In rе PETITION TO ANNEX CERTAIN TERRITORY TO THE VILLAGE OF LEMONT, ILLINOIS (The Village of Lemont, an Illinois Municipal Corporation, Intervenor-Appellant; Mid-Iron Club, Inc., Gleneagles Country Club, Inc., Cook Golf Properties, Inc., Pine Meadow Golf Club, Inc., d/b/a Cog Hill, and the Village of Palos Park, an Illinois Municipal Corporation, Objectors-Appellees).
No. 1-17-0941
Appellate Court of Illinois, First District, Third Division
December 13, 2017
2017 IL App (1st) 170941
Hon. Carol A. Kipperman, Judge, presiding.
Illinois Official Reports
Michael F. Zimmerman and Nicholas J. Daly, of Tressler LLP, of Chicago, for appellant.
John B. Murphey, of Rosenthal, Murphey, Coblentz & Donahue, and Gregory R. Meeder, Benjamin L. Schuster, and William F. Farley, of Holland & Knight LLP, both of Chicago, and William J. Hennessy, of Law Offices of William J. Hennessy, of Burr Ridge, for appellees.
Prеsiding Justice Cobbs and Justice Howse concurred in the judgment and opinion.
OPINION
¶ 1 This appeal involves a dispute between two villages about the annexation of unincorporated territory. Opposing annexation into the village of Lemont are several privately owned golf courses along with the Village of Palos Park, and supporting annexation into Lemont are some residential landowners along with the Village of Lemont. The trial court ultimately granted summary judgment to the golf courses and Palos Park, concluding the golf courses had annexation priority becausе they had not abandoned their earlier-filed annexation petitions. This then legitimized the annexation of their unincorporated territory to Palos Park. The residential landowners and Lemont now appeal, contending the trial court‘s summary judgment ruling was erroneous. They also contend the court abused its discretion in denying their motion for a substitution of judge and their motion to extend discovery back before 2015. For the reasons to follow, we affirm.
¶ 2 BACKGROUND
¶ 3 Several years ago, a wide swath of unincorporated territory in Cook County lay sandwiched between Palos Park and the Villagе of Lemont. As stated, a dispute arose about whether that territory should have been annexed to Palos Park or the Village of Lemont. In 2015, the golf courses of Gleneagles Country Club, Inc. (Gleneagles), Mid-Iron Club, Inc. (Mid-Iron),1 and Cog Hill2 sought to annex their property to Palos Park, with their respective petitions filed in April, February, and March of 2015. The golf courses, together with Ludwig Farms,3 which filed its petition in 2014, all occupied almost 1500 acres of the unincorporated territory. The voluntary annexation petitions fell under
¶ 4 While the 2015 voluntary petitions were pending, the Cook County Forest Preserve and Palos Park meanwhile had entered into an intergovernmental annexation agreement, wherein Palos Park annexed about 190 acres of forest preserve. There was a public meеting in October to discuss the annexation. Palos Park and Lemont public officials, including the mayors, were present. The forest preserve annexation to Palos Park subsequently became final on December 14, 2015, following a public hearing. According to the Palos
¶ 5 In challenging these annexation efforts, on December 11, 2015, some 14 residential landowners,4 occupying a small percentage of the unincorporated territory, filed what all parties agree is considered a “forcible” or “involuntary” annexation petition under
¶ 6 On December 31, 2015, Palos Park objected (see
¶ 7 Pursuant to the landowners’ request, on January 7, 2016, the section 7-1-2 hearing was held with the parties present to discuss the December 11 involuntary annexation petition. As discussed in further depth below, Palos Park and the golf courses (collectively, Objectors) requested a continuance based оn Palos Park‘s anticipated adoption of annexation ordinances which was to occur several days later on January 15. The court granted the requested continuance for January 20 over the objection of the landowners (collectively with Lemont, Petitioners).
