JAMES CULLEN LOWERY, III v. SHANE MCBEE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAMES CULLEN LOWERY, III,
Appellant,
v.
SHANE MCBEE,
Appellee.
No. 4D20-1986
[June 9, 2021]
Appeal of nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Jaimie R. Goodman, Judge; L.T.
Case No. 50-2020-CA-005951-XXXX-MB.
Barry Carothers of BC Law, Stuart, for appellant.
Philip G. Thompson of Thompson & Thomas, P.A., West Palm Beach,
for appellee.
FORST, J.
Appellant James Cullen Lowery, III (“Defendant”) appeals from a
nonfinal order denying his motion to transfer venue from Palm Beach
County. The sole issue on appeal is whether—for purposes of venue under
section 47.011, Florida Statutes (2019)—a cause of action for libel per se
accrued in the county in which an allegedly libelous Facebook post
originated (here, Martin County), or in a county where the post was
accessed and read by a third party. We hold: (1) a Facebook post cannot
be libelous until it is published and accessed; (2) a posting placed on a
public Facebook page is instantaneously accessible throughout Florida;
and (3) Appellee Shane McBee’s (“Plaintiff”) complaint sufficiently avers
that the post at issue was accessed in Palm Beach County. Consequently,
as set forth below, we affirm the trial court’s denial of the motion to
transfer venue from Palm Beach County.
Background
Plaintiff filed a Second Amended Complaint, asserting one count of libel
per se against Defendant, stemming from Defendant’s purported posting
of an allegedly libelous public Facebook post. Within the Second Amended
Complaint, Plaintiff alleged that although Defendant was a resident of
Martin County, venue was proper in Palm Beach County because that was
where the Facebook post was received and read by a third party, which
Plaintiff equated to being where the cause of action accrued. Plaintiff
further identified the name of a specific Palm Beach County resident that
had allegedly received and read the contents of the Facebook post.
Based on Plaintiff’s choice of venue, Defendant filed a motion to dismiss
or transfer venue. Section 47.011, Florida Statutes (2019), pertinently
provides that a civil action “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.” Defendant stated it was undisputed that
he resided in Martin County and that the instant case did not involve
property. Defendant therefore maintained that under section 47.011,
venue would have been proper in Palm Beach County only if that is where
“the cause of action accrued.”
In contrast to Plaintiff’s argument that a cause of action for libel
accrued where the purportedly libelous statement was received and read
by a third party, Defendant claimed that a cause of action for libel accrued
where the libelous statement originated, citing to Florida Gamco, Inc. v.
Fontaine, 68 So. 3d 923 (Fla. 4th DCA 2011), and section 770.07, Florida
Statutes (2019), in support. Defendant contended that, “[g]iven [] the
defendant resides in Martin County, if defendant had made the Facebook
post at issue it would have originated, and therefore been published, in
Martin County.” From this, Defendant asserted that Martin County was
the proper venue.
Plaintiff filed a response in opposition. Plaintiff argued that Defendant
incorrectly interpreted section 770.07—which provides that a cause of
action for libel shall be “deemed to have accrued at the time of first
publication”—to mean that the cause of action for libel accrued in the
county in which the publication originated. According to Plaintiff, “first
publication” of Defendant’s Facebook post “d[id] not accrue until the
electronic statement [wa]s received and accessed on the other end by a
third party[,]” as a “defamatory statement must be received and read[] by
a third party for the plaintiff to be injured by the statement.”
Plaintiff further maintained that, under Perdue v. Miami Herald
Publishing Co., 291 So. 2d 604 (Fla. 1974), a cause of action for libel would
accrue in the county where Defendant’s Facebook post was distributed or
received, not where the post originated. As the purportedly libelous
2
Facebook post was received and read in Palm Beach County, Plaintiff
asserted that venue was proper there.
The trial court held a hearing on Defendant’s motion to dismiss or
transfer venue, wherein the parties repeated their respective arguments.
Regarding the motion to transfer venue, the court denied the motion,
finding that a cause of action had not accrued until the purportedly
libelous statement was “accessed and read” by a third party. 1 The trial
court therefore found that venue was proper in Palm Beach County.
Analysis
“When a trial court is presented with a motion to transfer venue based
on the impropriety of the plaintiff’s venue selection under section 47.011,
the trial court must resolve any relevant factual disputes and then make
a legal decision [as to] whether the plaintiff’s venue is legally supportable.”
McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.
