Opinion
Case No. 5D19-309
02-07-2020
DUR-RICH REALTY, INC. AND JUDITH H. RICHMAN, Appellants, v. ROBERT S. CALZARETTA, DEBRA CALZARETTA, KELSMEG, LLC AND SEA & SUN REALTY, INC., Appellees.
N. James Turner, Orlando, and August J. Stanton, Jr., of A. J. Stanton, Jr., P.A., Orlando, for Appellants. Michael R. Riemenschneider and Jeffrey L. DeRosier, of Riemenschneider, Wattwood & DeRosier, P.A., Melbourne, for Appellees.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Brevard County, George B. Turner, Judge. N. James Turner, Orlando, and August J. Stanton, Jr., of A. J. Stanton, Jr., P.A., Orlando, for Appellants. Michael R. Riemenschneider and Jeffrey L. DeRosier, of Riemenschneider, Wattwood & DeRosier, P.A., Melbourne, for Appellees. 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.
The procedural history of this case includes multiple evidentiary hearings, resulting in piecemeal findings by different judges, some of which were contradictory.
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 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).
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. --------
AFFIRMED. EVANDER, C.J., COHEN and GROSSHANS, JJ., concur.