Summary
finding that a pending motion to abate prevented the trial court from entering a default final judgment of foreclosure
Summary of this case from Cardiosonx Labs., Inc. v. Aguadilla Med. Servs., Inc.Opinion
No. 85-1937.
August 27, 1986. Rehearing Denied October 23, 1986.
Appeal from the Circuit Court, Broward County, Estella May Moriarty, J.
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.
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.