[Cite as Demczyk v. Steamatic of Northeast Ohio, Inc., 2011-Ohio-1910.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MICHAEL V. DEMCZYK, 

BANKRUPTCY TRUSTEE 

 Plaintiff-Appellant 

-vsSTEAMATIC OF NORTHEAST OHIO, 

INC., ET AL. 

 Defendants-Appellees 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. John W. Wise, J. 

Case No. 2010CA00117 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2009CV02702 

JUDGMENT: Affirmed in part; Reversed in part 

 and remanded 

DATE OF JUDGMENT ENTRY: April 18, 2011 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

Michael V. Demczyk, Farmers Insurance of Columbus, Inc. 

Bankruptcy Trustee 

EDWARD J. HEBEN, JR. THOMAS F. GLASSMAN 

Heben & Associates, LLC MATTHEW J. SMITH 

3740 Euclid Avenue Smith, Rolfes & Skavdahl, Co., L.P.A. 

Cleveland, Ohio 44115 600 Vine Street, Suite 2600 

 Cincinnati, Ohio 45202 

 

 And 

 For Defendant-Appellee 

 Steamatic of Northeast Ohio 

 MEL L. LUTE, JR. 

 Baker, Dublikar, Beck, Wiley & Mathews 

 400 South Main Street 

 North Canton, Ohio 44720 
Stark County, Case No. 2010CA00117 2

Hoffman, J. 

{¶1} Plaintiff-appellant Michael V. Demczyk, Bankruptcy Trustee, appeals the 

April 15, 2010, May 27, 2010, and July 6, 2010 judgment entries entered by the Stark 

County Court of Common Pleas, which granted summary judgment in favor of 

defendant-appellees Steamatic of Northeast Ohio, Inc. and Farmers Insurance of 

Columbus, Inc. 

STATEMENT OF THE FACTS AND CASE1

{¶2} Much of Appellant’s Statement of the Case and Statement of the Facts 

consists of his expressing his legal conclusions, arguments and speculations rather 

than providing this Court with a straight forward rendition of the procedural posture of 

the case and facts. 

{¶3} Timothy D. and Suzette M. Schuller were the owners of a home located at 

9630 Hocking Street, N.W., in Canton, Ohio. They had homeowner’s insurance through 

Farmers. In 1996, the Schullers reported to Farmers their home had sustained damage 

as a result of a water leak from the dishwasher. Farmers investigated the claim and 

determined such was a covered loss, and issued payment to the Schullers, totaling of 

 

1

 Appellant’s Brief violates Rule 9(C) of the Local Rules of the Fifth Appellate District 

when read in conjunction with App. R. 16(A) and (D). Appellant requested leave to 

increase the page limit, which was denied by this Court via Judgment Entry filed 

September 24, 2010. Appellant has attempted to circumvent that ruling by placing his 

references to the record and case citations in the Appendix attached to his Brief. Had 

the references and case citations been included in the body of the Brief, as required by 

App. R. 16(A), Appellant would have reached the page limit at the end of page 22. 

Individually as author of this Opinion, I would not have entertained any material 

presented after page 22. For the same reason, I would not have considered any 

material presented after page 12 of Appellant’s Reply Brief. However, because my 

colleagues elect to consider those material, I address them herein. 
Stark County, Case No. 2010CA00117 3

$3997.23, under the policy’s structured coverage. The Schullers used the insurance 

proceeds to repair the damage to the floor. 

{¶4} Subsequently, in April, 2002, the Schullers submitted a second claim to 

Farmers for damage to the home resulting from the same dishwasher leak, after 

discovering toxic black mold in the home. Farmers investigated the second claim and 

determined it to be a covered loss. Farmers paid the Schullers a total of $78,548.45. 

Of this amount, $34,465.91 was allocated to the home’s structure; $27,916.56, to 

content; and $16,165.98, for additional living expenses. The Schullers ultimately chose 

Steamatic as the company to undertake remediation work. 

{¶5} On January 16, 2004, the Schullers filed their original complaint against 

Steamatic and Farmers. On the same day, the Schullers also filed a Petition for 

Bankruptcy in the United States Bankruptcy Court, Northern District of Ohio. The 

Schullers subsequently filed an Amended Complaint, naming Michael Demczyk, the 

Bankruptcy Trustee as well as their minor children, as additional plaintiffs. The 

Amended Complaint asserted claims of breach of contract, breach of covenant of good 

faith and fair dealing, and negligence. The parties eventually filed a stipulation of 

voluntary dismissal on April 21, 2005. 

