                           NO. 4-06-0872        Filed 7/31/07

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

EVELYN GRADY,                          )    Appeal from
          Plaintiff-Appellant and      )    Circuit Court of
          Cross-Appellee,              )    Champaign County
          v.                           )    No. 04LM1066
NOELIA MARCHINI,                       )
          Defendant-Appellee and       )    Honorable
          Cross-Appellant.             )    Michael Q. Jones,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          Plaintiff, Evelyn Grady, filed a complaint alleging

negligence against defendant, Noelia Marchini, seeking damages in

excess of $15,000.   Although designated as a law magistrate (LM)

case (No. 04-LM-1066), the complaint had no affidavit attached as

required by Supreme Court Rule 222(b) (166 Ill. 2d R. 222(b)),

stating the damages sought did or did not exceed $50,000.       A jury

awarded plaintiff $97,700 in damages.     On defendant's motion, the

trial court reduced the award to $50,000 pursuant to Rule 222(b).

Plaintiff appeals.   Defendant cross-appeals arguing the court

erred in rejecting her challenge to a juror for cause.    We

affirm.

                           I. BACKGROUND

          On August 3, 2004, plaintiff filed a complaint to

recover damages resulting from defendant's alleged negligence in

the operation of her automobile.    Plaintiff alleged she suffered
lost earnings, suffered temporary and permanent disability,

incurred and would continue to incur medical expenses for the

treatment of her injuries, and experienced pain and suffering and

would continue to experience such pain and suffering in the

future.   Plaintiff sought damages in an amount exceeding $15,000.

The case was designated as an LM case.

            On September 2, 2004, defendant filed her answer.

Defendant denied the allegations and requested a jury trial.

            On September 20, 2005, the trial court entered a case-

management-conference order pursuant to Supreme Court Rule 218

(166 Ill. 2d R. 218).    The case was set for a three-day jury

trial in August 2006.

            Jury selection began on August 16, 2006.   After the

trial court asked if any of the prospective jurors knew any of

the litigants, Juror No. 26 (Juror 26) indicated she knew plain-

tiff.   When asked by one of the attorneys to explain the nature

of her acquaintance with plaintiff, Juror 26 stated "[w]e played

ball together, and we went to church together, and our kids are

related."    The father of plaintiff's daughter is Juror 26's

cousin.   When questioned further, she indicated playing ball

together meant they played softball together 10 or 15 years ago.

Juror 26 indicated she could be fair and impartial.     Defendant's

attorney challenged Juror 26 for cause which the court denied.

Counsel then exercised defendant's final peremptory challenge on


                                - 2 -
Juror 26.

            Juror No. 7 (Juror 7) was a professor at the Fine Arts

College at the University of Illinois.    Plaintiff is also em-

ployed by the University of Illinois and works at the student

academic affairs office at the College of Education.    Juror 7 was

ultimately included in the jury that heard this case.

            A trial was held from August 16 through August 18,

2006.   The jury returned a verdict for plaintiff and awarded

$97,700 damages.

            On August 24, 2006, defendant filed a motion to reduce

verdict in which she sought to reduce the judgment to $50,000

pursuant to Supreme Court Rule 222(b) (166 Ill. 2d R. 222(b)).

The motion alleged the matter was captioned as an LM file seeking

money damages not in excess of $50,000 and the caption was

premised on plaintiff's initial pleading.    The motion further

stated the complaint had no affidavit attached to it; neither did

it contain an allegation in or attached to the complaint suggest-

ing the amount of money damages sought did or did not exceed

$50,000 as required by Supreme Court Rule 222(b).

            On September 8, 2006, plaintiff filed her response to

the motion to reduce verdict.    Plaintiff alleged (1) her com-

plaint sought in excess of $15,000; (2) defendant treated this

case as a case where the simplified discovery rules of Rule 222

did not apply; and (3) even if the complaint stated plaintiff


                                - 3 -
would not seek damages in excess of $50,000, judgment can be

entered in excess of the ad damnum clause after the verdict has

been entered.

           On September 15, 2006, defendant filed her posttrial

motion.   Defendant alleged (1) the trial court erred in (a)

denying her challenge for cause of Juror 26, (b) giving plain-

tiff's instruction Nos. 14 and 19, and (2) the amount of the

verdict was excessive.

           On September 22, 2006, the trial court held a hearing

on defendant's motion to reduce verdict and posttrial motion.

