author: JUSTICE LINDBERG

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. CHRIS EGGERMONT, Indiv. and as Mother and Next Friend of Maria Montez, a Minor, et al., Defendants-Appellees.
    Second District
    No. 2—88—0480
    Opinion filed March 3, 1989.

      D. Kendall Griffith and Peter C. Morse, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kathryn A. Spalding, of counsel), for appellant.
    Peter S. Switzer, of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford (Richard M. Butera, of counsel), for appellees James Stewart and Marilyn Stewart.
    Alfred W. Cowan, Jr., of Brassfield, Cowan & Howard, of Rockford, for appellee Ralph David Banks.
    Christopher J. Bergin, of Jeffrey M. Goldberg, Ltd., of Chicago (William E. Buenger, of counsel), for appellee Chris Eggermont.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Allstate Insurance Company (Allstate), appeals from an order of the circuit court of Winnebago County denying plaintiffs motion and granting defendant Ralph David Banks’ (Banks’) motion for judgment on the pleadings in a declaratory judgment action seeking an interpretation of a homeowners insurance policy issued by plaintiff to defendant Chris Eggermont.

On August 26, 1984, defendant Chris Eggermont (Eggermont) and her children, Maria and Louis Montez, were staying at the home of Eggermont’s parents, defendants James and Marilyn Stewart (Stewart). Maria was injured in an accident involving a riding lawn mower driven by Louis. Maria, by her mother and next friend Eggermont, filed suit against the Stewarts and their gardener, defendant Banks, for the injuries. The Stewarts and Banks counterclaimed against Eggermont seeking contribution and indemnification. Eggermont tendered the counterclaim to plaintiff, Allstate, for defense and indemnification under her homeowners policy purchased from Allstate in August 1984. Allstate accepted the tender under a reservation of rights and filed this declaratory judgment action contending that it has no obligation to defend or indemnify Eggermont under the homeowners policy. This is the second time this case has come before us on appeal. In Allstate Insurance Co. v. Stewart (1987), 158 Ill. App. 3d 129, 511 N.E.2d 188, we reversed the trial court’s determination that the Stewart’s home was not an “insured premises” as defined under Allstate’s homeowners policy issued to Eggermont. We then remanded the case to the trial court to determine the second issue raised by the parties: whether section 143.01 of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1985, ch. 73, par. 755.01) renders the family household exclusion clause contained in the policy issued by Allstate to Eggermont inapplicable to a suit for contribution against Eggermont for the injuries sustained by her daughter, Maria. The trial court ruled that section 143.01 of Code did not apply to the policy in the instant case. However, the trial court found an ambiguity in the policy on the issue of coverage and construed the contract against Allstate and in favor of the insured, ruling as a matter of law that Allstate was required to defend and, if the contribution suit was successful, pay up to the policy limits of the homeowners policy issued to Eggermont.

The policy in the instant case was entitled “Allstate Deluxe Homeowners Policy.” The policy’s “Family Liability Protection” section contains a general description of the losses it covers which provided:

“Losses We Cover:

Allstate will pay all sums arising from an accidental loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage covered by this part of the policy.” (Emphasis in original.)

Immediately below this grant of coverage under “Losses We Do Not Cover” is a list of 12 specific losses the homeowners policy does not cover (exclusions). The relevant exclusions in the instant case are the family household exclusion and the vehicle exclusion. The household exclusion provides:

“2. We do not cover bodily injury to an insured person or property damage to property owned by an insured person.” (Emphasis in original.)

The vehicle exclusion provided:

“5. We do not cover bodily injury or property damage arising out of the ownership, maintenance, use occupancy, renting, loaning, entrusting, loading or unloading of any motorized land vehicle or trailer. However, this exclusion does not apply to:
(a) a motorized land vehicle in dead storage or used exclusively on an insured premises;
(b) any motorized land vehicle designed principally for recreational use off public roads unless that vehicle is owned by an insured person and is being used away from an insured premises;
(c) a motorized wheel chair;
(d) a vehicle used to service an insured premises which is not designed for use on public roads and not subject to motor vehicle registration;
(e) a golf cart owned by an insured person when used for golfing purposes;
(f) a trailer of the boat, camp, home or utility type unless it is being towed or carried by a motorized land vehicle;
(g) bodily injury to a residence employee.” (Emphasis in original.)

The parties agreed that Maria, as a dependant residing with the insured, Chris Eggermont, was an “insured person” under the terms of the policy. Allstate argued that the nature of the defendant’s contribution claim was controlled by the underlying claim, which was a bodily injury to Maria. Since Maria was an “insured person” and the household exclusion excluded coverage for bodily injury to an insured person, Allstate had no duty to defend or indemnify Eggermont in a contribution suit against her for injuries sustained by her daughter, Maria. Defendants do not dispute this interpretation and application of the family household exclusion. Defendants argued that the vehicle exclusion contains numerous explicit exceptions and thus provides insurance coverage for vehicles. Since the policy provides insurance for certain vehicles, it is a policy of vehicle insurance as defined in Class 2(b) of section 4 of the Code (Ill. Rev. Stat. 1985, ch. 73, par. 616(b) (Class 2)) and is subject to applicable laws regulating provisions contained in policies of vehicle insurance. Defendants argued that one such regulation is section 143.01(a) of the Code, which renders a family household exclusion contained in a policy of vehicle insurance inapplicable to a third-party’s suit for contribution against a member of the injured person’s family. (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a).) The trial court, relying on a case with similar facts (State Farm Fire & Casualty Co. v. Holeczy (1987), 152 Ill. App. 3d 448, 504 N.E.2d 971), ruled that section 143.01 of the Code was not applicable to the homeowners policy issued by Allstate, and, therefore, the family household exclusion was not thereby rendered inapplicable to the contribution suit filed against Eggermont. However, the trial court found that a plain reading of exception (d) of the vehicle exclusion provided coverage for bodily injuries arising out of the use of a vehicle used to service an insured premises, i.e., a riding lawn mower. The trial court reasoned that the family household exclusion, which when read alone would exclude coverage for the contribution suit, was ambiguous in light of the granting of coverage contained in the exceptions to the vehicle exclusion. Having found an ambiguity on the issue of coverage for the injuries sustained by Maria, the trial court construed the contract against Allstate and in favor of coverage and granted defendant Banks’ motion for judgment on the pleadings.

On appeal, Allstate argues that the trial court erred when it found the policy ambiguous. Allstate contends that the coverage, for certain vehicles granted by the exceptions to the policy’s vehicle exclusion, does not render ambiguous the clear statement excluding coverage for bodily injuries to an insured person contained in the family household exclusion clause. We agree

Where an ambiguity exists in an insurance policy the policy is to be construed liberally to effectuate coverage. (Allstate Insurance Co. v. Stewart (1987), 158 Ill. App. 3d 129, 511 N.E.2d 188.) However, this rule of construction is inapplicable where no real ambiguity exists. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) A policy provision is ambiguous if, considering the policy as a whole, it is subject to more than one reasonable interpretation. (Allstate Insurance Co. v. Stewart (1987), 158 Ill. App. 3d 129, 511 N.E.2d 188.) If the words of a policy can reasonably be given their plain, ordinary and popular meaning, the provisions should be applied as written, and the parties should be bound by the agreement made. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) The interpretation and construction of an insurance policy where there are no material issues of fact is a question of law, and a reviewing court may make an independent determination on such a question. Rymer v. Kendall College (1978), 64 Ill. App. 3d 355, 380 N.E.2d 1089.

We find no ambiguity in the disputed policy. Defendants’ argument for the existence of an ambiguity, which was accepted by the trial court, is based upon the structure of the exclusions section. We find this interpretation of the instant policy unreasonable. In Brochu, our- supreme court had an occasion to interpret a home builder’s general comprehensive liability policy which was very similar to the structure of Allstate’s policy in the instant case. In the Brochu case, immediately following the coverage portion of the policy, there was a list of 19 separate exclusions. The court stated: “These exclusions define the limits of coverage actually provided. If any one of the exclusions applies there is no coverage. Thus, they are an integral part of the policy which must be considered in determining the scope of coverage.” (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 494, 475 N.E.2d 872, 876.) The defendants in Brochu argued, as do defendants in the instant case, that an explicit exception to one of the listed exclusions provided coverage and, therefore, conflicted with and rendered ambiguous other exclusions which appeared applicable to exclude or limit the coverage granted by the exception to an exclusion. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495, 475 N.E.2d 872, 876.) The court in Brochu rejected this interpretation and found that the granting of coverage by way of an exception to an exclusion did not prevent limitation of such coverage by other clear and unambiguous exclusions listed in the exclusions section. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 496-97, 475 N.E.2d 872, 876 (relying on cases from other jurisdictions that held under similar facts that exceptions to exclusions remain subject to and limited by all other related exclusions).) We find the reasoning in Brochu controlling in the instant case. While exception (d) to the vehicle exclusion grants liability coverage for accidents involving service vehicles such as a riding lawn mower, the family household exclusion limits such coverage where the bodily injury is to an insured person.

However, upon review of an order granting a motion for judgment on the pleadings, an appellate court must affirm on any proper grounds raised in the motion. (Village of Lake In The Hills v. Illinois Emcasco Insurance Co. (1987), 153 Ill. App. 3d 815, 506 N.E.2d 681.) While we agree with Allstate that the policy is not ambiguous as far as application of the family household exclusion, we decline to reverse the trial court because we agree with defendants’ original argument below and again made on appeal that the policy is one of vehicle insurance to which section 143.01 of the Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01) is applicable, thus rendering unenforceable the provisions of the family household exclusion as applied to the contribution suit against Eggermont.

