Kosciusko County Community Fair Inc. filed motions Monday seeking a new judge and venue in its court case to allow motorized racing at the fairgrounds, as well as a motion to dismiss Count I of the plaintiff’s complaint.

Circuit Court Judge Michael Reed on Tuesday granted the motion for a change of judge, but had not ruled on the other motions as of this morning.

On May 16, Reed granted a preliminary injunction against the Fair Inc. having motorized racing at the fairgrounds. The hearing on the plaintiffs’ motion for a temporary restraining order and/or preliminary injunction was in Reed’s court May 10. Evidence and testimony were submitted by both sides.

According to the injunction, during the court proceedings, the Fair Inc. – the defendant in the case – is “prohibited from conducting, running, permitting or allowing motorized racing on fairgrounds property or otherwise violating the restrictive covenants” that were put into place in 1990.

The plaintiffs – four homeowners who sought an injunction against motorized racing – posted a $50,000 bond on May 22 to cover costs in the event the defendants win the lawsuit. They filed the complaint with the Circuit Court for the injunction after some motorized racing events took place earlier this year.

The Fair Inc. filed a motion to appeal Reed’s order on Friday.

The motion for change of venue from the county filed Monday states that the defendant is a nonprofit corporation on Winona Lake, with a purpose to provide a venue for community events within the county. The plaintiffs in the case live on the lake.

The motion states that Warsaw Mayor Joseph M. Thallemer is a resident of Winona Lake and is related to one of the named plaintiffs. It says Thallemer has “openly opposed the manner in which many of the events take place at the fairgrounds.”

The complaint against the fairgrounds has been highly publicized in local newspapers and other electronic media throughout Kosciusko County, the motion states, and that Warsaw is the largest city in the county which contains a substantial portion of the county’s population.

Any citizen of Warsaw who lives near the fairgrounds or any county resident who has heard the activities that take place at the fairgrounds are all potential witnesses in the case and therefore would be struck as potential jurors, the motion says. The Fair Inc. filed a motion May 9 for all issues in the case to be determined by a jury trial.

The motion makes note that several non-party citizens created and appeared to “proudly wear stickers on their shirts which expressed support for the plaintiffs at the preliminary injunction hearing of May 10, 2018.”

The support for plaintiffs’ cause has gained such popularity that a non-party citizen wrote to Reed after the complaint was filed expressing opposition to the fairgrounds activities. A letter written by a non-party citizen regarding fairground activities and commenting on the veracity of the May 10 testimony of a defense witness was printed in the Times-Union on May 18, the motion states.

The Fair Inc. 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 the community,” according to the motion.





The motion, filed by attorney Edward Hearn on behalf of the Fair Inc., states that a motion for change of venue from the county “shall be granted only upon a showing that the party seeking the change will be unlikely to receive a fair trial on account of local prejudice or bias regarding a party or the claim or defense presented by a party.”

The motion to dismiss Count I of plaintiffs’ complaint and request for hearing is based on “a failure to state a claim upon which relief can be granted.”

Count I is listed in the original plaintiffs’ complaint as a “breach of restrictive covenants.” It says the restrictive covenants are valid and binding covenants on the parties’ respective real estate and run with the land, that defendant has breached the restrictive covenants and that plaintiffs have suffered damages resulting from the defendant’s breach.

The plaintiffs’ complaint states in 1989 the Fair Association had been involved in a lawsuit regarding operation of the automobile racetrack at the fairgrounds with certain specifically named homeowners. The Fair’s motion to dismiss states that none of the named plaintiffs are listed in Complaint Exhibit 1 as a party in interest. Additionally, the exhibit does not contain any common or legal property description of any listed homeowner nor any of the named plaintiffs. No named plaintiff in this lawsuit has any right under Complaint Exhibit 1 to bring a claim to enforce it.

The motion to dismiss states Exhibit 1 titled “restrictive covenant” is not valid. It says Indiana law permits restrictive covenants, but such agreements are disfavored and justified only to the extent they are unambiguous and enforcement is not adverse to public policy. When courts are called upon to interpret such covenants, they are to be strictly construed and all doubts should be resolved in favor of the free use of property and against restrictions.

Restrictive covenants must include essential terms. In this case, the motion states, an essential term missing from such contract is the express and specific identification of the real property that would benefit from the restriction imposed upon defendant’s real property (the fairgrounds) by Complaint Exhibit 1. However, such essential terms are entirely absent from the exhibit, the motion states.

“Instead of any identification of the real property that was to be benefitted by the restrictions upon defendant’s real property by Complaint Exhibit 1, such instrument identifies individual persons and not any real property owned by such persons that purportedly benefitted” from the exhibit 1.

The last two sentences of exhibit 1 indicate “the foregoing shall constitute a covenant running with the real estate and shall be binding upon the Fair Association and homeowners and all persons claiming under them. This covenant shall be enforceable by homeowners and their successors and assigns.” The motion to dismiss states that by that very language in the complaint, the document benefits people, not property.

The motion also states that the “homeowners” in the exhibit are not the plaintiffs in the current case. It says there is nothing on the face of the exhibit demonstrating any right or ability by the named plaintiffs to enforce the terms of it against the defendant.

Additionally, the motion says there is a complete lack of any legal property description of the individual homeowners properties that were to benefit from the restrictions in Exhibit 1 upon the fairgrounds. Exhibit 1 “does not even set forth common street addresses for the homeowners’ properties that were to benefit from the burden imposed upon defendant’s real property” by the Exhibit 1. The failure to identify the real property that was to benefit from Exhibit 1 cannot be cured by an interpretation of it, the motion states.

The motion also states the named plaintiffs lack standing to enforce Exhibit 1, and the exhibit violates the Rule Against Perpetuities. The Rule is intended to enhance marketability of property interests by limiting remoteness of vesting, and the complaint was “void from its inception due to the fact that it violates the Rule Against Perpetuities because it does not establish that the interest will vest not later than 21 years after a life in being at the creation of the interest.”