HEMMERLE

v.

BAKST (IN RE SUN-ISLAND REALTY, INC.)

Motion for Contempt and Sanctions for Debt- or’s Disobedience of Order Compelling Turnover of Assets, Motion for Contempt by Creditor Boston Pointe Corporation Against Kenneth V. Hemmerle, Sr., S.I.R. Investment & Development, Inc. and King of Clubs, Inc. for Violations of Court Orders Dated May 19, 1992 and June 30, 1992, Motion to Strike Trustee’s Motion for Contempt, Motion of Kenneth V. Hemmerle, Sr. for the Appointment of an Examiner, and Demand of Kenneth V. Hemmerle, Sr. for Trial by Jury, entered on November 8, 1992 (hereinafter referred to as the “Contempt Order”); and (2) Order Directing Turnover of Funds, entered on April 9,1993 (hereinafter referred to as the “Turnover Order”).

The Court has considered the briefs on appeal, oral argument of counsel, the decisions of the bankruptcy court, the record on appeal and the applicable law, and is otherwise fully advised in the premises. For the following reasons and as set forth below, this Court AFFIRMS the aforementioned Contempt Order and Turnover Order of the bankruptcy court.

Factual and Procedural Background

This appeal concerns the finding of contempt by the bankruptcy court against Hem-merle of three separate orders of that court. The instant contempt proceedings were ancillary to the main adversary proceeding, which was initiated by Daniel L. Bakst, as the Trustee in Bankruptcy for the Debtor, Sun-Island Realty, Inc. against Hemmerle, S.I.R. Investment and Development, Inc. and King of Clubs, Inc. Hemmerle was a principal of the Debtor. The adversary complaint sought to set aside as fraudulent, the transfer of eight different parcels of real property from the Debtor to S.I.R. Investment and Development, Inc. and King of Clubs, Inc. On May 18, 1992, the bankruptcy court entered default against the named defendants on the adversary complaint on the ground that the defendants, including Hem-merle, had repeatedly failed to produce certain documents in discovery despite being previously warned that such failure may result in a default judgment. On May 19,1992, a Final Judgment on the adversary complaint was entered against Hemmerle, S.I.R. Investment and Development, Inc. and King of Clubs, Inc. The Final Judgment set aside the Debtor’s transfer of the aforementioned eight parcels of property as fraudulent under 11 U.S.C. § 544 and § 548 and transferred the titles to the properties to the Trustee as property of the estate. The Final Judgment also directed the defendants to provide an accounting to the Trustee of all rental income collected between September 1989 and May 19, 1992 from the eight parcels and to turn over said rental income to the Trustee. 1

Hemmerle’s noneompliance with the Final Judgment and two other orders of the bankruptcy court formed the basis of the instant contempt proceedings. The two other orders were: (1) a July 31, 1991 Order directing Hemmerle to turn over to the Trustee vehicles (and the keys and titles thereto) of the Debtor that was deemed to be property of the estate, and (2) a June 30, 1992 Order, enjoining Hemmerle, his attorney and the Debtor from taking any action whatsoever against any property of the estate. Specifically, on or about June 11, 1992, the Trustee moved to hold Hemmerle in civil contempt of the July 31, 1991 Order based on Hem-merle’s failure to turn over any vehicles as directed. On or about September 8, 1992, a creditor of the Debtor, Boston Pointe Corporation (“Boston Pointe”) moved to hold Hem-merle, S.I.R. Investment and Development, Inc. and King of Clubs, Inc. in civil contempt of the May 19, 1992 Final Judgment and June 30, 1992 Order based on Hemmerle’s failure to turn over and serve an accounting of the rental income collected and his improper collection and retention of rent derived from property of the estate.

*394 The bankruptcy court held an evidentiary hearing on the motions for contempt on October 28, 1992. Hemmerle was present at and fully participated in that hearing. Thereafter on November 8, 1992, the bankruptcy court entered the Contempt Order, finding that Hemmerle had failed to turn over the vehicles and the keys and titles thereto as ordered, failed to provide an accounting of rents collected as ordered and improperly collected and retained rents which were the property of the estate. The court thus found Hemmerle to be in civil contempt of the July 31, 1991 Order, the May 19, 1992 Final Judgment and the June 30, 1992 Order. The Contempt Order directed that if Hemmerle does not purge himself of the contempt by noon on November 10, 1992, he would be fined in the amount of $250,000 and incarcerated until such time as he complies with the orders of the court.

