PRESTON v. ESTATE OF NATALIE ROMANOFF (2023)

Petitioners seek a writ of certiorari to quash the trial court's order denying their motion to dismiss the plaintiff's complaint alleging nursing home negligence. Petitioners allege that the plaintiff's complaint does not comply with the mandatory requirements of section 400.023, Florida Statutes (2020), which governs negligence actions against nursing homes. Concluding that the complaint's counts of negligence and wrongful death fail to comply with the statute, we agree and grant the petition.

In the underlying action, Respondent, the Estate of Natalie Romanoff, filed an amended complaint asserting causes of action against petitioners for negligence, wrongful death, aiding and abetting breach of fiduciary duty, and violations of section 415.1111, Florida Statutes (2020), for the injuries and damages which Natalie Romanoff suffered while she was a resident at Lakeside Health Center, a nursing home.

The complaint alleged that Lakeside Health was owned by Consolidated Resources, the licensee. Life Care Centers of America was alleged to provide management services to Consolidated Resources for the nursing home. The amended complaint alleged that Petitioner, Fund I Investment Partnership (Fund I), owned a 95% interest in Consolidated Resources, the licensee. Respondent alleged jurisdiction as to Fund I, claiming Fund I had availed itself of the privileges of the State of Florida through its ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including Lakeside Health Center.

Respondent further alleged in the complaint that Petitioner Preston was the sole owner of Life Care Centers, the management company. Respondent generally stated that Preston purposely had availed himself of the privileges of the State of Florida, through his ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including Lakeside Health Center, within the State of Florida.

As to both Fund I and Preston, the complaint alleged that “they were involved with: hiring or firing the administrator and/or director of nursing; controlling or having control over the staffing levels at the facility; having control over the budget of the facility; and/or implementing and enforcing the policies and procedures of the facility.” Respondent did not include in the complaint any specific allegations against Petitioners for negligence and wrongful death. The negligence and wrongful death claims merely stated allegations generally against all defendants.

Petitioners moved to dismiss the complaint's negligence and wrongful death allegations based upon section 400.023, Florida Statutes (2020), which provides for civil actions against nursing homes. Specifically, Petitioners alleged that they were improper parties under section 400.023. They argued that Respondent failed to assert sufficient allegations in the complaint to satisfy the statutory requirements of section 400.23. Petitioners also argued that Respondent should have moved to amend and sought a hearing to present sufficient evidence to show that Petitioners were parties against whom a claim could be made pursuant to the statute.

The trial court denied the motion to dismiss. Petitioners seek certiorari review.

Certiorari relief is only appropriate when a non-final order meets the three-prong test: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). “The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.” Id.

The Florida Supreme Court in Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995), held that depriving a litigant of the protection of a substantive right provided by statute is harm deserving of certiorari relief and irreparable on appeal. Id. at 520. In connection with the right to sue for punitive damages, the court wrote:

The plain meaning of section 768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint. To allow punitive damages claims to proceed as before would render section 768.72 meaningless. Furthermore, a plenary appeal cannot restore a defendant's statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant. We therefore agree with the district court in Henn and Kraft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed.

Id. (emphasis added).

Similar to section 768.72, the statute at issue here, section 400.023, creates a substantive right to be free from suit if one is not within a limited class of entities or individuals set forth in the act. Thus, pursuant to Globe, petitioners have shown irreparable harm creating a material injury by the denial of their motion to dismiss.

To obtain certiorari relief, the petitioner must also show that the trial court's ruling departed from clearly established law:

“[C]learly established law” can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.

Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003).

Here, the issue is whether the lower court failed to follow section 400.023 in denying the motion to dismiss. Section 400.023 provides:

(1) An exclusive cause of action for negligence or a violation of residents’ rights as specified under this part which alleges direct or vicarious liability for the personal injury or death of a nursing home resident arising from such negligence or violation of rights and which seeks damages for such injury or death may be brought only against the licensee, the licensee's management or consulting company, the licensee's managing employees, and any direct caregivers, whether employees or contractors. A passive investor is not liable under this section. An action against any other individual or entity may be brought only pursuant to subsection (3).

․

(2) As used in this section, the term:

(a) “Licensee” means an individual, corporation, partnership, firm, association, governmental entity, or other entity that is issued a permit, registration, certificate, or license by the agency and that is legally responsible for all aspects of the operation of the nursing home facility.

(b) “Management or consulting company” means an individual or entity who contracts with, or receives a fee from, a licensee to provide any of the following services for a nursing home facility:

1. Hiring or firing of the administrator or director of nursing;

2. Controlling or having control over the staffing levels at the facility;

3. Having control over the budget of the facility; or

4. Implementing and enforcing the policies and procedures of the facility.

(c) “Passive investor” means an individual or entity that has an interest in a facility but does not participate in the decisionmaking or operations of the facility.

(3) A cause of action may not be asserted against an individual or entity other than the licensee, the licensee's management or consulting company, the licensee's managing employees, and any direct caregivers, whether employees or contractors, unless, after a motion for leave to amend hearing, the court or an arbitration panel determines that there is sufficient evidence in the record or proffered by the claimant to establish a reasonable showing that:

(a) The individual or entity owed a duty of reasonable care to the resident and that the individual or entity breached that duty; and

(b) The breach of that duty is a legal cause of loss, injury, death, or damage to the resident.

§ 400.023, Fla. Stat. (2020) (emphasis added).

The trial court failed to follow section 400.023 in denying the motion to dismiss. Section 400.023 limits the parties against whom a claim of nursing home negligence may be brought to the “licensee, the licensee's management or consulting company, the licensee's managing employees, and any direct caregivers.” Further, a consulting or management company only fits the statutory definition if, pursuant to a contract or by receiving a fee for services, the company provides a nursing home facility with one of four specifically listed services. § 400.023(2)(b), Fla. Stat. (2020).

The complaint here showed that Petitioners were neither the licensee nor the management company but were apparently owners of the licensee and the management company, respectively. Section 400.023(1) provides that “passive investor[s] [are] not liable” under the statute, and the complaint did not include any specific allegations regarding actions or omissions by Fund I or Preston that would qualify them as licensees, or managing or consulting companies under the statute. Although Respondent made a general allegation that Petitioners were “involved” with the four activities which would bring a management consultant within the statute, Respondent did not allege the crucial element that Petitioners had performed under a contract or received a fee for the services performed. This is particularly important when both a licensee and a management company are already defendants in the lawsuit. Respondent's mere allegations that both Petitioners availed themselves of the privileges of the state by leasing, operating, or managing and/or consulting with nursing homes, including the resident's nursing home, or were “involved” with management decisions, were legally insufficient to comply with section 400.023’s requirements.

Additionally, under section 400.023, to sue “an individual or entity other than the licensee, the licensee's management or consulting company, the licensee's managing employees, and any direct caregivers,” the claimant must request leave to amend at a motion hearing where the claimant provides sufficient evidence to establish a reasonable showing of negligence. § 400.023(3)(a)-(b), Fla. Stat. (2020) (emphasis added). Here, no hearing was held.

Accordingly, we quash the trial court's order denying dismissal as to Respondent's claims of negligence and wrongful death against Petitioners, without prejudice to Respondent to move to amend to include Petitioners as parties and for a hearing that meets the requirements of section 400.023(3), Florida Statutes (2020).

Petition granted.

Warner, J.

Klingensmith, C.J., and Artau, J., concur.