MEDSEN DEVELOPMENT, INC., DOLPHIN CONSTRUCTION CO., INC., STEVE HESSEN, INDIVIDUALLY, AND STEVE HESSEN CONSTRUCTION CO., INC., APPELLANTS,
v.
GEORGE BRYANT AND CORA LEE BRYANT, HIS WIFE, APPELLEES
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Medsen Development and related defendants appealed a summary judgment entered against them based on alleged noncompliance with Florida's Fictitious Name Statute. The court reversed, holding that failure to register fictitious names is legally irrelevant when the defendants are sued in their proper corporate or individual capacities under their actual registered names.
The court held that noncompliance with the Fictitious Name Statute is legally irrelevant when the defendant contracts or acts in its proper individual or corporate name rather than the fictitious name. The violation of the statute must occur in the particular contract or transaction at issue; if the party acts under its actual name rather than a fictitious one, the transaction is not rendered invalid by noncompliance with the registration statute.
[1] A party's failure to register a fictitious name is legally irrelevant to a tort action if the tortious acts were committed while acting through the appropriate corporate…
[2] Noncompliance with the Fictitious Name Statute does not render a transaction invalid if the person or partnership contracted individually, rather than in the fictitious n…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“there must be a violation of the statute in the particular contract or transaction, and if the person or partnership who may be within, but has not complied with, the statute, contracts not in the fictitious name or partnership designation, but individually, the contract or transaction is not rendered invalid and unenforceable by reason of such noncompliance.”
Establishes the governing rule that fictitious name registration violations are relevant only when the party acts under the fictitious name in the specific transaction at issue.
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Join FLexlaw to unlock all legal intelligenceAppellants Medsen Development, Inc., Dolphin Construction Co., Inc., Steve Hessen individually, and Steve Hessen Construction Co., Inc. were defendant…
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SCHWARTZ, Judge.
The defendants below seek review, pursuant to Fla.R.App.P. 9.130(a)(3)(C)(iv), of a non-final order entering summary judgment against them on the issue of liability in a personal injury action. The basis of the ruling was the appellants’ asserted noncompliance with the registration provisions of the Fictitious Name Statute, Section 865.09, Fla.Stat. (1975). We reverse.
While the appellants may have employed what were arguably “fictitious” names in various aspects of their business dealings, the plaintiff alleged and demonstrated that they had committed the allegedly tortious acts for which they were sued while acting through the appropriate corporate or individual names and capacities in which they were specifically made parties-defendant below. Since this is true, their failure to register under Sec. 865.09, while perhaps wrongful in other contexts, was legally irrelevant to this one. As is stated in 57 Am.Jur.2d Name § 36 (1971):
. there must be a violation of the statute in the particular contract or transaction, and if the person or partnership who may be within, but has not complied with, the statute, contracts not in the fictitious name or partnership designation, but individually, the contract or transaction is not rendered invalid and unenforceable by reason of such noncompliance.
See also cases collected, Annotations, 45 A.L.R. 198, 240-244 (1926); 42 A.L.R.2d 516, 547 (1955). We believe this rule is properly applied to preclude the plaintiff’s successful reliance on Sec. 865.09 in order to bar a defense of this action.1
The order under review is therefore reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
. Our conclusion makes it unnecessary to consider either the substantive question of whether § 865.09 is applicable in tort actions at all, see 57 Am.Jur.2d Name § 32 (1971); Sparks v. Porter, 270 F.Supp. 953 (N.D.Fla.1967); or the procedural one of whether the issue was correctly disposed of on motion for summary judgment against the defendants without a prior specific order granting them time within which to comply with the statute. See Chaikin v. Skolnick, 201 So. 2d 588 (Fla. 3d DCA 1967); Cor-Gal Builders, Inc. v. Southard, 136 So. 2d 244 (Fla. 3d DCA 1962); compare Clifford Ragsd6ale, Inc. v. Morganti, Inc., 356 So. 2d 1321 (Fla. 4th DCA 1978), cert. denied, 362 So. 2d 1051 (Fla.1978).
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Citator
Cited By
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Jackson v. Jones, 423 So. 2d 972 (Fla. 4th DCA 1982)…te, brings a contract or tort action in which he is involved in his individual capacity then compliance is irrelevant to the cause of action and non-compliance with the statute has no effect on the litigation. See Medsen Development, Inc. v. Bryant, 376 So. 2d 423 (Fla. 3d DCA 1979). We note that appellant originally filed an Answer and Counterclaim. Thereafter an amended complaint was filed to which appellant filed an Answer, Set-off and Affirmative Defense. The counterclaim alleged in part: “2. On or abou…
Authorities Cited
- Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So. 2d 1321 (Fla. 4th DCA 1978)
- Cor-Gal Builders, Inc. v. Scotty Southard, 136 So. 2d 244 (Fla. 3d DCA 1962)
- Chaikin v. Skolnick, 201 So. 2d 588 (Fla. 3d DCA 1967)