Water lawsuit against the city continues to amend its complaint

Water lawsuit against the city continues to amend


Enquirer Democrat Reporter

A complaint against the city of Carlinville filed by Wayne and Camille Brotze regarding a water deal with Illinois Alluvial held its latest hearing on Friday, Aug. 2. The original complaint claimed that the city of Carlinville lacked the authority to incorporate, fund or operate the Illinois Alluvial Regional Water Company, a private company to solve the city’s water problem, also declaring that the IARWC must reimburse the misappropriated funds to the city of Carlinville.

Attorney Jacob Smallhorn, representing the Brotzes, conceded defects in his clients’ first amended complaint. As such, the city’s motion to dismiss was granted without prejudice.

The lawsuit was originally misfiled as a lawsuit rather than a miscellaneous remedy. After refiling the suit, Smallhorn filed a second amended complaint in the miscellaneous remedy on July 23 in an attempt to cure the procedural defect. The Second Amended Complaint, however, is not identical to the first amended complaint and, therefore, was technically filed without leave of court and before the court had an opportunity to hear and rule on defendant’s motion to dismiss.

City’s oral motion to strike Brotze’s second amended complaint as filed was granted in accordance with the legal authority cited by counsel. The clerk struck the second amended complaint because it was filed without permission/leave of court.

Attorney Smallhorn was granted 14 days from Friday to e-file the second amended complaint in the miscellaneous remedy. The city will have 28 days thereafter to file a responsive pleading.

Attorney Smallhorn indicates that once the pleadings are at issue, he intends to file a request to certify a question for appeal. The case will be reset upon request.

“I would like to renew my previous objection,” said Attorney Dan O’Brien after the hearing. “After a year and a half, we are entitled to know what we’re defending against, yet the court has once again allowed the plaintiffs to amend their complaint.”

Smallhorn was unavailable for comment.