from the Lake Circuit Court The Honorable Marissa J.
McDermott, Judge Trial Court Cause No. 45C01-1504-CT-60
ATTORNEYS FOR APPELLANT Andrew A. Crosmer Daniel J. Zlatic
Rubino, Ruman, Crosmer & Polen Dyer, Indiana
ATTORNEY FOR APPELLEE Yolanda Cardona Employees of the
Corporate Law Department State Farm Mutual Automobile
Insurance Company Crown Point, Indiana
Vaidik, Chief Judge.
Following a car accident, Tony Petrovski retained attorney
Samuel G. Vazanellis to represent him. Attorney Vazanellis
filed the complaint one day before the statute-of-limitations
period expired but did not serve the defendant. Once a month,
Petrovski called Attorney Vazanellis to check on the status
of his case, but Attorney Vazanellis never responded. Sixteen
months after the complaint was filed, the Indiana Supreme
Court suspended Attorney Vazanellis from the practice of law.
Petrovski found out about the suspension several months later
and hired new counsel, who then served the defendant. The
defendant filed a motion to dismiss pursuant to Indiana Trial
Rule 41(E) for failure to prosecute, which the trial court
granted. The trial court indicated that its dismissal was
"without prejudice, " but because the
statute-of-limitations period had expired, Petrovski was
barred from refiling.
Petrovski now appeals, arguing that the trial court erred in
dismissing his complaint for failure to prosecute. Under the
unique facts of this case, in particular Attorney
Vazanellis's complete abdication of his duties as an
Indiana attorney and Petrovski's inability to refile, we
conclude that the trial court erred in dismissing
Petrovski's complaint. We therefore reverse and remand.
and Procedural History
Petrovski and Robert Neiswinger were involved in a car
accident on April 17, 2013, in Lake County. Petrovski
retained Attorney Vazanellis to represent him. Shortly after
the accident, on April 29, Attorney Vazanellis faxed a letter
to State Farm, Neiswinger's insurer, stating that
Neiswinger caused the accident and that Petrovski was being
treated for his injuries. Attorney Vazanellis also requested
a copy of Neiswinger's insurance policy. The next day,
State Farm responded to Attorney Vazanellis, indicating that
it was "handling your client's third party injury
claim and will update our records to reflect your
representation." Appellant's App. Vol. II p. 23.
On April 16, 2015-the day before the two-year
statute-of-limitations period was set to expire-Petrovski,
represented by Attorney Vazanellis, filed a complaint against
Neiswinger. Attorney Vazanellis attempted to serve Neiswinger
by certified mail on May 5, but it was returned on May 22 as
"unsuccessful." Id. at 6. Attorney
Vazanellis did not attempt to re-serve Neiswinger.
According to Petrovski, he heard nothing about the status of
his case "for months." Id. at 42.
"After some time, " Petrovski decided to contact
Attorney Vazanellis. Id. "Throughout 2016"
Petrovski called Attorney Vazanellis "about once a
month, " but Attorney Vazanellis "never responded
to any of [his] inquiries." Id.
On August 25, 2016, about sixteen months after
Petrovski's complaint was filed, the Indiana Supreme
Court suspended Attorney Vazanellis from the practice of law
effective immediately. See In re Samuel G.
Vazanellis, No. 45S00-1606-DI-330 (Ind. Aug. 25, 2016);
see also In re Vazanellis, No. 45S00-1606-DI-330
(Ind. Feb. 27, 2017) (making suspension indefinite).
According to Petrovski, in December 2016 a lawyer in Attorney
Vazanellis's law firm told him that Attorney Vazanellis
had been suspended. That lawyer then referred Petrovski to
In January 2017, Petrovski retained new counsel, Andrew
Crosmer, to take over his case. On January 20, Attorney
Crosmer filed a motion to substitute counsel, an appearance,
and an alias summons. Around the same time, Neiswinger and
State Farm learned, for the first time, about the lawsuit. On
January 26, an attorney entered an appearance on behalf of
Neiswinger and filed a motion to dismiss the complaint
pursuant to Indiana Trial Rule 41(E) for failure to
prosecute. Neiswinger was served with the complaint and alias
summons on February 17, about twenty-two months after the
complaint was filed. Following a ...