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Petrovski v. Neiswinger

Court of Appeals of Indiana

October 27, 2017

Tony Petrovski, Appellant-Defendant,
v.
Robert Neiswinger, Appellee-Plaintiff.

         Appeal 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.

         Case Summary

         [¶1] 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.

         [¶2] 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.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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).

         [¶7] 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 new counsel.

         [¶8] 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 ...


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