Green Leaf Innovations Inc (GRLF)

[lmcat]

The facts speak for themselves and Paul Lovito evaded being served for months. If someone is innocent why not defend the charges in court? Why hide?

District Court of Appeal of Florida,Fourth District.

MOORE v. McCLUSKEY
Warren MOORE, Appellant, v. Edward H. McCLUSKEY, William Barnett, and Paul Lovito, Appellees.

No. 4D03-3190.

-- June 16, 2004


Alan Dagen of Law Offices of Alan Dagen, P.A., Fort Lauderdale, for appellant. No appearance filed for appellees.

A trial court's reaction to the plaintiff's request for an extension of time to serve one of three defendants resulted in the dismissal of the plaintiff's complaint. The plaintiff argues that the trial court abused its discretion in dismissing the action. We agree and reverse.

On July 9, 2002, the plaintiff filed a complaint against Edward H. McCluskey, William Barnett, and Paul Lovito for breach of fiduciary duty, breach of duty of loyalty, and fraud.
On November 4, 2002, the plaintiff filed a motion for extension of time of 60 days to serve the complaint. He alleged that at least one defendant had been served, and that the process server was attempting to serve the other two defendants. The plaintiff asked for more time in case they were not served within the requisite 120 days. See Fla. R. Civ. P. 1.070(j). On November 4, 2002, the trial court gave the plaintiff sixty days in which to serve the complaint.

On April 30, 2003, the trial court set a case management conference for May 27, 2003. On June 30, 2003, the plaintiff filed a motion to serve the third defendant, Lovito, by publication. He alleged that he had served both McCluskey and Barnett, but his previous attempts to serve Lovito had been unsuccessful. The process server had gone to Lovito's residence “over 10 times” without locating him.

The plaintiff attached an affidavit from the process server attesting to these facts. The process server's affidavit indicated that he had spoken with Lovito's mailman who told him that Lovito and the “LBI Group” moved on a regular basis. The mailman had come across Lovito and the group on different routes. According to the mailman, Lovito never stayed anywhere for longer than two months, and the landlords were also looking for him. The plaintiff alleged that he had exhausted his efforts, which included checking public records, the telephone directory, and using two process servers.

On July 8, 2003, the trial court entered an order sua sponte dismissing the plaintiff's complaint. It noted that on May 27, 2003, it had ordered the plaintiff to effectuate service within 30 days. The court added in the order of dismissal that “pon failure to comply, this case is hereby dismissed.”?

Florida Rule of Civil Procedure 1.070(j), as amended in 1999, provides that

f service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; ?provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time of service for an appropriate period· A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

Fla. R. Civ. P. 1.070(j) (emphasis added).

This court has previously recognized that the rule is not intended to be a trap for the unwary, nor a rule to impose a secondary statute of limitations based on time of service. The results would be harsh in a system where great emphasis is placed on deciding cases justly on the merits. We instead understand the rule to be an administrative tool to efficiently move cases through the courts · The idea of rule 1.070(j) is not to throw up arbitrary temporal barriers for serving process on a defendant who is avoiding service.

Gary J. Rotella & Assocs. v. Andrews, 821 So.2d 468, 469-70 (Fla. 4th DCA 2002) (quoting Sneed v. H.B. Daniel Constr. Co., 674 So.2d 158, 159 (Fla. 5th DCA 1996)).

The trial court properly exercised one of the rule's three options when presented with the plaintiff's first motion to extend the time to effect service on Lovito. Several months passed and the court held a case management conference. At that time, the court gave the plaintiff 30 days to effect service on Lovito. While this might be considered a reasonable period of time in the usual case, the extraordinary extent of Lovito's evasiveness continued to provide good cause to either extend the time or drop the defendant as a party. The court erred in dismissing the entire case given these facts.

The order dismissing the complaint is reversed and the cause remanded for reinstatement of the complaint and proceedings consistent with this opinion.

FOOTNOTES

1. The form order the trial court entered on May 27, 2003 is not in the record, but the plaintiff states in his initial brief that it was entered at the status conference.

MAY, J.

FARMER, C.J., and POLEN, J., concur.

Florida Profit Corporation LBI GROUP, INC.

AND HERE WE HAVE THE WHOLE LOVITO FAMILY INVOLVED IN THIS SCAM! It operated from 1995 to 2003. Looks like the fraud charges shut them down!

Registered Agent Name & Address

LOVITO, PAUL
105 NW 13TH AVENUE
POMPANO BEACH FL 33069 US
Address Changed: 09/22/2002

Officer/Director Detail
Name & Address
Title PCD
LOVITO, PAUL F JR
2855 N UNIVERSITY DRIVE SUITE 320
CORAL SPRINGS FL 33065 US
Title VTD
LOVITO, MATTHEW J
2855 N UNIVERSITY DRIVE SUITE 320
CORAL SPRINGS FL 33065 US
Title VSD
LOVITO, MARC A
2855 N UNIVERSITY DRIVE SUITE 320
CORAL SPRINGS FL 33065 US
Title VD
LOVITO, DARRIN J
2855 N UNIVERSITY DRIVE SUITE 320
CORAL SPRING FL 33065 US
Title VD
LOVITO, KIMBERLY W
2855 N UNIVERSITY DRIVE SUITE 320
CORAL SPRINGS FL 33065 US

The above address is the accounting offices of
Schulman Wolfson & Abruzzo, LLP

2855 North University Drive
Suite 320
Coral Springs, FL 33065
[phone] ext. 301

http://www.swallp.com/site/?page_id=21

THAT'S GREAT NEWS - MARC DOESN'T HAVE TO SEARCH FOR A REGISTERED ACCOUNTING FIRM TO HANDLE THE AUDITS AND FILINGS REQUIRED FOR UPLISTING - HE ALREADY KNOWS A QUALIFIED COMPANY AND HAS DEALT WITH THEM PREVIOUSLY. NO MORE EXCUSES THAT HE IS INTERVIEWING FIRMS!