West Virginia Record

Saturday, August 17, 2019

Judge remands case over mobile home to Nicholas County

By Kyla Asbury | Oct 23, 2013

CHARLESTON - A lawsuit against CMH Manufacturing Inc. and CMH Homes Inc. has been remanded back to Nicholas Circuit Court from federal court.

E.P. Fogleman Construction Company, which is doing business as Frontier Homes, was also named as a defendant in the suit.

On Aug. 22, the plaintiffs filed a second motion to remand the case to Nicholas Circuit Court. A memorandum of law in support of it was filed by the plaintiffs' attorney on the same day.

The plaintiffs' attorney stated that "in the case at hand, defendant sought removal of this action... alleging that the court has original jurisdiction due to diversity among the parties and that the amount in controversy exceeds $75,000. However... Frontier Homes is a West Virginia-based corporation and as such, is domiciled in West Virginia for the purposes of determining diversity among the parties."

As a result, remand by the federal court is necessary and proper given the court's lack of jurisdiction, according to the plaintiffs' attorney's memorandum.

On Oct. 17, a remand order was filed by U.S. District Judge Thomas E. Johnston.

"The addition of this new defendant, absent a claim by defendants that Fogleman has been fraudulently joined, destroys this court's diversity jurisdiction. Counsel for defendants has been advised the court that defendants do not oppose the motion," Johnston's remand order states.

Katie Boggs and Kenneth Boggs, individually and as the parents of Isaiah Boggs and Levi Boggs, purchased a mobile home from the defendants on June 14, 2006, and on Feb. 6, 2012, the plaintiffs discovered mold behind sheetrock in the mobile home, according to the complaint filed Dec. 10.

The plaintiffs claimed the defendants' breach of duty by failing to provide and/or maintain a habitable premises by including failing to adequately maintain, inspect and remedy a severe mold infestation.

As a direct and proximate result of the acts and/or omission of the defendants, the plaintiffs were caused to be damaged and injured, according to the suit.

The plaintiffs claimed the defendants owed a duty to provide a reasonably safe environment and failed to do so.

The defendants' acts and/or omissions of the defendants, the plaintiffs have suffered bodily injury, including allergies, asthma, breathing difficulties, recurring colds, dermatitis, skin rashes, diarrhea, eye and vision problems, fatigue, flu symptoms, headaches, hives, irritability, itching, runny nose, sinus congestion, sinus problems, chronic sinusitis, skin redness, sleep disorders and sore throat, according to the suit.

The plaintiffs were seeking compensatory and punitive damages with pre-judgment interest. They were being represented by Erika H. Klie-Kolenich of Klie Law Offices.

U.S. District Court for the Southern District of West Virginia at Charleston case number: 2:12-cv-8735

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