The court rejected defendant's claim of error as to Juror 26,

finding that while the "juror's responses may well have shown

that this was a less than ideal juror for the [d]efendant, but by

no means, I believe, showed that the juror could not be fair and

impartial."   The court noted defendant used her final peremptory

challenge on Juror 26.   The court then rejected the rest of the

claims in defendant's posttrial motion. The trial court then

granted defendant's motion to reduce judgment to $50,000.

           This appeal followed.

                           II. ANALYSIS

A. Does Supreme Court Rule 222(b) Require Reduction of Judgment?

           The reduction of the amount awarded plaintiff from

$97,700 to $50,000 was based on the trial court's interpretation

of Supreme Court Rule 222(b).   When interpreting a supreme court


                                - 4 -
rule, we apply the same rules applicable to interpreting stat-

utes.   Wright v. Desate, Inc., 292 Ill. App. 3d 952, 954, 686

N.E.2d 1199, 1201 (1997).   Accordingly, our review is de novo.

People v. Suarez, 224 Ill. 2d 37, 41-42, 862 N.E.2d 977, 979

(2007).

           "'The cardinal rule of statutory construction

           is to ascertain and give effect to the intent

           of the legislature.    Solich v. George & Anna

           Portes Cancer Prevention Center of Chicago,

           Inc., 158 Ill. 2d 76, 81, 630 N.E.2d 820, 822

           (1994); Kraft, Inc. v. Edgar, 138 Ill. 2d

           178, 189, 561 N.E.2d 656, 661 (1990).     The

           words of a statute are given their plain and

           commonly understood meanings. Forest City

           Erectors v. Industrial Comm'n, 264 Ill. App.

           3d 436, 439, 636 N.E.2d 969, 972 (1994).

           Only when the meaning of the enactment is

           unclear from the statutory language will the

           court look beyond the language and resort to

           aids for construction. Solich, 158 Ill. 2d at

           81, 630 N.E.2d at 822.'"      Panhandle Eastern

           Pipe Line Co. v. Environmental Protection

           Agency, 314 Ill. App. 3d 296, 301, 734 N.E.2d

           18, 22 (2000), quoting R.L. Polk & Co. v.


                                 - 5 -
          Ryan, 296 Ill. App. 3d 132, 139-40, 694 N.E.-

          2d 1027, 1033-34 (1998).

          In Kapsouris v. Rivera, 319 Ill. App. 3d 844, 850, 747

N.E.2d 427, 432 (2001), the Second District stated the following

about Rule 222:

                  "Rule 222 sets forth reforms in the

          discovery process in the cases it applies to

          by imposing mandatory disclosure and putting

          limits on the discovery process.     166 Ill. 2d

          R. 222, Committee Comments, at cxix.     The

          rule is triggered by the filing of an 'Affi-

          davit re Damages Sought' as set forth in

          paragraph (b) of the Rule.     166 Ill. 2d R.

          222(b), Committee Comments, at cxix."

          Supreme Court Rule 222(b) states the following, in

pertinent part:

                  "(b) Affidavit re Damages Sought.     Any

          civil action seeking money damages shall have

          attached to the initial pleading the party's

          affidavit that the total of money damages

          sought does or does not exceed $50,000.        If

          the damages sought do not exceed $50,000,

          this rule shall apply.     Any judgment on such

          claim which exceeds $50,000 shall be reduced


                                 - 6 -
           post-trial to an amount not in excess of

           $50,000.    Any such affidavit may be amended

           or superseded prior to trial pursuant to

           leave of court for good cause shown, and only

           if it is clear that no party will suffer any

           prejudice as a result of such amendment.    Any

           affidavit filed pursuant hereto shall not be

           admissible in evidence at trial."    (Emphasis

           added.)    166 Ill. 2d R. 222(b).

           Plaintiff contends defendant forfeited application of

Rule 222(b) by not moving to dismiss the complaint and undertak-

ing discovery and presentation of evidence depositions at trial.

Rule 222(f)(3) states no evidence depositions may be taken

without leave of court.     Plaintiff contends defendant did not

proceed under the limited-discovery provisions of Rule 222 since

defendant conducted an evidence deposition without leave of

court.   Plaintiff also argues since no affidavit was filed and

the complaint sought damages in excess of $15,000, plaintiff was

not limited in the damages she could recover.

           The language of Rule 222(b) is clear.    A party shall

attach his or her affidavit, which states whether the damages

sought do or do not exceed $50,000, to the initial pleading.       Any

judgment that exceeds $50,000 shall be reduced to $50,000 if the

damages sought did not exceed $50,000.     The use of the term


                                 - 7 -
"shall" indicates a mandatory intent.    People v. Woodard, 175

Ill. 2d 435, 445, 677 N.E.2d 935, 940 (1997).    While we recognize

that use of the word "shall" is not fixed or inflexible and that

courts sometimes interpret it as directory (Woodard, 175 Ill. 2d

at 445, 677 N.E.2d at 940), it has also been stated that "where a

word is used in different sections of the same legislative act,

there is a presumption that it is used with the same meaning

throughout, unless a contrary legislative intent is clearly

expressed" (People ex rel. Scott v. Schwulst Building Center,

Inc., 89 Ill. 2d 365, 374, 432 N.E.2d 855, 859 (1982)).

            The term "shall" is used three times in Rule 222(b).

Once when saying damages in excess of $50,000 shall be reduced to

$50,000 and again when stating the affidavit shall not be used as

evidence.    We conclude "shall" can be read no other way than as

mandatory in these two contexts.    Thus, the use of "shall" in

imposing an obligation on the party to file an affidavit with his

or her initial pleading stating whether or not he or she is

seeking damages in excess of $50,000 is likewise mandatory.

Plaintiff did not file an affidavit saying she was seeking in

excess of $50,000.    We conclude she is precluded from recovering

more than $50,000.    Rule 222(b) requires the judgment be reduced

to $50,000.

            Plaintiff forfeited any objection to the extent of

defendant's discovery by not objecting to it at trial.


                                - 8 -
          Plaintiff could have objected to the evidence deposi-

tions when scheduled or asked the court to bar the use of the

depositions at trial since defendant had not sought leave to take

the depositions.   Plaintiff did not object and participated in

the depositions.   Plaintiff cannot now object to the discovery.

          We note the complaint sought damages in excess of

$15,000 and the case was docketed as an LM case.    The "defini-

tions of court case types," which was a supplement to the record,

states: "A Law Magistrate case number shall be assigned to ***

actions in which the damages are $50,000 or less.    The amount of

damages contained in the complaint *** determine the category,

not the amount of the verdict or judgment."    All pleadings had

the case designated as an LM case; thus, this was a case seeking

damages for $50,000 or less.   We note the complaint was desig-

nated as an LM case and the "LM" was typed.    Thus, plaintiff gave

the designation of LM to this case.    Accordingly, we find it

disingenuous for plaintiff to claim the circuit clerk of Cham-

paign County provided the designation.    This conclusion is

supported by the fact she sought damages in excess of $15,000 in

the complaint and not $50,000, the amount at which this case

would have been given a "Law case number."

          Finally, we address plaintiff's claim that even if the

damages limit of Rule 222(b) is applicable, judgment can be

entered in excess of the ad damnum clause.    Plaintiff cites the


                               - 9 -
First District case of Jager v. Libretti, 273 Ill. App. 3d 960,

652 N.E.2d 1120 (1995), as support for this position.    When Jager

was decided, a different version of Rule 222 was in effect.    That

version of the rule stated the following, in pertinent part:

          "The trial court will entertain no motion to

          amend an ad damnum to an amount in excess of

          $15,000 in any case in which discovery has

          been limited by this rule, unless it is clear

          that no party will suffer any prejudice as a

          result of such an amendment."   134 Ill. 2d R.

          222(a).

We agree with the trial court in this case when it stated Jager

"was based on a much different Supreme Court Rule which clearly

left open the possibility that a damages clause could be amended

after judgment versus one which very clearly says, 'The trial

court shall reduce post[-]trial.'" The clear language of the

present version of Rule 222 requires the trial court to reduce

any judgment in excess $50,000 here.

               B. Alleged Error In Jury Selection

          Defendant argues the trial court erred in denying her

challenge to Juror 26 for cause.   As a result of this alleged

error, defendant was forced to use her final peremptory challenge

on Juror 26 and thus had no peremptory challenges to exercise on

Juror 7, who was employed by the same employer as plaintiff.


                             - 10 -
            This court has stated we will review the trial court's

ruling on a challenge for cause only when an objectionable juror

was forced upon a party after it had exhausted its peremptory

challenges.    Flynn v. Edmonds, 236 Ill. App. 3d 770, 779, 602

N.E.2d 880, 885 (1992).    We turn our attention to Juror 7, the

allegedly objectionable juror defendant was forced to accept.

