Fair Loses In Appeals Court AgainKosciusko County Fair has not only lost its lawsuit, but now must pay the homeowners’ legal bill and possibly damages.
A lawsuit has been brewing between the Kosciusko County Fair and neighboring homeowners after the homeowners filed suit in May 2018 claiming the fair started motorized racing back up, defaulting on a 1990 agreement that the fair was to stop the racing then.
Special Judge Stephen Bowers ordered a permanent injunction Sept. 3 and appeals courts have upheld the ruling.
In October, Kosciusko County Fair Board members announced they were going to appeal the injunction and that they’re “fighting to survive.” It was also revealed that the fair – a 501c3 nonprofit organization that is funded through the events it puts on – had spent over $100,000 on the lawsuit. At the time, Board Treasurer Sheal Dirck said he doesn’t see the cost to fair patrons increasing “just because the fair has legal bills to pay.”
In November, the fair board unanimously voted to increase fair ticket prices by $3.
Also in October, then-Fair Board President Kevin Harris said, “If we let people start controlling the events that we have at the fairgrounds, it won’t be long before they start to try to control the fairgrounds and then once that happens, we’ll have lost the fairgrounds.”
The fair has always maintained its stance in the case is that they upheld the 1990 agreement to stop motorized racing, but that agreement became void once the original homeowners moved away.
An opinion filed by the Indiana Court of Appeals Thursday reads, “The ... language clearly indicates that the covenantor intended for the covenant to run with the land and it is undisputed that the covenant touches and concerns the land. As such, the only question remaining is where there is privity of estate between original homeowners and homeowners. It is uncontested that James A. Cummins was one of the original coventees. Chris Cummins testified that in 1998 he purchased the property that was owned by James when the restrictive covenant was executed. In light of this testimony, the trial court found that Chris Cummins is a successor in title to the real estate owned by James A. Cummins. The Fair’s challenge to this finding amounts to nothing more than a request that we reweigh the evidence, which we will not do. 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 has standing to enforce the restrictive covenant.”
Citing case law, the opinion reads, “Based upon the designated evidence, the fair’s arguments, and our 2018 opinion, we conclude the trial court did not err in entering its Sept. 3, 2019, judgment based upon the restrictive covenant.”
The homeowners also are requesting attorney fees pursuant to Indiana Appellate Rule 66(E).
“They argue the Fair asks this court, in this appeal, to revisit arguments this court has previously rejected. They argue ‘the fair’s insistence on briefing (and requiring the homeowners to brief in response) arguments related to the rule against perpetuities, which clearly has no applicability, and the statute of frauds, which has no factual basis, has required a disproportionate amount of time and expense from the parties and the judiciary.’ They argue that they have shown restraint by not seeking attorney fees at any prior state of this litigation. The Fair responds that it presented a good faith basis that the law of the case doctrine does not apply and this case does not warrant an award of attorney fees.”
The Indiana Appellate Rule 66(E) law reads: “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court shall remand the case for execution.”
The opinion states that the judges believe the homeowners have shown, in light of the 2018 opinion and the designated evidence, that the Fair’s claims on appeal are meritless, “and we conclude an award of damages, including appellate attorney fees, is appropriate in this case.”
Ed Hearn, of Johnson & Bell in Crown Point, is the attorney listed for the Fair’s appeal. Hearn said Thursday that he had notified his clients of the opinion but had yet to speak with them about it.
“Obviously, we’re disappointed in the opinion,” Hearn said. He also said there has been no decision on whether they will appeal or not.
Attempts to reach current Fair Board President Shane Checketts were unsuccessful.
A plaintiff in the case said the neighbors have spent close to $100,000 in attorney fees, and that they’re unsure what will happen with the damages ruling, but, “I couldn’t be happier. I’m very excited. I think it’s about time. I mean, all the judges have ruled in our favor thus far, so it is what we expected. The plaintiffs have spent money that didn’t come from the public or taxpayers, whereas the fairgrounds, they’re not spending anything out of their own pocket. They are spending taxpayer money and money that people have in good faith given to them for purposes other than fighting a lawsuit that had already been decided decades ago.”
