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Filing # 43566505 E-Filed 07/05/2016 05:13:57 PM

IN THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL CIRCUIT


IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
SEAFARER EXPLORATION CORP.,
Plaintiff,
CASE NO.: 14-CA-8902
DIV: L
-vDARRELL VOLENTINE, an individual,
Also Known as BUCCANEER1961
Defendant.
____________________________________/
PLAINTIFF SEAFARER EXPLORATIONS OPPOSITION
TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Plaintiff, Seafarer Exploration Corp. hereby files this opposition to the motion for
summary judgment filed by the Defendant in this cause of action. The Plaintiff sets forth the
factual argument and legal authority by which the Defendants motion must be denied. The
Plaintiff hereby states the following:
I.
DEFENDANT IS NOT ENTITLED TO PROTECTION OF PRE-SUIT NOTICE
UNDER 770.01, FLORIDA STATUTES; DEFENDANT IS NOT A MEDIA
DEFENDANT
A.

FACTUAL ARGUMENT
To put the first issue the Defendant raises succinctly, the Defendant is no more entitled to

be treated as a media defendant for purposes of pre-suit notice, than someone who paints
graffiti on the side of a highway overpass. His attempt to duck liability under a recent Florida
appellate court ruling arguing that he is entitled to pre-suit notice fails miserably given the strict
limitations of that case and related authorities. Defendant Volentine attempts to argue that the
recent case of Comins v. Vanvoorhis, 135 So. 3d 545 (Fla. 5th DCA 2014), which extended such

notice to those who qualify as media and who use a blog owned by them, or controlled by
them, or for a news purpose for their publication applies to him. In this case, the complaint and
facts clearly set forth that the message board the Defendant used, Investorshub.com, is a message
board, and not a blog. The Complaint fully sets forth what Investorshub is, it is not blog, no
matter the term being used in the complaint with the term message board as well. The site is used
by tens of thousands of persons who post on thousands of stock message boards. (See Hubbard
Affidavit with public Investorshub.com Exhibits to Public Pages).
To frame the facts in a more relativistic method of publication the Defendant here posted
on a public message board site, which is more akin to Facebook or the comments section under
actual news articles on the web, than any news or editorial blog in itself by a refined author.
Investorshub is meant to share information and matters as to stocks and investments. Anyone can
post to the message or chat boards, unless excluded by the monitors for violation of the terms of
service. The Defendant Volentine posted thousands of messages among thousands of other
messages on dozens of message boards on InvestorsHub.com. One of those boards was the
Seafarer message board on InvestorsHub.com which is one of the thousands of board maintained
and controlled for messages by InvestorsHub.
The Defendant has filed a motion for summary judgment arguing that under the Comins
appellate case that he is a media defendant, arguing that he is a blogger. He is not a blogger
since the site wherein he posted (Investorshub.com) is not a site controlled by him, owned by
him, or even a blog site. Indeed, by the nature of his very postings on InvestorsHub.com to whit
he is being sued violated the terms of service of that commercial stock message board. Even
though the term blog was used in the plaintiffs complaint, the format where he posted was a
message board far outside the ownership, dominion or control as the term blog has been

extended under the limited new case law the Defendant now relies upon. Under the Defendants
theory, everyone who posts a message on Investorshub.com is entitled to the pre-suit notice of
770.01. The Defendant here did not start Investorshub.com, nor did he control it, nor was he in
the place to determine its content, nor was he even in control of his own posts, whether they
existed, were terminated, or removed. (See Ex.F Terms of Service to Hubbard Affidavit).
Investorshub.com is not a blog site at all. It is a message board. Persons posting to it are subject
to all the rules of Investorshub. They are not bloggers. They have no control at all. Volentine did
not post as a protected blogger, as do none of the thousands of persons who post on
Investorshub.com every day on the thousands of message boards.
Section 770.01, Florida Statutes that requires pre-suit notification in certain slander and
libel cases:
770.01. Notice condition precedent to action or prosecution for libel or slander
Before any civil action is brought for publication or broadcast, in a newspaper, periodical,
or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting
such action, serve notice in writing on the defendant, specifying the article or broadcast
and the statements therein which he or she alleges to be false and defamatory.
(emphasis added).
The issue in this case is not whether Internet bloggers can be media
defendants, as Volentine attempts to frame the question in his motion for summary
judgment. We know legally they can be. The issue is whether Darrell Volentine, sitting in front
of his computer in California, using an alias to hide himself, qualified as a media defendant
protected by the Notice Provision at the time of filing of the lawsuit. While Volentine would
like to steer this Court away from the actual evidence that was presented and alleged in the
matters filed and of record to the trial court, the issues presented in this case must be decided

