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. )
2

)

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 
3

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 
4

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.