JOSEPH G. DUBOWITZ AND IDA DUBOWITZ, HIS WIFE, APPELLANTS,
v.
CENTURY VILLAGE EAST, INC., A FLORIDA CORPORATION, AND CEN-DEER COMMUNITIES, INC., A FLORIDA CORPORATION, APPELLEES
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Condominium association members appealed a trial court dismissal of their suit seeking injunctive and declaratory relief to vindicate their right to use a clubhouse for Democratic Club meetings. The appellate court affirmed the dismissal, finding the trial court acted within its equitable powers and that appellants waived any procedural objections by failing to raise them timely.
The trial court had the authority to dismiss the case as a chancellor in equity may enter judgment when it clearly appears that judgment should be entered as a matter of law. Appellants waived any objections to procedural irregularities, including insufficient notice, by acquiescing to the dismissal procedure and failing to raise objections in the trial court.
[1] A trial court may enter judgment at any time during a proceeding when it clearly appears that upon all questions of fact before it, judgment should be entered as a matter…
[2] Objections to procedural matters not raised in the lower court cannot be raised on appeal.
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Join FLexlaw to unlock all legal intelligence“The chancellor in a court of equity is empowered to enter judgment at any time during a proceeding when it clearly appears that upon all questions of fact before him, judgment should be entered as a matter of law.”
Establishes the trial court's equitable power to enter judgment for dismissal
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Join FLexlaw to unlock all legal intelligenceAppellants Joseph G. and Ida Dubowitz were members of a condominium association that leased a clubhouse from Century Village East, Inc. They sought re…
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HERSEY, Judge.
Appellants filed a complaint against appellees seeking injunctive and declaratory relief with respect to their rights as members of a condominium association which is the lessee of a clubhouse located near the condominium. The alleged right sought to be vindicated here is the right of certain members of the condominium association to assemble at the clubhouse for meetings of the Century Village Democratic Club. Ap-pellee, Century Village East, Inc., is the lessor of those facilities.
An emergency hearing on appellants’ motion for temporary relief was commenced in the trial court on June 8, 1978. This hearing was not completed and was continued until September 7. At the conclusion of the September 7th hearing, the trial court announced that it was dismissing the cause. The record discloses that appellants’ only objection to this proposal was that there was no testimony on Section 713.122 , Florida Statutes (1979) other than on the question of the temporary injunction. The trial court then stated that it would enter an order denying any temporary injunctive relief and would take the remainder of the case under advisement. The court further requested memoranda on whether the suit should be dismissed, specifically in relation to Section 718.122 , Florida Statutes (1979). Appellants acquiesced in this procedure, never once objecting on the basis of insufficient notice or on any other grounds. Further, appellants never contended to the trial court that they actually had additional evidence to present. Finally, when afforded the opportunity to address the propriety of dismissal of their complaint by memorandum, appellants chose not to object to the procedure suggested by the trial court.
Since the remedies requested by appellants were cognizable in equity, the trial court was called upon to exercise its equitable powers. The chancellor in a court of equity is empowered to enter judgment at any time during a proceeding when it clearly appears that upon all questions of fact before him, judgment should be entered as a matter of law. Marsh v. Sarasota County, 97 So. 2d 312 (Fla.2d DCA 1957).
Further, objections to procedural matters not raised in the lower court cannot be raised on appeal and a party who fails to make a timely objection to what he perceives to be procedural irregularities will be deemed to have waived the same by acquiescence. Marsh v. Sarasota County, Id. We have no question of due process here.
Accordingly, in the instant case, the trial court had the authority to dismiss the case and any objections to possible irregularities of procedure, including insufficient notice, were waived. We therefore affirm.
AFFIRMED.
LETTS, C. J., concurs.
MOORE, J., dissents with opinion.
MOORE, Judge,
dissenting:
I respectfully dissent. In my opinion appellants should have an opportunity to present evidence on the issues involved after those issues are created by a responsive pleading to the appellants’ complaint. I would reverse for further proceedings.
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O. Alan Jared, M.D., Bethesda Radiology Assocs., P.A. v. Jackson, 483 So. 2d 51 (Fla. 4th DCA 1986)…court’s jurisdiction by review in this court where they did not object below. The cases cited, however, involve challenges to procedural improprieties, not to the trial court’s subject matter jurisdiction. See Dubowitz v. Century Village East, Inc., 385 So. 2d 1116 (Fla. 4th DCA 1980); Commodore Plaza at Century 21 Condominium Ass’n v. Cohen, 350 So. 2d 502 (Fla.3d DCA 1977), cert. denied, 362 So. 2d 1051 (Fla.1978); Hall v. Davis, 106 So. 2d 599 (Fla. 1st DCA 1958). A contention that the trial court lacked su…
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Samuels v. Magnum Realty Corp., 431 So. 2d 241 (Fla. 1st DCA 1983)…hearing on the motion as required by Rule 1.510, Florida Rules of Civil Procedure, since this procedural error was not timely raised in the trial court, and appellant has not asserted a due process violation. Dubowitz v. Century Village East, Inc., 385 So. 2d 1116 (Fla. 4th DCA 1980); Humphrys v. Jarrell, 104 So. 2d 404 (Fla. 2nd DCA 1958). Cf. Heritage Casket and Vault Ind., Inc. v. Sunshine Bank, 428 So. 2d 341 (Fla. 1st DCA 1983). [*243] REVERSED and REMANDED for further proceedings consistent herewith.…
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The Yachting Arcade, Inc. v. Riverwalk Condo. Assoc. Inc., 500 So. 2d 202 (Fla. 1st DCA 1986)…bject to the petition, substitution of parties, qualifications of the Riverwalk Association representative, or Riverwalk Association’s standing in the tribunal below. These issues accordingly are unreviewable. Dubowitz v. Century Village East, Inc., 385 So. 2d 1116 (Fla. 4th DCA 1980). Appellant claims these alleged procedural errors were fundamental, but fails to show how it was prejudiced by any such action or omission. Solomon v. Hunt, 243 So. 2d 185 (Fla. 3d DCA 1971). On points 2 and 3, supra, appellant…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marsh v. Sarasota Cnty., 97 So. 2d 312 (Fla. 2d DCA 1957)