DUR-RICH REALTY, INC. AND JUDITH H. RICHMAN
v.
ROBERT S. CALZARETTA, DEBRA CALZARETTA, KELSMEG, LLC AND SEA & SUN REALTY, INC.
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Dur-Rich Realty and Judith Richman appealed a trial court's order awarding attorney's fees to Robert Calzaretta, arguing procedural irregularities in the evidentiary hearing. The appellate court affirmed, holding that appellants waived their procedural objection by failing to raise it until after the trial court ruled on the merits.
Although the trial court made procedurally irregular findings that were irreconcilable with the judge's oral pronouncement regarding the pending declaratory judgment action, appellants waived their right to challenge the procedural defects by failing to raise the objection until after the court ruled on the merits.
[1] A party waives a procedural objection by waiting to raise the issue until after an adverse ruling.
[2] Findings of fact that are irreconcilable with a prior oral pronouncement may nevertheless dispose of a party's action under principles of res judicata.
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Join FLexlaw to unlock all legal intelligence“Having waited to object until after the court ruled, Appellants cannot, on appeal, be heard to complain.”
Establishes the waiver doctrine: appellants lost the right to challenge procedural irregularities by delaying their objection until after the trial court's ruling on the merits.
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Join FLexlaw to unlock all legal intelligenceDur-Rich Realty and Judith Richman were involved in litigation with Robert and Debra Calzaretta and other defendants. Calzaretta sought attorney's fee…
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PER CURIAM.
Dur-Rich Realty, Inc., and Judith H. Richman (“Appellants”), appeal the trial court’s order awarding Robert S. Calzaretta attorney’s fees. Although we agree that there were procedural irregularities in this matter, we find that Appellants waived their related argument. 1 On appeal, Appellants argue that the trial court erred in overruling their procedural objection to going forth with an evidentiary hearing on Calzaretta’s entitlement to attorney’s fees. The entitlement issue was inextricably intertwined with Dur Rich’s pending declaratory judgment action, pled as a counterclaim. At the outset of the hearing,
Appellants’ counsel represented to the trial court that his clients had evidence they could “put forth today to demonstrate and support [their] position.” Only after the trial court made findings adverse to Dur Rich that, in turn, entitled Calzaretta to attorney’s fees, did
Appellants raise a procedural objection to the hearing. At that point, the only issue left for determination was the amount of fees to be awarded.
We recognize that the trial judge 2 who conducted the attorney’s fees evidentiary hearing made findings of fact irreconcilable with the oral pronouncement of his intent to defer ruling on Appellants’ pending declaratory judgment action. However, as both parties acknowledge, under principles of res judicata, those findings of fact effectively disposed of Appellants’ declaratory judgment action. Having waited to object until after the court ruled, Appellants cannot, on appeal, be heard to complain. See Zumpf v. Countryside Home Loans, Inc., 43 So. 3d 764, 767 (Fla. 2d DCA 2010) (holding party waived procedural objection by waiting to raise issue until after hearing). 1 The procedural history of this case includes multiple evidentiary hearings, resulting in piecemeal findings by different judges, some of which were contradictory. 2 The trial judge entered a final judgment awarding Calzaretta attorney’s fees following the evidentiary hearing. Because of procedural issues related to the finality of that judgment and because that judge had retired, Judge Turner entered an amended final judgment, which is ostensibly the judgment on appeal. 2 AFFIRMED.
EVANDER, C.J., COHEN and GROSSHANS, JJ., concur. 3