KENNETH V. HEMMERLE, APPELLANT,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR SUNRISE SAVINGS AND LOAN ASSOCIATION, APPELLEE
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Kenneth Hemmerle appeals an order enforcing a contempt citation and $60,000 fine imposed for his refusal to comply with a mandatory injunction to remove construction equipment and toxic waste from foreclosed property. The court affirmed the contempt order, rejecting Hemmerle's due process challenge.
The trial court properly retained jurisdiction and enforced the injunction and contempt order. The foreclosure judgment was enforceable pending appeal absent a supersedeas or stay, and the court's enforcement did not affect appellate jurisdiction. Hemmerle's due process challenge and other defensive arguments lack merit.
[1] A judgment is enforceable pending appeal absent a supersedeas or stay.
[2] A party's failure to seek review of a trial court's order does not preclude appellate review of a subsequent order enforcing the prior order.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The judgment referred to, which has since been affirmed by this court, was never superseded or stayed in any manner. The enforcement thereof did not affect the appellate jurisdiction of this court and, absent super-sedeas, was enforceable pending appeal.”
Establishes that a judgment is enforceable pending appeal without supersedeas, supporting the trial court's jurisdiction to enforce the injunction.
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Join FLexlaw to unlock all legal intelligenceFSLIC obtained a foreclosure judgment against Hemmerle and another defendant. After the property was sold at public sale to FSLIC, Hemmerle refused to…
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DOWNEY, Judge.
In this appeal appellant, Kenneth Hem-merle, seeks review of an order enforcing a contempt order and fine of $1,000 per day.
Federal Savings and Loan Insurance Corporation (FSLIC) (the predecessor of appel-lee Federal Deposit Insurance Corporation) sued Hemmerle and Acquisition Corporation of America to foreclose a mortgage on certain real property in Palm Beach County. After entry of a final judgment against the defendants, the property was sold at public sale to FSLIC. Various items of construction equipment and barrels of toxic waste were left on the job site and, although requested, Hemmerle refused to remove them unless FSLIC would give him a letter terminating his contract for the improvements. FSLIC then sought, and received, a mandatory injunction ordering Hemmerle to remove the equipment and personal property from the site. When he failed to comply with the injunction, FSLIC sought, and received, an order dated April 10, 1989, adjudicating Hemmerle in contempt and fining him $1,000 per day until he complied; however, he could purge himself of contempt by complying on or before April 20, 1989. Finally, on June 21, 1989, the court granted a motion to enforce the order of contempt and entered judgment for the accrued fine of $60,000. This appeal is from that order (a later similar order was entered, which we herewith strike as surplusage).
Throughout the injunction and contempt proceedings Hemmerle was given adequate notice; he filed pleadings and participated in all of the hearings, alleging lack of due process and other defensive stances. It is noteworthy that throughout these post-judgment proceedings until this last order on June 21, 1989, Hemmerle did not seek to review any of the trial court’s orders.
Hemmerle’s original due process attack involves his contention that the trial court lacked jurisdiction to entertain the injunction request because the foreclosure judgment was on appeal. However, the judgment referred to, which has since been affirmed by this court, was never superseded or stayed in any manner. The enforcement thereof did not affect the appellate jurisdiction of this court and, absent super-sedeas, was enforceable pending appeal. Horn v. Horn, 73 So. 2d 905 (Fla.1954); FMS Management Systems, Inc. v. IDS Mortgage Corporation, 402 So. 2d 474 (Fla. 4th DCA 1981). Although there are a number of other defensive postures assumed by Hemmerle, our consideration of them convinces us they lack merit.
Accordingly, we affirm the order appealed from.
LETTS, J., and RICHARD H. FRANK, Associate Judge, concur.
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Mann-Stack v. Homeside Lending, Inc., 982 So. 2d 72 (Fla. 2d DCA 2008)…ent without posting a supersedeas bond, but he does so at the risk of having to pay the judgment before the appeal has been concluded.”). Ms. Mann-Stack’s situation is similar to that of the appellant in Hemmerle v. Federal Deposit Insurance Corp., 569 So. 2d 472 (Fla. 4th DCA 1990), which involved a mortgage foreclosure and sale of real property, followed by an order finding the appellant in contempt and imposing a $60,000 fine for refusing to obey an injunction to clear the property, all done during the pe…
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Miseveth v. The Honorable Leonard L. Stafford, 667 So. 2d 1012 (Fla. 4th DCA 1996)…nt agreement filed on August 11 and October 4 and any motions for stay filed pursuant to Florida Rule of Appellate Procedure 9.310, Amlan, Inc. v. Detroit Diesel Corp., 651 So. 2d 701, 706 (Fla. 4th DCA 1995); Hemmerle v. Federal Deposit Ins. Corp., 569 So. 2d 472, 473 (Fla. 4th DCA 1990), rev. denied, 583 So. 2d 1035 (Fla.1991). Petition for writ of mandamus is granted. KLEIN, SHAHOOD and GROSS, JJ„ concur.…
Authorities Cited
- Horn v. Horn, 73 So. 2d 905 (Fla. 1954)
- FMS Mgmt. Sys., Inc. v. IDS Mortg. Corp., 402 So. 2d 474 (Fla. 4th DCA 1981)