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.
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