CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA, APPELLANT,
v.
CUBAN VILL-AGE CO., INC., A FLORIDA CORPORATION, D/B/A CUBAN VILLAGE, APPELLEE
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The City of Miami appealed a trial court decree ordering it to issue municipal licenses to Cuban Village, Inc. The appellate court granted a writ to preserve the status quo, holding that an automatic stay of the decree on appeal stays only its mandatory provisions (requiring license issuance), not its prohibitory provisions (restraining arrest for unlicensed operation).
The automatic stay under Florida law stays only the mandatory provisions of the final decree (the requirement to issue licenses), not the prohibitory provisions (the restraint on interference). Therefore, the City cannot arrest the appellee for operating without licenses pending resolution of the appeal.
“Although the City [pending this appeal] is not required to issue the licenses, the stay does not have the effect of vitiating the effect of the final decree in order to permit the City to arrest the appellee's agents for not having a license.”
Establishes that the stay applies only to mandatory provisions, not prohibitory ones, and does not permit enforcement against the appellee.
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Join FLexlaw to unlock all legal intelligenceCuban Village, Inc. sued the City of Miami seeking a declaration of rights and injunction, claiming the City was wrongfully refusing to issue certain …
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This cause is before the court on the appellee’s application for constitutional writ.
This action was originally instituted in the lower court by the appellee, plaintiff below, seeking a declaration of rights, injunction and other relief. A temporary injunction was issued restraining the City from interfering with the appellee’s business until further order of the court, which injunction was approved by this court. See: City of Miami et al. v. Cuban Vill-Age Co., Inc., Fla.App. 1962, 136 So.2d 247. Subsequently, the matter came on for final hearing and the chancellor entered a final decree granting to the appellee affirmative relief and directing the City to issue to it certain municipal licenses. Thereafter, the City took an appeal which, pursuant to the provisions of § 59.14, Fla.Stat, F.S.A., operated as an automatic stay of the decree appealed. See: City of Miami v. Lewis, Fla.App.1958, 104 So.2d 70; City of North Miami v. Engel, Fla.App.1959, 111 So.2d 90. It then appears from the record before us that the City, subsequent to the filing of the notice of appeal, is threatening to and will arrest the appellee for conducting its business without the necessary municipal licenses. This action on the part of the appellant City, subsequent to the filing of the notice of appeal, has resulted in the *70appellee filing the instant motion before this court seeking a constitutional writ to preserve the status quo, pending the final determination of this appeal. It appears that the appellee is entitled to the relief it seeks.
The temporary injunction was prohibitory in nature, restraining the City and its officials from interfering with the appellee and its business, because it did not possess certain municipal licenses which the City refused to issue. The final decree was mandatory in nature and directed the City and its officials to issue the municipal licenses sought, to the appellee, upon proper application. By implication, if in fact not by operation of law, the prohibitory features of the temporary injunction, restraining the City and its officials from arresting the appellee for not having certain municipal licenses, was merged in the final decree in that the chancellor directed that the licenses in question be issued by mandatory provisions.
By the terms of § 59.14 Fla.Stats., F.S.A., the automatic stay secured by the City, upon the filing of the notice of appeal, only stayed the execution of the final decree. This final decree being in effect a prohibition against the City interfering with the appellee’s business, for not having certain municipal licenses, and mandatory in directing the City to issue such licenses, the operation of the automatic stay [by virtue of the provisions of § 59.14 Fla.Stat., F.S. A.] only stayed the effect of the mandatory provisions of the final decree and did not stay the prohibitory force of the decree. Although the City [pending this appeal] is not required to issue the licenses, the stay does not have the effect of vitiating the effect of the final decree in order to permit the City to arrest the appellee’s agents for not having a license. It is generally held throughout the country that a supersedeas or stay of a final decree is not effective to prevent the operation of a prohibitory injunction, but is effective to stay the operation of a mandatory injunction. See: Powell v. Florida Land & Improvement Co., 41 Fla. 494, 26 So. 700; Ford v. State (Tex.Civ.App.1919), 209 S.W. 490; Diversion Lake Club v. Heath (Tex.Civ.App.1932), 52 S.W.2d 380; 3 Am.Jur., Appeal and Error, § 558; High on Injunctions, 4th Ed. 1698; 93 A.L.R. 709.
Therefore, the constitutional writ sought by the appellee is hereby granted, and the appellants be and they are hereby restrained from interfering with the appellee’s business for failure to have the municipal licenses, which are the subject matter of this appeal, pending a final determination of this matter.
Constitutional writ granted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Wilson v. Sandstrom, 317 So. 2d 732 (Fla. 1975)…om the trial court and in the District Court of Appeal, Third District, which were denied. Under our rules of procedure a mandatory injunction is not automatically stayed by an appeal, but only upon supersedeas. City of Miami v. Cuban Vill-Age Co., 143 So. 2d 69 (Fla.App. 3d 1962), cited by the kennel owners, involved an appeal from orders prohibiting certain actions by the City and compelling other actions. The court held that the notice of appeal was effective to stay the operation of a mandatory injuncti…
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City OF Miami Beach v. Lansburgh, 217 So. 2d 348 (Fla. 3d DCA 1969)…ment Co., supra, as to the effect or extent of the effect of a supersedeas of a preventive injunction, has not been departed from in subsequent decisions of the Supreme Court. However, this court in City of Miami v. Cuban Vill-Age Co., Fla.App.1962, 143 So. 2d 69, rendered a decision holding a supersedeas on appeal from a preventive injunction was ineffective to stay its prohibitive effect.…
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City OF Miami v. Cuban Vill-Age Co., Inc., 147 So. 2d 326 (Fla. 3d DCA 1962)…s matter. See: City of Miami et al. v. Cuban Vill-Age Co., Fla.App.1962, 136 So. 2d 247. On the second we granted a constitutional stay continuing the injunction in force, pending this review. See: City of Miami v. Cuban Vill-Age Co., Fla. App.1962, 143 So. 2d 69. This appeal now brings for review the final decree which made permanent the temporary injunction and ordered the City [who was the defendant in the trial court] to issue a night club license to the appellee. It appears that the license granted was…
Authorities Cited
- Powell v. Fla. Land & Improvement Co., 41 Fla. 494 (Fla. 1899)
- City OF Miami v. Blanche T. Lewis, 104 So. 2d 70 (Fla. 3d DCA 1958)
- City OF N. Miami v. Engel, 111 So. 2d 90 (Fla. 3d DCA 1959)
- City OF Miami v. Cuban Vill-Age Co., Inc., 136 So. 2d 247 (Fla. 3d DCA 1962)
- Reger v. Cheney, 136 So. 2d 247 (Fla. 3d DCA 1962)