Extendicare, Inc. v. Estate of McGillen

• Decision Date: 04 May 2007
• Docket Number: No. 5D06-969.,5D06-969.
• Parties: EXTENDICARE, INC., Appellant, v. The ESTATE OF James J. McGILLEN, etc., et al., Appellees.
• Court: Florida District Court of Appeals

957 So.2d 58

EXTENDICARE, INC., Appellant, v. The ESTATE OF James J. McGILLEN, etc., et al., Appellees.

No. 5D06-969.

District Court of Appeal of Florida, Fifth District.

May 4, 2007.

Connolly C. McArthur and Donna J. Fudge of Buckley & Fudge, P.A., St. Petersburg, for Appellant.

Susan B. Morrison, of Law Office of Susan B. Morrison, P.A, and Linda G. Moreno of Wilkes & McHugh, P.A., Tampa, for Appellee.

THOMPSON, J.

Extendicare, Inc. ("Extendicare") appeals from an order denying its motion to quash service of process and to dismiss. It is one of more than a dozen corporations and individuals sued by the Estate of James J. McGillen ("McGillen"). James J. McGillen lived in University Center East ("Nursing Home") in Volusia County from July 2001 until his discharge in January 2004. McGillen's second amended complaint raised various claims for negligence, breach of fiduciary duty, wrongful death, civil conspiracy, and common law concert of action. We reverse and remand for dismissal of the complaint against Extendicare.

Extendicare is a Canadian corporation and non-resident of Florida. It is the parent corporation of Extendicare Health Services, Inc. ["EHSI"], which is an upstream corporation of Extendicare Health Network, Inc. ["EHNI"], which is a member of Partners Health Group, LLC ["PHG"], which is a member of Partners Health Group-Florida, LLC ["PHGFL"]. McGillen alleged that Extendicare, its subsidiaries, three other defendant corporations, and five individual defendants all operated the Nursing Home. Its second amended complaint included the following jurisdictional allegations relating to Extendicare:

15. [Extendicare] is a Canadian corporation, which is doing business in Florida.

16. [Extendicare] ... operated the nursing home during JAMES J. McGILLEN'S residency ....

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35. [Extendicare] is involved in the ownership, operation, and management of nursing homes throughout the nation, ... either directly or through wholly owned subsidiaries, ... which subsidiary corporations act as agents of [Extendicare].

36. [Extendicare] controls the operation, planning and management of nursing home facilities [through] ... control of ... marketing, ... human resources management, ... the preparation and filing of documents for ... reimbursement, ... the preparation and filing of state licensure and certification, the provision of legal services ..., financial and accounting control through fiscal policies ..., creation and implementation of clinical policies and procedures, and control over ... payor mix, admissions and discharges, cash collection, net revenue, information technology, and staffing.

37. [Extendicare], in conjunction with its subsidiaries and agents, ... operated and managed the facility through a joint venture with [other defendants] in that:

a. [Extendicare] [and other defendants] ... agreed to set up a scheme whereby [Extendicare] and EHSI would compensate the other Defendants for permitting [them] to improperly utilize the corporate forms of the other Defendants to continue to receive revenue from the unlicensed operation of nursing homes in ... Florida ...;

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d. The Defendants' joint enterprise was ... facilitated through the use of overlapping, interlocking management employees and boards of directors; through transfers of employees within the joint enterprise to various corporate entities without regard to corporate form; and through mixed accounting processes ... without regard to corporate form.

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40. [Extendicare] and EHSI, . . . conspired with [other defendants] ... to unlawfully profit from nursing home operations in Florida through a ... scheme ... to limit liability[ ][and] maximize revenues ... from unlicensed operation and management of Florida nursing homes, including [the Nursing Home].

41. [T]he Defendants ... form[ed] a conspiracy ... to [operate] nursing homes in Florida without adequate capital or insurance ....

42. In furtherance of this conspiracy, [Extendicare] and EHSI fraudulently represented ... that the Extendicare companies no longer did business in ... Florida as of December 31, 2000. [But they] simply restructured their organization and engaged in joint ventures to continue to reap the profits of unlicensed nursing home operations. . . .

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47. ... [Extendicare] and EHSI did not cease their nursing home operations . . ., but rather[ ] continued to engage in the unlicensed operation and management of ... nursing facilities ... and to receive revenues ... via the joint enterprises, ... contracts, and other agreements. . . .