Class 2(b) of section 4 of the Code, which defines classes of insurance, provides in relevant part:

“Class 2. Casualty, Fidelity and Surety.

***

(b) Vehicle. Insurance against any loss or liability resulting from or incident to the ownership, maintenance or use of any vehicle (motor or otherwise), draft animal or aircraft.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 73, par. 616(b) (Class 2).)

The term “vehicle” as used within the text of the definition under Class 2(b) of section 4 is not defined in the Insurance Code. (Ill. Rev. Stat. 1985, ch. 73, par. 616(b) (Class 2).) Where the legislature does not define a term, the courts will assume that the legislature intended the term used to have its ordinary and popularly understood meaning, unless to do so would defeat the perceived legislative intent. (People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473.) “Vehicle” is defined in relevant part as “a carrier of goods or passengers.” (Webster’s Third New International Dictionary 2538 (1981).) A riding lawn mower fits within the definition of a vehicle. Allstate does not contend otherwise and, in fact, refers in its brief to a riding lawn mower as being “a vehicle used to service an insured premises” and, therefore, falling within exception (d) to the policy’s vehicle exclusion provision. Further, Allstate’s policy grants coverage, with certain limitations not relevant here, by way of exceptions (a) through (f) to its general vehicle exclusion. Vehicles covered by these exceptions include motorized land vehicles used exclusively on an insured premises, motorized land vehicles designed principally for recreational use off public roads, motorized wheel chairs, golf carts and trailers. Of further note, Allstate’s policy, although entitled homeowners insurance, does contemplate insuring vehicles under certain circumstances as evidenced by its definition of “insured person” contained in the policy. This definition provides in relevant part:

“Under the Family Liability Protection coverage and the Guest Medical Protection coverage, ‘insured person’ also means:

* * *

(d) with respect to the use of any vehicle covered by this policy, any person while engaged in the employment of an insured person." (Emphasis in original.)

We find that a riding lawn mower is a vehicle and that the policy is a policy of vehicle insurance as defined under Class 2(b) of section 4 of the Code in that the policy does insure against loss or liability resulting from or incident to the ownership, maintenance or use of a vehicle (motor or otherwise). (See Ill. Rev. Stat. 1985, ch. 73, par. 616(b) (Class 2).) Section 143.01 of the Code provides in relevant part:

“A provision in a policy of vehicle insurance described in Section 4 [(Ill. Rev. Stat. 1985, ch. 73, par. 616)] excluding coverage for bodily injury to members of the family of the insured shall not be applicable when a third party acquires a right of contribution against a member of the injured person’s family.” (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a).)

The policy’s effective date is August 20, 1984, and section 143.01(a) of the Code became effective July 11, 1984. (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a); see State Farm Fire & Casualty Co. v. Ondracek (1988), 173 Ill. App. 3d 581, 527 N.E.2d 889 (holding section 143.01(a) of the Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a)) was only applicable to insurance contracts entered after effective date of statute).) Section 143.01 of the Code precludes application of a family household exclusion contained in a policy of vehicle insurance to third-party suits for contribution against members of the injured person’s family. (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a).) Accordingly, Allstate is required to defend and indemnify Eggermont in a suit for contribution against Eggermont for injuries sustained by Eggermont’s daughter, Maria.

We do not agree with the trial court’s application of State Farm Fire & Casualty Co. v. Holeczy (1987), 152 Ill. App. 3d 448, 504 N.E.2d 971, to the policy involved in the instant case. The facts of Holeczy are similar in that the parents of a child injured by a riding lawn mower operated by the injured child’s brother were sued for contribution by the manufacturer of the lawn mower. The parents tendered defense of this third-party contribution suit to State Farm Fire and Casualty (State Farm), which was the issuer of the parents’ homeowners policy. The court in Holeczy rejected the parent’s contention that State Farm’s homeowners policy, in fact, provided vehicle coverage and thus was a policy of vehicle insurance to which section 143.01 applied, rendering the family household exclusion unenforceable. (State Farm Fire & Casualty Co. v. Holeczy (1987), 152 Ill. App. 3d 448, 504 N.E.2d 971.) However, the court in Holeczy reached this result through its reliance on its interpretation of State Farm’s policy. We find the policy of Allstate’s at issue in the instant case varies significantly from the policy at issue in Holeczy.

The court in Holeczy relied on a provision in State Farm’s policy excluding from coverage “bodily injuries or property damage arising out of the ownership, maintenance, use, loading or unloading of *** (2) a motor vehicle owned or operated by, or rented or loaned to any insured.” (152 Ill. App. 3d at 451, 504 N.E.2d at 973.) In Holeczy, the court found that the only “vehicle-related casualty” for which coverage might be available is one involving property damage to the mower itself as an unlicensed service vehicle under the “personal property coverage.” (152 Ill. App. 3d at 452, 504 N.E.2d at 973.) The court in Holeczy reasoned that even if the riding lawn mower was a vehicle under section 4 of the Code (Ill. Rev. Stat. 1985, ch. 73, par. 616), State Farm’s policy did not cover liability for bodily injury arising from the use of this vehicle in the first instance. Therefore, regardless of the family household exclusion, the policy certainly did not cover a third-party suit for contribution arising out of an incident for which State Farm’s policy never provided coverage. (152 Ill. App. 3d at 451, 504 N.E.2d at 973.) Unlike State Farm’s policy, Allstate’s policy, as previously discussed, does provide liability coverage for bodily injuries arising out of the use of certain vehicles including a riding lawn mower.

Allstate in its reply brief argues that, in fact, the State Farm policy at issue in Holeczy is “virtually identical” to Allstate’s policy in the instant case in that it provided liability coverage for bodily injury arising from the use of a service vehicle, namely, a riding loan mower, and, thus, Holeczy was properly applied by the trial court. Allstate’s argument ignores the fact that the Holeczy court, whether correctly or incorrectly, drew the exact opposite conclusion from its interpretation of the State Farm policy as to liability coverage for bodily injuries arising out of the use of a riding lawn mower. Whether we agree with the Holeczy court’s specific interpretation of the State Farm policy is irrelevant and ignores the real issue. The opinion expressed in Holeczy relies on that court’s view that the State Farm policy does not provide liability coverage as opposed to the interpretation of Allstate’s policy in the instant case, which is that liability coverage is provided under exception (d) to the vehicle exclusion. The Ho-leczy opinion cannot be divorced from that court’s interpretation of the State Farm policy, as Allstate attempts to have us do. Based upon the Holeczy court’s interpretation of the State Farm policy, that court did not decide the issue before us on this appeal. Accordingly, we find the trial court erred in its reliance on Holeczy.

Nor do we find that Country Mutual Insurance Co. v. Jacobus (C.D. Ill. 1985), 601 F. Supp. 937, cited by Allstate, directly addresses the facts involved in the instant case. In Jacobus, the court refused to find a family household exclusion, contained in a liability policy which provided multiple coverages including vehicle, inapplicable under section 143.01(a) of the Code (Ill. Rev. Stat. 1985, ch. 73, par. 755.01). However, the court in Jacobus relied on the fact that bodily injury arose out of the use of a grain auger which it found was not a “vehicle” as that term is used under Class 2(b) of section 4 of the Code defining policies of vehicle insurance. (Ill. Rev. Stat. 1985, ch. 73, par. 616(b) (Class 2); Country Mutual Insurance Co. v. Jacobus (C.D. Ill. 1985), 601 F. Supp. 937.) The two cases relied upon by Allstate, to argue that section 143.01 of the Code does not apply, are distinguishable because, unlike those cases, the bodily injury in the instant case arose (1) incident to the use of a vehicle and (2) liability coverage was provided under the terms of the policy for injury incident to that use of the vehicle. As previously explained, under such facts, section 143.01(a) of the Code prohibits the application of family household exclusions to third-party suits for contribution against members of the injured person’s family. Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a).

