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    Christopher M. COMINS, Appellant/Cross-Appellee, v. Matthew Frederick VANVOORHIS, Appellee/Cross-Appellant.
    No. 5D11-2754.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.

      Frank H. Killgore, Jr., and Christopher M. Harne, of Killgore, Pearlman, Stamp, Ornstein & Squires, P.A., Orlando, for Appellant/Cross-Appellee.
    Marc J. Randazza, of Randazza Legal Group, Las Vegas, NV, Jason A. Fischer, of Randazza Legal Group, Miami, Richard A. Sherman, Sr., of Richard A. Sherman, P.A., Fort Lauderdale, and C. Richard Fulmer, Jr., of Fulmer LeRoy Albee Bau-mann, P.L.C., Fort Lauderdale, for Appel-lee/Cross-Appellant.
   GRIFFIN, J.

In this defamation case, Christopher Co-mins [“Comins”], appeals a trial court order entering partial final judgment in favor of Appellee/Cross-Appellant, Matthew VanVoorhis [“VanVoorhis”], for Comins’s failure to comply with the presuit notice requirement of section 770.01, Florida Statutes (2008). Comins argues that the trial court erred because VanVoorhis is not a “media defendant” and thus is not entitled to presuit notice. Alternatively, Co-mins contends that, even if VanVoorhis had been entitled to presuit notice, Van-Voorhis waived that right by his efforts to remain anonymous. We affirm.

This case arises out of a May 19, 2008 incident that involved Comins. According to various reports prepared by the Orange County Sheriffs Office, at around 4:30 p.m., people began to notify authorities that two wolves or dogs were in a pasture with cattle located near the intersection of State Road 417 and Narcoosee Road. Over the next two hours, the Orange County Sheriffs Office Communications Center received multiple calls. Some witnesses believed, at first, that the dogs were wolves; other witnesses stated that they knew the dogs were domestic animals because the dogs had collars. Witnesses reported observing the dogs circling and cornering the cattle, including a young calf. Some witnesses believed the dogs were just playing; others thought the dogs were acting in an aggressive manner. Eventually, reports came in that a man had shot the dogs. Twenty people were listed as witnesses to the shooting.

Comins, who is friends with the landowner, was driving past the pasture as these events were unfolding, and called to alert the landowner of the situation. According to Comins and the landowner, the landowner told Comins that animals attacking the cattle should be shot. Comins said he went into the pasture, was confronted by the dogs, felt threatened, and shot at the dogs six times. The following narrative was prepared by the Orange County Sheriffs Office in their investigative findings:

After the sixth shot at the dogs, an unknown man (later identified as Christopher Butler [the dogs’ owner]) to Co-mins ran into the pasture to protect and/or take control of the dogs. Statements indicate that Butler was yelling that the dogs were his though Comins said he was not aware that he was the actual owner nor did Comins hear Butler.
Comins looked at this person (Butler) while Butler was moving to cover one of the dogs. Comins then turned around and fired the seventh and final shot at the second dog.
Comins had turned his back on the second dog, placed his gun into his right back pocket and walked eleven steps away from this dog. He then turns around, pulls his gun and fires the seventh shot when the dog attempts to stand up as indicated in the original video.
Where Butler is physically in control of the first dog and the second dog is having difficulty standing or moving far, the need to continue shooting the second dog to protect the cattle is no longer required.
Turning around to shoot the second dog behind Comins’ back while Butler was present was unnecessary per Florida State Statute 828.12 [Cruelty to Animals].

Local news outlets, such as the Orlando Sentinel, WKMG Local 6, WESH Channel 2, and WFTV Channel 9, reported on the incident. Then, in early June 2008, a witness to the incident, who had caught the shooting on camera, posted the video of the shooting onto YouTube. Throughout the summer, the incident continued to be reported in the news. Thousands of people signed an online petition, entitled “Justice for Husky Dogs Shot in Orange County, Florida,” demanding that Comins be charged with animal cruelty. Eventually, in late July, Comins was charged with one count of misdemeanor animal cruelty.

VanVoorhis learned about the incident from a Facebook group that had been created to express outrage over the incident. At this time, VanVoorhis had a bachelor’s degree in sociology from Indiana University, a master’s degree in sociology from the University of Florida, and was working towards his doctoral degree in sociology at the University of Florida. Since 2007, VanVoorhis had maintained a blog, entitled “Public Intellectual,” using the online blog platform, Word-Press. He ran the blog under a pseudonym, M. Frederick Voorhees (his full legal name being Matthew Frederick VanVoo-rhis). VanVoorhis testified in his deposition that he founded the blog in order to “publicly comment on issues of public concern in an intellectual manner without tying my comments to my professional identity.” VanVoorhis testified that he went by a pseudonym to protect his identity because, while a student, he wrote critiques of academia as an institution and its ability to connect with the public. Relying on the video itself and the online news articles reporting the incident, VanVoorhis published the blog posts at issue in this case.

Sometime in early 2009, Comins became aware of VanVoorhis’s blog posts. Comins traced the blog posts to the University of Florida’s computer network and, subsequently, through counsel, sent a letter [the “Killgore letter”] to “M. Frederick Voorhees” c/o the University of Florida on March 23, 2009. In this letter, Comins’s attorney, Frank H. Killgore, Jr. [“Attorney Killgore”], expressed concern over several death threats that individuals had made in the blog’s comments section and over the fact that Comins’s personal and business contact information had been posted in the comments section. Attorney Killgore requested that VanVoorhis delete the blog in its entirety or, at least, remove the death threats and all references to Comins’s contact information. Comins then reported the blog post to the University of Florida Police Department, which contacted Van-Voorhis about Comins’s complaint.

Eventually, Comins obtained VanVoo-rhis’s full legal name and address. On May 13, 2009, Comins filed a four-count complaint against VanVoorhis for libel (Count I), libel per se (Count II), defamation by implication (Count III), and tor-tious interference with a business relationship (Count IV). Thereafter, VanVoorhis filed a counterclaim • against Comins for abuse of process and filed an answer and asserted eleven affirmative defenses to Co-mins’s complaint. At issue here is Van-Voorhis’s fifth affirmative defense that Co-mins failed to comply with the presuit notice requirement of section 770.01 before filing the complaint against him. Section 770.01 provides:

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.

§ 770.01, Fla. Stat. (2008). VanVoorhis also filed a motion to dismiss the lawsuit on this same basis. On September 10, 2010, the trial court held a hearing on the motion to dismiss. Comins’s counsel, Christopher M. Harne [“Attorney Harne”], told the trial court that presuit notice had been sent. Based on this representation, the trial court granted VanVoorhis’s motion to dismiss, but gave Comins leave to amend his complaint to properly plead compliance with the presuit notice requirement.

Comins’s first amended complaint alleged that “Plaintiff complied with Fla. Stat. § 770.01 in an abundance of caution by serving notice in writing on Defendant care of the University of Florida on March 23, 2009, identifying the articles which Plaintiff alleges to be false and defamatory.” Later, Comins filed a second amended complaint, which amended the presuit notice allegation to read:

Defendant is not a media defendant, and therefore Plaintiff was not required to provide him with pre-suit notice before instituting this action. However, even if this Court finds Defendant was entitled to pre-suit notice, which Plaintiff denies, Plaintiff has either satisfied all conditions precedent to bringing this lawsuit or such conditions have been waived or excused by Defendant’s conduct.

On March 1, 2011, VanVoorhis filed a motion for summary judgment on the pre-suit notice issue. The trial court held a hearing on VanVoorhis’s motion for summary judgment and ruled in favor of Van-Voorhis based on Comins’s failure to comply with the presuit notice requirement of section 770.01. The trial court said that “[t]he issue, then, is whether or a[sic] not Defendant’s blog falls under the rubric of ‘other medium’ as used in section 770.01.” Finding that “other medium” does include the internet, the trial court held that Co-mins was required to give VanVoorhis pre-suit notice under section 770.01. The trial court also rejected Comins’s waiver argument as having no factual or legal basis. We agree.

On appeal, Comins argues that the trial court erred by ruling that Comins’s failure to comply with the presuit notice requirement of section 770.01 barred his claims because the section only applies to a “media defendant” and VanVoorhis is not a “media defendant.”

Although the express language of section 770.01 does not limit the type of defendant entitled to presuit notice, “[e]very Florida court that has considered the question has concluded that the presuit notice requirement applies only to ‘media defendants,’ not to private individuals.” Zelinka v. Americare Healthscan, Inc., 763 So.2d 1173, 1175 (Fla. 4th DCA 2000).

The “media defendant” issue arises because of certain language appearing in pri- or decisions of the Florida Supreme Court. In Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1112 (Fla.2008), the court com-merited that “[u]nder Florida’s defamation law, a prospective plaintiff is required to give a media defendant notice five days before initiating a civil action.” However, this language does not necessarily mean that only media defendants are entitled to presuit notice under section 770.01. The line of cases imposing the “media defendant” requirement rely mainly on the Florida Supreme Court’s much earlier opinion in Ross v. Gore, 48 So.2d 412 (Fla.1950).

Section 770.01 was originally enacted in 1933 and, until 1976, applied only to actions brought for publication of a libel in a newspaper or periodical:

Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five days before instituting such action, serve notice in writing on defendant, specifying the article, and the statements therein, which he alleges to be false and defamatory.

