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A Levy County judge has dismissed — for the second time — a defamation lawsuit filed by A.D. “Andy” Andrews, landscape tree grower and publisher of the Levy County Journal, against the Chiefland Citizen, a reporter, editor, publisher and the parent corporation, Florida Newspapers, Inc.
Circuit Civil Judge David O. Glant dismissed the suit in October after it was pointed out that Andrews’ attorney:
• did not properly request a retraction allowing five days to respond from all the parties as required by state law
• failed to properly serve each party to the lawsuit
• failed to include copies of the offending articles with the suit, and
• failed to cite the offending portions of the articles in the suit.
Shortly after the first dismissal, Andrews’ attorney amended the original suit, re-sent the letter to each of the named defendants and re-filed the suit.
Glant’s second dismissal was similar to the first in that he found that state law requires the letter requesting a retraction be sent five days before commencing legal action, and cannot be undone by simply sending another letter, amending the original suit, and filing it again.
The judge said the suit cannot be amended and refiled, but Andrews has the option to send a letter and file a new claim.
In addition, Glant dismissed one of the two counts in Andrews old suit, leaving him with only one count to claim for damage.
Glant said Andrews’ claim for defamation by implication because the newspaper published — and later corrected — the statement that Andrews had a homestead exemption on a home he owns in Gainesville with his wife Joann, is for a jury to decide.
The second count, the infliction of intentional emotional distress cannot be part of the new suit Glant said because a prior judicial precedent found “a plaintiff cannot transform a defamation action into a claim for intentional infliction for emotional distress simply by characterizing the alleged defamatory statements as “outrageous’.”
At the same time, Glant also reserved jurisdiction to consider awarding payment of costs in the case.
The original suit filed in June 2008 claimed Andrews, who is a former Chiefland city commissioner, was defamed and placed in a false light by 14 articles published in the Citizen from August to January 2008. The suit sought more than $15,000 in damages.
In dismissing the suit the first time, Glant also noted the state Supreme Court was due to rule on the question of using “false light” in suits. That question was answered when the Florida Supreme Court ruled no such grounds exist in state law in deciding two other cases
Andrews’ original suit centers on the Citizen’s coverage of the state Secretary of State and Florida Department of Law Enforcement investigation into, and the subsequent decision by State Attorney Bill Cervone to not prosecute , 11 persons for possible voter fraud in Chiefland city elections.
The newspaper’s lawyers have maintained that the reporting of government activities and officials is covered by the fair reporting privilege and that publications cannot be successfully sued for reporting those activities.