Pierce v. Kroha

District Court of Appeal of Florida

Pierce v. Kroha

200 So. 3d 241, 2016 Fla. App. LEXIS 14624, 2016 WL 5630679

CourtDistrict Court of Appeal of Florida

DecidedSeptember 30, 2016

Docket5D15-2364

StatusPublished

Cited by1 cases

This text of 200 So. 3d 241 (Pierce v. Kroha) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pierce v. Kroha, 200 So. 3d 241, 2016 Fla. App. LEXIS 14624, 2016 WL 5630679 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

The trial court entered a default judgment after Appellants (defendants below) 1 filed a motion to dismiss and motion to clarify instead of an answer, as they had been ordered to do. This was an abuse of discretion. Osheroff v. Osheroff, 694 So.2d 855 (Fla. 3d DCA 1997). Although the better practice to challenge this error would have been a direct appeal, there is authority that it may be challenged by a motion to vacate the judgment. Thaw, Gopman & Assocs., P.A. v. Jack J. Greenberg, M.D. & Assocs., P.A., 595 So.2d 305 (Fla. 3d DCA 1992). Accordingly, we reverse and remand this cause for further proceedings.

REVERSED and REMANDED.

SAWAYA, TORPY and COHEN, JJ., concur.

1

. We use the term "Appellants” in the plural because that is the way the appeal is styled, and the arguments are framed as if two distinct defendants were involved. In fact, it appears from the record that "Estate Sales Stars” is simply a fictitious name for defendant Pierce. Although the complaint and other pleadings refer to the so-called entity as "a Florida Corporation,” Appellee’s process server’s affidavit asserts to the contrary. Indeed, if it is a corporation, it is not correctly named. A Florida corporation’s name must contain words such as "corporation,” "incorporated,” "company,” or abbreviations for the foregoing. § 607.0401(1), Fla. Stat. (2016). Although this issue is not raised in this appeal, the sloppy pleadings should be corrected to reflect the correct status and names of the parties.

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PER CURIAM.

The trial court entered a default judgment after Appellants (defendants below) 1 filed a motion to dismiss and motion to clarify instead of an answer, as they had been ordered to do. This was an abuse of discretion. Osheroff v. Osheroff, 694 So.2d 855 (Fla. 3d DCA 1997). Although the better practice to challenge this error would have been a direct appeal, there is authority that it may be challenged by a motion to vacate the judgment. Thaw, Gopman & Assocs., P.A. v. Jack J. Greenberg, M.D. & Assocs., P.A., 595 So.2d 305 (Fla. 3d DCA 1992). Accordingly, we reverse and remand this cause for further proceedings.

REVERSED and REMANDED.

SAWAYA, TORPY and COHEN, JJ., concur.

1

. We use the term "Appellants” in the plural because that is the way the appeal is styled, and the arguments are framed as if two distinct defendants were involved. In fact, it appears from the record that "Estate Sales Stars” is simply a fictitious name for defendant Pierce. Although the complaint and other pleadings refer to the so-called entity as "a Florida Corporation,” Appellee’s process server’s affidavit asserts to the contrary. Indeed, if it is a corporation, it is not correctly named. A Florida corporation’s name must contain words such as "corporation,” "incorporated,” "company,” or abbreviations for the foregoing. § 607.0401(1), Fla. Stat. (2016). Although this issue is not raised in this appeal, the sloppy pleadings should be corrected to reflect the correct status and names of the parties.

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200 So. 3d 241, 2016 Fla. App. LEXIS 14624, 2016 WL 5630679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-kroha-fladistctapp-2016.

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