## 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

GERS H ZAVODNIK, ) ) Appellant

- Plaintiff, ) )

vs. ) No. 49A02

- 1209

- CC

- 750 )

BRIAN RICHARD S 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, ) ) Appellee s

- Defendants, )

_______ _______________________________ ) ) and, ) ) GERSH ZAVODNIK, ) ) Appellant

- Plaintiffl, ) )

vs. )

### 2 )

GISELLE GUZMAN, ) ) Appellee

- Defendant. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable David Dr e yer , 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 Za vodnik 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 th e rule by adding subsection (F)’ s explicit procedure for h ow 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 c omplaints before Judge Dreyer

### 3 that were substantially similar, if not identical, to complaints that Judge Oakes had already dismissed, Zavodnik was improperly attem

pting to circumvent Judge Oakes’ s authority and discretion to decide whether Zavodnik had go od 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.

Za vodnik

, 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 over looked 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 a ffirmed 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 di d 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 emp hasize 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

### 4

alr eady unsuccessfully attempted to reinstate his original complaints has no legal

relevance to our analysis.

Second, Zavodnik claims that he cannot seek reinstatement of his ori ginal

complaints by Judge Oakes because Judge Oakes has recused himself in all m atters

involving Zavodnik. The only indication of such recusal in the record before us is that

one of Zavodnik’s re

- filed complaints w as originally before Judge Oakes, but that Judge

Oakes recused himself from the case upon Zavodnik’s motion and the case w as

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 repla cing 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 cau se 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 w as filed before judge “OA123”

and w as then transferred to judge “DR973.” App. pp. 8

- 9. We will assume that these abbreviations refer to Judge Oakes and Judge Dreyer. The oth er complaint against Richards and Panayiotou was originally filed in Judge Dreyer’s courtroom.