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    JUDY FITCHIE et al., Plaintiffs-Appellees, v. RICHARD YURKO, Defendant-Appellant (Illinois Lottery Commission, Defendant).
    Second District
    No. 2—90—0813
    Opinion filed April 12, 1991.

      REINHARD, P.J., dissenting.
    Mary E. Haglund, of Kovitz, Shifrin & Waitzman, of Arlington Heights (Vincent A. Lavieri, of counsel), for appellant.
    Edward F. Diedrich, of Law Offices of Edward F. Diedrich, of De Kalb, and Robert A. Chapski, of Law Office of Robert A. Chapski, Ltd., of Elgin (Michael C. Doyne, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs, Judy Fitchie, Phyllis Huisel, and Frances Vincent, brought this action seeking a declaration of their rights to a $100,000 prize claimed by defendant, Richard Yurko, from the Illinois Department of the Lottery (Lottery). The trial court held that plaintiffs and defendant were entitled to equal shares of the prize money. Defendant contends on appeal that the court erred in that (1) the court lacked jurisdiction to hear the claim since plaintiffs failed to exhaust their administrative remedies, (2) plaintiffs were improperly allowed to amend their pleadings, (3) the court’s findings were inconsistent, and (4) the court’s decision was not supported by the evidence. We affirm.

The trial testimony revealed the following sequence of events. Plaintiff Phyllis Huisel and her husband, Robert, owned a combination service station and coffee shop, which they called Hitching-A-Ride, in Burlington. Phyllis operated the coffee shop, and, as a part of the coffee shop business, she sold lottery tickets. Defendant Yurko started coming into the coffee shop in November 1989 to have a cup of coffee or pancakes and to socialize. Sometimes Phyllis would play the lottery with Yurko. Phyllis indicated, but Yurko disputed, that they would share equally in any winnings even when only one of them supplied the money to buy lottery tickets. Plaintiff Judy Fitchie had known Phyllis for a number of years and sometimes helped her in the coffee shop. Judy was acquainted with Yurko only because she saw him occasionally at Hitching-A-Ride.

During the second or third week of February 1990 Phyllis and Judy were both in the coffee shop when Yurko came in and said he wanted to play the lottery. While there were inconsistencies between plaintiffs’ and defendant’s testimony, as well as minor differences even in the testimony of the various plaintiffs, it appears clear the following events occurred. Phyllis was behind the counter, waiting on customers. Judy, along with plaintiff Frances Vincent, was sitting at the counter. Yurko purchased lottery tickets which needed to have film scratched off the front of them in order to reveal whether a prize had been won. While Phyllis evidently took the money for the tickets, she allowed Yurko to take the tickets themselves from the box, where they were kept behind the counter. Yurko testified that he initially bought $100 worth of tickets, but all of the plaintiffs indicated that he first purchased only two $1 tickets, which he immediately scratched off. One of the two was a $5 winner, which he redeemed for five more tickets.

At some point Yurko asked Phyllis if she wanted to help him scratch the film off the tickets, but Phyllis suggested that he ask Judy to help because she was the luckier one. Subsequently Yurko placed a number of tickets in front of both Judy and Frances and invited them to help him scratch them off. Yurko had not previously met Frances and was not formally introduced to her on the day in question. While Yurko repeatedly denied it, all three plaintiffs testified that Yurko indicated to them that if they would help him scratch off the lottery tickets they would be his partners and would share in any winnings which resulted from those tickets. After playing for some time, Judy uncovered three television sets and announced that she had a winner. At the time, the parties were playing the Fortune Hunt lottery game, and the ticket scratched by Judy gave the owner a chance to compete for a $100,000 prize.

The back of the Fortune Hunt tickets had a line for the name, address, and phone number of the ticket holder. Completed tickets were to be mailed to the Lottery. On Thursdays, 100 tickets were drawn from all of the winning tickets which had been mailed in. From those 100 tickets, six were drawn on the Lottery television show on Saturday, and those six ticket owners would be the contestants on the television show the following week. The grand prize in the Fortune Hunt game was $100,000, but other prizes were also awarded. There is indication in the record that a winning ticket holder would receive at least $1,500 if he appeared on the television show.

All of the plaintiffs gave very similar testimony as to what occurred after the winning ticket was scratched. Judy placed the ticket on the counter near Phyllis. Yurko urged Phyllis to fill it out, but she said she did not want to go on television. Yurko indicated he was willing to be on the television show, and, after some discussion, all the parties agreed that Yurko should be their representative and go on television. Yurko then printed “F.J.P. Rick Yurko, ’ ’. representing the first initial of each plaintiff and his own name, on the line provided on the back of the ticket for the name of the ticket holder. He also gave his address and phone number. According to Phyllis, when Yurko started filling out the ticket he told her he was going to put all of the plaintiffs’ initials and his name on the ticket and indicated once again that they would be partners no matter what they might win.

During the time Yurko and the plaintiffs were playing the lottery, Robert Huisel and Thomas Vincent, Frances’ husband, were having coffee in a booth in the coffee shop. Both spouses testified that after Judy declared she had a winner they heard Yurko ask the threé plaintiffs for their initials. He indicated he wanted to put their initials on the ticket because they were partners. Shortly afterwards, Frances and her husband left Hitching-A-Ride, and, while defendant may have bought more tickets, Phyllis and Judy essentially stopped playing. All of the plaintiffs admitted that they did not pay out of their own pockets for any of the lottery tickets that were purchased that day.

Yurko acknowledged that he placed plaintiffs’ initials on the back of the winning ticket. He said he did so because he wanted to remember who helped him scratch the ticket. Then, if he won, he could take them out to dinner or give them something for helping him. He indicated that he had uncovered and sent to the Lottery three similar tickets in the past, and the initials would identify the particular ticket involved here. He could not recall who scratched off the winning ticket, and he did not know why he placed plaintiffs’ initials on the same line with his name as opposed to some other part of the ticket.

Yurko subsequently mailed the ticket to the Lottery and it was one of the six tickets drawn on March 10, 1990. On March 11 Yurko stopped at Hitching-A-Ride to see the Huisels. Phyllis’ daughter, Sherry Payne, was there at the time. Sherry testified that Yurko gave her a nudge in the arm and said, “We are going to be rich.” She knew he was referring to the lottery because her mother had told her about the winning ticket. Phyllis also testified that she heard Yurko make the comment about all of them getting rich. She also said Yurko remarked that Judy would probably use her share to put a down payment on her house and that he was going to go to Las Vegas with his share. Yurko testified that he consulted an attorney regarding the ownership of the ticket about two days before he went on the television show.

The Lottery show on which Yurko appeared as a contestant was taped on March 16 and aired on the evening of March 17. Yurko won the $100,000 prize and placed only his own name on the claim form for the prize. Over the next several days plaintiffs tried unsuccessfully to reach Yurko. On March 22, 1990, they filed this suit, naming both Yurko and the Lottery as defendants. The complaint prayed for a declaration of rights as to the $100,000 lottery prize and sought damages for conversion of the prize money. Plaintiffs were granted a temporary restraining order to prevent the Lottery and Yurko from paying out or collecting on any claim to the prize. On April 2, pursuant to a court order, the Lottery deposited $77,000 with the clerk of the Kane County circuit court. The amount deposited represents the $100,000 lottery prize, minus applicable Federal and State taxes. The Lottery also interpleaded Yurko's wife, Penny Yurko, who was the plaintiff in a suit in De Kalb County seeking dissolution of her marriage to Richard Yurko. At the conclusion of the trial the court declared that plaintiffs and Richard Yurko were each entitled to an equal share of the lottery-prize and denied plaintiffs’ prayer for damages for conversion.

In this court Yurko initially raises a challenge to the jurisdiction of the trial court to hear this cause on the ground that plaintiffs failed to exhaust their administrative remedies. He argues that plaintiffs should have presented their claim to the Lottery before seeking the aid of the court. Defendant’s position cannot be sustained.

First of all, defendant relies on section 7.3 of the Lottery Act (Act) (Ill. Rev. Stat. 1989, ch. 120, par. 1157.3) for the proposition that the Act grants primary jurisdiction over matters relating to the Illinois lottery to the Elinois Department of Revenue and the Lottery Control Board. Section 7.3 provides for hearings upon complaints charging violations of the Act or regulations promulgated under the Act. However, there are no allegations in the instant case that the Act or any relevant regulations have been violated. Thus, section 7.3 is inapplicable.

Defendant next asserts that section 13 of the Act (Ill. Rev. Stat. 1989, ch. 120, par. 1163) provides that no prize awarded to a person shall be assignable. While this may be true, it is a nonissue in this case since no claim has been made that Yurko assigned any portion of the prize money to plaintiffs.

Finally, defendant contends that under section 19 of the Act (Ill. Rev. Stat. 1989, ch. 120, par. 1169) all claims for prizes from a lottery game must be made to the Department of the Lottery. While defendant correctly states the content of section 19, it is readily apparent the section is intended only to spell out the procedures to be followed when a lottery game involves the purchase of a physical lottery ticket and the ticket must be presented in order to claim a prize. Section 19 does not address multiple claims to ownership of a winning ticket.

