                                                                        FILED
                                                                 Feb 27 2020, 7:18 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Edward W. Hearn                                            Michael H. Michmerhuizen
Johnson & Bell, P.C.                                       Patrick G. Murphy
Crown Point, Indiana                                       William A. Ramsey
                                                           Barrett McNagny LLP
                                                           Fort Wayne, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Kosciusko County Community                                 February 27, 2020
Fair, Inc.,                                                Court of Appeals Case No.
Appellant,                                                 19A-PL-2306
                                                           Appeal from the Kosciusko Circuit
        v.                                                 Court
                                                           The Honorable Stephen R.
Mary Clemens, Merle Conner,                                Bowers, Special Judge
Judith Conner, and Chris                                   Trial Court Cause No.
Cummins,                                                   43C01-1805-PL-50
Appellees.



Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020                    Page 1 of 12
[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 Fair 1 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




      1
       The Fair had prior names of Kosciusko County Fair Association, Inc., and Kosciusko County 4-H and
      Community Fair, Inc.

      Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020                      Page 2 of 12
              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,

      Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020    Page 3 of 12
      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


      Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020    Page 4 of 12
      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

      Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020       Page 5 of 12
      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.

      Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020       Page 6 of 12
       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

       construed in the same manner as other written contracts. Id. at 1136. We

       further observed restrictive covenants run with the land if (1) the covenantors

       intended it to run, (2) the covenant touches and concerns the land, and (3) there

       is privity of estate between subsequent grantees of the original covenantor and

       covenantee, and we noted vertical privity is established where the party seeking

       to enforce the covenant and the party against whom it is to be enforced are

       successors in title to the property of the covenantee and covenantor

       respectively. Id. We then observed that, according to its language, the


       Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020      Page 7 of 12
       restrictive covenant in this case “shall constitute a covenant running with the Real

       Estate and shall be binding upon [the Fair] and [Original] Homeowners and all

       persons claiming under them” and “[t]his covenant shall be enforceable by

       [Original] Homeowners and their successors and assigns.” Id. at 1136. We

       held:

               The above-quoted 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 whether there is privity of estate between Original
               Homeowners and Homeowners.

               It is uncontested that James A. Cummins was one of the original
               covenantees. 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 had standing to enforce the restrictive covenant.

       Id. at 1136-1137 (citation omitted). Thus, this Court expressly held in the 2018

       Opinion that Chris Cummins had standing. The doctrine of the law of the case

       precludes relitigation of this issue.


[11]   In addition, James Cummins’s affidavit states he lived at a property on N. Bay

       Drive in Warsaw, Indiana, (the “Cummins Property”) when the 1989

       complaint was filed, he and his wife Barbara were divorced in 1992, and

       Barbara received the Cummins Property as part of the divorce settlement. Chris

       Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020         Page 8 of 12
       Cummins’s affidavit states he currently resides at the Cummins Property, his

       parents divorced and his mother received the Cummins Property, and in 1998

       he purchased the Cummins Property from a trust established by his mother.

       The exhibits attached to Chris Cummins’s affidavit include: a quitclaim deed

       executed by James Cummins conveying the Cummins Property to Barbara in

       1992; a warranty deed signed by Barbara transferring the property to her trust in

       1994; and a trustee deed signed by Barbara as trustee conveying the property to

       Chris Cummins and his wife in 1998. The terms of the restrictive covenant and

       the designated evidence support the finding that Chris Cummins is a successor

       in interest as contemplated by the restrictive covenant and the conclusion that

       the restrictive covenant runs with the land.


[12]   With respect to the statute of frauds, this Court held in the 2018 Opinion: “The

       Fair also relies on the Statute of Frauds which requires that certain contracts be

       in writing. See Ind. Code § 32-21-1-1(b) (2002). Reliance on the Statute of

       Frauds is misplaced, however, because the restrictive covenant was in writing

       and was recorded with the Kosciusko County Recorder’s Office.” Kosciusko

       Cty., 116 N.E.3d at 1138 n.2. We also rejected the Fair’s argument that the

       restrictive covenant could not be enforced because it lacked an essential term.

       Id. at 1138. We held that “[t]he restrictive covenant clearly identified the

       burdened party and included a legal description of the burdened real estate.” Id.

       (footnote omitted). Thus, this Court held in the 2018 Opinion that the

       restrictive covenant was not unenforceable due to the statute of frauds.

       Accordingly, the doctrine of the law of the case bars relitigation of this issue.


       Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020      Page 9 of 12
       Further, the designated evidence establishes the restrictive covenant was in

       writing and recorded with the Kosciusko County Recorder’s Office.


[13]   As to the rule against perpetuities, our 2018 Opinion observed that the rule

       against perpetuities “has to do with future estates which, by possibility, may not

       become vested within the time prescribed by law; it applies only to future

       estates which are contingent, and has no application to vested estates.”

       Kosciusko Cty., 116 N.E.3d at 1139 (citing Swain v. Bowers, 91 Ind. App. 307,

       316, 158 N.E. 598, 601 (1927)). This Court held “[w]e agree with the

       conclusion of the Court of Appeals of Arkansas that a restrictive covenant

       limiting the use of a parcel of land does not violate the rule against perpetuities

       even if it is of indefinite duration,” id. (citing Malone v. Guynes, 98 Ark. App. 48,

       250 S.W.3d 260 (2007), and “[t]he Fair’s reliance on the rule against

       perpetuities is therefore misplaced.” Id. Accordingly, the doctrine of the law of

       the case precludes relitigation of this argument. 2


[14]   Based upon the designated evidence, the Fair’s arguments, and our 2018

       Opinion, we conclude the trial court did not err in entering its September 3,

       2019 judgment based upon the restrictive covenant.




       2
         See also RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.1(2) (2000) (a servitude is a legal device that
       creates a right or an obligation that runs with land or an interest in land); id. at § 1.3 (a covenant is a servitude
       if either the benefit or the burden runs with land); id. at § 3.3 (the rule against perpetuities does not apply to
       servitudes).

       Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020                                 Page 10 of 12
[15]   Homeowners also request attorney fees pursuant to Ind. 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.” Appellees’ Brief at 46.

       They argue that they have shown restraint by not seeking attorney fees at any

       prior stage 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.


[16]   Ind. Appellate Rule 66(E) provides: “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.” We may award appellate attorney fees in

       our discretion where an appeal is permeated with meritlessness, bad faith,

       frivolity, harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel,

       797 N.E.2d 342, 346 (Ind. Ct. App. 2003). To prevail on a substantive bad faith

       claim, a party must show that the appellant’s contentions and arguments are

       utterly devoid of all plausibility. Id. 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.


       Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020    Page 11 of 12
[17]   For the foregoing reasons, we affirm the trial court’s ruling and remand for a

       determination of damages pursuant to Ind. Appellate Rule 66(E).


[18]   Affirmed and remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PL-2306 | February 27, 2020   Page 12 of 12
