudicial temporary restraining order that prejudiced them. 

Specifically, appellants contend that the motion seeking the restraining order was 

not in compliance with Civ.R. 65(A) because it was issued without (1) notice; (2) 

certification why the TRO should be issued without notice; (3) certification by the 

attorney regarding the efforts made to notify appellants; and (4) posting a bond. 

Appellee contends the motion was in compliance, but even if it was not, the issue is 

moot because appellants ultimately agreed to the restraining order. 
Even if we would agree with appellants that the request seeking the 

TRO was not in compliance with Civ.R. 65(A), the issue is moot. In this case, the 

TRO expired on March 14, 2017, when the parties reached an “agreement,” whereby 

the TRO was dismissed against North America, SteepleJacks, Network Solutions, 

and Citizens Financial Group. Accordingly, once the TRO expired or was dismissed, 

the controversy surrounding the order became moot. State ex rel. Celebrezze v. Bd. 

of Cty. Commrs., 32 Ohio St.3d 24, 26, 512 N.E.2d 332 (1987), fn. 2 (injunction no 

longer in effect when it expired upon the resolution of the case; the issue of its 

propriety is moot); McClead v. McClead, 4th Dist. Washington No. 06CA67, 2007-

Ohio-4624, ¶ 14 (expiration of challenged order renders an appeal of that order 

moot). “Issues are moot when they present no actual, genuine, live controversy, the 

decision of which can definitely affect existing legal relations.” Kormanik v. Cooper, 

195 Ohio App.3d 790, 2011-Ohio-5617, 961 N.E.2d 1187, ¶ 12 (10th Dist.). 

Even if the issue was not moot and a claim that a live controversy 

exists based on the grant of the TRO, appellants have failed to demonstrate how they 

were prejudiced or what damages they sustained as a result of the TRO being issued. 

The general statement that the TRO “tied up the bank account for the business 

enterprise” is insufficient to prove that they were damaged as a result of the TRO 

being issued. 

Accordingly, the first assignment of error is overruled as moot. 

 
II. Motion to Continue 

In their second assignment of error, appellants contend that the trial 

court abused its discretion in failing to continue the trial. 

We review the decision to deny a motion to continue for an abuse of 

discretion. Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, 837 N.E.2d 

1196, ¶ 15. Our review requires this court to apply a balancing test — weighing the 

trial court’s interest in controlling its own docket and the public’s interest in the 

prompt efficient dispatch of justice versus any potential prejudice to the moving 

party. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). The following 

factors should be considered by a trial court when considering a motion for a 

continuance: (1) the length of the delay requested; (2) whether other continuances 

have been requested and received; (3) the inconvenience in litigants, witnesses, 

opposing counsel, and the court; (4) whether the requested delay is for legitimate 

reasons or whether it is dilatory, purposeful, or contrived; (5) whether the moving 

party contributed to the circumstances that caused the request for a continuance; 

(6) and other relevant factors depending on the circumstances of the case. See 

Unger at 67-68. 

Moreover, because there are no “mechanical tests for deciding when 

a denial of a continuance is so arbitrary as to violate due process * * * the answer 

must be found in the circumstances present in every case, particularly the reasons 

presented to the trial judge at the time the request is denied.” Unger at 67, quoting 

Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). 
American Surface contends that the trial court did not abuse its 

discretion because the motion for continuance was untimely pursuant to the court’s 

local rules. Moreover, it asserted that appellants proceeded with firing their 

attorney at the final pretrial, despite being warned that (1) no continuance would be 

granted (2) any new counsel would need to be prepared to go forward with trial 

twenty days later, and (3) that if SteepleJacks did not have any attorney, it would be 

in default and unable to defend itself. 

The record reveals that the trial court allowed appellants’ counsel to 

withdraw at the final pretrial held on February 8. Whether the basis for counsel 

withdrawing was because appellants fired their attorneys or whether this was a 

voluntary attorney-client separation is unclear from the record; no transcript or 

App.R. 9(C) statement has been submitted to this court revealing the exact 

circumstances surrounding the withdraw. However, what we can discern from the 

February 28 transcript and the arguments from the parties on appeal, that on 

February 8, North America was apprised that no continuances would be granted and 

he could not represent SteepleJacks at trial. 

Appellants contend that the trial court abused its discretion in 

denying its request for a continuance because the Unger factors weighed in favor of 

granting the continuance. In support of their argument, appellants cite to this 

court’s decision in Swanson v. Swanson, 8th Dist. Cuyahoga No. 90472, 2008-

Ohio-4865. 
In Swanson, a mother appealed the trial court’s judgment that 

designated the father the residential parent of the parties’ child. Twenty days before 

trial, mother’s counsel filed a motion to withdraw, asserting that mother had fired 

him. Twelve days before trial, the court permitted mother’s counsel to withdraw, 

and six days before trial, mother filed a motion to continue because she was unable 

to obtain substitute counsel. Mother stated in her motion to continue that “she had 

made numerous attempts to hire counsel but her phone calls were not returned.” 

Id. at ¶ 6. The trial court denied her motion “and forced the mother to proceed pro 

se.” Id. Mother appealed and asserted that the trial court abused its discretion by 

denying her motion to continue. 

This court found that “numerous factors weighed in favor of granting 

a short continuance to allow the mother to obtain new counsel.” Id. at ¶ 15. This 

court first observed that the case had been pending for approximately eight months, 

the court had set the trial only three months before mother requested her 

continuance, and she had not requested a prior continuance. This court noted that 

"the mother requested the continuance solely to obtain new counsel" and not “to 

delay the proceedings.” Id. at ¶ 16. Additionally, this court determined that a short 

continuance would not have inconvenienced the parties, except for rescheduling. 

This court further recognized that “the mother’s conduct of firing her attorney 

contributed to the need for the continuance,” but stated that “this alone does not 

warrant the denial of her motion.” Id. at ¶ 18. This court thus determined that “the 
Unger factors weighed strongly toward granting the mother’s motion for a 

continuance.” Id. at ¶19. 

We find Swanson persuasive. After reviewing the Unger factors, the 

facts of the case, and the procedural history, we find that the trial court abused its 

discretion in dying appellants’ motion for a continuance of trial. 

It was unreasonable for the trial court to assume that any counsel 

appellants would have retained would be properly prepared to go forward with trial 

in twenty days. This is a factor that a trial court must take into consideration in 

determining whether to grant a motion to withdraw. Especially in light of the trial 

court’s statement that it would not grant any continuance. Ohio courts have 

repeatedly recognized that a trial court abuses its discretion when it allows an 

attorney to withdraw from the case on or near the day of trial and then denies the 

unrepresented party’s motion for a continuance. See, e.g., Griffin v. Lamberjack, 

96 Ohio App.3d 257, 644 N.E.2d 1087 (6th Dist.1994). 

Moreover, much like in Swanson, the complaint was filed 

approximately a year prior to trial, and much of the delay into case was attributed to 

American Surface’s attempt to secure service on and maintain its case against 

Hardin. At all times appellants were represented by counsel and defended the 

action, including filing motions to compel discovery and filing a counterclaim. 

Additionally, the record reflects that appellants never requested a 

continuance of trial. Moreover, the length of the requested continuance was a mere 

thirty days to prepare for a case, that the trial court admitted was “document heavy.” 
Finally, in counsel’s written motion for a continuance and oral request, it 

determined that appellants had valid defenses to plaintiff’s complaint. The request 

for the continuance was not for dilatory or frivolous purposes. 

Although it can be argued that appellants’ actions were the cause for 

the continuance because of an allegation that they fired their counsel at the final 

pretrial, the record does not reveal the nature for counsel orally requesting to 

withdraw. And as this court noted in Swanson, the firing of counsel alone does not 

warrant a denial of a motion to continue. 

Most importantly, once it was discovered that the principal 

defendant, Hardin, had settled his case with plaintiffs on the eve of trial, without any 

notification to appellants, the prejudice that this caused to appellants is apparent 

based on the allegations in the complaint. This development was not disclosed until 

the day of trial. Neither the trial court nor the appellants could have contemplated 

this settlement at the time the trial court issued the blanket order on February 8 or 

when it summarily denied appellants’ written motion for a continuance two days 

prior to trial. This prejudice outweighed the trial court’s desire to control its docket 

on a case that was only pending for approximately one year that involved multiple 

defendants and complex causes of action. The Unger factors weighed in favor of a 

continuance, which the trial court should have granted. It was unreasonable not to 

do so. 
The second assignment of error is sustained. The judgments against 

SteepleJacks and North America are vacated and the case is remanded to the trial 

court for further proceedings. 

Having sustained the second assignment of error, the remaining 

assignments of error challenging the individual judgments are hereby rendered 

moot. 

Judgment reversed and remanded. 

It is ordered that appellants recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

 

KATHLEEN ANN KEOUGH, JUDGE 

EILEEN T. GALLAGHER, P.J., CONCURS; 

EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION 

EILEEN A. GALLAGHER, J., DISSENTING: 

I respectfully dissent from the opinion of my learned colleagues. 

I do not believe that the trial court abused its discretion in denying an 

eleventh-hour motion for a trial continuance. 
This matter was originally filed on February 6, 2017 with active 

motion and discovery practice by all parties. Trial commenced over one year later. 

It is the bailiwick of the trial court to schedule its docket. We know 

not the reason that counsel withdrew their representation of defendant as the record 

does not so reflect. We do know, however, that there were off-the-record discussions 

with the court regarding same and that the court indicated at the time that there 

would be no continuances of the trial and, therefore, if they chose new counsel, said 

counsel would be required to proceed on the previously scheduled trial date. 

I would overrule this assignment of error. 

I do note that on March 2, 2018, the trial court entered a judgment of 

default against defendant SteepleJacks of America, L.L.C., in the amount of 

$72,066.61 plus statutory interest and attorney fees. 

Defendant SteepleJacks of America, L.L.C. was represented by 

counsel and actively participated in motion practice including the filing of an answer 

and counterclaim. Therefore, pursuant to Civ.R.55, default judgment was 

inappropriate. The trial court should have entered judgment based on an ex parte 

trial.