Cousins v. Post-Newsweek Stations Fla., Inc.

275 So.3d 674

Herbert COUSINS, Appellant,

v.POST-NEWSWEEK STATIONS FLORIDA, INC., etc., Appellee.

No. 3D17-2805

District Court of Appeal of Florida, Third District.

Opinion filed February 20, 2019

Rehearing Denied May 22, 2019

ADR Miami LLC and Juan Ramirez, Jr., Miami; Eduardo Gomez, Coral Gables, for appellant.

Mitrani, Rynor, Adamsky & Toland, and Karen Williams Kammer, Miami Beach, for appellee.

Before EMAS, C.J.,¹ and SALTER and SCALES, JJ.

SALTER, J.

Herbert Cousins appeals an order dismissing his third amended complaint and entering a final judgment in favor of Post-Newsweek Stations Florida, Inc. d/b/a WPLG-Channel 10 ("Post-Newsweek"). We reverse and remand with instructions to reinstate Cousins's third amended complaint.

Factual and Proceedings Below

In 2003, Cousins, the plaintiff below, was hired by the Miami-Dade County School Board as its inspector general and was to serve a two-year term.

During Cousins's two-year term, in August 2005, Post-Newsweek aired broadcast reports related to its investigative reporting of the inspector general's office and the alleged inefficiency of the office, which, according to Cousins, were "a series of fake news attack stories." As part of the aired broadcast reports, Post-Newsweek allegedly: (1) solicited comments from Miami-Dade County School Board members regarding "false investigative findings"; (2) commented on Cousins's hiring and selection process; and (3) reported the number of cases closed by Cousins's office in the two years of its existence. Cousins alleged that as a result of these broadcast reports, the "Office of Inspector General was disbanded," and Cousins's employment was not renewed.

In response to the broadcast reports, on October 3, 2005, Cousins (through counsel) sent a written correspondence to Post-Newsweek's news director, requesting a "retraction" of certain "materially false statements." More specifically, the letter included the following language:

Please consider issuing a retraction regarding the several pieces [sic] broadcast regarding Mr. Herb Cousins, former Miami-Dade County School District Inspector General. These materially false statements; (1) that Herb Cousins got his Inspector General job as a result of cronyism and not through a proper selection process; (2) that Mr. Cousins was not qualified for the job; and (3) that only 8 cases were closed in two years, were publically disseminated by your station during the first three weeks of August, 2005.

...

We request a meeting with your editorial board as soon as possible. Given proper retraction and a proper apology, Mr. Cousins is willing to give serious consideration to forgo litigation.

In response to Cousins's request, Post-Newsweek retracted a portion of the aired broadcast reports, clarifying the number of cases the inspector general's office had closed in its two-year existence.

Although Post-Newsweek provided the partial retraction, in March 2007, Cousins initiated the underlying lawsuit against Post-Newsweek, Post-Newsweek's reporter, the School Board, and two other individual defendants, alleging claims for conspiracy to defame and disparage, and breach of contract. Before Post-Newsweek filed its answer, however, Cousins amended his complaint, adding, in relevant part, a negligent supervision count as to Post-Newsweek and its news reporter.

In that first amended complaint, Cousins alleged the following:²

[Cousins] has complied with all conditions precedent to filing this suit including those required by Chapter 768, Florida Statutes. The School Board was given an opportunity to review the evidence supporting the claim as a part of the statutory administrative review of the claim, but the School Board never responded to the opportunity to resolve this matter administratively. See letter to ... School Board attorney, dated 10/12/06 attached hereto as Ex. A.

In furtherance of this allegation, Cousins attached, as an exhibit to the first amended complaint, his presuit notice directed at the School Board "as required under Sec[tion] 768.28."³ In response, Post-Newsweek filed its answer; it included the following language as to that allegation: "The Post-Newsweek Defendants deny that [Cousins] has ‘complied with all conditions precedent’ as such suit relates to the Post-Newsweek Defendants."

As litigation slowly proceeded, Cousins voluntarily dismissed the other defendants, leaving Post-Newsweek as the sole defendant. With Post-Newsweek remaining as the sole defendant, Cousins was permitted to file a second amended complaint, which asserted claims for defamation/libel and negligent supervision.

