from the Kosciusko Circuit Court Trial Court Cause No.
43C01-1805-PL-50 The Honorable Michael W. Reed, Judge
Attorney for Appellant Edward W. Hearn Johnson & Bell,
P.C. Crown Point, Indiana
Attorneys for Appellees Michael H. Michmerhuizen William A.
Ramsey Patrick G. Murphy Barrett McNagny LLP Fort Wayne,
Friedlander, Senior Judge.
In May of 2018, the trial court preliminarily enjoined
Kosciusko County Community Fair, Inc. ("the Fair")
from conducting motorized races on its property. On appeal,
the Fair contends that Mary Clemens, Merle Conner, Judith
Conner, and Chris Cummins (collectively,
"Homeowners") lacked standing to seek the requested
injunctive relief. The Fair alternatively contends that the
trial court erred in granting said relief. We affirm.
On June 27, 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's
predecessor after a dispute arose regarding the
operation of an automobile racetrack located on the
Fair's property. As part of the settlement of Original
Homeowners' lawsuit, on July 18, 1990, the Fair executed
a restrictive covenant limiting use of the racetrack. The
restrictive covenant provided that after August 11, 1990, the
Fair shall not use its property for motorized racing, except
that it "shall have the right to continue the use of its
grandstand and racetrack facility … for recreational
and/or fairground activities other than motorized
racing[.]" Ex. 1. The permissible activities included
truck and tractor pulling contests during fair week each
calendar year, two automobile demolition derbies each
calendar year, musical presentations, bicycle racing, and
rodeos. Pursuant to its terms, the restrictive covenant was
binding on the Fair and Original Homeowners and was
enforceable by Original Homeowners and their successors and
On May 2, 2018, Homeowners filed a complaint requesting
injunctive relief against the Fair. Specifically, Homeowners
sought to enforce the restrictive covenant and to prevent the
Fair from conducting motorized races on its property. On May
16, 2018, the trial court found that Chris Cummins had
standing to seek to enforce the restrictive covenant and
issued a preliminary injunction enforcing the restrictive
covenant and enjoining the Fair from conducting motorized
racing on its property.
The Fair contends 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. "The
doctrine of standing focuses on whether the complaining party
is the proper person to invoke the Court's power."
Hulse v. Ind. State Fair Bd., 94 N.E.3d 726, 730
(Ind.Ct.App. 2018) (internal quotation omitted). "The
standing requirement restrains the judiciary to resolving
only those cases and controversies in which the complaining
party has a demonstrable injury." Id.
"Whether a party has standing is a pure question of law
that we review de novo." Id.
In arguing that Homeowners lack standing, the Fair alleges
that the restrictive covenant at issue does not extend to
them. "Restrictive covenants are a form of express
contract between grantor and grantee." Rasp v.
Hidden Valley Lake, Inc., 519 N.E.2d 153, 157
(Ind.Ct.App. 1988). "Generally, the purpose behind a
restrictive covenant is to maintain or enhance the value of
land, often times by controlling the nature and use of
surrounding lands." Id. These covenants
obligate a party "to do or not to do a particular
act." Keene v. Elkhart Cty. Park & Rec.
Bd., 740 N.E.2d 893, 896 (Ind.Ct.App. 2000). Covenants,
when written, "are generally construed in the same
manner as other written contracts, and we apply them
according to their ordinary meaning when possible."
Land Innovators Co., L.P. v. Bogan, 15 N.E.3d 23, 31
(Ind.Ct.App. 2014), trans. denied.
"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." Oakes v. Hattabaugh, 631 N.E.2d
949, 952 (Ind.Ct.App. 1994), trans. denied. There
are two types of privity, horizontal privity and vertical
privity. Columbia Club, Inc. v. Am. Fletcher Realty
Corp., 720 N.E.2d 411 (Ind.Ct.App. 1999), trans.
denied. "Horizontal privity is generally
established by evidence that the original parties to the
covenant had some mutual or successive interest either in the
land burdened by the covenant or the land benefitted by
it." Id. at 421. 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.
The restrictive covenant at issue in this case provides as
[A]fter August 11, 1990, [the Fair] shall not use the Real
Estate for motorized racing, except [the Fair] 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] and [Original] Homeowners and all
persons claiming under them. This covenant shall be
enforceable by [Original] Homeowners and their
successors and assigns.
Ex. 1 (emphases added). 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 ...