135 So. 3d 545
Fla. Dist. Ct. App.2014Background
- Comins shot two dogs in Orange County, Florida, during an incident involving cattle; the incident was reported by multiple local outlets and followed by video and online activity.
- VanVoorhis published blog posts about the incident under a pseudonym; Comins later learned the blogger’s full identity and sent a Killgore letter to remove threats and personal information.
- Comins filed four defamation counts against VanVoorhis in May 2009; VanVoorhis asserted presuit-notice defenses under Fla. Stat. § 770.01 and counterclaims alleging abuse of process.
- The trial court dismissed the suit for lack of presuit notice, granted leave to amend, and ultimately held that “other medium” includes the internet, requiring presuit notice; it rejected waiver as a basis to defeat notice.
- Comins appealed the presuit-notice ruling; the trial court’s finding that VanVoorhis’s blog falls within “other medium” and the waiver ruling are at issue; the appellate court affirmed.
- The cross-appeal regarding sanctions under 57.105 was also addressed and affirmed without further comment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presuit notice applies to VanVoorhis as a media defendant | Comins argues VanVoorhis is not a media defendant; presuit notice does not apply. | VanVoorhis is a media defendant under the broader interpretation of § 770.01. | Yes; VanVoorhis falls within the statute's protection as an online medium. |
| Whether VanVoorhis waived presuit notice by anonymity | Waiver by anonymity; VanVoorhis conveyed noncompliance. | Waiver by conduct is not established; compliance or waiver arguments lack basis. | Waiver by conduct approved; presuit-notice requirements remain applicable. |
| Whether the internet/blog falls within the definition of 'other medium' under § 770.01 | Blog is not a traditional medium; § 770.01 should not apply. | Internet blogs are within 'other medium' and can trigger presuit notice. | Yes; blog constitutes 'other medium' entitled to presuit notice. |
Key Cases Cited
- Ross v. Gore, 48 So.2d 412 (Fla.1950) (statutory notice as a condition precedent to suits for libel; purpose includes retraction and fair comment)
- Bridges v. Williamson, 449 So.2d 400 (Fla. 2d DCA 1984) (limits of 770.01; nonmedia defendants not clearly exempted by statute)
- Davies v. Bossert, 449 So.2d 418 (Fla. Bd DCA 1984) (770.01 applies to media defendants; nonmedia defendants not entitled to presuit notice)
- Zelinka v. Americare Healthscan, 763 So.2d 1173 (Fla. 4th DCA 2000) (internet postings; private individuals not protected by presuit notice)
- Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376 (Fla. 4th DCA 1997) (protects reporters/editorial writers; broad interpretation of 770.01)