based upon the specific facts, not a novel theory that does not protect Volentine. Those facts
establish that Volentine was a private individual posting on a free, public stock chat and
message board, hurling baseless, uninvestigated criminal allegations while hoping to remain
anonymous.
Volentine was an anonymous person on Investorshub until Seafarer investigated and
found his identity. These material facts are undisputed. Volentine posted his statements under a
fake name on a public forum. And yet, Volentine is now asking this Court to treat him as it
would a member of the media. The only way he can convince this Court of this is if the Court
agrees with his sweeping generalizations and holds that all Internet bloggers, regardless of the
facts and circumstances, are media defendants. Anything less will not suffice, because
Volentine, even if he was, and he is not, in the spectrum of bloggers, is stationed so far away
from any source of credible news or comment that he is not even in the same universe garnering
rights to protection.
In his Motion for Summary Judgment, Volentine seemingly argues, incorrectly, that
the 770.01 notice provision applies to all defendants who may blog, as media defendants.
Volentine relies on the Comins decision, and cited decisions there in support of this proposition.
However, Volentine is misconstruing and overextending the Comins decision by wanting this
Court to extend Comins to all internet bloggers, even though Volentine is not one himself.
Volentine is a message or chat board poster. An anonymous one, with no sentient intent at
producing anything approaching a newsworthy event, or editorial on real facts. Instead,
Volentine posts lies and accusations of criminal actions which are false (as pled) and to be
shown by evidence (as findings of fact at trial). Section 770.01 applies only to actions "for

publication or broadcast, in a newspaper, periodical, or other medium."

Fla. Stat.

770.01. Comins extended, somewhat, the other medium to bloggers with certain defined
characteristics. Comins was not meant to be extended to message or chat board posters, who
seek anonymity to hurl false allegations of criminal actions against parties, and who hardly fit
any of the progeny of cases cited in the Comins decision. Volentine is not exactly the striven for
theme that seeks out the next 60 Minutes host for journalistic goals. To hold that Section
770.01 applies to all would be defendants who post on a message or chat board would give
the language of that section absolutely no meaning.
The Comins case, succinctly put, involved comments published on a blog hosted by the
defendant, established by the defendant, on a blog service. The defendant posted allegations
about the Plaintiff involving a pet shooting on his blog, which he posted to under a pseudonym.
The Comins court limited its decision clearly when it reasoned and held:
By some accounts, there are in the range of 300 million blogs worldwide. The variety
and quality of these are such that the word blog itself is an evolving term and concept.
The impact of blogs has been so great that even terms traditionally well defined and
understood in journalism are changing as journalists increasingly employ the tools and
techniques of bloggers and vice versa. In employing the word blog, we consider a
site operated by a single individual or a small group that has primarily an informational
purpose, most commonly in an area of special interest, knowledge or expertise of the
blogger, and which usually provides for public impact or feedback. In that sense, it
appears clear that many blogs and bloggers will fall within the broad reach of media,
and, if accused of defamatory statements, will qualify as a media defendant for
purposes of Floridas defamation law as discussed above.
There are many outstanding blogs on particular topics, managed by persons of
exceptional expertise, to whom we look for the most immediate information on recent
developments and on whom we rely for informed explanations of the meaning of these
developments. Other blogs run the gamut of quality of expertise, explanation and evenhanded treatment of their subjects. We are not prepared to say that all blogs and all
bloggers would qualify for the protection of section 770.01, Florida Statutes, but we
conclude that VanVoorhiss blog, at issue here, is within the ambit of the statutes
protection as an alternative medium of news and public comment.

Comins, at 347 (emphasis added).


It is crucial to note that although Volentine is the moving party below and raised
Section 770.01 as a defense, he has brought no evidence before the trial court to prove he
was entitled to the statute's protection as a media defendant.

