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                                     Appellate Court                           Date: 2017.06.28
                                                                               09:53:33 -05'00'




             County of Boone v. Plote Construction, Inc., 2017 IL App (2d) 160184



Appellate Court          THE COUNTY OF BOONE, Plaintiff-Appellee, v. PLOTE
Caption                  CONSTRUCTION, INC., BELVIDERE MATERIALS, LLC, and
                         CHICAGO LAND TITLE AND TRUST COMPANY, Defendants-
                         Appellants.



District & No.           Second District
                         Docket No. 2-16-0184



Filed                    March 28, 2017
Rehearing denied         April 20, 2017



Decision Under           Appeal from the Circuit Court of Boone County, No. 14-CH-170; the
Review                   Hon. C. Robert Tobin III, and the Hon. Philip J. Nicolosi, Judges,
                         presiding.



Judgment                 Affirmed.


Counsel on               Warren R. Fuller, of Kelleher & Buckley, LLC, of North Barrington,
Appeal                   for appellants.

                         Tricia L. Smith, State’s Attorney, of Belvidere (Lawrence M. Bauer,
                         of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
                         appellee.
     Panel                     JUSTICE BIRKETT delivered the judgment of the court, with
                               opinion.
                               Justices Zenoff and Schostok concurred in the judgment and opinion.


                                                OPINION

¶1         Defendants, Plote Construction, Inc., Belvidere Materials, LLC, and Chicago Land Title
       and Trust Company, appeal an order of the circuit court of Boone County, holding them in
       indirect civil contempt for violating an injunctive order entered in favor of plaintiff, the County
       of Boone. Defendants argue that the injunctive order expired prior to the conduct that was the
       basis for the contempt finding and, alternatively, that plaintiff failed to prove that defendants’
       conduct violated the terms of the injunction. We reject these contentions and affirm.

¶2                                          I. BACKGROUND
¶3         In March 2005, defendants, who were contract purchasers of property on which they
       desired to operate a quarry, sued plaintiff to challenge its prohibition on quarrying activities in
       the zoning district containing the property. In September 2005, plaintiff and defendants
       entered into a settlement agreement (the Settlement Agreement) in which plaintiff agreed to
       issue defendants a special-use permit for “the extraction of minerals and earth materials” from
       the property. Section 3(b) of the Settlement Agreement contained the following restriction on
       defendants’ operating hours:
                “(b) The hours of operation for the quarrying activities to be conducted on the Subject
           Property shall be from 6:00 a.m. to 6:00 p.m. weekdays and Saturdays and there shall be no
           operations conducted on Sunday or legal holidays, unless the County permits less
           restrictive hours and days of operations to other mining operations subject to its control in
           which event the less restrictive regulations shall apply to the Subject Property to the same
           extent and for the same periods as those which apply to such other mining operations.”
           (Emphasis added.)
       We refer to the italicized language as the “least restrictive hours” clause.
¶4         In June 2014, plaintiff enacted Ordinance No. 14-21 (the Ordinance) (Boone County Code
       of Ordinances No. 14-21 (eff. June 18, 2014)), which granted defendants “a special use for a
       quarry” on the property. The Ordinance specified “hours of operation for the quarrying
       activities to be conducted on the property.” The hours were the same as those specified in the
       Settlement Agreement. Defendants operated the quarry under the name “Beverly Materials.”
¶5         On August 21, 2014, plaintiff filed a complaint seeking preliminary and permanent
       injunctive relief barring defendants from operating the quarry outside the hours specified in the
       Ordinance. Four days later, plaintiff filed a motion for a temporary restraining order (TRO)
       and a preliminary injunction. Plaintiff alleged in the complaint and the motion that it had
       received numerous complaints of “quarrying activity outside the allowable hours of
       operation.” In response to these complaints, one of plaintiff’s building inspectors, Drew Bliss,
       conducted a site inspection of defendants’ property on three separate dates in August 2014. On
       those dates, Bliss observed “quarrying activity *** being performed *** in violation of the
       Ordinance,” namely outside the permitted hours. Plaintiff attached an affidavit from Bliss, who

