Gersh Zavodnik v. Irene Harper

APPELLANT PRO SE ATTORNEY FOR APPELLEE

Chad D. Wuertz

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

_________________________________ Sep 30 2014, 11:28 am

No. 49A04-1307-PL-316

GERSH ZAVODNIK,

Appellant (Plaintiff below),

v.

IRENE HARPER,

Appellee (Defendant below).

_________________________________

Appeal from the Marion Superior Court, Civil Division 3, No. 49D03-1008-PL-036797

The Honorable Patrick L. McCarty, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-1307-PL-316

_________________________________

September 30, 2014

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

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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

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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 "Plaintiff's 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.

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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 award

attorney's fees to the prevailing party if the court finds that the other party asserted a claim that

was frivolous, unreasonable, or groundless, or litigated an action in bad faith. And because the

threat of monetary sanctions may do little to deter abusive litigants who are essentially judgment-

proof, the Indiana General Assembly has enacted procedures to prevent abusive civil litigation

by criminal "offenders." Indiana Code § 34-58-1-2 (2008) ("the Screening Statute") authorizes a

court to review an offender’s claim and bar it from going forward if it is frivolous (that is, made

primarily to harass or lacking an arguable basis in law or fact), is not a claim on which relief may

be granted, or seeks monetary damages from a defendant who is immune from such relief.

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Then under Indiana Code § 34-10-1-3 (2009) ("the Three Strikes Statute"), offenders who

have had three suits dismissed under the Screening Statute are prohibited from filing new IFP

complaints unless they are "in immediate danger of bodily injury." See also Smith v. Wrigley,

925 N.E.2d 747 (Ind. Ct. App. 2010) (holding the Three Strikes Statute does not violate the open

courts or privileges and immunities clauses of the Indiana Constitution), trans. denied.

Finally, rules of procedure promulgated by this Court allow courts to assess damages and

other sanctions to those engaging in abusive tactics, including failure to cooperate with

discovery, see Ind. Trial Rule 37; making affidavits relating to summary judgment in bad faith,

see T.R. 56(G); bad faith filing in the wrong county, see T.R. 75(C); and filing an appeal that is

frivolous or in bad faith, see Ind. Appellate Rule 66(E).

B. Inherent power of courts to limit abusive litigation practices. Even apart from the

Screening and Three Strikes Statutes (which do not apply to abusive litigants who are not

"offenders") or the Trial Rules, courts have inherent authority to impose reasonable restrictions

on any abusive litigant. Prior to the enactment of the Screening and Three Strikes Statutes, the

Court of Appeals had established special pre-filing screening requirements for particular

offenders with histories of repeated, frivolous litigation. See Sumbry v. Misc. Docket Sheet for

Year 2003, 811 N.E.2d 457 (Ind. Ct. App. 2004), trans. denied; Sims v. Scopelitis, 797 N.E.2d

348 (Ind. Ct. App. 2003), trans. denied; Parks v. State, 789 N.E.2d 40 (Ind. Ct. App. 2003),

trans. denied. The litigation history of these particular litigants consisted of repeated attempts to

relitigate matters that had already been fully litigated and/or suits against defendants who were

immune. The restrictions in Sims, which are similar to those in the other two cases, follow:

(1) Prior to filing any such lawsuit, Sims shall submit to the trial court a copy of

the complaint he wishes to file; (2) Sims shall also file a copy of all of the

relevant documents pertaining to the ultimate disposition of each and every

previous case instituted by Sims against the same defendant or emanating, directly

or indirectly, from any alleged conspiracy by public officials . . . ; (3) Sims shall

file a legal brief, complete with competent legal argument and citation to

authority, explaining to the court why the new action is not subject to dismissal by

application of the doctrines of res judicata, collateral estoppel, or law of the case.

