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07/15/96 PETITION FOR SUBMITTAL QUESTION ANNEXATION

July 15, 1996

IN RE: PETITION FOR SUBMITTAL OF THE QUESTION OF ANNEXATION TO THE CORPORATE AUTHORITIES OF THE CITY OF JOLIET, ILLINOIS, RICHARD J. KENNEDY, RAYNENE J. PETERSON, RICHARD J. KENNEDY, RAYMOND J. KENNEDY AND DANIEL L. KENNEDY, CO-TRUSTEES UNDER THE TERMS OF A CERTAIN DEED IN TRUST DATED SEPTEMBER 16, 1968, RAYMOND J. KENNEDY, RAYNICE KENNEDY TOPOLOSKI, HELEN PASSAS, JAMES PASSAS, MARIETTA O. WALSH, MARGE M. PASSAS, PETER PASSAS, STEVE G. PASSAS, DONALD SIEFERT, DOROTHY SIEFERT, ANNE M. PECENIAK, LAWRENCE J. WILLIAMS, AS SUCCESSOR TRUSTEE UNDER A TRUST AGREEMENT DATED FEBRUARY 21, 1983, AND KNOWN AS THE DOROTHY L. WILLIAMS TRUST, OAK LAWN TRUST & SAVINGS BANK, NOT PERSONALLY BUT AS TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER 14, 1978, AND KNOWN AS TRUST NO. 629, JOHN F. TEZAK, SUZANNE TEZAK, GLENN L. SCHEDEEN, LILLIAN J. SCHEDEEN, STANDARD BANK AND TRUST COMPANY, AS TRUSTEE UNDER ITS TRUST NO. 3307 AND NOT INDIVIDUALLY, LA SALLE NATIONAL BANK, N.A., SUCCESSOR TRUSTEE TO LA SALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST NO. 100378 AND NOT PERSONALLY, GEORGE C. JOHNSON, JR., SOPHIE ANN PETERSON, RAYMOND J. KENNEDY, JR., VIRGINIA KENNEDY, RAYMOND J. KENNEDY III, MARINA PASSAS, ELENE K. PASSAS, ELIZABETH PRICE, GEORGE R. PETERSON, JENNIFER L. COTE, ROBERT COTE, PETITIONERS-APPELLANTS, AND CITY OF JOLIET, AN ILLINOIS MUNICIPAL CORPORATION, INTERVENOR-APPELLANT,
v.
AMERIFED FEDERAL SAVINGS BANK, AS TRUSTEE UNDER TRUST AGREEMENT NO. 8-1280 DATED MAY 17, 1989, OBJECTOR-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 90--CM--11032. Honorable Thomas M. Ewert, Judge Presiding.

Released for Publication August 29, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable John F. Michela, Justice. Justice McCUSKEY delivered the opinion of the court: Lytton and Michela, JJ., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The petitioners, alleged to be a majority of the landowners of an approximately 1,000 acre tract of land and a majority of the electors residing on the property, filed a petition seeking to annex the property to the City of Joliet (City). The City was allowed to intervene in the action, and various objections were filed. Approximately five years after the petition was filed, the trial court dismissed the petition on the grounds of abandonment. The petitioners and the City appeal.

The sole issue raised on appeal is whether the trial court erred in dismissing the petition. We conclude that the facts in this case do not support a finding of abandonment. Accordingly, we reverse the trial court's order dismissing the petition. As a result, the cause is remanded for further proceedings regarding the petition.

FACTS

On July 30, 1990, the annexation petition was filed. In August 1990, objections to the petition were filed by: (1) Vivian Buck, Joan Harvey and the City of Lockport (Lockport); (2) Amerifed Federal Savings Bank, as trustee of a land trust (Amerifed); and (3) Homer Township, Homer Township Fire Protection District, New Lenox Fire Protection District and various trustees of the two fire protection districts. The City filed a petition to intervene in the action. None of the objectors opposed the City's petition, and it was granted on September 4, 1990.

On October 16, 1990, the trial court granted the petitioners' motions to dismiss the objections of Homer Township, the two fire protection districts and their trustees. On January 15, 1991, an agreed order was entered continuing the matter to March 13, 1991. The record shows that no hearing was held on that date.

A status hearing was held on September 16, 1994. An attorney for the City appeared at the hearing. On November 23, 1994, Amerifed's attorney, Doug Spesia (Spesia), filed a motion to strike and dismiss the petition pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1994)). Spesia and other attorneys in his firm represented Amerifed in the trial court and also represent Amerifed in this appeal. On January 13, 1995, the City filed a response to Amerifed's motion to dismiss.

On February 8, 1995, an order was entered granting the motions of Vivian Buck, Joan Harvey and Lockport to withdraw their objections. At that point, Amerifed was the only remaining objector. On March 7, 1995, the court denied Amerifed's motion to strike and dismiss.

On August 5, 1995, on motion of the City, the court set the petition for a hearing on November 14, 1995. On September 1, 1995, Spesia, on behalf of Amerifed, filed a second motion to dismiss, this one pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1994)). Amerifed alleged that the petitioners abandoned their petition by inaction and unreasonable delay.

In its memorandum of law in support of its motion, Amerifed stated that five other annexation petitions involving portions of the same property had been filed in August and September 1990. Two of the petitions sought annexation to Lockport. Three petitions, including one filed by Amerifed, sought annexation to the Village of New Lenox (New Lenox). Amerifed's petition to annex 3.46 acres to New Lenox was filed August 21, 1990. Amerifed argued that the petitioners lost priority over the subsequent petitions because they had done nothing in support of their petition since 1990.

On September 27, 1995, the petitioners and the City filed a response to the motion to dismiss. They stated that the reason for the delay in court proceedings was the fact that good faith settlement efforts were ongoing with New Lenox until negotiations broke down in November 1994. They also stated that good faith settlement efforts were ongoing with Lockport until January 1995. These negotiations ...


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