Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-1958 _____________________________ GEORGE WASHINGTON MACNEIL, individually and on behalf of all others similarly situated, Appellant, v. CRESTVIEW HOSPITAL CORPORATION, a Florida For Profit Corporation doing business as North Okaloosa Medical Center, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. Terrance R. Ketchel, Judge. March 12, 2020 RAY, C.J. This is an appeal of a final order dismissing with prejudice the putative class action complaint of George Washington MacNeil for a declaratory judgment and supplemental relief against Crestview Hospital Corporation, d/b/a North Okaloosa Medical Center (the “Hospital”). The complaint seeks a declaration as to whether the Hospital charged MacNeil and other similarly situated patients unreasonable rates for medical services in violation of section 627.736(5)(a), Florida Statutes (the “PIP statute”). The trial court dismissed the complaint with prejudice, reasoning that the PIP statute does not create a private cause of action for an insured to challenge the reasonableness of a health care provider’s charges, and therefore any declaration would amount to an improper advisory opinion. For the reasons that follow, we affirm. I. In his one-count complaint, MacNeil alleges that he was transported by ambulance to the Hospital’s emergency care department after a motor vehicle accident. He had personal injury protection (“PIP”) insurance at the time, providing for $10,000 in medical and disability benefits. Following treatment and discharge, he received an invoice charging $41,484 for four CT scans, in addition to charges for other procedures. MacNeil contends that the charges for the CT scans were unreasonable under the PIP statute, which provides that hospitals rendering treatment to an injured person covered by PIP insurance “may charge the insurer and injured party only a reasonable amount” for necessary services that “may not exceed the amount the [hospital] customarily charges.” § 627.736(5)(a), Fla. Stat. (2017). He alleges that because of the unreasonable charges for the CT scans, he suffered “significant financial injury.” Specifically, he alleges that PIP covers only 80% of the reasonable charges up to $10,000, so he is responsible for the remaining 20%. He further alleges that the charges prematurely exhausted his PIP benefits, causing him to be liable for additional medical services rendered by third-party providers that would have otherwise been fully or partially covered by his PIP benefits. He seeks a determination as to the reasonableness of the Hospital’s charges as well as their legality under the PIP statute. The Hospital moved to dismiss the complaint arguing that (1) no private right of action exists under the PIP statute between an insured and a health care provider under the facts alleged; (2) MacNeil failed to state a cause of action for declaratory relief; and (3) the scope and operation of the PIP statute should be decided by the Legislature, not the judiciary. For his part, MacNeil responded that (1) a private cause of action is not necessary to sue for 2 declaratory relief, and (2) the PIP statute created a private cause of action. After briefing and argument from counsel, the trial court granted the Hospital’s motion to dismiss, concluding that “[MacNeil] cannot seek a declaratory judgment directly under section 627.736 and no amended set of allegations could cure [the] defect.” The court held that a declaratory judgment action is unavailable to MacNeil because the PIP statute lacks an express or implied private cause of action to enforce its provisions, rendering any declaratory judgment an improper “advisory opinion.” This appeal followed. II. Under Florida’s Declaratory Judgment Act, “[t]he circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” § 86.011, Fla. Stat. (2017). The courts may render declaratory judgments on the existence, or nonexistence: (1) Of any immunity, power, privilege, or right; or (2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action. Id. Additionally, any person “whose rights, status, or other equitable or legal relations are affected by a statute . . . may have determined any question of construction or validity arising under such statute . . . and obtain a declaration of rights, status, or other equitable or legal relations thereunder.” § 86.021, Fla. Stat. (2017). By its express terms, the Declaratory Judgment Act must be liberally administered and broadly construed. § 86.101, Fla. Stat. (2017). 3 Yet while the scope of a court’s jurisdiction to issue a declaratory judgment is broad, “it does have limits—one of which is that courts will not render advisory opinions or give legal advice.” Golfrock, LLC v. Lee Cty., 247 So. 3d 37, 40 (Fla. 2d DCA 2018) (citing May v. Holley, 59 So. 2d 636, 639 (Fla. 1952)). Thus, to state a cause of action for declaratory judgment the plaintiff must show that (1) there is a bona fide dispute between the parties; (2) the plaintiff has a justiciable question as to the existence or nonexistence of some right, status, immunity, power or privilege, or as to some fact upon which existence of such a claim may depend; (3) the plaintiff is in doubt as to the claim; and (4) there is a bona fide, actual, present need for the declaration. Ribaya v. Bd. of Trs. of the City Pension Fund for Firefighters & Police Officers in the City of Tampa, 162 So. 3d 348, 352 (Fla. 2d DCA 2015). The