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       averred that, on the three dates in August 2014, he observed “quarrying activity” taking place
       on defendants’ property outside permitted hours. Bliss’s affidavit did not specify the
       “quarrying activity” he observed. However, plaintiff also attached an August 13, 2014, letter
       from Bliss to defendants. In the letter, Bliss informed defendants that, at 7:06 p.m. on August
       12, 2014, he observed a “front[-]end loader *** moving aggregate within the quarry.” Bliss
       stated that he considered this activity to be “quarrying activity.”
¶6          Plaintiff served defendants with copies of its pleadings and informed them of the date on
       which the motion for injunctive relief would be heard. Meanwhile, defendants moved to
       dismiss the complaint. In their motion, defendants alleged that the activity Bliss observed at
       defendants’ quarry on the three dates in August occurred within the operating hours that
       plaintiff granted to another quarrying operation, Quality Aggregates. Therefore, according to
       defendants, the “least restrictive hours” clause in the Settlement Agreement applied and
       defendants were not in violation of the Ordinance.
¶7          On November 24, 2014, the trial court issued a memorandum of decision. The court began
       by noting that previously, on November 13, 2014, the court held a hearing on plaintiffs’ motion
       for injunctive relief and defendant’s motion to dismiss. The record contains no report of
       proceedings of the hearing. The court further stated in the memorandum that on November 13,
       it “entered oral rulings” on both motions and “advised the parties that [the court] would issue a
       memorandum of decision clarifying its basis for such rulings.” Notably, the record contains no
       order from November 13 memorializing the oral rulings entered that day.
¶8          In the body of the memorandum, the court found that plaintiff satisfied the elements for a
       TRO. The court concluded the memorandum by stating: “Defendants’ Motion to Dismiss is
       denied. Plaintiff’s Motion for Temporary Restraining Order is granted.” The court did not
       specify the conduct from which defendants were barred or specify a duration for the injunction.
¶9          Defendants did not take an immediate appeal from the November 2014 injunctive order.
       Instead, defendants filed (1) an answer to the complaint, (2) an affirmative defense based on
       the “least restrictive hours” clause, and (3) a “Counterclaim for Declaratory Judgment to
       Enforce [the Settlement Agreement].” Plaintiff moved to dismiss the affirmative defense and
       the counterclaim, but the court denied the motion.
¶ 10        In June 2015, plaintiff filed a petition for a rule to show cause for indirect civil contempt.
       Plaintiff alleged that defendants willfully violated the November 2014 injunctive order by
       conducting quarrying activities beyond the permitted hours of operation, as observed by Bliss.
       Plaintiff attached an affidavit from Bliss, who averred that, on three separate dates in June
       2015, he observed vehicles enter the quarry, receive loads of aggregate, and leave. Bliss
       referred to these activities as “quarrying activities.”
¶ 11        In July 2015, defendants filed a motion to strike the petition, under section 2-615 of the
       Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014) (dismissal for failure to state
       a cause of action upon which relief can be granted)). They argued that the loading and hauling
       of materials, as observed by Bliss, did not of themselves constitute “quarrying activities” as
       contemplated in the Ordinance.
¶ 12        On October 26, 2015, the trial court held an evidentiary hearing on the petition for a rule to
       show cause and the motion to strike the petition. Plaintiff’s sole witness at the hearing was
       Bliss, who related his investigation of numerous complaints that defendants were engaging in
       quarrying activities prior to 6 a.m., in contravention of the Ordinance. Bliss described three
       separate dates, June 11, 17, and 18, 2015, on which he positioned himself off-site and observed

