Robinson v. Moonraker Assocs., Ltd., 423 S.E.2d 44 (Ga. Ct. App. 1992). · Go Syfert
Robinson v. Moonraker Assocs., Ltd., 423 S.E.2d 44 (Ga. Ct. App. 1992). Cases Citing This Book View Copy Cite
17 citation events (9 in the last 25 years) across 1 distinct court.
Cited for
205 Ga. App. at 598 Opening default after judgment set aside under statute7 citing casesnoting that “a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of [the] same” on appeal1 citing court put it this way
  • Blair Zakas v. Curtis Jackson, 835 S.E.2d 371 (Ga. Ct. App. 2019).published
    Robinson v. Moonraker Assoc., Ltd., 205 Ga. App. 597, 598 ( 423 SE2d 44 ) (1992) (citations and punctuation omitted).
  • In the Interest of A. W., 528 S.E.2d 819 (Ga. Ct. App. 2000).published
    (Punctuation omitted.)Robinson v. Moonraker Assoc., Ltd,., 205 Ga. App. 597, 598 ( 423 SE2d 44 ) (1992).
  • Plaza Props., Ltd. v. Prime Bus. Investments, Inc., 524 S.E.2d 306 (Ga. Ct. App. 1999).published
    Tobin, for appellee. 1 The court apparently construed Plaza Properties’jury demand as a demand from both defendants. 2 Matthews v. Matthews, 268 Ga. 863, 864 (2) ( 494 SE2d 325 ) (1998). 3 (Punctuation omitted.) Goss v. Bayer, 184 Ga. App.…
  • Hardwick v. State, 436 S.E.2d 676 (Ga. Ct. App. 1993).published
    Failure to object to the procedure amounts to waiver.” (Citations and punctuation omitted.) Robinson v. Moonraker Assoc., Ltd., 205 Ga. App. 597, 598-599 ( 423 SE2d 44 ) (1992).
  • Gwinnett Cnty. v. Old Peachtree Partners, LLC, 764 S.E.2d 193 (Ga. Ct. App. 2014).published 2 cites
    (noting that “a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of [the] same” on appeal)
  • Davis v. S. Exposition Mgmt. Co., 503 S.E.2d 649 (Ga. Ct. App. 1998).published 2 cites
    See Robinson v. Moonraker Assoc., 205 Ga. App. 597, 598 ( 423 SE2d 44 ) (1992). 2.
  • Franklin v. Eaves, 787 S.E.2d 265 (Ga. Ct. App. 2016).published 2 cites
    (appellants waived right to complain that trial court opened default despite appellee’s failure to pay costs as required by OCGA § 9-11-55(b))
205 Ga. App. at 597 Entering default judgment when no answer is filed1 citing caseNo answer was timely filed, and a default judgment was entered in favor of the [plaintiffs] for $96,976.1 citing court put it this way
Retrieving the full opinion text from the archive…
ROBINSON Et Al.
v.
MOONRAKER ASSOCIATES, LTD. Et Al.
A92A1265.
Court of Appeals of Georgia.
Sep 28, 1992.
Published opinion
423 S.E.2d 44
1992 Ga. App. LEXIS 1262
Donald W. Johnson, for appellants., McLain & Merritt, William S. Sutton, for appellees.
Sognier, McMurray, Cooper.
Cited by 8 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 57%
Citer courts: Court of Appeals of Georgia (1)
Sognier, Chief Judge.

Robin and Donna Robinson brought suit against Moonraker Associates, Ltd. and others seeking damages for Robin Robinson’s injuries and Donna Robinson’s loss of consortium. No answer was timely filed, and a default judgment was entered in favor of the Robinsons[*598] for $96,976. Subsequently, during the same term of court, the defendants filed a motion to set aside the default judgment, which was granted, and the trial court, then opened the default pursuant to OCGA § 9-11-55 (b) and allowed the defendants to file an answer. After discovery, the defendants’ motion for summary judgment was granted, and the Robinsons appeal.

In their sole enumeration of error, appellants contend the trial court erred by granting appellees’ motion to set aside the default judgment because appellees had not paid costs as required by OCGA § 9-11-55 (b). We note initially that the provisions of OCGA § 9-11-55 (b) apply only to opening a default before judgment has been entered. Allen v. Nash, 195 Ga. App. 597, 598 (1) (394 SE2d 395) (1990). Nevertheless, since in their argument appellants do not challenge the trial court’s action in setting aside the default judgment, but see McCoy Lumber Co. v. Garland Lumber Sales, 182 Ga. App. 75, 76 (354 SE2d 686) (1987) (trial court has discretion during same term of court to set aside default judgment), we will construe appellants’ enumeration as a challenge to the trial court’s opening the default after setting aside the default judgment.

“Once a default judgment is set aside, the case returns to the posture it occupied prior to the entry of the default judgment, which posture is usually that of being in default. [Cits.] It is at this point that the procedure for opening default, set out in OCGA § 9-11-55 (b), is set into motion.” P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328-329 (1) (329 SE2d 545) (1985). Appellants note correctly that under OCGA § 9-11-55 (b) one seeking to open a default must pay costs. The record, as supplemented, shows that costs were not paid until well after the date on which the trial court allowed appellees to open the default. However, it is well established that “[a] question not raised and passed upon in the trial court presents nothing to review,” Yield, Inc. v. City of Atlanta, 145 Ga. App. 172-173 (244 SE2d 32) (1978), and the record reveals that appellants failed to raise this issue in opposition to the trial court’s opening the default. Moreover, during the nearly nine months between the date the default was opened and the trial court’s grant of appellees’ motion for summary judgment appellants further acquiesced in the ruling by participating fully in discovery in the ongoing case. “[T]his court has held that no matter how erroneous the ruling might have been (and we express no opinion on this question), a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. Failure to object to the procedure amounts to waiver.” (Citations and punctuation omitted.)[*599] Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 480 (1) (a) (382 SE2d 150) (1989). Accordingly, as appellants have not preserved their right to complain of the trial court’s action in opening the default despite appellees’ failure to pay costs, we are precluded from reviewing the action complained of. Id.

Decided September 28, 1992. Donald W. Johnson, for appellants. McLain & Merritt, William S. Sutton, for appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.