If, after reviewing these materials, the trial court determines that the proposed

lawsuit is frivolous, malicious, fails to state a claim upon which relief may be

granted, or is otherwise utterly without merit, the court shall dismiss with

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prejudice the proposed complaint; (4) Sims is required to verify his new

complaint pursuant to Indiana Trial Rule 11(B); and (5) Sims is specifically

instructed to attach to such complaint a separate copy of this final section of the

instant opinion.

797 N.E.2d at 352.

In a case in which a taxpayer brought an action seeking to enjoin the sale of bonds to

finance construction of a new high school, the trial court dismissed the action and enjoined the

taxpayer and other members of an association of which the taxpayer was a member from filing

further suits to delay construction and financing of new high school. In affirming, this Court

stated:

As to the trial court's injunction preventing Huber and other members of

the Franklin County Taxpayers Association from filing further actions, we find no

error. Injunctive relief may be granted when the plaintiff's production of

litigation amounts to an abuse of process. The trial court merely enjoined the

parties from filing public lawsuits on the same subject matter—suits which they

had no right to file.

Huber v. Franklin Cnty. Cmty. Sch. Corp. Bd. of Trustees, 507 N.E.2d 233, 238 (Ind. 1987)

(emphasis added; citations omitted).

In Gorman v. Gorman, 871 N.E.2d 1019 (Ind. Ct. App. 2007), trans. denied, the Court of

Appeals held that a trial court acted within its discretion when it required a former wife to post a

$50,000 appeal bond in her action against her former husband and his former attorney in which

she alleged numerous claims, including fraud, criminal conversion, and obstruction of justice.

Although the trial court awarded substantial amounts to the former husband and former attorney

in actual and punitive damages after finding that the former wife's claims were frivolous, damage

awards would not serve as a deterrent to prevent filing frivolous appeals since the former wife

was essentially judgment-proof. In addition, as a sanction for filing frivolous appeals, the Court

of Appeals dismissed the former wife's appeals with prejudice and imposed an order that

enjoined her from filing future appeals without seeking leave of the Court of Appeals. The clerk

was ordered to return unfiled any documents she attempted to file in violation of this order.

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Courts in other jurisdictions have also imposed restrictions on abusive litigants. In

Federal Land Bank of St. Paul v. Ziebarth, 520 N.W.2d 51 (N.D. 2004), the North Dakota

Supreme Court held that the “open courts” provision of North Dakota's Constitution does not

confer an absolute right of access to courts, but must be interpreted in light of superior rights of

public and necessities of occasion and may, under appropriate circumstances, be limited by

narrowly tailored injunctive relief. The court upheld an injunction precluding a frequent litigant

from further litigation on a mortgage foreclosure and related issues without first paying prior

judgments or obtaining leave of court. See also Matter of Whitaker, 8 Cal.Rptr.2d 249 (Cal.

App. 1992) (barring further pro se litigation by prolific, abusive litigant without first obtaining

leave of court).

The courts of this state, after due consideration of an abusive litigant's entire history, may

fashion and impose reasonable conditions and restrictions, guided by those in the statutes, rules,

and cases outlined above, on the litigant's ability to commence or continue actions in this state

that are tailored to the litigant's particular abusive practices.

II. Pro Se Litigants Must Play by the Rules

Mr. Zavodnik has argued that the system is unfairly biased against him as a pro se

litigant. Mr. Zavodnik has every right to represent himself in legal proceedings, but a pro se

litigant is held to the same standards as a trained attorney and is afforded no inherent leniency

simply by virtue of being self-represented. See Matter of G.P.U., 4 N.E.3d 1158 (Ind. 2014).

"[O]ne acting pro se has no license to harass others, clog the judicial machinery with meritless

litigation, and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A., 808

F.2d 358, 359 (5th Cir. 1986) (denying IFP application and dismissing appeal). Even if a court

may take reasonable steps to prevent a good faith pro se litigant from being placed at an unfair

disadvantage, an abusive litigant can expect no latitude.

