De Mendoza v. Saastopankkien Keskus-Osakepankki

643 So. 2d 659, 1994 Fla. App. LEXIS 9476, 1994 WL 540475

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

We deny appellee/eross-appellant’s motion for rehearing and/or clarification. However, we withdraw the opinion filed April 6, 1994, and substitute the following:

The primary issue on appeal in this mortgage foreclosure action involves the trial court’s sustaining an objection to certain testimony. We find no abuse of discretion and affirm. In any event, any error in excluding the testimony was harmless. § 59.041, Fla. Stat. (1993); White Const. Co., Inc. v. Dupont, 455 So.2d 1026 (Fla.1984); Vega v. City of Pompano Beach, 551 So.2d 594 (Fla. 4th DCA 1989), rev. denied, 564 So.2d 490 (Fla. 1990).

We also find no abuse of discretion with respect to the cross-claim issue which concerns the foreclosing bank’s right to have certain claims resolved in the foreclosure judgment. Cross-appellants did not assert the claim in question as an issue in the pretrial statement, nor was the issue addressed during the four day trial. The trial court had the discretion to conclude that the claim had been waived in the foreclosure proceeding. Moreover, there is record support for a conclusion that the defendant/mortgagor would be prejudiced by insufficient notice that the mortgagee was seeking a resolution of the issue in this suit.

GUNTHER and STONE, JJ., and RAMIREZ, JUAN, Jr., Associate Judge, concur.