MICHAEL A. MARKS, P.A. v. GEICO GENERAL INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: January 12, 2022
• Docket: 21-0469
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

MICHAEL A. MARKS, P.A. d/b/a SOMERSET CHIROPRACTIC CENTER a/a/o PETER DEFILIPPO, Appellant,

v.

GEICO GENERAL INSURANCE COMPANY, Appellee.

No. 4D21-469

[January 12, 2022]

Appeal from the County Court for the Fifteenth Judicial Circuit, Palm Beach County; Marni A. Bryson, Judge; L.T. Case Nos. 502020CC5014 and 502020AP83.

Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, for appellant.

Michael A. Rosenberg and Adrianna de la Cruz-Muñoz of Cole, Scott & Kissane, P.A., Plantation, for appellee.

GERBER, J.

The provider appeals from the county court’s final order granting the insurer’s motion to dismiss the provider’s declaratory judgment action. The county court concluded dismissal was proper primarily because the provider could have filed a breach of contract action instead of a declaratory judgment action. The provider argues this conclusion was in error, because section 86.111, Florida Statutes (2020), expressly provides: “The existence of another adequate remedy does not preclude a judgment for declaratory relief.”

We agree with the provider that the county court’s conclusion was in error. However, we agree with the insurer that the provider did not raise this argument to the county court. The provider claims it raised this argument at the hearing on the insurer’s motion to dismiss, but our review of the transcript indicates otherwise. Because the argument now raised on appeal was not raised below, we must affirm. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (“As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal. … [T]o be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (citations and internal quotation marks omitted).

On all other arguments which the provider has raised on appeal, we affirm without further discussion.

Affirmed.

MAY and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.