{¶6} On April 18, 2006, the Schullers and their minor children refiled the 

Complaint against Steamatic, Farmers, DMZ Remodeling and Restoration, Inc., and 

Greg Mang.2

 Farmers moved for summary judgment on May 4, 2007, arguing the 

Schullers did not have standing to file the lawsuit based upon the bankruptcy filing. In 

 

2

 DMZ and Mang are not parties to this appeal. 
Stark County, Case No. 2010CA00117 4

an agreed judgment entry filed June 19, 2007, the Schullers filed their first Amended 

Complaint, naming Appellant and their minor children as party plaintiffs. 

{¶7} Steamatic served Appellant and the Schullers with request for admissions 

on April 24, 2008. The trial court deemed said request admitted as neither Appellant 

nor the Schullers responded to such. Farmers filed a Motion for Summary Judgment on 

June 2, 2008, and a Motion to Compel Discovery on June 9, 2008. The trial court set a 

briefing schedule with regard to the dispositive motions, and granted Appellant and the 

Schullers an extension of time in which to file responses. On July 14, 2008, prior to 

filing responses to the motion for summary judgment and motion to compel, Appellant 

and the Schullers filed a notice of voluntary dismissal without prejudice. 

{¶8} On July 13, 2009, Appellant and the Schuller children refiled their 

Complaint. Upon motion of the defendants, the trial court incorporated all discovery in 

the prior cases into the most recently filed case. Farmers filed a Motion for Summary 

Judgment on February 8, 2010. Steamatic filed a Motion for Summary Judgment on 

February 16, 2010. Appellant filed his responses on March 22, 2010. On April 2, 2010, 

Appellant filed supplemental affidavits in support of his responses to the motions for 

summary judgment. Appellant submitted the Affidavit of Greg Mang of DMZ and 

Andrew Smith of A & S Construction. Smith averred the Schullers had contracted him 

in 2002, to perform construction services in their kitchen. Smith added Farmers 

convinced him not to do the work as the Schullers were going bankrupt and their home 

was in foreclosure. Farmers filed a motion to strike the supplemental affidavits as being 

untimely filed. The trial court granted Farmer’s motion to strike, and denied Appellant’s 

request for leave to file the supplemental affidavits. Via Judgment Entry filed April 15, 
Stark County, Case No. 2010CA00117 5

2010, the trial court granted summary judgment in favor of Farmers and Steamatic on 

all of Appellant’s claims. 

{¶9} Appellant filed a timely Notice of Appeal to this Court. On May 14, 2010, 

Appellant filed a motion to vacate judgment pursuant to Civ.R. 60(B), and to correct and 

amend Exhibit 6 attached to his motion for summary judgment, which is the Report of 

Appellant’s expert Ronald Wright of R.V. Baric Construction Consultants. Appellant 

sought relief on the basis of excusable neglect. A clerical error caused three pages of 

the expert’s report to be left out of his motion for summary judgment. Via Judgment 

Entry filed May 27, 2010, the trial court granted Appellant’s motion to vacate judgment, 

and to correct and amend Exhibit 6. In the same judgment entry, the trial court again 

granted summary judgment in favor of Appellees. Steamatic and Farmers filed briefs in 

opposition to Appellant’s 60(B) Motion on May 27, 2010, and May 28, 2010, 

respectively. Via Judgment Entry filed July 6, 2010, the trial court again granted 

Appellant’s 60(B) Motion, and again granted summary judgment in favor of Steamatic 

and Farmers. 

{¶10} It is from the April 15, May 27, and July 6, 2010 Judgment Entries 

Appellant appeals, raising the following assignments of error: 

{¶11} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

GRANTED APPELLEE FARMERS INSURANCE OF COLUMBUS, INC.’S MOTION 

FOR SUMMARY JUDGMENT. 

{¶12} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

GRANTED APPELLEE FARMERS INSURANCE OF COLUMBUS, INC.’S MOTION TO 

STRIKE PLAINTIFF’S SUPPLEMENTAL AFFIDAVITS IN SUPPORT OF PLAINTIFF’S 
Stark County, Case No. 2010CA00117 6

RESPONSE TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND 

DENIED APPELLANTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL 

AFFIDAVITS. 

{¶13} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

GRANTED APPELLEE STEAMATIC OF NORTHEAST OHIO, INC.’S MOTION FOR 

SUMMARY JUDGMENT.” 

I 

{¶14} In his first assignment of error, Appellant contends the trial court erred in 

granting summary judgment in favor of Farmers. 

{¶15} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As 

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. 

{¶16} Civ.R. 56 provides summary judgment may be granted only after the trial 

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) 

the moving party is entitled to judgment as a matter of law; and 3) it appears from the 

evidence that reasonable minds can come to but 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. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267. 

