Filed: 5/3/2019 11:05 AM
Monroe Circuit Court 6
Monroe County, Indiana
STATE OF INDIANA ) IN THE MONROE CIRCUIT COURT
) SS:
COLINTY OF MONROE ) CAUSE NO.: 53C06-1 804-PL-000755
MICHAEL O. CAIN and
LINDA A. RAYMOND
Plaintiffs,
vs.
WILLIAM J. HUFF, II REVOCABLE
TRUST DECLARATION, Dated June 28, 2071, and
NICOLE E. HUFF REVOCABLE
TRUST DECLARATION, Dated June 28, 2011
Defendants.
LOUIS MATAYA
Intervening Plaintiff
VS.
WILLIAM J. HUFF, II REVOCABLE
TRUST DECLARATION, Dated June 28, 2011, and
NICOLE E. HUFF REVOCABLE
TRUST DECLARATION, Dated June 28, 201 |
Defendants.
VERIFIED MOTION FOR PRELIMINARY INJT]NCTION
Plaintiffs, Michael O. Cain and Linda A. Raymond, by counsel, CarminParker, PC, move
the Courl to set Plaintiffs' Verified Motion for Preliminary Injunction for hearing at the earliest
available date on the Court's docket and to issue a preliminary injunction pending trial on the
merits of Plaintiffs' Complaint for Declaratory Judgment and Injunctive Relief, and in support of
this motion state:
1. Before the Court is Plaintiffs' Complaint for Declaratory Judgment and Injunctive
Relief seeking a declaratory judgment determining the rights granted to Defendants as owner of
real estate adjacent to Plaintiffs' real estate under the terms of a Grant of Easements and the
Grant of Easements do not authorize ingress and egress or use of the easements by Defendants
for commercial logging activities or for any other activity on the real estate owned by
Defendants except for the construction, development and use of single family residential
structures, guests and caretaker quafters and other buildings attendant thereto on the Defendants'
real estate.
2. Previously in prior hearings in this cause, the Court had determined that the Grant
of Easements at issue restricted the use of the easements by Defendants through Plaintiff s
property to the construction, development and use of single-family residential structures on
Defendants' real estate.
3. The Grant of Easements document construed by the Court specifically identifies
i93 acres of real estate as more specifically described in the Grant of Easements.
4. Subsequent to prior hearings in this cause, Defendants have extended their
activities and are now engaged in commercial logging and other activities on real estate adjacent
to the real estate owned by Defendants, but real estate which is not described in and is not
benefited by the Grant of Easements.
5. Defendants have and continue to trespass on Plaintiff s real estate by using the
private roads and easements for ingress and egress to real estate that is not identified in, and
which is not benefited from the Grant of Easements.
6. Unless restrained by this Court, Defendants will continue to perform the acts
sought to be enjoined by continuing to trespass upon Plaintiff s real estate, to cause heavy
equipment, trucks, logging equipment and associated vehicles to pass over and through and
thereby trespass on Plaintiff s real estate.
7. As previously found by this Court, Defendant's activities in using the easements
constitutes an immediate and reparable harm to Plaintiffs.
8. This Court previously found facts that Defendants use of the easements was
restricted by the terms of the Grant of Easements not only in the character of use but that the
easements benefitted only the 193 acres described in the Grant of Easements.
9. Defendants' actions in extending their trespass and use of the easements to land
not benefiting from the Grant of Easements is unauthorized and is contrary to the facts found in
this Court's prior restraining order.
10. Plaintiffs acknowledge that the Court of Appeals found the prior restraining order
overly broad, which matter remains under review, but nevertheless, the Court's findings of
immediate irreparable harm from the use of the easements was not vacated by the Court of
Appeals.
11. The Court's finding that the Grant of Easements restricted use of the easements to
construction, development and use of single-family residential structures on specifically
identified real estate as described in the Grant of Easements was not vacated by the Court of
Appeals.
12. That Defendants have extended their unauthorized use of the easements to
additional real estate not described in the Grant of Easements is an unlawful expansion of the
Grant of Easements.
13. The actions of Defendants will result in immediate and irreparable harm to
Plaintiffs as is more fully described in Plaintiffs' Complaint.
14. The harm to Plaintiffs, if iniunctive relief is not granted, outweighs the harm to
Defendants if this motion is granted.
15. Plaintiffs have no adequate remedy at law and the interest of the public will not be
disserved by granting Plaintiffs' motion.
16. A preliminary injunction is necessary to preserve the sktus quo until the issues
raised by Plaintiffs' Complaint can be fully determined and is appropriate because Plaintiffs are
likely to prevail on the merits of their claim.
WHEREFORE, Plaintiffs, by counsel, request the Court to set an immediate hearing to
determine Plaintiffs' Verified Motion for Preliminary Injunction, and to issue a preliminary
injunction enjoining Defendants and any persons claiming through or under Defendants from
trespassing upon Plaintiff s real estate and use of the easements on Plaintiff s real estate for
ingress or egress to or any activity occurring on real estate owned by Defendants adjacent to the
real estate described in the Grant of Easements, and for all other and proper relief.
Respectfu lly submitted,
CARMINPARKER, PC
is/ Dqniel M. C:tr
Daniel M. Cyr
Attorney for Plaintiff
The undersigned swears or affirms under the penalties for perjury that the facts and
matters set forth in the above and foregoing Verified Motion for Preliminary Injunction are true
and corectthis fL day of May,2019
Michael O. Cain
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the above and foregoing was duly served
thisful day of May 20l9,via efiling service, addressed to:
Thomas R. Malapit, Jr.
Joshua A. Brown
Barry A. Hall
McKINNEY & MALAPIT LAW
tom@mandmlegal.com
iosh@mandmle sal.com
drew@mandmlegal.com
/s/ Daniel M. Cyr
Daniel M. Cyr
Michael L. Carmin, #12331-53
Daniel M. Cyr, #32555-53
CARMINPARKER, PC
116 W. 6th Street, Suite 200
P.O. Box 2639
Bloomington, Indiana 47 402-2639
Telephone: (812) 332-6556
414242 I 24110-l
