Newport Township Road District v. Pavelich

ILLINOIS OFFICIAL REPORTS
Appellate Court
Newport Township Road District v. Pavelich, 2012 IL App (2d) 111317
Appellate Court NEWPORT TOWNSHIP ROAD DISTRICT and DANIEL DZIEKAN,
Caption in His Official Capacity as the Newport Township Highway
Commissioner, Plaintiffs-Appellees, v. GEORGE PAVELICH, in His
Official Capacity as the Supervisor of Newport Township and the
Treasurer of the Newport Township Road District; NEWPORT
TOWNSHIP; RICHARD GALGAN and BETH HARTFORD, in Their
Official Capacities as Newport Township Trustees; and DEBORAH
SPURGEON, in Her Official Capacity as Newport Township Clerk and
Newport Township Road District Clerk, Defendants-Appellants
(Katherine Newyear and Michael Gallagher, Defendants).
District & No. Second District
Docket No. 2-11-1317
Filed November 19, 2012
Held Plaintiff township highway commissioner was justified in retaining
(Note: This syllabus independent counsel to represent him in his action against the township
constitutes no part of and its officials and trustees seeking the adoption of a budget for the road
the opinion of the court district and payment of counsel’s fees by the allocation of funds from the
but has been prepared road district, since the representation of the highway commissioner by the
by the Reporter of township’s legal counsel would “present a direct or potential conflict of
Decisions for the interest.”
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Lake County, No. 11-MR-1391; the
Review Hon. Christopher C. Starck, Judge, presiding.
Judgment Affirmed.
Counsel on Robert J. Long, of Daniels, Long & Pinsel, LLC, of Waukegan, for
Appeal appellants.
Keri-Lyn J. Krafthefer, Thomas G. DiCianni, and David L. Ader, all of
Ancel Glink Diamond Bush DiCianni & Krafthefer, PC, of Chicago, for
appellees.
Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Schostok and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendants appeal the trial court’s order that the Newport township board allocate funds
from the road district’s budget for payment of plaintiffs’ legal fees. On appeal, defendants
argue that: (1) the trial court erred by denying their motion to dismiss; (2) the Newport
Township highway commissioner was not justified in retaining independent counsel; (3)
there is no authority for ordering a township board to review a petition for attorney fees and
to establish a budget item to pay the fees; (4) plaintiffs were not entitled to fees springing
from a lawsuit filed in 2009; and (5) the township board is vested with exclusive discretion
in annual budgetary matters involving the road district. We affirm.
¶2 I. BACKGROUND
¶3 The plaintiffs in this case are as follows: the Newport Township road district (Road
District), which was created pursuant to and operates under the Illinois Highway Code (605
ILCS 5/6-101 et seq. (West 2010)); and Daniel Dziekan (the Highway Commissioner), the
highway commissioner of the Road District.
¶4 The defendants in this case are as follows: Newport Township (the Township), which
was created pursuant to and operates under the Illinois Township Code (60 ILCS 1/1-1 et
seq. (West 2010)); George Pavelich (Township Supervisor), township supervisor and the
treasurer of the Road District; Richard Galgan, Katherine Newyear, Beth Hartford, and
Michael Gallagher (collectively, the Township Trustees); and Deborah Spurgeon, the
Township clerk and the Road District clerk. The Township Supervisor and the Township
Trustees comprise the Newport Township board (the Township Board).
¶5 On August 1, 2011, plaintiffs filed a seven-count complaint against defendants, asking
the trial court to compel defendants to pass the Road District’s budget for fiscal year 2011-12
and to process the Highway Commissioner’s warrants for funds from the Road District’s
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budget to pay plaintiffs’ attorney fees related to this case and to a lawsuit the Township filed
against the Highway Commissioner in 2009.