¶ 8 On January 11, the Petitioners filed a motion for a substitution of judge under
¶ 9 On January 15, 2016, Palos Park adopted an annexation ordinance for Mid-Iron and Gleneagles. A month later on February 8, 2016, Palos Park adopted an annexation ordinance for Cog Hill and Ludwig Farms. Although the Objectors had been negotiating a memorandum of
¶ 10 The matter proceeded with the parties engaging in discovery. The court granted the Objectors a protective order to limit discovery from January 1, 2015, forward. Objectors then filed a motion for summary judgment, which the court granted, holding the Objectors’ еarlier-filed 2015 voluntary petitions had priority over the Petitioners’ involuntary petition. Petitioners now appeal from that judgment.
¶ 11 ANALYSIS
¶ 12 Petitioners first contend the trial court erred in denying their motion for substitution of judge. Under
¶ 13 To preclude “judge shopping,” a motion for substitution of judge as of right must be filed at the earliest practical moment before commencement of trial or hearing and also before the judge rules upon any “substantial issue” in the case. Chapman, 2012 IL App (1st) 111792, ¶ 23. A substantial ruling is one that directly relates to the merits of the case. In re Estate of Gay, 353 Ill. App. 3d 341, 343 (2004). That includes where the party moving for substitution has discussed issues with the trial judge, who then indicates a position on a particular point. Colagrossi v. Royal Bank of Scotland, 2016 IL App (1st) 142216, ¶ 30. In addition, a substitution of judge may be denied, even where the judge did not rule on a substantial issue, where the litigant had an opportunity to test the waters and form an opinion as to the court‘s disposition of an issue. Chapman, 2012 IL App (1st) 111792, ¶ 23; see also Colagrossi, 2016 IL App (1st) 142216, ¶ 36 (“testing the watеrs” remains a viable objection to substitution of judge motions as of right in the First District); but see Schnepf v. Schnepf, 2013 IL App (4th) 121142, ¶¶ 29-30, 56 (departing from the overwhelming “weight of appellate authority” and rejecting the “test the waters” doctrine).
¶ 14 Under our de novo review, we conclude the trial court did not err in denying the substitution motion because there was a hearing, a substantive ruling, and opportunity for the Petitioners to “test the waters.” See In re Estate of Hoellen, 367 Ill. App. 3d 240, 246 (2006) (whether a trial court‘s ruling is “substantial” is a question of law). Here, as stated, the Objectors filed their voluntary petitions for annexation to Palos Park in spring 2015. On December 11, 2015, the Petitioners filed their own involuntary annexatiоn petition, but the Objectors objected, citing notice deficiencies under the statute. See
¶ 15 Palos Park, however, informed the court that the annexation of both Gleneagles and Mid-Iron was to take place in Palos Park on January 15, 2016, which arguably would render the Petitiоners’ section 7-1-2 petition moot (counsel argued a precondition for such a petition was that the property sought to be forcibly annexed not be incorporated into a municipality already). The court noted that the Palos Park pleading, which included the voluntary petitions, “was extremely helpful” and counsel had described the “highlights” of the pleading. Palos Park argued against the Petitioners’ actions of filing the involuntary petition, stating “[t]his is really nothing more than a tactic to interrupt the voluntary petition which has priority.” Palos Park argued that there should be a status hearing following the annexation and it could then file a motion to dismiss. The attorneys representing Mid-Iron, Gleneagles, and Cog Hill essentially agreed with Palos Park, adding that the parties could present the court with certified copies of the Palos Park annexation ordinances and then “decide what they want to do.” Counsel for the Petitioners acknowledged, “[i]t just sounds like we just heard oral argument after a bunch of testimony” and asserted that the matter needed to be further briefed, but then counsel argued the Objectors’ inaction on previously filed annexation pеtitions had rendered the Gleneagles 2015 petition ineffective and further that Petitioners’ notice was sufficient under the directory section 7-1-2 statute.
