Levory W. Hickmon v. Rachel Bushey Reese, P.A. , 275 So. 3d 841 ( 2019 )


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  •           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.
    2
    

Document Info

Docket Number: 19-0171

Citation Numbers: 275 So. 3d 841

Filed Date: 7/16/2019

Precedential Status: Precedential

Modified Date: 7/16/2019