Plaintiffs also respond to defendant’s exhaustion of remedies argument by pointing to a notice of adopted rules of the Department of the Lottery (Department), which they attached as an exhibit to their response to Yurko’s motion to dismiss for lack of jurisdiction. In the response plaintiffs refer to “the Adopted Rules of the Illinois Lottery, as distributed by counsel appearing on behalf of the Lottery Commission.” Defendant nowhere challenges plaintiffs’ reliance on appeal on the rules embodied in the exhibit or, for that matter, the authenticity of the exhibit itself. Accordingly, we will consider the notice of adopted rules (Rules) as contained in the trial court record.

Section 1770.160(d) of the Rules states that, when an otherwise valid ticket is submitted as a claim for payment and, before the claim is paid, the Department is put on notice that “ownership of the ticket is disputed by an adverse claimant alleging fraud, theft, loss, conversion or any other misappropriation of the ticket by the claimant of record,” the Department may withhold payment for 10 days. When an adverse claimant initiates a timely civil action in a circuit court, the Department must withhold payment of the prize “until an adjudication of the ownership has been rendered by the court.” Section 1770.160(d) further provides that in the event of such litigation the Department may interplead and pay the prize money into court. In our view this Rule, established by the Lottery itself, controls the issue raised by defendant. Nothing in section 1770.160(d) calls for adverse claims to be submitted to an administrative tribunal prior to taking action in court. In fact, the Rule appears to anticipate quick invocation of the aid of the court when it authorizes withholding of payment if a claimant’s action is begun “within ten working days from and after the Department has received notice of adverse claim.” Defendant’s position is not supported by the Lottery Act, and it is undercut by the Lottery Rules. We conclude that no administrative remedies were available to plaintiffs and the trial court, therefore, properly exercised jurisdiction over plaintiffs’ claim.

Yurko’s next contention is that the trial court abused its discretion by allowing plaintiffs, at the close of their case, to amend their complaint in order to conform it to the proofs they had presented. Specifically, defendant asserts that, while plaintiffs’ original complaint sought recovery on a conversion theory, the amended complaint sought recovery on a partnership theory. The record of the amendments, which were initially made verbally at the conclusion of plaintiffs’ case, does not support defendant’s characterization of the complaint as amended.

The Code of Civil Procedure specifically provides for amendment of pleadings at any time for the purpose of conforming the pleadings to the proofs. (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(c).) It is within the sound discretion of the trial court to decide whether to allow amendments after the evidence has been presented, and the court’s decision will not be disturbed absent a clear abuse of discretion. (Servbest Foods, Inc. v. Emessee Industries, Inc. (1980), 82 Ill. App. 3d 662, 673; Lawson v. Hill (1979), 77 Ill. App. 3d 835, 844-45.) Amendment of pleadings cannot be allowed where the amendment alters the nature of the proof required to defend (Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 165) or if the other party would be prejudiced or surprised (Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 866). Examination of the facts of this case in light of these principles reveals no abuse of discretion.

Plaintiffs initially sought both declaratory and damages relief on a theory of conversion. In order to establish their rights and sustain their claim, plaintiffs needed to plead facts showing, among other things, that they had an ownership interest in, and a right to possession of, the winning ticket. (See Illinois Education Association v. Illinois Federation of Teachers (1982), 107 Ill. App. 3d 686, 689 (setting forth the elements of conversion).) Plaintiffs attempted to make the requisite showing by relating facts which, if proved, would establish either that defendant gave the ticket to plaintiffs as a gift or that the parties had entered into an agreement whereby they were entitled to equal shares of any winnings. For the most part the amendments sought by plaintiffs merely expanded on these facts. More precisely, the amendments set forth more accurately and in greater detail the sequence of events surrounding the discovery of the winning ticket. The facts as amended were still directed only toward establishing a gift or an agreement for the purpose of showing plaintiffs’ interest in the ticket. Thus, what defendant calls a change in theory of recovery or, perhaps, addition of a new theory, is in reality merely part and parcel of the ownership element of plaintiffs’ claim.

The “partnership theory of recovery” attacked by defendant was not new but had been part of plaintiffs’ complaint from the start. Indeed, defendant must have recognized the pleading of an agreement since, in his answer, he denied any implication that the parties “reached any kind of agreement with respect to the proceeds of any winnings.” Since the amendments did not add any new theories, and an agreement was pleaded by plaintiffs from the outset, the nature of the proof required to defend was not altered. Furthermore, in light of the nature of the amendments, defendant’s claim of surprise, and implication of prejudice to himself, is not persuasive. In our view the modifications to plaintiffs’ complaint constitute proper amendments to conform the pleadings to the proof.

We turn now to defendant’s challenge to the trial court's findings. At the conclusion of the trial the court found that plaintiffs’ evidence •supported theories of both partnership and gift. Defendant points out that consideration, while an inherent element of a partnership, is not necessary to the making of a gift. He concludes that the concepts of gift and partnership are contradictory and insists that the court’s inconsistent findings require that the judgment in favor of plaintiffs be vacated and the matter be remanded. We agree with defendant that the two concepts in question present certain inconsistencies but do not agree that such inconsistencies require vacation of the judgment in this case.

As we have mentioned, plaintiffs needed to show that they had a protectable interest in the winning ticket and/or the prize money won by the ticket. They sought to establish that interest by offering evidence of both a gift and an agreement. We recognize that the complaint does not set forth separate counts or a separate set of facts in support of each of the separate theories of recovery. Nor does it draw a clear distinction within itself between allegations directed toward a gift theory and those directed toward an agreement theory. However, there is no doubt the two propositions could have been presented as alternatives. It is permissible to argue in the alternative, even when such arguments are based on inconsistent facts and no individual argument is affected by any other. Hillblom v. Ivancsits (1979), 76 Ill. App. 3d 306, 311-12.

Had defendant made two separate and distinct arguments, the trial court could have responded in kind. In the absence of a clear delineation we think the trial court, in essence, merely acknowledged that evidence had been offered to support both theories and then, without clearly embracing one proposition as opposed to the other, concluded that plaintiffs had established their right to the prize money. While it would have been more desirable for the trial -judge clearly to delineate what he found to be the controlling facts, his failure to do so is not fatal to plaintiffs’ cause. Defendant has not demonstrated how he has been prejudiced by the lower court’s findings. Indeed, we do not believe he could show prejudice since the result would have been the same if the court had resolved the issue solely on the basis of either gift or agreement.

Defendant is not aided by In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, where one party filed a petition for separate maintenance and the other filed a counterpetition for dissolution of marriage. Both the separate maintenance statute and the dissolution of marriage statute required a finding of fault. The court found that each party had been guilty of mental cruelty toward the other and had proved the material allegations of his or her petition. The court then held the separate maintenance statute unconstitutional and granted relief to the spouse seeking dissolution. The supreme court reversed the holding of unconstitutionality, characterized the lower court’s findings as totally inconsistent and wholly irreconcilable, vacated the judgment, and remanded for a new trial to allow consistent findings to be made in order to resolve the question of which spouse’s petition was meritorious.

Unlike the findings in the instant case, the contradictory findings in Eltrevoog prevented a resolution of the controversy. The petitions were brought under different statutes, and each, if granted, would have a unique, and different, set of ramifications. Obviously, both parties could not prevail. Thus, absent a finding that one petition had merit as opposed to the other, the matter could not be settled, and both parties would be prejudiced. In the instant case the inconsistencies did not prevent resolution of the dispute. One party clearly prevailed, and it did not matter which theory the court chose to follow since, in either case, judgment would have been rendered in favor of plaintiffs with regard to their interest in the lottery prize money.

As a final matter defendant attacks the judgment on the ground that the evidence does not support the court’s findings of either gift or partnership. As explained below, after reviewing the record we conclude that the finding of partnership was justified. Accordingly, we need not address defendant’s challenge to the finding regarding gift.

After all the evidence had been presented and closing arguments completed, the trial court made the following remarks:

“In my opinion and the Court finds there is ample evidence in the record to support a theory of both partnership based on consideration and mutual amount of obligation and gift outright.”

The trial judge expanded on his initial statement as follows:

“The defendant, whether viewed as a fiduciary or a partner or as a simple agent of a partnership, had a continuing duty to these plaintiffs.”

And again, the court added:

“[I]t is very plausible that is indeed what happened. There was a joint enterprise, venture, or at least donated partnership under these circumstances.”

While it is clear from these statements the court did not perceive the relationship between plaintiffs and defendant as a formal, legal partnership in the business sense, it is also clear the court decided that the parties had entered into a binding agreement which gave rise to rights and duties which the court could recognize and enforce. The court’s conclusion is supported by the record.