3d 504, 508 (Fla. 4th DCA 2010). We review the trial court’s resulting
legal conclusions de novo. Id.“It is the prerogative of the plaintiff to select the venue of his or her
suit, and when that choice is one of the three statutory alternatives, it will
be honored.” Weinberg v. Weinberg, 936 So. 2d 707, 708 (Fla. 4th DCA
2006). If a defendant contests the plaintiff’s chosen venue, the burden is
on the defendant to prove that the plaintiff’s selected venue was improper.
Fla. Gamco, Inc., 68 So. 3d at 928. “As a part of this burden, the
[defendant] . . . must demonstrate where the proper venue is.” McDaniel,
39 So. 3d at 508 (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat’l
Bank of Melbourne & Tr. Co., 238 So. 2d 665, 667 (Fla. 4th DCA 1970)). If
the defendant sufficiently demonstrates that a plaintiff’s choice of venue
is improper and establishes the location of proper venue, “[t]he widely
accepted practice in Florida courts” is to transfer the case rather than
dismiss it. Russomano v. Maresca, 220 So. 3d 1269, 1271 (Fla. 4th DCA
2017).
As noted above, section 47.011 provides that “[a]ctions 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.” Here, it is
undisputed that Defendant is a resident of Martin County. It is also
undisputed that the instant case does not involve property. Accordingly,
1As to the motion to dismiss, the court found that dismissal was inappropriate
because Defendant had already filed an Answer.
3
venue is proper either in Martin County, or “where the cause of action
accrued[.]” See § 47.011, Fla. Stat. (2019).
The parties disagree as to where the cause of action for libel per se
accrued. As below, Plaintiff maintains that the cause of action accrued in
Palm Beach County because that is where the purportedly libelous
statement was read and received by at least one individual. Defendant,
however, maintains that the cause of action accrued in Martin County
because that is where the allegedly libelous statement originated.
If the cause of action accrued in Palm Beach County, Defendant would
necessarily have failed to meet his burden of demonstrating that venue
was improper, and Plaintiff’s choice of venue in Palm Beach County would
need to be honored. See Weinberg, 936 So. 2d at 708. If, on the other
hand, the cause of action accrued in Martin County, the only remaining
statutory alternative for venue would be in Martin County, and the trial
court would therefore have erred in denying Defendant’s motion to transfer
venue rather than transferring the case to Martin County. See § 47.011,
Fla. Stat. (2019); Russomano, 220 So. 3d at 1271. Thus, the instant case
turns entirely on the determination of where the cause of action for libel
per se involving an electronic communication accessible by the public
accrued.
In general, “[a] tort claim accrues for venue purposes ‘where the last
event necessary to make the defendant liable for the tort took place,’ or
where the harmful effect of the defendant’s acts first took effect. Stated
another way, a tort accrues where the plaintiff first suffers injury.” Fla.
Gamco, Inc., 68 So. 3d at 929 (emphasis in original) (quoting Weinberg,
936 So. 2d at 709). Under Florida law, a cause of action for defamation
toward a private individual requires five elements: (1) publication; (2)
falsity; (3) that the alleged tortfeasor act “at least negligently on a matter
concerning [the] private” individual; (4) actual damages; and (5) a
defamatory statement. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106
(Fla. 2008). Libel, in turn, is a subcategory of defamation, defined as the
unprivileged written publication of a false and defamatory statement. 2 See
Cooper v. Miami Herald Publ’g Co., 31 So. 2d 382, 384 (Fla. 1947).
2We note that a libelous statement “may be either libel per se or libel per quod.”
Barry College v. Hull, 353 So. 2d 575, 578 (Fla. 3d DCA 1977). And, “[t]he
practical distinction between the two is that for libel per quod, actual malice and
special damages must be proved.” Id. However, the distinction between libel per
se and libel per quod is irrelevant for purposes of determining where the cause of
action accrued.
4
With these definitions in mind, it is clear that the instant tort claim for
libel accrued in the county where the libelous statement was published,
as publication would be the last event necessary to make a defendant
liable for a claim of libel or defamation, and a plaintiff does not suffer injury
until a libelous statement is published. See Fla. Gamco, Inc., 68 So. 3d at
929. But in the instant case, both Defendant and Plaintiff disagree as to
where publication of Defendant’s purportedly libelous Facebook post
occurred.
