TOWER V. THYSSEN

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002 THE TOWER GROUP, INC., Appellant, vs. ** ** ** CASE NO. 3D02-702 ** THYSSEN ELEVATOR COMPANY, a Delaware corporation d/b/a ** THYSSEN MIAMI ELEVATOR COMPANY, ** LOWER Appellee. TRIBUNAL NO. 00-9459 ** Opinion filed August 7, 2002. An appeal from the Circuit Court for Dade County, Jon I. Gordon, Judge. Paul H. Bass, for appellant. Sheldon R. Rosenthal, for appellee. Before COPE, GREEN and RAMIREZ, JJ. PER CURIAM. The Tower Group, Inc. appeals an order denying exceptions to a general master s report. We affirm. First, we see no error with regard to the involuntary dismissal of the counterclaim. The record does not establish error in the general master s ruling, or the denial of the exception on this point by the trial court. Second, we decline to order a new trial on the basis of procedural error. master, the At the time the case went to trial before the parties and master had not noticed that the counterclaim had never been answered. The trial took place without any objection that the case was not at issue. The appellant contends that there must be a new trial. We disagree, and conclude that the objection was waived. See Parrish v. Dougherty, 505 So. 2d 646, 648 (Fla. 1st DCA 1987). We do not accept the argument that this is fundamental error. The appellant relies on Kuvin v. Keller Ladders, Inc. 797 So. 2d 611 (Fla. 3d DCA 2001), but the case is not on point. The question of preservation of the issue for appeal was not discussed in that case. Affirmed. 2

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