McQueen v. Baskin

377 So.3d 170

Anne MCQUEEN, Appellant,

v.Carole BASKIN, Appellee.

No. 2D22-1482

District Court of Appeal of Florida, Second District.

November 17, 2023

Appeal from the Circuit Court for Hillsborough County; Jennifer X. Gabbard, Judge.

Allison Morat and Ronnie Bitman of Bitman, O’Brien & Morat, PLLC, Lake Mary; John M. Phillips and Amy M. Hanna of Phillips & Hunt, Jacksonville, for Appellant.

Shane B. Vogt and Kenneth G. Turkel of Turkel, Cuva, Barrios, P.A., Tampa; David M. Caldevilla of de la Parte, Gilbert, McNamara & Caldevilla, P.A., Tampa; Craig E. Rothburd of Craig E. Rothburd, P.A., Tampa; and Charles M. Harris of Trenam Law, Saint Petersburg, for Appellee.

LUCAS, Judge.

A sanctuary for lions and tigers, the unexplained disappearance of one of its owners, and competing allegations of embezzlement, double-dealing, and betrayal have spawned a defamation lawsuit. Near the outset of the litigation, the circuit court curtailed discovery and entered a final judgment in favor of the defendant. For the reasons that follow, we reverse.

I.

In the 1990s Carole Baskin and her then-husband "Don" Lewis operated Wildlife on EasyStreet, a big cat sanctuary, an enterprise which would later become known as Big Cat Rescue.¹ Anne McQueen was employed as Mr. Lewis’ personal assistant.

In August 1997, Mr. Lewis disappeared. His whereabouts, or whether he is still alive, remains unknown to this day.

Not long after Mr. Lewis’ disappearance, one of his daughters filed a conservatorship petition in the Hillsborough County Circuit Court. In that petition Mr. Lewis’ daughter sought to appoint Ms. McQueen as a conservator of Mr. Lewis’ property. Disputes arose during the course of the conservatorship proceedings. Ms. Baskin alleged that Ms. McQueen "improperly transferred real property, mortgages, and tax certificates." For her part, Ms. McQueen filed a petition for an injunction. After a year of litigation, the parties entered into a stipulation which disposed of the property in dispute. As part of that settlement, Ms. McQueen received a $50,000 payment for all her potential claims in the conservatorship litigation including a "libel and slander claim" against Ms. Baskin. Ms. Baskin was also obligated to issue a written apology to Ms. McQueen,² which, in pertinent part, read: "I, Carole Lewis, apologize to Anne McQueen for all the allegations that I have made about Anne McQueen. … I have found that the allegations made were without full knowledge of the facts, which I now know are unfounded."

Unfortunately, neither the settlement nor the apology ended the acrimony.

Events took a turn in 2020 when Netflix aired a television series entitled, "Tiger King: Murder, Mayhem and Madness." The subject matter of the series was apparently as sensational as its title, and although it centered on a supposed rival of Big Cat Rescue (a gentleman who went by the monikers "Joe Exotic" and "The Tiger King"), some episodes featured discussions about Mr. Lewis’ disappearance. One episode in particular included footage of interviews with Ms. McQueen, which, Ms. Baskin maintains, "proliferated false and baseless rumors that Baskin killed Lewis and disposed of his remains in various horrific ways." While the show was airing, Ms. McQueen also appeared in a YouTube³ interview with "Ripper Jack Media," in which she discussed Mr. Lewis’ disappearance.

In the aftermath of Tiger King, Ms. Baskin maintains that "enormous public discussion" ensued concerning her purported involvement in Mr. Lewis’ disappearance. She complains that she, her current husband, and Big Cat Rescue "became the target of vicious online attacks."

Ms. Baskin, however, had apparently anticipated that she might receive some less than favorable coverage in Tiger King. So, in February 2020, prior to the show’s release, she began publishing her own rendition about the events that would later be depicted in Tiger King on her YouTube "vlog" (hereafter, the Baskin Vlog).⁴ In her vlog, Ms. Baskin read aloud a number of entries in her personal diary, some of which were decades old. Although at points in the Baskin Vlog’s postings Ms. Baskin acknowledges that her recollections might "be a little skewed on some of the things that I remember" and that the video entries are "for entertainment purposes only," the Baskin Vlog was obviously meant to relay Ms. Baskin’s assertions of what truly happened at Big Cat Rescue in the late 1990s.

Over a period of time, Ms. Baskin made the following assertions in the Baskin Vlog⁵:

"Turns out he [Mr. Lewis] had already had Anne McQueen forge my name on the closing documents and then she notarized it."