§ 770.01, Fla. Stat. (1950) (emphasis added). In Ross v. Gore, the Florida Supreme Court explained that one of the objectives of the Legislature when originally enacting the statute was to “afford to newspapers and periodicals an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication.” 48 So.2d at 415. The issue in Ross was the constitutionality of section 770.01. One of the arguments advanced by the appellant was that the statute violated the equal protection clause of the Federal Constitution because it “grants a special privilege to newspapers and period-icals_” Id. at 414. In response to this argument, the Ross court discussed the purpose of granting newspapers and periodicals such “special privilege”:

The provision for retraction is peculiarly appropriate to newspapers and periodicals, as distinguished from, private persons. There is a valid difference in the classes, in this respect, which is sufficient to sustain the validity of the provision under the ‘equal protection’ clause.

Id.

Another argument advanced by the Ross appellants was that, in the absence of notice and a retraction, their suit for defamation should not have been dismissed but, rather, should have been limited to actual damages. According to the appellants, to construe the section as a condition precedent would be unconstitutional. Id. at 415. In response to this argument, the court held that the clear language of the statute established that notice was a condition precedent to suit. Id. The court reasoned that construing the statute otherwise would “defeat what must have been one of the objectives of the Legislature in enacting the statute.” Id. The court explained that the purpose of section 770.01 was “also to afford to newspapers and periodicals an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication. This objective is a salutary one, and we do not think it constitutes unjust discrimination in favor of newspapers and periodicals.” Id.

The discussion in Ross focused on the rationale for granting newspapers and periodicals the right to retraction. First, the court emphasized that “[t]he public has an interest in the free dissemination of news.” Id. The court stated:

In the free dissemination of news, then, and fair comment thereon, hundreds and thousands of news items and articles are published daily and weekly in our newspapers and periodicals. This court judicially knows that it frequently takes a legal tribunal months of diligent searching to determine the facts of a controversial situation. When it is recalled that a reporter is expected to determine such facts in a matter of hours or minutes, it is only reasonable to expect that occasional errors will be made. Yet, since the preservation of our American democracy depends upon the public’s receiving information speedily — particularly upon getting news of pending matters while there still is time for public opinion to form and be felt — it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer.

Id. In other words, the Ross court determined that it is necessary in a democracy for the people to have speedy access to fact reporting and editorial comment. The Ross court was especially concerned that removing the safeguards of section 770.01 would result in a press that is “so inhibited that its great and necessary function of policing our society through reporting its events and by analytical criticism would be seriously impaired.” Id. at 415.

In 1976, section 770.01 was amended to apply to actions brought for publication or broadcast of a libel or slander in a newspaper, periodical, or other medium. Perhaps the Legislature enacted this amendment to expand the protection of the section to include only radio and television broadcasts. Indeed, at that time, other sections of chapter 770 were amended to include explicit references to radio and television broadcasts. However, the amended language of section 770.01 was not so specific.

In Laney v. Knight-Ridder Newspapers, Inc., 532 F.Supp. 910 (S.D.Fla.1982), Judge King had to decide whether section 770.01 applied to protect the author of an allegedly defamatory letter to the editor that was published by Knight-Ridder Newspapers. The plaintiff in the case had not complied with the section’s presuit notice requirement as to the letter’s author, but argued that the requirement did not apply to nonmedia defendants. Id. at 912.

Judge King observed that:

[T]he provision fails to specify that notice need be provided only to media-defendants. If the legislature did intend to so limit the applicability of this provision, it seems logical that a specific restriction would have been inserted into the statute. One may reasonably infer from the generality of the language, therefore, that the statute requires notice to all potential defendants in an action for libel or slander.”

Id. Moreover, Judge King found that “it would be grossly unfair to construe the statute in such a way as to deny non-media defendants the opportunity to mitigate actual damages or avoid the assessment of punitive damages.” Id. at 913. This is so because “[njotice affords defendants the opportunity to issue a retraction or even to settle the overall conflict, thereby mitigating damages or eliminating litigation altogether. At the very least, notice may afford a non-media defendant the chance to consult with an attorney about legal matters with which (s)he may be extremely unfamiliar.” Id.

In this ruling, Judge King acknowledged that the Florida Supreme Court’s decision in Ross “provides perhaps the strongest support for plaintiffs position.” However, Judge King stated that, “[w]hile the [Foss court] indirectly referred to the statute’s applicability in terms of newspapers and periodicals, it did not specifically describe the parameters of the statute’s applicability, nor, for that matter, provide sufficient justification for its decisions to discuss applicability solely in terms of newspapers and periodicals.” Id. at 912. Rather, “[t]he [Ross court] may very well have discussed the applicability of the statute in these terms simply because the defendants in the case were media-defendants.” Id. at 912 n. 6.

Judge King’s reasoning has since been rejected by other courts addressing this issue. In Bridges v. Williamson, 449 So.2d 400 (Fla. 2d DCA 1984), the Second District noted that the Ross court construed 770.01 “to apply exclusively to suits against newspapers and periodicals, as distinguished from private individuals.” Id. at 401. When section 770.01 was later amended, “the legislature was aware of Ross since it is presumed to be cognizant of the judicial construction of a statute when contemplating changes in the statute.” Id. (citing Seddon v. Harpster, 403 So.2d 409 (Fla.1981)). Thus, “[h]ad the legislature intended to extend the application of the statute to nonmedia defendants, it could have inserted such a provision into the statute at that time.” Id. Rather, “[t]he language of the statute is limited to newspapers, periodicals, and other media. Nowhere does the statute contain the words ‘nonmedia’ or ‘private individuals.’ ” Id.

A week after the Bridges opinion was published, the Third District published its opinion in Davies v. Bossert, 449 So.2d 418 (Fla. Bd DCA 1984), in which it also held that section 770.01 applies only to media defendants. In Davies, the court was confronted with whether the plaintiff was required to follow the 770.01 presuit notice requirement before filing suit for slander over “allegedly defamatory statements made by a private citizen [about a lobster fisherman he believed was stealing lobster from the nets of other fishermen] over an emergency channel of a citizen’s band radio.” Id. at 419. The Davies court held that this non-media defendant was not entitled to presuit notice under section 770.01. Id. at 421. Disapproving of Judge King’s ruling in Laney, the Davies court stated:

Although the issue before the Florida Supreme Court in Ross was different, the court unavoidably recognized that the statute had no application to non-media defendants. The main issue in Ross was whether the statute was discriminatory in that it permitted media defendants to avoid punitive damages by publishing a retraction or apology for libelous statements while not affording the same privilege to non-media defendants. The court did not hold, as does Laney, that section 770.01 applies to media and non-media libelees alike, but recognized that the unambiguous language of the statutory condition precedent applies only to media defendants. Ross, 48 So.2d at 414-15.

Id. at 420. Then, the Davies court examined the 1976 revision of the statute:

The earlier version of section 770.01, which was construed in Ross v. Gore, referred only to publication of a libel in a newspaper or periodical. In 1976, the statute was amended to include reference to (1) “broadcast” (in addition to “publication”), (2) “other medium” (in addition to “newspaper and periodical”),
and (3) “slander” (in addition to “libel”). Ch. 76-123, § 1, Laws of Fla. The following additions were also made to Section 770.02: “or broadcast station” in the section’s heading; “or broadcast” (as an addition to “article”); and a reference to correction, apology, or retraction in the case of a broadcast. Section 770.03 was also amended so as to refer to broadcasting stations in general and not just to radio broadcasting stations. Section 770.04 refers specifically to the civil liability of an “owner, licensee, or operator of a radio or television broadcasting station, and the agents, or employees of any such owner, licensee or operator.” Since no other section of Chapter 770 uses the language “other medium” as found in section 770.01, we can infer reasonably that the legislature intended that term to include television and radio broadcasting stations. There is no logical reason to suppose that section 770.01 contemplates any form of medium not covered by other sections of the chapter. In the absence of legislative history, we can look to earlier enactments and other sections of the present Chapter 770 to determine the intent and meaning of the words “or other medium” in section 770.01. See Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla.1958) (if part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari material, the court will examine the entire act and those in pari material in order to ascertain the overall legislative intent); Wheeler v. Green, 286 Or. 99, 593 P.2d 777, 791 (1979) (in determining whether Oregon’s retraction statute’s reference to “publisher” was limited to a media entity, court looked to other provisions of the statute).

Id.; see also Gifford v. Bruckner, 565 So.2d 887 (Fla. 2d DCA 1990) (citing to Davies for the proposition that “other medium” includes only television and radio broadcasters).

The Davies court’s rationale was implicitly rejected in Nelson v. Associated Press, Inc., 667 F.Supp. 1468 (S.D.Fla.1987). In Nelson, the plaintiff relied on Davies and Bridges to argue that section 770.01 did not apply to dispatches transmitted by the Associated Press over their wire service. Id. at 1473-74. Rejecting the plaintiffs argument, Judge Spellman ruled that the language “other medium” should be read broadly to include wire services like the AP.

In Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376 (Fla. 4th DCA 1997), the plaintiff had successfully argued to the trial court that section 770.01 did not apply to the defendant in the case. On appeal, the court rejected the plaintiffs argument:

To the extent [plaintiffs] argument is based on the fact that defendant is a full-time assistant state attorney as well as a part-time columnist, we discern no logical distinction between defendant and any other columnist. To the extent that plaintiff asserts that the statute is applicable only to actions against the newspaper itself, as opposed to the individuals writing for the newspaper, this restrictive interpretation of section 770.01 is not supported by the language of the statute.

Id. at 1378.

The Mancini opinion mainly concerns the plaintiffs argument that section 770.01 applies only to actions against the newspaper itself. Rejecting this argument, the Mancini court held that interpreting Ross to exclude reporters, editorial writers, and columnists from the protection of 770.01 would be “contrary not only to the plain language of the statute, but to the legislative intent of the statute as expressed in Ross.” Id. The court further stated, “There is nothing in Ross to indicate that in using the term ‘newspaper’ our supreme court was referring only to the entity as distinguished from the individual columnists, reporters and editorial writers who write for the newspaper.” Id. Rather, the Maneini court observed that Ross emphasized that it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer. Id. at 1379 (citing Ross, 48 So.2d at 415). Moreover, the Maneini court noted that “there is nothing in the language of the companion retraction provision, section 770.02, that would limit the protection to the newspaper publisher ....” Id. at 1379.