¶6 The counts were titled as follows: (I) “Temporary Restraining Order, Preliminary and
Permanent Injunction to Compel Township and Trustees to Adopt the Road District’s
Budget”; (II) “Mandamus To Compel the Township Supervisor and Trustees to Approve the
Road District’s Budget”; (III) “Temporary Restraining Order, Preliminary and Permanent
Injunction To Compel Township Board To Approve and Pay Road District’s Bills and
Employee’s Salaries”; (IV) “Mandamus to Compel the Township Supervisor and Trustees
to Approve and Pay the Road District’s Bills and Employee’s Salaries”; (V) “Declaratory
Judgment That Highway Commissioner Can Hire an Attorney of His Choice To Represent
Him and the Road District In Issues In Which He Has a Conflict With the Township That the
Township Board Must Approve Payment of Those Attorneys From Road District Funds”;
(VI) “Declaratory Judgment that the Road District Can Enter Into Intergovernmental
Agreement Without Township Board Approval”; and (VII) “Declaratory Judgment That the
Township Board Must Approve the Payment of the Highway Commissioner’s Past Legal
Fees From the Road District Funds.”
¶7 Plaintiff also filed a motion for a temporary restraining order and preliminary and
permanent injunctions that essentially address the same issues contained in their complaint.
After the close of plaintiffs’ case at a hearing on their motion, defendants moved for
dismissal of the motion.
¶8 On September 7, 2011, the trial court denied defendants’ motion to dismiss plaintiffs’
motion and ordered the parties to mediation. The parties resolved all matters except for the
issues involving attorney fees. On October 11, 2011, the trial court entered an order
memorializing the parties’ agreement; ordered a briefing schedule on the remaining issues;
and set a date for a hearing. The order limited the issues to “Counts V and VII and the
attorney fees components of Count I-IV.”
¶9 The trial court’s written order, dated December 13, 2011, states the following:
“This cause coming to be heard on the remaining issues in Plaintiffs’ verified
complaint, the issues having been fully briefed, the Court having considered arguments
by counsel, IT IS HEREBY ORDERED THAT:
1. The Township Board is ordered to allocate sufficient funds in the Road District’s
budget for legal fees related to this matter.
2. The Township Board shall approve the payment of the Plaintiffs’ legal fees related
to this matter from the Road District budget [and] shall do so in the normal manner for
processing Road District warrants.
3. The Township Board shall put sufficient funds in the Road District’s budget for
Dziekan’s legal fees from the 2009 lawsuit [and] shall approve the payment of same in
the normal manner for processing Road District warrants.
***
7. This is a final and appealable order and resolves all issues in this case and no just
reason exists to prevent enforcement or appeal of this order.”
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¶ 10 On December 21, 2011, defendants filed a timely notice of appeal.
¶ 11 II. ANALYSIS
¶ 12 Initially, we address defendants’ various arguments that the trial court erred by denying
their motion to dismiss. After the trial court denied defendants’ motion to dismiss, the parties
successfully mediated and settled all issues raised in this litigation except for those involving
attorney fees. Defendants do not argue that the settlement is invalid and did not file with the
trial court a motion seeking to void the settlement. Thus, defendants have forfeited all
arguments relating to all issues except for those related to attorney fees, which we address
below.
¶ 13 Defendants argue that the Highway Commissioner was not justified in retaining
independent counsel.
¶ 14 Plaintiffs’ complaint alleged that the Highway Commissioner had the right to hire legal
counsel to represent both the Highway Commissioner and the Road District, pursuant to
section 6-201.19 of the Highway Code (605 ILCS 5/6-201.19 (West 2010)).
¶ 15 The primary rule of statutory interpretation and construction is to ascertain the intent of
the legislature. Wisnasky-Bettorf v. Pierce, 2012 IL 111253, ¶ 16. The most reliable indicator
of legislative intent is the language of the statute, which must be given its plain and ordinary
meaning. 100 Lake, LLC v. Novak, 2012 IL App (2d) 110708, ¶ 12. Statutes should be
construed, if possible, so that no term is rendered superfluous or meaningless. People v.
Jackson, 2011 IL 110615, ¶ 12.
¶ 16 The Highway Code provides that “[t]he highway commissioner of each road district”
(605 ILCS 5/6-201 (West 2010)) has:
“[the] authority to hire legal counsel to perform legal functions for road districts where
performance of such functions by the public official who would otherwise represent the
highway commissioner would present a direct or potential conflict of interest.”
