KOSCIUSKO — The Kosciusko County Community Fair filed multiple motions this week, including requests for a new judge, a new venue and a dismissal.
Circuit Court Judge Michael Reed granted a change of judge for the case on Tuesday, June 12. He has not made a ruling on the change of venue or the dismissal yet.
The motion for a venue change addresses multiple arguments. The motion states that Warsaw Mayor Joseph Thallemer is related to one of the plaintiffs and has “openly opposed the manner in which many of the events take place at the fairgrounds.” The motion goes on to state that the case has been highly publicized and that any citizen who lives near the fairgrounds could become potential jurors.
The motion’s conclusion states that the fairgrounds “will be unlikely to receive a fair trial on account of local prejudice and bias against the defendant and the claims being made by plaintiffs from local leadership on down to private citizens within th community.”
The dismissal motion focuses on the validity of the restrictive covenants, the plaintiffs’ ability to enforce the restrictive covenants and violation of the Rule Against Perpetuities.
The defendants argue that the restrictive covenants are not valid because they lack essential terms involving the real estate property. The agreed upon restrictive covenants identifies the parties involved instead of the real estate property owned by the properties. It also argues that the “plaintiffs cannot establish all of the elements required for a valid restrictive covenant and they cannot now be enforced against defendant.”
The second argument in the motion to dismiss states that the plaintiffs lack standing to enforce the restrictive covenants. None of the plaintiffs involved in the case were the parties involved in the original restrictive covenants. The motion goes on to state, “the common addresses provided in the plaintiff’s complaint do not demonstrate that the plaintiffs have a right to enforce Complaint Exhibit 1 [the restrictive covenants] as no property descriptions or even common street addresses as listed.”
The final argument reads that the restrictive covenants violate the Rule Against Perpetuities. The Rule Against Perpetuities states that an interest shall not be valid unless it must vest, if at all, not later than 21 years after a life in being at the creation of the interest. The rule is intended to enhance marketability of property interests by limiting remoteness of vesting. The motion states that the restrictive covenant does not indicate a time in which the interest will vest, but merely states the covenant shall be enforceable by homeowners and their successors and assigns.
The motion concludes by stating, “the plaintiffs have failed to state a claim upon which relief can be granted as to [restrictive covenants] of the complaints, therefore, defendants move this court for dismissal of count 1.
The three motions address the preliminary injunction that was ordered after Mary Clemens, Merle Conner, Judith Conner and Chris Cummins, all of Warsaw, filed a complaint in Kosciusko County Circuit Court against the Kosciusko County Community Fair regarding racing events. In 1990, restrictive covenants were agreed upon which stated that the fair had the right to continue the use of its grandstand and racetrack facility for recreational and fairground activities other than motorized racing.
In March of this year, the plaintiffs discovered that the Kosciusko County Community Fair was planning to conduct motorized races in the spring and summer.
A hearing was held on May 10. Both parties appeared in person at the hearing and presented evidence. The judge took the evidence under advisement and declared an order.
The order by Judge Reed declared that the plaintiffs motion for a preliminary injunction was granted. While this case continues, the fairgrounds is “prohibited from conducting, running, permitting or allowing motorized racing on fairgrounds property, or otherwise violating the restrictive covenants.”