Capitalsource Int'l, LLC v. Pitsoulakis

264 So.3d 302

CAPITALSOURCE INTERNATIONAL, LLC f/k/a CapitalSource International, Inc., Appellant,

v.Spiridon E. PITSOULAKIS, Appellee.

Case No. 5D18-2687

District Court of Appeal of Florida, Fifth District.

Opinion filed February 1, 2019

Brian K. Hole, and Katherine M. Joffe, of Holland & Knight LLP, Ft. Lauderdale, for Appellant.

No Appearance for Appellee.

PER CURIAM.

CapitalSource International, LLC f/k/a CapitalSource International, Inc., appeals the dismissal of its complaint to enforce a promissory note for failure to effectuate service of process on Spiridon E. Pitsoulakis. We find that the trial court abused its discretion in dismissing the complaint, and therefore, reverse.

In March 2007, Pitsoulakis executed a promissory note in the principal amount of $ 854,630, which matured on May 1, 2012. On April 28, 2017, CapitalSource filed its complaint to enforce the note. When CapitalSource was unable to serve Pitsoulakis within the time allowed by Florida Rule of Civil Procedure 1.070(j), it sought and obtained two extensions of time to do so. CapitalSource continued to have difficulties locating and serving Pitsoulakis and requested a third extension of time. In support, it submitted affidavits of several process servers who had attempted to locate and serve Pitsoulakis at residential and business locations in Jacksonville, Clearwater, Plant City, and Sarasota. The trial court denied CapitalSource's third motion and dismissed the complaint.

In its motion for rehearing, CapitalSource set forth in greater detail its attempts at locating and serving Pitsoulakis. It noted that it had hired two private investigators and set forth the addresses at which it had attempted to locate Pitsoulakis, phone conversations it had with Pitsoulakis and others claiming to be his relatives, attempts to locate Pitsoulakis through hours of online and digital searches, surveillance, interviews, and stakeouts. It informed the court that the statute of limitations had run and consequently it would not be able to refile the complaint, thereby resulting in a nearly $ 900,000 windfall to Pitsoulakis, who it believed was evading service. The trial court denied rehearing.

We review an order dismissing an action for failure to serve the complaint under an abuse of discretion standard. Regions Bank v. Buoncervello , 220 So.3d 1225, 1227 (Fla. 5th DCA 2017). Moreover, where, as here, the court dismisses an action when the statute of limitations has run, thereby precluding refiling of the...