Whether a partnership exists is generally a question of fact to be resolved by the fact finder. (Peterson v. Prince (1981), 102 Ill. App. 3d 220, 224.) In a bench trial, the judge, as the trier of fact, is in a better position to determine the credibility of the witnesses and the weight to be given their testimony. (Aetna Insurance Co. v. Amelio Brothers Meat Co. (1989), 182 Ill. App. 3d 863, 865.) Accordingly, a reviewing court will not reverse a judgment unless the findings of the trial court are clearly contrary to the manifest weight of the evidence. (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 333; In re Estate of Elson (1983), 120 Ill. App. 3d 649, 655.) A finding is against the manifest weight of the evidence only when an opposite conclusion is clearly evident. (Commonwealth Edison Co. v. Department of Revenue (1989), 179 Ill. App. 3d 968, 975.) A court of review may not overturn a judgment merely because it disagrees with it or might have reached a different conclusion had it been presented with the issue in the first instance. (Schulenberg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356; In re Estate of Elson (1983), 120 Ill. App. 3d 649, 655.) In this case the trial court found that the parties had formed a partnership of some sort. In our opinion the evidence indicates that the arrangement between defendant and plaintiffs constituted a joint venture. A joint venture, as a practical matter, is essentially a partnership carried on for a single enterprise. O’Connell v. Pharmaco (1987), 164 Ill. App. 3d 68, 72.

A joint venture is an association of two or more persons to carry out a single enterprise for profit. (In re Johnson (1989), 133 Ill. 2d 516, 525-26; Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 318.) Whether a joint venture exists is a question of the intent of the parties. (United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 109.) The elements to be considered in determining the parties’ intent are: an agreement, express or implied, to carry on an enterprise; a demonstration of intent by the parties to be joint venturers; a joint interest, as reflected in the contribution of property, finances, effort, skill or knowledge by each party to the joint venture; a measure of proprietorship or joint control over the enterprise; and a provision for sharing of profits and losses. (Dawdy v. Sample (1989), 178 Ill. App. 3d 118, 126; Ambuul v. Swanson (1987), 162 Ill. App. 3d 1065, 1068.) A formal agreement is not essential to establish a joint venture. (Barton v. Evanston Hospital (1987), 159 Ill. App. 3d 970, 973.) Rather, the existence of a joint venture may be inferred from facts and circumstances demonstrating that the parties, in fact, undertook a joint enterprise. Ambuul, 162 Ill. App. 3d at 1068.

It could be inferred that the parties entered into an agreement and showed their intent to be joint venturers when they started playing the lottery together. Yurko invited plaintiffs, both verbally and by placing tickets in front of them, to play the lottery with him. Although it was refuted by Yurko, plaintiffs testified that he told them if they would help him scratch tickets they would be his partners and would share in any prize winnings. Plaintiffs expressed agreement with this proposal when they began scratching off the tickets.

The parties’ intent to act jointly could be gleaned also from their subsequent conduct. There was testimony that both Judy and Frances uncovered tickets which were good for small cash prizes or more tickets. Neither defendant nor any of the plaintiffs tried to claim any of those prizes as their own. Rather, the tickets were turned in for more tickets, and plaintiffs kept on scratching. Also, all three plaintiffs testified that, after the winning ticket was revealed, there was a discussion amongst all the parties as to who would appear on the television show. Together, not individually, they decided that Yurko would be the one to go. Finally, although vehemently denied at trial, defendant himself impliedly acknowledged a joint effort when he printed the plaintiffs’ initials right alongside his own name on the back of the winning ticket, again amidst talk that he and the plaintiffs were partners.

A joint interest in the effort to win the lottery, as shown by the parties’ various contributions, could also be found from the evidence. Although there was a wide divergence as to how much money he actually spent, it is undisputed that Yurko paid for the tickets that were purchased. As for their contribution to the venture, Frances and Judy expended their time and energy and put forth effort to scratch the tickets. While Phyllis’ part in this is not altogether clear, her unrefuted testimony was that she scratched off a couple of tickets, and it is evident the other parties considered her part of the enterprise.

Finally, with regard to provision for sharing of profits, plaintiffs testified that Yurko told them they would share in anything that was won if they helped scratch the tickets. While Yurko denied this, he nevertheless later wrote plaintiffs’ initials next to his own name on the line provided on the lottery ticket for the ticket holder’s name. From this evidence the court could have found that the joint venturers had planned to share equally in any lottery prize ultimately won.

The accumulated evidence favorable to plaintiffs, if believed, warrants the conclusion that all the parties intended and agreed to the joint pursuit of a single enterprise, i.e., a lottery prize. There is no question that the resolution of this dispute turned heavily on the credibility of the witnesses. Nor is there a question that the trial court found plaintiffs to be more credible than defendant. The judge referred to defendant’s evidence as “extremely vague and inconsistent” and remarked that “defendant’s story is not plausible under these circumstances.” After emphasizing that he was well aware of the atmosphere and circumstances of the parties’ gathering at Hitching-A-Ride, and of the results of things said freely and clearly in those circumstances, the court added, “there is no doubt what was intended, and I think that the Defendant’s memory has failed him.” Of plaintiffs’ theory of the case the court remarked, “it is very plausible that is indeed what happened.” In light of the trial court’s determination regarding defendant’s and plaintiffs’ respective credibility, we cannot say a conclusion opposite to the one reached by the court is clearly evident. We see no reason to disturb the findings of the court below.

In summary, we recognize, as did the trial court, the circumstances which ultimately led to this dispute. We also acknowledge the informality of the arrangement between the plaintiffs and defendant. Nevertheless, the findings made by the trier of fact are amply supported by the record. Those findings warrant the conclusion, reached by the trial court, that the parties should be bound by the terms of their agreement to jointly carry out an enterprise for profit. A fiduciary relationship exists between members of a joint venture, and the conduct of joint venturers toward one another is governed by the legal principles pertinent to the relationship between partners. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 437-38.) Like partners, joint venturers have a fiduciary duty to deal with each other with loyalty and good faith in regard to the enterprise. (Ambuul v. Swanson (1987), 162 Ill. App. 3d 1065, 1070.) By its decision the trial court sought only to enforce defendant’s already existing duty.

In accordance with the foregoing, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

McLAREN, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

Because the record shows the existence of neither a partnership nor a valid gift, I respectfully dissent from the majority’s affirmance of the trial court’s judgment for plaintiffs.

The majority concludes that the parties here were engaged in a joint venture. A joint venture is essentially a partnership carried on for a single enterprise, and joint ventures are governed by partnership principles. (Bachewicz v. American National Bank & Trust Co. (1986), 111 Ill. 2d 444, 448.) Because a partnership is a contractual relationship, the principles of contract law fully apply to it. (In re Estate of Johnson (1984), 129 Ill. App. 3d 22, 25.) Consideration is a basic element for the existence of a contract. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 331.) Accordingly, a partnership agreement must be based on valid consideration between the partners. 59A Am. Jur. 2d Partnership §112 (1987).

Valid consideration for a contract centering on the purchase of legal lottery tickets has been found where each of the parties contributed tickets (Miller v. Radikopf (1975), 394 Mich. 83, 228 N.W.2d 386) or in the context of a long-standing pattern of joint ticket purchases (Pearsall v. Alexander (D.C. App. 1990), 572 A.2d 113). Here, where it is conceded that defendant alone purchased the lottery tickets, the majority’s only suggestion of what might constitute consideration is the fact that plaintiffs “expended their time and energy and put forth effort to scratch the tickets.” (212 Ill. App. 3d at 228.) However, the consideration supporting a unilateral promise such as the one present here must be that which is bargained for as consideration by the promisor. Bank of Marion v. Robert “Chick” Fritz, Inc. (1974), 57 Ill. 2d 120, 124.

The record simply does not support the conclusion that defendant bargained for plaintiffs’ “time and energy” in scratching the tickets as their contribution to a joint venture or partnership. The evidence viewed most favorably to plaintiffs shows that defendant promised to share in the lottery winnings if plaintiffs helped him scratch the tickets. The question, then, is whether the scratching of the tickets was intended to be consideration for a contract or merely a condition upon a gratuitous promise.

A promise may propose either a bargain or a gift, and in either case a condition may be imposed using the same words. (L. Simpson, Handbook of the Law of Contracts §53, at 84 (2d ed. 1965).) As a general rule, “if the happening of the condition will not only be of no benefit to the promisor but it is obviously merely for the purpose of enabling the promisee to receive a gift, the happening of the event on which the promise is conditional, though brought about by the promisee in reliance on the promise, will not properly be construed as consideration.” 17A Am. Jur. 2d Contracts §115, at 131 (1991).

Here, I believe that defendant’s invitation to plaintiffs to help him scratch the tickets was intended as simply a condition to their receipt of defendant’s gift of lottery winnings. It strains credulity to find that plaintiffs’ scratching of tickets was viewed by the parties as consideration supporting a partnership contract. I note that this conclusion does not contravene the general rule against inquiring into the adequacy of consideration, because that rule operates only where the parties actually intended a bargain. (L. Simpson, Handbook of the Law of Contracts §53, at 85 (2d ed. 1965).) Here, the evidence supports, at most, that defendant’s promise constituted a conditional promise to make a gift of lottery winnings.

