Judge considering a motion to dismiss

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By Lou Elliott Jones, Editor

A lawsuit by A.D. “Andy” Andrews, landscape tree grower and publisher of the Levy County Journal, against the Chiefland Citizen is being considered for dismissal by Circuit Judge David O. Glant.

Lawyers for both sides argued the merits of keeping the suit alive or dismissing it in Glant’s chambers on Monday morning,.

Attorneys for the Citizen and a former reporter argued that the reporting on the Florida Department of Law Enforcement investigation and the subsequent decision by State Attorney Bill Cervone to not prosecute the 11 persons investigated for possible voter fraud in Chiefland city elections is covered by the fair reporting privilege.

That concept holds that publications cannot be successfully sued for reporting the activities of government agencies and their officials.

They also argued that Andrews’ suit was improperly handled and should be dismissed, rather than allowing him to amend it and move forward.

The suit, originally filed in June 2008, claimed Andrews was defamed and placed in a false light by 14 articles published in the Citizen from August to January 2008.

In his original suit, Andrews, a former Chiefland city commissioner, is seeking more than $15,000 in damages and said the articles put him in a “false light.”

Glant dismissed the suit in November 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

• failed to cite the offending portions of the articles in the suit.

Also in question at the time was whether Andrews could even use “false light” as a grounds for the suit.

That question was answered when the Florida Supreme Court said no such grounds exist in state law in an opinion for two other cases.

Glant gave Andrews 20 days to refile the suit and the defendants 30 days to reply. Andrews’ letter notifying the defendants of his request for a retraction within 5 days arrived on Thursday, Oct. 30, 2008, the day of publication for the weekly newspaper. At the same time he said he would be refilling the suit.

Andrews’ attorney filed an amended suit on Nov. 14 and the parties were served. This time the articles and offending statements were outlined. The “false light” claim was replaced by a “defamation by implication” and “intentional infliction of emotional distress” claims.

In Monday’s arguments, Citizen attorney Karen Gaffney and the writer’s attorney Gary Edinger said the original suit was so flawed that it could not simply be amended and refiled. They said a whole new case needs to be filed.

The attorneys agreed state law allows Andrews to amend the contents of his letter and suit. But because Andrews’ attorney failed to properly serve the letter and properly frame and serve the suit, Andrews’ attorney cannot cure those flaws by amendment.

It was also pointed out, that although Andrews’ attorney has pointed out 62 allegations, there was only one factual error in the whole series of articles — that Andrews had claimed a homestead exemption in Gainesville — and that was corrected shortly after publication.