Judge Takes Issue With Fair Attorney’s Argument

(Photo supplied/The Elkhart Truth)

ELKHART – Elkhart Superior Court II Judge Stephen Bowers said he wasn’t persuaded by Kosciusko County Fair attorney Catherine Breitweiser-Hurst’s argument about the plaintiff’s legal standing during a hearing Tuesday.

Bowers heard arguments from both sides, and took under advisement the plaintiffs’ request for partial summary judgment and permanent injunction.

The plaintiffs, Mary Clemens, Judith Conner, Merle Conner and Chris Cummins, are represented by attorneys Michael Michmerhuizen and Pat Murphy, and are requesting the court to uphold a 1990 settlement agreement that the Fair would not have motorized racing. The noise is the problem.

Murphy told the judge Tuesday he isn’t sure what the issue is now because the defendant hasn’t put forth any factual material disputing the agreement and Kosciusko County Circuit Judge Mike Reed upheld the agreement last year.

“This whole issue started with what I call as round one in 1989 when a lawsuit was filed by James Cummins,” Murphy said. “The lawsuit was settled and the settlement included no more motorized racing at the fair.” He told Bowers Winona Lake is a beautiful lake, but right on the lake sits a fairgrounds.

“Then all of a sudden, there’s more racing. So the neighbors got together and sent a cease and desist and said, ‘hey, remember, no racing,'” Murphy said. “Then round two started in May of 2018,” he said. “When we filed the lawsuit, Judge Reed argued the settlement should be enforced. There is no dispute of fact, it’s just legal.”

Breitweiser-Hurst opened with, “There’s been some allegations that my clients are trying to back out of a contract. My clients honored that agreement until the original parties moved away from the lake. These plaintiffs have no standing to enforce this contract from 1989.”

The judge asked her what are the facts she says create a genuine issue here.

Breitweiser-Hurst said Chris Cummins, a plaintiff in this case and the son of James Cummins, the plaintiff in the 1989 lawsuit, has changed his story several times about who he purchased the house from, therefore he doesn’t have standing to be grandfathered in to uphold the contract. She told Bowers that Chris Cummins originally said he bought the house from his father, but later said he bought it from his mother. Bowers said he is still an “heir” to the property.

“That’s not been proven,” Breitweiser-Hurst said, and got a response from Bowers, “I beg to differ with you. Continue with your argument.”

She continued to talk about the standing of these plaintiffs to uphold a contract from 1989.

“If I find any party that has property standing, it doesn’t matter whether the other parties has any standing, does it?” Bowers asked her. “Either your people have the right to conduct racing or they don’t.” Bowers asked her to answer his question and told her to listen more carefully.

She continued about Chris Cummins and the ownership, to which Bowers said, with his head in his hand, “Do you have anything at all?” and shooed her with his hand and told her to continue with her argument.

She continued about Chris Cummins and the ownership.

“You’re really putting all your eggs in one basket with this standing argument,” Bowers said, adding the perpetuity argument she has is baseless.

“I don’t know how many contracts you’ve written over the years, but I’ve written a lot of them,” Bowers said to her. “It’s not uncommon for that to be the language.

“It seems to me pretty obvious that it’s intended to run with the land and benefits those down the line with property titles,” Bowers said of the 1990 settlement.

Breitweiser-Hurst then read the agreement and said, “It doesn’t list addresses.”

“We all know whose homes those are,” Bowers said. “Don’t dribble on my boot and tell me it’s raining. I’m not going there with you.”

The plaintiffs in the case were present at Tuesday’s half-hour hearing, along with a handful of supporters. No one was present besides the fair’s attorney for the defendant side. The judge took the case under advisement.