                                                    -3-
       activities within the quarry prior to 6 a.m. On these dates, Bliss saw heavy trucks enter the
       quarry and receive loads of aggregate from front-end loaders before leaving the quarry. Bliss
       saw some of the trucks pause at the quarry’s scale house before leaving.
¶ 13       Following Bliss’s testimony, defendants called David Zumbrunn as their sole witness.
       Zumbrunn was the general manager of Beverly Materials. Zumbrunn stated that, on his
       reading, the Ordinance contained no definition of “quarrying activities.” Zumbrunn also had
       not seen “any portion of a county ordinance which identifies loading trucks as quarrying
       activities.”
¶ 14       In November 2015, while the petition and the motion to strike were under advisement,
       defendants moved for leave to file another affirmative defense. Defendants’ defense was that
       the November 2014 injunction expired prior to the dates in June 2015 when Bliss made his
       observations. Defendants characterized the November 2014 injunction as a TRO and cited case
       law holding (in defendants’ paraphrase) that a TRO “can only properly last for no more than 10
       days provided that a hearing regarding the issuance of a preliminary injunction is scheduled
       within a short time thereafter.” Defendants noted that, in the 12 months since the injunctive
       order was issued, a hearing on the issuance of a preliminary injunction was neither held nor
       scheduled.
¶ 15       The court granted defendants leave to file the affirmative defense. Plaintiff then moved to
       strike the defense.
¶ 16       In January 2016, the trial court issued a written order resolving several pending matters.
       First, the trial court denied defendants’ motion to strike the petition for a rule to show cause.
       Second, the court granted plaintiff’s motion to strike defendants’ affirmative defense that the
       injunction expired prior to the activities in June 2015 that plaintiff alleged were in violation of
       the injunction. The court rejected defendants’ suggestion that the injunctive order was subject
       to the 10-day limit provided in section 11-101 of the Code (735 ILCS 5/11-101 (West 2014)).
       The court noted that the 10-day limit applied to a TRO granted without notice, but that here the
       injunctive order was entered with notice. The court also remarked that, in the months since the
       injunctive order was issued, defendants had not asked for a hearing on whether a preliminary
       injunction should issue. The court concluded its discussion as follows:
                “The court is not finding at this junction [sic] that [defendants are] not entitled to a
           hearing on the Plaintiff’s Complaint for Preliminary and Permanent Injunction[,] but based
           on the statute, previous court rulings and the facts before it, this court is denying
           [defendants’] [a]ffirmative defense that the TRO entered in the case should be dismissed
           since it was in effect for more than 10 days.”
¶ 17       Third, the trial court found that the activities Bliss observed at the quarry in June 2015,
       outside the Ordinance’s specified hours, constituted “quarrying activities”:
                “Although there was no evidence presented that there was any mining or blasting being
           done outside of the time restrictions[,] there was ample evidence of quarrying activities
           presented to the court for its consideration. The evidence showed that prior to 6 a.m. the
           Defendants granted access to *** pick-up trucks, semi-trucks and dump trucks into and out
           of the quarry owned and operated by Defendants and allowing, if not facilitating[,] the use
           of [front-]end loaders to load aggregate located inside the quarry into the trucks. The
           evidence also showed that the scale house located on the property was used to weigh these
           trucks filled with the aggregate prior to exiting the quarry. These activities are ‘quarrying
           activities.’ ”

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¶ 18      In February 2016, the court issued a judgment holding defendants in indirect civil
       contempt of court for the June 2015 violations. The court imposed a monetary sanction for the
       contempt. Also on that date, the court scheduled a hearing on plaintiff’s complaint. At one
       point, the court characterized the hearing as one to determine whether a “preliminary and/or
       permanent injunction” should issue. At a later point, the court said that the hearing would be
       “on whether or not the defendants should be permanently enjoined from doing their activity.”
¶ 19      Defendants subsequently filed a motion to stay proceedings pending resolution of this
       timely appeal from the adjudication of contempt. The court granted the motion and stayed
       proceedings.