Allstate argues that our application of section 143.01 of the Code to the facts of this case was never intended by the legislature. Allstate argues that the “clearest indication of the legislative intent comes from the General Assembly itself.” Allstate then relies upon the statements of two members of the General Assembly which refer to automobile insurance policies when debating passage of section 143.01(a). Allstate then argues “it is patently clear that the legislature intended the section to apply only to automobile liability policies.” We find little, if any, merit to this argument. First, legislative intent speaks to the will of the legislature as a collective body, rather than the will of individual legislators (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 509 N.E.2d 996), and statements made on the floor during legislative debate do not in and of themselves affirmatively establish legislative intent. (Old Ben Coal Co. v. Human Rights Comm’n (1986), 150 Ill. App. 3d 304, 501 N.E.2d 920.) Second, the statutory language itself is the best indication of the intent of the drafters, and where intent can be ascertained from the language of the statute, it will be given effect without resort to extrinsic aids for construction. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) Our reading of the Code (see Ill. Rev. Stat. 1985, ch. 73, par. 613 et seq.) does not support Allstate’s argument that the legislature intended section 143.01(a) (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a)) to apply only to automobile liability policies. Section 143.01(a) by its reliance on the classification contained in Class 2(b) of section 4 of the Code (Ill. Rev. Stat. 1985, ch. 73, par. 616(b) (Class 2)) explicitly applies to “any vehicle (motor or otherwise), draft animal or aircraft.” (Ill. Rev. Stat. 1985, ch. 73, par. 755.01(a).) Further, if the legislature intended section 143.01(a) of the Code to apply only to automobile insurance policies as opposed to policies of vehicle insurance as defined in Class 2(b) of section 4, it could have easily done so by limiting application of section 143.01(a) to policies of automobile insurance as defined under section 143.13(a) (Ill. Rev. Stat. 1985, ch. 73, par. 755.13(a); see People v. Russell (1986), 143 Ill. App. 3d 296, 492 N.E.2d 960 (where legislature uses certain words in one instance and different words in another, different results were intended)). To accept Allstate’s argument and to interpret section 143.01(a) to apply only to policies of automobile insurance would be unreasonable and violate well-established rules of statutory construction. (See In re Annexation to City of Prospect Heights (1982), 107 Ill. App. 3d 1045, 438 N.E.2d 574 (where statute can be reasonably interpreted so as to give effect to all its provisions, a court will not adopt a strained reading which renders a part superfluous).) Lastly, by this holding, we do not, as Allstate argues, hold that a family household exclusion, contained in an insurance policy which also provides some vehicle insurance, is totally inapplicable even where no vehicle is involved in the incident giving rise to the liability of the insured. We only hold that to the extent a policy of insurance, or a part thereof, provides vehicle insurance as defined under Class 2(b) of section 4, and only to such extent, section 143.01(a) applies and renders the household family exclusion contained in the policy inapplicable to third-party suits for contribution against a member of the injured person’s family. 111. Rev. Stat. 1985, ch. 73, par. 755.01(a).

The judgment of the circuit court is affirmed.

Affirmed.

McLaren and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    VULCAN METALS PRODUCTS, INC., Plaintiff and Counterdefendant-Appellant, v. LYNN B. SCHULTZ, Defendant and Counterplaintiff-Appellee.
    Third District
    No. 3—88—0331
    Opinion filed January 30, 1989.
    Rehearing denied April 11, 1989.

      Arthur J. Inman, of Peoria, for appellant.
    Cusack & Fleming, P.C., of Peoria (Michael A. Fleming, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Vulcan Metal Products, Inc. (Vulcan), filed suit against Lynn Schultz for money due pursuant to a written contract. Various motions were filed, and the trial court entered summary judgment in Vulcan’s favor. The judgment was vacated on Schultz’ motion and following a bench trial, the court entered judgment in favor of Schultz. Vulcan filed the instant appeal.

Lynn Schultz planned to enter into the replacement window business, and after several meetings with a Vulcan salesman, he ordered equipment and materials worth $6,321.33 from Vulcan. He later signed an agreement with Vulcan in which he unconditionally guaranteed the payment of all indebtedness incurred by his business and all legal expenses incurred in the collection of any indebtedness. Schultz did not pay for the merchandise and Vulcan instituted legal proceedings on February 3, 1986, to collect the amount due. Schultz did not file an answer to the complaint.

Schultz appeared on March 7, 1986, as required by the summons, but he appeared without counsel. Although Schultz was apparently given additional time to file an answer to the complaint, he failed to do so, and on May 1, Vulcan filed a motion for default judgment, summary judgment, or judgment on the pleadings. At the June 10, 1986, hearing on the motion, Schultz again appeared pro se. Vulcan’s motion was denied and Schultz was given an additional 30 days to file an answer.

On June 12, 1986, Vulcan served Schultz with a request to admit certain facts pursuant to Supreme Court Rule 216 (107 111. 2d R. 216). Therein, Vulcan requested Schultz to admit that an exhibit attached to the complaint was an accurate copy of the guarantee he had signed, that other attached exhibits accurately reflected the invoices and the statement of account of dealings between the parties, and that he owed Vulcan $6,795.15 plus fees and costs according to the terms of the guarantee. Schultz did not respond to the request within 28 days as required in Rule 216. Nor did Schultz file an answer to the complaint within the 30-day period provided by the trial court. Vulcan filed a motion for summary judgment on August 6, 1986, on grounds that Schultz failed to answer the complaint and that the failure to respond to the Rule 216 request admitted the matters of fact set forth in the request.

At the August 6 hearing on Vulcan’s motion, Schultz appeared pro se. The trial court entered judgment in favor of Vulcan in the amount of $7,020.15 for the sum due and attorney fees, plus costs of $81.25.

On September 8, 1986, Schultz’ newly retained attorneys filed a motion to vacate the judgment. Schultz alleged that he had a meritorious defense and counterclaim and that he was not represented by counsel before September 8. The trial court granted the motion to vacate on October 22 and ordered Schultz to answer the complaint and respond to the request to admit within 14 days.

On November 5, 1986, Schultz filed a response to Vulcan’s request to admit and an answer to the complaint. He also filed a counterclaim alleging that the equipment Vulcan .sold him was defective and caused him to suffer the loss of expenses incurred in organizing his business. He sought damages in the amount of $7,150.

The cause proceeded to trial and evidence was presented on June 10, 1987, and March 23, 1988. Schultz testified that after he decided to enter into the replacement window business, he spoke on several occasions with Mike Johnson, a Vulcan salesman. According to Schultz, Johnson told him he would need a business name, a place to operate the business, and certain equipment. Schultz testified that based on Johnson’s advice, he purchased window-making machinery and equipment for $17,239 and office equipment for $1,309. He also entered into a six-month lease and his rental payments were $325 per month. Johnson ordered the necessary equipment and supplies from Vulcan so Schultz could begin making replacement windows. The equipment and supplies cost $6,321.33. Schultz testified that Johnson told him that after the shipment arrived, someone from Vulcan would fine-tune the machinery and show him how to make a window. Pursuant to Vulcan’s request, Schultz signed a document in which he guaranteed payment of all indebtedness incurred by his business and further promised to pay all costs and attorney fees incurred in collecting the debt.

The shipment arrived from Vulcan in January 1985. A Vulcan employee, John Erskine, was sent to help Schultz set up his shop and to demonstrate the window manufacturing process. According to Schultz, Erskine spent three days in his shop, but was never able to manufacture a merchantable window. Erskine told him the equipment would not manufacture a window, Schultz said. Schultz further stated that the Vulcan salesman, Johnson, later replaced the flag bar, the piece of equipment which was apparently defective, but they were still unable to construct a window.

Schultz testified that after Erskine’s unsuccessful demonstration session, he made repeated requests for help, but further assistance from Vulcan never arrived and he was never able to manufacture windows. Schultz admitted he had not paid for the merchandise he received from Vulcan. Schultz stated that Vulcan agreed to accept return of the merchandise, but indicated that it would not accept open cartons. According to Schultz, Erskine opened every carton in the shipment, so he was unable to return any.

Finally, Schultz testified about financial losses he sustained. He testified about the amounts he paid for rent, utilities, and wages. He also stated that from September 1, 1984, until July of 1985, he spent a minimum of eight hours per day at his shop. Furthermore, Schultz stated that he and Johnson calculated the amount of profit he would make on each window and discussed projected sales for the Peoria area. At the beginning of the second day of trial, shortly before Schultz completed his testimony, he was permitted, over objection, to increase the prayer in his counterclaim from $7,150 to $57,045.

Mike Johnson, the Vulcan salesman Schultz worked with, testified on Schultz’ behalf. He acknowledged that he told Schultz that Vulcan would provide trained assistance in setting up the shop. He stated that the window-making equipment Schultz purchased on his own was necessary to set up the shop. Like Schultz, Johnson testified that Erskine made numerous attempts to manufacture a window, but was ■unable to construct a merchantable window. He stated that Erskine determined the flag bar was the problem and ordered a new one, which arrived while Erskine was in Peoria, but they were still unable to construct a window of salable quality. Johnson testified that he brought a third flag bar to Schultz in February or March of 1985, but they could not get good results with that one, either.

Johnson testified that based on cost information provided by Schultz, he believed Schultz would have made an average profit of $38.03 per window. He also stated that he estimated that Schultz would' have been able to sell 1,000 to 1,500 windows per year. On cross-examination, Johnson acknowledged that the projected sales could be negatively affected by the economy, the window manufacturer’s lack of skill, and failure to devote sufficient time to the business.

Bob Calkin, a plant manager for a window manufacturing company with experience in the business, testified that on the previous evening, he tried to construct a window using the equipment at Schultz’ business, but was unable to do so. He stated that he tried two flag bars and neither worked. Calkin testified that if the flag bar had been drilled correctly, he could have manufactured a window with Schultz’ equipment.

John Erskine testified by way of evidence deposition. He stated that the flag bars were the only problem and their performance was not satisfactory. However, he testified that by correcting the flag bar’s error by hand, he was able to manufacture a window and demonstrate the process to Schultz.

On April 20, 1988, the circuit court issued its judgment. The court stated that it found the issues for Schultz and against Vulcan. Accordingly, the court dismissed the complaint and entered judgment in favor of Schultz on the counterclaim in the amount of $45,758.50 plus court costs. Vulcan perfected the instant appeal.

