(with whom KAUGER, J. joins) specially concurring:
¶ 1 The majority opinion recognizes that depending on the placement of a reference to jury trial in an application to withdraw funds instead of a separate document labeled “Demand for a Jury Trial” is a “risky path.” The facts include the finding by the trial court that the defendants’ attorney tendered a Demand for Jury Trial in all three proceedings, but the court clerk refused to file the documents until it was accompanied by a jury trial fee, which fee is required by statute. 28 O.S.Supp.2008, § 152.1(7). The facts also show that each case was set on the jury sounding docket at least seven times and set for trial at least once and that ODOT participated in discovery and waited nearly two years before complaining about the late filing of a demand for jury trial in the three proceedings. These facts, taken together, persuade me this Court reached the correct result in these three cases.
. ¶ 2 The Court of Civil Appeals in State ex rel. Dept. Of Transportation v. Mehta, 2008 OK CIV APP 25, ¶ 19, 180 P.3d 1214, 1219, observed:
“The procedure for ODOT to condemn private land for public use is found at 69 O.S.2001, § 1203 et seq. There are only three (3) pleadings authorized to be filed in a condemnation proceeding: (1) the petition, (2) an exception to the commissioners’ *54report, and (3) a demand for jury trial. Board of Cty. Comm’rs of Creek County v. Casteel, 1974 OK 31, ¶ 15, 522 P.2d 608, 611. Whether additional pleadings may be filed rests in the discretion of the trial court. Rummage v. State ex rel. Dept, of Transp., 1993 OK CIV APP 39, 118, 849 P.2d 1109, 1112 (citing Incorporated Town of Pittsburg v. Cochrane, 1948 OK 121,197 P.2d 287).”
¶ 3 The right to a jury trial may be lost by a failure to file a demand for a jury trial within the 60 days provided by the statute. State ex rel. Dept, of Highways v. Brown, 1969 OK 204, ¶ 19, 462 P.2d 261, 266, cert, den., 397 U.S. 991, 90 S.Ct. 1125, 25 L.Ed.2d 398 (1970), reh. den., 397 U.S. 1081, 90 S.Ct. 1520, 25 L.Ed.2d 819 (1970).
¶ 4 To properly preserve this important right to a jury trial, a pleading should be filed within the 60 days provided by the statute, entitled “Demand for Jury Trial,” to properly alert the parties that such a demand has been made. Placing the demand within another filed document is insufficient to preserve this important right.
¶ 5 Although not briefed, the issue in this appeal would not have arisen had the defendants’ attorney paid the $350.00 filing fees, which were due at the time requested by the court clerk, along with pleadings entitled “Demand for Jury Trial.” He did not request direction from the judge concerning when the fee was due. Instead, he crafted an “Application to Withdraw Funds” for the defendants in which he inserted the phrase “pending trial of the issues by jury.” He subsequently attempted to cover himself by filing the demands for jury trial along with the jury fees, even though these were filed late.
¶ 6 Title 69 O.S.2001, § 1203(d) provides that the state is not authorized to enter upon the condemned premises until funds from the state are placed on deposit with the court clerk “for the use of the owner.” The simple and more direct method would have been for the defendants’ attorney to use this fund to pay for the demands for jury trial, and the court clerk could transfer the filing fees from that account for that purpose. If a defendant prevails by recovering a verdict more favorable to the assessment of the commissioners, costs in the district court would be payable by ODOT and therefore the defendants would be reimbursed for the jury fees. State ex rel. Dept, of Highways v. Marshall, 1974 OK 160, ¶ 15, 530 P.2d 1023, 1026. In the end, the same pleading cost considerably more than $350.00, plus the time and effort consumed to adjudicate the issue.