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Boone v. Plote Construction, Inc.

Court of Appeals of Illinois, Second District

March 28, 2017

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

         Appeal from the Circuit Court of Boone County. No. 14-CH-170 Honorable C. Robert Tobin III and Philip J. Nicolosi, Judges, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

          OPINION

          BIRKETT JUSTICE

         ¶ 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 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, 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 ...


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