Barner v. Binkley
| Decision Date | 12 May 2010 |
| Docket Number | No. A10A1285.,A10A1285. |
| Parties | BARNERv.BINKLEY. |
| Court | Georgia Court of Appeals |
304 Ga.App. 73
695 S.E.2d 398
BARNER
v.
BINKLEY.
No. A10A1285.
Court of Appeals of Georgia.
May 12, 2010.
Smith, Price & Wright, Sidney P. Wright, Rome, for appellee.
BLACKBURN, Judge.
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 a ten-foot-wide easement granted them over Binkley's property by failing to use such for over twenty-five 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.
Barner did not appear at the trial on July 9, either personally or through counsel. Without explaining why, the trial court tried the matter as a bench trial, and after hearing the evidence, ruled in favor of Binkley on the issue of easement abandonment. In a judgment entered that same day, the court awarded Binkley $97,060 in compensatory and punitive damages and issued a permanent injunction enjoining Barner from trespassing on Binkley's land.
On September 9, 2009, Barner moved to set aside the judgment, claiming that nonamendable defects of record existed in that he had neither received notice of the trial nor waived his right to a jury trial. After an evidentiary hearing on the matter, the court denied the motion, addressing only the issue of notice to Barner and finding that Barner had been properly served. After we granted his application for discretionary appeal, Barner appealed this denial to this Court.
1. We first address the standard of review, which seems to have confused appellant Barner. Barner repeatedly states in his appellate brief that he filed his motion to set aside in the same term of court as that in which the court entered its judgment against him, and therefore argues that it was within the complete discretion of the inherent power of the court to amend, modify, vacate, or set aside its judgment. The record belies this approach.
The trial court, which was the Superior Court of Floyd County, entered the judgment against Barner on July 9, 2009. Barner did not file his motion to set aside that judgment until September 9, 2009. Because the relevant term of court for the Superior Court of Floyd County ran from the second Monday in March until the commencement of the next term on the second Monday in July (which next term continued until the commencement of the following term on the second Monday in September) (see OCGA § 15-6-3(33)), the judgment entered on July 9, 2009 fell within the term that expired on July 12, 2009. Barner's motion to set aside, filed on September 9, 2009, fell within the next
Nevertheless, the motion to set aside was timely, as such motions need only be filed within three years from entry of the judgment complained of. See OCGA § 9-11-60(f). We therefore refer to the general appellate rule on reviewing orders on such motions, which is that we do not reverse a trial court's ruling on a motion to set aside unless the trial court abused its discretion. See Brown v. Gadson.1 However, where, as here, the facts are undisputed and the question is one of law, we review the ruling de novo. Guthrie v. Wickes.2
2. We next address whether a motion to set aside is the proper vehicle for addressing a claim that a party was denied the right to a jury trial.3 We answer that question in the affirmative, as a motion to set aside may be brought based on “[a] nonamendable defect which appears upon the face of the record or...
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