¶ 20                                             II. ANALYSIS
¶ 21       Defendants’ two contentions on appeal are: (1) the injunction expired prior to the June
       2015 activities that formed the basis for the finding of contempt; and (2) even if the injunction
       were still in effect, plaintiff failed to prove that defendants’ activities violated the terms of the
       injunction.
¶ 22       We address first plaintiff’s assertion that, because defendants did not take an immediate
       appeal from the injunctive order entered in November 2014, the order became the law of the
       case and could not be challenged in a later appeal in the proceeding. Plaintiff’s contention is
       based on abrogated authority.
¶ 23       Illinois Supreme Court Rule 307(a) (eff. Feb. 26, 2010) lists several types of interlocutory
       orders, including those concerning injunctions, from which “[a]n appeal may be taken to the
       Appellate Court” within 30 days of entry of the interlocutory order. Defendants rely on this
       court’s statement in Bradford v. Wynstone Property Owners’ Ass’n, 355 Ill. App. 3d 736, 739
       (2005), that “[t]he failure to timely appeal from a trial court’s order disposing of a motion to
       grant, deny, modify, dissolve, or refuse to dissolve a TRO renders that order the law of the case
       from which a later appeal cannot be taken.” For this proposition, this court cited two cases
       from the First District Appellate Court, Hwang v. Tyler, 253 Ill. App. 3d 43, 46 (1993), and
       Battaglia v. Battaglia, 231 Ill. App. 3d 607, 615 (1992). Curiously, our decision in Bradford
       failed to mention that this court had previously departed from Hwang precisely on whether the
       failure to take an immediate appeal under Rule 307(a) from an interlocutory order is
       res judicata in an appeal from a later judgment in the case. We said in Anderson v. Financial
       Matters, Inc., 285 Ill. App. 3d 123, 135 (1996):
                “Here, the language of Rule 307(a)(1) is plain and unambiguous: a party is not required
           to appeal a Rule 307(a)(1) interlocutory order in order to preserve later review of that
           order. Rule 307(a)(1) provides only that an appeal ‘may’ be taken from an interlocutory
           order that grants a motion to compel arbitration or to stay the proceedings. [Citation.] As a
           rule of statutory construction, the word ‘may’ is permissive or discretional as opposed to
           mandatory. [Citations.] Because Rule 307(a)(1) does not require a party to appeal the
           interlocutory order, a reviewing court may still review the merits of that order after a final
           judgment in the case is rendered and appealed from. [Citations.]”
       We declined to follow the contrary line of decisions, which included Hwang. We remarked
       that those decisions “neither considered the plain language of Rule 307(a) nor interpreted that
       language in accordance with accepted rules of statutory construction.” Id. at 136.



                                                     -5-
¶ 24       Later, in Salsitz v. Kreiss, 311 Ill. App. 3d 590, 593 (2000), the First District noted
       Anderson’s disagreement with Hwang but continued to adhere to Hwang’s view of Rule
       307(a). However, the supreme court in Salsitz resolved the inter-district disagreement by
       adopting Anderson’s construction of Rule 307(a). See Salsitz v. Kreiss, 198 Ill. 2d 1, 11-12
       (2001). The supreme court said:
               “The optional nature of Rule 307 is manifest from the language it employs. Rule 307
           plainly states that an appeal ‘may’ be taken to the appellate court from an interlocutory
           order of the circuit court. Use of the word ‘may’ is generally regarded as indicating that
           action is permissive rather than mandatory. [Citation.] There is no basis for construing the
           term differently here.” Id.
¶ 25       While the First District itself later recognized the supreme court’s abrogation of Hwang
       (see Banco Popular North America v. Gizynski, 2015 IL App (1st) 142871, ¶ 43), our decision
       in Bradford mentioned neither this court’s earlier departure from Hwang in Anderson, nor,
       more importantly, the supreme court’s abrogation of Hwang and Battaglia. In light of the
       supreme court’s decision in Salsitz, we hold that defendants’ failure to take an immediate
       appeal from the injunctive order entered in November 2014 did not render that order the law of
       the case in this appeal.
¶ 26       We move to defendants’ contentions. First, they claim that the injunction entered in
       November 2014 lapsed before the activities in June 2015 on which the court based the finding
       of contempt. We disagree.
¶ 27       Under Illinois law, there are three types of injunctive relief: a TRO, a preliminary
       injunction, and a permanent injunction. Mister v. A.R.K. Partnership, 197 Ill. App. 3d 105, 110
       (1990). TROs can be entered with notice or without notice. See Jurco v. Stuart, 110 Ill. App.
       3d 405, 408-09 (1982). Section 11-101 of the Code (735 ILCS 5/11-101 (West 2014)) permits
       a TRO to issue without notice but subjects such an order to a 10-day limit. Specifically, section
       11-101 states that a TRO entered without notice
           “shall expire by its terms within such time after the signing of the order, not to exceed 10
           days, as the court fixes, unless within the time so fixed the order, for good cause shown, is
           extended for a like period or unless the party against whom the order is directed consents
           that it may be extended for a longer period. The reasons for the granting of the extension
           shall be stated in the written order of the court. In case a temporary restraining order is
           granted without notice, the motion for a preliminary injunction shall be set for hearing at
           the earliest possible time and takes precedence over all matters except older matters of the
           same character; and when the motion comes on for hearing the party who obtained the
           temporary restraining order shall proceed with the application for a preliminary injunction
           and, if he or she does not do so, the court shall dissolve the temporary restraining order.”
           Id.
       Where a TRO is entered with notice, the 10-day rule of section 11-101 does not apply. Kable
       Printing Co. v. Mount Morris Bookbinders Union Local 65-B, 63 Ill. 2d 514, 521 (1976);
       Jurco, 110 Ill. App. 3d at 409. For that situation, courts have developed the rule that, if the
       TRO was issued with notice yet without a hearing, then a hearing must be held within a “short
       time” after expiration of the 10-day period, “so as to prevent the potential significant
       consequences of only a summary proceeding to exist more than a short period of time.” Jurco,
       110 Ill. App. 3d at 409. “To allow a temporary restraining order of unlimited duration is to


