Grady v. Marchini

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Grady v. Marchini

State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0872 Rel

Case Date: 07/31/2007

Preview:NO. 4-06-0872 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT EVELYN GRADY, Plaintiff-Appellant and Cross-Appellee, v. NOELIA MARCHINI, Defendant-Appellee and Cross-Appellant.

Filed 7/31/07

) Appeal from ) Circuit Court of ) Champaign County ) No. 04LM1066 ) ) Honorable ) 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. awarded plaintiff $97,700 in damages. A jury

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 We

erred in rejecting her challenge to a juror for cause. 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 casemanagement-conference order pursuant to Supreme Court Rule 218 (166 Ill. 2d R. 218). trial in August 2006. Jury selection began on August 16, 2006. After the The case was set for a three-day jury

trial court asked if any of the prospective jurors knew any of the litigants, Juror No. 26 (Juror 26) indicated she knew plaintiff. 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." cousin. The father of plaintiff's daughter is Juror 26's 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. 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 Juror 7 was

$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 suggesting 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 plaintiff'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 The court then rejected the rest of the

challenge on Juror 26.

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 statutes. Wright v. Desate, Inc., 292 Ill. App. 3d 952, 954, 686 Accordingly, our review is de novo.

N.E.2d 1199, 1201 (1997).

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 The

R. 222, Committee Comments, at cxix.

rule is triggered by the filing of an 'Affidavit 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. the damages sought do not exceed $50,000, this rule shall apply. Any judgment on such If

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

Plaintiff contends defendant forfeited application of Rule 222(b) by not moving to dismiss the complaint and undertaking 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. - 7 The use of the term

"shall" indicates a mandatory intent.

People v. Woodard, 175 While we recognize

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

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 Thus, the use of "shall" in

mandatory in these two contexts.

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. more than $50,000. to $50,000. Plaintiff forfeited any objection to the extent of defendant's discovery by not objecting to it at trial. - 8 We conclude she is precluded from recovering Rule 222(b) requires the judgment be reduced

Plaintiff could have objected to the evidence depositions 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. the depositions. Plaintiff did not object and participated in 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 desigThus, plaintiff gave

nated as an LM case and the "LM" was typed. the designation of LM to this case.

Accordingly, we find it

disingenuous for plaintiff to claim the circuit clerk of Champaign 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. - 9 Plaintiff cites the

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 That

was decided, a different version of Rule 222 was in effect. 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." 222(a). 134 Ill. 2d R.

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 We turn our attention to Juror 7, the

N.E.2d 880, 885 (1992).

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 Defendant has raised no issue with Juror 7

objectionable juror.

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. SchneiThe

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

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