# Third District Court of Appeal

State of Florida

Opinion filed January 14, 2015.

Not final until disposition of timely filed motion for rehearing.

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No. 3D12-2257

Lower Tribunal No. 07-41933

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### Casino Investment, Inc.

, Appellant,

vs.



### Palm Springs Mile Associates, Ltd.

,

Appellee.

An appeal from a non-final order from the Circuit Court for Miami-Dade

County, Spencer Eig

, Judge.

Philip D. Parrish; Richard W. Gross, for appellant.

Coffey Burlington, P.L., and Kendall B. Coffey and Kevin C. Kaplan, for

appellee.

Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.

ON MOTION TO ENFORCE MANDATE

LAGOA, J.

Casino Investment, Inc. (“Casino”) filed this Motion to Enforce Mandate

based upon our decision in Casino Investment, Inc. v. Palm Springs MileAssociates Ltd.

, 123 So. 3d 98 (Fla. 3d DCA 2013). We grant the motion and

direct the trial court to enter final declaratory judgment in favor of Casino.

The appellee, Palm Springs Mile Associates, Ltd. (“Palm Springs”), owns a

shopping center. Palm Springs opposes Casino’s proposed construction on a

parcel Casino owns within the shopping center. To that end, Palm Springs filed a

single count complaint for declaratory relief alleging that Casino’s proposed

construction violates relevant portions of a Declaration of Easement which covers

the shopping center. On appeal, this Court reversed the trial court’s granting of

declaratory judgment in favor of Palm Springs, 1 and reversed the trial court’s

permanent injunction on Casino’s proposed construction:

Based on the foregoing, we hold that the trial court

erred in ruling that, as a matter of law, Casino's proposed

construction was barred under the Easement. We find

that the clear and unambiguous provisions of the

Easement do not expressly bar Casino's proposed

construction. Accordingly, we reverse the trial court's

entry of partial final summary judgment in favor of Palm

Springs, reverse the trial court's permanent injunction,

and remand for further proceedings.

Casino

, 123 So. 3d at 101. On remand, Casino moved for a final declaratory

judgment in its favor. The trial court entered an order denying the motion, and

instead granted Palm Springs leave to amend its complaint. 2

1 As this Court pointed out in our original opinion, when the trial court entered

declaratory judgment in favor of Palm Springs, it specifically retained jurisdiction

over Casino’s then-pending Second Amended Counterclaim for Declaratory and

Injunctive Relief. Casino

, 123 So. 3d at 99 n.2. Casino concedes that its

counterclaim was rendered moot by our decision in Casino and will be voluntarily

dismissed without prejudice upon entry of final declaratory judgment in its favor.

2In Casino

, this Court found that the Declaration of Easement unambiguously

permitted the proposed construction. Id. As a result, we held that the trial court

erred in ruling that the proposed construction was barred by the Declaration of

Easement and erred in entering declaratory judgment in favor of Palm Springs on

that basis. Id. Accordingly, on remand, the trial court was without discretionary

power to deny Casino’s motion for final declaratory judgment on the merits of

Palm Springs’ single count complaint for declaratory relief. See Torres v. Jones

,

652 So. 2d 893, 894 (Fla. 3d DCA 1995) (“[I]t was error for the trial court to

modify the final judgment on remand, and to change the law of the case as

determined by the highest court hearing the case.”); Hessen v. Metro. Dade Cnty.

,

569 So. 2d 887 (Fla. 3d DCA 1990) (granting motion to enforce mandate where

trial court’s class certification on remand altered this Court’s determination

regarding the class representative in first appeal); see also Gardner v. Nioso

, 108

So. 3d 1122 (Fla. 1st DCA 2013).

The motion to enforce the mandate is granted, and the trial court is directed

to enter final declaratory judgment in favor of Casino and against Palm Springs.

Reversed and remanded for consistent proceedings.

2 Although it is undisputed that Casino is not currently proceeding with

construction on its parcel, Palm Springs sought to amend its complaint to allege

counts for nuisance, trespass, and tortious interference with business relationship.

As with Palm Springs’ declaratory action, the Amended Complaint relies upon the

relevant portions of the Declaration of Easement, and alleges that Casino “has

initiated action that would create a serious and substantial violation of the

Declaration of Easement.”

3