Cosid, Inc. v. Bay Steel Products Co.

288 So. 2d 277 (1974)

COSID, INC., Appellant,
v.
BAY STEEL PRODUCTS CO., INC., a Florida Corporation, Appellee.

No. 72-175.

District Court of Appeal of Florida, Fourth District.

January 18, 1974.

Alan R. Lorber of Kommel, Rogers, Lorber & Shenkman, Miami Beach, for appellant.

Joe N. Unger of Smith, Mandler, Smith & Parker, Miami Beach, and Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellee.

PER CURIAM.

We have examined the briefs and record on appeal and heard oral argument and on the basis thereof we are of the view that no reversible error has been demonstrated. In particular, the appellant's contention regarding the raising of an affirmative defense in a motion for summary judgment is not properly before this court for appellate consideration inasmuch as it was never raised by the complainant in the proceedings before the trial court. Except in the case of fundamental error a point not raised and determined in the court below cannot be raised for the first time on appeal; an appellate court must confine itself to a consideration of only those matters in question that were before the lower court. 2 Fla.Jur. Appeals § 290. Moreover, the record suggests that the appellant consented to the manner of the proceedings below and should not now be heard to complain. There being no merit to any other contention raised by the appellant the order of the trial court is affirmed.

CROSS, MAGER and DOWNEY, JJ., concur.