The Maneini court stressed that its interpretation of the scope of section 770.01 “does not conflict with the series of cases holding the statute does not apply to ‘non-media defendants’ ... [r]ather, the question is what is meant by ‘non-media defendant,’ a term not appearing within the statute, but only in case law.” Id. at 1380. The court explained:

The use of the phrase “non-media defendant” in these cases was not meant to distinguish between individuals and corporations, but rather to separate third parties who are not engaged in the dissemination of news and information through the news and broadcast media from those who are so engaged. In Davies the defendant, found to be a “non-media defendant,” was a private citizen who made the alleged defamatory statements over an emergency channel of a citizen’s band radio. In Bridges the court declined to extend the reach of the statute to protect a private individual whose allegedly libelous statement had been republished by the newspaper. In Gifford the “non-media defendant” was an aerial advertising firm being sued for a banner towed overhead by airplane. Most recently, in [Tobkin ] ... we held that the protection of section 770.01 did not cover individuals who sent letters to The Florida Bar.

According to the Maneini court, the scope of section 770.01’s protection is defined by separating third parties who are not engaged in the dissemination of news and information “through the news and broadcast media” from those who are so engaged.

In Ortega Trujillo v. Banco Central Del Ecuador, 17 F.Supp.2d 1334 (S.D.Fla. 1998), Judge King sought to do just that. In Ortega Trujillo, the defendant — a public-relations firm in the business of public relations and lobbying for its clients— sought protection under section 770.01 for a press release it published that contained allegedly defamatory statements. Rejecting the defendant’s contention that it qualified as a media defendant, Judge King explained that “[b]y definition, all news media disseminates information, but it is a syllogism to conclude ... that all those who disseminate information automatically qualify as news media.” Id. at 1338.

Attempting to define the scope of “news media,” Judge King stated:

The function of the media is to inform and to initiate “ ‘uninhibited, robust, and wide-open’ debate on public issues.” See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

Id. Judge King found that the defendant was in the business of public relations and lobbying, and so could not fall within the definition of media, no matter how “nebulous” that definition is. Id. In particular, the defendant “does not impartially disseminate information. Nor, for that matter, does it issue unsolicited, disinterested and neutral commentary as to matters of public interest, or editorialize as to matters of public interest without being commissioned to do so by its clients.” Id.

Eventually, our courts were confronted with cases involving defamatory statements made over the internet. In Zelinka, 763 So.2d at 1173, the court had to decide whether a plaintiff in a libel action arising out of a posting on an internet “message board” was required to comply with the presuit notice requirements of section 770.01. Ultimately, the court held that the defendant was “a mere internet-using, private individual,” and not a media defendant to which the presuit notice requirements apply. Id.

The facts of Zelinka were as follows:
Respondents, Amerieare Healthscan, Inc., Amerieare Diagnostics, Inc., and Dr. Joseph P. D’Angelo, filed a four-count complaint against petitioner, Robert Zelinka, and other defendants, alleging in counts I and II libel per se and libel per quod based on the publication of allegedly false and defamatory statements on an internet “message board.” The complaint alleges that the board where the messages were posted is maintained for the purpose of transmitting information about Technical Chemicals and Products, Inc., a corporation which was involved in litigation with the respondents. Zelinka was not alleged to be the owner or operator of the web site where the bulletin board was located.

Id. at 1174. The petitioner/defendant argued that the internet is an “other medium” within the meaning of the statute, but the Zelinka court declined to reach that issue. Rather, the court held that “[e]ven if an internet bulletin board was a ‘medium’ within the scope of the statute, no precedent would allow this court to extend the statutory notice requirement to a private individual who merely posts a message on the board.” Id. at 1175. The court characterized the petitioner/defendant in that case as being in “the same position as that of the private individuals in the Davies, Bridges and Gifford cases, whose statements were “broadcast’ to the public, but who themselves were not members of ‘the media.’” Id. However, the Zelinka court did acknowledge, in dictum, that “[i]t may well be that someone who maintains a web site and regularly publishes internet ‘magazines’ on that site might be considered a ‘media defendant’ who would be entitled to notice.” Id.

Such a defendant was found to be entitled to presuit notice in AM Armani Medical, Inc. v. Hennessey, 629 F.Supp.2d 1302 (S.D.Fla.2008). In AM, the defendant was the owner, host, and publisher of a website called the “Hair Restoration Network,” which was identified as being “dedicated to providing information to the consumer public about the hair restoration and transplant industry.” Id. at 1303-04. The defendant claimed that the defamation suit should be dismissed because the plaintiffs had failed to comply with section 770.01. The defendant argued that “notice was required in this case because the ‘other medium’ language used in section 770.01 includes the internet and internet forums such as the website at issue in this case.” Id. at 1307. The plaintiffs, on the other hand, argued that the “other medium” of section 770.01 was intended to include only television and radio broadcasting stations, and thus no notice was required in their ease. Id.

In deciding whether section 770.01 applied to the defendant, Judge Lenard first acknowledged that “[w]hether the internet is included as part of the ‘other medium’ language ... is an issue that has not been definitively resolved by the Supreme Court of Florida ....” However, Judge Lenard found to be persuasive two Florida lower court decisions, Canonico v. Calloway, 35 Med. L. Rptr. 1549 (Fla.Cir.Ct. Feb. 22, 2007), and Holt v. Tampa Bay Television, Inc., 34 Med. L. Rptr. 1540, 1542 (Fla.Cir. Ct. Mar. 17, 2005), aff'd by 976 So.2d 1106 (Fla. 2d DCA 2007). In Canónico, the trial court dismissed the plaintiffs defamation claim relating to statements made on the internet because the plaintiff had not complied with section 770.01. In Holt, the trial court rejected the plaintiffs contention that section 770.01 does not apply to stories published on the internet, even by a media defendant.

Judge Lenard pointed out that “all of the cases cited by Plaintiffs in support of their argument — with the exception of [Ze-linka ] — pre-date, by at least a decade, the use of the internet by the general public, and do not directly address whether the internet is considered in the category of ‘other medium’ as contemplated by section 770.01.” Id. at 1308. Judge Lenard further ruled that Zelinka was inapposite to the case because the Alvi defendant was not a “private individual who merely posts a message on [an internet] board.” Id. Rather, “Plaintiffs have brought suit against a company that allegedly owns, hosts and publishes the offending website, which provides information to the consumer public, and against the principal owner of that website, who is alleged to control the website’s operations.” Id.

Most recently, in Five for Entertainment, S.A. v. Rodriguez, 877 F.Supp.2d 1321 (S.D.Fla.2012), a concert promoter sued the defendants, a Reggaeton musician [“Daddy Yankee”] and his booking agency, for defamation resulting from a press release that the defendants posted on their respective websites. Relying on Alvi, the defendants argued that the publication of the allegedly defamatory statements on their websites fell within the “other medium” language of section 770.01. Id. at 1326. In response, the plaintiffs argued that section 770.01’s protection did not apply to the defendants “simply because technology now enables those individuals to publish information on the internet.” Mat 1326-27.

When deciding the issue, Judge Seitz first pointed out that the parties’ arguments had “unnecessarily confused the issue.” Id. at 1327. Judge Seitz said:

Whether the phrase “other medium” in § 770.01 includes the internet is not the critical issue here, and, in this Court’s view, not even open for debate. That the internet constitutes a “other medium” for the purposes of § 770.01 should be well-settled. See Alvi Armani, 629 F.Supp.2d at 1307. If the defendant in this case was the Miami Herald for example, it would make no difference that the alleged statements were found in the print or the online version of the paper. The medium through which Defendants made the statements then, is not dispositive here. Rather, the issue is whether these Defendants are the type of parties contemplated to receive pre-suit notice under § 770.01.
There is no dispute in Florida about who is entitled to receive pre-suit notice under § 770.01. Florida courts have recognized that the statute does not apply to private parties or nonmedia defendants. Bridges v. Williamson, 449 So.2d 400, 401 (Fla. 2d DCA 1984). The Florida Supreme Court has explained that one of the objectives of the statute was to afford newspapers and periodicals an opportunity to make a full retraction to correct errors and avoid exposure to punitive damages. Ross v. Gore, 48 So.2d 412 (Fla.1950).

Id. “Accordingly, § 770.01 does not extend to nonmedia defendants.” Id. With that stated, Judge Seitz went on to rule on whether the defendants in the case were “nonmedia” defendants, and thus not entitled to the protection of section 770.01. Ultimately, Judge Seitz found that the defendants were “nonmedia” defendants. Specifically, Judge Seitz made the following findings:

Turning to the Complaint, the Court finds no meaningful allegations that the Defendants were engaged in the dissemination of news and information. The Complaint provides that Daddy Yankee posted a press release on his personal website as well as Iearo’s, both of which are available to the public. The Complaint provides no other allegations concerning any other information disseminated from the websites. For example, there is no indication that the websites ever disseminated any other information, whether it be traditional news or simply self-promotional or “infomerical” materials. Assuming that the press release constituted news, the one-time publication of that press release does not render Daddy Yankee or Icaro members of the news media. They are private parties with their own websites who released information about the cancellation of Daddy Yankee’s tour on one occasion. Finding that Daddy Yankee and Icaro were media parties on these facts would abolish any distinction between private parties and members of the media.

Id.

