Kosciusko Cnty. Cmty. Fair, Inc. v. Clemens

143 N.E.3d 310

KOSCIUSKO COUNTY COMMUNITY FAIR, INC., Appellant,

v.Mary CLEMENS, Merle Conner, Judith Conner, and Chris Cummins, Appellees.

Court of Appeals Case No. 19A-PL-2306

Court of Appeals of Indiana.

FILED February 27, 2020

Attorney for Appellant: Edward W. Hearn, Johnson & Bell, P.C., Crown Point, Indiana

Attorneys for Appellees: Michael H. Michmerhuizen, Patrick G. Murphy, William A. Ramsey, Barrett McNagny LLP, Fort Wayne, Indiana

Brown, Judge.

[1] Kosciusko County Community Fair, Inc., (the "Fair") appeals the trial court's September 3, 2019 order finding a restrictive covenant related to motorized racing on its property is enforceable. We affirm the court's order and remand for a determination of damages pursuant to Ind. Appellate Rule 66(E).

Facts and Procedural History

[2] In 1989, James A. Cummins, Robert L. Fuson, Michael G. Hall, R. John Handel, George M. Haymond, J. Joseph Shellabarger, Fredric T. Stephens, Kenneth O. Truman, and H. Rex Wildman (collectively, "Original Homeowners") filed a complaint against the Fair¹ related to motor vehicle racing on its property. On July 18, 1990, as part of a settlement, the Fair executed a restrictive covenant limiting use of motorized racing on its property. Specifically, the restrictive covenant provides:

NOW, THEREFORE, in consideration of dismissal with prejudice of the Lawsuit by [Original] Homeowners; after August 11, 1990, the Fair Association shall not use the Real Estate for motorized racing, except the Fair Association shall have the right to continue the use of its grandstand and racetrack facility on the Real Estate for recreational and/or fairground activities other than motorized racing, including but not limited to truck and tractor pulling contests during fair week each calendar year, two (2) automobile demolition derbies each calendar year, musical presentations, bicycle racing, and rodeos. The foregoing shall constitute a covenant running with the Real Estate and shall be binding upon the Fair Association and [Original] Homeowners and all persons claiming under them. This covenant shall be enforceable by [Original] Homeowners and their successors and assigns.

Appellant's Appendix Volume II at 134-135.

[3] On May 2, 2018, Mary Clemens, Merle Conner, Judith Conner, and Chris Cummins (collectively, "Homeowners") filed a complaint which alleged the Fair breached the restrictive covenant, they have suffered damages resulting from the breach, and the Fair's actions constitute a nuisance. The complaint sought injunctive relief and an order that the Fair comply with the terms of the restrictive covenant. On May 16, 2018, the court issued an order finding Chris Cummins is a successor in interest to James A. Cummins with respect to the real estate owned by the latter at the time the restrictive covenant was executed, and granting a preliminary injunction. The Fair appealed, and on December 20, 2018, this Court issued an opinion affirming the trial court's judgment. Kosciusko Cty. Cmty. Fair, Inc. v. Clemens , 116 N.E.3d 1131 (Ind. Ct. App. 2018) (the "2018 Opinion"). We held the restrictive covenant runs with the land, Chris Cummins has standing to enforce the restrictive covenant, the Fair failed to prove the restrictive covenant lacked an essential term, and the Fair's reliance on the statute of frauds and the rule against perpetuities was misplaced. Id. at 1137-1139.

[4] In February 2019, Homeowners filed a Motion for Partial Summary Judgment and Request for Permanent Injunction stating that their complaint sought, in pertinent part, to enjoin the Fair from violating the restrictive covenant which prohibited it from conducting motorized racing. Among other evidence, Homeowners designated the affidavits of James Cummins and Chris Cummins. The Fair filed a motion to strike as inadmissible portions of the filings and designated evidence including the affidavits. After a hearing, the trial court entered an order on September 3, 2019, granting Homeowners' motion and denying the Fair's motion. The order states: "The Court is persuaded that based upon the materials designated by the parties and the undisputed facts, the Homeowners are entitled to a permanent injunction as a matter of law." Appellant's Appendix Volume II at 18. The order further states: "The Court of Appeals already has settled the issue of standing when it agreed with the trial court that Chris Cummins is a successor in interest to one of the Original Homeowners." Id. at 16. The court found the 2018 Opinion "flatly rejected the Fair's misplaced reliance on the Statute of Frauds" and, citing the 2018 Opinion, "the Fair's argument that the restrictive covenant fails for lack of an essential element has been rejected." Id. at 19. The court considered the adequacy of Homeowners' remedies at law, the balance of harm between Homeowners and the Fair, and the public interest. It found Homeowners succeeded on the merits and entered partial summary judgment as to the validity and enforceability of the restrictive covenant.

