SILAS PIERCE AND ESTATE SALES STARS, APPELLANTS,

v.

CHRISTOPHER KROHA, APPELLEE

Fla. 5th DCA | 2016-09-30

No. 5D15-2364

SAWAYA, J., TORPY, J., COHEN, J.

200 So. 3d 241 Florida District Court of Appeal, Fifth District (2016) Positive Treatment

Cited by 1 case

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Trial court abused its discretion by entering default judgment against defendants who filed motions to dismiss and clarify instead of an answer as ordered; judgment reversed and remanded.

Holding

A trial court abuses its discretion by entering a default judgment against defendants who file a motion to dismiss and motion to clarify instead of filing an answer as ordered.

Headnotes

[1] A trial court abuses its discretion by entering a default judgment against defendants who file a motion to dismiss and motion to clarify instead of filing a required answ…

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Facts & Procedural History

Appellants filed a motion to dismiss and motion to clarify instead of an answer after being ordered to do so, resulting in a default judgment against …

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Topics

Fictitious Name Motion For Clarification Motion To Vacate Default Judgment

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Opinion of the Court

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.

. 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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Citator

Cited By

MTW Jordan Inc. v. TNT Educators, Inc. (Fla. 6th DCA 2025)

Authorities Cited

Osheroff v. Osheroff, 694 So. 2d 855 (Fla. 3d DCA 1997)
Thaw, Gopman & Assocs., P.A. v. Jack J. Greenberg, M.D. & Assocs., P.A., 595 So. 2d 305 (Fla. 3d DCA 1992)
Luskin v. Berkson, 595 So. 2d 305 (Fla. 3d DCA 1992)

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SILAS PIERCE AND ESTATE SALES STARS, APPELLANTS, v. CHRISTOPHER KROHA, APPELLEE

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Authorities Cited

SILAS PIERCE AND ESTATE SALES STARS, APPELLANTS,

v.

CHRISTOPHER KROHA, APPELLEE