SISTER DONUT v. Cameron-Brown Co.

495 So. 2d 772, 11 Fla. L. Weekly 1863, 1986 Fla. App. LEXIS 9519

• Court: District Court of Appeal of Florida
• Decided: August 27, 1986
• Docket: 85-1937
• Status: Published

Opinion

495 So.2d 772 (1986)

SISTER DONUT, INC., Appellant,
v.
CAMERON-BROWN COMPANY, et al., Appellees.

No. 85-1937.

District Court of Appeal of Florida, Fourth District.

August 27, 1986. Rehearing Denied October 23, 1986.

Alec J. Ross of Alec Ross Law Offices, North Miami Beach, for appellant.

Nancy K. Neidich and Albert C. Galloway, Jr. of Wiener, Shapiro & Rose, Miami, for appellee Cameron-Brown Co.

PER CURIAM.

We reverse the final judgment of foreclosure predicated upon the trial court's entry of default against appellant because of appellant's failure to file an answer to the complaint. The motion for default was based upon appellant's failure to file an answer. At the time the defendant had pending a motion to abate predicated upon the appellees' alleged failure to file a nonresident cost bond pursuant to Section 57.011, Florida Statutes (1983). That motion, in our view, precluded the trial court from entering a default without first determining the merits of the motion and thereafter giving the appellant an opportunity to answer before imposing a default. We do not rest our ruling upon appellant's claim that the default was invalid because appellant filed an answer before the filing of the default order but after it had been entered by the trial judge. Cf. Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980).

ANSTEAD, GLICKSTEIN and STONE, JJ., concur.