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63. Beginning in late 2000, [Extendicare] [and other defendants] conspired together to create [another corporation] as a separate business entity for the following purposes: a) management of nursing homes ..., and b) entering into contracts with [Extendicare] ... and other subsidiaries ... for the purchase of various goods and services from the ... subsidiaries ....

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66. [Extendicare] and EHSI could have contracted directly with [another defendant] ... but chose not to do so . . . to shield EHSI and [Extendicare] from liability by placing a series of newly formed shell corporations between themselves and the ... owner of the facilities, thereby improperly using the corporate form to shield themselves from ... liability.

67. Through ... joint enterprises, agency relationships, and various agreements and contracts, [Extendicare] and EHSI controlled the operation, planning and management of [the Nursing Home]. The authority . . . includes [all allegations in paragraph 36].

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70. [Extendicare] and EHSI engaged in substantial, continuous and direct communication and management of each of its nursing home facilities throughout Florida. . . .

71. [Extendicare] and EHSI by undertaking the direct responsibility for establishing and controlling the operation and management of nursing homes in ... Florida, engaged in substantial, ongoing activity within this state.

72. The actions and business activities in ... Florida of [Extendicare] were substantial, continuous and constitute sufficient contacts to subject [them] to personal jurisdiction . . . [under] § 48.193 Fla. Stat. . . . Further, each of the Defendants, by virtue of their numerous and ongoing contacts with Florida and tortious acts in Florida, should reasonably expect to be haled into a Florida court.

Extendicare filed a motion to quash service of process and to dismiss, which was accompanied by the affidavit of Richard Bertrand, Extendicare's CFO. Bertrand was Extendicare's CFO since September 2004 and was employed by Extendicare or its subsidiaries for 28 years. Extendicare alleged that it was a foreign corporation, distinct from the other corporate defendants. During James McGillen's residency, Extendicare did not in Florida: conduct business; own or lease property; maintain an office; own, operate, or control nursing homes; exercise the control described in paragraphs 36 and 67 of the complaint; provide care to or injure James McGillen; commit tortious acts; conspire or act in concert with the other defendants to injure James McGillen; act in any joint enterprise or agency relationship to own, operate, manage, or control nursing homes; or engage in substantial and continuous communication with and management of nursing homes. Extendicare's motion to quash summarized Extendicare's corporate relationship with its subsidiaries and affiliates, but argued that its relationship did not provide a basis for personal jurisdiction.

Bertrand stated in his affidavit and deposition that, excluding its downstream subsidiaries' activities, Extendicare had not conducted business or entered into contracts or agreements for services in Florida. Since January 2001, Extendicare's downstream subsidiaries had not operated nursing homes in Florida. McGillen argued below and on appeal that Bertrand's affidavit did not sufficiently challenge jurisdiction because Bertrand was not an Extendicare employee at all times relevant to the action and, accordingly, lacked personal knowledge to support his affidavit.

Furthermore, McGillen filed a barrage of documents, deposition testimony from other cases involving some of the same defendants, agreements between other defendants, and orders from other cases where Extendicare unsuccessfully challenged jurisdiction. The filings included deposition testimony from other cases in which codefendants and other individuals testified about their interaction with employees of EHSI or unidentified Extendicare entities based in the U.S., orders from other cases denying Extendicare's motions to compel arbitration or motions to dismiss, Extendicare's 2001 annual report and a 2002 press release, and Bertrand's deposition, which noted he had served as an officer in two of the subsidiaries.

In November 2005, the court heard Extendicare's motion to quash service and to dismiss. It denied the motion, concluding that Bertrand lacked personal knowledge to support his affidavit because he was not employed at Extendicare at all relevant times. Notwithstanding the affidavit,

[McGillen's filings] establish[ed] ... that over a period of years, [Extendicare] operated nursing ... facilities in Florida; that the Florida operations accounted for significant claims reserves and liability costs incurred by [Extendicare]; and, that [Extendicare] had and maintains budgetary approval for, and continues to derive revenue from, business operations in Florida. [Extendicare's] activities in Florida and its connections to the state are such that it should have reasonably anticipated being haled into Florida courts.

Extendicare timely appealed.

We review de novo an order finding that personal jurisdiction exists. Enic, PLC v. F.F.S. & Co., 870 So.2d 888, 889 (Fla. 5th DCA 2004); Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1140 (Fla. 2d DCA 2006). In determining the propriety of the exercise of long-arm jurisdiction over a foreign defendant, ...