FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE,
Giselle Guzman:
MARK S. O’HARA
Hostetter & O’Hara ROY W. HARRIS
Brownsburg, Indiana Biesecker Dutkanych & Macer, LLC
Evansville, Indiana
IN THE Mar 14 2013, 9:13 am
COURT OF APPEALS OF INDIANA
GERSH ZAVODNIK, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A02-1209-CC-750
)
BRIAN RICHARDS and, )
NJGOLFMAN.COM a/k/a )
SAVVA’S GOLF ENTERPRISES a/k/a )
PROGOLFJERSEYCITY@ YAHOO.COM and, )
STEVE PANAYIOTOV, a/k/a )
STEVE PANAYIOTOU, a/k/a )
SAVVA PANAYIOTOV, a/k/a )
SAAVA PANAYIOTOU, )
)
Appellees-Defendants, )
_______________________________________ )
and, )
)
GERSH ZAVODNIK, )
)
Appellant-Plaintiff, )
)
vs. )
)
GISELLE GUZMAN, )
)
Appellee-Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David Dreyer, Judge
Cause No. 49D10-1205-CC-19269 & 49D10-1204-CC-16659
March 14, 2013
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Gersh Zavodnik appeals the dismissal of his lawsuits against Giselle Guzman,
Brian Richards, and Steve Panayiotou.1 We affirm.
Issue
The sole issue is whether the trial court properly dismissed Zavodnik’s lawsuits
against Guzman, Richards, and Panayiotou based upon their similarity to previous
lawsuits that had been dismissed without prejudice under Indiana Trial Rule 41(E).
Facts
From 2008 through 2010, Zavodnik filed a total of twenty-seven lawsuits against
defendants who resided in five different states and ten different countries. Guzman and
Richards were defendants in two separate lawsuits; Panayiotou does not appear to have
been a defendant in this original batch of suits. These lawsuits were consolidated before
1
Zavodnik has also listed Panayiotou as a/k/a “Njgolfman.com,” “Savva’s Golf Enterprises,”
“Progoldjerseycity@yahoo.com,” “Steve Panayiotov,” “Savva Panayiotov,” or “Savva Panayitou.”
2
Judge Timothy Oakes of the Marion Superior Court. On March 2, 2011, Judge Oakes
dismissed without prejudice all twenty-seven lawsuits under Indiana Trial Rule 41(E) for
Zavodnik’s failure to comply with local rules and failure to effect service upon a number
of defendants. On March 1, 2012, this court affirmed the dismissal of twenty-four of the
lawsuits, including those against Guzman and Richards, while reversing three of the
dismissals. Zavodnik v. Gehrt, No. 49A02-1105-CT-393 (Ind. Ct. App. March 1, 2012).
On April 24, 2012, Zavodnik filed a new lawsuit against Guzman, and on May 11,
2012, he filed a new lawsuit against Richards, though Panayiotou was now named as a
co-defendant in that suit. The allegations of the new complaints were the same as those
of the originally-dismissed complaints.2 The new complaints were assigned to Judge
David Dreyer of the Marion Superior Court.
On June 12, 2012, Guzman filed a motion to dismiss Zavodnik’s new complaint
based on his failure to seek reinstatement of his original complaint before Judge Oakes.
On July 11, 2012, Judge Dreyer dismissed with prejudice Zavodnik’s complaint against
Guzman. On July 12, 2012, without there having been an answer or motion to dismiss
filed by Richards or Panayiotou, Judge Dreyer also dismissed the complaint against them.
Judge Dreyer subsequently denied motions to correct error filed by Zavodnik in both
cases, and he now appeals.
Analysis
2
Unfortunately, neither the original nor subsequent complaints have been provided to this court on
appeal. However, the motion to dismiss filed by Guzman asserts, and Zavodnik does not deny, that
Zavodnik “attempts to make his living by filing lawsuits,” namely, by filing “suit against individuals who
he alleges caused him damages by failing to complete Internet sales purchases . . . .” App. p. 13.
