LARRY COLDWATER, Individually, as Trustee of the H. Kathleen Coldwater Trust Dated 8/20/15, and as Independent Executor of the Estate of H. Kathleen Coldwater, Deceased; JULIE COLDWATER f/k/a Julia Baum-Coldwater; COLDWATER FARMS, LLC, f/k/a Coldwater Farms Partnership, Plaintiffs-Appellants,
THE VILLAGE OF ELWOOD, and NANCY SCHULTZ VOOTS, in Her Official Capacity as Will County Clerk, Defendants-Appellees.
from the Circuit Court No. 17-MR-3287 of the 12th Judicial
Circuit, Will County, Illinois, Honorable John C. Anderson,
Attorneys for Appellant: Carl R. Buck and Lorien E.
Schoenstedt, of Rathbun, Cservenyak & Kozol, LLC, of
Joliet, for appellants.
Attorneys for Appellee: James A. Murphy, of Mahoney,
Silverman & Cross, LLC, of Joliet, for appellees.
JUSTICE WRIGHT delivered the judgment of the court, with
opinion. Justices Carter and McDade concurred in the judgment
1 In 2007, defendant-appellee, the Village of Elwood
(Village), approved and recorded an annexation ordinance that
contained an incorrect legal description of the property to
be annexed (Coldwater Property). The result of this incorrect
legal description was a larger annexation of the Coldwater
Property than was agreed to by the Village and
plaintiffs-appellants (the Coldwaters) in their annexation
agreement. Nearly 10 years later, the Coldwaters filed this
lawsuit to nullify the annexation due to the Village's
error in reciting the legal description of the Coldwater
2 After the Village filed a motion to dismiss under section
2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS
5/2-619(a)(5) (West 2016)), the circuit court dismissed as
time-barred four counts of the Coldwaters' second amended
complaint. Our court granted the Coldwaters' Illinois
Supreme Court Rule 308 (eff July 1, 2017) petition on the
following certified question: "Does 65 ILCS 5/7-1-46 bar
parties to an annexation from correcting errors in the legal
description after the one-year statutory period has
3 I. BACKGROUND
4 On May 29, 2007, the Village published notice of a public
hearing scheduled for June 13, 2007, pertaining to the
Village's authorization of an annexation agreement
between the parties. The legal description of parcel B of the
Coldwater Property, which was subject to the proposed
annexation, was consistent with the legal description of
parcel B contained in the parties' annexation agreement.
5 On June 13, 2007, the Village authorized the execution of
the parties' annexation agreement and effectuated the
proposed annexation by passing Elwood Ordinance No. 866
(Ordinance 866). However, the legal description of parcel B
recited in Ordinance 866 was inconsistent with the legal
description of parcel B in the parties' annexation
agreement. The result of this discrepancy was a
larger annexation of parcel B than was agreed to under the
parties' annexation agreement.
6 On February 14, 2008, the Village recorded Ordinance 866 in
the Will County Recorder's Office with the incorrect
legal description of parcel B. A plat of annexation was not
included as part of this February 2008 recording. On October
23, 2008, the Village again recorded a version of Ordinance
866 containing the incorrect legal description of parcel B.
This time, however, the Village recorded the correct and
agreed upon plat of annexation.
7 Eight years later, on March 12, 2015, the Village recorded
a "corrected" plat of annexation, which incorrectly
identified parcel B. On June 5, 2017, the Village rerecorded
conflicting versions of Ordinance 866, one dated February 14,
2008, and the other dated October 23, 2008. This time, the
February 14, 2008, documents contained the correct and agreed
upon legal description of parcel B. The October 23, 2008,
documents contained the incorrect legal description of parcel
8 On September 12, 2017, the Village again recorded Ordinance
866 with the incorrect legal description of parcel B. This
recording also contained the incorrect plat of annexation.
9 On December 8, 2017, the Coldwaters filed a complaint for
declaratory judgment in the circuit court of Will County. The
Coldwaters filed a second amended complaint on April 24,
2018. The second amended complaint, filed within
a year of September 12, 2017, sought to nullify the ...