extrastatutory elements requiring a “bona fide dispute” between the parties and a “bona fide need” for the declaration ensure that the proceeding is “judicial in nature” and falls “within the constitutional powers of the courts.” See May, 59 So. 2d at 639; see also Ribaya, 162 So. 3d at 353 (cautioning that “chapter 86 is a statute with ‘special objectives’ that should not be ‘perverted’ by permitting its use as a ‘catch-all’”). III. MacNeil argues on appeal that the trial court erred by dismissing his complaint for the sole reason that the PIP statute does not contain a private cause of action. He contends that the court’s decision directly conflicts with this Court’s holding in City of Apalachicola v. Franklin Cty., 132 So. 3d 1217 (Fla. 1st DCA 2014). In City of Apalachicola, the city sued the county for declaratory and injunctive relief, alleging that the county had failed to comply with requirements of the Florida Governmental Conflict Resolution Act, chapter 164, Florida Statutes. 132 So. 3d at 1218. The city sought a declaration that the county had to participate in the conflict resolution procedures established by the Act. Id. The trial court dismissed the complaint with prejudice 4 because, it ruled, the Act does not create a private cause of action. Id. at 1218-19. On appeal, this Court determined that “[t]he circuit court erred in construing the complaint as asserting a cause of action for relief pursuant to the [Act]. Instead, the complaint seeks declaratory relief, and adequately states a cause of action for such relief.” Id. at 1219. The Court reasoned that the Act expressly provides that if the entities fail to resolve their conflict through the statutory procedures, the entities ‘“may avail themselves of any otherwise available legal right,”’ and that “[a] declaratory judgment is an ‘otherwise available legal right.”’ Id. (quoting § 164.1056, Fla. Stat.). We do not read City of Apalachicola to stand for the broad proposition that an individual can sue for declaratory relief alleging a violation of any statute under which he has no private right of action to enforce its provisions. Nor does City of Apalachicola articulate a per se rule that the existence of a private cause of action is never relevant when determining whether a justiciable claim exists to support a declaratory judgment. In short, City of Apalachicola does not disturb the long-standing requirement that there must be a “bona fide, actual, present, and practical need for the declaration”—in other words, there must be “some immunity, power, privilege or right of the complaining party” dependent upon the issue to be resolved by declaration. See May, 59 So. 2d at 639. Notwithstanding the lack of a private right of action under the PIP statute to determine the reasonableness of the Hospital’s charges and the legality of its conduct, * MacNeil contends that he is entitled to a declaration on these matters because of the existence of unspecified, potentially available civil remedies for the Hospital’s violation of the statute. Cf. Herrera v. JFK Med. Ctr. Ltd. P’ship, 87 F. Supp. 3d 1299, 1308 (M.D. Fla. 2015) (holding that an insured could challenge the reasonableness of a hospital’s charges under the PIP statute under common law theories of * MacNeil does not challenge the trial court’s determination that the PIP statute does not create an express or implied cause of action for an insured to sue a healthcare provider for allegedly unreasonable charges. 5 breach of contract, breach of the implied covenant of good faith and fair dealing, and a violation of FDUTPA), partially rev’d on other grounds, 648 F. App’x 930 (11th Cir. 2016). For support, MacNeil relies in part on Adventist Health System/Sunbelt, Inc. v. Blue Cross & Blue Shield, 934 So. 2d 602 (Fla. 5th DCA 2006). In Adventist Health, a hospital brought a declaratory judgment action seeking an interpretation of a statute requiring the defendant HMO to reimburse the hospital for emergency medical treatment rendered to subscribers of the HMO. 934 So. 2d at 603. The crux of the dispute involved the amount the HMO had to pay the hospital under the statute. Id. The Fifth District reversed the lower court’s dismissal of the action, holding that a declaratory action interpreting the statute was proper because a private cause of action exists to enforce the statute’s terms. Id. at 604. The court went on to note that even assuming a statutory cause of action may not be implied, common law theories are available for redress through the courts. Because a civil remedy exists, whether arising from statute or common law, a request for declaratory relief is authorized because an actual dispute, not merely a hypothetical one, exists between the parties. Id. (internal citation omitted). In so ruling, the court distinguished one of its prior cases, The Florida Physicians Union, Inc. v. United Healthcare of Florida, Inc., 837 So. 2d 1133 (Fla. 5th DCA 2003), where the statute being construed did not expressly or impliedly create a private cause of action to enforce its provisions. There, the Fifth District held that the lower court properly dismissed an action seeking a declaration that the defendant had violated the statute’s terms, finding that the request for declaratory judgment was “merely hypothetical and thus not cognizable.” Id. Apart from Adventist Health, in all the cases cited by MacNeil to support his claim that he is entitled to declaratory relief