Alter Ego Basis for Jurisdiction in Florida Family Law Action

By Michael P. Sampson (part 6 of 8)

Woman behind veil curtain

Alter Ego Basis for Jurisdiction

The two-step process for establishing long arm jurisdiction does not apply when a spouse is traveling under a different theory: the alter ego basis for jurisdiction. The spouse may allege the entity is the other spouse’s alter ego and there are grounds and good reasons for the Florida court, to achieve equity and fairness, to “pierce the corporate veil” of the entity.

On the limited alter ego basis for jurisdiction, Florida courts have permitted a nonresident shareholder of a resident corporation to be subjected to jurisdiction, when the claimant alleges that basis and evidence establishes the nonresident entity has operated as the mere instrumentality (or “alter ego”) of the resident shareholder or entity and the other party engaged in improper conduct in the formation of the entity. See Bellairs v. Mohrmann, 716 So. 2d 320, 323 (Fla. 2d DCA 1998)Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120-21 (Fla.1984).

To establish an alter ego basis for jurisdiction, a suing spouse must allege facts sufficient to “pierce the corporate veil” of the entity. See Parisi v. Quadri de Kingston, Case No. 3D20-811 (Fla. 3d DCA January 13, 2021) (in an ancillary probate action, attempting to allege civil conspiracy by an Argentine man, his alleged “alter-ego” Delaware limited liability company, and a Miami cohort to steal a dying woman’s Miami Condo, discussing requirements for specifically pleading alter-ego); WH Smith, PLC v. Benages & Associates, Inc., 51 So. 3d 577, 582-83 (Fla. 3d DCA 2010) (reversing denial of motion to dismiss because the plaintiff failed to establish personal jurisdiction under the alter ego theory)Woods v. Jorgensen, 522 So. 2d 935, 937 (Fla. 1st DCA 1988)See also Hobbs v. Don Mealey Chevrolet, Inc., 642 So. 2d 1149, 1155 (Fla. 5th DCA 1994)Qualley v. International Air Serv. Co., 595 So. 2d 194, 196 (Fla. 3d DCA 1992).

In a family court action, a court may pierce the corporate veil if a spouse can prove both that the entity is a “mere instrumentality” or alter ego of the other spouse and that the other spouse engaged in “improper conduct” in the formation or use of the entity. See Noah Technologies, Inc. v. Rice, 2014 WL 6473664 at *6, No. 2:14-cv-325-FtM-29DNF (M.D. Fla. November 18, 2014)Bellairs v. Mohrmann, 716 So. 2d 320, 323 (Fla. 2d DCA 1998)Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120-21 (Fla.1984).

Sheer Curtain Trees Outside Window

In the divorce context, an entity may be so “inextricably intertwined” with a spouse that joinder of the entity is appropriate. See Hoecker v. Hoecker, 426 So. 2d 1191, 1192 (Fla. 4th DCA 1983) (error to dismiss corporation from dissolution action, given husband’s testimony, “I’m the company,” and evidence of the parties’ conduct that demonstrated a blending of marital and business partnerships);  Rosenberg v. North American Biologicals, Inc., 413 So.2d 435 (Fla. 3d DCA 1981) (husband’s intimacy with the defendant corporations made the wife’s actions against them inextricably woven into the dissolution proceeding, so it was error for the trial court to find that the actions against the corporation, even if viable, be brought and litigated in a separate proceeding).

The alter ego theory has been extended to allow a trial court to inquire whether a non-profit corporation is the alter ego of a spouse in a dissolution proceeding to achieve equitable distribution. See Barineau v. Barineau, 662 So. 2d 1008, 1009 (Fla. 1st DCA 1995) (reversing final summary judgment entered for not-for-profit religious organization and remanding for determination of whether the corporation was engaged in improper conduct involving assets that a court could rightfully consider and account for in equitable distribution).

Woman Green Eyes Hiding Behind Plant

The alter-ego remedy is not available to a spouse who has not alleged and cannot establish that the other spouse used the corporate form to prevent execution on a liability that did not yet exist when the entity was used. Braswell.  See also Noah Technologies, Inc. v. Rice, Case No. 2:14-cv-325-FtM-29DNF (M.D. Fla. November 18, 2014) (stating court was unaware of any cases applying the “reverse alter ego” theory to pierce corporate veil in jurisdictional contexts).

Absent necessary allegations by a spouse in a pleading attempting to bring in an entity on an alter-ego theory, the pleading may be dismissed. See In re: Big Foot Properties, Inc., Case No. 3:11-BK-6868-JAF, Adv. No. 3:12-ap-168-JAF (Bankr. M.D. Fla. 2012).

Outsider Reverse Corporate Piercing Theory

Curb Your Ego sign

A legal theory for joining a corporation, related to the alter ego theory, may apply. When a corporation’s controlling shareholder has formed or used an entity to defraud creditors, by evading liability for pre-existing obligations, a spouse may invoke the “outsider reverse corporate piercing theory.” Under such circumstances, one spouse may seek to hold the entity liable for the debts of the other spouse who formed or used the entity to hide assets and avoid preexisting personal liability. See Braswell v. Ryan Investments, 989 So. 2d 38, 39 (Fla. 3d DCA 2008) (denying reverse veil piercing because taking title to assets in corporate name preceded the former wife’s claims and former husband’s obligations); Estudios, Proyectos e Inversiones de Centro Am., S.A. (EPICA) v. Swiss Bank Corp. (Overseas) S.A., 507 So.2d 1119, 1121 (Fla. 3d DCA 1987) (piercing the corporate veil on evidence that a corporation was formed to secrete the controlling shareholder’s personal assets and defraud his creditors).

Notepad and pens

Checklist for challenges to Alter Ego Allegations:

Has the pleading alleged the alter ego theory for jurisdiction over the entity?

  • What allegations have been made that the corporate veil should be pierced because the spouse is a “mere instrumentality” or alter ego of the entity?
  • What dominance or control of the entity has the spouse exerted? Does such dominance or control reflect that the entity has no independent existence?
  • What allegations have been made that the spouse engaged in improper conduct in the formation or use of the entity faced with preexisting obligations, such as a device to defraud creditors (including the other spouse) or to defeat equitable distribution of marital assets? 
  • Where is the entity’s principal place of business and what is its market?
  • Does the entity own property, have a business agent or conduct business in Florida?
  • How have the finances and business operations of the entity been kept independent from the affairs of the spouse who is the owner or control person?
  • What separate management, bank accounts, observation of corporate formalities, and other facts support this independence?
  • How are decisions made and by whom?

Read More

Part 1: Florida Family Law 2021: Corporate and Trust Challenges to Service of Process and Jurisdiction

Part 2: Challenge to Personal Jurisdiction: Service of Process

Part 3: Family Law Pleadings Must Allege Basis for Personal Jurisdiction Over the Entity

Part 4: Personal Jurisdiction – Long-Arm Statute or Alter-Ego Theory?

Part 5: Long-Arm Jurisdiction: Specific or General?

Part 7: Jurisdiction Over Property At Issue in Florida Divorce

Part 8: Challenges to Jurisdiction in Florida Family Law Action: Affidavits

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