The Contempt Order also provided that Hemmerle could purge himself of the contempt and the fine if by noon on November 10, 1992, he (a) deliver an accounting of all rental income collected by the defendants between September 1989 and November 1992, (b) turn over rental income to the Trustee, (c) turn over all vehicles and their titles, and (d) cease taking any action whatsoever against the property of the estate and the collection of rents therefrom. The Contempt Order also denied Hemmerle a trial by jury on the civil contempt charges.

Hemmerle did not purge himself of the civil contempt. Consequently, he was arrested pursuant to a warrant for arrest executed on December 4,1992. The record shows that following the arrest, the bankruptcy court afforded Hemmerle additional time in which to comply with the Contempt Order on four separate occasions. On March 22, 1993, the court held another evidentiary hearing with regard to whether Hemmerle had purged himself of contempt. Hemmerle again was present at and fully participated in that hearing. Thereafter on April 9, 1993, the bankruptcy court entered the Turnover Order, wherein it found that Hemmerle had not purged himself of contempt and that at least $49,000.00 in rental income remained unaccounted for. The court determined that incarceration of Hemmerle at that time would not be appropriate as it would not produce a turnover of the funds. Instead, it directed Hemmerle to turnover the sum of $49,000.00 to the Trustee forthwith.

On April 19,1993, Hemmerle filed a Notice of Appeal wherein he appealed the November 8, 1992 Contempt Order and the April 9, 1993 Turnover Order. Hemmerle appears pro se in this appeal.

Discussion

Hemmerle raises essentially four issues on appeal: (1) whether the bankruptcy court had jurisdiction to enter the default judgment and Final Judgment against Hemmerle on the adversary complaint; (2) whether the bankruptcy court erred in finding that Hem-merle was in contempt of the prior orders of the court; (3) whether the bankruptcy court erred in denying Hemmerle’s request for a jury trial on the contempt charges; and (4) whether Boston Pointe had standing to file a motion for contempt against Hemmerle.

A. APPELLATE JURISDICTION OF THE DISTRICT COURT

Before the Court discusses the merits of the issues on appeal, it will address a threshold issue relevant to any bankruptcy appeal, whether the notice of appeal was timely filed. This is a significant issue because the courts have uniformly held that if the notice of appeal was not timely filed, the district court does not have jurisdiction to hear the appeal.² Based upon a review of the record, the Court finds that Hemmerle’s notice of appeal with regard to the Contempt Order was untimely filed under Rules 8002(a) *395 and 9020(e) of the Federal Rules of Bankruptcy Procedure.

Generally, the time for filing notices of appeal in a bankruptcy proceeding is governed by Rule 8002(a). It provides, in relevant part, that “[t]he notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from.” If a party filed a timely motion to amend or make additional findings of fact under Rule 7052(b), to alter or amend the judgment under Rule 9023, or to obtain a new trial under Rule 9023, then the time for appeal for all parties runs from the entry of the order denying a new trial or granting or denying any other such motion. See Fed.R.Bankr.P. 8002(b).

The Contempt Order was entered by the bankruptcy court on November 10, 1992 for purposes of Rule 8002(a). None of the events enumerated in Rule 8002(b) are applicable tp this case. Thus, Hemmerle’s notice of appeal of the Contempt Order was due to be filed no later than ten days hence, or on or before November 20, 1992. The appeal notice, however, was filed on April 19, 1993, nearly five months past the deadline. Therefore, Hemmerle’s appeal of the Contempt Order clearly was untimely filed under Rule 8002(a).

Hemmerle’s challenge to the Contempt Order also was untimely under Rule 9020(e). Rule 9020(c) speaks specifically to contempt orders and paraphrased, provides that the entity found to be in contempt may obtain de novo review by the district court of the bankruptcy court’s findings and conclusions of contempt by filing objections to the contempt order within ten days.³ The record indicates that at no time prior to the filing of the appeal notice did Hemmerle file objections to the Contempt Order as required by Rules 9020(c) and 9033(c). Having failed to comply with Rules 9020(e) and 9033(c), Hemmerle’s current challenges to the Contempt Order are untimely. 4

Based upon the foregoing, the Court concludes that the Notice of Appeal with respect to the Contempt Order was untimely filed. Consequently, this Court lacks the jurisdiction to entertain the merits of the appeal in that regard. 5

B. MERITS OF THE APPEAL

Notwithstanding this ruling, the Court finds that Hemmerle’s arguments on the substantive issues on appeal are without merit.

1. The Bankruptcy Court’s Finding of Civil Contempt

The primary issue on appeal is whether the bankruptcy court erred in finding that Hemmerle • should be held in civil contempt of prior court orders. A party seeking a civil contempt order must prove by clear and convincing evidence that another party has violated a court order. Commodity Futures Trading Com’n v. Wellington Precious Metals, Inc., 950 F. 2d 1525 (11th Cir.), cert. denied, — U.S. -, 113 S.Ct. 66, 121 L.Ed.2d 33 (1992); In re Spanish River Plaza Realty Co., Ltd., 155 B.R. 249, 253 (Bankr.S.D.Fla.1993). Based upon a review of an excerpt of the transcript of the October 28, 1992 evidentiary hearing 6 and other relevant portions of the record, the Court is satisfied that there was clear and convincing evidence that Hemmerle willfully violated the July 31, 1991, May 19, 1992 and June 30,1992 orders of the bankruptcy court.

*396 The evidence supported, by a clear and convincing standard, the finding that Hemmerle disobeyed the July 31,1991 Order by willfully failing to deliver the titles and vehicles to the Trustee. The Trustee’s testimony that he did not have the vehicles and titles was undisputed. The bankruptcy court found not credible Hemmerle’s argument that he had complied with the order by dropping the vehicles off at a lot in Boca Raton. It likewise rejected Hemmerle’s claim that he could not turn over the titles to the vehicles because he did not have possession of them. The court reasoned that in light of Hemmerle’s testimony that all of the liens on the vehicles were paid in full, Hemmerle had an affirmative obligation to obtain the titles from the bank and turn them over to the Trustee.

There also was clear and convincing evidence that Hemmerle received and retained rental income in violation of the May 19, 1992 Final Judgment and June 30, 1992 Order. Two witnesses testified that they made rent payments directly to Hem-merle. Their testimony stands unrefuted. The evidence also established by a clear and convincing standard that Hemmerle failed to provide an accounting of rent collected on the real property that was the subject of the adversary complaint, in violation of the May 19, 1992 Final Judgment. The bankruptcy court rejected Hemmerle’s excuse that he could not afford an accounting, opining that the accounting ordered could have been prepared by Hemmerle himself without the assistance of an accountant.

The bankruptcy court further observed the following:

... since the beginning of this case it [the court] has given Kenneth Hemmerle every opportunity to purge himself of these con-tempts and has attempted to give Mr. Hemmerle every latitude in accepting his explanations as to his failure to so comply. At this point, the Court is under the impression that there is no merit to Mr. Hemmerle’s position and that he has acted in a way to flout the authority of this Court, to violate the laws of the United States and to hinder the Court and his creditors. The Court finds that Mr. Hem-merle has attempted to use the Bankruptcy Code in an improper way to hold off his creditors while taking advantage of assets of the estate to which he has no entitlement.

See Contempt Order at ¶ 4(h). Based upon a review of the record, it is apparent to this Court that the bankruptcy court has been patient with Hemmerle but that Hemmerle has not in good faith attempted to comply with the orders of the court.

The bankruptcy court’s patience is further demonstrated by the opportunity it afforded Hemmerle purge himself of the civil contempt within an additional two days from the date of the Contempt Order. Hemmerle failed to comply within these additional two days. Thereafter, the bankruptcy court extended four times the time in which Hem-merle could purge himself of the civil contempt. Finally on March 22, 1993, the bankruptcy court held another evidentiary hearing on the issue of contempt and concluded that four months after the entry of the Contempt Order, Hemmerle still had not purged himself of the civil contempt and still had not turn over at least $49,000.00 in rental income.

Having reviewed carefully the record, it is clear to this Court that throughout this litigation, the bankruptcy court has given Hem-merle the benefit of the doubt and has afforded Hemmerle every opportunity to comply with the orders of the court. The orders of the bankruptcy court were plain and set forth in a clear and unambiguous manner the conduct and compliance that was expected from Hemmerle. The evidence supported a finding that Hemmerle knowingly and willfully failed to comply with the clear mandates of the bankruptcy court. Accordingly, the Contempt Order and the Turnover Order should be affirmed.