All he states is that he uses one

phrase from the Plaintiffs complaint to say that hey Im a blogger too, so protect me. By
contrast, the substantial evidence through pleadings and exhibits in this case shows that
Volentine could not qualify as a media defendant under any applicable definition which exists.
Anyone Can Have a Blog, but Volentine did Not.
Volentine cites no evidence that he is a blogger. Instead he relies upon the Comins
decision to dissect the Plaintiffs complaint which used the term blog and message board
posting interchangeably. Volentine cites no facts that make his actions and writings a blog
worth the protections of a media actor. He then makes the giant leap to claim that he is therefore
a media defendant.

Volentine seems is arguing that anyone who has a "blog" qualifies as a

media defendant, notwithstanding the fact that anyone, regardless of age or qualification,
can go online, create a usemame, and have their very own blog for free through Google
(BlogSpot), Yahoo (WordPress) or numerous other sites. Volentine did none of this. Volentine
is one of hundreds who post on the Seafarer message board on Investorshub. Are they all
entitled to the same protection for which he prays from this Court? If so, then 770.01 is
meaningless when given these anonymous posters.
Before his actions and writing of criminal allegations which are the epitome of libel per
se under Florida law, Volentine undertook no actions as a media actor would. Not only did he
not personally have any firsthand knowledge of the accusations he made, he never undertook

any witness interview, commence any communication with the Company to ascertain facts,
conduct any research of actual facts, or in any way act and partake in those duties that make for
actual media and journalistic character. Volentine simply took it upon himself to begin to write
derisive, unfounded, insidious and vile accusations of criminal actions about the Company and
its management. Edward R. Murrow he is not.
B.

APPLICABILITY OF 770.01 TO DEFENDANT - LEGAL AUTHORITY

The only question the Defendant presents in the case sub judice is whether or not he
himself, while hiding behind an anomymous moniker on a message board used by hundreds of
posters on the Seafarer site alone, is a media defendant such that Seafarer was required to
provide Volentine with a pre-suit notice letter. "Although the express language of section 770.01
does not limit the type of defendant entitled to pre-suit notice, '[e]very Florida court that has
considered the question has concluded that the pre-suit notice requirement applies only to "media
defendants," not to private individuals.'" Comins v. Vanvoorhis, 135 So. 3d 545, 549 (Fla. 4th
DCA 2014) (quoting Zelinka v. Americare Healthscan, Inc., 763 So. 2d 1173, 1175 (Fla. Dist.
Ct. App. 2000)). In defining the term "media defendant," courts have considered whether the
defendant engages in the traditional function of the news media, which is "to initiate 'uninhibited,
robust, and wide-open debate on public issues.'" Ortega Trujillo v. Banco Cent. Del Ecuador, 17
F. Supp. 2d 1334, 1338 (S.D. Fla. 1998) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340
(1974)). Thus, media defendants are not just those who "impartially disseminate information," or
"issue unsolicited, disinterested and neutral commentary as to matters of public interest." Ortega
Trujillo, 17 F. Supp. 2d at 1338. The term also applies to those who "editorialize as to matters of
public interest without being commissioned to do so by [their] clients." Id.

Before the Comins decision, Florida courts have all held that the 770.01 notice
provision applies only to media defendants, based upon the plain language of the statute
and long-standing public policy. Mancini v. Personalized Air Conditioning & Heating, Inc.,
702 So. 2d 1376, 1380 (Fla. 4th DCA 1997); Zelinka v. Americare Healthscan, Inc., 763 So. 2d
1173, 1175 (Fla. 4th DCA 2000). Likewise, although Volentine seemingly seems to argue
that the Notice Provision was meant to apply to all defendants who in fact are not bloggers,
but merely internet board posters, ever since the statute was amended in 1976, Florida
courts interpreting the post- amendment statute have explicitly declined to apply it to all
defendants. Davies v. Bossert, 449 So. 2d 418, 420 (Fla. 3d DCA 1984) ("All of the Florida
state court cases

which

interpret

the notice

requirement

of Section

770.01

involve newspapers, periodicals or broadcasting companies (either radio or television))."


