This case is valuable for trial and appellate practitioners alike. For trial counsel, the case helps explain the requirements for nursing home negligence matters under 400.023, and for appellate attorneys, the case clarifies that certiorari is the proper avenue to seek review.

I. The amended complaint, the allegations against Fund I and Preston, and the motion to dismiss.

In the underlying action, the Estate of Natalie Romanoff filed an amended complaint asserting causes of action against a nursing home and other defendants 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 a decedent suffered while she was a resident at Lakeside Health Center.

The amended complaint alleged that Lakeside Health was owned by Consolidated Resources, the licensee. The amended complaint further alleged that Life Care Centers of America provided management services to Consolidated Resources for the nursing home.

The amended complaint alleged that Fund I Investment Partnership (Fund I) owned a 95% interest in Consolidated Resources. In establishing jurisdiction as to Fund I, the amended complaint alleged that 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.

The amended complaint also alleged that Petitioner Preston was the sole owner of Life Care Centers, the management company. In establishing jurisdiction as to Preston, the amended complaint generally stated that he 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.” However, the amended complaint did not include any specific allegations against either for negligence or wrongful death. Instead, the negligence and wrongful death claims merely stated allegations generally against all defendants.

Fund I and Preston moved to dismiss the complaint by arguing they were improper parties under section 400.023 and that the Estate failed to assert sufficient allegations to meet the requirements of the statute. Additionally, Fund I and Preston argued that the statute also required that the Estate move to amend and to present evidence at a hearing demonstrating claims could be made for negligence and wrongful death against each. After the lower court denied the motion to dismiss, Fund I and Preston filed their petition for certiorari review with the Court of Appeal.

II. The Fourth District quashes the lower court’s order denying dismissal.

A. Certiorari is available to challenge the denial of a motion to dismiss for failure to comply with section 400.023, Florida statutes.

Before it could grant relief, because the denial of a motion to dismiss is a non-final order with no right to interlocutory appeal, the Fourth District first considered whether the petitioners could seek certiorari relief.

As a reminder, not all non-final orders are entitled to interlocutory review. Instead, Florida Rule of Appellate Procedure 9.130 specifically provides that certain non-final orders can be appealed as of right. For all other non-final orders, review may only be available via writ practice, most commonly via a petition for writ of certiorari. However, certiorari relief is not a substitute for an appeal at completion of a case; thus, certiorari relief may not be appropriate in all circumstances. Certiorari relief is only appropriate when a non-final order meets the following 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 post judgment appeal. As the Fourth District explained, “the last two elements are jurisdictional and must be analyzed before the court may even consider the first element.”

The Fourth District held that certiorari is the proper mechanism for review of a denial of a motion to dismiss in these cases because section 400.023 creates a substantive right to be free from suit if one is not within the limited class of entities or individuals set forth in the act. Therefore, a wrongfully sued party can show irreparable harm creating a material injury by the denial of their motion to dismiss.

B. The lower court departed from the essential requirements of law. Thus, Petitioners were entitled to certiorari relief.

After determining certiorari relief was available to the nursing home defendants, the appellate court explained that they must establish that the lower court’s ruling departed from clearly established law. “‘Clearly established law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.”

The Court turned its focus to the language of section 400.023. Section 400.023(1) limits the persons and entities that can be sued for nursing home negligence to: (1) the licensee, (2) the licensee’s management or consulting company; (3) the licensee’s managing employees, and (4) any direct caregivers, whether employees or contractors. Importantly, “[a] passive investor is not liable under this section.” Id.

Section 400.023(2) defines a “management or consulting company” as “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: (i) hiring or firing of the administrator or director of nursing; (ii) controlling or having control over the staffing levels at the facility; (iii) having control over the budget of the facility; or (iv) implementing and enforcing the policies and procedures of the facility.” Section 400.023(2) further defines a “passive investor” as “an individual or entity that has an interest in a facility but does not participate in the decisionmaking or operations of the facility.”

In addition, 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 hearing where the claimant provides sufficient evidence to establish a reasonable showing of negligence. § 400.023(3), Fla. Stat.

Here, the allegations of the amended complaint demonstrated that Petitioners were neither the licensee nor the management company. Instead, they were alleged to be the owners of the licensee and the management company. The Fourth District found that the amended complaint’s allegations that Fund I and Preston 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 requirements because the Estate did not allege that either had performed under a contract or received a fee for the services performed. Phrased differently, the lynchpin under the section 400.023(2) definition of “management or consulting company” is not merely that a service is provided, but that such services are provided by someone who contracts with or receives a fee from the licensee.

The Fourth District further held that because Petitioners did not qualify as a licensee or management company, the lower court further erred in not requiring the Estate to move for leave to amend and provide evidence at a hearing demonstrating a reasonable showing of negligence.

In issuing the writ, the Fourth District quashed the trial court’s order without prejudice to the Estate moving to amend and presenting evidence at a hearing that meets the requirements of section 400.023(3).