MEMORANDUM DECISION
                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                     Aug 25 2016, 9:45 am
this Memorandum Decision shall not be
                                                                CLERK
regarded as precedent or cited before any                   Indiana Supreme Court
                                                               Court of Appeals
court except for the purpose of establishing                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Johnny W. Ulmer
Bristol, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Imad A. Elayan,                                          August 25, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         71A03-1602-PL-330
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
Vincent M. Campiti,                                      The Honorable Margot F. Reagan,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         71D04-1405-PL-109



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PL-330 | August 25, 2016   Page 1 of 5
                                                    Case Summary1


[1]   Imad A. Elayan appeals the dismissal with prejudice of his suit for legal

      malpractice filed against Vincent Campiti. He also challenges the trial court’s

      award of attorney fees.


[2]   We affirm.


                                           Facts & Procedural History


[3]   On May 5, 2014, Elayan filed a complaint against Campiti for legal malpractice

      and breach of fiduciary duty in the St. Joseph Superior Court. Thereafter, on

      January 27, 2015, Campiti filed a motion to dismiss based upon Elayan’s failure

      to prosecute the case and respond to discovery for over six months. Following

      a hearing, on March 31, 2015, the trial court dismissed the case without

      prejudice pursuant to Ind. Trial Rule 41(E).2


[4]   Although T.R. 41(F) provides a mechanism for reinstatement following such a

      dismissal, Elayan did not seek reinstatement. Rather, on April 10, 2015,




      1
        We observe that Elayan’s brief and appendix are rife with violations of our appellate rules, which we will
      not endeavor to detail here. Appellate counsel Johnny W. Ulmer, however, is directed to thoroughly review
      the Indiana Rules of Appellate Procedure – particularly Rules 46 and 50 – before filing a brief with this court
      again. While we may dismiss an appeal due to flagrant violations of the rules, we exercise our discretion to
      reach the merits in this case. See Galvan v. State, 877 N.E.2d 213, 216 (Ind. Ct. App. 2007).
      2
       The dismissal was also grounded on Ind. Trial Rule 37, as a discovery sanction. However, the case upon
      which the trial court relied in its order, Olson v. Alick’s Drugs, Inc., 863 N.E.2d 314 (Ind. Ct. App. 2007), trans.
      denied, was based exclusively on T.R. 41. This is likely because T.R. 41(E) allows for dismissal for failure to
      prosecute or comply with the trial rules, which include the discovery rules. Accordingly, the case is properly
      analyzed under T.R. 41(E).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PL-330 | August 25, 2016                    Page 2 of 5
      Elayan filed a new action in the St. Joseph Circuit Court based upon the same

      claims. In this “new” cause, Campiti quickly filed a motion to dismiss and a

      motion for attorney fees. Several months later, the Circuit Court transferred the

      matter back to the Superior Court, which retained jurisdiction.


[5]   Thereafter, Campiti renewed his motion to dismiss, as well as his request for

      attorney fees. The trial court held a hearing on the pending motions on January

      13, 2016. At the conclusion of the hearing, the trial court noted that the prior

      dismissal had been based on Elayan’s failure to prosecute and failure to respond

      to discovery, both of which the court indicated “in a lot of ways go together.”

      Transcript at 38. In its written order issued the following day, the court

      explained that a dismissal without prejudice requires a plaintiff to affirmatively

      seek reinstatement of the original action before the court that initially dismissed

      the action. Because Elayan had not filed a motion for reinstatement and had

      offered no good cause to support reinstatement of the case in the ten months

      since dismissal, the court dismissed the case with prejudice. Additionally,

      finding that the proceedings in the Circuit Court were “clearly improper and

      clearly contrary to law”, the trial court granted Campiti’s request for attorney

      fees incurred as a result of those proceedings. Appendix at 10. In a separate

      order issued February 2, 2016, the trial court directed Elayan to pay a portion of

      Campiti’s attorney fees in the amount of $2127.50. Elayan now appeals.


                                          Discussion & Decision

                                         1. Dismissal with Prejudice


      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PL-330 | August 25, 2016   Page 3 of 5
[6]   Elayan initially challenges the trial court’s granting of Campiti’s second motion

      to dismiss – this time with prejudice. He claims that he was not required to

      seek reinstatement of the action in the original trial court, the St. Joseph

      Superior Court, because the action was dismissed based solely on T.R. 37(B)

      rather than T.R. 41(E). This is a misstatement of the record.


[7]   In any case, the involuntary dismissal without prejudice here clearly required

      Elayan to seek reinstatement in the original trial court if he desired to continue

      litigating the matter. See Zavodnik v. Guzman, 984 N.E.2d 699, 702-03 (Ind. Ct.

      App. 2013), aff’d on reh’g, 988 N.E.2d 806 (Ind. Ct. App. 2013) (although

      involuntary dismissal without prejudice had no res judicata effect, plaintiff was

      precluded from filing a new complaint in another court instead of petitioning

      for reinstatement in the original court); Thacker v. Bartlett, 785 N.E.2d 621, 625

      (Ind. Ct. App. 2003) (“by filing a new complaint instead of petitioning to

      amend his original complaint, Thacker was circumventing the authority and

      discretion of the original trial court”). Elayan’s argument to the contrary is

      wholly without merit.

                                                2. Attorney Fees


[8]   Elayan’s challenge to the award of attorney fees is based exclusively on his

      erroneous conclusion that the “refiling of the original complaint in the St.

      Joseph Circuit Court…was perfectly permissible”. Appellant’s Brief at 9. As




      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PL-330 | August 25, 2016   Page 4 of 5
       discussed above, it was not. Accordingly, Elayan has failed to establish that the

       trial court erred in awarding attorney fees under Ind. Code § 34-52-1-1(b).3


[9]    Judgment affirmed.


[10]   Bradford, J. and Pyle, J., concur.




       3
             This part of the statute provides:

                 In any civil action, the court may award attorney’s fees as part of the cost to the prevailing
                 party, if the court finds that either party:
                   (1) brought the action…on a claim…that is frivolous, unreasonable, or groundless;
                   (2) continued to litigate the action…after the party’s claim…clearly became frivolous,
                   unreasonable or groundless; or
                   (3) litigated the action in bad faith.
       Id.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PL-330 | August 25, 2016                      Page 5 of 5