Bridges v. Williamson, 449 So. 2d 400,401 (Fla. 2d DCA 1984); Mancini, 702 So.
2d at 1380; Zelinka, 763 So. 2d at 1175 ("Every Florida court that has considered
the question has concluded that the pre suit notice requirement" does not apply to private
individuals. . . . "no precedent would allow this court to extend the statutory notice
requirement to a private individual who merely posts a message on [an Internet message]
board").
The terms media and non-media defendants are meant to distinguish between third
parties who are not engaged in the dissemination of news and information through the news and
broadcast media from those who are so engaged.'" Id. (quoting Mancini v. Personalized Air
Conditioning & Heating, Inc., 702 So. 2d 1376 (Fla. 4th DCA 1997)). Nothing in the
Defendants Affidavit, the evidence so far submitted or the admissible pleadings for purposes of

this motion in any way give any indicia that the Defendant is a "media defendant."
II.

SUMMARY JUDGMENT AS TO ACTUAL DAMAGES IS NOT APPROPRIATE


The Defendant attempts to pose, in the second issue, that the Company has not presented

sufficient matters to sustain such portion of the complaint for actual damages. What the
Defendant herein fails to grasp is thatthe causes of action contained in the complaint are those of
libel per se, not merely the common law defamation count of simple libel. Indeed, the complaint
in both counts One and Two called for [t]he Plaintiff seeks compensatory and special damages,
including a reservation of rights for punitive damages to be sought in this cause of action. It
should be noted that not only did the set out the damages but such pleading acts as opposition to
the argument that Volentine is entitled to summary judgment as to damages. The damages claims
set forth in the complaint as to actual damages survive such motion with the pleading present in
the Complaint, together with the affidavit of the allegations of actual losses being real as
presented in such Complaint.
What must be noted is that the Defendant has fallen for the pleading strategy of the
Plaintiff, concentrating on what was the most narrated amount of damages in the Complaint,
which is those of the actual damages, while ignoring the largest and most vast segment of
damages, that being the special and punitive damages which will be sought and awarded. So be
it. If the Defendant, in his clouded legal abilities attempts to attack the least wanted and targeted
of the damages that he will be liable for, then we entertain such argument. He still loses since the
pleadings and evidence of record supports even the least desired of the damages that he will be
held liable for, being actual damages. In the face of pleading and evidence presented, including
the pleading, affidavit, along with stock charts and matters produced to the Defendant, summary
judgment, as a matter of law cannot be granted.

[A]n action for libel will lie for a false and unprivileged publication by letter, or
otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which
causes such person to be avoided, or which has a tendency to injure such person in [their] office,
occupation, business or employment. LRX, Inc. v. Horizon Assoc. Joint Venture ex rel.
Horizon-ANF, Inc., 842 So. 2d 881, 885 (Fla. 4th DCA 2003) (quoting Thomas v. Jacksonville
Television, Inc., 699 So. 2d 800, 803 (Fla. 1st DCA 1997)).
[A] publication is libelous per se, or actionable per se, if, when considered alone without
innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person
with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule,
contempt, or disgrace; or (4) it tends to injure one in his trade or profession. Richard v. Gray, 62
So. 2d 597, 598 (Fla. 1953); see also Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001)
(When a statement charges a person with committing a crime, the statement is considered
defamatory per se. (citation omitted)). In Gertz, the Court held that so long as they do not
impose liability without fault, the States may define for themselves the appropriate standard of
liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.
Gertz, 418 U.S. at 347. After Gertz, the Florida Supreme Court recognized that, with respect to a
libel action against the media, it is no longer accurate to say that [w]ords amounting to a libel
per se necessarily import damage and malice in legal contemplation, so these elements need not
be pleaded or proved, as they are conclusively presumed as a matter of law. Mid-Fla.
Television Corp. v. Boyles, 467 So. 2d 282, 283 (Fla. 1985) (quoting Layne v. Tribune Co., 146
So. 234 (1933)). Thus, after Gertz, in libel cases involving media defendants, fault and proof of
damages must always be established. Notably, the instant case does not involve a media
defendant. Libel per se otherwise still exists in Florida. See Lawnwood Med. Ctr., Inc. v. Sadow,