because of the existence of other potentially available civil remedies, the party seeking declaratory relief has also pleaded the other claims—thus demonstrating that a justiciable controversy existed. See Westside EKG Assocs. v. Found. Health, 932 So. 2d 214, 220 (Fla. 4th DCA 2005) (holding that service providers could bring 6 third-party beneficiary breach of contract and declaratory judgment claims against HMO for violating the prompt pay provision of the HMO Act); Lutz v. Protective Life Ins. Co., 951 So. 2d 884, 890 (Fla. 4th DCA 2007) (reversing dismissal of complaint for declaratory judgment even though the statutes at issue did not create a private cause of action where plaintiff also alleged breach of contract); Payne v. Humana Hosp. Orange Park, 661 So. 2d 1239, 1242 (Fla. 1st DCA 1995) (holding that plaintiff stated a cause of action for return of money had and received and for declaratory judgment); Merkle v. Health Options, Inc., 940 So. 2d 1190, 1200 (Fla. 4th DCA 2006) (reversing dismissal of claim for declaratory relief where a private cause of action was implied under statute and where plaintiff sued for unjust enrichment, quantum meruit, and account stated). In contrast, MacNeil asserted no other cause of action below that would show that a justiciable controversy exists on which to predicate a declaratory judgment claim. He never alleged that he was in doubt about his rights under any contract or that another cause of action depended upon a determination of the reasonableness of the charges under the PIP statute. “Absent a showing of at least a colorable right which would be affected by the requested declaration, dismissal is required.” Webster v. Inch, 286 So. 3d 847, 848 (Fla. 1st DCA 2019). We therefore agree with the trial court that any declaration on whether the Hospital charged unreasonable amounts under the PIP statute would constitute an improper advisory opinion. AFFIRMED. ROBERTS, J., concurs; JAY, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ JAY, J., concurring. 7 I fully concur in Judge Ray’s majority opinion. I write separately to explain why I agree with affirming the dismissal of MacNeil’s complaint without granting him leave to amend. Appellate cases approving the dismissal with prejudice of an initial complaint are “rare bird[s] in the judicial aviary,” Wells Fargo Bank, N.A., v. Bohatka, 112 So. 3d 596, 601 (Fla. 1st DCA 2013), but every so often, one raises its uncommon head. This is such a case. MacNeil did not argue that he was entitled to file a new pleading; instead, his quarrel was focused on the propriety of the dismissal of his original complaint. By not mentioning amendment in either of his briefs, he waived any argument that he should have been given an opportunity to file an amended pleading. While it is tempting to hypothesize why this argument was never made, we must avoid advancing “‘theories . . . which counsel either intentionally or unintentionally . . . chose[] not to mention.’” Doe v. Baptist Primary Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (quoting Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) (on motion for rehearing)). It is not our function “‘to rebrief an appeal.’” Id. We “‘work within the framework of the briefs’” provided. Id. While courts “liberally allow[] parties to amend their pleadings, . . . the burden should be on the parties to make . . . a request.” Parker-Cyrus v. Justice Admin. Comm’n, 160 So. 3d 926, 928 (Fla. 1st DCA 2015). Appellate courts should not act as “standby counsel for the parties.” D.H v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018) (Canady, C.J., dissenting). With limited exceptions, our decisions are confined “to the issues raised . . . .” Torres v. State, 44 Fla. L. Weekly D2307, D2308 (Fla. 5th DCA Sept. 12, 2019) (Eisnaugle, J., concurring). If we bend this rule, we “undermine an important rule of judicial restraint.” Id. Here, MacNeil’s appellate papers are devoid of any argument that he was entitled to amend his complaint. To the extent that the right to amend was discussed at oral argument, it was outside the briefing process. Accordingly, the amendment issue was waived. See Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (“‘Basic principles of due process’—to say nothing of professionalism and a long appellate tradition—‘suggest 8 that courts should not consider issues raised for the first time at oral argument’ and ‘ought not consider arguments outside the scope of the briefing process.’”) (citation omitted); see also CogniTest Corp. v. Riverside Publ’g Co., 107 F.3d 493, 499 n.5 (7th Cir. 1997) (“In a footnote to its reply brief, CogniTest argues that leave of court to file its amended pleading was not required because it had an absolute right under Fed. R. Civ. P. 15(a) to amend its pleading once ‘as a matter of course at any time before a responsive pleading is served.’ . . . Yet CogniTest did not invoke that right before the district court, nor did it do so here in its opening brief. Thus, the issue has been waived.”). _____________________________ Richard Bennett and Peter Bennett of Bennett & Bennett, Coral Gables, Joshua A. Glickman and Shawn A. Heller of Social Justice Law Collective, PL, Dunedin, and Ginny G. Powell and Gillis Edward Powell, Jr. of Powell, Powell & Powell, Crestview, for Appellant. Alan D. Lash, Lorelei J. Van Wey, Michael L. Ehren, and Jonathan L. Williams of Lash & Goldberg LLP, Weston, for Appellee. 9