            Defendant has forfeited any issue with Juror 7.

Defendant does not cite, nor have we found, where in the record

she challenged Juror 7 for cause or indicated to the court she

was being forced to accept an objectionable juror and asked for

additional peremptory challenges.    See People v. Green, 199 Ill.

App. 3d 927, 930, 557 N.E.2d 939, 941 (1990), quoting Spies v.

People, 122 Ill. 1, 258, 12 N.E.2d 865, 989 (1887).     Moreover,

defendant explicitly accepted Juror 7 when stating "we will

accept these four" (discussing a panel of four jurors, including

Juror 7).     Furthermore, defendant has not shown Juror 7 was an

objectionable juror.   Defendant has raised no issue with Juror 7

other than Juror 7 and plaintiff both work for the University of

Illinois.    Absent any other record evidence, we will not presume

Juror 7 was biased based on defendant's mere suspicion that is

based on the fact that Juror 7 worked for the same employer (a

very large employer) as plaintiff.      See Roach v. Springfield

Clinic, 157 Ill. 2d 29, 48, 623 N.E.2d 246, 254-55 (1993) (The

burden of showing a juror is biased is on the party challenging


                               - 11 -
the juror and "[m]ere suspicion of bias or impartiality is not

evidence and does not disqualify a juror").    We note defendant

does not point to any evidence that shows plaintiff and Juror 7

even knew each other or that Juror 7 was likely biased against

defendant.    We reject defendant's request to remand the cause for

a new trial based on error in the jury-selection process.

          We also note the trial court did not err in rejecting

defendant's challenge to Juror 26 for cause.    This court has

recognized a "trial court has great discretion in determining

whether to grant a challenge to a prospective juror for cause."

Marcin v. Kipfer, 117 Ill. App. 3d 1065, 1067, 454 N.E.2d 370,

372 (1983).   A prospective juror's statement under oath that she

can lay aside matters that may indicate bias and render a verdict

based on the evidence is given great weight.    Lambie v. Schnei-

der, 305 Ill. App. 3d 421, 430, 713 N.E.2d 603, 610 (1999).      The

Marcin court noted that an experienced authority on Illinois

trial procedure has stated:   "'The trend of authority is to

exclude from juries all persons who by reason of their business

or social relations, past or present, with either of those

parties, could be suspected of possible bias ***.'"    Marcin, 117

Ill. App. 3d at 1068, 454 N.E.2d at 372, quoting R. Hunter, Trial

Handbook for Illinois Lawyers §15.14, at 238 (5th ed. 1983).

While "the relationship of a prospective juror to a party can be

so close that, considering the nature of the case, fairness


                               - 12 -
requires that the juror be discharged" (Marcin, 117 Ill. App. 3d

at 1067, 454 N.E.2d at 372), Illinois courts have rejected the

adoption of a per se rule requiring the exclusion of jurors based

on their relationships with persons connected to the trial

(People v. Boston, 271 Ill. App. 3d 358, 361, 648 N.E.2d 1002,

1005 (1995)).

          The burden of showing a juror is biased is on the party

challenging the juror and "[m]ere suspicion of bias or impartial-

ity is not evidence and does not disqualify a juror."    Roach, 157

Ill. 2d at 48, 623 N.E.2d at 254-55.    Defendant has not met her

burden with respect to Juror 26.    The trial court questioned

Juror 26, as did defense counsel.    Juror 26 stated her child was

related to plaintiff's youngest daughter, she and plaintiff

played softball together 10 or 15 years ago, and they attend the

same church.    Juror 26 stated she could be fair and impartial,

and the trial judge believed her.    Moreover, as defendant states

in her briefs, she used a peremptory challenge to exclude Juror

26 from the jury.    Thus, Juror 26 was not even on the jury.    "The

exercise of a peremptory challenge by means of which a juror is

excluded is generally deemed to waive an error committed by the

trial court in previously ruling on a challenge of such juror for

cause."   Laird v. Illinois Central Gulf R.R. Co., 208 Ill. App.

3d 51, 79, 566 N.E.2d 944, 961 (1991).




                               - 13 -
                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            STEIGMANN, P.J., and MYERSCOUGH, J., concur.




                               - 14 -
