Pierce v. Kroha

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED SILAS PIERCE AND ESTATE SALES STARS, Appellants, v. Case No. 5D15-2364 CHRISTOPHER KROHA, Appellee. ________________________________/ Opinion filed September 30, 2016 Non-Final Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge. Pamela R. Masters, Daytona Beach, and Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellants. Sherri K. Dewitt, Moses R. Dewitt and Melissa L. Newmons, of Dewitt Law Firm, P.A., Orlando, for Appellee. 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 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 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. 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. 2

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