Vulcan first argues that Schultz’ motion to vacate, filed 33 days after entry of summary judgment, was untimely and should have been denied because the trial court was without jurisdiction to grant it. We disagree. The Illinois Supreme Court has repeatedly held that where a court loses jurisdiction as the result of the expiration of 30 days following entry of a judgment or decree dismissing the action, and where a motion to vacate is pending, the parties may, by appearing voluntarily and participating in further proceedings, revest the court with jurisdiction over their persons and the subject matter of the action. (E.g., Weisguth v. The Supreme Tribe of Ben Hur (1916), 272 Ill. 541; Craven v. Craven (1950), 407 Ill. 252.) In Weisguth, the court quoted from an earlier case, Herrington v. McCollum (1874), 73 Ill. 476, in which it stated, “The defendants, to avail of the right to question the jurisdiction of the court when the case was re-instated, should either have not appeared at all or limited their appearance to the objection against the jurisdiction of the court.” 272 Ill. at 543.

For the revestment rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. (People v. Kaeding (1983), 98 Ill. 2d 237.) In Sears v. Sears (1981), 85 Ill. 2d 253, the supreme court determined that the doctrine did not apply because the post-judgment hearing at which the parties appeared did not' concern the merits of the judgment and the participants did not ignore the judgment and begin to retry the case, thereby implying their consent to have the judgment set aside. In the case at bar, the record reflects that Vulcan objected to the motion to vacate, but it does not appear that Vulcan raised the jurisdictional issue at that time, or at any time prior to this appeal. Furthermore, after the summary judgment was vacated, Vulcan actively participated in further discovery and a two-day trial. Vulcan’s actions were inconsistent with the prior judgment and served to revest the court with jurisdiction.

Next, Vulcan argues that the court erred in permitting Schultz to file untimely responses to the Rule 216 request to admit. After acknowledging that there is disagreement among the districts of the Illinois Appellate Court on the issue of whether late filing of responses is permissible, this court noted that the Third District has consistently held that a litigant’s failure to file a timely response under Rule 216(c) results in automatic admission of the facts as stated in the request. (Johannsen v. General Foods Corp. (1986), 146 Ill. App. 3d 296.) Unlike the plaintiff in Johannsen, however, Vulcan failed to promptly move the court to strike the late-filed response or to otherwise object to the order permitting the tardy filing until the case reached the appellate level. Under such circumstances, we find that Vulcan waived the issue of late filing and is precluded from raising it on appeal. See Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669.

Vulcan next alleges that the trial court improperly admitted evidence in violation of the parol evidence rule. (Ill. Rev. Stat. 1987, ch. 26, par. 2—202.) Specifically, Vulcan contends that testimony relating to the discussions between Schultz and Johnson contradicted the terms of the guarantee Schultz signed and therefore should not have been admitted. We disagree. The parol evidence rule provides that terms set forth in a writing intended by the parties as a final expression of their agreement may not be contradicted by evidence of an earlier or a contemporaneous oral agreement. However, the evidence in this case establishes beyond question that the guarantee Schultz signed enabled him to receive credit with Vulcan and was never intended to be the final, complete expression of the parties’ agreement. Therefore, testimony about other terms did not violate the parol evidence rule.

Vulcan also argues that the court erred in admitting evidence of Schultz’ alleged loss of income and sales. Vulcan claims it was error because Schultz’ counterclaim alleged only that he suffered the loss of expenses incurred in organizing his business and because the evidence submitted was speculative. Schultz contends that the evidence was properly admitted and, alternatively, that any error in admitting it was harmless because the court did not consider it in awarding damages. We agree with Vulcan. Although Schultz alleged that the materials supplied by Vulcan were defective, he claimed only that he suffered expenses incurred in organizing the business. Lost profits are not in that category and that evidence should have been excluded. Furthermore, lost profits are allowed for compensation for breach of contract only when they can be proved with reasonable certainty. (E.g., F.E. Holmes & Son Construction Co. v. Gualdoni Electric Service, Inc. (1982), 105 Ill. App. 3d 1135, 1141.) This standard of proof was clearly not satisfied here. Schultz testified that based on a survey of uncertain origin, Johnson told him he could sell 3,000 windows annually and make an average profit of $38.03 per window. The related exhibit Schultz offered into evidence contains sales projections for 3,000 windows; however, the exhibit also contains sales projections based on annual sales of 2,000 units and 1,500 units. Johnson testified that a realistic figure for Schultz’ business would have been 1,000 to 1,500 windows per year. Furthermore, Johnson acknowledged that sales could be negatively affected by numerous factors, including the economy, lack of skill in manufacturing windows, and failure to devote the amount of time necessary to the business. Accordingly, we find the evidence on lost profits to be remote and speculative, and it should not have been considered by the court.

Schultz contends that the court did not consider the evidence of lost profits and therefore reversal is not required. Schultz notes that during his closing argument, he used a document summarizing the evidence on damages and lost profits. The total amount requested, excluding lost profits, was $45,758.50. This is the precise amount awarded by the court, and Schultz therefore concludes that the court did not award damages for lost profits. The trial court’s order merely awarded damages to Schultz and does not explain how the amount was determined. Because we are unable to state with certainty that the court did not consider the evidence of lost profits or that any such consideration did not affect the outcome, we must reverse the award and remand the cause for a determination of damages.

We note that the summary document Schultz used during closing argument is not part of the record and, furthermore, it contains both evidence which conflicts with that he presented at trial as well as evidence never introduced at trial. According to the document, Schultz worked an average of 20 hours per week at the shop from September 1, 1984, until July 1, 1985, and his time was worth $12 per hour. However, Schultz testified at trial that he worked a minimum of eight hours per day during that period, and no evidence was presented to prove the value of Schultz’ time. During closing arguments, counsel may not supply new or additional facts not in the record. (See Leonard v. Pitstick Dairy Lake & Park, Inc. (1984), 124 Ill. App. 3d 580.) Schultz’ mischaracterization of the evidence coupled with the improper presentation of new evidence in his summary document lends further support for our decision that the damage award must be reconsidered.

Lastly, Vulcan argues that the decision in favor of Schultz is against the manifest weight of the evidence. The findings and judgment of a trial court in a nonjury case will not be disturbed by the reviewing court if there is any evidence in the record to support them. (Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 23.) After a careful review of the record here, we are satisfied that the judgment in favor of Schultz is amply supported by the evidence.

In summary, we affirm the judgment of the trial court in favor of Schultz, but reverse the award of damages and remand the cause for a redetermination of damages to be made in accordance with this opinion.

Affirmed in part; reversed in part and remanded.

STOUDER, P.J., and WOMBACHER, J., concur.


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    BERT J. SWINGER et al., Petitioners-Appellants, v. MUNICIPAL OFFICERS’ ELECTORAL BOARD OF THE VILLAGE OF FAIRVIEW et al., Respondents-Appellees.
    Third District
    No. 3—88—0343
    Opinion filed February 3, 1989.
    Rehearing denied April 10, 1989.

      Malmgren Law Offices, Ltd., of Canton (Jesse H. Malmgren, of counsel), for appellants.
    Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago, and Kost & Kost, of Lewistown (Joseph A. Murphy, Keith A. Kost, and John J. McCarthy, of counsel), for appellees Robert A. Erickson and Monti Thompson.
    John J. McCarthy, of Canton, for appellee Municipal Officers’ Electoral Board of the Village of Fairview.
   JUSTICE HEIPLE

delivered the opinion of the court:

This appeal involves the annexation of approximately 3,000 acres into the Village of Fairview (Village) in Fulton County, Illinois. On November 2, 1987, the corporate authorities of the Village passed an ordinance annexing the acreage into the Village. Thereafter, the appellants filed with the village clerk a petition calling for a back-door referendum on the question of the annexation of the subject property into the Village. Subsequently, on January 5, 1988, objections to the petition for referendum were also filed with the village clerk. The Village then referred the petition • for referendum and the objections thereto to the Municipal Officers’ Electoral Board (Electoral Board).

After hearings were held, the Electoral Board found that it had subject matter jurisdiction over the controversy. The Electoral Board then went on to declare that the petition for referendum was invalid since the petition failed to meet mandatory structural requirements of section 28 — 3 of the Illinois Election Code concerning the manner in which signers of the petition are to show their residence addresses, and the need for consecutive numbering of the pages of the petition. (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 3.) The Electoral Board further found that the petition for referendum was a “petition for a public question referendum” (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 1), rather than a section 7 — 1—6 petition for referendum on an annexation matter (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—6), two entirely distinct and separate matters. Additionally, the Electoral Board found that under the Illinois Municipal Code a section 7 — 1—6 petition calling for a referendum does not apply to a section 7 — 1—8 annexation. (Ill. Rev. Stat. 1987, ch. 24, pars. 7 — 1—6, 7 — 1—8.) The circuit court affirmed the decision of the Electoral Board. We, however, reverse for the reason that the objections to the petition for referendum were not timely filed. Thus, the Electoral Board never acquired subject matter jurisdiction and therefore had no authority to invalidate or even consider the petition for referendum.

The petition for referendum states on its face that it is a petition circulated and filed pursuant to section 7 — 1—6 and calls for a back-door referendum. Section 7 — 1—6 provides that a petition calling for a back-door referendum shall be filed within 30 days following the date of final Village Board action on the annexation question. (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—6.) The final action taken by the Fairview Village Board on the annexation question occurred on November 2, 1986. Consequently, the last day to file a section 7 — 1—6 petition for referendum was on December 2, 1987. Additionally, section 10 — 8 of the Illinois Election Code provides that a petition for referendum shall be deemed to be valid unless objections are made in writing within five business days after the last day for filing the petition. (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8.) That is to say, by December 7, 1987. The appellees, however, did not in fact file their objections to the petition until January 5, 1988, a period of time well past the December 7, 1987, deadline for filing objections. Accordingly, the objections were untimely.