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       have a preliminary injunction [citation] without giving the one party a fair opportunity to
       oppose the application and to show[,] if he can[,] why an injunction should not issue.” Id.
¶ 28       The situation is altogether different, however, where a TRO is issued after both notice and
       a hearing. In that case, the TRO is the functional equivalent of a preliminary injunction. Mister,
       197 Ill. App. 3d at 110 (“Where *** the defendant is afforded notice and a hearing, there is no
       practical difference in results between a temporary restraining order and a preliminary
       injunction.” (citing Kable, 63 Ill. 2d at 524)); see 735 ILCS 5/11-102 (West 2014) (“No court
       or judge shall grant a preliminary injunction without previous notice of the time and place of
       the application having been given the adverse party.”). TROs and preliminary injunctions
       require the same elements of proof (see County of Du Page v. Gavrilos, 359 Ill. App. 3d 629,
       634 (2005); Jacob v. C&M Video, Inc., 248 Ill. App. 3d 654, 664 (1993)) but have different
       purposes and, correspondingly, different durational limits. A TRO
           “is a drastic remedy which may issue only in exceptional circumstances and for a brief
           duration. [Citation.] The purpose of a temporary restraining order is to preserve the status
           quo until the court can conduct a hearing to determine whether it should grant a
           preliminary injunction.” (Emphases added.) American Federation of State, County &
           Municipal Employees v. Ryan, 332 Ill. App. 3d 965, 966 (2002).
       By contrast, “ ‘[a] preliminary injunction *** is not necessarily of extremely brief duration
       since its primary purpose is to provide relief to an injured party and maintain the status quo
       until a trial on the merits.’ ” New York Life Insurance Co. v. Sogol, 311 Ill. App. 3d 156, 159
       (1999) (quoting Bullard v. Bullard, 66 Ill. App. 3d 132, 135 (1978)). Thus, another hallmark of
       a preliminary injunction besides notice and a hearing is the lack of a definite duration for the
       injunctive relief. See Peoples Gas Light & Coke Co. v. City of Chicago, 117 Ill. App. 3d 353,
       356 (1983) (citing Kable, 63 Ill. 2d at 524).
¶ 29       Defendants believe that the trial court’s failure to schedule a hearing in the months
       following the issuance of the November 2014 injunctive order caused that order to expire.
       Defendants rely on the mandate in Jurco and later cases that where an injunction is issued in a
       “summary proceeding,” i.e., without a hearing, the trial court must schedule a hearing shortly
       after expiration of the 10-day period following the injunction. Jurco, 110 Ill. App. 3d at 409. In
       this case, however, the injunctive order was issued after both notice and a hearing. Thus, the
       concerns in Jurco were satisfied. Though this fact suffices to defeat defendants’ narrow
       contention, we add that the November 2014 order is more appropriately seen as a preliminary
       injunction than a TRO because it was issued after both notice and a hearing and had no
       durational limit. Notably, the trial court appeared to waver in its view of the order. While the
       court mostly described the order as a TRO, the court at one point mentioned that the next
       hearing would be to adjudicate plaintiff’s complaint and determine whether a permanent
       injunction should issue. Also, in the months following the issuance of the injunctive order, the
       court did not take the initiative to schedule a further hearing on injunctive relief, which was
       consistent with a view of the order as a preliminary injunction designed to maintain the status
       quo until trial. See Gallaher v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 24 (the character and
       effect of an order is determined by its substance, not its label). Whatever the proper
       characterization of the order, however, defendant’s narrow contention based on Jurco fails.
¶ 30       Defendants’ second contention on appeal is that their activities did not violate the trial
       court’s November 2014 injunctive order. First, defendants argue that the order was deficient


