Zavodnik v. Richards

984 N.E.2d 699, 2013 WL 980053, 2013 Ind. App. LEXIS 124
CourtIndiana Court of Appeals
DecidedMarch 14, 2013
DocketNo. 49A02-1209-CC-750
StatusPublished
Cited by8 cases

This text of 984 N.E.2d 699 (Zavodnik v. Richards) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zavodnik v. Richards, 984 N.E.2d 699, 2013 WL 980053, 2013 Ind. App. LEXIS 124 (Ind. Ct. App. 2013).

Opinion

OPINION

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).

[701]*701Facts

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 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 Zavod-nik’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, 2012 WL 697152 (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

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 plaintiffs 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 [702]*702that 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).

(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 Pa-nayiotou “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 ... [ujpon good cause shown” within one 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 refiled 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 Zarem-ba, we conclude this case bears many similarities to Thacker v. Bartlett, 785 N.E.2d 621 (Ind.Ct.App.2003). In Thacker, a plaintiffs 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

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Bluebook (online)
984 N.E.2d 699, 2013 WL 980053, 2013 Ind. App. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zavodnik-v-richards-indctapp-2013.