Although there is a statute concerning when a cause of action accrues
for an action of libel or slander, that statute is not determinative of where
the cause of action accrues or where publication occurs. Indeed, section
770.07, Florida Statutes, provides that “[a] cause of action for damages
founded upon a single publication or exhibition or utterance . . . shall be
deemed to have accrued at the time of the first publication or exhibition or
utterance thereof in this state.” § 770.07, Fla. Stat. (2019) (emphasis
added). Thus, section 770.07 on its face “relates to the ‘time’ of accrual of
the cause of action . . . [and] does not control the place (venue) of filing.”
Perdue, 291 So. 2d at 606.
In Perdue, the Florida Supreme Court considered whether a cause of
action for libel could be brought only in the county in which a newspaper
was published, or in any county where the newspaper was distributed or
circulated thereafter. Id. at 606–07. As part of its consideration, the
Perdue court discussed the then-recent enactment of section 770.05,
Florida Statutes (which limits a claim for defamation to only one choice of
venue), and section 770.07 (which, as discussed earlier, provides that a
cause of action is deemed to have accrued at the time of first publication).
Id. at 606. Noting that section 770.07 did not control the venue of a
defamation action, the court read sections 770.05 and 770.07 in pari
materia with the corporate venue statute (section 47.051, formerly section
46.04), ultimately determining that there were four appropriate venue
locations, only one of which could be selected. Id. at 606–07.
These four venue locations were as follows: (1) “the county where the
alleged libelous matter is first published”; (2) the “county or counties where
the publisher has or usually keeps an office for transaction of its
customary business”; (3) “where a bureau agency or office is maintained .
. . for the purpose of distribution or circulation”; and (4) under the
corporate venue statute, “such county or counties where the publication
is distributed or placed on sale.” Id. at 607 (alteration in original; internal
quotation marks and citations omitted). Three of these four venue options
were specifically tailored toward a corporate defendant. The only
remaining venue option that could apply to a defendant in his or her
5
individual capacity was the first option—the county in which the alleged
libelous matter is first published. See id.With respect to this option and where the newspaper was first
published, the court noted that “[t]he record clearly establishe[d] that the
news item complained of was first published in Dade County in the evening
and distributed to DeSoto County, nearly two hundred miles away, several
hours later.” Id. at 606. The court further stated that “first publication
obviously was in Dade County.” Id. However, the court rejected the
newspaper’s argument that proper venue for purposes of the corporate
venue statute (now section 47.051) could only lie in Dade County; it found
that “where the cause of action accrued . . . [is] view[ed] in the case of
a publication as limited to such county or counties where the
publication is distributed or placed on sale.” Id. at 607 (emphasis
added; internal quotation marks omitted).
Both section 47.051 and the venue statute in the instant case (section
47.011) state that actions shall be brought “where the cause of action
accrued.” See §§ 47.051 & 47.011, Fla. Stat. (emphasis added). This
identical language across both statutes implies that venue for an
individual defendant may also lie in the county or counties where
publication of allegedly libelous material is distributed. In Perdue, the
record did “not include any finding regarding the factual question of
whether the publication was distributed or placed on sale in DeSoto
County,” id. at 607; thus, with respect to determining where the cause of
action accrued, the court remanded the case “to the trial court for a
determination of whether the publication here in question was distributed
or placed on sale in DeSoto County . . . .” Id. In the instant case, the trial
court has determined that “the publication here in question was
distributed” in Palm Beach County. See id.
Plaintiff also draws our attention to the more recent Florida Supreme
Court opinion Internet Solutions Corp. v. Marshall, 39 So. 3d 1201 (Fla.
2010). In that case, the defendant was a resident of the State of
Washington and posted a blog entry critical of the plaintiff, a Florida firm,
on the defendant’s website. Id. at 1202. The plaintiff filed a defamation
claim against the defendant in a federal district court in Florida. Id. In
considering a certified question from the Eleventh Circuit, the Florida
Supreme Court focused on whether the defendant was subject to personal
jurisdiction under Florida’s long-arm statute. Id. at 1202–03.