Since the Electoral Board never acquired subject matter jurisdiction, nothing flowing from the Electoral Board’s proceedings and the subsequent circuit court affirmance has any validity. The proceedings of the Electoral Board being a nullity, we reverse the order of the circuit court which affirmed those proceedings.

As a final comment on the question of subject matter jurisdiction, it should also be noted that the Electoral Board committed an initial jurisdictional and classification error when it characterized the petition for referendum as a “petition for a public question,” which is a wholly different matter. (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 1.) While under such an erroneous classification, the objections to such a petition would have been timely filed, the Electoral Board’s characterization of the petition was incorrect. The petition for referendum was on its face designated as a section 7 — 1—6 petition calling for a backdoor referendum on the question of the annexation of the subject property into the Village. It did not seek an advisory referendum on a public policy question.

Although the above ruling is a complete disposition of the matter, we further note the following: The initial annexation ordinance of the Village was pursuant to section 7 — 1—8 (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—8). This section provides that before annexation can occur all of the landowners and a majority of the resident electors must have agreed in advance to be annexed. This form of annexation under the statute contains no provision for a referendum.

Petitioners sought a back-door referendum on the annexation, however, pursuant to section 7 — 1—6, a statutory section which was wholly inapplicable to the type of annexation accomplished by the Village acting pursuant to section 7 — 1—8. Had correct procedures been followed, the governing body of the Village, the Village Board, would have simply voted to reject the petition for referendum upon its filing as the nullity that it was. Properly, that would have been the end of the matter.

For the reasons given, we reverse the order of the circuit court of Fulton County.

Reversed.

WOMBACHER and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JANET JEAN JACKSON, Defendant-Appellant.
    Third District
    No. 3-87-0638
    Opinion filed March 7, 1989.

      Daniel D. Yuhas and Gloria A. Carroll, both of State Appellate Defender’s Office, of Springfield, for appellant.
    David Zwicker, State’s Attorney, of Aledo (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Janet Jean Jackson was convicted of murder, conspiracy, solicitation, and armed robbery for her participation in the events which resulted in the death of her estranged husband, Kim Jackson. She was sentenced to natural life imprisonment for murder and received a term of 30 years’ imprisonment for armed robbery. The defendant appeals, seeking reversal and retrial or, alternatively, a remand for a new sentencing hearing. We affirm.

Kim Jackson was beaten to death in his unoccupied farmhouse in the early morning hours of November 23, 1986. The defendant, Janet Jackson, originally claimed that she and her estranged husband were attacked by an unknown assailant when they entered the dark house, but the investigation soon focused on the defendant and her two companions, Michael Miller and Tony Royark. The defendant, Miller, and Royark gave detailed statements to the police and admitted participating in Kim’s murder. On January 7, 1987, the State charged all three with armed robbery, murder and conspiracy; the defendant herein was also charged with solicitation on grounds that she encouraged or requested Miller and Royark to murder the victim.

The record in this case is extensive and spanned over 2,000 pages. Accordingly, the summation of the relevant proceedings and evidence is, of necessity, somewhat lengthy.

On February 4, 1987, the defendant filed a motion to suppress all confessions and statements she made to the police on grounds that they were not made voluntarily and they were obtained in violation of her right to counsel and her right to remain silent. After a hearing on the motion, the trial court found that the defendant had been given Miranda warnings, that her statements were made voluntarily, and that she had not requested counsel. The motion to suppress was, therefore, denied. On May 6, 1987, the defendant renewed her motion to suppress and alleged additional reasons for finding that her statements were involuntary and should be suppressed. This motion was also denied.

On May 14, 1987, the State filed a motion in limine requesting the court to exclude all testimony of Noble Harrison, a psychologist, regarding his examination of the defendant and precluding references to any opinion formed by him as a result of the examination. The State argued that the testimony would be irrelevant to the defendant’s guilt or any issue at trial. The defendant argued that she intended to show that Dr. Harrison’s report indicated she suffered from the battered woman syndrome and to use his testimony to explain the emotional characteristics of battered women to the jury. The State’s motion was granted.

During the course of the trial, the issue of whether evidence of the battered woman syndrome would be admissible was again raised. After hearing the arguments of counsel, the court reiterated that Dr. Harrison’s testimony would be precluded. The defendant inquired whether she should make an offer of proof, and the court stated it would listen to one. During a later discussion of the matter, the court stated it would not preclude the defendant from making an offer of proof, but indicated the offer would not, in all likelihood, alter its decision. The defendant elected not to make an offer of proof.

Additionally, the State made a motion in limine seeking an order precluding testimony about the victim’s abuse of the defendant prior to December of 1985. The court granted the motion, agreeing with the State that the precluded evidence would not be relevant.

Michael Miller, who was 15 years old when Kim was murdered, pleaded guilty to conspiracy (murder) (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 2(a)) and attempt (murder) (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4) and agreed to testify for the State. Tony Royark pleaded guilty to armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)), murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)), and conspiracy (murder) (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 2(a)).

Michael Miller testified about his relationship with Royark and the defendant and about the events leading up to the murder. Miller began living in the Jacksons’ home in December of 1985. The victim and the defendant were living together as husband and wife at this time. Miller admitted that he and the defendant began having a sexual relationship approximately three months after he moved in. He also admitted that he had an ongoing sexual relationship with Royark.

Miller testified that he, the defendant, Royark, and Fay Jackson, the victim’s brother, frequently discussed murdering the victim, and they began planning his murder in May of 1986. At that time, the defendant informed them that Kim had insurance policies. According to Miller, the defendant stated that she, Royark, and Miller could use the victim’s insurance money to purchase a house to rent out. He testified that Royark contacted a realtor and they viewed a house, but did not purchase it.

In August of 1986, the victim moved out of the marital residence at the defendant’s insistence. Miller stated that the first murder attempt took place on August 28, 1986, after the victim moved out. On that date, Royark loosened a gas pipe beneath the trailer in which the victim was living, in an attempt to blow up the trailer. Miller testified that after Royark was arrested for that attempt, the defendant stated that they would have to try something else because Kim was a witness. According to Miller, they had discussions about killing him with an overdose of drugs, and during September or October of 1986, the defendant gave the victim Valium in vitamin capsules.

Miller testified that in September of 1986, Todd Brown, a clerk at a convenience store, told them that his wife had a boyfriend and that a friend of his was “going to take care of it” for him. Miller stated that the defendant made repeated inquiries about the friend because she wanted him to kill her husband. According to Miller, Brown told the defendant it might cost her $3,000 to $4,000, but the defendant said that money was no object.

Miller stated that the victim secured a job with the Rock Island Post Office in September and the defendant helped him fill out his insurance papers. The defendant told Miller that she convinced the victim to increase the amount of the policy to $100,000 and to list her and the couple’s daughter as beneficiaries.

Miller also testified about the final events leading up to the murder. He stated that on Saturday, November 22, he, Fay Jackson, Roy-ark, and the defendant were at the defendant’s home, and the defendant stated she had “had it” and that was the day Kim would have to die. She stated she would get the victim to their farm, and Royark stated he and Fay would take care of him. Miller told the jury that Royark suggested beating the victim to death, and that Royark and the defendant wanted to make it look like a robbery. According to Miller, the defendant spoke with the victim by telephone and set up a date with him for later that evening. The defendant also told the victim she wanted him to move home after their date, but that she wanted to go to their farm before they moved his belongings home. Miller stated that the defendant told them that the victim would receive his paycheck that day and might be carrying approximately $800. Royark then stated that he would keep that money as part of his share. Miller testified that he and Royark later went to Royark’s house, and he went to sleep there.

Miller told the jury that at 2 a.m. on November 23, Royark awakened him and told him he would have to come along. Miller knew that Royark intended to go to the Jacksons’ farm to kill Kim Jackson. Miller stated that before he left, he picked up two pieces of pipe as Royark directed. They drove a borrowed car to the farm.

Miller continued his testimony, stating that he parked the car in the side yard, out of sight. Royark broke into the farmhouse and they entered. Miller stated that they walked into the kitchen and Royark gave him the heavier pipe, which was a gas pipe approximately one foot long, while Royark kept the lighter pipe, a water pipe which was approximately SVa feet long. Royark told Miller to give him the heavier pipe and turn on the kitchen light when Royark yelled for him.

Miller testified that the Jacksons arrived approximately 10 minutes after he and Royark entered the house. Royark moved to a doorway near the front door and crouched down, Miller said. Miller indicated that he heard the front door open, a few footsteps, and a voice he identified as the victim’s. According to Miller, the victim moved closer to Royark’s location and the defendant then asked him to turn around and give her a kiss. When the victim turned, Royark hit him twice above the shoulders. Miller stated that when Royark yelled for the heavier pipe, the defendant turned on the light and took the pipe to Royark, who hit the victim with it, causing him to fall to the floor. When Royark finished beating the victim, and he and the defendant were convinced the victim was dead, Miller and Royark prepared to leave. According to Miller, the defendant reminded Royark to take the victim’s wallet, which Royark did. The defendant stated she would stay in the house for 21A> hours, and then go to the neighbor’s house. Royark took the defendant’s purse, Miller said, and the defendant then told Royark to hit her. Royark hit the defendant in the mouth with his fist, and hit her on the head and torso with a board.

