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 of Will County, No. 17-MR-3287; the
Hon. John C. Anderson, Judge, presiding.
R. Buck and Lorien E. Schoenstedt, of Rathbun, Cservenyak
& Kozol, LLC, of Joliet, for appellants.
A. Murphy, of Mahoney, Silverman & Cross, LLC, of Joliet,
¶ 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.
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.
¶ 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
¶ 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.
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 ...