492 F2d 797 Moyer Inc v. Graham

492 F.2d 797

A. R. MOYER, INC., Plaintiff-Appellant,
John Hans GRAHAM and John Hans Graham and Associates,

No. 29887.

United States Court of Appeals, Fifth Circuit.

April 12, 1974.

Appeal from the United States District Court for the Southern District of Florida; Ted Cabot, Judge.

Robert J. Paterno, Miami, Fla., for plaintiff-appellant.

Knight, Underwood, Peters, Hoeveler & Pickle, William M. Hoeveler, Miami, Fla., for defendant-appellee.

Before GEWIN, COLEMAN and AINSWORTH, Circuit Judges.


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We previously certified the issues presented on this appeal to the Supreme Court of Florida for a resolution of the applicable and controlling state law in this diversity suit. See Moyer, Inc. v. Graham, 443 F.2d 434 (5th Cir. 1971). In its opinion, the Florida Supreme Court definitively answered the issues presented. See Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973). In light of that opinion, we vacate the order of the district court dismissing appellant's complaint and remand with directions to that court to require the appellees to respond to the complaint. With respect to Count II of appellant's complaint which asserted a cause of action as third-party beneficiary, a determination of the intent of the owner and the architect as evidenced by their contract will be necessary.


Vacated and remanded.