Sekerez v. Board of Sanitary Com'rs of Sanitary Dist. of City of Gary

• Decision Date: 11 April 1974
• Docket Number: No. 3--573A63,3--573A63
• Citation: 309 N.E.2d 460,160 Ind.App. 13
• Parties: Zarko SEKEREZ, Plaintiff-Appellant, v. BOARD OF SANITARY COMMISSIONERS OF the SANITARY DISTRICT OF the CITY OF GARY, et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 460

309 N.E.2d 460

160 Ind.App. 13

Zarko SEKEREZ, Plaintiff-Appellant, v. BOARD OF SANITARY COMMISSIONERS OF the SANITARY DISTRICT OF the CITY OF GARY, et al., Defendants-Appellees.

No. 3--573A63.

Court of Appeals of Indiana, Third District.

April 11, 1974.

Zarko Sekerez, pro se.

Jackie L. Shropshire, Gary, for appellee Board of Sanitary Commissioners of Sanitary District of City of Gary.

Kenneth D. Reed, Hammond, for appellee Dedelow, Inc.

Charles E. Daugherty, Merrillville, for appellee Gariup Constr. Co.

F. Laurence Anderson, Jr., Gary, for appellee Bongi Cartage, Inc. William J. O'Connor, Hammond, for appellee Vic Kirsch Constr. Co.

Richard W. Johnson, Hammond, for appellee Brandt Constr. Co.

HOFFMAN, Chief Judge.

This is an appeal by plaintiff-appellant Zarko Sekerez, an Indiana taxpayer, from an order requiring the posting of a bond in an action brought pursuant to the Public Lawsuit Statutes, IC 1971, 34--4--17--1 to 34--4--17--8 (Burns Code Ed. and Burns Code Ed., Supp.1973).

The cause which is now before us was commenced by the filing of two separate complaints which were consolidated for proceedings below and also for purposes of appeal. In the complaints, plaintiff-appellant Sekerez sought injunctive relief against the performance of contracts awarded by defendant-appellee Board of Sanitary Commissioners of the City of Gary (Board) pursuant to a project to improve the sewage disposal system of the City of Gary. Appellant also sought a declaratory judgment to declare invalid a certain resolution of the Board pertaining to the project together with any contracts awarded by the Board for construction under the project.

Appellant alleged, inter alia, that he was denied by the Board the opportunity to inspect the engineer's estimates for the costs of construction; that the engineer's estimates were not signed and sealed by a registered, professional engineer; that the estimates were not on file with the Board; that the contracts awarded for construction were in excess of the engineer's estimates; that the proposed project would not prevent pollution of the Grand Calumet River contrary to statements contained in a resolution adopted by the Board; and that the construction of the project would, therefore, constitute a waste of public funds.

Following the filing of plaintiff-appellant's complaints, the Board filed petitions pursuant to IC 1971, 34--4--17--5, supra, asking that the trial court dismiss the causes unless plaintiff shall post a bond. Subsequent to a hearing on May 29, 1973, the trial court entered special findings of fact and conclusions of law and issued an order which, omitting caption and formal parts, states as follows:

'The plaintiff, in each and both of the captioned causes, is hereby ordered to post a bond in the amount of $5,000,000.00, with surety to be approved by the Court, payable to defendant Board of Sanitary Commissioners of the Sanitary District of the City of Gary, Indiana, for the payment of all damages and costs which may accrue to said defendant by reason of the pendency of the captioned actions, or either of them, in the event said defendant prevails, said bond to be posted within ten (10) days from the date of this order. In the event such bond is not filed by the plaintiff, with surety approved by the Court, within ten (10) days after the date of this order, and its entry, the suits, and each of them, shall be dismissed.'

On June 11, 1973, the trial court entered final judgment dismissing the causes by reason of the plaintiff's failure to post the required bond within the ten-day period following the issuance of the court's order. Sekerez brings this appeal, however, solely from the interlocutory order of May 29, 1973.

At the outset, it should be noted that of the nine distinct specifications of error contained in appellant's assignment of errors only six are argued or discussed in the argument section of appellant's brief. The remaining specifications which are not argued must, therefore, be deemed waived on appeal. Jameson v. McCaffry (1973), Ind.App., 300 N.E.2d 889 (transfer denied); Conley v. Lothamer (1971), Ind.App., 276 N.E.2d 602; Ind.Rules of Procedure, Appellate Rule 8.3(A)(7).

Appellant first contends that 'the findings of fact made by the trial court are not sustained by sufficient evidence.' He also asserts that 'the decision of the trial court is contrary to the evidence.'

These contentions of error, however, fail to present any question for consideration on review. The findings and judgment entered by the trial court in the case at bar, were against plaintiff-appellant Sekerez upon whom rested the burden of proof. As such, the findings and judgment do not rest upon the quantum of evidence and may not, therefore, be challenged on the grounds that they are not supported by sufficient evidence or are contrary thereto. Lindenborg v. M & L Builders And Brokers, Inc. (1973), Ind.App., 302 N.E.2d 816; VerHulst v. Hoffman (1972), Ind.App., 286 N.E.2d 214 (transfer denied); Hiatt v. Yergin (1972), Ind.App., 284 N.E.2d 834 (transfer denied).

It is next asserted that the findings of fact entered by the trial court are incomplete and do not cover the issues raised by the pleadings and evidence.

This contention, assuming it to be true, is nevertheless without merit in view of the fact that the findings and conclusions of law entered by the trial court are related to and support the theory of the case upon which the issues are drawn. Under such circumstances, facts not found by the trial court are regarded as not proven; and the law, in effect, implies negative findings as to such issues against the party having the burden of proof. Miller, etc. v. Ortman, etc. et al. (1956), 235 Ind. 641, 136 N.E.2d 17; Metrailer et al. v. Bishop et al. (1959), 130 Ind.App. 77, 162 N.E.2d 94.

Sekerez also asserts that the trial court erred in failing to make sufficient findings of fact to support its conclusions of law. It should again be emphasized that appellant had the burden of proof at the hearing on Board's petition. Moreover, where a fact is not found it is regarded as a fact not proven and a negative finding is implied. So viewed, the findings of fact must be considered to fully support the conclusions of law entered by the trial court.

Appellant next contends that the conclusions of law of the trial court are contrary to law. However, under this general specification of error he argues only that one conclusion in particular is contrary to law. The conclusion of law in question states as follows:

'(5) The defendant Board of Sanitary Commissioners at no time violated any of the rights of the...