¶ 16 Over the Petitioners’ objection, the court granted the Objectors’ request to meet shortly after the annexation ordinances were to pass in Palos Park, and the court set a hearing date on January 20, thereby rejecting the Petitioners’ argument that the court could “still move forward” on their involuntary annexation petition. This was an implicit if not explicit substantive ruling in favor of the Objectors. In granting the Objectors’ request, the future of thе Petitioners’ petition was thrown into question, making their motion for a substitution of judge untimely and tantamount to judge shopping. See Hoellen, 367 Ill. App. 3d at 247. Moreover, as Palos Park and the golf courses noted in response to the substitution of judge motion, a hearing was required to be held within a 20- to 30-day period following the filing of the involuntary annexation petition, and that hearing was held on January 7. See
¶ 17 The Petitioners next challenge the summary judgment granted in favor of the Objectors. Summary judgment is appropriate where the pleаdings, depositions, and admissions on file, together with the affidavits, if any, demonstrate there is
¶ 18 The Petitioners first contend that Gleneagles’ and Mid-Iron‘s voluntary petitions5 do not have priority over the later-filed involuntary petition because there is no evidence the Palos Park village clerk received them, as required. See
¶ 19 The Petitioners also contend the trial court erred in ruling that the 2015 voluntary annexation petitions had priority over the later-filed involuntary petition and thus were not abandoned by the Objectors. A proceeding for annexation itself involves an incorporation of the previously unincorporated territory. City of Countryside v. Village of La Grange, 24 Ill. 2d 163, 166 (1962). A section 7-1-8 voluntary annexation proceeding is “initiated” by the filing of a petition by the landowner, and the annexation is completed by the final action of the municipality. In re Petitiоn to Annex Certain Property to the City of Wood Dale, 244 Ill. App. 3d 820, 827 (1993). Public policy and fundamental fairness favor voluntary annexations by landowners over involuntary annexations. Id.
¶ 20 The general rule governing conflicting petitions to annex or incorporate the same tract of land is that the first to initiate an annexation petition is entitled to priority over the property against all other parties initiating a proceeding at a later date. In re Petition for Submittal of the Question of Annexation to the Corporate Authorities of the City of Joliet, 282 Ill. App. 3d 684, 689 (1996). Priority in time typically is determined by the time of initiation of annexation proceedings. In re Annexation of Certain Territory to the Village of Deer Park, 358 Ill. App. 3d 92, 96 (2005). Nonetheless, a party loses its right to priority if it is found to have abandoned its petition. Joliet, 282 Ill. App. 3d at 689. This occurs when “a party takes no action on an annexation proceeding and frustrates the annexation plans of a neighboring community.” Id. A claim of abandonment, however, may be defeated by evidence showing that actions were taken relating to the annexation petition. Id.
¶ 21 Here, the Objectors engaged in sustained and consistent action to advance the 2015 voluntary petitions. This is supported by the affidavits and evidence regarding activities between January 2015 and spring 2016, attached to the Objectors’ summary judgment motion. For example, Palos Park manager Richard Boehm attested that he had coordinated and handled documents needed to establish contiguity and municipal services to the annexed parties. He had met with the village mayor and other municipal employees to advance the process and handled the forest preserve annexation. Palos Park attorney Thomas Bayer attested that he had worked with the Palos Park mayor, village manager, village council and staff on the annexation. He negotiated documents needed to annex the property, aided in establishing contiguity between Palos Park and the property to be annexed, and also reviewed various documents. He attached his billing report for which he was paid by Palos Park. Cog Hill‘s civil engineer Mary Catherine McBride attested that she had worked with the village engineer, village attorney, and ComEd on annexation and utility connections with Palos Park. William Hennessey, the attorney fоr Gleneagles, Cog Hill, and Ludwig
¶ 22 In short, the documents and affidavits show that throughout 2015, there were numerous meetings and extended coordination among various parties to determine detailed plans as to electricity, sanitary sewer engineering, water main extension, easements, zoning, and the fiscal impact of annexing the properties. In addition, the Gleneagles аnnexation was preceded by negotiations between Palos Park and the forest preserve district to annex the forest preserve property. This annexation facilitated the Objectors’ annexations because it conclusively provided contiguity, as required by section 7-1-8, to the Objectors’ properties.6 The Petitioners do not necessarily dispute the facts that the Objectors rely on for summary judgment, and reasonable people could not draw different inferences from those facts showing sustained activity by the Objectors. This justifies summary judgment in favor of the Objеctors. See Adams, 211 Ill. 2d at 43.