(Emphasis added.) 605 ILCS 5/6-201.19 (West 2010).
¶ 17 The meaning of section 6-201.19 is not difficult to understand. In this case, defendants’
counsel is the “public official who would otherwise represent” the Highway Commissioner
and the Road District. Thus, the plain and ordinary language of the statute granted the
Highway Commissioner the authority to hire legal counsel if defendants’ counsel presented
“a direct or potential conflict of interest.” See id. Defendants argue that there was no conflict
of interest.
¶ 18 Whether an attorney’s representation constituted a per se conflict of interest is an issue
of law, which we review de novo. In re Tamera W., 2012 IL App (2d) 111131, ¶ 35.
¶ 19 The Highway Code does not define “conflict of interest.” However, Rule 1.7 of the
Illinois Rules of Professional Conduct (eff. Jan. 1, 2010) provides:
“(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
(1) the representation of one client will be directly adverse to another client; or
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(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph
(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed consent.” (Emphases added.)
Comment 17 explains:
“Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional
interest in vigorous development of each client’s position when the clients are aligned
directly against each other in the same litigation or other proceeding before a tribunal.
Whether clients are aligned directly against each other within the meaning of this
paragraph requires examination of the context of the proceeding.” (Emphasis added.) Ill.
Rs. Prof. Conduct R. 1.7 cmt. 17 (eff. Jan. 1, 2010).
¶ 20 Defendants argued during oral argument that the conflict, if any, arose only when
plaintiffs filed their complaint against defendants. The trial court found that there was a
conflict “from the very beginning when the budget was not approved and no monies were
given to the Road District to pay for anything.” Therefore, the trial court decided that the
Highway Commissioner was entitled to retain counsel. The record supports the trial court’s
finding. The record indicates that the Highway Commissioner submitted a budget for the
Road District in a timely manner, seeking $846,130 in appropriations. However, the
Township Board did not pass the Road District’s 2011-12 budget by the statutory deadline.1
Subsequently, the Highway Commissioner submitted a second budget, seeking $713,766 in
appropriations. In response, the Township Supervisor wrote the Highway Commissioner,
rejecting the second budget. The Township Supervisor stated that it was too late to adopt the
second budget, because the budget had to be adopted within or before the first quarter of the
fiscal year and the Township was already in its second quarter. The Township Supervisor
warned, “without a budget, and with no ability to spend for fuel or rent, your employees will
end up on furlough with no pay since they will have no work to perform and no resources to
work with.” The Township Supervisor stopped paying the Road District’s bills and salaries,
1
Section 6-501(c) of the Highway Code provides that “on or before the last day of the first
quarter of the [township’s] fiscal year” the “township board *** shall adopt the tentative budget and
appropriation ordinance or any part as the board of trustees deem necessary.” 605 ILCS 5/6-501(c)
(West 2010). The Highway Commissioner timely filed a tentative budget and appropriation
ordinance. However, the Township Board refused to pass the tentative budget or any part of the
budget. The last day of the Township’s fiscal year was May 31, 2011.
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effectively shutting down the Road District’s operations. Subsequently, the Highway
Commissioner retained outside counsel to institute the instant litigation. Because plaintiffs’
and defendants’ interests were aligned directly against each other in the same litigation, a
clear concurrent conflict existed. Thus, the Highway Commissioner had the authority to hire
counsel to represent plaintiffs in this matter pursuant to section 6-201.19 of the Highway
Code. Accordingly, the trial court properly found that the Highway Commissioner was
justified in retaining independent counsel. See 605 ILCS 5/6-201.19 (West 2010).
¶ 21 Defendants argue that no conflict of interest existed. Such an argument ignores reality
and the clear language of Rule 1.7 of the Illinois Rules of Professional Conduct (eff. Jan. 1,
2010), which states in pertinent part:
“Rule 1.7: Conflict of Interest: Current Clients
(a) *** A concurrent conflict of interest exists if:
***
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.”
