SISTER DONUT, INC., APPELLANT,
v.
CAMERON-BROWN COMPANY, ET AL., APPELLEES
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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.
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Vacation Escape, Inc. v. Mich. Nat'l Bank, 735 So. 2d 528 (Fla. 4th DCA 1999)…for final default judgment. The pending motion to set aside the clerk’s default “precluded the trial court from entering a [final default judgment] without first determining the merits of the motion.... ” See Sister Donut, Inc. v. Cameron-Brown Co., 495 So. 2d 772 (Fla. 4th DCA 1986). Furthermore, by granting appellee’s motion for final default judgment without first ruling on appellee’s motion to vacate the clerk’s default as to Count I, the trial court denied appellant’s motion without an evi- [*530] dentia…
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Cardiosonx Labs., Inc. v. Aguadilla Med. Servs., Inc., 100 So. 3d 285 (Fla. 3d DCA 2012)…. at 529. The Fourth District further stated that the trial court was precluded from entering a default final judgment “without first determining the merits of the motion” to vacate the default. Id.; see also Sister Donut, Inc. v. Cameron-Brown Co., 495 So. 2d 772, 773 (Fla. 4th DCA 1986) (finding that a pending motion to abate prevented the trial court from entering a default final judgment of foreclosure). Here, as in Vacation Escape, the trial court erred in refusing to hear Cardio-sonx’s pending Motion t…
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Abelson v. First Nationwide Bank, 545 So. 2d 414 (Fla. 3d DCA 1989)…s correct the trial court’s finding that Abelson’s motion to dismiss was without merit, the trial court erred in denying Abelson’s motion without giving him an opportunity to serve his answer. See Sis [*415] ter Donut, Inc. v. Cameron-Brown Company, 495 So. 2d 772 (Fla. 4th DCA 1986). Accordingly, we reverse the final default judgment and vacate the foreclosure sale of the property and remand this cause for further proceedings.…
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- Chester v. Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)