There was no question that the post at issue in Internet Solutions Corp.
originated outside of Florida. However, as in the instant case, that
communication was instantaneously accessible in every county and
6
country where the internet was publicly available, not only in the county
where it was posted. Thus, the focus of the court was whether the post
was both accessible and accessed, with the court concluding that:
[A]llegedly defamatory material about a Florida resident
placed on the Web and accessible in Florida constitutes an
“electronic communication into Florida” when the material is
accessed (or “published”) in Florida. In the context of the
World Wide Web, given its pervasiveness, an alleged tortfeasor
who posts allegedly defamatory material on a website has
intentionally made the material almost instantly available
everywhere the material is accessible. By posting allegedly
defamatory material on the Web about a Florida resident, the
poster has directed the communication about a Florida
resident to readers worldwide, including potential readers
within Florida. When the posting is then accessed by a third
party in Florida, the material has been “published” in Florida
and the poster has communicated the material “into” Florida,
thereby committing the tortious act of defamation within
Florida. This interpretation is consistent with the approach
taken regarding other forms of communication.
Id. at 1214–15.
The court rejected the defendant’s “assert[ion] that her acts were
completed in the State of Washington and nothing on the website could be
published to a Florida computer ‘unless (and until) the reader reached up
into Washington and retrieved it.’” Id. at 1215 (emphasis in original). The
court noted that this argument “ignores the nature of the Web.” Id. at
1216. Thus, the focus in Internet Solutions Corp. with respect to personal
jurisdiction under Florida’s long-arm statute was whether “the material
was accessed—and thus published—in Florida.” Id. at 1215. Although
Internet Solutions Corp. dealt with jurisdiction, its discussion regarding
when a communication is published is applicable to the instant case’s
venue determination—there is no “publication” and the cause has not
accrued until the communication is accessed.
Defendant principally relies on our opinion in Florida Gamco, Inc. v.
Fontaine, 68 So. 3d 923 (Fla. 4th DCA 2011). There, a plaintiff brought
forth claims of slander and libel against a single defendant in Broward
County. Id. at 926. The plaintiff alleged that the defendant was a Leon
County resident, but asserted that venue was proper in Broward County,
as that was “the place . . . where all relevant actions or omissions
occurred.” Id. Moreover, as to the slander and libel claims, the plaintiff
7
alleged that the defendant had orally published certain false and
defamatory statements about the plaintiff during phone conversation
(slander), and that this defendant also published defamatory statements
about the plaintiff through email (libel). Id. The recipients of the phone
conversations “were located in Leon County” and “any email . . . would
have been sent from Leon County.” Id.After an evidentiary hearing, the trial court denied the defendant’s
motion to dismiss the complaint or to transfer venue to Leon County. Id.
at 927. On appeal, we noted that any cause of action for slander or libel
would have accrued “at the time of [] first publication” under section
770.07. Id. at 930. We then stated that the defendant’s testimony about
the phone conversations and email originating from Leon County
sufficiently shifted the burden of demonstrating proper venue back to the
plaintiff. Id. The plaintiff failed to meet that burden because the allegedly
defamatory communications (phone call and email) originated and were
received (“accrued”) only in Leon County, and the plaintiff could offer no
proof that the communications were accessed in her choice of venue,
Broward County. Id. at 930. Thus, Florida Gamco, Inc. is distinguishable
from the instant case, just as a phone call or email directed to a limited
number of individuals is distinguishable from a post accessible and
potentially accessed by the billions of people with access to the world wide
web.
Conclusion
“[A] tort claim accrues for venue purposes ‘where the last event
necessary to make the defendant liable for the tort took place,’ or where
the harmful effect of the defendant’s acts first took effect. . . . Stated
another way, a tort accrues where the plaintiff first suffers injury.”
Weinberg, 936 So. 2d at 709 (emphasis in original) (quoting Tucker v.
Fianson, 484 So. 2d 1370, 1371 (Fla. 3d DCA 1986)). Here, there was no
“injury” to Plaintiff until the allegedly defamatory Facebook post was
published and accessed (received and read). The trial court determined
that Plaintiff sufficiently established that the post was accessed by an
individual in Palm Beach County. Thus, the cause of action accrued in
that county (as it may have accrued in other counties where a person or
persons accessed the statement, as the message was posted
simultaneously in all sixty-seven Florida counties). 3 Accordingly, we join
the trial court in declining to disturb Plaintiff’s choice of venue.
3This does not mean that the purported victim of defamation can initiate causes
of action in multiple counties based on the same posting. As indirectly noted
earlier, “[n]o person shall have more than one choice of venue for damages for
8
Affirmed.
CIKLIN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
libel or slander, invasion of privacy, or any other tort founded upon any single
publication, exhibition, or utterance . . . . Recovery in any action shall include
all damages for any such tort suffered by the plaintiff in all jurisdictions.” §
770.05, Fla. Stat.
9