Adolfo Diaz appeals from the judgment of the State Court of Fulton County awarding damages and attorney fees to Patrick and Gloria Wills in this suit for negligent construction and breach of implied warranty. The state court entered a final judgment after the entry of a default judgment and after a hearing on the issue of damages. Diaz contends the court erred in denying him a jury trial on the issue of damages. Finding no error, we affirm. In a case such as this, where the defendant failed to file an answer and failed to open the default as a matter of right within fifteen days, Georgia law provides, in relevant part, as follows: If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages. Emphasis supplied. OCGA § 9-11-55 a.1
Because the Willses’ suit is an action ex delicto,2 the plain language of the statute dictates that Diaz is entitled to a jury trial if 1 he has placed damages in issue by filing a pleading raising that issue, and 2 he has made a demand for a jury trial. Id. Thus, the right to a jury trial is contingent upon the defendant having filed a pleading placing damages in issue. In this case, prior to the hearing on the issue of damages, Diaz filed two documents. The first is a document stating that counsel for the defendant “enters his appearance as attorney of record for the defendant.” The second is a document in which Diaz demanded a “trial by jury of twelve 12 as to the issue of damages in the above-styled case.” As explained below, neither of these documents is a “pleading” placing damages “in issue.”
