Cole v. ACR/Atlanta Car Remarketing Inc.

The defendant made no written jury trial demand in his answer and failed to object to the order , which specially set the plaintiff's case for a bench trial.

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Following a bench trial, the trial court rendered a verdict and judgment in favor of ACR in its breach of contract and fraud action against James Cole. Cole appeals the judgment and the denial of his motion for new trial, arguing that the court erred in denying his right to a jury trial. For the reasons set forth below, we affirm. The record shows that in January 2004, ACR sold a 2001 Lexus automobile to Cole, for which Cole paid with a check for $26,300. However, the check was returned for insufficient funds, and repeated attempts by ACR over the next few months to obtain payment from Cole for the vehicle were unsuccessful. Consequently, on June 28, 2004, ACR sued Cole, alleging breach of contract and fraud and seeking judgment for $26,300, interest, attorney fees, and punitive damages. Shortly thereafter, Cole answered and counterclaimed, alleging that the exchange of the automobile was compensation as part of a larger oral agreement between the parties, which ACR had breached.

On September 12, 2006, the trial court dismissed the matter after both parties failed to appear at a hearing that had been scheduled for the previous day. One week later, ACR moved to set aside the court’s order, arguing that it had not received notice of the hearing. As a result, the court vacated its order dismissing the case. Cole then failed to appear for a civil jury calendar, which had been scheduled for May 29, 2007, causing the court to strike his pleadings and enter judgment in favor of ACR. Cole moved to set aside the judgment, arguing that he had not received notice of the trial date. The court held a hearing on Cole’s motion on November 13, 2007, at which time it vacated its judgment and set the case for a December 14, 2007 bench trial. On December 13, 2007, the court issued a written order, in which it again held that it was vacating its judgment on the ground that Cole had not received notice of the May 29, 2007 trial date and in which it noted that the case was set for the next available trial calendar.

Cole v. ACR/Atlanta Car Remarketing Inc.

The defendant made no written jury trial demand in his answer and failed to object to the order , which specially set the plaintiff's case for a bench trial.

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