Levory W. Hickmon v. Rachel Bushey Reese, P.A.

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D19-0171 _____________________________

LEVORY W. HICKMON,

Appellant,

v.

RACHEL BUSHEY REESE, P.A.,

Appellee. _____________________________

On appeal from the Circuit Court for Columbia County. Mark E. Feagle, Judge.

July 16, 2019

PER CURIAM.

We treat Appellee’s “notice of confession of error and request for remand” as Appellee’s answer brief. However, we decline to accept the concession, and we affirm. See Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002) (a confession of error is not binding upon an appellate court) (citations omitted); see also Markham v. N. Fla. Evaluation & Treatment Ctr., 248 So. 3d 1274 (Fla. 1st DCA 2018).

Appellant claims that the trial court abused its discretion by dismissing his civil complaint for monetary damages with prejudice because he was entitled to amend it pursuant to Florida Rule of Civil Procedure 1.190(a). However, the record reflects that Appellant never presented this argument to the trial court below

nor attempted to amend his complaint. Generally, “the rule of preservation applies to the improper dismissal of a complaint with prejudice.” Shelswell v. Bourdeau, 239 So. 3d 707, 708 (Fla. 4th DCA 2018) (citing Vorbeck v. Betancourt, 107 So. 3d 1142, 1147 (Fla. 3d DCA 2012)). “For an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Holland v. Cheney Bros., 22 So. 3d 648, 649–50 (Fla. 1st DCA 2009). When there is no indication that an argument challenging a motion to dismiss was first presented to the trial court, the argument will be deemed waived on appeal. See Metro. Cas. Ins. Co. v. Tepper, 969 So. 2d 403, 405 (Fla. 5th DCA 2007), approved, 2 So. 3d 209 (Fla. 2009).

Because Appellant’s claim is not preserved for appellate review, we decline Appellee’s confession of error and affirm.

RAY, C.J., and BILBREY and JAY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Levory W. Hickmon, pro se, Appellant. Rachael E. Reese of O’Brien Hatfield, P.A., Tampa, for Appellee.