Contrary to Mr. Zavodnik's arguments, the system actually imposes more restrictions on

represented parties, at least indirectly through regulation of their attorneys. For instance, an

attorney may be sanctioned for a willful violation of the rule that an attorney's signature on a

pleading constitutes a certificate that the attorney has read the pleading; that to the best of the

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attorney's knowledge, information, and belief, there is good ground to support it; and that it is not

interposed for delay. See T.R. 11(A). In addition, attorneys may be disciplined for abusive

litigation practices. See, e.g., Prof. Cond. Rules 3.1 (asserting a position for which there is no

non-frivolous basis in law or fact); 3.3(a)(1) (knowingly making a false statement of fact or law

to a tribunal); 3.4(d) (making a frivolous discovery request); 8.4(d) (engaging in conduct

prejudicial to the administration of justice). Because these rules have no application to pro se

litigants, it is all the more important that courts be able to fashion appropriate sanctions for

abusive pro se litigants.

III. Litigants Do Not Have an Unfettered Right to Proceed In Forma Pauperis

It has long been the policy of this state that arbitrary economic discrimination in the halls

of justice is wrong, and from the date of its admission to the Union, Indiana has been a leader in

providing indigent persons with fair treatment while in court. See Campbell v. Criterion Group,

605 N.E.2d 150, 157, 159 (Ind. 1992). To this end, a person without sufficient means to

prosecute an action may apply for leave to prosecute as an indigent person, i.e., IFP, and thus be

relieved of certain requirements, including the requirement to prepay a filing fee. See, e.g., Ind.

Code § 34-10-1-1 (2008) ("IFP Statute"); Ind. Code § 34-10-1-2(b) (2008); Ind. Appellate Rule

40.

However, the right to invoke this privilege is not without conditions or limits. The IFP

Statute places the burden upon the party seeking to proceed IFP to demonstrate that he or she is

both indigent and without sufficient means to prosecute the action or bring an appeal. See Sholes

v. Sholes, 760 N.E.2d 156, 160 (Ind. 2001); Campbell, 605 N.E.2d at 159. A request to proceed

IFP necessarily requires the consideration of relevant facts, which may require an evidentiary

hearing. See Offutt v. Sheehan, 168 Ind. App. 491, 344 N.E.2d 92, 101 (1976). A court need not

take an applicant's representations and documents at face value, 1 but in appropriate

circumstances should inquire into the practicalities of the applicant's financial resources. We

note that Mr. Zavodnik has somehow summoned the financial wherewithal to produce probably

1

We note that in support of his request for IFP status, Mr. Zavodnik provided the Court of Appeals with a

stack of documents from the Social Security Administration, primarily concerning members of his family

and consisting mostly of irrelevant boilerplate information.

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tens of thousands of pages of filings in well over 100 cases he has brought. Courts may

rightfully explore how such an applicant can afford such expenses but claim to lack sufficient

means to pay a filing fee. "Indigency determinations present a subject for the sound discretion of

the trial court, and a very clear case of abuse must be shown before this discretionary power can

be interfered with." Campbell, 605 N.E.2d at 159.

In addition, the legislature has provided: "The court shall deny an application made

under [the IFP Statute] if the court determines . . . [t]he applicant is unlikely to prevail on the

applicant's claim or defense." Ind. Code § 34-10-1-2(d). Without defining the exact parameters

of this directive, we conclude that IFP status may be properly denied if the court determines that

the applicant is asserting a claim that is frivolous or upon which relief cannot be granted, is

seeking monetary relief from a defendant who is immune, or is attempting to relitigate a claim

that is barred by res judicata, collateral estoppel, or law of the case. Cf. Ind. Code § 34-58-1-2

(the Screening Statute). A court may also revoke a litigant's IFP status as a sanction for abusive

litigation practices during a proceeding, including baseless attempts to obtain a change of judge

under T.R. 53.1 or otherwise. We note that even the United States Supreme Court has limited an

abusive petitioner's ability to proceed IFP based on his history of filing frivolous petitions. See

Matter of McDonald, 489 U.S. 180 (1989). Those who abuse the state's legal system cannot

expect to do it with the aid of a state subsidy.