"Spent the day in our real estate office quizzing Anne McQueen about the title search I did on her showing 500,000.00 + of our properties titled in her maiden name. This had all been done in just the past few months. I asked for the alarm code and a set of keys (ours were with Don) and I had never had to open the office before…. When I asked for a set of keys, Anne was suddenly very sick with a headache and had to go home. Since she claims she was the only person with a set of keys and the code, everyone would have to leave so she could lock up. [I] knew something was up then. She said she had to rest, but that she would make me a set later that night and bring them to me in the morning. She gave me a bogus alarm code." "I have gone easy on her [Ms. McQueen] because I have not been sure how much of her transferring was done as theft and how much Don may have known about, but for her to step in and lie about something that we both know the truth about and her attempt to destroy my original documents by sneaking them out of the office in a box of her tax papers. I can see no reason to protect her any longer. Can she be arrested for embezzling and can your firm represent me in the ensuing lawsuit? The proof is overwhelming."

"Anne McQueen was feeding people nothing but lies, it’s suspicious Anne is the beneficiary of such a huge life insurance policy, and Anne and others are sure Don isn’t coming back."

"The return of the 80,000.00 that Anne McQueen has wrongfully diverted from the Conservatorship to her own Attorney’s bank account."

"That is why I want to see Anne in jail for embezzlement. She and Wendell may have gotten away with doing harm to Don but they haven’t escaped all of their treacherous deeds. I want what little justice Don and I may ever see from this whole ordeal."

Ms. McQueen was "spiriting documents away" to attempt to hide "all of the stuff that was going on with Anne putting stuff into her name and Wendell’s name and housekeeper’s names and all kinds of stuff."

"Part of the embezzlement I discovered was that Anne would take money from our checking account to buy those tax certificates in her maiden name so that she could control if the properties were sold to pay her lien."

Over roughly the same time period as she was vlogging, Ms. Baskin is also alleged to have posted the following statements on Big Cat Rescue’s website:

In 1997 when I lost my Husband, I discovered that one of our secretaries had embezzled hundreds of thousands of dollars and made herself the beneficiary and executor of his will.

Anne McQueen is referred to as Don’s trusted assistant. A few months before his disappearance we caught her embezzling roughly $600,000.00 in properties by buying them with our funds and putting them in her name.

In August 2020, Ms. McQueen and members of Mr. Lewis’ family filed a complaint seeking a pure bill of discovery as to several defendants, an action which, after a few amendments, evolved into a civil claim for monetary damages brought solely by Ms. McQueen against Ms. Baskin as the sole defendant. That complaint asserts claims for defamation (under three different theories).⁶

On July 9, 2021, Ms. Baskin filed a verified "Motion to Dismiss and/or for Summary Judgment on Second Amended Complaint and for Attorney’s Fees and Costs Under Florida’s Anti-SLAPP Statute" in response to the complaint. In her motion, Ms. Baskin maintained that Ms. McQueen’s complaint amounted to a prohibited SLAPP lawsuit⁷ under section 768.295, Florida Statutes (2020), and that, as such, she was entitled to "an expeditious resolution" of Ms. McQueen’s claim. See § 768.295(4). She argued that the statements Ms. McQueen was suing her on constituted protected "free speech in connection with a public issue" and that Ms. McQueen’s claim was without merit. See § 768.295(3).

Furthermore, Ms. Baskin argued that her vlog and website posts fell under the protection of section 770.01, Florida Statutes (2020), which requires presuit notice as a condition precedent when a defamation action is brought "for publication or broadcast, in a newspaper, periodical, or other medium." Ms. Baskin contended that the Baskin Vlog and her web posts should be construed as "other medium" under this statute and that Ms. McQueen’s subsequent service of a statutory notice to Ms. Baskin⁸ was insufficient to cure what, she suggests, was a "jurisdictional" defect in Ms. McQueen’s complaint. Finally, Ms. Baskin’s motion argued that all of her alleged statements were nondefamatory as a matter of law.

Before Ms. McQueen could obtain discovery or depose Ms. Baskin, the circuit court stayed discovery. The court’s stay order indicated that it would first hear and decide Ms. Baskin’s motion. Both sides filed memoranda, and on October 6, 2021, the court heard the motion to dismiss/motion for summary judgment.

On April 6, 2022, the court issued an order and final judgment against Ms. McQueen. Pertinent to our resolution of this appeal, the circuit court concluded that (1) Ms. Baskin was a "media defendant" so that the statements on her vlog and website were protected under section 770.01, (2) Ms. McQueen’s complaint was a prohibited SLAPP lawsuit under section 768.295, and (3) the statements complained of "cannot be construed as conveying a defamatory meaning … or are nonactionable statements of opinion or rhetorical...