He sold a $40 printer. Then he was sued in Indiana for $30,000.
It wasn't.
What the 66-year-old Massachusetts man didn't know then is that he would spend the next 6 ½ years embroiled in a complicated and confusing legal dispute in Indiana over that printer, which, according to its buyer, was broken.
He would find himself liable for about $30,000 in damages. He would pay a lawyer at least $12,000 in his battle to escape the legal mess.
And it all started with a piece of hardware he sold online for about $40 in 2009. With shipping and other costs, the total was less than $75, according to court records.
The printer's buyer was Gersh Zavodnik, a 54-year-old Indianapolis man known to many in the legal community as a frequent lawsuit filer who also represents himself in court. The Indiana Supreme Court said the "prolific, abusive litigant" has brought dozens of lawsuits against individuals and businesses, often asking for astronomical damages. Most, according to court records, involve online sales and transactions.
Zavodnik, a native of Ukraine who moved to the United States in 1987 under a grant of political asylum, sued Costello, accusing him of falsely advertising a malfunctioning printer with missing parts, and pocketing Zavodnik's money. According to a complaint filed in Marion Superior Court, Zavodnik tried to resolve the issue with Costello to no avail, leaving him with no other choice but to take legal action.
According to court records, Zavodnik initially filed a lawsuit in Marion County Small Claims Court , where he asked for the maximum damages of $6,000. Zavodnik lost because he had thrown away the evidence (the printer), court records said.
Gersh Zavodnik poses in a room in his home, Tuesday, May 14, 2013, that is full of files for the vast number of lawsuits he has filed. (Photo: Kelly Wilkinson/IndyStar)
Costello said he thought that was the end of the legal fight, but Zavodnik filed another lawsuit in Marion Superior Court, where he requested damages for breach of contract, fraud, conversion, deceptive advertising and emotional distress.
"I figured that's it," Costello said of his victory in small claims court. "But no, no, no. Now I'm in another twilight zone."
In 2010, Zavodnik sent Costello, who also was representing himself in the lawsuit, paperwork asking him to admit that he was liable for more than $30,000 for breach of contract, fraud and conversion. The trial court dismissed the case, along with 26 others filed by Zavodnik, who appealed all of those dismissals, court records state.
The Indiana Court of Appeals in March 2012 revived the lawsuit against Costello and sent the case back to the trial court, where it remained stagnant for another nine months until a hearing was scheduled later that year.
Zavodnik also had sent Costello two more requests for admissions. One asked Costello to admit that he conspired with the judge presiding over the case, and that he was liable for more than $300,000. Another one requested Costello to admit that he was liable for more than $600,000.
Because Costello did not respond to all three requests for admissions within 30 days of receiving them, and did not ask for an extension of time, as required by Indiana trial rules, Costello admitted to the liabilities and damages by default. He also did not appear at a July 2013 hearing, according to court records.
Costello said he never received the requests for admissions and was not notified of the hearing.
The case overwhelmed him so much, Costello said, that he finally decided to hire an attorney. In fall 2013, Indianapolis attorney Chad Wuertz , who represents other defendants sued by Zavodnik, filed a motion to withdraw the admissions.
The case lingered again — this time for more than a year — without any significant action.
Wuertz said the case went through several Marion County judges, many of whom recused themselves. At one point, Zavodnik sought to have a judge removed, and the Supreme Court appointed a special judge from Boone County.
Finally, in March 2015 — six years after Costello sold the printer — Special Judge J. Jeffrey Edens issued a ruling. He awarded Zavodnik a judgment of $30,044.07 for breach of contract.
Edens acknowledged the amount is "seemingly high" and the judgment "may seem extreme for the breach of contract for the purchase of a printer." But he wrote that he's constrained by how the Supreme Court had previously interpreted a state trial rule, called Rule 36 , which sets the 30-day deadline for responding to requests for admissions.
"What kind of reality am I in now?" Costello said of the ruling. "I don't know what's going on. Why don't I know what's going on?"
Costello, who owns a forensic accounting business, appealed the ruling. On March 23, the appeals court issued a sharply worded 13-page opinion in his favor .
The $30,000 in damages "had no basis in reality," Chief Judge Nancy Vaidik wrote.
Zavodnik misused the Indiana trial rule, which was meant to more quickly and efficiently reach a resolution, Vaidik wrote.
"He did not send requests claiming $30,000 and $300,000 and $600,000 in damages because he believes those figures are legally justified and thought Costello might agree," Vaidik wrote. "He sent them because he hoped Costello would not respond, rendering the matters admitted..."
"Zavodnik used the rule as a way to avoid such a resolution," Vaidik wrote.
Costello was on a business trip in Ontario, Canada, when his attorney called him to tell him the news. He said he almost broke down while sitting at a diner.
"I've had this huge weight, this financial and emotional weight for 6 ½ years," Costello said.
Zavodnik likely does not see it that way. A colleague of Zavodnik's who's also a pro se litigant — legal jargon for someone who represents himself or herself in court — spoke on his behalf.
Jesse Clements, who said he and Zavodnik are members of a group of pro se litigants whose purpose is to "end Marion County judicial corruption," said the appeals court ruling was "ridiculous," "irrational," and "opposite to the law."
Clements describes himself as a highly skilled litigant, and Zavodnik sometimes uses Clements' research for his cases. He said the appellate judges "misrepresented" and "cherry-picked" the issues and facts that support their opinion.
