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Barner v. Binkley

The defendant's failure to appear for a trial, standing by itself, did not give rise to conduct demonstrative of an implicit waiver of his right to a jury trial.

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Following a bench trial at which he did not appear, Gary Barner appeals the trial court’s denial of his motion to set aside the judgment entered against him on Thelma Binkley’s claims of abandonment of easement and trespass. Barner claims that he did not receive notice of the trial and that he never waived his right to a jury trial. For purposes of this opinion, we assume Barner received proper notice, since we must reverse in any case based on a violation of Barner’s right to a jury trial. The undisputed facts show that on April 23, 2008, Binkley filed suit against Barner, alleging that Barner and his predecessor-in-title had abandoned an 10-foot wide easement granted them over Binkley’s property by failing to use such for over 25 years ever since Barner’s predecessor-in-title had allegedly erected a barrier to the use of the easement in 1974 and had told Binkley the easement would no longer be used. Claiming such constituted an abandonment of the easement under OCGA § 44-9-6, Binkley sought trespass damages for Barner’s 2006 removal of the barriers and his 2007 construction of a 17-foot road over the old easement over her repeated objections, and further sought punitive damages for Barner’s alleged wilful misconduct and belligerence in his construction and use of the new road.

Barner answered the complaint through counsel, denying all material allegations. After Barner’s counsel was allowed to withdraw from representing Barner, Binkley’s counsel filed a notice of the final hearing on the case scheduled for July 9, 2009, sending a copy of the notice by regular mail to Barner at his address in the record. The notice did not specify whether the trial would be a bench trial or a jury trial.

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