IV. Courts May Place Reasonable Limits on Filings by Abusive Litigants

This Court's rules of procedure impose page or word limitations, formatting

requirements, and organizational mandates on some documents. E.g., Ind. Appellate Rules 43,

44, and 46. Mostly, however, the rules allow broad latitude in how litigants present their

requests and arguments to a court. Most litigants do not abuse the rules' general lack of explicit

restrictions. But Mr. Zavodnik has, by habitually presenting filings and supporting documents

that are massive, disorganized, repetitive, at times barely legible, and often of dubious relevance.

He files motions that are overlapping, supplements to motions, and repeated motions for

reconsideration. In addition, his filings often do not conform with the explicit requirements of

the rules, leading to return by the clerk for correction and deemed filed on the date tendered

when eventually corrected. These practices create confusion and put an enormous burden on the

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court, its staff, the clerk, and opposing parties. When a litigant makes a practice of such abusive

filings, a court may place reasonable restrictions on the litigant's filings tailored to the particular

abuses of that litigant.

After due consideration of a litigant's history of abuse, a court may be justified in

imposing restrictions such as the following: 2

 Require the litigant to accompany future pleadings with an affidavit certifying under

penalty of perjury that the allegations are true to the best of the litigant's knowledge,

information, and belief.

 Direct the litigant to attach to future complaints a list of all cases previously filed

involving the same, similar, or related cause of action.

 Direct that future pleadings will be stricken if they do not meet the requirements that a

pleading must contain "a short and plain statement of the claim showing that the pleader

is entitled to relief" and that "[e]ach averment of a pleading shall be simple, concise, and

direct." T.R. 8(A)(1) and (E)(1).

 Require the litigant to state clearly and concisely at the beginning of a motion the relief

requested.

 Require the litigant to provide specific page citations to documents alleged by the litigant

to support an argument or position.

 Limit the litigant's ability to request reconsideration and to file repetitive motions.

 Limit the number of pages or words of pleadings, motions, and other filings.

 Limit the length of the title that may be used for a filing.

 Limit the amount or length of exhibits or attachments that may accompany a filing.

 Instruct the clerk to reject without return for correction future filings that do not strictly

comply with applicable rules of procedure and conditions ordered by the court.

V. Judges Should Not Bow to Baseless Demands for Disqualification

Mr. Zavodnik's abusive litigation practices in this case and others have included unrelenting

attempts to replace the judges presiding over his cases for alleged delays in rulings pursuant to

2

These suggestions are taken in part from Procup v. Strickland, 792 F.2d 1069, 1072-73 and 1073 n.9

(11th Cir. 1986).

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T.R. 53.1 and for alleged bias, prejudice, or misconduct by the judge. But judges presiding over

a case are not required to disqualify themselves as a result of a litigant's unfounded accusations,

abusive tactics, or attempts to manipulate the system. To the contrary, judges have an

affirmative duty to preside over cases unless disqualification is mandatory. Rule 2.7 of the Code

of Judicial Conduct states: "A judge shall hear and decide matters assigned to the judge, except

when disqualification is required by Rule 2.11 or other law." The comment to this rule provides:

Judges must be available to decide the matters that come before the court.

Although there are times when disqualification is necessary to protect the rights of

litigants and preserve public confidence in the independence, integrity, and

impartiality of the judiciary, judges must be available to decide matters that come

before the courts. Unwarranted disqualification may bring public disfavor to the

court and to the judge personally. The dignity of the court, the judge's respect for

fulfillment of judicial duties, and a proper concern for the burdens that may be

imposed upon the judge's colleagues require that a judge not use disqualification

to avoid cases that present difficult, controversial, or unpopular issues.