{¶17} It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. 
Stark County, Case No. 2010CA00117 7

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for 

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that 

the nonmoving party cannot prove its case, bears the initial burden of informing the trial 

court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party's claims. The moving party cannot discharge its initial burden 

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no 

evidence to prove its case. Rather, the moving party must be able to specifically point to 

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the 

nonmoving party has no evidence to support the nonmoving party's claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving party 

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing 

there is a genuine issue for trial and, if the nonmovant does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party.” The record on 

summary judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924. 

{¶18} In the instant action, the trial court granted summary judgment in favor of 

Farmers based upon several findings. First, the trial court found Appellant was judicially 

estopped from asserting the Schullers’ claims against Farmers because Appellant, in 

his Report of the Trustee filed in the bankruptcy proceeding, indicated said claims were 

without any merit. Next, the trial court found Appellant lacked standing to assert the 
Stark County, Case No. 2010CA00117 8

within action on behalf of the Schullers as all of the Schullers’ liabilities to creditors were 

extinguished through the bankruptcy discharge. Further, the trial court found, assuming 

Appellant had standing, there was no evidence of recoverable damages. Finally, the 

trial court found, assuming Appellant had standing and there was evidence of 

recoverable damages, there was no evidence Farmers breached the contract or acted 

in bad faith. 

{¶19} We address each in turn. 

{¶20} The trial court found Appellant was judicially estopped from bringing the 

instant action against Farmers as Appellant had previously found the claims to be 

without merit. 

{¶21} The doctrine of judicial estoppel precludes a party from asserting a 

position in a legal proceeding inconsistent with one previously asserted. Bruck v. Mason

(1992), 84 Ohio App.3d 398, 400. 

{¶22} While we find Farmers’ argument regarding judicial estoppel compelling, 

we, nonetheless, find the trial court erred in granting summary judgment on this ground. 

Farmers did not assert this argument in its February 8, 2010 Motion for Summary 

Judgment. A trial court is not permitted to base its decision to grant summary judgment 

upon an argument which was not asserted in the summary judgment motion. Battin v. 

Trumbull County, 11th App. No.2000-T-0091, 2002-Ohio-5162. Accord: Butler v. 

Harper, 9th App. No. 21051, 2002-Ohio-5029; Hollinghead v. Bey (July 21, 2000), 6th 

App. No. L-99-1351, unreported.3 

 

3

 Although Farmers may have raised the issue in its pleadings in the previously 

dismissed cases, it did not do so in the case sub judice. While discovery from those 
Stark County, Case No. 2010CA00117 9

{¶23} We, likewise, find the trial court erred in granting summary judgment on 

the ground Appellant lacked standing. Farmers did not assert lack of standing in its 

February 8, 2010 Motion for Summary Judgment; therefore, the trial court was not 

permitted to base its decision on such argument. Furthermore, based upon Farmers’ 

assertion in the prior cases, it may be judicially estopped from asserting the trustee 

lacks standing in the case sub judice. 

{¶24} The trial court also granted summary judgment in favor of Farmers on the 

additional ground that there was no evidence of recoverable damages. Upon review of 

the entire record in this matter, we find a genuine issue of material fact exists as to the 

amount of damages sustained by the Schullers. Although all of the Schuller’s liabilities 

to creditors were discharged through the bankruptcy proceeding, the possible amount of 

damages recoverable by the Schullers could potentially exceed the amount of debt 

discharged in bankruptcy. To say there were no recoverable damages is speculative. 

Accordingly, we sustain Appellant’s assignment of error as to Appellant’s breach of 

contract claim. 

{¶25} The trial court further determined summary judgment was appropriate as 

Appellant failed to present evidence Farmers acted in bad faith in dealing with the 

Schullers. In Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, the Ohio 

Supreme Court held: “An insurer fails to exercise good faith in the processing of a claim 

of its insured where its refusal to pay the claim is not predicated upon circumstances 

that furnish reasonable justification therefore.” Id. at syllabus, para. 1. 

 

prior cases were deemed part of this record, we find no similar agreement as to 

incorporation of prior pleadings. 
Stark County, Case No. 2010CA00117 10

{¶26} The trial court properly found Farmers did not blatantly refuse to provide 

coverage under the policy. Rather, Farmers paid over $78,000, to or on behalf of the 

Schullers following the April, 2002 dishwasher malfunction. Farmers investigated and 

reopened the 1996 claim. Appellant does not dispute these facts. Rather, Appellant 

asserts Farmers did not pay the Schullers the full value of the claim. According to 

Appellant, Farmers refused to provide the Schullers with sufficient “Additional Living 

Expenses” and they were forced to purchase successively more expensive homes. As 

a result, the Schullers were unable to afford their mortgage payments and ultimately 

ended up in bankruptcy. 