I further believe, however, that no valid gift has been effectuated. In addition to donative intent, the making of a valid gift requires the donor to part with exclusive dominion and control over the subject of the gift, and there must also be delivery. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 72.) Here, whether the gift is viewed as the lottery ticket itself or the winnings it produced, defendant never parted with exclusive dominion and control. Moreover, even if the promise to share in the future lottery winnings could be construed as an attempt to effectuate a gift of those winnings, a promise to make a future gift is generally unenforceable (Hux v. Woodcock (1985), 130 Ill. App. 3d 721, 724) and is revocable at any time until the gift is executed (Meyer v. Meyer (1942), 379 Ill. 97, 104).

Accordingly, I would reverse the judgment of the trial court.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    OUTBOARD MARINE CORPORATION, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant (Commercial Union Insurance Company et al., Defendants).—OUTBOARD MARINE CORPORATION, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    Second District
    Nos. 2—90—0349, 2—90—0399 cons.
    Opinion filed January 31, 1991.
    Rehearing denied March 11, 1991.

      Jeffrey L. Kaser, Rivkin, Radler, Bayh, Hart & Kremer, of Chicago (Jay V. Krafsur, of counsel), for Commercial Union Insurance Company.
    Paul S. Chervin and Daniel P. Felix, both of Wildman, Harrold, Allen & Dixon, of Waukegan, and Kim Marrkand, Anthony A. Bongiorno, Jeffrey W. Kobrick, and Jennifer Lauro, all of Gaston & Snow, of Boston, Massachusetts (James P. Whitters III, of counsel), for Liberty Mutual Insurance Company.
    Margaret J. Orbon, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, and John L. Altieri, Jr., and Aaron F. Fishbein, both of Mudge, Rose, Guthrie, Alexander & Ferdon, of New York, New York (Paul R. Koepff, of counsel), for Insurance Company of North America.
    Marsha K. Ross, Mary Beth Denefe, and Audrey S. Hanrahan, all of Haskell & Perrin, of Chicago, and Gary S. Kull, of McElroy, Deutsch & Mulvaney, of Morristown, New Jersey (Lorraine M. Armenti, of counsel), for International Insurance Company.
    Leslie A. Peterson, of Brydges, Riseborough, Morris, Franke & .Miller, and Lonchar & Nordigian, both of Waukegan, and Michael G. Erner and Michael R. Adele, both of Irell & Manella, of Newport Beach, California (Louis W. Brydges, Sr., and Thomas W. Johnson, Jr., of counsel), for Outboard Marine Corporation.
    Nancy J. Gleason, Philip McGuire, Charles L. Philbrick, and Brian Frankel, all of Dowd & Dowd, Ltd., of Chicago, for Northbrook Insurance Company.
    Terry R. Saunders, of Susman, Saunders & Buehler, of Chicago, and Thomas W. Brunner, James M. Johnstone, and Frederick S. Ansell, all of Wiley, Rein & Fielding, of Washington, D.C., for amicus curiae Insurance Environmental Litigation Association.

      Martha Churchill, of Mid-America Legal Foundation, and Eugene R. Anderson, Michael R. Magaril, Teresita Rodriguez, and Lester 0. Brown, all of Anderson, Kill, Click & Oshinsky, P.C., of New York, New York, for amicus curiae Mid-America Legal Foundation.
    Kevin M. Forde and Katrina Yeerhusen, both of Kevin M. Forde, Ltd., of Chicago, and James T. Price, Stephanie A. Mathews, and Thomas J. Wilcox, all of Spencer, Fane, Britt & Browne, of Kansas City, Missouri, for amicus curiae Illinois Manufacturers Association.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Outboard Marine Corporation (OMC), filed a declaratory-judgment action against several insurance companies which had issued it comprehensive general liability (CGL) policies. OMC alleged that the companies breached their duty to defend it against lawsuits filed by the United States Environmental Protection Agency (USEPA) and the State of Illinois which asserted that OMC was responsible for high levels of PCB’s in Lake Michigan, one of its tributaries known as the North Ditch, and Waukegan Harbor. Liberty Mutual Insurance Company (Liberty Mutual) appeals from orders of the circuit court denying its motion for summary judgment and granting partial summary judgment to OMC. The issue in this appeal is whether there was coverage under a policy provision providing coverage for any suit against OMC seeking damages on account of property damage when the primary relief sought in the USEPA and State of Illinois actions was injunctive relief.

The above appeal has been consolidated with a subsequent appeal by OMC from orders granting summary judgment to defendants, Commercial Union Insurance Company (Commercial Union), Insurance Company of North America (INA), International Insurance Company (International), and Northbrook Insurance Company (North-brook), and granting partial summary judgment to Liberty Mutual. The primary issue in this appeal is whether the circuit court was correct in determining that a pollution exclusion clause in the applicable policies precluded coverage even though the exclusion did not apply by its own terms to OMC discharges which were “sudden and accidental.” Commercial Union and INA also argue that granting them summary judgment was appropriate because at the times their policies were issued to OMC, OMC already knew there was a substantial risk it would be held liable for causing pollution in the bodies of water in question. OMC argues that the defendant insurance companies are estopped from denying coverage because they did not seek a declaratory judgment that there was no coverage or provide OMC with a defense under a reservation of rights. In both appeals, we affirm the circuit court’s orders.

We will first set forth the facts relevant to the Liberty Mutual appeal and consider the merits of that appeal. The USEPA filed its initial complaint against OMC in the United States District Court for the Northern District of Illinois on March 17, 1978. The complaint alleged that OMC discharged process and storm water from its Waukegan facility into Lake Michigan, Waukegan Harbor, and the North Ditch. From 1959 until 1972, OMC used a hydraulic fluid composed of polychlorinated biphenyl (PCB), which are highly toxic chemical mixtures that are resistant to heat and flames. Large portions of the leaks and spills incident to the use of these chemicals were routed to OMC’s wastewater collection system. The effluent from OMC’s facility therefore carried large amounts of PCB’s into Waukegan Harbor and the North Ditch, resulting in the extreme contamination of the bottom sediments of these bodies of water. In some areas, 25% of these sediments were comprised of PCB’s.

The USEPA further alleged in its complaint that, while it had issued OMC a permit to discharge certain pollutants in limited quantities into the lake and its tributaries, the permit did not authorize OMC to discharge PCB. OMC’s actions therefore violated the Rivers and Harbors Act of, 1899 (33 U.S.C. §407 (1988)) and section 301(a) of the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. §1311(a) (1988)). The USEPA sought an order enjoining OMC from further contamination of Lake Michigan, Waukegan Harbor and the North Ditch, and requiring OMC to dredge the contaminated sediments of the North Ditch as expeditiously as possible. It also sought an order requiring OMC to undertake an expedited study of the safest way of removing and disposing of the contaminated sediments of Waukegan Harbor and then to conduct the removal and disposal of the sediments. Furthermore, the USEPA sought the assessment of a civil penalty against OMC in the amount of $10,000 for each day after October 18, 1972, that it discharged PCB’s, and it also sought the costs of the action.

The State of Illinois filed its complaint against OMC in the United States District Court for the Northern District of Illinois on August 10, 1978. The State’s complaint contained basically the same factual allegations against OMC as did the USEPA complaint. The State’s complaint alleged violations of the FWPCA, the Illinois public nuisance act (Ill. Rev. Stat. 1977, ch. 100½, par. 1 et seq.), the Illinois Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1001 et seq.), the Federal and State common law of nuisance, and the Illinois common law of trespass. The following relief was sought by the State: (1) an injunction restraining OMC from discharging PCB’s from its Waukegan facility, (2) an order directing OMC to undertake a study of methods of dredging, removing, and disposing of the PCB contaminated sediments, (3) an order requiring OMC to remove and dispose of the contaminated sediments, (4) an order requiring OMC to dispose PCB-contaminated soils on its own land,-(5) a civil penalty of $10,000 per day for each day OMC discharged PCB’s in violation of the FWPCA after October 18, 1972, and (6) a civil penalty of $10,000 for each violation of the Illinois Environmental Protection Act and $1,000 per day for each day after July 1, 1970, that the violations continued.

OMC filed a third-party complaint in the USEPA action against Monsanto Company, alleging that Monsanto had manufactured Pydraul, a hydraulic fluid containing PCB’s. OMC had used Pydraul in the process of manufacturing outboard motors. On July 22, 1980, the USEPA amended its complaint by adding allegations against Monsanto. Monsanto subsequently filed a cross-claim against OMC in which it sought contribution in the USEPA action and reimbursement of all expenses incurred as a result of that action.

On January 22, 1982, the USEPA filed a second amended complaint in which it added a claim against OMC pursuant to section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. §9606(a) (1988)). In addition to the relief sought in its prior complaint, the USEPA sought the issuance of orders directing OMC and Monsanto to construct expeditiously a bypass of the North Ditch which would collect and reroute effluent flows away from the ditch and into Lake Michigan by means of an alternative piping system and to instaU and operate groundwater purge wells and an accompanying water treatment system designed to remove PCB’s from groundwater underneath OMC property.