With this emerging legal landscape in mind, we turn to the case here, where the trial court granted summary judgment in favor of VanVoorhis because it determined that the words “other medium” of section 770.01 were expansive enough to include the internet and a blog, and that VanVoorhis’s blog falls under the rubric of “other medium.” In support of this ruling, the trial court cited to the Alvi decision, which applied section 770.01 to a defendant who made defamatory statements on his website, where his website was owned and operated for the purpose of providing consumer information on the hair restoration and transplant industry. Comins argues that the trial court erred by only considering whether the internet blog is a “medium” under section 770.01 and not whether VanVoorhis is a “media defendant.”

Important to the analysis here is the Ross court’s discussion of the legitimate government interest in requiring presuit notice as a condition precedent under section 770.01. In support of its finding that the condition precedent was a valid exercise of the legislature’s power, the court emphasized the need for the free dissemination of news and fair comment thereon in order for the public to obtain as much information about a particular event as possible before forming an opinion. Not only did the court emphasize the importance of the dissemination of facts, but it also emphasized the importance of the dissemination of “fair comment” and “analytical criticism.” The court said that “it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer.” Ross, 48 So.2d at 415 (emphasis added).

In answering the question whether Van-Voorhis’s blog and blog posts come within the purview of the prescribed “other medium” entitled to presuit notice, we look to the Ross decision to determine whether the blog is operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as to matters of public interest. Van-Voorhis contends that blogs like “Public Intellectual” have “stepped into the void left by a shrinking print industry, and perform the same important function — delivering news, information, and commentary to the masses.” On the other hand, Comins characterizes VanVoorhis as merely an individual “writing from his apartment under a pseudonym in between studying for his classes, [who] was under no pressure whatsoever to deliver any information at all, much less to deliver it quickly.”

As early as 2005, Judge Posner discussed the changing face of news media brought about by the internet:

The latest, and perhaps gravest, challenge to the journalistic establishment is the blog. Journalists accuse bloggers of having lowered standards. But their real concern is less high-minded — it is the threat that bloggers, who are mostly amateurs, pose to professional journalists and their principal employers, the conventional news media. A serious newspaper, like The Times, is a large, hierarchical commercial enterprise that interposes layers of review, revision and correction between the reporter and the published report and that to finance its large staff depends on advertising revenues and hence on the good will of advertisers and (because advertising revenues depend to a great extent on circulation) readers. These dependences constrain a newspaper in a variety of ways. But' in addition, with its reputation heavily invested in accuracy, so that every serious error is a potential scandal, a newspaper not only has to delay publication of many stories to permit adequate checking but also has to institute rules for avoiding error — like requiring more than a single source for a story or limiting its reporters’ reliance on anonymous sources — hat cost it many scoops.
Blogs don’t have these worries. Their only cost is the time of the blogger, and that cost may actually be negative if the blogger can use the publicity that he obtains from blogging to generate lecture fees and book royalties. Having no staff, the blogger is not expected to be accurate. Having no advertisers (though this is changing), he has no reason to pull his punches. And not needing a large circulation to cover costs, he can target a segment of the reading public much narrower than a newspaper or a television news channel could aim for. He may even be able to pry that segment away from the conventional media. Blogs pick off the mainstream media’s customers one by one, as it were.
And bloggers thus can specialize in particular topics to an extent that few journalists employed by media companies can, since the more that journalists specialized, the more of them the company would have to hire in order to be able to cover all bases. A newspaper will not hire a journalist for his knowledge of old typewriters, but plenty of people in the blogosphere have that esoteric knowledge, and it was they who brought down Dan Rather. Similarly, not being commercially constrained, a blogger can stick with and dig into a story longer and deeper than the conventional media dare to, lest their readers become bored. It was the bloggers’ dogged persistence in pursuing a story that the conventional media had tired of that forced Trent Lott to resign as Senate majority leader. What really sticks in the craw of conventional journalists is that although individual blogs have no warrant of accuracy, the blogosphere as a whole has a better error-correction machinery than the conventional media do. The rapidity with which vast masses of information are pooled and sifted leaves the conventional media in the dust. Not only are there millions of blogs, and thousands of bloggers who specialize, but, what is more, readers post comments that augment the blogs, and the information in those comments, as in the blogs themselves, zips around blogland at the speed of electronic transmission.
This means that corrections in blogs are also disseminated virtually instantaneously, whereas when a member of the mainstream media catches a mistake, it may take weeks to communicate a retraction to the public. This is true not only of newspaper retractions — usually printed inconspicuously and in any event rarely read, because readers have forgotten the article being corrected — but also of network television news. It took CBS so long to acknowledge Dan Rather’s mistake because there are so many people involved in the production and supervision of a program like “60 Minutes II” who have to be consulted.

Richard A. Posner, Bad News, N.Y. Times, July 81, 2005 (book review), at 1, 10.

Agree or disagree with Judge Pos-ner’s characterization of the travails of “conventional media” and the virtues of blogs, it is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers— and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even-handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoo-rhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

The trial court properly determined that VanVoorhis was entitled to presuit notice under section 770.01. The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern, as suggested in Ross. The trial court correctly entered judgment in favor of VanVoorhis.

AFFIRMED.

LAWSON and COHEN, JJ., concur.

      . In his cross-appeal, VanVoorhis appeals a trial court order denying his motion for sanctions under the trial court’s inherent authority and under section 57.105, Florida Statutes (2011) [the "57.105 motion”]. VanVoorhis argues that the trial court erred by denying the 57.105 motion because Comins's counsel misrepresented to the court that presuit notice under section 770.01 had been given. We affirm the cross-appeal without further comment.

      . WordPress is a free blog and web hosting service, en.wordpress.com/tos/. VanVoorhis’s blog can be located at www.publicintellectual. wordpress.com.

      . VanVoorhis also testified in his deposition that "Public Intellectual” had won "The Thinking Blogger Award” (a weekly blogger award given to a thoughtful blog post) for an article, entitled The McDonaldization of Citizenship. VanVoorhis testified that the article applied a theory from George Ritzer’s book "The McDonaldization of Society” to the idea of citizenship, and what it means to be an active citizen in the United States.

      .Comins contends that the Killgore letter was sufficient to meet the requirements of section 770.01, Florida Statutes; however, this letter fails in its essential function to notify the defendant that the article was false and defamatory.

      . The record shows that it was not very difficult to find and to communicate with Van-Voorhis. Failing any other alternative, Co-mins could have posted a retraction notice in the comments section of VanVoorhis’s blog. We approve the trial court's conclusion as to waiver without further comment.

      . Indeed, the Florida Supreme Court has held that section 770.07, which establishes the point in time when a cause of action for defamation accrues, applies to both media and private individual defendants. Wagner, Nugent v. Flanagan, 629 So.2d 113, 115 (Fla. 1993). The Wagner court acknowledged that chapter 770 primarily addresses media defendants, but the court pointed out that the chapter is broadly titled "Civil Actions for Libel" and that limiting section 770.07 to media defendants only "would allow potentially endless liability since Florida Statutes contains no statute of repose for this particular lort.” Id.

      . The Ross court observed that it was the Legislature's prerogative whether to include radio broadcasting stations within the terms of the statute. Id. at 414.

      . See also Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 999 A.2d 184 (2010), where the Supreme Court of New Hampshire was asked to determine whether a company that operates a website that ranks various businesses in the mortgage industry and allows visitors who register on the site and create usernames to post publicly viewable comments about lenders, was a "news organization” entitled to constitutional protection. In holding that Implode-Explode was a news organization entitled to constitutional protection, the court explained:
      Although our cases discussing the news-gathering privilege have involved traditional news media, such as newspapers, see, e.g., Keene Pub. Corp., 117 N.H. at 960, 380 A.2d 261, we reject Mortgage Specialists’ contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting.

        Id. at 189.

      . See Wikipedia, Blog, http://en.wikipedia/ wiki/Blog (as of March 24, 2014, 15:29 GMT).


source: Caselaw Access Project

author: SLEET, Judge.

license: Public Domain

text:
    Michael BARFIELD, Appellant, v. SCHOOL BOARD OF MANATEE COUNTY, Appellee.
    No. 2D13-2005.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.
    Andrea Flynn Mogensen, Sarasota, for Appellant.

      Thomas M. Gonzalez, Tampa, for Appel-lee.
   SLEET, Judge.

Michael Barfield appeals the trial court’s order denying declaratory relief and access to public records. He raises two issues on appeal. First, he argues that the trial court erred in concluding that several requested items contained in a School Board litigation report were exempt under section 119.071(l)(d), Florida Statutes (2012). Second, Barfield argues that the School Board policy of suspending an administrative investigation while a corresponding criminal investigation is pending does not preempt the statutory presumption that an administrative investigation is presumed inactive after sixty days.

As to the first issue, we reverse because the School Board failed to prove its burden of entitlement to the exemption under 119.071(l)(d). We affirm the second issue without further comment because the School Board offered uncontroverted evidence that it had a reasonable, good faith anticipation that an administrative finding would be made in the foreseeable future. See § 1012.31(3)(a)(l), Fla. Stat. (2012).

I.Barfield’s Public Records Request and Complaint

On March 27, 2013, Barfield made a written public records request via email for the unredacted version of a document titled “School Board of Manatee County, List of Current/Pending Closed Cases.” In his records request, Barfield requested the School Board provide in writing any exemption that it claimed for redactions made to any portion of the document.

On March 28, 2013, the School Board provided Barfield with the requested record, which contained numerous redactions. The first page of the redacted report stated: “WARNING: This memo contains material exempt from public disclosure Pursuant to Section 119.071(l)(d) Florida Statutes (2011). Do not disclose without consulting with the School Board Attorney.” The School Board’s attorney, John Bowen, offered to discuss any issue of exemption with Barfield.

