'Abusive litigant' loses appeal for damages

May 23, 2016

The Indiana Court of Appeals denied a prolific litigant's attempt to get more than $30,000 in damages after he claimed a printer he purchased online for less than $75 did not work and then sued for thousands of dollars in damages.

Gersh Zavodnik purchased a used printer for less than $75 in 2009, the exact amount is not known, from Douglas Costello. He claimed the printer did not work and sued for $6,000 in damages, but his claim was dismissed in small claims court because Zavodnik disposed of the printer with an intent to suppress evidence.

It’s not the first time Zavodnik has tried to gain thousands from online purchases. The Indiana Supreme Court issued an opinion on him in 2014, denying a petition to transfer but calling Zavodnik a “prolific, abusive litigant.” In Zavodnik v. Harper, 17 N.E.3d 259, the court said Zavodnik “burdened the opposing party and the courts of this state at every level with missive, confusing, disorganized, defective, repetitive and often meritless filings.”

Zavodnik appealed the small claims decision in the instant matter to Superior Court and asked for $30,044.07 from Costello for breaching a legally binding contract. In 2013, Zavodnik sought and received a new judge in his case. He also sought amounts of $300,000 and $600,000 in requests for admission from Costello. Those requests were dismissed on a motion filed by Costello, but not a request for admission for $30,044.07 that Zavodnik originally filed because that was for a specific reason, the breach of contract.

The trial court then granted Zavodnik summary judgment for the $30,000 amount, ruling the judgment “reflects the limited discretion the Court feels that it has in the matter pursuant to Trial Rule 36(B), which governs the withdrawal of admissions.

The rule says in part, “the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved.” The COA concluded, “There is no question that presentation of the merits of the action will be subserved by allowing the withdrawal,” Chief Judge Nancy Vaidik wrote for the panel.

“Requiring Zavodnik to prove the merits of his case is particularly appropriate in light of the fact that he already lost on the merits in the small-claims court based on his decision to dispose of the printer not long after he purchased it. With regard to damages, Zavodnik did not ask Costello to admit any facts that would justify an award of damages in excess of the purchase price. His failure in this regard strongly indicates that his requests asserting more than $30,000 in damages (at least 400 times more than the purchase price) had no basis in reality,” Vaidik wrote.

The trial court based its interpretation of Rule 36B on General Motors Corp., Chevrolet Motor Div. v. Aetna Casualty and Surety Co., 573 N.E.2d 885 (Ind. 1991), but Vaidik wrote this case was nothing like that one. Zavodnik used Rule 36 to his advantage.

“An important purpose of the rule is to more quickly and efficiently reach a resolution based on the actual facts; Zavodnik used the rule as a way to avoid such a resolution. The trial court’s partial denial of Costello’s motion to withdraw served to ratify Zavodnik’s blatant abuse of the rule.” Vaidik wrote.

The court reversed and remanded the case to the trial court, saying it should have granted Costello’s motion to dismiss on all of Zavodnik’s requests for admission. It also ordered the court to conduct a hearing to determine whether the case should be dismissed pursuant to Trial Rule 41E based on Zavodnik’s continuing failure to apply to with Indiana’s rule of procedure.

The case is Douglas Costella and Profit Search Inc. v. Gersh Zavodnik, 49A04-1504-PL-163.


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