Royark and Miller left the farm in the car, and Miller said Royark threw the wallet and purse out on a rural road, after removing $100 from the wallet. They left the car at the defendant’s house and returned to Royark’s residence.

Miller testified that he was arrested on Tuesday, November 25, and admitted that before he was arrested, he and Royark disposed of the defendant’s credit cards, his shoes, the gloves they wore at the farm, and the floor mats from Royark’s truck. Miller said that Royark used some of the money he took from the victim. After he was arrested, Miller helped the police recover some of the evidence.

On cross-examination, Miller admitted that the statement he initially gave to the police was false. He said he lied to the police because he was frightened.

Duane and Michelle Jenkins, who live near the Jacksons’ farm, testified that the defendant pounded on their door at approximately 5 a.m. on November 23, 1986. Each witness stated that the defendant was hysterical and reported that her husband had been hurt at the farm.

Other witnesses for the State corroborated much of Miller’s testimony. Michael Ogryzek, a crime scene technician for the Illinois State Police, testified that a three-fourth inch gas pipe, a one-half inch galvanized water pipe, and a section of two-by-four lumber were recovered at the scene. Based on his observations of the victim and the blood spatters surrounding him, the witness concluded that the victim was struck both while standing and while lying down. Further, Ogry-zek testified that the victim’s life insurance form, showing he elected coverage five times the amount of his salary, was retrieved from the side of the rural highway, along with other papers and identification belonging to the Jacksons.

Todd Brown, the convenience store clerk, testified that a few weeks after he told the defendant that his wife had a boyfriend and he knew of a man who could take care of the boyfriend, the defendant asked Brown if he could find someone to kill her husband. Brown told her he could not, but the defendant raised the issue again approximately 10 times when she came into the store over the next three to four weeks. Brown testified that he originally did not take the defendant’s requests seriously, but during their final discussion of the matter, he thought she was serious about finding a killer.

Pam Kinner, in whose trailer the victim resided after the defendant directed him to move out of the marital residence, testified that on two occasions in August of 1986, the gas pipes under her trailer were tampered with. The witness also testified that on November 22, 1986, she heard the victim speak to the defendant by telephone, and during the course of the conversation, she heard the victim ask repeatedly what his surprise was. When he finished the telephone conversation, the victim told Kinner to pack his bags because it appeared he was going home.

Barbara Wlaskolich, the personnel assistant at the Rock Island Post Office, testified that she explained to the victim that the basic life insurance provided by the postal service was the equivalent of one year’s salary, or $20,000, but that he could purchase coverage up to five times his salary. The witness stated that Kim elected the basic $20,000 policy at that time, but wished to discuss it with his wife. Wlaskolich testified that later Kim completed a life insurance form electing optional insurance coverage at five times his pay, or $100,000. His child and the defendant were listed as beneficiaries.

Perry Munson, a real estate broker, testified that on August 19, 1986, he showed a house which was for sale to Royark. He stated that approximately two weeks later, Royark viewed the home again, this time with Miller and the defendant. Royark signed a written offer, but Munson said he discarded it because no earnest money was put down.

Over the defendant’s objection the State introduced two oral statements she made to the police. Marvin Thirtyacre, the sheriff of Mercer County, testified that he was in the interrogation room at State Police headquarters for a portion of the time when the defendant was questioned on November 25, 1986. The sheriff said that after the defendant gave her statement, while standing in a hallway awaiting transportation to jail, she approached him and said, “You forgot to ask me one thing.” When Sheriff Thirtyacre inquired what he should have asked, the defendant said, “You forgot to ask me if I would do it again.” The sheriff told the jury that he asked her if she would do it again, and the defendant answered, “Yes.” Next, the State presented the testimony of Mark Scritchfield, the officer who subsequently booked the defendant at the Rock Island sheriff’s department. The officer testified that while he was fingerprinting the defendant, she asked him what it felt like to print a murderer. He responded by asking the defendant if she had murdered someone, to which she replied, “Yes, I did.”

Lucile Hauerwas, the defendant’s aunt, testified for the defense. She stated that she and the Jacksons resided in the same house for approximately five years before the murder. The defendant attempted to elicit testimony of the victim’s treatment of her during the early part of that five-year period, but the State’s objection on grounds of relevancy was sustained. The witness was permitted to testify about an instance in September of 1986 when the victim physically and verbally abused the defendant.

Janet Jackson testified in her own defense. First, she explained the oral statements made to Sheriff Thirtyacre and Officer Scrit-chfield, which were introduced in the State’s case. The defendant stated that when she told the sheriff that he forgot to ask her one question, she believed she was under arrest for lying to the police because she gave a fictitious description of the attacker. Therefore, the defendant told the jury, when she told the sheriff that she would do “it” again, she meant that she would lie to the police and provide a false description because she was afraid of Royark, Miller, and the police. The defendant stated that when she asked the booking officer what it felt like to print a murderer, she was referring to Royark and Miller because she saw a sheet which indicated they had been charged with murder. The defendant testified that when the booking officer responded to her question by asking if she had murdered someone, she said, “I guess I did,” because the card with her fingerprints said “murderer.”

The defendant admitted she looked at a house, as the real estate broker testified, but stated that she did so because she likes to look at houses and because Royark told her it had nice woodwork.

According to the defendant, the convenience store clerk told her she should get a hit man and volunteered to locate one. She did not think the clerk was serious initially. However, the defendant testified, approximately a week and a half before the victim was murdered, the clerk told her he would kill the victim for a couple of thousand dollars because he needed the money. The defendant stated she had no further conversations with the clerk because she did not like what he had said.

The defendant acknowledged that on Friday, November 21, she obtained Valium for her husband from Royark, but said she did so because her husband had complained he was not sleeping well, and not because she intended to kill him. The defendant denied having any conversation with Miller about the Valium.

The defendant testified that after her husband began working at the Rock Island Post Office, he told her that he had taken out a $100,000 insurance policy, but she stated he did not request her assistance in filling out the insurance forms or tell her who the beneficiaries were under the policy. The defendant told the jury she did not recall speaking to Miller about her husband’s life insurance. She also stated that the letters found along the road near her purse, one of which related to the victim’s newly acquired insurance, were not in her purse when the victim was killed.

The defendant testified that her husband was a large man who sometimes shook her, pushed her, and subjected her to mental abuse. She stated that she felt helpless and that her husband dominated her completely. She provided further details of the instance of the victim’s abuse described by her aunt in her earlier testimony.

The defendant testified about the events leading up to the murder. She stated that she, Miller, and Fay Jackson spent the morning of Saturday, November 22, at Royark’s home. She made plans for a date with her husband that evening and also heard discussions regarding his murder. Several methods were discussed, the defendant said, including one in which Fay, Royark, and Miller would hide at the farmhouse and beat or shoot the victim. None of the scenarios involved the defendant, and she testified that she did not encourage the discussions, ask anyone to kill her husband, agree to help anyone kill him, or intend that he be killed. The defendant further stated that she did not believe that the discussions were of a serious nature because they were similar to a game called “murder and mayhem.” That game, according to the defendant, was played daily by her, Royark, Miller and his brother, and Fay Jackson, and involved formulating plots to murder Kim Jackson and “Elmer,” a name the group used when the defendant became upset about the use of her husband’s name.

The defendant testified that she went on the scheduled date with her husband that evening. She stated that at approximately 3:30 a.m., she told her husband she wanted to go home, but he drove them to their farmhouse instead. The defendant said they entered the dark house and she told the victim the location of the nearest light switch. She moved into another room and heard the victim say, “They are hitting me.” She switched on the lights and turned toward the room he was in, she said, but Royark and Miller blocked her path. Royark pushed her away and gave Miller a short pipe. Miller left the room and Royark hit her several times with a board. When Miller returned, he hit her with his fist, she said. Royark then hit her on the head with the board and she either passed out or the lights in the house were turned off because everything went black. She discovered her husband’s body but could not rouse him, and then crossed a field to get to the Jenkins’ house. The defendant admitted that she gave an inaccurate description of the assailants to the police artist, but testified that she did so because she did not trust the police, Royark, or Miller.

On cross-examination, the State impeached the defendant with portions of the statement she made on the night she was arrested. In her statement to the police, the defendant admitted that she, Royark, Miller, and sometimes Fay Jackson had talked about her husband’s murder since the summer of 1986, and that she knew Royark and Miller would be waiting for her husband at the farm. In her statement, the defendant also admitted that on the night of the murder, Royark told her he intended to beat the victim up for his wallet and would also take the defendant’s purse, to make it look like a robbery.

Following closing arguments and deliberations, the jury returned guilty verdicts on the counts of solicitation, conspiracy, murder, and armed robbery. Pursuant to a stipulation signed by Janet Jackson, Tony Royark, their attorneys, and an attorney for the State, a joint death-penalty sentencing hearing was held before the court. Under the terms of the stipulation, the court was to consider all of the evidence adduced at the defendant’s trial to determine an appropriate penalty for her, and in a unitary hearing for Royark, was to consider the evidence from the trial and further cross-examination of Miller to determine Royark’s eligibility for the death sentence and his penalty. The stipulation provided that all of the parties would be permitted to introduce new evidence regarding aggravating and mitigating factors.

