## Facts

- A shopping center owner leased space in 1973 to a grocery tenant under a long-term lease with renewal options.
- The lease included a restrictive covenant barring the landlord and its successors from allowing specified grocery/food-store uses within two miles and stating the covenant would run with the land.
- The lease provided remedies for breach, including cancellation and injunctive relief at the tenant’s option.
- The original grocery tenant assigned its leasehold interest to another grocery operator, which later subleased the premises to an appliance retailer; the appliance retailer occupied the space thereafter.
- Tippecanoe became successor to the original grocery tenant’s leasehold interest and sought to enforce the covenant.
- Kimco acquired the shopping center in 1997 and later attempted to replace a departing anchor tenant with a grocery chain, which the covenant would restrict.
- Kimco filed a declaratory judgment action seeking a ruling that the restrictive covenant was unenforceable.
- Tippecanoe moved for the trial judge’s recusal based on the judge’s spouse’s employment at a firm that had represented Kimco in unrelated matters; the trial court denied recusal.
- The trial court entered declaratory judgment for Kimco, holding the covenant unenforceable due to changed circumstances and public-interest concerns.

## Issues

1. Whether the trial judge abused discretion by denying recusal based on alleged appearance of partiality arising from the judge’s spouse’s law-firm employment.
2. Whether the trial court clearly erred by declaring the lease’s restrictive covenant unenforceable due to changed conditions and public policy.

## Decision

- The court affirmed the denial of recusal, holding Tippecanoe failed to show actual bias or sufficient grounds to question impartiality.
- The court reversed the declaratory judgment invalidating the covenant, holding the restrictive covenant remained enforceable.
- The case was remanded for further proceedings consistent with the appellate decision.

## Legal Principles

- Judicial disqualification requires a showing of actual personal bias or facts that would cause a reasonable person to question the judge’s impartiality; adverse rulings or attenuated relationships, without more, are insufficient.
- Restrictive covenants in commercial leases that are clear and unambiguous are enforced as written, including covenants stated to run with the land.
- “Changed conditions” justify nonenforcement only when changes are so substantial that they defeat the covenant’s original purpose; ordinary shifts in tenancy or market conditions do not suffice.
- A limited noncompetition restriction in a shopping-center lease is not void as against public policy merely because it restrains competition; it may be a permissible means of protecting the tenant’s bargain and the value associated with the leasehold.

## Conclusion

The appellate court upheld the trial judge’s refusal to recuse but held that the shopping-center lease’s two-mile grocery restrictive covenant remained enforceable because the asserted changes did not defeat its purpose and public policy did not require invalidation of a negotiated, limited-scope commercial restriction.


Tippecanoe Assocs. II, LLC v. Kimco Lafayette 671, Inc., 811 N.E.2d 438 (Ind. Ct. App. 2004)