In that complaint, Cousins alleged he "ha[d] complied with all conditions precedent to filing this suit, including those required by Chapter 768, Florida Statutes." In response, Post-Newsweek moved to dismiss the second amended complaint, arguing, among other grounds, Cousins "neither ple[d] he complied with the condition precedent to bringing a libel claim against a media defendant pursuant to Chapter 770, Florida Statutes, nor attache[d] proof of compliance." (footnote call number omitted).

At a hearing on that motion in 2017, the trial court addressed Post-Newsweek's motion to dismiss, concluding the second amended complaint was "all over the place" and failed to "plead the direct defamation count." Again, the trial court permitted Cousins to file an amended complaint. This time, however, the trial court required Cousins to "attach [the] pre-suit notice and transcript upon which [Cousins was] suing."

As permitted by the trial court, Cousins filed his third amended complaint, attaching the 2005 presuit notice and providing a transcript of the alleged defamatory language. In that complaint, Cousins alleged he "ha[d] complied with all conditions precedent to filing this suit including a retraction demand pursuant to Chapter 770, Florida Statutes." In response, Post-Newsweek filed a motion to dismiss, seeking dismissal based on Cousins's failure to comply with a condition precedent pursuant to section 770.01, Florida Statutes.⁴

Following a hearing, the trial court granted Post-Newsweek's motion to dismiss, concluding that Cousins's presuit notice was "woefully inadequate" and failed to comply with section 770.01. The trial court also dismissed the negligent supervision count because, according to the trial court, it could not survive "in light of [its] ruling on the [defamation] count." A final judgment was entered following the dismissal.

Cousins's appeal followed.

Standard of Review

We review a trial court's order of dismissal de novo. See Kendall S. Med. Ctr., Inc. v. Consol. Ins. Nation, Inc., 219 So.3d 185, 188 (Fla. 3d DCA 2017). "The purpose of a motion to dismiss is ‘to test the legal sufficiency of the complaint, not to determine factual issues.’ " Rolle v. Cold Stone Creamery, Inc., 212 So.3d 1073, 1076 (Fla. 3d DCA 2017) (quoting The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006) ). When ruling on a motion to dismiss, the trial court "must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party." Grove Isle Ass'n, Inc. v. Grove Isle Assocs., LLLP, 137 So.3d 1081, 1089 (Fla. 3d DCA 2014).

Analysis

On appeal, Cousins makes two principal arguments. First, Cousins asserts that any affirmative defense or denial of a condition precedent based on his failure to provide statutory presuit notice was waived because Post-Newsweek failed to plead the issue with sufficient specificity in response to Cousins's initial and first amended complaints. Second, Cousins claims the presuit letter provided to Post-Newsweek complied with section 770.01. We agree only with the second point.

(1) Waiver of Compliance with Condition Precedent

Addressing the first issue, Cousins claims Post-Newsweek waived compliance with a condition precedent—here, section 770.01—when it failed to deny with specificity and particularity Cousins's general allegation addressing conditions precedent in the initial and the first amended complaints. We disagree, however.

Florida Rule of Civil Procedure 1.120(c) establishes a special pleading rule regarding the performance or occurrence of a condition precedent. Under this rule, it is sufficient for a claimant to "aver generally that all conditions precedent have been performed or have occurred." Id. Where the complaint alleges compliance with a condition precedent to suit, "the burden then shifts to the defendant to deny with specificity and particularity that the required notices were given, and to properly present this issue to the trial court in the context of a summary judgment motion or in a motion for judgment on the pleadings." Cabral v. City of Miami Beach, 76 So.3d 324, 326-27 (Fla. 3d DCA 2011) (internal citation omitted). By failing to timely and specifically raise the issue in the pleadings, a defendant waives the argument that a claimant did not meet a condition precedent. See Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla. 1991).

While citing to the pleading requisites of rule 1.120(c), Cousins claims he "repeatedly complied with [r]ule 1.120 by averring generally that he had complied with all conditions precedent," thereby requiring a specific negative averment by Post-Newsweek. But Cousins selectively quotes and omits a large portion of the condition precedent allegation provided in both the initial and the first amended complaints.

Our review of those complaints indicates Cousins exclusively addressed the School Board, one of five defendants, and his compliance with the notice provision set forth in Chapter 768, Florida Statutes. In addition to specifically addressing the School Board, and Chapter 768, Cousins included, within the same numbered allegation, factual assertions regarding the School Board's "opportunity to review the evidence supporting the claim as part of the statutory...