The trial court initially found that the defendant was eligible for the death penalty because three aggravating factors were present: the murder was committed during the course of another felony, armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 9-l(b)(6)(a)(ii)); the defendant planned to procure the victim’s insurance proceeds (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(5)); and the victim was murdered with the intent to prevent him from testifying against Royark in the arson case (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(8)).

Royark’s hearing was then held. He testified about his relationship with the defendant and Miller and the events leading up to the murder. Royark’s testimony covered various other topics, including previous plans to murder the victim and the group’s intention to purchase a house so they could all live together. Counsel and the court specifically stated that Royark’s testimony concerning the defendant would be considered only as to Royark.

The defendant’s evidence in mitigation was subsequently presented. Dr. Noble Harrison testified that the defendant was experiencing some elements of the battered woman syndrome, in that she had difficulties forming close relationships with males, was dependent and needed male companionship, and sometimes had difficulty making sound judgments. He also found that the defendant had a tendency to be amoral and was immature emotionally. The psychologist stated that the defendant was influenced by the elements he mentioned, but at no time was she incapable of making sound decisions based on any relevant mental disorders.

The defendant testified about the emotional and physical abuse the victim inflicted on her during the early years of their marriage. The State questioned her about letters and love notes she had delivered to Royark during their incarceration. The State then argued for imposition of the death penalty.

The court found sufficient mitigating factors to preclude imposition of the death sentence but found the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty, pursuant to section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(2)). After noting that it previously determined that statutory aggravating factors under section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)) existed, the court sentenced the defendant to natural life imprisonment for murder and to 60 years’ imprisonment for armed robbery. Following a hearing on the defendant’s post-trial motion, the court reduced the 60-year term to a term of 30 years. The defendant filed a motion for a new trial, which was denied, and she now appeals.

The defendant first argues that the trial court erred when it failed to suppress the incriminating statements she made to the police, because the statements were obtained in violation of her invoked right to remain silent. At the hearing on the motion to suppress, Special Agent Stanley Talbot testified that the defendant agreed to accompany him to police headquarters, that he advised her of her constitutional rights, and she signed a written waiver. During questioning, the defendant indicated to Talbot that she did not wish to speak any further and she wanted to go home. Talbot stated that the defendant was told she was under arrest for murder and was not free to go. The police continued to question her for several hours, and the defendant finally made a taped confession.

The United States Supreme Court has held that a suspect’s right to terminate questioning must be scrupulously honored and if the individual indicates at any time during questioning that he wishes to remain silent, the interrogation must cease. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) We agree with the defendant that when she told the police she wanted to stop talking and go home, she invoked her right to remain silent and questioning should have terminated. However, the taped confession the police obtained after their continued questioning of the defendant was introduced at trial only to impeach the defendant on cross-examination, and it is settled that statements obtained in violation of Miranda may be used to impeach a defendant on cross-examination. (Harris v. New York (1971), 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643.) Therefore, even though the defendant’s right to terminate questioning was not scrupulously honored, the subsequent confession was voluntarily made and was properly introduced to impeach the defendant during cross-examination.

The defendant also contends that the trial court should have suppressed the oral statements she made to the sheriff and the booking officer after she gave a taped confession to the police. These statements were admitted in the State’s case in chief, and on appeal the defendant asserts that she would not have made them if the police had honored her request to remain silent and had not beaten her down mentally by hours of interrogation. The State contends that the oral statements were properly admitted because they were volunteered by the defendant and were not the product of police interrogation. People v. Lang (1982), 106 Ill. App. 3d 808.

While the defendant now argues that her inculpatory oral statements were products of lengthy police questioning which wore her down, our review of the record reveals that at trial, the defendant, too, treated the statements as voluntary and spontaneous, and offered innocent explanations for them. Specifically, the defendant told the jury that when she stated to the sheriff that she would do “it” again, she meant she would give the police false information, and when she asked the officer what it felt like to fingerprint a murderer, she was referring to Miller and Royark. This testimony amply supports the State’s argument that the oral statements were volunteered and therefore were properly admitted in the State’s case in chief.

Next, the defendant argues that the court erred when it precluded her expert from testifying about the battered woman syndrome and limited the testimony on the victim’s abusive acts because it denied her the right to present her theory of defense. The defendant contends her expert’s testimony would have shown that it was possible for her to believe the plans to kill her husband were a game and would have explained that she did not seek help from the police because she trusted no one and was paralyzed by her helplessness. The State contends that the defendant has waived consideration of this issue on appeal by failing to make an offer of proof at trial.

The question of the admissibility of this evidence was raised prior to trial in the State’s motion in limine, and after hearing arguments, the trial court granted the motion. The defendant stated she would make an offer of proof at the appropriate time. The issue was again raised at trial, during the defendant’s testimony. After hearing counsel’s arguments, the court again ruled that the expert’s testimony would be precluded, but stated it would listen to an offer of proof. The defendant declined to make an offer of proof. In response to the State’s argument that the issue was waived because there was no offer of proof, the defendant argues that her objections preserved the issue and that she was not required to perform a useless act, that is, making the offer of proof, to avoid waiver.

The defendant misapprehends the purpose of an offer of proof and the necessity for offers of proof in cases such as this one. The purpose of an offer of proof is to disclose the nature of the offered evidence for the information of the trial judge and opposing counsel, and to enable a court of review to determine whether exclusion of the evidence was appropriate. As a general rule, an offer of proof is required to preserve error on appeal unless a question shows the purpose and materiality of the evidence, is in the proper form, and clearly admits of an answer relative to the issues of the case. (People v. Van Kampen (1986), 147 Ill. App. 3d 181, 185.) In the case at bar, the question of whether the defendant suffered from the battered woman syndrome, and if so, what effect it had on her behavior, does not clearly admit of an answer relative to the issues. In fact, counsel for the defendant and the State were in sharp disagreement over the relevance of the expert’s testimony, and the trial court ultimately determined the evidence was not relevant for purposes of the defendant’s theory of defense, which was that she had nothing to do with the murder and did not believe the others’ murder plots were real. Because the defendant failed to make an offer of proof, the trial court had no basis to alter its ruling and the record before us does not establish the purpose and materiality of the evidence. Accordingly, we conclude that the defendant’s failure to make an offer of proof constitutes a waiver of the issue on appeal.

The defendant suggests that her expert’s testimony at the sentencing hearing establishes the relevance of the testimony excluded at trial. She further suggests that it is appropriate for this court to examine that testimony to infer what the expert’s trial testimony would have been. In support, the defendant calls our attention to People v. Minnis (1983), 118 Ill. App. 3d 345, wherein the court reviewed experts’ reports attached to a post-trial motion to determine whether evidence of the battered woman syndrome was properly excluded at trial. We find a crucial distinction between Minnis and the case at bar to be that the trial court in Minnis denied defense counsel his right to make an offer of proof, making it necessary for the court to examine the supplemental materials to determine the relevancy of the offered testimony. The circumstances before this court are completely different. Although we are not similarly compelled to examine the expert’s testimony at the sentencing hearing to determine whether it was properly excluded, we have done so and find no error in the trial court’s ruling.

The battered woman syndrome is an emerging concept, and expert testimony concerning the syndrome has been admitted in a limited number of reported cases. (See Annot., 18 A.L.R.4th 1153 (1982).) Those courts which have permitted expert testimony on the syndrome have generally done so only in cases involving self-defense and only for the purpose of explaining why the abuse a woman has suffered causes her to reasonably believe that her life is in danger and that she must use deadly force to escape her batterer. (Minnis, 118 Ill. App. 3d at 356.) The defendant did not plead self-defense here, nor did she offer the expert testimony to explain why she had to use deadly force. The defense presented at trial was that the defendant heard Royark and Miller plotting the victim’s murder, but was not involved in the plans and believed they were a joke. Thus, the expert’s testimony about the battered woman syndrome was irrelevant to the issues of the case. The amount and type of abuse the defendant experienced, the degree to which she suffered from the battered woman syndrome, and the symptoms she exhibited were not relevant to her defense that she overheard the plans but did not take part in them or believe them to be serious. After reviewing the expert’s testimony at the sentencing hearing in the context of the entire case, we find that the court did not err in excluding the offered testimony at trial.

The defendant next alleges that she was denied a fair sentencing hearing because she was forced to face two accusers: the State and codefendant Royark. Royark and the defendant were sentenced in a joint hearing, pursuant to a stipulation signed by both defendants and their attorneys and an attorney for the State. The defendant claims that although the State and the trial court repeatedly indicated that evidence adduced during Royark’s portion of the hearing would not be considered against her, the trial court adopted the theory presented during Royark’s portion and used it against her. The State maintains that'the defendant waived this issue by stipulating to the joint hearing and, furthermore, the defendant was not prejudiced by the joint hearing. .

Initially, we note that the defendant agreed to a joint sentencing hearing and thereby approved the procedural guidelines for the hearing as set out in the stipulation she signed. That the trial court would hear evidence regarding one defendant but would not consider it against the other was an integral element of the stipulation. In fact, a review of the record discloses that on several occasions during the joint hearing, the State reminded the court that evidence introduced against one defendant could not be considered against the other, and the court repeatedly indicated that it understood and would abide by the restriction.