The district court dismissed the above actions without prejudice on February 6, 1985, at the request of the USEPA. The USEPA and State of Hlinois retained the right to seek response costs under section 107(a) of CERCLA (42 U.S.C. §9607(a) (1988)). On October 7, 1988, the United States filed a new complaint against OMC in the United States District Court for the Northern District of Illinois. The factual allegations were very similar to those in the 1978 USEPA complaint. The State of Illinois filed a new complaint with similar allegations against OMC that same day. Both 1988 complaints sought response costs and damages resulting from injuries to natural resources resulting from OMC’s discharges of PCB’s. This relief was sought pursuant to section 107 of CERCLA (42 U.S.C. §9607 (1988)). OMC entered into a consent decree with the State of Illinois and United States which the court approved on April 27, 1989. Under the terms of the decree, OMC was required to make payments into a trust fund for the cleanup of Lake Michigan, Waukegan Harbor, and the North Ditch.

OMC filed its complaint for declaratory judgment on August 15, 1986, alleging that Liberty Mutual and the other defendants had a duty to defend it in the underlying actions filed by the USEPA and the State of Illinois. OMC also alleged that its insurance carriers were liable for any sums which OMC was forced to pay as a result of these actions.

The CGL policies issued to OMC by Liberty Mutual provided in relevant part that the insurer

“will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of *** bodily injury or property damage to which this policy applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury or property damage ***.”

On June 29, 1987, OMC filed a motion for partial summary judgment in which it alleged the underlying actions were suits for damages within the meaning of the Liberty Mutual policies and policies issued by other defendants. Defendants subsequently filed cross-motions for summary judgment in which they argued to the contrary. On January 16, 1990, the trial court issued an order denying defendants’ motions and granting OMC’s motion for summary judgment. On March 19, 1990, the trial court entered an order pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), certifying for immediate appeal the question of whether the underlying USEPA and State of Illinois suits were suits seeking damages under defendants’ CGL policies. This court granted Liberty Mutual leave to appeal on April 24, 1990, but denied two other defendants leave to appeal because they had been granted summary judgment on a different basis, the applicability of their pollution exclusion provisions.

Ambiguous terms in an insurance policy will be construed in favor of the insured. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4; West American Insurance Co. v. Vago (1990), 197 Ill. App. 3d 131, 137.) Liberty Mutual argues that no ambiguity exists here; the applicable policy provision only renders it liar ble for sums OMC “is obligated to pay as damages” and only requires it to defend OMC against lawsuits in which damages are sought. Therefore, since the USEPA and the State of Illinois sought injunctive relief and civil penalties in their original lawsuits, there was no duty to defend or indemnify.

OMC argues that the term “damages” is ambiguous to a lay person without legal training. Since the existence of an ambiguity in an insurance policy depends upon how an ordinary person would understand a policy term rather than a person with legal training (United States Fidelity & Guaranty Co. v. Specialty Coatings Co. (1989), 180 Ill. App. 3d 378, 391), OMC argues that the term “damages” in the policy provision at issue here is ambiguous and should be construed as providing coverage. The trial judge relied largely upon the Specialty Coatings opinion in accepting OMC’s argument.

In Specialty Coatings, plaintiff issued defendant an insurance policy which stated that plaintiff would provide a defense for all suits against the insured “seeking damages on account of *** property damage.” One of the issues was whether this policy language provided coverage for actions seeking injunctive relief, civil penalties and response costs pursuant to CERCLA and the Illinois Environmental Protection Act because of activities by defendant which caused land and water pollution. The court concluded that there was coverage under this provision, determining that while the word “damages” may have an accepted, technical meaning in the legal community, the term is ambiguous to others. (Specialty Coatings, 180 Ill. App. 3d at 391.) The court went on to state that an insured should be able to rely upon a commonsense expectation that property damage within the meaning of the policy would include claims causing him or her to pay money to others whose rights were affected adversely by the insured’s acts or omissions. (180 Ill. App. 3d at 392.) The court further stated that while claims under CERCLA and other environmental statutes could be characterized as actions seeking equitable relief, cleanup costs are essentially compensatory damage for injury done to common property; therefore, the insurer has a duty to defend. 180 Ill. App. 3d at 392.

Due to the passage of CERCLA in 1980 and the prevalence of the language we are presently considering in CGL policies, the issue of whether lawsuits for injunctive relief and cleanup costs under CER-CLA and other environmental statutes are actions for damages which the insurer must defend and for which it may be held liable has been litigated nationwide. Most State courts considering the issue have concluded, as the court did in Specialty Coatings, that coverage exists because such lawsuits are actions seeking damages. (See, e.g., AIU In surance Co. v. Superior Court (1990), 51 Cal. 3d 807, 819-20, 846, 799 P.2d 1253, 1262-63, 1279, 274 Cal. Rptr. 820, 829-30, 841-42; Hazen Paper Co. v. United States Fidelity & Guaranty Co. (1990), 407 Mass. 689, 701, 555 N.E.2d 576, 583; Upjohn Co. v. New Hampshire Insurance Co. (1989), 178 Mich. App. 706, 719, 444 N.W.2d 813, 819; Minnesota Mining & Manufacturing Co. v. Travelers Indemnity Co. (Minn. 1990), 457 N.W.2d 175, 183; C.D. Spangler Construction Co. v. Industrial Crankshaft & Engineering Co. (1990), 326 N.C. 133, 153, 388 S.E.2d 557, 569; Broadwell Realty Services, Inc. v. Fidelity & Casualty Co. of New York (1987), 218 N.J. Super. 516, 527, 528 A.2d 76, 82; Boeing Co. v. Aetna Casualty & Surety Co. (1990), 113 Wash. 2d 869, 888, 784 P.2d 507, 516. Contra Patrons Oxford Mutual Insurance Co. v. Marois (Me. 1990), 573 A.2d 16,19-20.

Federal courts considering this issue have been divided. In several cases, the courts have concluded that policy language similar to that in the case at bar is not ambiguous and does not provide coverage for actions under CERCLA and other environmental statutes for cleanup costs and injunctive relief. (See, e.g., Cincinnati Insurance Co. v. Mil-liken & Co. (4th Cir. 1988), 857 F.2d 979, 981; Continental Insurance Cos. v. Northeastern Pharmaceutical & Chemical Co. (8th Cir. 1988), 842 F.2d 977, 986-87; Maryland Casualty Co. v. Armco, Inc. (4th Cir. 1987), 822 F.2d 1348, 1352.) Other Federal courts have reached the contrary conclusion, in accord with a majority of State courts. See, e.g., Avondale Industries, Inc. v. Travelers Indemnity Co. (2d Cir. 1989), 887 F.2d 1200, 1207; United States Fidelity & Guaranty Co. v. Thomas Solvent Co. (W.D. Mich. 1988), 683 F. Supp. 1139, 1168; New Castle County v. Hartford Accident & Indemnity Co. (D. Del. 1987), 673 F. Supp. 1359, 1366.

The court pointed out in Specialty Coatings (180 Ill. App. 3d at 391-92) that one dictionary contains the following definitions of “damages”:

“[T]he estimated reparation in money for detriment or injury sustained: compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right.” (Webster’s Third New International Dictionary 581 (3d ed. 1981).)

As the court stated in Specialty Coatings, these definitions are broader than the narrow, legal definition advanced by the insurer. (180 Ill. App. 3d at 391.) We agree with the conclusion reached in Specialty Coatings and by other courts that the term “damages” in the policy provision at issue is ambiguous and must therefore be construed in a manner favorable to the insured. 180 Ill. App. 3d at 392; see also Minnesota Mining & Manufacturing Co., 457 N.W.2d at 181; C.D. Spangler Construction Co., 326 N.C. at 143, 388 S.E.2d at 563; Boeing Co., 113 Wash. 2d at 875, 784 P.2d at 510.

Furthermore, as the California Supreme Court has recently pointed out, this ambiguity is exacerbated by environmental statutory schemes such as CERCLA which by their operation tend to remove the formal distinction between payment of compensation to an aggrieved party and the expenditure of money under the compulsion of a mandatory injunction. In AIU Insurance Co., the court held that a governmental suit for response costs under CERCLA, which is a suit to recover expenditures made by the government if it cleans up a contaminated site (see 42 U.S.C. §9607 (1988)), is an action for damages within the meaning of the policy language in question. (AIU Insurance Co., 51 Cal. 3d at 819-20, 799 P.2d at 1262-63, 274 Cal. Rptr. at 829-30.) The court noted that Federal agencies that would seek response costs are charged with the duty of removing hazardous waste from any property, even if the government has no ownership interest in the property. (AIU Insurance Co., 51 Cal. 3d at 828, 799 P.2d at 1269, 274 Cal. Rptr. at 836.) Therefore, when these agencies seek response costs, they do so on the basis of fiscal harm to the public, which constitutes loss or detriment; the response costs are monetary compensation for that loss or detriment. (AIU Insurance Co., 51 Cal. 3d at 828, 799 P.2d at 1269, 274 Cal. Rptr. at 836.) Therefore, the court felt that response costs fit within the accepted meaning of “damages,” compensation for a loss sustained by another.

In so holding, the court rejected an argument that we likewise find unpersuasive. Liberty Mutual argues that reimbursement of response costs under CERCLA is analogous to government-imposed costs of doing business such as compliance with OSHA regulations and fire and building codes, none of which are covered by CGL policies. Rejecting a similar argument in AIU, the court pointed out that response costs are compensation for losses sustained by the government for cleaning up land or water (AIU Insurance Co., 51 Cal. 3d at 832, 799 P.2d at 1272, 274 Cal. Rptr. at 839) and are not merely costs incurred as the result of prophylactic safety or health measures required by statute. We agree with the AIU court’s analysis.

In the case at bar, the USEPA and the State of Illinois did not seek response costs until they filed their 1988 complaints. In their previous complaints, the State and the USEPA sought mandatory injunctions compelling OMC to conduct studies concerning cleanup of the PCB contamination and then compelling OMC to undertake the cleanup. In AIU, the court considered whether actions for injunctive relief under CERCLA were actions for damages within the meaning of the policy provision here.

In considering this issue, the court noted that in Aetna Casualty & Surety Co. v. Hanna (5th Cir. 1955), 224 F.2d 499, 503, the court held that the cost of complying with an injunction was not covered by a CGL policy with a similar coverage clause. The Illinois Appellate Court for the Third District reached the same conclusion in Ladd Construction Co. v. Insurance Co. of North America (1979), 73 Ill. App. 3d 43, 47-48. It is noteworthy, however, that neither Hanna nor Ladd involved actions for injunctive relief under environmental statutes such as CERCLA and the FWPCA.

As the court pointed out in AIU, the interplay of legal and equitable remedies in tort actions such as those in Hanna and Ladd is different from the relationship between the remedies authorized by CERCLA. (AIU Insurance Co., 51 Cal. 3d at 843, 799 P.2d at 1276, 274 Cal. Rptr. at 838-39.) Normally, injunctive relief is only available if there is no adequate remedy at law. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 672.) Injunctive relief under section 106 of CERCLA, however, was intended to be a viable alternative to recovery of response costs under section 107 after cleanup by a governmental agency regardless of the adequacy of the latter remedy. (See 42 U.S.C. §§9606, 9607 (1988); AIU Insurance Co., 51 Cal. 3d at 839, 799 P.2d at 1277, 274 Cal. Rptr. at 844; United States v. Price (D.N.J. 1983), 577 F. Supp. 1103, 1112.) Thus, the court in AIU determined that “it would exalt form over substance to interpret CGL policies to cover one remedy but not the other.” AIU Insurance Co., 51 Cal. 3d at 839, 799 P.2d at 1277, 274 Cal. Rptr. at 844.

We agree with this conclusion. In the context of CERCLA, mandatory injunctive relief involves the same type of expenditures as reimbursement of response costs. (AIU Insurance Co., 51 Cal. 3d at 839, 799 P.2d at 1277-78, 274 Cal. Rptr. at 845.) Thus, considering the basic similarity of injunctive relief and reimbursement of response costs under CERCLA and other environmental statutes, an ordinary individual would expect both remedies to fall within the ambit of coverage as “damages.” (AIU Insurance Co., 51 Cal. 3d at 839, 799 P.2d at 1277-78, 274 Cal. Rptr. at 845; Minnesota Mining & Manufacturing Co., 457 N.W.2d at 181-82.) Furthermore, the utility of a CGL policy would be highly dubious if coverage were allowed to hinge upon whether plaintiff’s complaint was framed in equity rather than law under circumstances such as these. Minnesota Mining & Manufacturing Co., 457 N.W.2d at 181; see also United States Aviex Co. v. Trav elers Insurance Co. (1983), 125 Mich. App. 579, 589, 336 N.W.2d 838, 843.

Public policy concerns also dictate this result. As we have previously indicated, Congress, in enacting CERCLA, intended to provide the EPA and other agencies charged with responsibilities for environmental cleanup efforts with flexibility in choosing remedies. This flexibility would be compromised if policy provisions such as those at issue here were construed as providing coverage for reimbursement of response costs but not the costs of complying with mandatory injunctions to clean contaminated sites. Additionally, at least one court has recognized the importance of securing the cooperation of potentially responsible parties in environmental cleanup efforts and the practical difficulties that would be involved if the USEPA was forced to expend the necessary funds for cleanup in most instances and recoup the funds under the response costs provisions of CERCLA (42 U.S.C. §9607 (1988)) rather than seek injunctions requiring the responsible parties to undertake cleanup efforts. (See Intel Corp. v. Hartford Accident & Indemnity Co. (N.D. Cal. 1988), 692 F. Supp. 1171, 1193.) The prospect of cooperation from responsible parties would be significantly reduced if the insurer’s contributions were contingent upon a governmental cleanup, followed by a lawsuit to recover response costs, followed by a claim against the insurer, rather than cleanup by or with the cooperation of the responsible party. (Intel Corp., 692 F. Supp. at 1193.) Clearly, it is better from a public policy standpoint to encourage responsible parties to take expeditious action to mitigate and remedy groundwater contamination and other forms of pollution rather than wait for a government-operated cleanup effort. Minnesota Mining & Manufacturing Co., 457 N.W.2d at 182.

For the above reasons, we conclude that the underlying actions for injunctive relief under the environmental statutes in' question were actions seeking damages under the meaning of the Liberty Mutual CGL policies. We therefore affirm the judgment of the circuit court of Lake County in the initial appeal.

We now turn to the appeal taken by OMC. The policies issued to OMC by INA, Commercial Union, and Northbrook, and some of the policies issued by Liberty Mutual, contained a pollution exclusion provision which stated, in relevant part, as follows:

“This insurance does not apply *** to bodily injury or property damage arising out of the discharge, dispersal, release or escape of *** contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this ex-elusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”

INA, Commercial Union, and Northbrook all filed motions for summary judgment in which they contended that the above exclusionary provision precluded coverage for the actions of OMC which caused the PCB contamination of Waukegan Harbor, Lake Michigan, and the North Ditch; therefore, they had no duty to defend or indemnify with regard to the USEPA or State of Illinois actions. Liberty Mutual filed a motion for partial summary judgment on the same basis with regard to those policies containing the pollution exclusion. The insurance companies argued that the exception to the exclusion could not possibly apply when the USEPA and the State of Illinois complaints alleged that the water contamination occurred over a period of over a decade and the evidence revealed this was the case. The companies argued that, under these circumstances, the discharges of PCB’s into the above bodies of water by OMC could not be considered sudden under the exception to the pollution exclusion.

Central to the insurers’ position is their contention that the word “sudden” has a temporal meaning and is synonymous with “abrupt.” OMC disputes this contention, arguing that the word is ambiguous and should be construed as meaning “unexpected.”

The meaning of the phrase “sudden and accidental” in CGL pollution exclusion clauses with the same language as the clause in this case has been considered in four Hlinois cases with varying results. In three of the cases, the court concluded that the phrase “sudden and accidental” as used in the clause is ambiguous and should be construed as meaning “unintended and unexpected” since that construction is most favorable to the insured. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1099; Specialty Coatings, 180 Ill. App. 3d at 388; Reliance Insurance Co. v. Martin (1984), 126 Ill. App. 3d 94, 97-98.) In the other case, the court concluded that in the context of the clause and the policy as a whole, the phrase is not ambiguous and the word “sudden” has a temporal connotation. (International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 378.) In International Minerals, the court concluded that the term “sudden” was synonymous with “abrupt.” See International Minerals, 168 Ill. App. 3d at 378.

We agree with the conclusion of the court in International Minerals that, in the context of the- pollution exclusion clause, the word “sudden” is not ambiguous and has a temporal connotation. The pollution exclusion clause states that the exclusion does not apply if a discharge of pollutants is “sudden and accidental.” In our opinion, the court in Specialty Coatings failed to consider the context in which the word “sudden” appears.

The general rules of contract construction apply to insurance policies. (DeFoor v. Northbrook Excess & Surplus Insurance Co. (1984), 128 Ill. App. 3d 929, 934.) It is presumed that words and phrases inserted into contracts were not intended to be meaningless; therefore, an interpretation which renders a contractual word or phrase mere surplusage should be avoided if possible. (In re Estate of Savage (1979), 73 Ill. App. 3d 656, 659.) As the court pointed out in International Minerals, if the term “sudden” is interpreted as meaning “unintended and unexpected,” it becomes synonymous with the word “accidental,” making one of the words nothing more than redundant surplusage. (International Minerals, 168 Ill. App. 3d at 378.) We agree with the conclusion of the court in International Minerals that, in this context, the word “sudden” is not ambiguous; it has a temporal meaning and is synonymous with “abrupt.” We note that a number of courts in other jurisdictions have interpreted the word “sudden” in the same pollution exclusion clause as we have interpreted it. See, e.g., Lumbermen’s Mutual Casualty Co. v. Belleville Industries, Inc. (1990), 407 Mass. 675, 680, 555 N.E.2d 568, 572; Fireman’s Fund Insurance Cos. v. Ex-Cell-O Corp. (E.D. Mich. 1988), 702 F. Supp. 1317, 1326; Waste Management of Carolinas, Inc. v. Peerless Insurance Co. (1986), 315 N.C. 688, 699, 340 S.E.2d 374, 382; Lower Paxon Township v. United States Fidelity & Guaranty Co. (1989), 383 Pa. Super. 558, 576, 557 A.2d 393, 402. But see, e.g., Kipin Industries, Inc. v. American Universal Insurance Co. (1987), 41 Ohio App. 3d 228, 231, 535 N.E.2d 334, 338; Claussen v. Aetna Casualty & Surety Co. (1989), 259 Ga. 333, 337, 380 S.E.2d 686, 690; Just v. Land Reclamation, Ltd. (1990), 155 Wis. 2d 737, 761, 456 N.W.2d 570, 579.

