Sekerez v. BOARD OF SAN. COM'RS OF SAN. DIST. OF GARY

312 N.E.2d 98 (1974)

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.

June 17, 1974.

HOFFMAN, Chief Judge.

Although appellant in his petition for rehearing has not raised the particular question with which we are here concerned, we nevertheless find it necessary to correct a statement made by this court in its opinion of April 11, 1974, Sekerez v. Board of San. Com'rs of San. Dist. of Gary (1974), Ind. App., 309 N.E.2d 460, 41 Ind.Dec. 501, wherein the judgment of the trial court was affirmed.

In that opinion, at 463 of 309 N.E.2d, at 504 of 41 Ind.Dec., we noted appellant's contention that "the findings of fact entered by the trial court are incomplete and do not cover the issues raised by the pleadings and evidence." Subsequently, it was stated that "[t]his 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."

Upon reconsideration, it must be noted that this court thereafter improperly indulged in a presumption in favor of the trial court which is now proscribed by Ind. Rules of Procedure, Trial Rule 52(D). Specifically, it was stated that "[u]nder 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." (At 463 of 309 N.E.2d)

Although a presumption of this nature is no longer appropriate, such error does not alter our ultimate determination. An examination of the pleadings, evidence and issues raised thereby discloses that the trial court's findings are entirely adequate.

Further, with regard to appellant's assertion that "the trial court erred in failing to make sufficient findings of fact to support its conclusions of law", we find that such conclusions, indeed, rest upon a substantial and complete factual basis.

It was not, therefore, necessary to indulge in presumptions in either of the aforementioned instances; and it must be concluded that appellant remains unaided by these errors. Accordingly, his petition for rehearing should be denied.

Appellant's petition for rehearing is denied.

GARRARD and STATON, JJ., concur.