Gersh Zavodnik v. Brian Richards and NJGOLFMAN.COM a/k/a Savva's Golf Enterprises a/k/a PROGOLFJERSEYCITY@YAHOO.COM and Steve Panayiotov , 988 N.E.2d 806 ( 2013 )

May 22 2013, 10:49 am
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
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-Plaintiffl, )
)
vs. )
)
GISELLE GUZMAN, )
)
Appellee-Defendant. )
APPEAL FROM THEMARION SUPERIOR COURT
The Honorable David Dreyer, Judge
Cause No. 49D10-1205-CT-19269 & 49D10-1204-CC-16659
May 22, 2013
OPINION ON REHEARING - FOR PUBLICATION
BARNES, Judge
Gersh Zavodnik petitions for rehearing following our decision in Zavodnik v.
Richards, 984 N.E.2d 699 (Ind. Ct. App. 2013). With the following clarifications, we
reaffirm our decision in all respects.
In our original decision, we held:
[W]hen 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
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that were substantially similar, if not 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.
Zavodnik, 984 N.E.2d at 703. We then concluded, “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.” Id. at 703-04.
Zavodnik claims we overlooked two pertinent facts in reaching our holding. First,
he states that, before filing the second set of lawsuits, he had already attempted to
reinstate the original lawsuits but was refused permission to do so. We noted this attempt
to reinstate and affirmed the trial court’s refusal to reinstate in Zavodnik v. Gehrt, No.
49A02-1105-CT-393 slip op. p. 7, n. 17 (Mar. 1, 2012). Although we did not, in our
original opinion in the present appeal, expressly note Zavodnik’s prior attempt to
reinstate, we did expressly state that Zavodnik must obtain reinstatement of his original
complaints if he wishes to continue pursuing his legal claims against Giselle Guzman,
Brian Richards, and Steve Panayiotou, not merely that he must seek reinstatement.
Again, we emphasize that if Zavodnik is unsuccessful in having his original complaints
reinstated, he may not circumvent that ruling by filing entirely new complaints raising
identical legal and factual issues as the original complaints. The fact that Zavodnik has
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already unsuccessfully attempted to reinstate his original complaints has no legal
relevance to our analysis.
Second, Zavodnik claims that he cannot seek reinstatement of his original
complaints by Judge Oakes because Judge Oakes has recused himself in all matters
involving Zavodnik. The only indication of such recusal in the record before us is that
one of Zavodnik’s re-filed complaints was originally before Judge Oakes, but that Judge
Oakes recused himself from the case upon Zavodnik’s motion and the case was
transferred to Judge Dreyer.1 We cannot discern from the record that Judge Oakes has or
will recuse himself from any attempts by Zavodnik to reinstate his original complaints.
Even if Judge Oakes were to do so, it still would be up to the judge replacing him to
determine whether to permit reinstatement of the original complaints within the
parameters of Indiana Trial Rule 41(F).
We, therefore, clarify that although Zavodnik must obtain reinstatement of his
original complaints under their original cause numbers, such reinstatement could be
ordered by a judge other than Judge Oakes, if Judge Oakes indeed were to recuse himself
from any future attempts at reinstatement. In all other respects, we reaffirm our original
decision.
BAKER, J., and RILEY, J., concur.
1
The CCS indicates only that the complaint against Guzman originally was filed before judge “OA123”
and was then transferred to judge “DR973.” App. pp. 8-9. We will assume that these abbreviations refer
to Judge Oakes and Judge Dreyer. The other complaint against Richards and Panayiotou was originally
filed in Judge Dreyer’s courtroom.
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