           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2871
                  _____________________________

RICHARD KERRY ADKISON and
KERRY ADKISON, P. A.,

    Appellants,

    v.

MARGARET MOREY, as personal
representative of the estate of
Charlotte Laughlin,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Washington County.
James B. Fensom, Judge.

                          March 8, 2018


ROWE, J.

     Richard Kerry Adkison and Kerry Adkison, P.A. appeal a
partial final order dismissing their third-party complaint against
Regions Bank. Because they not only failed to preserve their
arguments for appeal but also invited the trial court to rule as it
did, we affirm.

                                  I.

    After Charlotte Laughlin died in 2006, Margaret Morey, the
personal representative of Laughlin’s estate, retained the services
of Adkison and his firm to represent Morey in the probate of the
estate. Five years after retaining their services, Morey discovered
that over $219,000 from the estate’s trust account had been
misappropriated and used to pay bills and operational expenses of
the firm. Morey sued Adkison and the firm for civil theft,
conversion, legal malpractice, and breach of fiduciary duty.
Adkison and the firm denied the allegations raised in Morey’s suit,
and in their amended answer to the complaint, included what was
styled as a “cross-claim” against Regions Bank. They alleged that
the bank, which serviced both the trust account and the firm’s
operating account, breached its fiduciary duty to the firm and was
negligent when it allowed one of the firm’s employees and the
employee’s former spouse to withdraw money from the estate’s
trust account, as well as the firm’s operating account.

     Four years later, Adkison and the firm moved to amend their
“cross-claim” against the bank. Regions sought dismissal of the
“cross-claim,” which it contended was properly styled as a third-
party complaint. Regions asserted it was not a proper third-party
defendant to the action because the bank’s presence was not
necessary for the resolution of Morey’s claims against Adkison and
his firm. The trial court denied the bank’s motion to dismiss, but
granted the motion to amend, determining that the “cross-claim”
should proceed as a third-party action against Regions.

      Adkison and the firm then moved to amend the third-party
complaint for a second time to include a number of new claims
against the bank. The trial court allowed the amendment, and
Regions again moved for dismissal. Regions argued that Adkison
and the firm could not state a claim for contribution, and without
any valid claim for indemnification, contribution, or subrogation,
the third-party complaint should be dismissed with prejudice.
After a hearing, the trial court dismissed the second amended
third-party complaint without prejudice for Adkison and the firm
to raise their claims in a separate action. This timely appeal
follows.

                                II.

    Adkison and his firm appeal the trial court’s order, arguing
that the court erred in dismissing their claims, rather than

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severing the claims. They assert that the statute of limitations on
their claims against Regions ran in 2015, and unless the statute of
limitations were tolled on a legal or equitable basis, a subsequent
action against Regions may be subject to dismissal on statute of
limitations grounds. But Adkison and the firm did not make this
argument in the trial court. See Anheuser-Busch Cos., Inc. v.
Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013) (noting that an
appellate court is “not at liberty to address issues that were not
raised by the parties”). Nor did they argue that the third-party
claims should be severed, rather than dismissed. Nor did they file
a motion for rehearing to present this issue to the trial court before
raising it on direct appeal. See Pensacola Beach Pier, Inc. v. King,
66 So. 3d 321, 324 (Fla. 1st DCA 2011) (holding that an appellant
failed to preserve an issue for review when the trial court’s error
appeared for the first time on the face of the order on appeal and
appellants choose not to file a motion for rehearing).

    It is not our function “to entertain for the first time on appeal,
issues which the complaining party could have, and should have,
but did not, present to the trial court.” Florida Emergency
Physicians-Kang and Assocs., M.D., P.A., v. Parker, 800 So. 2d 631,
636 (Fla. 5th DCA 2001) (citing Abrams v. Paul, 453 So. 2d 826,
827 (Fla. 1st DCA 1983)). Because the argument made on appeal
was never presented to the trial court, it is waived. 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.”).

                                 III.

     Further, in addition to failing to preserve the argument that
their claims against Regions should have been severed rather than
dismissed with prejudice, Adkison and the firm invited the error
of which they now complain. During the hearing on Region’s
motion to dismiss, they suggested to the trial court that their
claims against Regions could proceed in a separate action if the
dismissal was without prejudice, affirmatively stating that “a
dismissal with prejudice . . . would bar this separate action.” And
they suggested to the court that if the action proceeded without
Regions as a party, Adkison and the firm could “still seek
contribution from Regions by filing a separate action.” Thus,

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Adkison and the firm invited the trial court to rule as it did. Muina
v. Canning, 717 So. 2d 550,553–54 (Fla. 1st DCA 1998) (“Under
the invited error rule, a party cannot successfully complain about
an error for which he or she is responsible or of rulings that he or
she invited the court to make.”).

   Accordingly, the trial court’s order dismissing the third-party
complaint against Regions is AFFIRMED.


WETHERELL and JAY, JJ., concur.

                  _____________________________

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


Kerry Adkison, Chipley, for Appellants.

Candy L. Messersmith of Rumberger Kirk & Caldwell, Orlando;
and Nicole Smith of Rumberger, Kirk & Caldwell, P.A.,
Tallahassee, for Appellee.




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