3
Guzman’s motion to dismiss invoked as its basis Indiana Trial Rule 12(B)(6),
failure to state a claim upon which relief may be granted. We review a trial court’s ruling
on such a motion de novo. Carter ex rel. CNO Fin. Group, Inc. v. Hilliard, 970 N.E.2d
735, 747 (Ind. Ct. App. 2012). We will affirm a trial court’s dismissal of an action if it is
sustainable on any basis found in the record. City of New Haven v. Reichhart, 748
N.E.2d 374, 378 (Ind. 2001).
Guzman’s motion further alleged that Zavodnik’s filing of an entirely new
complaint in a different court than his original action(s) contravened Indiana Trial Rule
41(E) and (F), given that dismissal of the original action occurred under Rule 41(E).
Subsections (E) and (F) of Trial Rule 41 state:
(E) Failure to prosecute civil actions or comply with rules.
Whenever there has been a failure to comply with these rules
or when no action has been taken in a civil case for a period
of sixty [60] days, the court, on motion of a party or on its
own motion shall order a hearing for the purpose of
dismissing such case. The court shall enter an order of
dismissal at plaintiff’s costs if the plaintiff shall not show
sufficient cause at or before such hearing. Dismissal may be
withheld or reinstatement of dismissal may be made subject
to the condition that the plaintiff comply with these rules and
diligently prosecute the action and upon such terms that the
court in its discretion determines to be necessary to assure
such diligent prosecution.
(F) Reinstatement following dismissal. For good cause
shown and within a reasonable time the court may set aside a
dismissal without prejudice. A dismissal with prejudice may
be set aside by the court for the grounds and in accordance
with the provisions of Rule 60(B).
4
(Brackets in original). Guzman contends that subsections (E) and (F) clearly contemplate
that upon Judge Oakes’s dismissal of Zavodnik’s complaint without prejudice under
subsection (E) for failure to comply with court rules, Zavodnik was required to petition
Judge Oakes for reinstatement of his complaint and could not avoid that requirement by
filing an entirely new complaint before a different judge making the same allegations as
the original complaint.
Zavodnik argues that the dismissal of his original complaint(s) without prejudice
under Trial Rule 41(E) had no res judicata effect and did not hamper his ability to file an
entirely new complaint or complaints in a different court, despite his admission on appeal
that the new complaints against Guzman, Richards, and Panayiotou “were substantially
the same” as the original complaints.3 Appellant’s Br. p. 1. We accept that dismissal of a
complaint without prejudice ordinarily has no res judicata effect, and we will assume
there was no such effect here. See Zaremba v. Nevarez, 898 N.E.2d 459, 463 (Ind. Ct.
App. 2008).
Zavodnik also relies upon Zaremba for the proposition that when a case is
dismissed without prejudice, “a party is not prohibited from re-filing a complaint alleging
the facts, and seeking the remedies requested in the original case that was dismissed.”
Appellant’s Br. p. 3. Zavodnik overstates Zaremba’s holding. In that case, we addressed
Indiana Small Claims Rule 10, which provides in part that in the event default judgment
is entered, a court may “vacate such judgment . . . [u]pon good cause shown” within one
3
Zavodnik does not argue that the addition of Panayiotou as a co-defendant in the new complaint against
Richards substantially altered the nature of the complaint.
5
year of the default being entered; otherwise, a party must seek to set aside the default
through an independent action under Indiana Trial Rule 60(B). The plaintiff in Zaremba
had voluntarily requested dismissal of her small claims complaint without prejudice,
which the trial court granted, and later re-filed the action. The trial court had concluded
that the plaintiff was required to seek relief from the dismissal under Trial Rule 60(B)
before re-filing the action, but we disagreed and held that the plaintiff was entitled to
proceed on her re-filed complaint. Zaremba, 898 N.E.2d at 464-65. Zaremba addressed
an entirely different rule than Trial Rule 41, one that contains no procedure or
requirements for reinstating a complaint that has been dismissed without prejudice. The
Small Claims Rule’s reinstatement procedure only applies to default judgments, not
dismissals without prejudice.
Rather than being persuaded by Zaremba, we conclude this case bears many
similarities to Thacker v. Bartlett, 785 N.E.2d 621 (Ind. Ct. App. 2003). In Thacker, a
plaintiff’s complaint was dismissed under Trial Rule 12(B)(6) for failing to state a cause
of action. The plaintiff then filed a second, substantially identical complaint fourteen
days later within the same county, which also was dismissed. Although the first
dismissal did not operate as res judicata for the second complaint, we affirmed the second
dismissal under Trial Rule 12(B)(8), “The same action pending in another state court of
this state.” Thacker, 785 N.E.2d at 625. We observed, “When an action is pending
before a court of competent jurisdiction, other courts must defer to that court’s extant
authority over the case.” Id. “This rule applies where the parties, subject matter, and
6
remedies of the competing actions are precisely the same, and it also applies when they
are only substantially the same.” Id. Under Trial Rule 12(B), a pleading that has been
dismissed under Rule 12(B)(6) “may be amended once as of right pursuant to Rule 15(A)
within ten [10] days after service of notice of the court’s order sustaining the motion and
thereafter with permission of the court pursuant to such rule.” Because of this rule,
“Thacker could reanimate his complaint while his new complaint was active in another
court, thereby defeating the interests of fairness to litigants, comity between and among
courts of this state, and judicial efficiency.” Id. We also noted that by filing a new
complaint rather than amending the original complaint, “Thacker was circumventing the
authority and discretion of the original trial court.” Id.
Much like Trial Rule 12(B), we conclude that when a trial court has involuntarily
dismissed a case without prejudice pursuant to Trial Rule 41(E), subsection (F) of that
rule ascribes to the dismissing trial court the discretion to consider whether a complaint
should be reinstated. Subsection (E) likewise provides options to a trial court to permit a
complaint to proceed, despite rules violations by a plaintiff, in order to control its own
docket and courtroom. We also presume that the Indiana Supreme Court, in drafting
Trial Rule 41, did not intend to place a nullity in the rule by adding subsection (F)’s
explicit procedure for how to go about reinstatement of a complaint dismissed without
prejudice. Zavodnik’s position, that such complaints can be re-filed in a different court
without following the reinstatement procedure, would render that provision meaningless.
By re-filing complaints before Judge Dreyer that were substantially similar, if not
7
identical, to complaints that Judge Oakes had already dismissed, Zavodnik was
improperly attempting to circumvent Judge Oakes’s authority and discretion to decide
whether Zavodnik had good cause to reinstate his original complaint(s). Judge Dreyer
apparently recognized this and acted properly in dismissing the re-filed complaints,
which dismissal served the interests of fairness to litigants, judicial comity, and judicial
efficiency.
We do acknowledge with respect to the complaint against Richards and
Panayiotou that they did not file a motion to dismiss; rather, it appears Judge Dreyer
dismissed this complaint sua sponte. Ordinarily, “a trial court may not sua sponte dismiss
an action unless the court lacks jurisdiction or is otherwise authorized by statute or the
rules of procedure.” Tracy v. Morell, 948 N.E.2d 855, 862 (Ind. Ct. App. 2011).
Regardless, Zavodnik makes no argument that Judge Dreyer could not sua sponte dismiss
the complaint against Richards and Panayiotou upon discovering that it suffered from
precisely the same defect as the complaint against Guzman, nor does he argue that there
is any significant legal difference between the two complaints that could subject one to
dismissal but not the other. We affirm the dismissal of both complaints.
Conclusion
Judge Dreyer acted properly in dismissing both complaints against Guzman,
Richards, and Panayiotou. Zavodnik’s only remedy if he wishes to continue to pursue
legal action against those parties is to obtain reinstatement of his original complaints
before Judge Oakes. We affirm.
8
Affirmed.
BAKER, J., and RILEY, J., concur.
9
Gersh Zavodnik v. Brian Richards and Njgolfman.com a/k/a Savva's Golf Enterprises a/k/a ProGolfJerseyCity@yahoo.com and, Steve Panayiotov a/k/a Steve Panayiotou a/k/a Savva Panayiotou
Combined Opinion