{¶27} The Farmers’ policy provided for Additional Living Expenses “for the 

shortest time needed to (a) repair or replace the damaged property, or (b) permanently 

relocate * * *”. Farmers paid Additional Living Expenses, which in part were used to pay 

housing rent, until the Schullers relocated. Although Appellant claims the Schullers 

were forced to purchase a home because Farmers would not accept any of their 

proposed rentals, the record does not support this assertion. The owners of the first 

home the Schullers wished to rent would not rent the residence, but only sell it. The 

Schullers themselves decided to purchase the home. They subsequently purchased a 

third home, taking a loss on the second home. These financial decisions were not the 

result of any actions or inactions by Farmers. Accordingly, we find the trial court 

properly granted summary judgment on Appellant’s bad faith claim. 

{¶28} Appellant’s first assignment of error is sustained in part and overruled in 

part. 
Stark County, Case No. 2010CA00117 11

II 

{¶29} In his second assignment of error, Appellant maintained the trial court 

erred in granting Farmers’ motion to strike supplemental affidavits, and in denying 

Appellant’s motion for leave to file supplemental affidavits. 

{¶30} The decision to grant or deny a continuance rests within the sound 

discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65, 67. The term 

“continuance” applies to continuances of deadlines as well as trial dates. See, Braden 

v. Sinar, 9th Dist. App. No. 23656, 2007-Ohio-4527. An appellate court may reverse the 

trial court's decision if it amounts to an abuse of discretion. Id. An abuse of discretion is 

more than an error in judgment; it means that the trial court was unreasonable, arbitrary, 

or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 

When applying the abuse of discretion standard, an appellate court may not substitute 

its judgment for that of the trial court. Freeman v. Crown City Mining, Inc. (1993), 90 

Ohio App.3d 546, 552. 

{¶31} On February 23, 2010, the trial court granted Appellant until March 22, 

2010, to file his response to Farmers’ and Steamatic’s motions for summary judgment. 

Appellant filed his response with supporting exhibits on March 22, 2010. Subsequently, 

on April 2, 2010, Appellant filed the affidavits of Greg Mang, president of former 

defendant DMZ, and Andrew Smith, whom Appellant states he was unable to locate 

until after the settlement with DMZ. Farmers filed a motion to strike. Thereafter, 

Appellant filed a motion for leave to file the affidavits on April 9, 2010. The trial court 

granted Farmers’ motion to strike and denied Appellant’s request for leave. 
Stark County, Case No. 2010CA00117 12

{¶32} In light of the protracted procedural history of this matter, we find the trial 

court did not abuse its discretion in striking Appellant’s untimely affidavit. 

{¶33} Appellant’s second assignment of error is overruled. 

III 

{¶34} In his final assignment of error, Appellant contends the trial court erred in 

granting summary judgment in favor of Steamatic on Appellant’s negligence claim. 

Appellant submits the fifth cause of action in his Complaint alleged breach of contract 

against Steamatic, not negligence. We find whether the Complaint sounded in breach 

of contract or negligence against Steamatic is irrelevant as the trial court properly 

granted summary judgment against Appellant. Our reasons follow. 

{¶35} Evidence presented established the mold and remediation work performed 

by Steamatic in 2002, was in accordance with environmental protocol developed by the 

EA Group, and the work satisfied the safe habitability threshold. In her deposition, 

Suzette Schuller stated Steamatic did not follow the remediation protocol set forth by 

the EA Group. Although Steamatic failed to pass the EA Group’s safe habitability 

threshold based upon initial air quality samples, a subsequent test of air quality samples 

satisfied the threshold. The Schullers’ home was safe to occupy following Steamatic’s 

remediation work; therefore, Appellant is unable to establish Steamatic either breached 

its contract with the Schullers or negligently performed the remediation work. 

{¶36} Based upon the foregoing, we find the trial court did not err in granting 

summary judgment in favor of Steamatic. 

{¶37} Appellant’s third assignment of error is overruled. 
Stark County, Case No. 2010CA00117 13

{¶38} The judgment of the Stark County Court of Common Pleas is affirmed in 

part, reversed in part and remanded. 

By: Hoffman, J. 

Gwin, P.J. and 

Wise, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE 

 
Stark County, Case No. 2010CA00117 14

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MICHAEL V. DEMCZYK : 

BANKRUPTCY TRUSTEE : 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

STEAMATIC OF NORTHEAST OHIO, : 

INC., ET AL. : 

 : 

 Defendants-Appellees : Case No. 2010CA00117 

 For the reasons stated in our accompanying Opinion, the judgment of the Stark 

County Court of Common Pleas is affirmed in part, reversed in part and remanded for 

further proceeding in accordance with our Opinion and the law. 

Cost assessed equally. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE