DOMINION PROPERTIES CORP., APPELLANT,
v.
LOLE FARUOLO ET AL., APPELLEES
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Dominion Properties appeals a foreclosure judgment where the trial court held it in contempt for failing to pay property taxes, struck its pleadings, and entered default and summary judgments against it. The appellate court reversed the contempt finding and reinstatement of pleadings as to the secondary mortgagee but affirmed the foreclosure judgment as to the primary mortgagee with whom appellant had settled.
The court held that the trial court committed error in holding Dominion in contempt and striking its pleadings. However, the error was harmless as to Faruolo since Dominion's default appeared unrefuted and the parties had settled. The judgment was affirmed as to Faruolo but reversed and remanded as to the bank and third-party defendant Tannebaum.
[1] A court commits error by holding a party in contempt, striking all of its pleadings, and entering default and summary judgments against it.
[2] A settlement between a mortgagor and a first mortgagee renders moot the appeal as to that mortgagee, even if errors were committed in the underlying judgment.
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Join FLexlaw to unlock all legal intelligence“We are satisfied that the court committed error in holding appellant in contempt of court and striking its pleadings and thereafter entering both default and summary judgments against it.”
The court's holding that the trial court erred in using contempt and pleading sanctions against Dominion
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Join FLexlaw to unlock all legal intelligenceDominion Properties, as owner-mortgagor, had a purchase money first mortgage held by Lole Faruolo and a second mortgage held by Capital National Bank.…
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Appellant, defendant owner-mortgagor, appeals from a final judgment foreclosing certain mortgages on its property.
The facts are abbreviated because, while the appeal was pending, appellant and ap-pellee Lole Faruolo, the plaintiff first mortgagee, settled their respective differences and pursuant to Rule 3.13(a), F.A.R., 32 F.S.A., filed with this court a signed *95stipulation for dismissal of the appeal as to the appellee, Faruolo. The cause remains as to the other appellees, neither of whom have filed a brief.
Appellee Lole Faruolo held a purchase money first mortgage on the property involved. Named as defendants in the mortgage foreclosure suit were (1) appellant Dominion as the owner-mortgagor, and (2) Capital National Bank of Miami as holder of a subsequently executed mortgage covering a portion of the real and personal property involved. Dominion crossclaimed against Capital National Bank, to have the mortgage held by the latter cancelled as a forgery and to recover damages, and filed a third party complaint against one Eugene Tannebaum for damages caused by his alleged forgery of the mortgage to the bank. To complete the picture, the bank cross-claimed to foreclose the mortgage which Dominion claimed to be a forgery.
During the progress of the suit, Dominion was ordered to pay to the receiver of the property the amount of the 1970 real property taxes, and when Dominion failed to do so, the court held Dominion in contempt, struck all of its pleadings, including the claim against Tannebaum upon which Dominion had obtained a default judgment, and granted Faruolo and Capital National Bank the respective relief each sought against appellant and its property.
We are satisfied that the court committed error in holding appellant in contempt of court and striking its pleadings and thereafter entering both default and summary judgments against it. Hovey v. Elliott, 1890, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Palm Shores v. Nobles, 1941, 149 Fla. 103, 5 So.2d 52; cf. Popkin v. Crispen, Fla.App.1968, 213 So.2d 445; Parham v. Kohler, Fla.App.1961, 134 So.2d 274.
Although it appears that such error was undoubtedly harmless as to appellee Faruolo (since Dominion’s default under the Faruolo mortgage appears to be unre-futed), this issue is rendered moot in view of the settlement as between appellant and Faruolo mentioned above. The final judgment is reversed in all respects except as to those portions granting relief to appellee Lole Faruolo, as to which portion the same is affirmed. This cause is remanded with instructions to reinstate appellant’s pleadings as to appellee Capital National Bank of Miami and appellee Tannebaum and for further proceedings thereon not inconsistent herewith.
Affirmed, in part, and reversed, in part, and remanded with directions.
REED, C. J., and WALDEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Seslow v. Vikki K. Seslow, 625 So. 2d 1248 (Fla. 4th DCA 1993)…hree months prior to the filing of the motion for rehearing and the monies have been paid. As our opinion reversed the case only on the basis of the trial court’s award of attorney’s fees, the issue is now moot. Dominion Properties Corp. v. Faruolo, 264 So. 2d 94 (Fla. 4th DCA 1972). The motion for rehearing is, therefore, granted. We withdraw our prior opinion of May 12, 1993, [*1249] and substitute the following opinion for that previously issued. AFFIRMED. GUNTHER and FARMER, JJ., and MAY, MELANIE G.,…
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Brannon v. Auto Ctr. Mfg. Co., 393 So. 2d 75 (Fla. 5th DCA 1981)…nnot determine whether this question has been rendered moot by settlement because of the absence of any reference to the injunction in the settlement which was made a part of the final judgment on damages. See, e. g., Dominion Properties v. Faruolo, 264 So. 2d 94 (Fla. 4th DCA 1972). If the settlement covered all damages arising from the breach, the appeal is moot and the injunction is of no further force or effect. We therefore remand to the trial court to determine whether the stipulation of the parties co…
Authorities Cited
- Hovey v. Elliott, 167 U.S. 409 (U.S. 1897)
- Palm Shores, Inc. v. Nobles, 149 Fla. 103 (Fla. 1941)
- Louisiana v. New Orleans, 167 U.S. 407 (U.S. 1897)
- Glenna Parham and Richard Parham v. Kohler, 134 So. 2d 274 (Fla. 3d DCA 1961)
- Popkin v. Crispen, 213 So. 2d 445 (Fla. 4th DCA 1968)