Discussion

[5] The Fair requests this Court to vacate the trial court's September 3, 2019 judgment. We review an order for summary judgment de novo, applying the same standard as the trial court. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). We may affirm on any grounds supported by the Ind. Trial Rule 56 materials. Catt v. Bd. of Comm'rs of Knox Cnty. , 779 N.E.2d 1, 3 (Ind. 2002). The moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and it is entitled to judgment as a matter of law, and if the moving party succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. Manley v. Sherer , 992 N.E.2d 670, 673 (Ind. 2013).

[6] Generally, when considering the trial court's grant of permanent injunctive relief, we examine four factors: (1) whether the plaintiff's remedies at law are adequate; (2) whether the plaintiff has succeeded on the merits; (3) whether the threatened injury to the plaintiff outweighs the threat of harm if the injunction is granted; and (4) whether the public interest would be disserved by granting the injunctive relief. Centennial Park, LLC v. Highland Park Estates, LLC , 117 N.E.3d 565, 572 (Ind. Ct. App. 2018).

[7] The Fair claims that Homeowners are not entitled to a permanent injunction because: (A) they do not have standing to sue and enforce the restrictive covenant, (B) the restrictive covenant does not comply with the statute of frauds, and (C) the restrictive covenant violates the rule against perpetuities. The Fair asserts "the settlement agreement should be considered a personal covenant to [Original] Homeowners rather than a covenant running with [Original] Homeowners' land" and the restrictive covenant states it is enforceable "by the [Original] Homeowners ‘successors’ and ‘assigns’ – not ‘successors in title’ or ‘successors in interest.’ " Appellant's Brief at 23-24. It argues "Chris Cummins is not James Cummins' successor – James Cummins is still alive." Id. at 26. It asserts "there is no evidence that the settlement agreement's restrictive covenant was an enforceable property interest rather than a personal interest of the nine [Original] Homeowners." Id. at 27. The Fair contends the restrictive covenant does not satisfy the statute of frauds because it does not include a legal description or identify the benefitting properties.

[8] Homeowners respond that the Fair's arguments were addressed by this Court in the 2018 Opinion and the doctrine of the law of the case is applicable and precludes this appeal. They argue this Court has already held the restrictive covenant in this case runs with the land and does not lack an essential term. They state that this Court "already concluded that Chris Cummins is entitled to enforce the Restrictive Covenant as long as James Cummins was an owner of the property in the chain of title (and it is undisputed that he was)." Appellees' Brief at 33. They also argue that the restrictive covenant does not violate the statute of frauds and that the rule against perpetuities is inapplicable.

[9] The "law of the case" doctrine designates that an appellate court's determination of a legal issue is binding on both the trial court and the Court of Appeals in any subsequent appeal given the same case and substantially the same facts. City of Gary v. Smith & Wesson Corp. , 126 N.E.3d 813, 832-833 (Ind. Ct. App. 2019) (citation omitted), trans. denied . The purpose of the doctrine is to minimize unnecessary repeated litigation of legal issues once they have been resolved by an appellate court. Id. The doctrine is based upon the sound policy that once an issue is litigated and decided, that should be the end of the matter. Id. (citation omitted). Accordingly, the law of the case doctrine bars relitigation of all issues decided directly or by implication in a prior decision. Id. (citation omitted). A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work manifest injustice. Id. (citation omitted). The trial court is not a coordinate court to this Court and thus has no power to alter an appellate decision. Id. at 832-833 (citation omitted).

[10] With respect to standing, this Court stated in the 2018 Opinion that the Fair had asserted that, "in order for Homeowners to have standing to sue to enforce the restrictive covenant, at least one of them must be an Original Homeowner or a successor or assign of one of the Original Homeowners listed in the covenant, and, because that is not the case, Homeowners lack standing to enforce the restrictive covenant." Kosciusko Cty. , 116 N.E.3d at 1135. We noted standing is a pure question of law and written covenants are generally...