Defendants cite Franks v. Township of Riley, 50 Ill. App. 3d 99 (1977), to support their
position. However, Franks is not remotely similar to this case because, in Franks, there
clearly was no conflict between the township and the highway commissioner giving rise to
the need for separate counsel. Id. at 101. Further, we stated in Franks that situations may
arise where a conflict does exist. Id. at 100-01. Thus, defendants’ citation to Franks
undermines the credulity of their position.
¶ 22 In Franks, the Riley Township highway commissioner retained the plaintiff, a law firm,
to attend Riley Township board meetings. Id. at 100. Because the defendant, Riley Township,
already had an attorney, it refused to pay the plaintiff’s legal fees, and the plaintiff filed suit
against the defendant for payment. Id. The trial court granted the defendant’s motion to
dismiss. Id. On appeal, we initially noted that the Highway Code did not contain a specific
provision granting the highway commissioner the authority to hire legal counsel. Id.2 Despite
the lack of specific authority contained in the Highway Code, we “recognize[d] that
situations *** of conflicting positions may arise between the township and the highway
commissioner which would require that each receive independent advice and counsel.” Id.
at 100-01. However, we affirmed the trial court’s dismissal of the plaintiff’s complaint
because:
“The legal services [performed by the plaintiff] consisted of attending township
meetings, preparing legal opinions, conducting correspondence, and advising the
highway commissioner in his official capacity. *** [T]he record is devoid of any hint that
the positions of the highway commissioner and the township were in any way conflicting
during the period when these services were rendered.” (Emphasis added.) Id. at 101.
2
Franks was decided before the General Assembly amended the Highway Code to grant
highway commissioners the authority to hire counsel, pursuant to section 6-201.19.
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In addition, this court limited its holding to the specific facts of the case, stating:
“Therefore, we specifically do not find that a highway commissioner is without
authority to hire legal counsel. Under the facts disclosed in this case it does not appear
that it was necessary for him to do so in order to carry out the duties and functions of his
office.” Id.
¶ 23 Unlike in Franks, the positions of the Highway Commissioner and the Township were
clearly conflicting. The Township refused to pass the Roadway District’s 2011-12 budget,
causing a complete shutdown. Thus, plaintiffs commenced the instant action. In contrast to
Franks, the Highway Commissioner and the Township were involved in litigation against
each other. The facts and ratio decidendi (reason for deciding a case) of Franks are so clearly
distinguishable from this case that defendants’ citation of Franks to support their argument
raises doubts about their credibility. See People v. Trimarco, 364 Ill. App. 3d 549, 556
(2006) (McLaren, J., dissenting).
¶ 24 Next, defendants argue that the trial court had no authority to order the Township Board
to review a petition for attorney fees and to establish a budget item to pay the fees.
Defendants argue that there is no legal mechanism supporting “this fee petition and the
court’s order.” Plaintiffs argue that defendants have mischaracterized the trial court’s order
as granting a fee petition. We agree with plaintiffs.
¶ 25 The trial court did not order the Township to pay plaintiffs’ attorney fees and it did not
grant an attorney fee petition; plaintiffs did not file one. Rather, the trial court’s written order
states:
“2. The Township Board shall approve the payment of the Plaintiffs’ legal fees
related to this matter from the Road District’s budget [and] shall do so in the normal
manner for processing Road District warrants.”
¶ 26 The relief granted arose from the attorney-fee components of counts I through IV and V
of plaintiffs’ complaint. Counts I through IV sought an order to compel defendants to adopt
the Road District’s 2011-12 budget and to pay plaintiffs’ attorney fees and costs in relation
to this lawsuit, out of the Road District’s funds. Thus, the trial court did not order the
Township to pay plaintiffs’ attorney fees; rather, it ordered plaintiffs’ attorney fees to be paid
out of the Road District’s funds.
¶ 27 Defendants argue, again, that because there was no conflict of interest, plaintiffs were not
entitled to retain an attorney. Because we have already decided this issue, we will not revisit
it.
¶ 28 Defendants also argue that the Township board of trustees has no expertise in
determining what fees are reasonable or necessary. The Township and the Township board,
having retained counsel in their official capacities, should be able to discern what is
reasonable. If it cannot be resolved amicably, then further fees may be incurred. This is what
the trial court meant when it said in paragraph three of the order, “The Township Board ***
shall approve the payment of same in the normal manner for processing Road District
warrants.”
¶ 29 In addition, defendants argue that the trial court improperly intruded into the legislative
arena in violation of the separation-of-powers doctrine. Defendants cite Moore v. Grafton
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Township Board of Trustees, 2011 IL App (2d) 110499, to support their argument. However,
Moore is distinguishable from the case at bar. In Moore, the township supervisor sought an
injunction directing the township board of trustees to confirm the township supervisor’s
nominee for township attorney. Id. ¶ 1. The trial court granted the injunction. Id. ¶ 2. This
court reversed the trial court, holding that the injunction violated the statute governing the
appointment process, because the injunction deprived the board of its right to confirm the
nominee. Id. ¶ 4. This court also held that the injunction violated the separation-of-powers
doctrine because the controlling statute did not contain clear criteria for the court to resolve
the board’s decision to refuse to confirm the nominee. Id. ¶¶ 5, 6.
¶ 30 The statute at issue in this case provides clear legal criteria to resolve the issue. A
highway commissioner is entitled to legal counsel if counsel who would otherwise represent
him would present a direct or potential conflict of interest. 605 ILCS 5/6-201, 6-201.19
(West 2010). The legislature did not grant defendants any decision-making power to
conclusively determine whether a commissioner is entitled to legal counsel. Thus, the trial
court’s decision did not violate the separation-of-powers doctrine, and Moore is not
controlling here.
¶ 31 Defendants also argue that “plaintiffs were not entitled to fees springing from the 2009
lawsuit.” To support their argument, defendants note:
“There was no reference in the caption [in the 2009 case] to the official capacity of Mr.
Dziekan [the Highway Commissioner]. The lawsuit was not brought against the office
of the Newport Township Highway Commissioner.”
Thus, according to defendants, the Highway Commissioner was not sued in his official
capacity and, therefore, was not entitled to independent counsel.
¶ 32 In 2009 the Township filed a complaint alleging that the Highway Commissioner had
been unjustly enriched because the Township mistakenly reimbursed the Highway
Commissioner for mileage, due to the Township clerk’s processing errors. During the course
of the 2009 case, the Township Board adopted a resolution wherein the Road District
reimbursed the Township for the Highway Commissioner’s mileage and stated that the
Highway Commissioner “was properly entitled to be reimbursed” for his mileage.
Subsequently, the trial court granted the Highway Commissioner’s motion to dismiss,
“finding that the Township has been fully reimbursed for the damages it sought in its
complaint.”
¶ 33 We determine that, because the Township acknowledged that the Highway
Commissioner was entitled to be reimbursed for the mileage, it acknowledged that he was
acting in his official capacity as Highway Commissioner when he sought reimbursement.
Therefore, contrary to defendants’ claim that any judgment was against the Highway
Commissioner in his individual capacity, it was not, and the Highway Commissioner had the
authority to hire legal counsel because representation by the Township’s counsel would have
presented a concurrent conflict of interest. See 605 ILCS 5/6-201.19 (West 2008).
Accordingly, the trial court did not err by ordering the Township Board to put sufficient
funds in the Road District’s budget for the Highway Commissioner’s legal fees from the
2009 lawsuit and approve the payment of such fees.
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¶ 34 Defendants also argue that the trial court’s order is erroneous because, in the 2009 case,
the Highway Commissioner waived any request for attorney fees. Again, this is a
mischaracterization. Defendants fail to recognize that the Highway Commissioner waived
attorney fees being paid by the Township. But the Highway Commissioner did not waive
attorney fees being paid from the Road District’s funds. Because the trial court essentially
ordered the Highway Commissioner’s attorney fees from the 2009 lawsuit to be paid out of
the Road District’s funds, defendants’ waiver argument is sophistry.
¶ 35 In addition, defendants note that Illinois follows the American rule, by which parties pay
their own legal fees, rather than the English system, where the loser pays the attorney fees
of the winner. However, plaintiffs are not seeking payment of fees from defendants as either
winners or losers. Plaintiffs are seeking payment from the Road District’s funds. The waiver
of fees consistent with the American rule does not constitute a waiver of reimbursement
under the Highway Code. Because the Highway Commissioner was sued in his official
capacity, payment of fees would come out of the Road District’s funds.
¶ 36 Defendants also argue that the Township Board is vested with exclusive discretion in
annual budgetary matters involving the Road District. Defendants cite the following part of
section 6-501(c)3 of the Highway Code:
“The township board of trustees or highway board of trustees, as the case may be, at the
public hearing shall adopt the tentative budget and appropriation ordinance, or any part
as the board of trustees deem necessary.” (Emphasis added.) 605 ILCS 5/6-501(c) (West
2010).
¶ 37 Defendants argue that the word “shall” in the annual budget provision of section 6-501(c)
is permissive, not mandatory. Therefore, defendants contend, the Township Board does not
have to adopt an entire budget and the trial court acted beyond its jurisdiction over both the
parties and the subject matter.
¶ 38 Nothing in section 6-501 addresses legal fees. Rather, section 6-501 addresses the
“decline in [the ability of townships and road districts] to maintain or improve roads and
bridges in a safe condition to permit the normal and ordinary use of [the state’s] highway
system.” 605 ILCS 5/6-501(a)(2) (West 2010). Further, section 6-501(c) provides:
“[T]he township board of trustees or highway board of trustees or road district
commissioner, as the case may be, shall levy and certify to the county clerk the amount
necessary to be raised by taxation for road purposes and the road district commissioner
shall levy and certify to the county clerk the amount necessary to be raised by taxation
for the salaries of elected road district officials in the road district, as determined by the
highway commissioner.” (Emphases added.) 605 ILCS 5/6-501(c) (West 2010).
¶ 39 To the extent that defendants’ argument might relate to legal fees, defendants ignore that
section 6-201.19 of the Highway Code expressly grants the highway commissioner of each
road district the authority to hire legal counsel when representation by the township’s legal
3
Defendants provide an incorrect citation to the Highway Code. Defendants quote section
6-501(c) of the Code but provide a cite to a section that does not exist, section “601(c).” Thus, we
presume that defendants intended to cite section 6-501(c) of the Code.
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counsel would “present a direct or potential conflict of interest.” 605 ILCS 5/6-201.19 (West
2010).
¶ 40 Words and phrases should not be considered in isolation but should be interpreted in light
of other relevant provisions and the statute as a whole. Jackson, 2011 IL 110615, ¶ 12. In
addition, each part of a statute must be given effect and should not be rendered meaningless
or superfluous. Id.
¶ 41 Defendants’ interpretation of section 6-501(c) considers the word “shall” in isolation and
renders meaningless and superfluous the other portions of section 6-501 and the express
authority granted to the Highway Commissioner in section 6-201.19. In addition, defendants’
argument violates another fundamental rule of statutory construction. A statutory provision
addressing a specific subject controls over a general statutory provision, and the specific
provision should be applied. Clarke v. Community Unit School District 303, 2012 IL App
(2d) 110705, ¶ 29. Thus, defendants’ argument fails because their interpretation not only
allows the general provision to prevail over the specific provision, but also abrogates the
specific provision.
¶ 42 Even if we were to accept the claim that the general provision addressed fees, we would
read these provisions in pari materia and would come to the same conclusion. A basic
principle of statutory construction is to view two statutory provisions that address the same
subject with reference to one another to give them harmonious effect. Citizens Opposing
Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 24. Assuming, arguendo, that the
general provision requires a highway commissioner to include legal fees in the budget and
obtain approval from the board of trustees, it does not follow that there are no exceptions to
this rule. Rather, the specific and general provisions can be read in pari materia and given
harmonious effect by applying the specific provision only in instances in which there is a
conflict of interest, as in this case. Therefore, the trial court did not err by ordering the
Township Board to allocate Road District funds for payment of plaintiffs’ legal fees for this
case and the 2009 lawsuit.
¶ 43 III. CONCLUSION
¶ 44 The judgment of the circuit court of Lake County is affirmed.
¶ 45 Affirmed.
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