Super Discount Markets, Inc. v. Kubitz ( 1990 )

Cooper, Judge.

Appellee filed an action in the State Court of DeKalb County seeking an unspecified amount of damages for personal injuries she suffered from a slip and fall in appellant’s store. Appellant answered the complaint and subsequently filed a written demand for a twelve-person jury pursuant to OCGA § 15-12-122 (a) (2). Prior to the commencement of the trial, the court denied appellant’s demand and required the case to be tried with a jury of six persons. Although appellee did not pray for a specific amount of damages, during closing arguments, appellee’s attorney asked the jury to award appellee an amount in excess of $50,000. The jury returned a verdict in favor of appellee in the amount of $35,000. Appellant’s sole enumeration of error is the trial court’s denial, of its demand for a twelve-person jury.

OCGA § 15-12-122 (a) (2) provides: “In all civil actions in the state courts in which the claim for damages is greater than $10,000.00, either party may demand in writing prior to the commencement of the trial term that the case be tried by a jury of 12. If such a demand is made, the judge shall follow the procedures for superior courts of subsection (b) of this Code section.” Appellee’s attorney, when asked by the court whether he also wanted a twelve-person jury, responded that he wanted a six-person jury. We find that statement to be tantamount to an acknowledgment that appellee’s claim was for less than $10,000. It seems grossly unfair for an attorney to utilize the informalities of “notice pleading” by not pleading a specific amount of damages, object to appellant’s demand for a twelve-person jury, and then argue to the jury that his client is entitled to an amount greatly in excess of the $10,000 limit set for six-person juries.

Appellee contends that appellant had the burden of proving that appellee’s claim was greater than $10,000 at the time the court ruled on appellant’s demand. We disagree. To place such a burden on the party demanding a twelve-person jury would require the court to conduct an evidentiary hearing before ruling on the demand. It seems the better practice for the trial court to grant the request for a twelve-person jury unless the record affirmatively shows that the claim is for less than $10,000. Inasmuch as the record did not reflect that the claim was for less than $10,000, we conclude that the trial court erred in not granting appellant’s request for a twelve-person jury.

Judgment reversed.

Banke, P. J., and Birdsong, J., concur. Lloyd W. Hoffspiegel, for appellee.