Sekerez v. Lake County Bd. of Com'rs
Decision Date | 09 December 1976 |
Docket Number | No. 3--974A157,3--974A157 |
Citation | 171 Ind.App. 463,358 N.E.2d 140 |
Parties | Zarko SEKEREZ, Taxpayer, Appellant (Plaintiff below), v. The LAKE COUNTY BOARD OF COMMISSIONERS and Steve W. Manich, Lake County Surveyor, Appellees (Defendants below). |
Court | Indiana Appellate Court |
Zarko Sekerez, Merrillville, pro se.
Joseph L. Skozen, Munster, James A. Holcomb, Merrillville, for appellees.
Zarko Sekerez filed a complaint in the Lake Superior Court seeking a declaratory judgment to determine whether the Lake County Board of Commissioners have authority to hire or appoint private engineers to inspect county bridges; whether the county surveyor may provide engineering services to private individuals during the time that he is being paid to perform his official duties as county surveyor; and whether any fees received by the county surveyor for private engineering work performed during the time that he should have been performing his official duties should be turned over to the county general fund. Before trial, defendants, Steve Manich, who is the Lake County Surveyor, and the Lake County Board of Commissioners, filed motions for summary judgment with supporting affidavits and exhibits. After a hearing on their motions the trial court granted summary judgment in their favor:
'. . . (T)he Court having considered the pleadings, affidavits, depositions and memoranda served and filed in this action, together with testimony and arguments of counsel; and having found that there is no genuine issue as to any material fact to be submitted to the Court; and having concluded that defendants are entitled to judgment as a matter of law . . . (hereby orders) that summary judgment be, and it is hereby entered, for defendants and that costs be assessed against plaintiff.'
Sekerez perfected this appeal from the trial court's judgment. He contends that the trial court erred:
(1) when it granted summary judgment;
(2) when it did not make special findings of fact and conclusions of law;
(3) when it failed to designate the issues and claims upon which it found no genuine issue of material fact; and
(4) when it failed to make a declaratory judgment as to the issues presented.
Sekerez has not shown reversible error, and we affirm.
Summary judgment must be granted if 'there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.' Indiana Rule of Procedure, Trial Rule 56(C). In the present case, Sekerez contends that summary judgment was improperly granted because:
This is the extent of Sekerez's showing of 'how the issues and contentions in support thereof relate to the particular facts of the case.' Indiana Rule of Procedure, Appellate Rule 8.3(A)(7).
The affidavit of Steve W. Manich dated January 11, 1973, is not in the record. Depositions of Sekerez and Manich, which were considered and referred to by the trial court, are not included in the record. There was testimony taken at the three-day summary judgment hearing, which is not in the record before us. Because of the absence of this evidence, we have no way of determining whether or not there were genuine issues of fact which would have made the trial court's decision to grant summary judgment improper.
It is true, as Sekerez points out, that the burden is on the party moving for summary judgment to show that no material issue of fact exists, and all doubts must be resolved in favor of the party against whom the motion is directed. See Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688. It is also true, however, that the burden is on the appellant to establish error in the rendition of the judgment below. A reviewing court will presume that the judgment and rulings of the trial court are correct, and will not presume that facts showing error exist outside the record. See State Board of Tax Comm'rs v. Oliverius (1973), Ind.App., 294 N.E.2d 646; Wisconsin Nat'l Life Ins. Co. v. Meixel (1943), 221 Ind. 650, 51 N.E.2d 78.
From the evidence presented in the record, it is apparent that summary judgment was proper as to the issue of the Board's power and authority to appoint private engineers to inspect county bridges. Summary judgment may be granted in favor of a defendant when there is no genuine issue as to the existence of an affirmative defense. Ind. Rules of Procedure, Trial Rule 56(E). Since the issue of the Board's power and authority to hire private engineers was determined in a prior action between the parties, the assertion of this issue is barred by the doctrine of res judicata.
A judgment was rendered by the Lake Superior Court 1 on April 1, 1974, in an action for a declaratory judgment between Zarko Sekerez (plaintiff) and the Lake County Board of Commissioners (defendant). The pertinent parts of that judgment are as follows:
Whether it is the inspection of county bridges (which is at issue in the present case) or the 'preparation of plans and specifications for all county road and bridge construction projects' (which was adjudicated in the former case), the essential issue is the same, that is, whether it is the exclusive responsibility of the county surveyor or engineer to perform the duties enumerated in IC 1971, 8--17--5--6 (Burns Code Ed.), or whether the Board may hire private engineers to perform these duties.
This Court has stated the elements essential to the application of the doctrine of res judicata:
'The basic elements of res adjudicata are fourfold: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the matter now in issue was, or might have been, determined in the former suit; (3) the particular controversy adjudicated in the former action must have been between the parties to the present suit; and (4) judgment in the former suit must have been rendered on the merits.' Crown Point Community School Corp. v. Richards (1973), 154 Ind.App. 545, 290 N.E.2d 449, 452; Wright v. Kinnard (1970), 147 Ind.App. 484, 262 N.E.2d 196.
In the present case, the record shows that a court of competent jurisdiction, in an action between the parties to the instant suit, rendered a judgment on the merits which determined an issue in the present case. Summary judgment was proper.
In the present case, summary judgment was also granted in favor of defendants on the issues of whether the county surveyor may provide engineering services to private individuals during the time he is being paid to perform his public duties and whether he must turn over any fees received in the performance of private services to the county general fund. As stated above, the trial court's decision is...
To continue reading
Request your trial-
P.M.S., Inc. v. Jakubowski, 65A01-9110-CV-316
...summary judgment, i.e., one entered when there are no genuine issues of material fact to be resolved. See Sekerez v. Lake County Bd. of Comm'rs (1976), 171 Ind.App. 463, 358 N.E.2d 140.In the summary judgment context, then, the entry of specific findings and conclusions aids our review by p......
-
Bassett v. Glock
...of witnesses or the weight of evidence, findings of facts by the court are inappropriate. See Sekerez v. Lake County Board of Commissioners (3d Dist.1976) Ind.App., 358 N.E.2d 140, 144.3 The "locality" rule, particularly as phrased in terms of the "same locality", has been subjected to rece......
-
Ahnert v. Wildman
...See Equitable Life Assurance Society of U. S. v. Crowe (1976), Ind.App., 354 N.E.2d 772, 776; also see Sekerez v. Lake County Board of Commissioners (1976), Ind.App., 358 N.E.2d 140. No designation is necessary if there is only one issue. Crowe, Thirdly, although hearing on the motions for ......
-
Creech v. Town of Walkerton
...and adjudicate the precise point. Johnson v. Knudson-Mercer Co., 1906, 79 NE 367, 117 Ind. 429. In Sekerez v. Lake City Board of Commissioners, 1976, 358 NE2d 140, 171 Ind.App. 463, the Court delineated the four basic elements of res judicata, the fourth of which was that 'judgment in the f......