Zavodnik v. Harper

• Decision Date: 30 September 2014
• Docket Number: No. 49A04–1307–PL–316.,49A04–1307–PL–316.
• Parties: Gersh ZAVODNIK, Appellant (Plaintiff below), v. Irene HARPER, Appellee (Defendant below).
• Court: Indiana Supreme Court

17 N.E.3d 259

Gersh ZAVODNIK, Appellant (Plaintiff below)

v.Irene HARPER, Appellee (Defendant below).

No. 49A04–1307–PL–316.

Supreme Court of Indiana.

Sept. 30, 2014.

Gersh Zavodnik, Appellant Pro Se.

Chad D. Wuertz, Indianapolis, IN, Attorney for Appellee.

Opinion

PER CURIAM.

The trial court dismissed Mr. Zavodnik's action under Indiana Trial Rule 41(E), and the Indiana Court of Appeals dismissed his appeal for failure to file a timely brief and appendix. We now deny transfer by this per curiam opinion, which also gives guidance to this state's courts on some options when confronted with abusive and vexatious litigation practices.

Background

Plaintiff Gersh Zavodnik is a prolific, abusive litigant. A search of his name brings up 123 cases in Marion County and other counties on the Odyssey case management system (which is not yet in place in all Indiana counties). All but three of those cases were filed since January 2008. Mr. Zavodnik is also a party in thirty-four cases before the Court of Appeals and this Court, including twenty-three special judge requests.

Mr. Zavodnik's submissions on appeal do not give any indication of the nature of his complaint against the defendant, but the trial court's fifteen-page chronological case summary (“CCS”) for this case shows it was filed on August 20, 2010. After procedural maneuvering by Mr. Zavodnik that included a change of judge under Indiana Trial Rule 53.1, several more unsuccessful attempts for another change of judge, and an attempt to disqualify the defendant's counsel, the trial court dismissed the case on April 4, 2013, for failure to prosecute or comply with applicable rules. T.R. 41(E). After the trial court denied Mr. Zavodnik's motion to correct error, he filed a motion to proceed in forma pauperis (“IFP”), presumably on appeal, which the trial court also denied.

Mr. Zavodnik filed a timely notice of appeal on July 2, 2013, and a motion to proceed IFP on September 20, 2013. The Court of Appeals denied that motion, two subsequent motions to reconsider, and a motion by Mr. Zavodnik to compel the trial court to correct the record. It also set a deadline to file an appellant's brief by November 8, 2013. Mr. Zavodnik neither filed a brief nor paid the filing fee. On appellee's motion, the Court of Appeals dismissed the appeal with prejudice on January 29, 2014, citing Mr. Zavodnik's failure to file a timely brief and appendix. This Court granted Mr. Zavodnik leave to file a petition to transfer without pre-paying the filing fee, and his transfer petition was shown as filed on April 29, 2014. The appellate CCS spans over six pages.

The trial court CCS and appellate CCS reveal numerous motions and other filings that are defective, repetitive, and lacking merit. Mr. Zavodnik's filings often contain bewilderingly lengthy titles, one example being:

Appellant's Verified Motion to Compel the Clerk of the Trial Court to Provide the Entire Record as Opposed to the Partial Record and to Extend Time for Brief to Be Filed Due to the Fact that the Appellant Does Not Have the Full Certified Record and the Record Needs to Be Complete and Fixed (Which Will Require Time) Because of the Clerk's Error in Providing Only a Partial Record or Alternatively to Relinquish Jurisdiction Back to the Trial Court by Mandating It to Fix the Record (the CCS) and to Provide the Court of Appeals and the Parties with the Corrected Full and Complete Fixed Record or Alternatively to Order the Clerk of this Court to Fix the CCS and to Provide the Complete Record or Alternatively to Allow the Appellant to Use His Own CCS Printed out by Him from the Odyssey Website.

One effect of such titles is to burden the personnel making entries on the CCS. Mr. Zavodnik's filings are similarly voluminous—for two examples, his response to the appellee's two-page motion to dismiss in this case was close to an inch thick; and in the trial court, the defendant filed a motion to strike “Plaintiff's 4.3 Pound Motion for Default Judgment.” Such voluminous filings burden both opposing parties and the courts, the latter of which must house, store, and in some cases eventually microfilm the filings.

