Comins v. Vanvoorhis

135 So. 3d 545, 42 Media L. Rep. (BNA) 2021, 2014 WL 1393081, 2014 Fla. App. LEXIS 5318
CourtDistrict Court of Appeal of Florida
DecidedApril 11, 2014
DocketNo. 5D11-2754
StatusPublished
Cited by10 cases

This text of 135 So. 3d 545 (Comins v. Vanvoorhis) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Comins v. Vanvoorhis, 135 So. 3d 545, 42 Media L. Rep. (BNA) 2021, 2014 WL 1393081, 2014 Fla. App. LEXIS 5318 (Fla. Ct. App. 2014).

Opinion

GRIFFIN, J.

In this defamation case, Christopher Co-mins [“Comins”], appeals a trial court order entering partial final judgment in favor of Appellee/Cross-Appellant, Matthew VanVoorhis [“VanVoorhis”], for Comins’s failure to comply with the presuit notice requirement of section 770.01, Florida Statutes (2008). Comins argues that the trial court erred because VanVoorhis is not a “media defendant” and thus is not entitled to presuit notice. Alternatively, Co-mins contends that, even if VanVoorhis had been entitled to presuit notice, Van-[547]*547Voorhis waived that right by his efforts to remain anonymous.1 We affirm.

This case arises out of a May 19, 2008 incident that involved Comins. According to various reports prepared by the Orange County Sheriffs Office, at around 4:30 p.m., people began to notify authorities that two wolves or dogs were in a pasture with cattle located near the intersection of State Road 417 and Narcoosee Road. Over the next two hours, the Orange County Sheriffs Office Communications Center received multiple calls. Some witnesses believed, at first, that the dogs were wolves; other witnesses stated that they knew the dogs were domestic animals because the dogs had collars. Witnesses reported observing the dogs circling and cornering the cattle, including a young calf. Some witnesses believed the dogs were just playing; others thought the dogs were acting in an aggressive manner. Eventually, reports came in that a man had shot the dogs. Twenty people were listed as witnesses to the shooting.

Comins, who is friends with the landowner, was driving past the pasture as these events were unfolding, and called to alert the landowner of the situation. According to Comins and the landowner, the landowner told Comins that animals attacking the cattle should be shot. Comins said he went into the pasture, was confronted by the dogs, felt threatened, and shot at the dogs six times. The following narrative was prepared by the Orange County Sheriffs Office in their investigative findings:

After the sixth shot at the dogs, an unknown man (later identified as Christopher Butler [the dogs’ owner]) to Co-mins ran into the pasture to protect and/or take control of the dogs. Statements indicate that Butler was yelling that the dogs were his though Comins said he was not aware that he was the actual owner nor did Comins hear Butler.
Comins looked at this person (Butler) while Butler was moving to cover one of the dogs. Comins then turned around and fired the seventh and final shot at the second dog.
Comins had turned his back on the second dog, placed his gun into his right back pocket and walked eleven steps away from this dog. He then turns around, pulls his gun and fires the seventh shot when the dog attempts to stand up as indicated in the original video.
Where Butler is physically in control of the first dog and the second dog is having difficulty standing or moving far, the need to continue shooting the second dog to protect the cattle is no longer required.
Turning around to shoot the second dog behind Comins’ back while Butler was present was unnecessary per Florida State Statute 828.12 [Cruelty to Animals].

Local news outlets, such as the Orlando Sentinel, WKMG Local 6, WESH Channel 2, and WFTV Channel 9, reported on the incident. Then, in early June 2008, a witness to the incident, who had caught the shooting on camera, posted the video of the shooting onto YouTube. Throughout the summer, the incident continued to be [548]*548reported in the news. Thousands of people signed an online petition, entitled “Justice for Husky Dogs Shot in Orange County, Florida,” demanding that Comins be charged with animal cruelty. Eventually, in late July, Comins was charged with one count of misdemeanor animal cruelty.

VanVoorhis learned about the incident from a Facebook group that had been created to express outrage over the incident. At this time, VanVoorhis had a bachelor’s degree in sociology from Indiana University, a master’s degree in sociology from the University of Florida, and was working towards his doctoral degree in sociology at the University of Florida. Since 2007, VanVoorhis had maintained a blog, entitled “Public Intellectual,” using the online blog platform, Word-Press.2 He ran the blog under a pseudonym, M. Frederick Voorhees (his full legal name being Matthew Frederick VanVoo-rhis). VanVoorhis testified in his deposition that he founded the blog in order to “publicly comment on issues of public concern in an intellectual manner without tying my comments to my professional identity.” 3 VanVoorhis testified that he went by a pseudonym to protect his identity because, while a student, he wrote critiques of academia as an institution and its ability to connect with the public. Relying on the video itself and the online news articles reporting the incident, VanVoorhis published the blog posts at issue in this case.

Sometime in early 2009, Comins became aware of VanVoorhis’s blog posts. Comins traced the blog posts to the University of Florida’s computer network and, subsequently, through counsel, sent a letter [the “Killgore letter”] to “M. Frederick Voorhees” c/o the University of Florida on March 23, 2009. In this letter, Comins’s attorney, Frank H. Killgore, Jr. [“Attorney Killgore”], expressed concern over several death threats that individuals had made in the blog’s comments section and over the fact that Comins’s personal and business contact information had been posted in the comments section. Attorney Killgore requested that VanVoorhis delete the blog in its entirety or, at least, remove the death threats and all references to Comins’s contact information.4 Comins then reported the blog post to the University of Florida Police Department, which contacted Van-Voorhis about Comins’s complaint.

Eventually, Comins obtained VanVoo-rhis’s full legal name and address. On May 13, 2009, Comins filed a four-count complaint against VanVoorhis for libel (Count I), libel per se (Count II), defamation by implication (Count III), and tor-tious interference with a business relationship (Count IV). Thereafter, VanVoorhis filed a counterclaim • against Comins for abuse of process and filed an answer and asserted eleven affirmative defenses to Co-mins’s complaint. At issue here is Van-Voorhis’s fifth affirmative defense that Co-mins failed to comply with the presuit notice requirement of section 770.01 before [549]*549filing the complaint against him. Section 770.01 provides:

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.

§ 770.01, Fla. Stat. (2008). VanVoorhis also filed a motion to dismiss the lawsuit on this same basis. On September 10, 2010, the trial court held a hearing on the motion to dismiss. Comins’s counsel, Christopher M. Harne [“Attorney Harne”], told the trial court that presuit notice had been sent. Based on this representation, the trial court granted VanVoorhis’s motion to dismiss, but gave Comins leave to amend his complaint to properly plead compliance with the presuit notice requirement.

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Cite This Page — Counsel Stack

Bluebook (online)
135 So. 3d 545, 42 Media L. Rep. (BNA) 2021, 2014 WL 1393081, 2014 Fla. App. LEXIS 5318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comins-v-vanvoorhis-fladistctapp-2014.