O.C.G.A. § 9-11-39 (2019)

Annotations

Law reviews. - For annual survey article discussing waiver of jury trials, see 46 Mercer L. Rev. 95 (1994).

For note, ‘‘Pre-Litigation Contractual Waivers of the Right to a Jury Trial Are Unenforceable Under Georgia Law,’’ see 46 Mercer L. Rev. 1565 (1995).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION CONSENT TO TRIAL WITHOUT JURY General Consideration Local law to yield to this section. - Local law requiring a demand for jury trial on or before appearance day as a condition precedent to jury trial must

yield to contrary law set out in this section. Servisco, Inc. v. R.B.M. of Atlanta, Inc., 147 Ga. App. 671, 250 S.E.2d 10 (1978). Contract actions. - Cases heard on contract, when an issuable defense is

General Consideration (Cont’d) filed, require trial by jury unless waived. Redding v. Commonwealth of Am., Inc., 143 Ga. App. 215, 237 S.E.2d 689 (1977). Equity cases. - Ga. L. 1966, p. 609, §§ 38 and 39 (see now O.C.G.A. §§ 9-11-38 and 9-11-39) cannot be interpreted to mean that a person has a right to trial by jury in all cases; in this state there is no constitutional right to a trial by jury in equity cases. Duncan v. First Nat’l Bank, 597 F.2d 51 (5th Cir. 1979). Discretion of court. - Grant or denial of a jury trial is committed to the trial court’s discretion with which the appellate courts normally refuse to interfere. Nat’l Health Servs., Inc. v. Townsend, 130 Ga. App. 700, 204 S.E.2d 299 (1974). Court errs in ruling on issues after grant of partial summary judgment when jury trial requested. - When the defendant requested a jury trial and there was neither a written stipulation nor an oral stipulation made in open court and entered on the record, the trial court errs in ruling upon all of the issues remaining in the case after the grant of the defendant’s motion for partial summary judgment. Jackson v. Patton, 157 Ga. App. 410, 277 S.E.2d 769 (1981). Trial court trying a suit for injunction may empanel a jury to render special verdicts, but the court is not required to do so. Turner Adv. Co. v. Garcia, 251 Ga. 46, 302 S.E.2d 547 (1983), cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984). Paternity action defendant was entitled to jury trial since, although he made no written demand for a jury trial, he did file an answer raising issuable defenses to the paternity petition and did not consent by an express stipulation to a bench trial. Stinson v. Pratt, 182 Ga. App. 552, 356 S.E.2d 519 (1987). Waiver of right to jury trial in probate proceeding. - Trial court had subject matter jurisdiction to review the probate court’s decision under Ga. Const. 1983, Art. VI, Sec. IV, Para. I and O.C.G.A. § 15-6-8(4)(E) to deny probate of the decedent’s 1988 will and the parties’ waiver of the statutory right to a jury trial did not deprive the trial court of subject matter

jurisdiction to deny probate of the will. Mosley v. Lancaster, 770 S.E.2d 873, No. S14A1914, 2015 Ga. LEXIS 195 (2015). Trial court authorized to strike jury trial demand from pleadings as sanction for refusal to participate in proceedings. - In a divorce proceeding, the trial court did not err in dismissing a husband’s demand for a jury trial because the trial court was authorized to strike from the pleadings the husband’s demand for a jury trial as a proper sanction for his willful refusal to participate in the proceedings; by his own admission, the husband deliberately chose not to attend the trial, and he presented no legitimate reason for that decision. Kautter v. Kautter, 286 Ga. 16, 685 S.E.2d 266 (2009). Cited in Bullock v. Bullock, 234 Ga. 253, 215 S.E.2d 255 (1975); Peoples Bank v. Northwest Ga. Bank, 139 Ga. App. 264, 228 S.E.2d 181 (1976); Restler v. Haas & Dodd Realty Co., 142 Ga. App. 318, 235 S.E.2d 759 (1977); Gregson & Assocs., Inc. v. Webb, 143 Ga. App. 276, 238 S.E.2d 274 (1977); Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982); Utz v. Powell, 160 Ga. App. 888, 288 S.E.2d 601 (1982); Smith v. Smith, 165 Ga. App. 532, 301 S.E.2d 696 (1983); Worsham Bros. Co. v. FDIC, 167 Ga. App. 163, 305 S.E.2d 816 (1983); McElroy v. McElroy, 252 Ga. 553, 314 S.E.2d 893 (1984); Trans-State, Inc. v. Barber, 170 Ga. App. 372, 317 S.E.2d 242 (1984); Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713, 411 S.E.2d 800 (1991); Matthews v. Matthews, 268 Ga. 863, 494 S.E.2d 325 (1998); Rose v. Waldrip, 316 Ga. App. 812, 730 S.E.2d 529 (2012). Consent to Trial Without Jury Consent to nonjury trial. - Parties to an action may consent to a nonjury trial and, thereby, waive their rights to a jury trial under O.C.G.A. § 9-11-39. Whitaker & Rambo Interior Designs, Inc. v. Prudential Property Cas. Ins. Co., 510 F. Supp. 97 (N.D. Ga. 1981). Trial court did not deprive a homeowner of due process by dismissing a claim for damages at the conclusion of a hearing because the homeowner voluntarily participated in a consolidated non-jury hearing on the threshold issue of causation;