Dissatisfied with the School Board’s response, Barfield conducted research on the School Board’s website concerning the minutes of School Board meetings in October 2012 and January 2013. He determined that two litigation matters involving School Board employees Hank Swick and Ricardo Hernandez, which had been redacted from the report, were concluded with a settlement agreement prior to his request for the records.

On April 9, 2013, Barfield filed his action for declaratory relief in which he alleged that the School Board violated the Public Records Act based upon the School Board’s alleged failure to provide a completely unredacted litigation report. The trial court conducted an evidentiary hearing and an in camera review of the unredacted report. Thereafter, the court determined the School Board’s stated exemption was applicable and entered an order denying declaratory relief.

II. Standard of Review

Because this issue involves statutory construction, we review the trial court’s ruling de novo. See Wagner v. Orange Cnty., 960 So.2d 785, 787 (Fla. 5th DCA 2007).

III. The School Board Failed to Prove the Records Were Exempt

The public records law expressly states that “[i]t is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person.” § 119.01(1), Fla. Stat. (2012). Accordingly, the public records law “is to be construed liberally in favor of openness, and all exemptions from disclosure are to be construed narrowly and limited to their designated purpose.” City of Riviera Beach v. Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994). “[W]hen in doubt the courts should find in favor of disclosure rather than secrecy.” Bludworth v. Palm Beach Newspapers, Inc., 476 So.2d 775, 779 n. 1 (Fla. 4th DCA 1985). The governmental agency claiming the benefit of an exemption bears the burden of proving its entitlement to the exemption. See Barfield v. City Ft. Lauder-dale Police Dep’t, 639 So.2d 1012, 1015 (Fla. 4th DCA 1994). An individual’s reason for requesting a public record is irrelevant. See Warden v. Bennett, 340 So.2d 977, 978 (Fla. 2d DCA 1976).

The School Board relied upon the exemption set forth in section 119.071(l)(d)(l), which provides in part:

A public record that was prepared by an agency attorney ... or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation ... or that was prepared in anticipation of imminent civil or criminal litigation ... is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation.

At the hearing the School Board attorney, John Bowen, testified that he provided a litigation report of pending and closed litigation to the School Board on a quarterly basis and such report contained a summary of the litigation and included his mental impressions and conclusions. He testified that the exemption did not apply to cases that were concluded and indicated it on the reports by a designation of “CASE CLOSED.” However, he was never asked by counsel for the School Board whether the Swick and Hernandez cases were open and pending at the time of Barfield’s records request. On cross-examination, Bowen admitted that both cases were concluded prior to Barfield’s request, but that he invited Barfield to contact him and “let [me] know if he disagrees with anything and that I would, I would consider those objections and basically did not refuse to give it to him.”

As the trial court’s order reveals, the basis for finding these records exempt was the fact that the School Board did not include the designation “CASE CLOSED” on these two cases. This cannot be reconciled with the testimony of the School Board attorney, which clearly demonstrated that these cases were concluded and the exemption did not apply. The operative language of the statute is “until the conclusion of the litigation.” The “CASE CLOSED” designation was not dispositive. Hence, the School Board, through its attorney, improperly shifted the burden of proof to Barfield to prove that the exemption did not apply. The School Board shouldered this burden at all times and failed to produce any evidence that these cases were pending and open and protected by the exemption when Barfield made his public records request. See Woolling v. Lamar, 764 So.2d 765, 768 (Fla. 5th DCA 2000) (“An agency asserting the benefit of an exemption has the burden of establishing its entitlement to that exemption.”). Accordingly, we reverse and remand for the trial court to order the School Board to disclose those records.

Affirmed in part and reversed in part.

DAVIS, C.J., and SILBERMAN, J., Concur.

      . As noted above, the School Board presented sufficient evidence to demonstrate that the exemption applied to the records relating to the administrative investigation.


author: VILLANTI, Judge.

text:
    FI-TAMPA, LLC; Themis Health Management, LLC, n/k/a Themis Health Services, LLC; Airamid Health Management, LLC, n/k/a Airamid Health Services, LLC; and Debra Howe, Appellants, v. Cynthia T. KELLY-HALL, as Personal Representative of the Estate of Altamese M. Kelly, Deceased, Appellee.
    No. 2D13-3715.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.

      Amy L. Christiansen of Spector Gadon & Rosen, LLP, St. Petersburg, for Appellants.
    Isaac R. Ruiz-Carus, Donna K. Hanes, and Megan L. Gisclar of Wilkes & McHugh, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

FI-Tampa, LLC, and the other named appellants (collectively referred to as FI-Tampa) appeal the nonfinal order of the trial court denying their motion to compel arbitration. Cynthia T. Kelly-Hall, as personal representative of the Estate of Altamese M. Kelly (the Estate) filed a three-count complaint in circuit court. Count one alleged nonlethal negligence damages; count two alleged lethal negligence damages; and count three alleged a wrongful death cause of action. FI-Tampa filed a motion to compel arbitration pursuant to the arbitration agreement that Al-tamese Kelly (Kelly) signed when she was admitted to the Rehab and Healthcare Center of Tampa nursing home. The trial court, after conducting a hearing, entered an order denying the motion. Because we conclude that there was a valid written agreement to arbitrate, we reverse the order on appeal and remand with directions to the trial court to enter an order compelling arbitration.

The complaint alleged that Kelly was admitted into the FI-Tampa operated nursing home in July 2011. Three days later, she signed the admissions paperwork, including the arbitration agreement at issue (the Agreement). The Agreement states that both the resident and the facility are giving up the right to go to a court of law for, inter alia, all negligence, tort, or statutory claims, and that such disputes will be resolved by binding arbitration. Although each party is required to pay its own attorney’s fees and any expenses associated with producing witnesses, the costs of the arbitration are to be borne equally by the parties. The Agreement sets forth the following in regard to the administration of the arbitration:

At the option of either the party commencing arbitration or by stipulation of the parties, the arbitration shall be administered pursuant to the procedures of the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules or pursuant to the procedures of JAMS under its Comprehensive Arbitration Rules and Procedures in effect at the time of the arbitration.... If either AAA or JAMS are unable or unwilling to serve as administrator, the parties shall select another independent and impartial entity that is regularly engaged in providing arbitration services to serve as administrator.

(Footnote added.)

In opposition to the motion to compel arbitration, the Estate submitted the sworn affidavit of the personal representative averring that the Estate had no assets and that it could not afford to pay any arbitration fees whatsoever. The Estate also submitted a copy of AAA’s Healthcare Policy Statement indicating that after January 1, 2003, it would no longer accept the administration of cases involving individual patients without a postdispute agreement to arbitrate. Additionally, the Estate submitted copies of JAMS’ procedures, which require the payment of fees prior to the arbitration, otherwise the proceedings could be suspended or terminated. If a party does not pay the fees and expenses prior to the hearing, that party could be prohibited from offering evidence of an affirmative claim.

No other evidence or witness testimony was presented at the hearing on the motion to compel arbitration. The parties relied on the Agreement itself and the items submitted by the Estate. Fl-Tampa argued that Kelly entered into a valid arbitration agreement which was not unconscionable, nor was it in violation of public policy. The Estate contended that the Agreement violated public policy because it provided that the arbitration fees be borne equally. Although the Estate presented this argument in terms of a public policy violation, the underlying premise was that in this particular instance arbitration would be prohibitively expensive. The Estate also contended that the terms of the Agreement were impossible to perform because AAA would no longer accept the administration of cases involving an individual patient without a postdispute agreement to arbitrate.

The written order denying the motion to compel arbitration contained no findings. However, following the argument of the parties at the hearing, the trial court made the following oral findings:

I am very persuaded by ... the fact that an affidavit had been submitted by the ... personal representative.... It’s a short affidavit, and basically she says that the estate of Altamese Kelly has assets in the amount of zero dollars.
And based on that, based on the dicta in the Supreme Court of the United States opinion and on the other case that counsel cited and on the impossibility of AAA doing it, I’m going to deny the motion to compel arbitration.

The United States Supreme Court case the trial court referred to was Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), wherein the Court acknowledged in dicta that “[i]t may well be that the existence of large arbitration costs could preclude a litigant ... from effectively vindicating her federal statutory rights in the arbitral forum.” Apparently based on this dicta, the trial court orally denied the motion to compel arbitration on the ground that arbitration would be prohibitively expensive for the Estate. It also denied the motion on the basis of impossibility of performance.

On appeal, Fl-Tampa first contends that the trial court failed to undertake a proper unconscionability analysis. The court in Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999), held:

Under both federal statutoi*y provisions and Florida’s arbitration code, there are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitra-ble issue exists; and (3) whether the right to arbitration was waived.

If an arbitration agreement were unconscionable, it would not pass the first element of the Seifert test because the agreement would not be a valid one. This court in Zephyr Haven Health & Rehab Center, Inc. v. Hardin, 122 So.3d 916, 920 (Fla. 2d DCA 2013), stated:

To succeed in claiming that a contractual provision is unconscionable, a party must demonstrate both procedural and substantive unconscionability. Orlan Exterminating Co. v. Petch, 872 So.2d 259, 264 (Fla. 2d DCA 2004). Procedural unconscionability addresses “the manner in which the contract was entered,” including “consideration of facts such as the relative bargaining power of the parties and their ability to understand the contract terms.” Id. at 265. Substantive unconscionability, on the other hand, requires assessment of the contract’s terms to “determine whether they are so ‘outrageously unfair’ as to ‘shock the judicial conscience.’ ” Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284-85 (Fla. 1st DCA 2008) (quoting Belcher v. Kier, 558 So.2d 1039, 1048 (Fla. 2d DCA 1990)). Where the party alleging unconsciona-bility establishes only one of the two prongs, the claim fails.