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43 So. 3d 710, 727-29 (Fla. 4th DCA 2010) (containing discussion of the presumption of
damages that applies in defamation per se cases); Perry v. Cosgrove, 464 So. 2d 664, 666 (Fla.
2d DCA 1985) (reversing trial courts grant of a motion to dismiss a libel per se action brought
by a former editor of a newspaper against his supervisor, who had written a letter to a reader
suggesting that the editor was fired for reasons that were shameful); Owners Adjustment
Bureau, Inc. v. Ott, 402 So. 2d 466, 470 (Fla. 3d DCA 1981) (concluding that statements in a
letter amounted to libel per se as a matter of law).
Damages for libel per se in this case need not, but do include those damages set forth in
the Complaint, which has been attested to and is a determination of fact which is subject to trial,
not to summary judgment. As well the causes of action for libel per se will result in the larger
determinations of the exceptional damages, and the punitive damages, which have been pled. As
well the Plaintiff has filed the motion for punitive damages which is pending before the Court.
Proof of actual damages is not necessary to prove a cause of action for defamation per se
because general damages are presumed. Mobile Homes, Inc., 344 So. 2d 279, 281 (Fla. 1st DCA
1977)(Words which are actionable in themselves, or per se, necessarily import general damages
and need not be pleaded or proved but are conclusively presumed to result.). Unprivileged oral
communication is actionable per se if the statement imputes to another (1) a criminal offense
amounting to a felony; (2) an existing venereal or other loathsome and communicable disease;
(3) conduct, characteristics, or a condition incompatible with the proper exercise of the persons
lawful business, trade, profession, or office; or (4) the persons acts of un-chastity. Campbell v.
Jacksonville Kennel Club, 66 So. 2d 495, 497 (Fla. 1953). Unprivileged written communication
is actionable per se if, when considered alone without innuendo, it (1) charges that a person has

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committed an infamous crime or (2) tends to injure one in his trade or profession. See Richard v.
Gray, 62 So.2d 597, 598 (Fla.1953).
III.

STANDARD OF REVIEW
The purpose of summary judgment is to avoid the expense and delay of trial

when no issue exists concerning the material facts. National Airlines, Inc. v. Florida Equipment
Company of Miami, 71 So.2d 741 (Fla. 1954). Under the case law interpreting the summary
judgment rule and law, summary judgment cannot be granted in this case, since the rule of law
in this matter is not in favor of such a ruling. Florida Courts have held that:
We have consistently held in accordance with Florida Rule of Civil Procedure
1.510(c) that a motion for summary judgment should not be granted unless the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. E.g., Snyder v. Cheezem Dev.
Corp., 373 So.2d 719 (Fla. 2d DCA 1979). The party moving for summary judgment
has the burden of establishing irrefutably that the nonmoving party cannot prevail. E.g.,
Gomes v. Stevens, 548 So.2d 1163 (Fla. 2d DCA 1989). Furthermore, it is only after the
moving party has met this heavy burden that the nonmoving party is called upon to show
the existence of genuine issues of material fact. E.g., Williams v. Beckham & McAliley,
P.A., 582 So.2d 1206 (Fla. 2d DCA), review denied, 592 So.2d 683 (Fla.1991). Hervey v
Alphonso, 650 So.2d 644 (Fla. 2d DCA 1995).
Additionally, the Second District has held in Hervey, held that there could be no
existence of any issue of material fact which would interfere with any interpretation of
the pleadings for the granting of a summary judgment motion. The additional citation
and holding in Hervey was the following:
Thus if the record reflects the existence of any genuine issue of material fact or the
possibility of any issue, or if the record raises even the slightest doubt that an issue
might exist, that doubt must be resolved against the moving party and summary
judgment must be denied. E.g.,Burroughs Corp. v. American Druggists' Ins. Co., 450
So.2d 540 (Fla. 2d DCA 1984). Additionally, even when the facts are uncontroverted,
the entry of summary judgment is likewise erroneous if different inferences can be
drawn reasonably from those facts. E.g., Staniszeski v. Walker, 550 So.2d 19 (Fla. 2d
DCA 1989).

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Hervey, 650 So.2d at 646.

WHEREFORE, Plaintiff, Seafarer Exploration Corp., hereby requests


this Court to enter an Order denying the Defendants Motion for Summary Judgment.
CERTIFICATE OF SERVICE
I hereby certify that this notice of filing was served via electronic filing system to Evan
Kidd, Esquire to email evankiddjd@gmail.com and to Darrell Volentine, Defendant, at
svpestman@aol.com on this 5st Day of July, 2016.

Respectfully submitted,

/s/ Craig A. Huffman


_______________________
Craig A. Huffman, Esquire
Florida Bar No. 116149
Securus Law Group, P.A.
13046 Racetrack Road
Tampa, Florida 33626
Telephone (888) 914-4144
Facsimile (888) 783-4712
E-mail: craig@securuslawgroup.com

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