Correspondingly, Rule 2.11(A) of the Code of Judicial Conduct requires disqualification only

when "the judge's impartiality might reasonably be questioned, including [when the] judge has a

personal bias or prejudice concerning a party . . . ." (Emphasis added.)

The law starts with the presumption that a judge is unbiased and unprejudiced. A judge's

exposure to evidence through judicial sources is generally insufficient to establish bias. The fact

that a litigant has appeared before a judge in prior cases does not establish bias or prejudice.

Prejudice is not inferred from adverse judicial rulings. Mandatory disqualification requires a

showing of a personal, individual bias against the litigant. See Garland v. State, 788 N.E.2d 425,

433 (Ind. 2003). A raw accusation of bias creates no reasonable question about the judge's

impartiality. See Tri Lakes Regional Sewer Dist. v. Geiger, 830 N.E.2d 890, 891 (Ind. 2005). A

party cannot be permitted to disqualify a judge simply by alleging bias. See id.

In Matter of Appointment of a Special Judge In Wabash Circuit Court, while a

proceeding was pending in the Wabash Circuit Court, the defendants (a husband and wife) filed a

third party complaint naming the presiding judge as a third party defendant. 500 N.E.2d 751

(Ind. 1986). The judge then filed a certification for the appointment of a special judge under

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T.R. 79, which requires recusal when a judge is a party to the proceeding. But this Court

declined to appoint a special judge:

The circumstances so revealed show prima facie that the defendants in a

civil action are engaged in a pattern of conduct the purpose of which is to totally

stultify the judicial power of the Wabash Circuit Court as it may be directed

toward them. . . . Their goal of insulating themselves from judicial authority is

being accomplished through the artifice of filing a claim against the sitting judge,

thereby imposing upon the judge the automatic duty of self-disqualification

required by said rule. If this can be successfully achieved by the filing of specious

claims, it can be repeated when any successor judge assumes jurisdiction in their

case. The end result of the success of such a plan is constitutionally intolerable.

....

Within these unusual circumstances, it would be pointless to appoint a

successor judge to assume the jurisdiction of the Wabash Circuit Court in the case

pending below. There is a strong likelihood that any such successor judge would

meet the same fate as did Judge Ford and he or she would be made the subject of

yet another claim before a ruling could be made. We therefore direct that the

Honorable Lynn Ford reassume jurisdiction in Cause No. C-86-113 to conduct a

summary, yet due process hearing upon the question of whether the claim in C-

86-113 or any other claim of which the court has knowledge, presents a

reasonable basis for disqualification. If the Court has jurisdiction of any such

claim and such claim is specious and a sham and intended solely to evade court

jurisdiction, it should strike such claim. If the claim has no reasonable basis, the

court should not disqualify.

Id. at 752-53. The case illustrates that litigants who engage in baseless, abusive attempts to

obtain a change of judge should expect those attempts to fail and may face sanctions.

Conclusion

This matter has come before the Indiana Supreme Court on a petition to transfer

jurisdiction following the issuance of a decision by the Court of Appeals. The petition was filed

pursuant to Indiana Appellate Rule 57. The Court has reviewed the decision of the Court of

Appeals. Any record on appeal that was submitted has been made available to the Court for

review, along with all briefs that may have been filed in the Court of Appeals and all the

materials filed in connection with the request to transfer jurisdiction. Each participating member

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of the Court has voted on the petition. Each participating member has had the opportunity to

voice that Justice’s views on the case in conference with the other Justices.

Being duly advised, the Court DENIES the appellant’s petition to transfer jurisdiction.

The Court refrains from imposing sanctions or restrictions at this point, but Mr. Zavodnik can

expect any further abusive litigation practices in any judicial forum in this state to be met with

appropriate sanctions and restrictions. No petition for rehearing is permitted. See App. R. 58(B).

All Justices concur.

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