Motorized racing at the motorsports complex at the Kosciusko County Fairgrounds has been silenced since 2018 after a brief restart of the racing tradition. A ruling from the Indiana Appeals Court makes it more likely that racing will not happen again at the fairgrounds. InkFreeNews file photo.

WARSAW — It appears the original permanent injunction prohibiting motorized racing at the fairgrounds and established 30 years ago by nine homeowners may very well be here to stay.

The Kosciusko County Fair Board, which intentionally began motorized racing several years ago as a way to generate revenue, saw its legal efforts rebuffed again, this time by the Indiana Court of Appeals, which rejected the fair board’s arguments.

The ruling was issued Thursday morning, Feb. 27.

In addition to ruling for a group of homeowners who live near the track, the Court of Appeals ordered that the lower court judge who heard the case last year determine a set amount of damages, if any, the property owners can collect for attorney costs.

As the court wrote, “To prevail on a substantiative bad faith claim, a party must show that the appellant’s contentions and arguments are utterly devoid of all plausibility. Homeowners have shown, in light of the 2018 opinion and 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.”

On Sept. 3, 2019, the court ruled homeowners are entitled to a permanent injunction.

Weekend racing at the fairgrounds during the summer had been a fixture for decades.

But in 1989, nine residents who live near or along Winona Lake and the fairgrounds – James Cummins, Robert Fuson, Michael Hall, John Handel, George Haymond, Joseph Shellabarger, Fredrick Stephens, Kenneth Truman and Rex Wildman – sought to cease racing, claiming the noise and dust from the activities were potentially hurting their property values.

A revised collection of owners filed suit in 2018 to have the ban on racing re-established and argued the restrictive covenant agreed to by the two groups in 1990 had been breached.

Fair officials have vowed repeatedly to fight to keep the racing tradition alive, saying the fairground’s financial future relies on motorized racing.

The fair, in part, was relying on an argument contending that one of the new property owners, Chris Cummins, did not have legal standing to sue.

The new lawsuit was by a group of homeowners including Mary Clemens, Merle Conner, Judith Conner and Chris Cummins, who is the son of James Cummins and acquired his father’s home in 1998.

The court found that Chris Cummins is a successor in interest to one of the original homeowners and … “as a result, the restrictive covenant runs with the land and Chris Cummins had standing to enforce the restrictive covenant.”

The court ruling observed that the restrictive covenant “shall be enforceable by the original homeowners and their successors and assigns.”

“The fair’s challenge to this finding amounts to nothing more than a request that we reweigh the evidence, which we will not,” the appeals court ruling said.

The fair also argued in its appeal that the homeowners are not entitled to a permanent injunction because the restrictive covenant does not comply with the “statute of frauds” and that the covenant violates the “rule of perpetuities.”

A lower court had ruled that “the fair’s reliance on the statute of frauds and the rule against perpetuities was misplaced.”

The original ban allows for certain activities during fair week. Those include truck and tractor pulls, demolition derbies, music, bike races and rodeos.

It was unclear whether the fair board would appeal the ruling to the Indiana Supreme Court.