Hoyos v. Hammer Homes, Inc.

717 F. Supp. 819, 1989 U.S. Dist. LEXIS 9865, 1989 WL 95027
CourtDistrict Court, S.D. Florida
DecidedAugust 7, 1989
DocketNo. 89-10023-CIV
StatusPublished

This text of 717 F. Supp. 819 (Hoyos v. Hammer Homes, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoyos v. Hammer Homes, Inc., 717 F. Supp. 819, 1989 U.S. Dist. LEXIS 9865, 1989 WL 95027 (S.D. Fla. 1989).

Opinion

MEMORANDUM OPINION

SPELLMAN, District Judge.

ORDER OF REMAND

THIS CAUSE comes before the Court sua sponte. By Order dated July 10,1989, Chief Judge James Lawrence King recused himself from this action. Simultaneous therewith, this action was reassigned to the undersigned judge. Upon review of the file herein, it is the opinion of this Court that the above-styled cause was improvidently removed from state court. Accordingly, this cause shall be REMANDED to state court for all further proceedings.

Facts

On August 11, 1986, Plaintiff, BERTIL HOYOS, became the owner in fee simple of certain unimproved real property in Monroe County, Florida, described as follows:

Lot 97, HAMMER POINT PARK, according to the Plat thereof, as recorded in Plat Book 6, at Page 35 of the Public Records of Monroe County, Florida, [hereinafter referred to as Lot 97]

During the month of October 1986, Plaintiffs allegedly met with Defendant, MONTE W. GREEN, and discussed with him their desire to build a modular home on Lot 97. During the course of negotiations, GREEN allegedly represented to Plaintiffs that he would supervise the construction of their modular home, and that said modular home would be both attractive in appearance and sound in construction. Based upon the foregoing representations, Plaintiffs advanced to GREEN the sum of $30,-000.00 to be applied toward the purchase [820]*820and construction of this modular home. In addition thereto, Plaintiffs allegedly executed a second mortgage to GREEN in the amount of $30,000.00, such mortgage being secured by a promissory note in the same amount. GREEN allegedly applied this mortgage as a credit toward the purchase of the aforedescribed modular home, the entire cost of which, including the lot upon which it was constructed, was in excess of $170,000.00.

Construction of Plaintiffs’ modular home was completed on March 9,1987, and thereafter, GREEN allegedly represented to Plaintiffs that the home was constructed in conformity with all plans, specifications, and building codes. The Monroe County Building Department issued a Certificate of Occupancy on March 9, 1987. Subsequent to the completion of their modular home, Plaintiffs allegedly discovered, contrary to the representations of GREEN, that the modular home was unsafe and not of sound construction. Accordingly, Plaintiffs instituted the above-styled cause in state court against Defendants, HAMMER HOMES, INC., and MONTE GREEN, based upon unfair trade practices, fraud, breach of express and/or implied warranty, rescission, and such other equitable relief as the court may deem just.

Subsequent thereto, Defendants filed a Third Party Complaint against Third Party Defendant, ARABI HOMES, INC., and asserted therein, claims for breach of warranty, indemnity and contribution. According to the Third Party Complaint, ARABI HOMES, INC. manufactured, sold, and installed the modular home in question. Accordingly, Third Party Plaintiffs, HAMMER, HOMES, INC., and MONTE GREEN, have demanded judgment for indemnity and contribution from ARABI HOMES, INC., for and from any judgment entered against Third Party Plaintiffs pursuant to this action.

Subsequent to the filing of the Third Party Complaint, Third Party Defendant, ARABI HOMES, INC., filed a Verified Petition for Removal on April 24, 1989, and thereupon removed this action to federal court on the basis of diversity jurisdiction. Third Party Defendant maintains that diversity of citizenship is present based upon the following:

(i) Plaintiff, MR. BERTIL HOYOS, is deceased and his wife, Plaintiff BEATRIZE HOYOS, continued thereafter as Plaintiff in her individual capacity and as personal Representative of the Estate of her late husband BERTIL HOYOS. BEATRIZE HOYOS is a citizen of the Country of Columbia and the Estate of her late husband takes on her citizenship as Personal Representative.

(ii) Defendants/Third-Party Plaintiffs, HAMMER, HOMES, INC., and MONTE GREEN, are citizens of the State of Florida. HAMMER, HOMES, INC. is a Florida corporation having its principal place of business in the State of Florida.

(iii) ARABI HOMES, INC., is a Georgia corporation having its principal place of business in Georgia.

Discussion

Third party removal practice is governed by 28 U.S.C.A. Section 1441(c) which provides:

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

A determination of whether a third party action has been properly removed involves a two-prong inquiry according to the statute. Conn. Sav. Bank v. Savers Federal Sav. & Loan, 670 F.Supp. 1549, 1550 (S.D.Fla.1987). First, the claim must be separate and independent from the main action such that it is susceptible of adjudication separate and apart from the claims raised in the main action. Id. Second, it must be apparent that the claim could have originally been brought into federal court had it been sued upon by itself, meaning that a federal court would have jurisdiction over the claim. Carl Heck Engineers v. La[821]*821Fourche Parish Police, 622 F.2d 133, 136 (5th Cir.1980).1

The Supreme Court in American Fire & Cas. Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), set forth the relevant test to determine the propriety of removal under section 1441(c). In Finn, the Court held “that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under Section 1441(c).” Id. at 14, 71 S.Ct. at 540. Separate and independent contemplate more than a test for severability. Id. at 12, 71 S.Ct. at 539. “The addition of the word ‘independent’ gives emphasis to congressional intention to require more complete disassociation between the federally cognizable proceedings and those cognizable only in state courts before allowing removal.” Id. Additionally» “P]f all damages come ‘from a single incident’ or all claims involve ‘substantially the same facts’ invasion of a single primary right is indicated.” Addison v. Gulf Coast Contracting Services, Inc., 744 F.2d 494, 500 (5th Cir.1984) (quoting Finn, 341 U.S. at 16, 71 S.Ct. at 541); Duncan v. City of Golden Beach, 662 F.Supp. 974 (S.D.Fla.1987).

The threshold inquiry, then, is whether Defendants’, HAMMER HOMES, INC., et al., third party claim against ARABI HOMES, INC. presents a separate and independent claim within the meaning of the removal statute.2 To determine whether a claim is separate and independent, a court must look not to how many tortious or otherwise wrongful actions were committed by defendants, but to whether the plaintiff has suffered more than one loss. Johnson v.

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Cite This Page — Counsel Stack

Bluebook (online)
717 F. Supp. 819, 1989 U.S. Dist. LEXIS 9865, 1989 WL 95027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoyos-v-hammer-homes-inc-flsd-1989.