¶ 23 Relying on the seminal case, People ex rel. Village of Worth v. Ihde, 23 Ill. 2d 63, 67-68 (1961), Petitioners nonetheless contend that in viewing “action” taken to pursue an annexation, courts can only consider the official actions of the corporate authorities, including the mayor and village council. See also
¶ 24 Contrary to Petitioners’ argument, Worth does not stand for the proposition that prompt action by the corporate authorities following the filing of an annexation petition is required. What matters is some action on the part of the corporate authorities or a showing that the corporate action was delayed. Herе, as previously elucidated, we have both. The record makes clear that the corporate authorities, mainly Palos Park‘s mayor, and Palos Park‘s executive/corporate employees, including its village manager and attorney, were aware of the golf courses’ 2015 annexation petitions, and they took action throughout 2015 toward formally approving the annexation petitions. The delay was due to coordination among the various parties for provision of such things as sewer and water service, which the Objectors desired to have encapsulated in a formal agreement before annexation. Moreover, the record shows that Lemont knew about these activities, thus calling into question their involuntary petition under Worth. Additionally, the Palos Park corporate authorities did indeed pass the annexation ordinances within a two-month period following the Petitioners’ December 2015 involuntary annexation petition, unlike in Worth where Chicago Ridge sat on the annexation petition for more than four months after the contrary petition was filed.
¶ 25 Cases decided since Worth also support our interpretation. In People ex rel. Village of Long Grove v. Village of Buffalo Grove, 199 Ill. App. 3d 395, 414 (1990), the court considered the three meetings of the village planning commission, one of which was public, and the village‘s hiring of a traffic engineer as “action” needed to sustain an annexation petition for priority purposes. Long Grove rejected the argument that courts must focus solely on when corporate authorities vote for the annexation petition, stating “[a] municipal government should have an opportunity to study carefully and consider the potential effect of a proposed annexation upon the municipality.” Id. In Joliet, 282 Ill. App. 3d at 687, the appеllate court looked to the five-year negotiations of the parties and actions of the village employees and attorneys as the “action” needed to sustain the annexation petition against an abandonment claim. Based on the foregoing, Petitioners’ claim of abandonment must fail, and the trial court rightly held that the Objectors’ earlier-filed 2015 voluntary annexation petitions had priority over the Petitioners’ involuntary annexation petition.
¶ 26 In light of our holding, we likewise reject Petitioners’ argument that
¶ 27 The trial court is given great latitude in determining the scope of discovery because the range of relevance and materiality for discovery purposes includes not only what is admissible at trial but also that which leads to what is admissible at trial. The Y-Not Project, Ltd. v. Fox Waterway Agency, 2016 IL App (2d) 150502, ¶ 43. Although the scope of permissible discovery is broad, it is not unlimited, and the court must balance the needs of truth and excessive burden to the litigants. Id. A reviewing court will not disturb a discovery order absent an abuse of discretion. Id. We agree with the Objectors that the prior voluntary petitions, which were never challenged by any opposing annexation petitions, are irrelevant to the matter at hand, which was determining the priority for the 2015 annexation petitions. Petitioners have not cited any law demonstrating that those prior petitions could even be considered still jurisdictionally “live” once they were replaced with the 2015 petition. No amount of discovery from previous years would have enabled Petitioners to defeat the activity that took place throughout 2015, which established the Objectors’ priority for annexation. The trial court did not abuse its discretion.
¶ 28 CONCLUSION
¶ 29 Based on the foregoing, we affirm the judgment of the trial court.
¶ 30 Affirmed.