Nothing Mr. Zavodnik has filed or done in this case shows any desire to litigate this case expeditiously to resolution on the merits. Rather, he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings. And this Court has previously warned Mr. Zavodnik against continuing such abusive and burdensome litigation tactics. Last year, we described his voluminous, dilatory, and often meritless filings in another case, and the burdens imposed by those tactics:

The trial court Chronological Case Summary for this case shows that the case was originally filed on September 27, 2010. During the time this case has been pending, the Plaintiff has filed voluminous motions, notices, objections, and other documents, including numerous attempts to obtain a change of judge or venue. Several judges have already presided over this case. Since January 17, 2013, the Plaintiff has filed six applications for withdrawal of the case and appointment of a special judge under Trial Rule 53.1 for the trial court's alleged failure to timely act on various matters. Each time he filed such an application, he prevented the trial court judge from advancing the case until the application was resolved, making it more difficult for the judge to rule on pending matters. Each time he filed such an application, the Executive Director of the Division of State Court Administration was required to analyze the allegations to determine whether a violation had occurred. The Executive Director determined that five of the Plaintiff's applications stated no cause for withdrawing the case under Trial Rule 53.1. However, on August 28, 2013, the Executive Director determined that there had been a delay that would support withdrawing the case under Trial Rule 53.1.

By order dated September 9, 2013, this Court entered an order, signed by Chief Justice Dickson, remanding jurisdiction to the trial court, finding that naming a new judge would not accomplish the purpose of Trial Rule 53.1, which is to expedite litigation.

On October 17, 2013, the Plaintiff filed a 200–page “Plaintiffs Set of the Verified Motions” (“Set of Motions”), accompanied by an assortment of exhibits that are nearly three inches thick. On October 22, 2013, the Plaintiff filed a 173–page “Plaintiff's Supplemental Motion in Objection to Justice Dickson's Order to Remand Judge McCarty Back on This Case and in Objection to Judge McCarty Presiding over This Case in Numerous Violations of Rules, Law and Zavodnik's Rights” (“Supplemental Motion”), accompanied by a half-inch stack of exhibits. The Plaintiff's central request is for appointment of a three-Justice panel to review the September 9, 2013, order signed by the Chief Justice. The Plaintiff asserts that the Chief Justice had no authority to remand jurisdiction to the current trial court judge.

Zavodnik v. Margulyan, Cause No. 49S01–1302–SJ–110 (Oct. 25, 2013). Mr. Zavodnik argued that this Court had no authority to remand jurisdiction without naming a new judge. Id. We rejected that claim because Trial Rule 53.1(E)(2) gives this Court discretion to “appoint[ ] ... a special judge or such other action deemed appropriate by the Supreme Court ” if the time limits of Rules 53.1 or 53.2 have expired. Id . But we also issued a warning to Mr. Zavodnik:

... Plaintiff appears to be using Trial Rule 53.1 in a scattershot manner to hinder the progress of this litigation and to burden the trial court, this Court, and its agencies. Further misuse of Trial Rule 53.1 or any other litigation procedure may subject the Plaintiff to sanctions.

The Court finds no basis for the Plaintiff's request to review or reconsider this Court's September 9, 2013, order remanding jurisdiction of this case to Judge McCarty or for any of the other requests in the 373 pages of his motions.

Id. (emphasis added).

As a matter of grace, this Court will once again decline to impose sanctions on Mr. Zavodnik. But we will provide the courts of this state with guidance on options available to sanction and otherwise restrict the abusive and burdensome litigation tactics practiced by Mr. Zavodnik and a small number of other litigants in this state.

Discussion

On transfer, Mr. Zavodnik argues that the trial court and Court of Appeals (1) erroneously denied him IFP status, (2) erroneously refused to “correct, fix and complete the record,” and (3) repeatedly discriminated against him. His first claim is moot, because the Court of Appeals did not dismiss for failure to pay the filing fee, but for failure to timely file his brief and appendix in accordance with well-settled law. His second claim is waived because he fails to show any effort to present his request to the trial court in the first instance as the Appellate Rules require. And his final claim is waived because he fails to support it with cogent argument or citation to relevant authority. We therefore deny transfer and turn our attention to procedures for trial courts to curtail abusive litigation practices.

I. Litigants Do Not Have a License to Abuse the Litigation Process

Every resource that courts devote to an abusive litigant is a resource denied to other legitimate cases with good-faith litigants. See Sumbry v. Boklund, 836 N.E.2d 430, 432 (Ind.2005). There is no right to engage in abusive litigation, and the state has a legitimate interest in the preservation of valuable judicial and administrative resources. See Parks v. Madison Cnty., 783 N.E.2d 711, 724 (Ind.Ct.App.2002), trans. denied.

A. Statutes and rules addressing abusive litigation practices. Both the Indiana General Assembly and this Court have given the courts of this state tools to deal with abusive litigation practices. Indiana Code § 34–52–1–1(b) (2008) allows a court in a civil action to...