Importantly here, the Estate did not argue below that the arbitration agreement was unconscionable, and it presented no evidence whatsoever of procedural uncon-scionability. Although the Estate’s claim that it was unable to pay the financial costs of arbitration could be considered under the substantive unconscionability prong, see id., it would be difficult to establish that a term in an arbitration agreement which requires that the costs of arbitration be borne equally by the parties, standing alone, is so outrageously unfair as to shock the judicial conscience.

Nevertheless, in denying the motion to compel arbitration, the trial court orally found that the cost of arbitration was prohibitively expensive for the Estate. Although the costs of arbitration may be a basis for determining that an agreement to arbitrate is substantially unconscionable, since Green Tree the issue of the prohibitive costs of arbitration has developed into a separate defense to the enforcement of an arbitration agreement. See Zephyr Haven, 122 So.3d at 921-22. “[W]here ‘a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.’ ” Id. at 921 (quoting Green Tree, 531 U.S. at 92, 121 S.Ct. 513). In determining whether the costs of arbitration in a fee splitting arrangement are so prohibitive as to render the agreement unenforceable because it denies the plaintiff access to the arbitral forum, a case-by-case analysis is appropriate. Id. at 922. The focus is on the claimant’s ability to pay the arbitration fees and costs, the expected cost differential between arbitration and litigating in court, and whether the cost differential is so substantial as to deter the bringing of the claims. Id. In order to invalidate the arbitration agreement, the plaintiff, at an evidentiary hearing, must show the expected cost of arbitrating the specific claim is greater than litigating it and that the cost of arbitration would be prohibitively expensive. Id.

The court in Zephyr Haven reversed the order of the trial court denying the motion to compel arbitration and remanded with directions to compel arbitration. Id. at 923. The court determined that Hardin, the plaintiff nursing home patient, had not met her burden under Green Tree because she did not establish that the likely expense of arbitration would exceed the likely expense of litigation. Id. at 922. The court also noted that Hardin did not refute the contention that she was being represented on a contingency basis with counsel advancing all costs, nor did she present authority that this would not be relevant to the issue of whether the costs of arbitration were prohibitively expensive. Id. at 923.

In this case, the Estate presented evidence only of JAMS’ fee schedule, but no evidence of the expected cost of arbitrating its specific claims or the expected cost of litigation. The self-serving affidavit of the personal representative averred that the Estate “cannot afford to pay any arbitrator fees whatsoever.” Yet the Estate was litigating in the trial court and was represented by counsel when it sought to set aside the arbitration agreement. As in Zephyr Haven, the Estate did not refute Fl-Tampa’s contention that it was being represented on a contingency basis with counsel advancing all costs. We therefore conclude that the Estate did not meet its affirmative burden of establishing that the costs of arbitration would likely exceed the costs of litigation and that the costs of arbitration were prohibitively expensive in this instance.

The Estate also argued at the motion hearing, and further contends on appeal, that the Agreement violated public policy. However, the trial court did not orally find that the Agreement violated public policy, and it clearly does not. The court in Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 464-65 (Fla.2011), concluded that “if an arbitration agreement violates public policy, no valid agreement exists.” In that ease, as in this case, the plaintiff filed a complaint alleging negligence on the part of the defendant nursing home. Id. at 458. The court held that the arbitration agreement was against public policy because it effectively limited certain statutory remedies created by the Legislature to protect the rights of nursing home residents. Id. at 473. The arbitration agreement in Shotts stated that the arbitrators had no authority to award punitive damages. Id. at 471. On its face, this eroded access to specific statutory remedies provided by sections 400.022 and 400.023, Florida Statutes (2003). Id. at 474.

In the present case, the Agreement did not limit any specific statutory remedies created by the Legislature. The Estate contends that the Agreement violated public policy because the costs of arbitration prohibited Kelly from effectively vindicating her statutory rights. The Supreme Court, in citing to Green Tree for the principle that the existence of large arbitration costs could preclude a litigant from effectively vindicating her statutory rights, noted that “the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” Am. Express Co. v. Italian Colors Rest., — U.S. -, 133 S.Ct. 2304, 2311, 186 L.Ed.2d 417 (2013). In this case, no evidence whatsoever was elicited to show that the costs of arbitration were so clearly prohibitive as to prevent any resident of the nursing home from pursuing her statutory remedies. An arbitration agreement that violates public policy typically would limit the statutory remedies of all the nursing home residents bound by the agreement, not just the remedies of a particular resident based on her economic circumstance. Thus, standing alone, the fact that a particular litigant cannot afford to arbitrate her claims does not establish that an arbitration agreement, which requires cost sharing and the payment of costs prior to the hearing, violates public policy. Inarguably, all of the statutory remedies provided by section 400.023, Florida Statutes (2011), are still available to the Estate in the arbitral forum.

Finally, as noted above, the trial court also orally ruled that the Agreement was impossible to perform based on AAA’s Health Care Policy Statement that it does not accept the administration of cases involving individual patients unless there is a postdispute agreement to arbitrate. However, as noted in Zephyr Haven, impossibility of performance is a defense to nonperformance and refers to situations where the purpose for which the contract was made has become impossible to perform. Id. at 920. Here, there has been no showing that it is impossible to arbitrate the Estate’s claims because of AAA’s Healthcare Policy Statement. Furthermore, the Agreement states only that the arbitration be administered pursuant to the procedures of AAA or JAMS, not that one of the two must conduct the arbitration procedure. There was no evidence presented at the hearing to establish that JAMS was not available to conduct the proceedings, neither was there any evidence to establish that another entity that conducts arbitrations could not do so in accordance with AAA procedures. Therefore, it is still possible to arbitrate the claims raised by the Estate under the terms of the arbitration agreement. Accordingly, whether the issue is framed in terms of an unconscionability analysis, a Green Tree prohibitive cost analysis, or one of impossibility of performance, the trial court properly considered the arguments raised by the parties but erred in denying the motion to compel arbitration.

Reversed and remanded with directions to the trial court to enter an order compelling arbitration.

NORTHCUTT and WALLACE, JJ., Concur.

      1. "JAMS” is an acronym for Judicial Arbitration and Mediation Services.

      . In fairness to the trial court, we note that this court’s opinion in Zephyr Haven, which considered unconscionability, the prohibitive cost of arbitration, and impossibility of performance as defenses to the enforcement of an arbitration agreement, issued subsequently to the issuance of the order on appeal in this case.


author: LaROSE, Judge. ALTENBERND, Judge,

text:
    Leydiana SANTIAGO and Armando Ocasio, individually and as the parents and natural guardians of Z.O.S., Appellants, v. Marisa BAKER, M.D., and Women’s Care Florida, LLC, d/b/a Lifetime Obstetrics and Gynecology, Appellees.
    No. 2D13-4088.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.

      George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, for Appellants.
    Jason M. Azzarone, James D. Wetzel, and Louis J. La Cava of La Cava & Jacobson, P.A., Tampa, for Appellees.
   LaROSE, Judge.

Leydiana Santiago and Armando Ocasio, the parents and natural guardians of the child, Z.O.S., sued Dr. Marisa Baker and Women’s Care Florida, LLC, d/b/a Lifetime Obstetrics and Gynecology (collectively, Lifetime), for medical malpractice. Tragically, Z.O.S. suffers from severe birth defects allegedly caused by a drug that Ms. Santiago resumed taking to treat a chronic disease. According to the complaint, upon becoming a new patient at Lifetime, Ms. Santiago informed the medical staff that she and her husband were planning to have a second child. Later, an over-the-counter pregnancy test taken by Ms. Santiago yielded a positive result. On two visits several days later, however, Lifetime advised her that the pregnancy was nonviable; Lifetime recommended a dilation and curettage, which Ms. Santiago declined. Thereafter, Ms. Santiago resumed taking the drug, allegedly believing that spontaneous passage of the fetus would occur. She also alleged that she was unaware of the possible adverse effects the drug might have on a fetus. As noted above, Z.O.S. was born.

When she became a Lifetime patient, Ms. Santiago signed an arbitration agreement which scope covers the claims asserted in the complaint. She executed the agreement prior to Z.O.S.’s birth, indeed, prior to the child’s conception. After the complaint was filed, Lifetime successfully moved to compel arbitration. Ms. Santiago and Mr. Ocasio challenge the trial court’s nonfinal order. We have jurisdiction, see Fla. R. App. P. 9.130(a)(3)(C)(iv), and affirm.

Ms. Santiago and Mr. Ocasio argue that the arbitration agreement violates the State’s public policy reflected in the medical malpractice statutes (the Act). See chapter 766, Fla. Stat. (2011). More specifically, they claim that the Act requires the resolution of malpractice claims exclusively through statutory voluntary binding arbitration or by trial. Lifetime contends that the Act sweeps less broadly. We agree.

Ms. Santiago and Mr. Ocasio never requested voluntary statutory arbitration, thus they never invoked the protections of section 766.207, which provides, in part, as follows:

(2) Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel. Such election may be initiated by either party by serving a request for voluntary binding arbitration of damages within 90 days after service of the claimant’s notice of intent to initiate litigation upon the defendant....
(7)(f) The defendant shall pay the claimant’s reasonable attorney’s fees and costs, as determined by the arbitration panel, but in no event more than 15 percent of the award, reduced to present value.
(g) The defendant shall pay all the costs of the arbitration proceeding and the fees of all the arbitrators other than the administrative law judge.
(h) Each defendant who submits to arbitration under this section shall be jointly and severally liable for all damages assessed pursuant to this section.