OMC disagrees with the above analysis from International Minerals. According to OMC, the word “sudden” means unexpected and “accidental” means unintended; therefore, the two words as employed in the pollution exclusion clause are not redundant surplusage if “sudden” does not include a temporal element. We agree, however, with those authorities that define “accidental” as meaning unintended and unexpected. (See Fireman’s Fund Insurance Cos. v. Ex-Cell-O Corp. (E.D. Mich. 1988), 702 F. Supp. 1317, 1325; 1A Appleman, Insurance Law and Practice §360 at 452-53 (1981); see also Taylor v. John Hancock Mutual Life Insurance Co. (1957), 11 Ill. 2d 227, 230 (“accidental means” defined as something which happens without intention and which is unexpected).) If a party expects an event to occur, the event cannot reasonably be considered accidental with reference to that party. Therefore, if “sudden” is construed as meaning unexpected and having no temporal connotation, the word is reduced to mere surplus-age. OMC’s argument therefore fails.

Another contention raised by OMC, relying on Specialty Coatings, is that the pollution exclusion should not apply because it was not an “active” polluter. Since this criterion is not mentioned in the pollution exclusion or any other portion of the applicable policies, it is irrelevant in determining whether the exclusion applies. (Ex-Cell-O Corp. 702 F. Supp. at 1325.) Moreover, even if we were to follow Specialty Coatings and determine the pollution exclusion only applies to active polluters, OMC would not prevail. In Specialty Coatings, the court determined defendant was not an active polluter because it delivered waste to a third party. (See Specialty Coatings, 180 Ill. App. 3d at 385.) In the case at bar, there was no third party involved; OMC discharged the wastewater containing PCB’s into the North Ditch and Waukegan Harbor through its wastewater disposal system. OMC’s contention that it was not an active polluter is entirely without merit.

OMC argues that even if, as we have determined, the word “sudden” in the pollution exclusion clause is synonymous with “abrupt,” an issue of fact remains as to whether its discharges of PCB’s into Waukegan Harbor, the North Ditch, and Lake Michigan were sudden and summary judgment was therefore improper. A motion for summary judgment should be granted only if the pleadings, depositions, affidavits, and admissions on file show that no genuine issues exist as to any material fact and the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment is a drastic means of resolving litigation which should only be granted if the right of the movant is clear and free from doubt. Purtill, 111 Ill. 2d at 240.

In the declaratory judgment action, OMC sought to have its insurers provide a defense and indemnify it with regard to the underlying USEPA and State of Illinois actions. An insurer must defend its insured if the complaint against the insured alleges facts which are within or potentially within policy coverage. (Scudder v. Hanover Insurance Co. (1990), 201 Ill. App. 3d 921, 925.) Each of the complaints against OMC alleged that it discharged PCB’s into the relevant bodies of water for a period of at least 11 years. At some places, the bottom sediments of these bodies of water were composed of 25% PCB’s. There is nothing sudden or abrupt about discharges occurring over an 11-year period. The USEPA and State of Illinois complaints contain allegations that the pollution in question occurred gradually over a lengthy period of time; this is precisely the type of conduct to which the pollution exclusion was intended to apply. See Industrial Indemnity Insurance Co. v. Crown Auto Dealerships, Inc. (M.D. Fla. 1990), 731 F. Supp. 1517, 1521.

The insurers contend that since the duty to defend is dependent upon the allegations of the complaint, the trial court did not have to consider most of the exhibits and affidavits submitted by the parties in connection with the motions for summary judgment. We need not consider whether the trial court should have considered these affidavits and exhibits because they support the trial court’s ruling that the pollution exclusion clauses were applicable.

The evidence submitted by the insurers in connection with their summary judgment motions demonstrates conclusively that OMC discharged Pydraul, the hydraulic fluid which caused the PCB contamination in question, into the waters near its Waukegan facüity for a number of years. Excerpts from depositions of OMC officials taken in the USEPA actions indicated that Pydraul was a hydraulic fluid which OMC purchased from Monsanto Company and used in its die-cast machinery in plant number two in Waukegan. The type of Pydraul used by OMC between 1960 and 1971 definitely contained PCB’s.

The deposition excerpts further indicated that Pydraul regularly leaked from the die-cast machinery at plant number two onto the floor of the plant. OMC used absorbent material to remove some of the Pydraul from the floor; the remainder was washed into large floor trenches which were designed as repositories for oil and water spills. The trenches at the north end of the plant flowed out through a wall to one oil interceptor while the trenches at the south end flowed out another wall to a different oil interceptor. The interceptors were supposed to collect any oil present in the wastewater and prevent it from being discharged into the waterways near the plant.

Until 1960, the wastewater passing the south interceptor would then go through a sewer known as outfall 009 into the harbor. In 1960, OMC constructed a pump and bypass system which was designed to pump water out of the oil interceptor and divert it through pipes into the North Ditch if the wastewater reached a level which the interceptor could not handle. According to the evidence presented by OMC, Pydraul could only have gotten into Waukegan Harbor from 1960 on if: (1) it leaked out of die-cast machinery; (2) the oil interceptor failed to collect it; and (3) the pump and bypass system failed to divert it to the North Ditch.

The evidence presented by the insurers included a 1959 report from W.D. Hatfield, an environmental consultant. This report states that inefficient operation of oil separators at plants one and two was causing oil slicks in Waukegan Harbor. In August 1967, the North Shore Sanitary District directed OMC to take immediate steps with regard to- discharges from the north end of the die-cast building. Shortly thereafter, OMC metallurgist Thomas Banski prepared a water pollution report which states that Pydraul was the primary oil contaminant, and it was flushed from oil separators and discharged into the North Ditch. The report emphasizes the importance of ensuring that the oil separators operate efficiently.

Betz Laboratories, an independent environmental consulting firm hired by OMC, issued a report late in 1968 concerning wastewater handling and treatment at.OMC’s Waukegan facility. The report states that OMC’s oil interceptors were “quite ineffective” because they were not large enough to handle the amount of wastewater discharged from the die-cast area. This would cause considerable turbulence and, as a consequence, some of the Pydraul would not settle in the interceptors. The overflow from both interceptors, according to the report, was pumped into the North Ditch, which was “grossly fouled” because of the Pydraul contamination.

In September 1971, OMC plant manager R.M. Atkin sent a memo to OMC vice-president Carl Ruesch. This memo states that Atkin had recently spoken to an Illinois EPA official about excessive amounts of phenols that had been found in samples taken from North Ditch outfalls. PCB’s are a type of phenol. The memo further states, “The north ditch is actually saturated and lined with Pydraul. This means that phenols could show up in our outfalls to Lake Michigan for some time to come.” Another internal OMC memorandum written by Atkin on February 2, 1972, states that Pydraul has been discharged into the North Ditch for many years. The memo also states that water samples indicate OMC had been emitting phenols into the North Ditch, and this had occurred since OMC began using Pydraul.

The above reports were all submitted by the insurers as exhibits to their motions for summary judgment. OMC argues that most of this evidence is irrelevant because it concerns contamination of the North Ditch, and OMC is presently seeking recompense only for Waukegan Harbor cleanup costs. OMC presented to the trial court affidavits from environmental experts stating that, in their opinion, the PCB contamination of Waukegan Harbor could have resulted from one or more events which would have caused large torrents of water to flow through its wastewater system such as a major rainstorm, a flood, or a fire which would have activated sprinklers in the plant. Such events, according to the affidavits, may have caused large PCB globules to leave the oil interceptor and caused the pump and bypass system to fail. This may have caused the PCB globules to go into outfall 009'and then Waukegan Harbor.

We disagree with OMC’s contention that evidence concerning the pollution of the North Ditch is irrelevant with-regard to the summary judgment proceedings. In its declaratory judgment action, OMC sought a determination that the insurers had a duty to defend it against the USEPA and State of Illinois complaints, each of which contained allegations concerning pollution in the North Ditch. Such evidence is therefore relevant.

Moreover, OMC’s contention ignores the fact that the source of the pollution of these two waterways is the same, discharges of PCB-laden Pydraul from its Waukegan plants. The focus of the pollution exclusion provision is conduct resulting in the contamination of land, air, or water. Thus, the provision excludes coverage for personal injury or damage to property “arising out of the discharge, dispersal, release or escape of *** contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.” If such conduct is “sudden and accidental,” however, the exclusion does not apply. In the case at bar, the conduct which caused the pollution of Waukegan Harbor, discharges of wastewater containing Pydraul, was the same conduct which resulted in the contamination of the North Ditch. Thus, the fact that the same conduct occurred for at least 11 years and also resulted in contamination of the North Ditch is entirely relevant in determining whether the pollution exclusion applies.

