Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1 :04-cv-00910-GIVIS Document 71 Filed 05/31 /2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

INTEGRATED HEALTH SERVICES )
OF CLIFF MANOR, INC., a Delaware corporation,) Civil Action No. 04—91O
INTEGRATED HEALTH SERVICES AT )
RIVERBEND, INC., a Deiaware Corporation, )
INTEGRATED HEALTH SERVICES AT )
SOMERSET VALLEY, INC., A Delaware )
corporation, ALPINE MANOR, INC., a )
Pennsylvania corporation, INTEGRATED )
HEALTH GROUP, INC., a Pcnnsyivania )
corporation, SPRING CREEK OF IHS, INC., a )
Pennsylvania corporation, FIRELANDS OF IHS, )
INC., a Pennsylvania corporation, ELM CREEK )
OF IHS, INC., a Pennsylvania corporation, IHS )
LONG TERM CARE SERVICES, INC., a )
Delaware corporation, )
)
Plaiiitiffs, )
)
v· )
)
THCI COMPANY LLC, )
)
Defendant. )

PLAINTIFFS’ MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
This Memorandum of Law is submitted on behalf of plaintiffs, and in particular
plaintiff IHS Long Tenn Care Services, Inc., ("LTC"), in support of plaintift`s’ motion for partial
summary _j udgrnent.
The facts are set fortii in the accompanying Declaration of Amos Alter. This
Memorandum is for the purpose of establishing that, under Missouri law, the Missouri Guaranty
of the Missouri Lease (as defined in that Declaration) may not be construed as incorporated into
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Case 1 :04-cv-00910-GIVIS Document 71 Filed 05/31/2005 Page 2 of 3
the Missouri Lease. As this action is one transferred from Missouri, this Court applies Missouri
choice~of`—-law rules (Ferens v. John Deere Co., 494 U.S. 516, 5l9 [1990]).
It is clear that, under Missouri law, a written obligation, and even a
contemporaneousiy executed guaranty, are considered as two separate documents, which, even if
they are to be construed together, still do not incorporate each other by any implied reference:
"A guaranty agreement may be construed together with any
contemporaneously executed agreements dealing with the same subject matter as
an aid in ascertaining the intention ofthe parties. [Citation omitted]. Those
agreements, however, dp ppt constitute Wa, single contract, gig ylye liability pj me
guarantor remains primarily dependent g me gparanty agyeement itseltZ" (Dunn
industrial Group v. City of Sugar Creek, 112 S.W.3d 421, 434 [Mo. 2003,
emphasis supp1ied]).
"’A guaranty may be construed together with any contemporaneously
executed agreements dealing with the same subject matter as an aid in
ascertaining the intention ofthe parties’ [quoting 1\ia’t1 Super Mkt. v. KMSK,
[pgp, 940 S.W.2d 47, 49 (Mo. App. 1997)]. °However, thi; does _13p,t mean tg
those ageements constitute g singie contract, _a_n_d tl_i_e_ liability pftg guarantor
remains primarily dependent Q mg guaranty instrument itself} Jamieson-
Chippewa Inv. Co., inc. v. McClintock, 996 S.W.2d 84, 87 (Mo. App. 1999)."
(Grand Investment Corp. v. Connaughton, Boyd & Kenter, 119 S.W.3d 101, 115
[Mo. App. 2003, emphasis supplied]).
See also, quoting the same ianguage from Jamieson-Chippewa, Mercantile Bank
v. _L_oy, 77 S.W.3d 93, 95 (Mo. App. 2002).
"W1riie it is held that contemporaneous agreements dealing with the same
subject matter may be construed together as an aid in ascertaining the intention of
the parties, @ does _n_o_t mean tlyat those agreements constitute g single contract
[citation omitted], Q mp liability pf @ gparantor remains primarily dependent
upon php guaranty contract. It is the guaranty agreement which contains the
express conditions on the guar·antor’s liability and which defines the obligations
and rights of both the guarantor and guarantee." (Standard Meat Co. v. Taco Kid
of Springfield, 554 S.W.2d 592, 595 [Mo. App. 1977, emphasis supp1ied]).
In the case at bar, there is no extant guaranty agreement which can be looked to in
order to define the obligations ofthe guarantor. Since the guaranty is not a single contract with
the lease whose terms were incorporated into the Master Lease, the guaranty is not incorporated
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Case 1 :04-cv-00910-GIVIS Document 71 Filed 05/31/2005 Page 3 of 3
into the Master Lease. There is thus no liability for the Missouri Lease, and plaintiffs are entitled
to partial summary_judg1nent declaring accordingly.
Conclusion
As has been demonstrated, as a matter of Missouri law the Missouri Guaranty is
not part of the Missouri Lease. Therefore, there is here no guaranty of the Missouri Lease.
Plaintiffs are thus entitled to a declaration to that effect, as inter @ prayed for in the complaint
originally tiled in Missouri. The motion for partial summary judgment should therefore be in all
respects granted.
Respectfully submitted,
Dated: May 31, 2005 DUANE MORRIS LLP
Wilmington, Delaware
/Mi:hael R. Lastcwslqi .155* LD. 3892)
r Richard W. Rile E LD. 4052) .
Christopher M. Winter (DE LD. 4163)
1100 North Market Street, Suite 1200
Wilmington, DE 19801-1246
Telephone: (302) 657-4900
Facsimile: (302) 65 7-4901
-and-
TROUTMAN SANDERS LLP
Amos Alter, Esquire
The Chrysler Building
405 Lexington Avenue
New York, NY 10174
Telephone: (212) 704~6000
Facsimile: (2l2) 704-6288.
Attorneysfor Plairztyf Integrated Health Services of
CfQ”fMarzor, [nc. et al.
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