City of Miami Beach v. Arthree, Inc.

• Decision Date: 11 December 1973
• Docket Number: 72--90,Nos. 72--36,s. 72--36
• Citation: 300 So.2d 65
• Parties: CITY OF MIAMI BEACH, a municipal corporation created and existing under the laws of the State of Florida, Appellant, v. ARTHREE, INC., a Florida corporation, et al., Appellees. Howard KASKEL and Doris Kaskel et al., Appellants, v. ARTHREE, INC., a Florida corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 65

300 So.2d 65

CITY OF MIAMI BEACH, a municipal corporation created and existing under the laws of the State of Florida, Appellant, v. ARTHREE, INC., a Florida corporation, et al., Appellees.

Howard KASKEL and Doris Kaskel et al., Appellants, v. ARTHREE, INC., a Florida corporation, et al., Appellees.

Nos. 72--36, 72--90.

District Court of Appeal of Florida, Third District.

Dec. 11, 1973.

Joseph A. Wanick, City Atty., Miami Beach; Sibley, Giblin, Levenson & Ward, Miami Beach, for Kaskel, and others, appellants.

Kovner, Mannheimer, Greenfield & Cutler, Miami, Snyder, Young, Stern & Tannenbaum, North Miami Beach, and Paul R. Lipton, Herbert M. Klein, Miami, for appellees.

Before PEARSON, CARROLL and HENDRY, JJ.

ON PETITION TO ENFORCE MANDATE

PER CURIAM.

Our opinion involving the appeals in these causes was filed on November 21, 1972. City of Miami Beach v. Arthree, Inc., Fla.App.1972, 269 So.2d 699. Our mandate was duly issued and thereafter petition for certiorari was filed in the Supreme Court of Florida. The petition was denied on March 13, 1973. Arthree, Inc. v. Kaskel, Fla.1973, 276 So.2d 166. Thereafter, the petitioner obtained a stay in the Supreme Court for the purpose of seeking review in the Supreme Court of the United States. On October 9, 1973, the petition was denied by the Supreme Court of the United States. Arthree, Inc. v. Kaskel, 414 U.S. 859, 94 S.Ct. 70, 38 L.Ed.2d 109 (1973).

Thereafter, in the trial court, the appellant-City moved for an order on our mandate. Prior to the issuance of the order on mandate, four tenants of the plaintiff Arthree, Inc., moved in the trial court to seek relief from the judgment of this court upon 'equitable considerations.' Certain of the appellants presented a motion in this court to 'Clarify and Enforce Mandate', and the appellee, Arthree, Inc., offered a motion in this court to strike the motion to clarify and enforce mandate. Argument was held upon both motions and the motions are denied. In view of the circumstances of this case, and the fact that this litigation has been prolonged by an improvident petition in the trial court, we find it necessary to restate certain principles which should govern proceedings in the trial court after the issuance of the mandate in this court.

First, it should be pointed out that upon the issuance of our mandate, the trial court is without authority to take any action other than to compose an order carrying out the terms of the mandate. See Fairfax Broadcasting Company v. Florida Airmotive, Inc., Fla.App.1971, 252 So.2d 854. Second, any motion or petition to vary the judgment of this court may not be entertained without the express permission of this court to do so. Such a petition may not be entertained in the trial court unless the permission of this court for the making of the petition is first obtained. Jefferson National Bank at Sunny Isles v....