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Coldwater v. The Village of Elwood

Court of Appeals of Illinois, Third District

January 9, 2020

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,
v.
THE VILLAGE OF ELWOOD, and NANCY SCHULTZ VOOTS, in Her Official Capacity as Will County Clerk, Defendants-Appellees.

          Appeal from the Circuit Court No. 17-MR-3287 of the 12th Judicial Circuit, Will County, Illinois, Honorable John C. Anderson, Judge, Presiding.

          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 and opinion.

          OPINION

          WRIGHT, JUSTICE.

         ¶ 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 property.

         ¶ 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 passed?"

         ¶ 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. [1]

         ¶ 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.[2] 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 B.

         ¶ 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.[3] The second amended complaint, filed within a year of September 12, 2017, sought to nullify the ...


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