In civil actions, where the burden of proof rests with the plaintiff, the plaintiff is entitled to the opening and concluding arguments except that if the defendant introduces no evidence or admits a prima-facie case, the defendant shall be entitled to open and conclude. In civil actions for personal injuries, the defendant shall be deemed not to have admitted a prima-facie case if such defendant introduces any evidence as to the extent of damages, other than cross-examination of the plaintiff and witnesses called by the plaintiff.
(Code 1981, §9-10-186, enacted by Ga. L. 1997, p. 951, § 1.)
Law reviews.- For article commenting on the enactment of this Code section, see 14 Ga. L. Rev. 22 (1997).
JUDICIAL DECISIONS
Burden on trial counsel.
- Even though O.C.G.A. § 9-10-186 gave plaintiff the right to opening and concluding closing arguments, it was incumbent on counsel for the plaintiff to assert the right to make the last argument at the trial level. Sykes v. Sin, 229 Ga. App. 155, 493 S.E.2d 571 (1997).
Right to open and conclude arguments to the jury.
- In a divorce proceeding, where the only issues submitted to the jury were defendant's claim for alimony and her claims for damages, on each of those issues, she bore the burden of proof and she was entitled to open and close arguments. Hussey v. Hussey, 273 Ga. 735, 545 S.E.2d 880 (2001).
In a divorce proceeding, defendant did not waive her right to open and close concluding arguments by waiting to assert the right until after plaintiff testified in opposition to her counterclaims for alimony and damages because, at the time plaintiff testified, he bore the burden of proof on the issues raised in his complaint. Hussey v. Hussey, 273 Ga. 735, 545 S.E.2d 880 (2001).
Georgia Pipe Co. v. Lawler, 262 Ga. App. 22, 584 S.E.2d 634 (2003), must be overruled to the extent it holds that a defendant who presents no evidence loses the right to open and close the final argument unless the defendant asserts the right before the plaintiff submits evidence. Kia Motors Am., Inc. v. Range, 276 Ga. App. 360, 623 S.E.2d 514 (2005).
Because a manufacturer did not admit a customer's prima facie case breach of warranty case under O.C.G.A. § 11-2-714(2), the trial court erred in denying the manufacturer the right to open and close the final argument under Ga. Unif. Super. Ct. R. 13.4 and O.C.G.A. § 9-10-186. Kia Motors Am., Inc. v. Range, 276 Ga. App. 360, 623 S.E.2d 514 (2005).
Trial court did not err under O.C.G.A. § 9-11-21 in realigning the parties to cause the husband, who initially filed the divorce action, to be the defendant and to cause the wife to be the plaintiff; the wife's burden of proof was significantly heavier than the husband's, as the wife had the burden of proof regarding fraudulent transfers, alimony, adultery, and attorney's fees, so the wife was entitled to the procedural rights of a plaintiff, such as those rights to opening and closing statements granted under O.C.G.A. § 9-10-186. Moore v. Moore, 281 Ga. 81, 635 S.E.2d 107 (2006).
Trial court did not err by readmitting the Defendant's Exhibit 1 as the Plaintiff's Exhibit 9, over the plaintiff's objection because the plaintiff waived the right to object as counsel did not object after the trial court readmitted the document; and, although counsel had previously stated that counsel wanted the exhibit attributed to the defendant so that the plaintiff would have the right to open and conclude closing argument, counsel stated that counsel would honor the trial court's decision either way, and did not object after the court ruled. Petrenko v. Moseri, 333 Ga. App. 14, 775 S.E.2d 272 (2015).
For purposes of the defendant's right to open and conclude closing arguments, the trial court did not err by not requiring the defendant to tender into evidence the Defendant's Exhibit 2 because the exhibit was neither read nor shown to the jury, and the plaintiff's testimony was limited to a recollection of information contained in the document. Petrenko v. Moseri, 333 Ga. App. 14, 775 S.E.2d 272 (2015).
Because the defendant never affirmatively offered the Defendant's Exhibit 1 into evidence on the defendant's behalf and, during the deposition, the doctor was shown the exhibit, but did not read from the deposition or disclose its contents other than to admit that the doctor's assistant had documented a telephone call from the plaintiff's counsel regarding questions about the medical narrative the doctor had prepared, the exhibit was not admitted as a defense exhibit and did not deprive the defendant of the right to open and conclude closing arguments. Petrenko v. Moseri, 333 Ga. App. 14, 775 S.E.2d 272 (2015).
Denying right to final argument within trial court's discretion.
- In a child custody modification case brought by a father, the trial court did not abuse the court's discretion in refusing the father's request for more argument after both his counsel and the mother's counsel had given their closing arguments; the father was not completely denied closing argument contrary to O.C.G.A. § 9-10-186. Gordon v. Abrahams, 330 Ga. App. 795, 769 S.E.2d 544 (2015).
Cited in TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 590 S.E.2d 807 (2003); Bailey v. Edmundson, 280 Ga. 528, 630 S.E.2d 396 (2006).
ARTICLE 9 GENERAL CIVIL FORMS
Cross references.
- Standard forms for use in probate court proceedings, Uniform Rules for the Probate Courts, Rule 21.
Editor's notes.- The forms contained in this article are an updated version of the "Jack Jones Forms," which continue to satisfy pleading requirements.
JUDICIAL DECISIONS
It was unquestionably the intention of legislature to authorize all actions of slander to be brought under the forms prescribed by this article and it is only necessary for the plaintiff to declare according to the form dictated by law, and everything else may be supplied by the proof. Dickey v. Brannon, 118 Ga. App. 33, 162 S.E.2d 827 (1968).
Plaintiff in trover action not required to use forms.
- While the "Jack Jones Forms" are statutory in origin, trover is not, and a plaintiff in an action in trover is not required to use the statutory or "Jack Jones Form." McCoy v. Romy Hammes Corp., 99 Ga. App. 513, 109 S.E.2d 807 (1959).
Prayer for process to issue requiring defendant to answer at time not required by law quashable.
- Prayer in petition for process to issue requiring a defendant to answer at a time other than the time provided by law (in this case, that defendant answer at the next term of court, in accordance with the "Jack Jones Forms") is defective, and process issued thereon is subject to a motion to quash whether the process actually issued is in accordance with the law or in accordance with the prayer. McCoy v. Romy Hammes Corp., 99 Ga. App. 513, 109 S.E.2d 807 (1959).
The "Jack Jones Forms" which were enacted into law in 1847 can continue to be used because they meet the requirement of giving "a short and plain statement of the claim showing that the pleader is entitled to relief" as provided in Ga. L. 1967, p. 226, § 8 (see O.C.G.A. § 9-11-8(a)(2)(A)). Hunt v. Denby, 128 Ga. App. 523, 197 S.E.2d 489 (1973).