there was a consensus among the trial court and the litigants that the homeowner’s prayer for a permanent injunction and the claim for damages would both fail unless the homeowner could establish that a county water authority’s underground water line was causing pressure waves and vibrations on the homeowner’s property. Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 690 S.E.2d 186 (2009), cert. denied, No. S10C0865, 2010 Ga. LEXIS 427 (Ga. 2010). Presumption of waiver conflicts with section. - In general terms, the presumption of waiver in a local rule from failure to demand a jury trial within a certain time conflicts with the requirement of express waiver in O.C.G.A. § 9-11-39; more specifically, a conflict exists when the local rule requires a pretrial demand for jury trial, as that section provides for a jury trial as a matter of right unless the parties consent to a nonjury trial, which must be manifested by express stipulation or by voluntary participation in a nonjury trial. To the extent of the conflict, the local rule is void. Raintree Farms, Inc. v. Stripping Ctr., Ltd., 166 Ga. App. 848, 305 S.E.2d 660 (1983). Knowing and voluntary waiver. - Requirement of written stipulation before waiver of the right to trial by jury carries the implication that such waivers be knowing and voluntary, i.e., demonstrates full understanding of all circumstances surrounding relinquishment of the known right. Howard v. Bank S., 209 Ga. App. 407, 433 S.E.2d 625 (1993). Actions of party as waiver. - In exceptional circumstances, a party may waive the right to a jury trial by the party’s actions. York v. Miller, 168 Ga. App. 849, 310 S.E.2d 577 (1983). Requirement for waiver is paramount to any local rule of state court which imposes a stricter condition on the right to a jury trial; a local law which requires a demand for a jury trial as a condition precedent to obtaining a trial by jury must yield to contrary law as set forth in O.C.G.A. § 9-11-39. Whitaker & Rambo Interior Designs, Inc. v. Prudential Property Cas. Ins. Co., 510 F. Supp. 97 (N.D. Ga. 1981).

Waiver requires stipulation. - When a party is entitled to trial by jury, waiver requires stipulation which is made part of the record. Whitaker & Rambo Interior Designs, Inc. v. Prudential Property Cas. Ins. Co., 510 F. Supp. 97 (N.D. Ga. 1981). Waiver in first trial applies to retrials. - When the parties in a case regarding the interpretation of a lease had waived the right to a jury trial and had participated in a bench trial, and then the trial court’s ruling was appealed and partially reversed and the matter was remanded, the trial court did not err on remand in refusing to submit to a jury the issue which the appellate court had remanded for determination, despite the lessor’s demand for a jury trial on remand, as the lessor’s participation in the bench trial was a waiver of the right to a jury trial and the waiver of a jury trial in the first trial applied to the retrial after remand in the same case. Barrow County Airport Auth. v. Romanair, Inc., 260 Ga. App. 887, 581 S.E.2d 402 (2003). Statement in chambers not sufficient oral stipulation. - Statement by counsel in the judge’s chambers does not satisfy requirement of this section that oral stipulation must be made in open court and entered in the record. Blanchard v. Taylor, 136 Ga. App. 237, 220 S.E.2d 757 (1975). Husband did not waive right to jury trial. - Trial court erroneously denied a husband’s motion for a new trial and to set aside the decree of divorce as the husband’s actions in showing up 45 minutes late in answering a calendar call did not amount to either an expressed or implied waiver of an asserted right to a jury trial, and the husband did not expressly consent to a bench trial. Walker v. Walker, 280 Ga. 696, 631 S.E.2d 697 (2006). Prelitigation contractual waiver of the right to trial by jury is not enforceable in cases tried under the laws of Georgia. Bank S. v. Howard, 264 Ga. 339, 444 S.E.2d 799 (1994). Waiver of right to jury trial in contempt proceeding. - In a criminal contempt case, the trial court did not err in failing to submit the issue of financial inability to the jury because a business

Consent to Trial Without Jury (Cont’d) partner waived the partner’s right to a jury trial on the issue of financial inability since the partner did not file a jury trial demand until after the evidentiary hearing had commenced and the partner had previously requested that the contempt hearing be placed on a non-jury calendar; a litigant may impliedly waive the statutory right to a jury trial by his or her

conduct. Affatato v. Considine, 305 Ga. App. 755, 700 S.E.2d 717 (2010). Withdrawal of jury trial waiver. - As the grant of a mistrial was an appropriate remedy for surprise at trial caused by new claims raised by the plaintiff, the trial court was authorized by O.C.G.A. § 9-11-39(b) to terminate the bench trial and to allow the defendants to withdraw the defendants’ jury waiver and demand a new trial by jury. Griggs v. Fletcher, 294 Ga. App. 60, 668 S.E.2d 521 (2008).

RESEARCH REFERENCES Am. Jur. 2d. - 47 Am. Jur. 2d, Jury, §§ 67, 86 et seq. 75B Am. Jur. 2d, Trials, § 1664. Am. Jur. Pleading and Practice Forms. - 15A Am. Jur. Pleading and Practice Forms, Judicial Sales, § 86. C.J.S. - 35B C.J.S., Federal Civil Procedure, § 1039 et seq. 50A C.J.S., Juries, § 169 et seq. ALR. - Right of judge trying case without jury to base findings on result of personal observations, 97 ALR 335. Waiver of right to jury trial as operative after expiration of term during which it was made, or as regards subsequent trial, 106 ALR 203.

Relief from stipulations, 161 ALR 1161. Rule or statute requiring opposing party’s consent to withdrawal of demand for jury trial, 90 ALR2d 1162. Sufficiency of waiver of full jury, 93 ALR2d 410. Waiver, after not guilty plea, of jury trial in felony case, 9 ALR4th 695. Authority of state court to order jury trial in civil case where jury has been waived or not demanded by parties, 9 ALR4th 1041. Jury trial waiver as binding on later state civil trial, 48 ALR4th 747. Contractual jury trial waivers in state civil cases, 42 ALR5th 53.