KOSCIUSKO — Last week, two new updates occurred regarding the pending lawsuit against the Kosciusko County Community Fair regarding racing events. The court of Appeals of Indiana upheld the preliminary injunction on the case on Thursday, Dec. 20. Mediation for the case occurred on Friday, Dec. 21, with no resolution occurring.
The court case stems from the petitioners filing 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.”
Attorney Edward Hearn, representing the Kosciusko County Community Fair, filed a notice of appeal of the preliminary injunction on June 8.
Court of Appeals of Indiana Senior Judge Ezra Friedlander filed an opinion upholding Reed’s injunction on Dec. 20.
The first point the appeal argued was that in order for the plaintiffs in the case, the homeowners, to have the standing to enforce the original restrictive convenient, at least one of them must be an original homeowner or a successor. The appeal court’s opinion states that James Cummins was one of the original covenantees and that Chris Cummins has since purchased the property associated with the restrictive covenant.
The opinion states, “Because we agree that Chris Cummins is a successor in interest to one of the original homeowners, we conclude that there is vertical privity of estate. As a result, the restrictive covenant runs with the land and Chris Cummins had standing to enforce the restrictive covenant.”
The second portion of the appeal argued that the court erred in granting the preliminary injunction. A preliminary injunction is granted based on whether remedies a law are inadequate, whether there is a reasonable likelihood of success at trial, whether injury to the defendant outweighs harm to the plaintiff and whether public interest would be disserved.
In regards to these points, the opinion states that “The fair’s arguments, however, amount to nothing more than a request for this court to reweigh the evidence, which, again, we will not do.”
In regards to the argument that the injury to the fairgrounds outweighs the harm to the homeowners, the opinion states, “Given that it is undisputed that the fair had notice of the restrictive covenant, we agree with the trial court’s finding that the only actual harm suffered by the fair is that it would be forced to abide by its earlier bargain. The fair argues on appeal that it would suffer approximately $115,000 in damages in 2018 and would be exposed to potential breach of contract claims brought by vendors if injunctive relief was granted. We note, however, that given its knowledge of the restrictive covenant, the fair could not have reasonably relied on any monies generated with potential vendors. The fair’s argument again amounts to a request for this court to reweigh the evidence, which we will not do.”
After the preliminary injunction was upheld, both parties in the case met for a mediation session on Friday, Dec. 21, which hoped to provide a resolution to the lawsuit. According to posts in the Facebook group “We Want Another Warsaw Speedway,” the mediation was unsuccessful and no resolution was agreed upon. With no resolution, the lawsuit will continue in court.
No official paperwork regarding the outcome of the mediation has been filed with the Kosciusko County courts. No further court dates or hearings have officially been scheduled either.