General Business Services, Inc. v. Fletcher, 14340.
| Decision Date | 21 December 1970 |
| Docket Number | No. 14340.,14340. |
| Parties | GENERAL BUSINESS SERVICES, INC., Appellee, v. Silas FLETCHER, Sr., d/b/a General Business Services, Route 1, Box 90, Gatesville, North Carolina, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thomas A. McKee, Richmond, Va., for appellant.
John H. Hall, Jr., Elizabeth City, N. C. (Jeffrey L. Gardy, Suffolk, Va., and Gerald F. White, Elizabeth City, N. C., on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and THOMSEN, District Judge.
In a suit for damages and an injunction in which it was alleged that defendant, after termination of a franchise agreement, continued to use plaintiff's trademark to identify tax and record keeping services performed by defendant and used plaintiff's record books bearing plaintiff's registered trademark, the district court, 308 F.Supp. 1135 granted plaintiff an injunction, awarded money damages in the amount specified in the contract and awarded an attorney's fee.
On appeal defendant claims as the principal grounds for reversal that the case was improperly tried non-jury and that plaintiff lost certain of defendant's exhibits which were submitted to plaintiff's attorneys for inspection.
The complaint, defendant's answer and amended answer all demanded a jury trial. But the subsequent final pretrial order recited that at the pretrial conference, which plaintiff attended by counsel and defendant in proper person, "all parties waived trial by jury" and ordered that the case be tried without a jury. By letter, written five days later, defendant, who throughout the trial appeared in proper person, wrote that he understood the court would decide the points of law but that a jury would assess damages.* He purportedly renewed his demand for a jury trial. Nonetheless, the case was tried non-jury.
We see no error. The pretrial order recites a valid waiver of jury trial and once waived the subsequent demand was not timely. Rule 38, F.R.Civ.P. Subsequent to argument, we sought to obtain a transcript of the pretrial conference to determine if there was any basis to impeach or question the accuracy of the pretrial order. We are advised that a reporter was present but was not requested to take any notes. There is no basis, therefore, to go behind the pre-trial order, or to corroborate any claim of misunderstanding on the part of the pro se defendant.
Plaintiff's counsel admits to the loss...
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