450 S.E.2d 305 | Ga. Ct. App. | 1994
This is the second appearance of the case sub judice before this court. Following our decision in Adams v. Trust Co. Bank, 206 Ga. App. 554 (426 SE2d 36), the case was remanded to the superior court where further discovery was conducted and a pretrial order entered on April 4, 1994. On May 12, 1994, an order was filed granting summary judgment on most of the remaining issues in favor of plaintiff Trust Company Bank and against defendant Adams. Held:
Defendant appeals from the grant of summary judgment and submits as his sole enumeration of error the omission from the pretrial order of the issues formed by his counterclaim predicated on 15 USC § 1640 (a) (1). However, this issue is raised for the first time on appeal and there was no objection to the pretrial order submitted to the superior court. While defendant argues that this appeal presents his first opportunity to seek a ruling concerning the content of the pretrial order, we do not agree. Defendant’s obligation was to object in a timely manner, and certainly before a ruling upon a motion for summary judgment if practicable. Instead of objecting to the pretrial order below, defendant allowed more than a month to pass, after the filing of the pretrial order and before the entry of the order granting summary judgment in favor of plaintiff, without any objection to the content of the pretrial order. This was done with knowledge that the pretrial order might adversely affect any ruling upon the then pending motion for summary judgment. By waiting this lengthy period of time for the adverse judgment on the motion for summary judgment before raising any objection to the pretrial order, defendant has waived the issue which he belatedly attempts to submit on appeal. Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481, 484 (2) (249 SE2d 286). See also Horne v. City of Cordele, 254 Ga. 346, 347 (1) (329 SE2d 134); Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 445 (2) (430 SE2d 813); King v. Thompkins, 186 Ga. App. 12, 16 (8) (366 SE2d 340).
Judgment affirmed.