Ms. Santiago willingly signed the arbitration agreement. Our record reflects no coercion or duress. We find nothing in the record suggesting that the agreement is procedurally or substantively unconscionable. The agreement clearly specifies that the parties waive the right to a jury trial and consent to arbitrate all claims arising out of or related to medical care and treatment. Unlike the provisions of section 766.207, the agreement provides that the parties shall share the arbitration expenses equally.

Ms. Santiago and Mr. Ocasio insist that Franks v. Bowers, 116 So.3d 1240 (Fla. 2013), compels reversal. They read Bowers broadly to hold that if neither party seeks arbitration under section 766.207, the malpractice claim cannot be arbitrated at all. They contend that the arbitration agreement lessens their rights under the Act and is inconsistent with the Act’s purpose and public policy.

Bowers disapproved an arbitration provision that failed to follow the Act’s requirements. The supreme court held that any agreement that seeks to enjoy the benefits of the arbitration provision under the statutory scheme must necessarily adopt all of its provisions. Id. at 1248. Here, the parties never invoked the statutory arbitration scheme.

Critically, Bowers did not hold that all private arbitration agreements are void as against public policy. Indeed, the supreme court noted that the Act

does not preclude all arbitration — and, in fact, encourages arbitration under the specified guidelines — and that our decision here is fact-specific pertaining only to the particular agreement before us and does not prohibit all arbitration agreements under [the Act.]

Id. at 1249-50. Indeed, nothing in Bowers “impede[s] the general enforceability of agreements to arbitrate.” Id. at 1251.

Moreover, nothing in the Act specifically prohibits parties from arbitrating their claims by private agreement outside the statutory scheme.

On the record before us, we do not find the agreement void as against public policy. We must also reject Ms. Santiago’s and Mr. Ocasio’s argument that Bowers categorically precludes private binding arbitration agreements under the Act.

Affirmed.

NORTHCUTT, J„ Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

On July 4, 1776, in deciding to declare independence from a king who was regarded as a despot, Thomas Jefferson and John Adams provided a list of grievances that justified the revolutionary decision. One of those grievances stated: “For depriving us in many cases, of the benefits of Trial by Jury.” The Declaration of Independence para. 20 (U.S.1776).

After a long and painful war for independence, we placed the Seventh Amendment into our federal constitution to assure that in suits at common law with a value exceeding twenty dollars, “the right of trial by jury shall be preserved.” U.S. Const. Amend. VII. Florida went a step farther declaring: “The right of trial by jury shall be secure to all and remain inviolate.” Art. I, § 22, Fla. Const.

Typically, a person can waive a constitutional right only by a knowing and intelligent decision. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). But somehow in deference to the supposed economic efficiency of arbitration, our society seems to be more and more willing to allow the use of form contracts, not subject to negotiation, that force patients, the elderly, the marginally literate, and ordinary consumers of everyday products to waive their constitutional right to trial by jury in common law cases — before the common law cause of action even exists — in order to receive basic goods and services. As this case demonstrates, this occurs even when the people have never personally entered into agreements of any sort.

Leydiana Santiago went to see Dr. Marisa Baker in January 2011. She signed an arbitration agreement, apparently on her first visit. Her husband did not sign the agreement. Z.O.S. had not even been conceived, much less born, when Ms. Santiago signed this agreement.

The agreement states:
It is the intention of the parties that this Agreement bind all parties whose claims may arise out of or relate to treatment or services provided by the provider of medical services, including the patient, the patient’s estate, any spouse or heirs of the patient, any biological or adoptive parent of the patient and any children of the patient, whether born or unborn, at the time of the occurrence giving rise to the claim. In the case of any pregnant mother, the term “patient” herein shall mean both the mother and the mother’s expected child or children.

This agreement may reflect Dr. Baker’s “intention” to require her patients to fore-go their constitutional rights in order to receive medical service. It may be binding on Leydiana Santiago. It may even bind someone whose common law claim is derivative of Ms. Santiago’s claim. But Armando Ocasio has a claim as parent and natural guardian of Z.O.S. Mr. Ocasio did not sign this agreement and he received no consideration for this agreement. By voting to enforce this agreement, I cannot help feeling that I am violating his constitutional right to a trial by jury.

Juries are not a relic of our history. In both civil and criminal cases, juries serve as a check upon the concentration of power in judges and other members of the political and economic elite. As Floridians, we have constitutionally protected as “inviolate” the right to trial by jury not because it is efficient or tidy, but because the participation of ordinary citizens is essential to a healthy balance of power within a democracy.

Somehow, Z.O.S. waived an inviolate right to trial by jury before conception and before this infant had a common law cause of action to be litigated. I am convinced that the holding in Global Travel Marketing, Inc. v. Shea, 908 So.2d 392, 405 (Fla. 2005), supports this outcome in this case. As the court’s opinion correctly notes, the issues preserved by trial counsel in the trial court also have limited the ability of Z.O.S’s counsel to pursue this issue on appeal.

But I obey what appears to be the rule of law without any enthusiasm and with a fear that I have disappointed Thomas Jefferson and John Adams.

      . Ms. Santiago and Mr. Ocasio do not raise the issue of the extent to which a parent or legal guardian can bind a minor — in this case an unconceived child at the time of the agreement — to arbitration. See Global Travel Mktg., Inc. v. Shea, 908 So.2d 392, 405 (Fla. 2005) (holding that an arbitration agreement incorporated into a commercial travel contract is enforceable against the minor or minor's estate in a tort action arising from the contract). We also note that they raise no constitutional challenge to the arbitration agreement. Nor does Mr. Ocasio challenge on appeal the extent to which he may be bound by the arbitration agreement.


author: SILBERMAN, Judge.

text:
    Nathan PATTERSON, Appellant, v. TEAGUE FINANCIAL GROUP, INC., Appellee.
    No. 2D13-3588.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.

      E. Blake Paul of Peterson & Myers, P.A., Lakeland, for Appellant.
    Elizabeth M. Rodriguez of FordHarri-son LLP, Miami, and Edward B. Carlstedt of FordHarrison LLP, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Nathan Patterson seeks review of the order denying his motion to dismiss or to transfer based on improper venue. The underlying action was filed by Teague Financial Group, Inc., alleging that Patterson breached his contract as a life insurance sales agent by failing to reimburse Teague Financial for premiums that it had refunded to policy holders. The trial court concluded that venue was proper in Hillsbor-ough County under the “place of payment” rule. We conclude that the place of payment rule is inapplicable and reverse.

When a complaint alleges a breach of contract for failing to pay money due and the contract does not specify where payment is to be made, the place of payment rule provides for venue in the county where the creditor resides. Suncoast Home Improvements, Inc. v. Robichaud, 106 So.3d 969, 972 (Fla. 2d DCA 2013); Koslow v. Sanders, 4 So.3d 37, 38 (Fla. 2d DCA 2009). However, the place of payment rule does not apply when the damages sought in the breach of contract action are unliquidated. Robichaud, 106 So.3d at 972. Damages are unliquidated if the complaint does not seek recovery of a specific sum and the damages must instead be determined through the presentation of evidence. Id.

The parties’ contract does not specify where Patterson was to make any payments reimbursing Teague Financial for premiums that it had refunded to policy holders. The amended complaint relies on the place of payment rule and alleges that venue is proper in Hillsborough County because payment is due there. It claims that Patterson owes Teague Financial “at least” $50,228.73 for premiums it had refunded. It also states that “[t]his figure may increase as additional premiums are refunded.” In the prayer for relief, the complaint requests “judgment against [Patterson] at least in the amount of $50,228.73, with interest thereon.”

Patterson filed a motion to dismiss in which he argued that the allegations in the complaint are not facially sufficient to support venue in Hillsborough County. Patterson asserted that the place of payment rule does not apply because the damages sought are unliquidated. Instead, Patterson argued that under section 47.011, Florida Statutes (2012), venue is proper in Polk County because he is from Polk County and had conducted all of his business under the contract in Polk County. He filed an affidavit in which he attested to these facts.

Teague Financial filed a response in which it continued to assert that venue was proper in Hillsborough County under the place of payment rule. Teague Financial attached the affidavit of managing partner Joe Teague in which he averred that Patterson’s debt was due in Hillsborough County. But the affidavit did not address the amount of damages that were due, and Teague Financial did not provide any additional evidence regarding damages.

The trial court found that the damages were liquidated and that venue was proper in Hillsborough County under the place of payment rule. On appeal, Patterson argues that the trial court erred in determining that the damages sought in the complaint are liquidated. This court conducts a de novo review of the trial court’s legal conclusions resolving this question. See Robichaud, 106 So.3d at 971.

As previously noted, the amended complaint asserts that Patterson owes “at least” $50,228.73 and requests payment for any additional premiums that are refunded. Teague Financial filed no evidence addressing damages or establishing that the amount sought for these additional premiums is a sum certain. Because evidence will need to be presented at trial regarding the total damages that Teague Financial seeks to recover, including premiums refunded after the filing of the complaint, the damages Teague Financial seeks are unliquidated.

We reject Teague Financial’s argument that Robichaud requires a different result. There, the complaint alleged that the defendant owed money for residential repairs it had performed, and the plaintiff attached the contract and an invoice reflecting a final sum due. Robichaud, 106 So.3d at 971. This court held that the damages were liquidated because the complaint sought a sum certain and included an invoice setting forth that amount. Id. at 972. But Robichaud did not involve an allegation that the defendant owed “at least” a specified amount plus additional debts that might accrue after filing. And in this case, unlike in Robichaud, Teague Financial did not attach an invoice reflecting a final sum due.