The evidence conclusively establishes that discharges of PCB-laden Pydraul from OMC’s Waukegan plants into adjacent waterways took place regularly over a period of at least 11 years. Since, in the context of the pollution exclusion clause, the word “sudden” is synonymous with “abrupt,” it is apparent that OMC’s Pydraul discharges could not conceivably be considered sudden. Instead, this case involves the type of gradual, long-term pollution to which the pollution exclusion was meant to apply. (Industrial Indemnity Insurance Co. v. Crown Auto Dealerships, Inc. (M.D. Fla. 1990), 731 F. Supp. 1517, 1521.) The trial court acted correctly in granting summary judgment to Commercial Union, INA, and Northbrook, and partial summary judgment to Liberty Mutual on the policies with the exclusion.

OMC’s policy with International contained a pollution exclusion provision with different language than that contained in the above policies. We must therefore consider separately whether the trial court’s ruling granting summary judgment to International was correct. This provision, contained in a separate endorsement entitled “Contamination and Pollution,” states as follows:

“It is agreed this policy shall not apply to liability for contamination or pollution of land, air, or real or personal property or any injuries or damages resulting therefrom caused by an occurrence.
It is further agreed that for the purpose of this endorsement ‘Occurrence’ means a continuous or repeated exposure to conditions which unexpectedly or unintentionally causes injury to persons or tangible property during the policy period. All damages arising out of such exposure to substantially the same general conditions shall be considered as arising out of one occurrence.”

As we have seen, the evidence submitted by the insurers established that CMC regularly discharged Pydraul into the surrounding waterways. Since the property damage resulted from repeated exposure to Pydraul discharges, the International pollution exclusion applies if the damage was unexpected or unintended. If the damage was expected or intended, it is clear from an examination of other policy provisions that there would be no coverage, and OMC does not argue otherwise. Therefore, the trial court acted correctly in granting summary judgment to International.

OMC argues that the insurers were estopped from raising the defense of noncoverage because they refused to defend OMC and did not instead defend it under a reservation of rights and seek adjudication of the coverage issue in a declaratory judgment action or a supplemental suit. There is no such estoppel, however, if there is clearly no coverage when the insurance policy and the underlying complaint are examined. (Scudder v. Hanover Insurance Co. (1990), 201 Ill. App. 3d 921, 929.) A review of the underlying USEPA and State of Illinois complaints against OMC indicates, as we have previously stated, that no coverage exists because these actions allege discharge of PCB’s into the North Ditch and Waukegan Harbor for periods of at least 11 years, and most of the policies exclude coverage for all pollution causing discharges which are not “sudden and accidental.” Clearly, there is nothing sudden about discharging pollutants over an 11-year period; thus, there is no estoppel. There is also no estoppel with regard to the International policy since the underlying complaints allege discharge of PCB’s into the waterways near OMC for at least 11 years and the policy precludes coverage for pollution resulting from continuous or repeated exposure to conditions causing injury to property.

Since we have concluded that the insurers were entitled to summary judgment on the issue of the applicability of their pollution exclusion clauses, there is no need to consider whether INA and Commercial Union were also entitled to summary judgment under the “known risk” doctrine. For the above reasons, the orders of the circuit court of Lake County are affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re B.D. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Lawrence Dunbar et al., Respondents-Appellants).
    Second District
    No. 2—90—0925
    Opinion filed April 12, 1991.
    Rehearing denied May 20, 1991.

      Michael W. Raridon, of Rockford, for appellants.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Terry L. Deck, of Berry, Berry & Mindrup, of Rockford, guardian ad litem.

   JUSTICE WOODWARD

delivered the opinion of the court:

The respondents, Lawrence W. Dunbar (the father) and Victoria Annas (the mother), appeal a decision of the circuit court finding them unfit parents, terminating their parental rights in their son, B.D., and daughter, S.D., and giving the Department of Children and Family Services (DCFS) power to consent to the minors’ adoption. We dismiss the appeal for lack of jurisdiction.

On August 30, 1988, the State petitioned to have B.D. and S.D. declared abused minors, alleging that both parents had sexually abused the children. On December 13, 1988, the circuit court entered orders finding that B.D. was an abused minor and S.D. a neglected minor and that the respondents had inflicted the abuse and neglect.

On January 19, 1989, the circuit court adjudicated both minors wards of the court and ordered them removed from the respondents’ custody, subject to certain visitation rights for the respondents.

On April 16, 1990, the State brought petitions to terminate the respondents’ parental rights as to both minors and to appoint DCFS the minors’ legal guardian with power to consent to adoption. The petitions alleged that the respondents were unfit parents because each had (a) failed to maintain a reasonable degree of responsibility for each child’s welfare; (b) failed to protect the children from conditions within their environment which were injurious to their welfare; (c) neglected or used misconduct toward each child; and (d) failed to make reasonable efforts to correct the conditions which were the basis for the removal of each child from them or to make reasonable progress toward the return of either child within 12 months after the adjudication of neglect.

The trial court heard testimony on the allegations of unfitness on June 26, 1990, and July 30, 1990. At a hearing held August 7, 1990, the trial judge announced orally that he was going to find that the State had proved by clear and convincing evidence that the respondents were unfit as alleged because their failure to acknowledge that they had sexually abused their children meant that they had failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children and that they had failed to make reasonable progress toward the return of their children. The court then proceeded immediately to the disposition phase of the adjudication. The court heard testimony from a DCFS caseworker who recommended adoptive placement for both minors. After hearing closing argument from all sides, the trial judge announced that he would declare that it was in the best interests of the minors that they be declared wards of the court again, that the parents’ rights be terminated, and that the DCFS be appointed the minors’ legal guardian with power to consent to their adoption. The trial judge then asked the assistant State’s Attorney, “Anything else I need to include in the Order?” The assistant State’s Attorney replied, “No,” and the trial judge stated, “Okay. I’ll — Please draft an Order to that effect and I’ll sign it.” He then indicated to the respondents that they had a right to appeal the decision and that if they wished to do so, they had 30 days in which to file a notice of appeal. 1

On August 21, 1990, before the entry of any written order, the respondents filed their identical notices of appeal. The notices specified that the respondents were appealing from the order terminating parental rights and granting power to consent to adoption “heretofore entered in this cause on or about August 7, 1990, as the result of a hearing held on August 7, 1990.” The respondents have filed no other notice of appeal in this case. On September 4, 1990, the trial court granted the respondents’ motion for a free transcript and court-appointed counsel on appeal.

On September 12, 1990, the trial judge signed written judgment orders as to each minor. Each order was prepared and signed by the assistant State’s Attorney and also signed by the attorney for the respondents and the attorney for the minors’ guardian ad litem. The orders recited that the court found the respondents unfit as to each minor and ordered the respondents’ parental rights irrevocably terminated. The order regarding S.D. was filed on September 12, 1990, and the order regarding B.D. was filed September 13, 1990.

We hold that this appeal must be dismissed because the notices of appeal were filed prematurely and did not confer jurisdiction on this court. Although the parties have not raised the issue of jurisdiction, it is our responsibility to consider the matter sua sponte and to dismiss the appeal if we find that we lack jurisdiction. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539; Illinois State Toll Highway Authority v. Gary-Wheaton Bank (1990), 203 Ill. App. 3d 672, 674.) The respondents’ jurisdictional statement indicates that they are bringing this appeal pursuant to Illinois Supreme Court Rule 301 (134 Ill. 2d R. 301), which allows appeals from final orders of the circuit court. However, the respondents’ notices of appeal were filed before entry of the written judgments, although after the trial judge’s oral announcement that he would enter judgment against the respondents. In announcing that he would enter such a judgment, the trial judge specifically requested that the prevailing party draft an order for the judge to sign.

Supreme Court Rule 272 as in effect at the time of this proceeding (134 Ill. 2d R. 272) provided that “[i]f at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.” The plain language of Rule 272 indicates that the judgments did not become final here until September 12 and September 13, 1990.

Before entry of the formal written judgment, the trial court’s decision could not be appealed from, attacked by motion, or enforced. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 441; Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538-39.) The notices of appeal from the August 7 “orders” were therefore premature and did not confer jurisdiction on this court. (Stoermer, 104 Ill. 2d at 293; In re Marriage of Roberts (1980), 84 Ill. App. 3d 538; Texaco, Inc. v. Barnes (1978), 60 Ill. App. 3d 696; Hale v. Ault (1974), 24 Ill. App. 3d 10.) As no amended or late notices of appeal (134 Ill. 2d Rules 303(c)(4), (e)) have been filed in this matter, we lack jurisdiction and therefore have no authority to reach the merits of this appeal.

We therefore dismiss the appeal.

Appeal dismissed.

BOWMAN and NICKELS, JJ., concur.