As is often stated in cases involving joint trials where the defenses of codefendants are antagonistic, a trial court, due to its unique training and experience, is generally believed to have a greater ability to restrict the use of improper evidence and to consider only competent evidence. (See, e.g., People v. Moore (1984), 128 Ill. App. 3d 505, 514.) Furthermore, a trial court is presumed to consider only competent evidence in determining a sentence, and this presumption extends to the arguments of counsel. (People v. Morgan (1986), 112 Ill. 2d 111, 144, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329, reh’g denied (1987), 481 U.S. 1025, 95 L. Ed. 2d 519, 107 S. Ct. 1914.) Our careful review of the record convinces us that there is no support for the defendant’s vague allegations that the trial court here abandoned its repeated assurances and considered evidence and arguments offered against Royark. The court’s statements and findings are supported by the evidence and arguments presented at trial and during the defendant’s portion of the sentencing hearing. Accordingly, there is no justification for vacating the defendant’s sentence and remanding for a new sentencing hearing.

Finally, the defendant contends that the court incorrectly determined that the felony murder provision of the death penalty sentencing statute (Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(b)(6)(a)(ii)) applied and she is therefore entitled to a new sentencing hearing. The State apparently concedes that the court improperly considered the felony murder aggravating factor, but contends that a remand for re-sentencing is not required because the court also based its ruling on other, properly considered factors.

The State notes that our supreme court has held that when it can be determined from the record that the weight placed on the improperly considered aggravating factor is so insignificant that it did not lead to a greater sentence, remandment is not necessary. (People v. White (1986), 114 Ill. 2d 61.) The State also relies on People v. Barber (1983), 116 Ill. App. 3d 767, a third district case, in support of its assertion that remandment is not required. In Barber, the defendant was sentenced to natural life imprisonment for murder because the crime was committed during the course of a felony and because the murder was accompanied by exceptionally brutal, heinous behavior. On appeal, this court reversed the underlying felony, but rejected the defendant’s argument that a remand for resentencing was required because the trial court considered an improper factor in imposing the sentence. In Barber, this court stated, “If this was the only basis upon which the trial court concluded that a life sentence was appropriate, then a remand would be in order. However, a review of the record indicates that the trial court imposed a natural life term of imprisonment upon the defendant due to its belief that the murder was ‘accompanied by exceptionally brutal [and] heinous behavior indicative of wanton cruelty.’ ” (116 Ill. App. 3d at 779-80.) Finding that the trial court did not abuse its discretion in concluding that the brutal nature of the crime fell within the scope of the life imprisonment statute, this court affirmed the defendant’s sentence.

This court’s decision in Barber dictates that we reach a result contrary to that sought by the defendant. During the initial stages of the sentencing hearing, the court considered the statutory aggravating factors and found that the defendant was eligible for the death penalty because she committed murder pursuant to an agreement by which she was to receive money, because the murder was committed during the course of a felony, and because the murder was committed with the intent to prevent the victim from testifying in a criminal prosecution. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b).) After considering the evidence and arguments of counsel during the later stages of the hearing, the court discussed the factors in mitigation and found that they precluded imposition of the death sentence. The court then found that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and stated, “[I]t will be a long time before the Court can expunge the sight of that bent water pipe from its mind.” Noting that it also previously found other statutory aggravating factors to exist, the court imposed a term of natural life imprisonment.

After a careful review of the record, we find that the weight placed by the trial court on the improperly considered factor was not significant, and the three alternative grounds relied on, which the defendant does not dispute in this argument on appeal, amply support the sentence imposed. Having determined that the factor improperly considered did not result in a sentence greater than that which would have been imposed if the factor had not been considered, we, therefore, decline to remand the instant case for resentencing.

Based on the foregoing, we affirm the judgment and sentence of the circuit court of Mercer County.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE MANNING

text:
    KIMBERLY A. SUTHERLAND, Plaintiff-Appellant, v. NORBRAN LEASING COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1—87—0475
    Opinion filed December 27, 1988.
    Rehearing denied March 23, 1989.
    Flood, Bredemann & Evans, of Chicago (Ronald A. Bredemann, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Thomas M. Burnham, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

In 1977 the plaintiff, Kimberly A. Sutherland, was retained to represent Kerwin Albright in his personal injury claim against the defendant, Norbran Leasing Company (Norbran). She sent a notice of attorney’s lien to Norbran’s agent, CNA, and referred the case to attorney Paul O’Malley, who ultimately settled the claim for $125,000. Defendant issued a draft in the amount of $125,000, made payable to Albright and O’Malley, but not to Sutherland in violation of her attorney’s lien.

Plaintiff filed suit against Norbran, claiming that she had a lien in the amount of $41,666 plus interest, or one-third of $125,000 and that Norbran had violated her attorney’s lien by not including her name on the draft. On August 1, 1986, the trial court granted plaintiff’s motion for summary judgment for the “lien amount plus interest.” On August 28, 1986, on plaintiff’s motion to clarify the August 1, 1986, order, the trial court entered an order specifying that the judgment against Norbran was in the amount of $41,666 plus statutory interest from August 1, 1986.

On September 26, 1986, Norbran brought a motion to reconsider and vacate the orders of August 1 and August 28, 1986. The motion was supported by the affidavit of Paul O’Malley, who stated that Sutherland had been aware that the draft from Norbran would be issued in O’Malley’s name and that they had agreed that the funds would be placed in escrow until a division of fees was agreed upon. Plaintiff filed objections to the motion to vacate, arguing that the trial court did not have jurisdiction to entertain the motion.

At the hearing on defendant’s motion to vacate the summary judgment, the trial court held that the order of August 1, 1986, was not a final order because it was not enforceable. The court further found that O’Malley’s affidavit created a genuine question of fact as to the arrangement between the parties and vacated the orders of August 1 and 28, 1986. On February 13, 1987, plaintiff’s motion to vacate the February 9 order was denied.

Plaintiff now appeals from both orders, arguing that the trial court did not have jurisdiction to vacate the order of summary judgment. She also seeks attorney fees for defendant’s alleged bad faith in preparing and presenting the affidavit of Paul O’Malley in support of the motion to reconsider. We will not address the merits of plaintiff’s arguments as we find that we do not have jurisdiction to consider her appeal.

A reviewing court must sua sponte inquire into its jurisdiction, and when it determines that jurisdiction is lacking, it must decline to proceed in a cause. (City Wide Carpet, Inc. v. John (1980), 83 Ill. App. 3d 538, 541, 404 N.E.2d 465.) This court’s jurisdiction is confined to reviewing appeals from final orders or judgments (107 Ill. 2d Rules 301, 304), unless the order falls into an enumerated category which permits an interlocutory appeal. (Branch v. European Auto-haus, Ltd. (1981), 97 Ill. App. 3d 949, 951, 424 N.E.2d 6.) A judgment is final if it terminates the litigation on the merits of the case and determines the ultimate rights of the parties, so that if affirmed, the only thing remaining is to proceed to its execution. (Alderson v. Berol Products Division, Berol Corp. (1976), 38 Ill. App. 3d 139, 140, 347 N.E.2d 213.) Generally, an order vacating an order of dismissal and reinstating a case is not final, and therefore, not appealable because it leaves the merits of the case pending. (Weilmuenster v. H.H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 106, 390 N.E.2d 579.) However, if a motion to vacate is filed more than 30 days after the dismissal (and not pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401(1)), the court lacks jurisdiction to rule on it and any order granting relief is final and appealable because it is void. Havlen v. Waggoner (1981), 92 Ill. App. 3d 916, 918, 416 N.E.2d 684.

In the present case, the order of August 1, 1986, granted judgment in favor of the plaintiff for the “lien amount plus interest.” Plaintiff contends that there is no question as to what the “lien amount plus interest” was and that the insertion of the actual figures into an order was only a clerical modification. However, the record indicates that plaintiff was seeking interest from February 28, 1983, while the court only awarded interest from August 1, 1986. We do not feel that a difference of approximately $13,000 is merely a clerical oversight and agree with the trial court that the order of August 1, 1986, was not subject to execution.

In light of the fact that the order of August 1, 1986, was not a final order, it was within the court’s discretion to vacate that order and reinstate the case. Since the merits of the case are now pending, it is clear that the orders of February 9 and 13 are not final orders pursuant to Rule 301 or Rule 304. As plaintiff’s appeal does not meet the requirements for an interlocutory appeal pursuant to either Rule 306, 307 or 308, this court lacks jurisdiction to hear the appeal.

Plaintiff also seeks attorney fees against Norbran and its attorney. The record indicates that plaintiff sought attorney fees pursuant to section 2 — 1005(e) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(e)) for defendant’s alleged bad-faith preparation and presentation of Paul O’Malley’s affidavit and later sought sanctions pursuant to section 2— 611 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611), for an alleged bad-faith filing of a petition to adjudicate attorney’s lien. However, the orders appealed from do not concern these fee petitions. An appellate court has jurisdiction only over those matters raised in the notice of appeal. (Predny v. Village of Park Forest (1988), 164 Ill. App. 3d 688, 693, 518 N.E.2d 1243.) Based on the fact that this issue was not raised in the notice of appeal and because the orders of February 9 and 13 are not appealable, we do not have jurisdiction to consider the matter.

Accordingly, the appeal is dismissed.

Appeal dismissed.

CAMPBELL, P.J., and BUCKLEY, J., concur.