Teague Financial also raises a Tipsy Coachman argument asserting that venue is proper in Hillsborough County even if the court erroneously applied the place of payment rule. Teague Financial claims that there is authority providing for venue where payments are due without consideration of whether the damages are liquidated or unliquidated. However, Teague Financial relies on cases applying the place of payment rule without calling it such and wherein the liquidated nature of the damages was not at issue. See, e.g., Saf-T-Clean, Inc. v. Martin-Marietta Corp., 197 So.2d 8 (Fla.1967); Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934). We reject this argument.

In conclusion, Patterson has established that the complaint does not allege sufficient facts to lay venue in Hillsborough County under the place of payment rule. Because Patterson has established as a matter of law that venue is not governed by that rule, the trial court erred in denying his motion to dismiss or to transfer on this basis. We therefore reverse and remand with directions that the trial court transfer venue to Polk County.

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . Section 47.011 provides, in pertinent part, “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.”


author: PER CURIAM.

text:
    William Todd OVERCASH, Appellant, v. Lori Ann OVERCASH n/k/a Lori Ann Foultz, Appellee.
    No. 5D13-1160.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.

      Beth M. Gordon of The Gordon Law Firm, Williston, for Appellant.
    Mark D. Shelnutt and Rebecca A. Guthrie of Mark D. Shelnutt, P.A., Ocala, for Appellee.
   PER CURIAM.

Appellant, William Todd Overcash, appeals numerous civil contempt orders. The Order on Motion for Contempt and Enforcement was based on a void order. As a result, we reverse that order. Fisher v. State, 840 So.2d 325, 381 (Fla. 5th DCA 2003). In addition, the Order on Amended Motion for Indirect Civil Contempt lacked the requisite findings of fact establishing that Appellant had the present ability to make the ordered payments. See Bowen v. Bowen, 471 So.2d 1274, 1280 (Fla.1985) (explaining that in the event court finds party in civil contempt “trial judge must separately find that the contemnor has the present ability to pay the purge amount before incarceration can be imposed to obtain compliance with the court order”). We, therefore, reverse that order and remand with instructions that the lower court include the appropriate findings of fact to support the order. In all other respects, we affirm.

REVERSED and REMANDED.

TORPY, C.J., ORFINGER and COHEN, JJ., concur.


text:
    Angel PEREZ and Hilda Perez, Appellants, v. HSBC BANK USA, NATIONAL ASSOCIATION for the Benefit of Ace Securities Corporation Home Equity Loan Trust, Series 2006-NC3, Asset Backed Passthrough Certificates, Appellee.
    No. 2D12-1775.
    District Court of Appeal of Florida, Second District.
    April 11, 2014.
    Nancy Jack of Korte & Wortman, West Palm Beach, for Appellants.
    Manuel S. Hiraldo, Brandon G. For-gione, and K. Denise Haire of Blank Rome, LLP, Boca Raton, for Appellee.
   PER CURIAM.

Affirmed. See Lopez v. Bank of Am., N.A., No. 2D12-1270 (Fla. 2d DCA 2014).

NORTHCUTT, SILBERMAN, and CRENSHAW, JJ., Concur.


text:
    Leonard SOLANO, Appellant, v. Dina A. SOLANO, Appellee.
    No. 5D13-1178.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.

      Eneid Baño, of Bano Law Firm P.L., Goldenrod, for Appellant.
    Christopher R. Ditslear, DeLand, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.”).

ORFINGER, BERGER and WALLIS, JJ., concur.


text:
    Juan RUIZ, Lucas Rivera and Syndia Rivera, Appellants, v. HYDROCOM TECHNOLOGIES, INC., et al., Appellees.
    No. 5D13-1309.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellants.
    Derek J. Angelí and Kieran F. O’Con-nor, of O’Connor & O’Connor, LLC, Winter Park, for Appellee, Hydrocom Technologies, Inc.
   PER CURIAM.

Juan Ruiz, Lucas Rivera, and Syndia Rivera brought negligence suits against Osceola County, Virginia Maintenance Systems (“VMS”), and Hydrocom Technologies, Inc. (“Hydrocom”), based upon injuries they sustained in motorcycle accidents. The appellants alleged that the accidents occurred as a result of a water leak from a malfunctioning irrigation system. While the source of the water was an issue in dispute that resulted in the denial of VMS’s summary judgment motion, the trial court properly granted summary judgment in favor of Hydrocom. Accordingly, we affirm.

AFFIRMED.

COHEN, BERGER and WALLIS, JJ., concur.


text:
    Joseph P. BROWN, Jr. and Terri Lynn Brown, Appellants, v. JPMORGAN CHASE BANK, N.A., etc., et al., Appellees.
    No. 5D13-2660.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    Joseph P. Brown, Jr., and Terri Lynn Brown, Ocala, pro se.
    G. Raemy Charest, Catherine C. Grieve and Andrew J. Bernhard of Rivero Mestre LLP, Miami, for Appellee, JPMorgan Chase Bank, N.A.
   PER CURIAM.

Based upon Appellee’s concession of error, the final summary judgment of mortgage foreclosure is reversed.

REVERSED.

LAWSON, COHEN and BERGER, JJ., concur.


text:
    BREVARD LAND MATERIALS, INC., Appellant, v. BORUCH-DAVID, LLC, Appellee.
    No. 5D13-2977.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2014.
    Charles M. Greene and Richard Rein-hart, of Charles M. Greene, P.A., Orlando, for Appellant.
    Kelly J.H. Garcia and T. Todd Pittenger, of Akerman LLP, Orlando, for Appellee.
   PER CURIAM.

Brevard Land Materials, Inc., appeals a non-final order granting a temporary injunction in favor of Boruch-David, LLC. The trial court’s order is well within its broad equitable powers and, in substance, merely modifies an earlier entered temporary injunction. We find no error and affirm.

AFFIRMED.

GRIFFIN, ORFINGER and BERGER, JJ., concur.


author: LEWIS, C.J.

text:
    CASTLE KEY INSURANCE COMPANY, A Foreign Corporation, a/s/o Paula Murphy (“Castle”), Appellant, v. RAYMOND H. DUKE ENTERPRISES, INC., A Florida Corporation, Appellee.
    No. 1D13-3715.
    District Court of Appeal of Florida, First District.
    April 14, 2014.

      Michael B. Stevens and Theodore A. Stevens of Derrevere, Hawkes, Black & Cozad, West Palm Beach, for Appellant.
    Ellen C. Pappas of Seymour, Whitney & Pappas, Fort Walton Beach, for Appellee.
   LEWIS, C.J.

Appellant, Castle Key Insurance Company a/s/o Paula Murphy, appeals the Final Judgment entered in favor of Appellee, Raymond H. Duke Enterprises, Inc., arguing that the trial court erred in entering summary judgment in Appellee’s favor. Because we agree with Appellant that disputed issues of fact remain in the case, we reverse the Final Judgment and remand for further proceedings.

Mr. and Mrs. Murphy, the owners of the residence at issue, hired Appellee to perform renovations in their home following a fire. Appellant, the Murphys’ insurer, subsequently filed suit against Appellee, alleging that Appellee negligently installed a built-in coffee maker in the home, which resulted in severe water damage. Appel-lee moved for summary judgment, relying upon the affidavits and depositions of its president and one of its subcontractors. Both men represented that neither they nor any other subcontractor installed the coffee maker in the home. The men testified in their depositions that they had spoken with other subcontractors who denied installing the coffee maker.

In opposition to summary judgment, Appellant submitted the affidavit of Mrs. Murphy, who represented that Appellee was the only company she hired to perform work on her property following the fire, that Appellee was the only one, other than herself and her husband, who had access and/or control over the premises during the renovation, that she dropped off a built-in coffee maker at the home during the renovation, that a water line was run and that the coffee maker was improperly installed during the renovation, and that neither she nor her husband lived at the home during the renovation or installed the coffee maker. The trial court granted Appellee’s motion, finding that Mrs. Murphy’s affidavit did not raise a disputed issue of fact as to the installation of the coffee maker. This appeal followed.

An appellate court reviews an order granting summary judgment de novo. Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008). Summary judgment is appropriate only where there is no genuine issue of material fact and where the moving party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The trial court should not resolve factual questions upon a motion for summary judgment and instead must view the evidence and draw all inferences in favor of the opposing party. Laidlaw v. Krystal Co., 53 So.3d 1128, 1129 (Fla. 1st DCA 2011). “ ‘[I]f the record raises even the slightest doubt that an issue might exist, summary judgment is improper.’ ” Jackson v. H.L. Bouton Co., 630 So.2d 1173, 1175 (Fla. 1st DCA 1994) (citation omitted); see also Hodge v. Cichon, 78 So.3d 719, 722 (Fla. 5th DCA 2012) (noting that if material facts are conflicting, i.e., permit different reasonable inferences to be drawn, then summary-judgment may not be granted); Key v. Trattmann, 959 So.2d 339, 341 (Fla. 1st DCA 2007) (noting that summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law).

We agree with Appellant that the facts in this case are not so crystallized that only a question of law remains. While Appellee presented evidence in support of its summary judgment motion to dispute that it installed the coffee maker, the only reasonable inference that can be drawn from Mrs. Murphy’s affidavit is that Ap-pellee installed the coffee maker during the renovation. Contrary to the trial court’s determination, a disputed issue of material fact as to the issue of installation remains. Summary judgment was, therefore, improper.

Accordingly, we REVERSE the Final Judgment and REMAND for further proceedings.

WOLF, and MAKAR, JJ., concur.

      . As we have explained, a trial court may not consider inadmissible evidence in determining the disposition of a summary judgment motion. See Rose v. ADT Sec. Servs., Inc., 989 So.2d 1244, 1249 (Fla. 1st DCA 2008). To the extent that the trial court relied upon the hearsay testimony of Appellee's president and subcontractor as to what other subcontractors told them, that too was error.