Extendicare, Inc. v. Estate of McGillen

957 So. 2d 58, 2007 Fla. App. LEXIS 6779, 2007 WL 1295739
CourtDistrict Court of Appeal of Florida
DecidedMay 4, 2007
Docket5D06-969
StatusPublished
Cited by7 cases

This text of 957 So. 2d 58 (Extendicare, Inc. v. Estate of McGillen) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Extendicare, Inc. v. Estate of McGillen, 957 So. 2d 58, 2007 Fla. App. LEXIS 6779, 2007 WL 1295739 (Fla. Ct. App. 2007).

Opinion

957 So.2d 58 (2007)

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.

*60 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. . . .
* * *
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 *61 from the unlicensed operation of nursing homes in . . . Florida . . . ;
* * *
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.
* * *
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. . . .
* * *
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. . . .
* * *
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. . . .
* * *
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].
* * *
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 . . . *62 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.

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Cite This Page — Counsel Stack

Bluebook (online)
957 So. 2d 58, 2007 Fla. App. LEXIS 6779, 2007 WL 1295739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/extendicare-inc-v-estate-of-mcgillen-fladistctapp-2007.