Opinion
Case No. 4D99-4313.
Opinion filed October 11, 2000. July Term 2000.
Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Moses Baker, Jr., Edward H. Fine, and Stephen A. Rapp, Judges; L.T. Case No. AP 98-10006 AY.
Elwood J. Hunnewell, Jr., Loxahatchee, pro se.
Dawn S. Wynn, Assistant County Attorney, West Palm Beach, for respondents.
Petitioner, Elwood J. Hunnewell, Jr., seeks certiorari review of a circuit court's appellate decision entered while a notice of removal to federal court was pending. He claims that the decision entered during removal was absolutely void. Because the removal to federal court was improper, the court's decision was not void. We therefore deny the petition.
In Wilson v. Sandstrom, 317 So.2d 732, 740 (Fla. 1975), the supreme court declared that "[w]hen removal is shown to be improper the State court's actions are not void." Wilson cited with approval the United States Supreme Court's decision in Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563 (1941), for the proposition that proceedings subsequent to removal "arevalid if the suit was not in fact removable." Wilson, 317 So.2d at 740-41 (emphasis added). In the instant case, the removal petition was filed three days before the oral argument on appeal to the circuit court of the county court action, and the federal court lacked jurisdiction to take it up. The court remanded the case to the circuit court several days after the appellate decision was rendered, finding no legal basis for the exercise of federal jurisdiction.
Although in Heilman v. Florida Department of Revenue, 727 So.2d 958 (Fla. 4th DCA 1998), we quoted from Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451, 456 (N.D. 1992), for recognizing that there "is all but unanimity on the proposition . . . that a state court adjudication, while a removal petition is pending in federal court, is void, even if the federal court subsequently determines that the case is not removable," Rub cites Wilson as contrary to that rule. See Rub, 481 N.W.2d at 456. In any event, as we relied on Rub for establishing a limited exception to its general rule, Heilman is not inconsistent with Wilson.
Petitioner cites to Remova Pool Fence Co. v. Roth, 647 So.2d 1022 (Fla. 4th DCA 1994), which relies on Maseda v. Honda Motor Co., 861 F.2d 1248 (11th Cir. 1988). However, in both cases removal was proper, even though the federal court ultimately remanded to the state court. Therefore, both cases are distinguishable from this case of improper removal.
Based upon Wilson, we deny the petition.
STEVENSON, J., concurs.
STONE, J., dissents with opinion.
I would grant the petition and quash the order entered while the notice of removal remained pending in the district court. I do not read Wilson as granting trial courts carte blanche to continue to act, notwithstanding suspension of state jurisdiction during pendency of the district court petition, thereby requiring the petitioning party to actively participate in the final state court proceedings while the removal petition remains under active consideration. In my judgment, the emphasis that the Wilson opinion places on the nature of the issue (violation of a temporary injunction) and the timing of the federal and state court actions (the cause was remanded at 5:55 and the injunction entered at 6:10) indicates that the supreme court did not intend to validate all final action taken by trial courts while jurisdiction was suspended pending the removal decision.