Jefferson Nat. Bank at Sunny Isles v. Metropolitan Dade County, 73--1062

• Decision Date: 21 November 1973
• Docket Number: No. 73--1062,73--1062
• Parties: JEFFERSON NATIONAL BANK AT SUNNY ISLES et al., Appellants, v. METROPOLITAN DADE COUNTY et al., Appellees.
• Court: Florida District Court of Appeals

Page 445

285 So.2d 445

JEFFERSON NATIONAL BANK AT SUNNY ISLES et al., Appellants, v. METROPOLITAN DADE COUNTY et al., Appellees.

No. 73--1062.

District Court of Appeal of Florida, Third District.

Nov. 21, 1973.

Rehearing Denied Nov. 30, 1973.

Courshon & Courshon, Katz & Salmon, Miami Beach, for appellants.

Stuart Simon, County Atty., John I. Ruff, Huebner, Shaw & Bunnell, Fort Lauderdale, for appellees.

Before BARKDULL, C.J., and PEARSON and CARROLL, JJ.

PER CURIAM.

The appellants filled in a part of a public waterway. After protracted litigation, the circuit court ordered appellants to remove the offending fill in language as follows: 'That all fill placed beyond the bulkhead line . . . be removed'. The appellants have previously appealed to this court. We affirmed the trial court's holding that the fill be removed. See Jefferson National Bank at Sunny Isles v. Metropolitan Dade County, Fla.App.1972, 271 So.2d 207. The cited opinion shows that no issue of vagueness of the judgment was raised by the appellants. Upon the issuance of the mandate of this court, the judgment of the circuit court became the judgment of this court. Walker v. Young, 93 Fla. 29, 111 So. 516 (1927). The circuit court entered an order on mandate which provided the appellants with a period of approximately thirty days in which to make arrangements and begin their work.

The appellants did not comply with the order on mandate, but instead moved for an extension of time. ¹ Then, they did not comply within the period as entended, but on the last day of the period moved for a second extension. This second motion asked additional relief by way of 'clarifying and relieving them from the terms of the summary final judgment'. In effect, the circuit judge to whom the cause was assigned granted a second extension of time but reserved ruling on the prayer for relief from the judgment. A date for hearing upon the motion for relief from the judgment was set for a time some months after the expiration of the time set by extension.

The appellees then moved to cite the appellants for contempt and brought their motion on to be heard before another circuit judge inasmuch as the judge who had set the last extension and who had reserved ruling on the motion for clarification was now on vacation. After hearing was held on the motion for contempt, the trial court entered the following order on August 14, 1973:

'1. The Court finds that all Counter-Defendants be and they are in contempt of this Court's Order of May 30, 1973, as modified by this Court's Order of June 26, 1973, in that they have failed and refused to file with this Court the plans and specifications required by said Orders within the time prescribed therein and have failed and refused to begin removal of the fill within the time prescribed therein.

'2. Each of the Counter-Defendants may purge himself of contempt by beginning removal of the fill on his property as required by the Final Summary Judgment entered on January 21, 1972, by no later than August 30, 1973, and by continuing diligently thereafter to comply with the requirements of paragraph 3 of the Court's Order of January 21, 1972.

'3. Should Counter-Defendants, or any of them fail to purge themselves of contempt as provided herein within the time prescribed herein, such Counter-Defendants jointly shall be fined a total of Five Hundred ($500.00) Dollars per day from July 19, 1973, until such date as the said Counter-Defendants shall purge themselves of contempt in accordance herewith. Such fines shall be payable to Counter-Plaintiff, METROPOLITAN DADE COUNTY, FLORIDA.'

On August 24, 1973, notice of interlocutory appeal was filed.

Unquestionably, the record before us would support a finding that the appellants willfully frustrated this court's judgment. The litigation, for all practical purposes, has been terminated and the appellants know that they are required to remove the fill to the bulkhead line; however, the only intimation of compliance has been the procurement of an engineer who says he needs more particulars. If the trial judge had found that the appellants were guilty of willful disregard of the...