The plaintiffs in the fairgrounds motorized racing lawsuit filed responses Friday in opposition to the Kosciusko County Community Fair Inc.’s motions for change of venue from the county and to dismiss the case.
Kosciusko County Community Fair Inc. filed motions June 11 seeking a new judge and venue in its court case to allow motorized racing at the fairgrounds, as well as a motion to dismiss the plaintiffs’ complaint.
The plaintiffs are the four homeowners who live on Winona Lake who sought an injunction against motorized racing. They filed the complaint with the Kosciusko Circuit Court after some motorized racing events took place earlier this year. Circuit Court Judge Mike Reed granted the preliminary injunction in May while the lawsuit continues in the courts. According to the injunction, the Fair 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.
A special judge, Elkhart Circuit Court Judge Michael A. Christofeno, has been appointed to the lawsuit after Reed granted the motion for a new judge.
The motion opposing the change of venue states that the defendants asked the court to change the venue even though all parties are from Kosciusko County. As the moving party, the defendant has the burden to prove the existence of local prejudice or bias that prevents it from receiving a fair trial, and the burden is on the moving party to show the existence, not the possibility, of local prejudice or bias.
The motion states the defendant sets forth several reasons for changing venue, but fails to establish the defendant will not receive a fair trial because of local prejudice or bias.
As an example, the motion states the defendant claims Warsaw Mayor Joe Thallemer is a resident of Winona Lake and is related to one of the named plaintiffs, but the plaintiffs have no idea which one of them is allegedly related to the mayor. Further, defendant claims the mayor has opposed certain events at the fairgrounds. “However, aside from showing that perhaps the Mayor would not make it onto the jury, the fact that a single person has spoken publicly about certain events at the fairgrounds … even if true, does not mean that a fair and impartial jury could not be impaneled from the entire population of Kosciusko County.”
The motion states the Times-Union published a rebuttal by the mayor wherein he denied being related to any of the plaintiffs but admitted that his niece is married to Randy Shepherd, a longtime member of the fair board and defendant’s witness at the May 10 hearing. The article confirmed the mayor had not taken a position with respect to the case.
Defendant also claims that this case has been highly publicized, but much of the publicity was initiated by the defendant. On May 17, the defendant issued a press release about the preliminary injunction; the defendant has posted multiple items about the injunctions on its Facebook page and did an interview with WNDU Channel 16 about the injunction; the defendant has given interviews to the press and has planned events to attempt to bring race supporters to the fairgrounds; and the counsel for the defendant posted an article to his firm’s website that said “Hearn Keeps Auto Racing on Track at Kosciusko County Fairgrounds.”
The motion states the defendant cannot insert itself into the communal discourse in an attempt to sway public opinion and then complain that the case should be moved to another county because the litigation is “highly publicized.”
The defendant also claims that any citizen who heard activities near the fairgrounds may be a potential witness and “would be struck as potential witnesses.” The plaintiffs’ motion says the defendant offers no support for its “bald assertion” that any potential juror with knowledge about the fairground or its activities “would be struck” nor is that the law.
The defendant claims that several citizens appeared at the hearing on May 10 and wore stickers expressing opposition to racing at the fairgrounds. However, the plaintiffs’ motion responded that a handful of citizens who were aware of the hearing and appeared to support the plaintiffs does not establish that a fair and impartial jury cannot be found. Further, the defendant also had supporters at the hearing.
“There are people in Kosciusko County that are familiar with the parties’ dispute. There are people in Kosciusko County that may have formed opinions regarding the parties’ dispute. However, neither of these facts, nor any of the facts set forth by the defendant, support moving this litigation to another venue,” the motion states.
The other motion, opposing the defendant’s motion to dismiss, states the court has no jurisdiction to address the defendant’s motion and even if jurisdiction existed, the defendant’s motion should be denied.
It says the court has already ruled upon the issues raised in the defendant’s motion to dismiss, and the court has no jurisdiction by virtue of the defendant’s appeal. Once the Court of Appeals acquires jurisdiction, the trial court loses subject matter jurisdiction.
“Here the defendant is asking the court to decide matters already considered by the court and which are now the subject of an appeal,” the plaintiffs’ motion states.
Other legal points made and argued by the motion is that privity is a question of fact dependent upon evidence, standing is a question of fact, and rule of perpetuities is inapplicable.
In conclusion, the motion states, dismissals under a trial rule are “rarely appropriate.” Defendant has not demonstrated that this is one of those “rare occasions” where dismissal is warranted; “In fact, the defendant’s motion to dismiss is wholly without merit.”
Plaintiffs request that both defendant’s motions be denied and for all other just and proper relief.