Zavodnik likely will ask for a re-hearing, Clements said.
Costello said he will no longer sell anything online. He also said he has no plan to pursue any legal action against Zavodnik.
"I've had enough," he said. "I don't need him in my life anymore."
But the case is not yet over.
The appeals court ordered the trial court to hold a hearing to determine whether the case should be dismissed "based on Zavodnik's repeated, flagrant, and continuing failure to comply with Indiana's rules of procedure."
That hearing won't be held before Edens, the special judge from Boone County. He, like many others before him, recused himself.
Special Judge Christopher Burnham, of Morgan County, is now on the case.
*Correction: An earlier version of this story incorrectly described Jesse Clements' professional relationship with Gersh Zavodnik. Clements conducts research for his own cases that Zavodnik sometimes uses.
IndyStar reporter Tim Evans contributed to this story.
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, 17 N.E.3d 259, 261 (Ind. 2012).
The $30,000 in damages "had no basis in reality," Chief Judge Nancy Vaidik wrote.
Zavodnik misused the Indiana trial rule, which was meant to more quickly and efficiently reach a resolution, Vaidik wrote.
"He did not send requests claiming $30,000 and $300,000 and $600,000 in damages because he believes those figures are legally justified and thought Costello might agree," Vaidik wrote. "He sent them because he hoped Costello would not respond, rendering the matters admitted..."
"Zavodnik used the rule as a way to avoid such a resolution," Vaidik wrote.
There HAS to be a way to stop people who abuse the legal system like this! The judge ruled that this asshole has mis-used state law to try to manipulate the case in his favor. Many, many, many times he has done it and is making living just from suing people. He needs to face a severe financial penalty for filing frivolous and abusive lawsuits.
I've seen litigants like this and, sometimes, a court bars them from filing any lawsuits at all without permission of the court. Maybe the people he has sued should ban together and countersue him for abuse of process or something like that and turn the tables on him.
Generally it is not worth their time and money to go through with a retaliatory suit, besides most ethical attorney's will not bring such a suit, they could get disbarred for it.
What he is doing should be dealt with in two ways
First the State Supreme court needs to revise the rules to stop this type of lawsuit, the legislature needs to write laws that also hinder the ease with which such a suit can be brought.
It is one of those things that barring death, cannot be stopped by the current state of the law. The case over the printer should not have gone beyond SCC. but then the guy is a con artist who just uses people lack of knowledge and understanding of the law to make his living.
Forget an attorney. Hire an assassin, they're cheaper.
Generally it is not worth their time and money to go through with a retaliatory suit, besides most ethical attorney's will not bring such a suit, they could get disbarred for it.
If the state allows for an abuse of process suit, I doubt anything prevents victims from banding together, pooling their money to hire one attorney so he can file a joint action on behalf of multiple claimants. I wouldn't phrase it as retaliatory but rather as a suit seeking justice for those who have been harmed by an individual who uses the legal system as a weapon against innocent people. But if the clown has no money, the suit would be pointless. Of course the judicial system can be revised as you suggest. Alternatively, the legislature can simply make abuse of civil process a misdemeanor and the court can fine him or put his ass in jail if convicted.
I've seen litigants like this and, sometimes, a court bars them from filing any lawsuits at all without permission of the court.
I definitely like this idea. He has had way too many victims to be allowed to get away with it. A judge should review any further lawsuits he files and toss the garbage ones, which in this guys case are just about all of them.
Yeah, they are called "Slap Suits" usually to get someone to take action who is sitting on his hands, or as seen in this case punish or take advantage of someone.
When used properly they can be very effective, you can reach right into someones pocket and force them to spend thousands of dollars hiring an attorney. Which for most people would be ample incentive to deal with the issue they are avoiding.
But like the clown above, you play in the "Grey Areas", manipulate the rules of court procedure, they can be a license to steal, harass, or commit crimes themselves.
Guys like this are frauds, leeches on the back of the system. The court system has rules in place usually for very good, well thought out reasons.
But it's guys like this that specifically look for and use the sometimes contradictory rules in the law of civil procedures for harm that destroy the faith common people have in the courts system.
This is one section of tort reform that does need to be addressed.
This is one section of tort reform that does need to be addressed.
Agreed.
This asshole needs a good ass kicking!
Agreed also!
The problem with the law is it doesn't allow for common sense. This should be a simple action by the courts but because the law has turned into nothing more than a game of winning and losing the most important objective has been lost. It's supposed to be about justice.
In this case "justice" would be putting men like Gersh Zavodni behind bars for wasting tax payer money on these fraudulent schemes. The fact that our justice system is allowing such a misuse of the system shows how broken it is. My perception is that very few people going into the law profession do it out of the goodness of their hearts or because they want to make a difference. They do it for the thrill of the game and for money.
Another "refugee" that we should never have welcomed here.
My ex-girlfriend goes through this kind of thing with her ex-husband. He promised to make her life a living hell for divorcing him (he was doing waitresses at the restaurants he was involved with and providing zero help for his children). He takes her to family or superior court on some trumped up crap, costs her attorney dollars, after several hearings, the case is thrown out, he files the next day for something equally ridiculous and no one stops him. He was actually warned by Child Protective Services if he filed another false report, they were preferring charges....but no one wants to........limit his rights....so she has to suffer.
Bottom line? The whole systems needs work.....
What a nightmare!