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Marks v. GEICO Gen. Ins. Co.

Florida Court of Appeals, Fourth District
Jan 12, 2022
332 So. 3d 11 (Fla. Dist. Ct. App. 2022)

Summary

finding the trial court erred in dismissing a declaratory relief claim because the appellant could have brought a breach of contract claim instead

Summary of this case from Comisar v. Heritage Prop. & Cas. Ins. Co.

Opinion

No. 4D21-469

01-12-2022

MICHAEL A. MARKS, P.A. d/b/a Somerset Chiropractic Center a/a/o Peter Defilippo, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.

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.


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.


Summaries of

Marks v. GEICO Gen. Ins. Co.

Florida Court of Appeals, Fourth District
Jan 12, 2022
332 So. 3d 11 (Fla. Dist. Ct. App. 2022)

finding the trial court erred in dismissing a declaratory relief claim because the appellant could have brought a breach of contract claim instead

Summary of this case from Comisar v. Heritage Prop. & Cas. Ins. Co.

agreeing with provider that trial court erroneously dismissed provider's declaratory judgment action but affirming because the argument raised on appeal was not raised in the proceedings below

Summary of this case from Topvalco Inc. v. Wolff

agreeing that pursuant to section 86.111, the trial court erred in dismissing a declaratory judgment action merely because the plaintiff could have brought an action for breach of contract instead

Summary of this case from Cintron v. Edison Ins. Co.
Case details for

Marks v. GEICO Gen. Ins. Co.

Case Details

Full title:MICHAEL A. MARKS, P.A. d/b/a SOMERSET CHIROPRACTIC CENTER a/a/o PETER…

Court:Florida Court of Appeals, Fourth District

Date published: Jan 12, 2022

Citations

332 So. 3d 11 (Fla. Dist. Ct. App. 2022)

Citing Cases

Topvalco Inc. v. Wolff

Where an error appears for the first time on the face of an order, a litigant must move for rehearing, to…

Comisar v. Heritage Prop. & Cas. Ins. Co.

While declaratory actions "may result in substantial overlap with otherwise-available actions at law," the…