                                                   -7-
       because it did not particularly describe the conduct enjoined. Defendants cite section 11-101 of
       the Code (735 ILCS 5/11-101 (West 2014)), which states in relevant part:
           “Every order granting an injunction and every restraining order shall set forth the reasons
           for its entry; shall be specific in terms; shall describe in reasonable detail, and not by
           reference to the complaint or other document, the act or acts sought to be restrained; and is
           binding only upon the parties to the action, their officers, agents, employees, and attorneys,
           and upon those persons in active concert or participation with them who receive actual
           notice of the order by personal service or otherwise.”
       Thus, “ ‘an injunction order cannot support a finding of contempt unless it sets forth with
       certainty, clarity and conciseness precisely what actions are enjoined.’ ” People ex rel. City of
       Chicago v. Le Mirage, Inc., 2013 IL 113482, ¶ 66 (quoting O’Leary v. Allphin, 64 Ill. 2d 500,
       513-14 (1976)).
¶ 31       Defendants are correct that the acts enjoined are not described in the November 2014
       memorandum and are at best inferable from the documents (such as Bliss’s affidavit)
       referenced in the memorandum. The trial court, however, cannot fulfill the specificity
       requirement of section 11-101 by making reference to “the complaint or other document.” 735
       ILCS 5/11-101 (West 2014).
¶ 32       This does not mean that defendants prevail. The November 2014 memorandum alludes to
       other pronouncements from the trial court that might potentially have satisfied section 11-101.
       The court referenced “oral rulings” that it made at the November 13 hearing on plaintiff’s
       motion for injunctive relief. The court stated that the memorandum was meant to explain the
       basis for those rulings. This suggests that the memorandum was a supplement to, rather than a
       restatement of, those rulings. A trial court’s oral and written pronouncements together
       constitute the “order granting an injunction” for purposes of section 11-101. See Televation
       Telecommunication Systems, Inc. v. Saindon, 169 Ill. App. 3d 8, 20 (1988) (consulting “[t]he
       court’s oral injunction order, from which the written order was drafted,” in determining
       whether the court described the enjoined actions with adequate specificity). Defendants,
       however, have not supplied us with a report of proceedings of the November 13 hearing. As the
       appellants before us, defendants had the duty to provide this court with a sufficient record of
       the trial court proceedings to support their claims of error. See Foutch v. O’Bryant, 99 Ill. 2d
       389, 391 (1984). We resolve against defendants any doubts arising from an incomplete record.
       Id. at 392. Due to defendants’ omission, we do not know the “oral rulings” that the trial court
       made at the November 13 hearing and, further, whether they satisfied the specificity
       requirement of section 11-101. See In re Marriage of Lindsey-Robinson, 331 Ill. App. 3d 261,
       266 (2002) (where the respondent claimed on appeal that the trial court employed faulty
       reasoning during its oral ruling approving a qualified domestic relations order, Foutch applied
       because the respondent failed to provide a report of proceedings of the hearing). Consequently,
       we resolve this issue against defendants and reject their claim of error.
¶ 33       Defendants’ other challenge to the contempt order assumes, in tension with their first
       challenge, that the injunctive order is specific enough for us to determine whether it was in fact
       violated. Here defendants argue that their activities of loading aggregate, as observed by Bliss,
       did not contravene the terms of the injunctive order. We are unable to resolve this contention.
       As noted, we do not have a full record of the injunctive order because defendants have failed to
       provide a report of proceedings of the November 13 hearing where the trial court made “oral
       rulings” for which it later provided a written rationale. As we must resolve against defendants

                                                   -8-
       any doubts arising from a gap in the record on appeal (see Foutch, 99 Ill. 2d at 392), we reject
       this claim of error, too.

¶ 34                                    IIII. CONCLUSION
¶ 35      For the foregoing reasons, we affirm the judgment of the circuit court of Boone County.

¶ 36      Affirmed.




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