JANET L. GIFFORD, APPELLANT,
v.
WILLIAM MAXWELL BRUCKNER, JR., A/K/A "BILL BRUCKNER" AND FLORIDA AERIAL ADVERTISING INC., A FLORIDA CORPORATION, APPELLEES
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Janet Gifford appealed the dismissal of her defamation action against William Bruckner and Florida Aerial Advertising, which had towed allegedly defamatory messages via airplane banner over St. Petersburg. The court reversed, holding that Florida's pre-suit notice requirement for defamation does not apply to aerial banner advertising, which is not a 'medium' within the statutory definition.
The court reversed the dismissal order, holding that section 770.01 does not apply to aerial banner advertising because such advertising does not constitute a 'medium' within the statutory definition, which the legislature intended to include only television and radio broadcasters. The court did not address whether the complaint stated a cause of action but remanded for Gifford to amend her complaint.
[1] Statutory notice requirements for defamation actions do not apply to non-media defendants.
[2] A banner towed by an airplane is not considered a "medium" within the meaning of statutes requiring notice before a defamation action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“However, this court has held that section 770.01 does not apply when an action is brought against a non-media defendant.”
Establishes the foundational rule that the pre-suit notice statute does not apply to all defamation defendants
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Join FLexlaw to unlock all legal intelligenceBruckner, controlling officer of Florida Aerial Advertising, towed messages via airplane banner over St. Petersburg on various dates. Gifford alleged …
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PER CURIAM.
Janet Gifford appeals an order of the circuit court which dismisses her defamation action against appellees William Bruckner and Florida Aerial Advertising.1 We reverse.
Gifford’s complaint charged that Bruckner, the controlling officer of Florida Aerial Advertising, overflew the city of St. Petersburg on various dates towing messages which Gifford asserted were defamatory. In its order of dismissal the circuit court found that the complaint failed to allege a cause of action and that Gifford had not complied with the requirements of section 770.01, Florida Statutes (1989). This section 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 alleges to be false and defamatory.
Prior to filing her complaint Gif-ford wrote appellees’ counsel demanding a retraction. It would appear that this letter, which did not fully identify the allegedly defamatory statements, provided insufficient notice. See, e.g., Hulander v. Sunbeam Television Corp., 364 So. 2d 845 (Fla. 3d DCA 1978), cert. denied, 373 So. 2d 459 (Fla.1979).2 However, this court has held that section 770.01 does not apply when an action is brought against a non-media defendant. Bridges v. Williamson, 449 So. 2d 400 (Fla. 2d DCA 1984).
A thorough analysis of the term “medium,” as used in the statute, was conducted in Davies v. Bossert, 449 So. 2d 418 (Fla. 3d DCA 1984), with the court concluding that the legislature intended to include only television and radio broadcasters. Despite ap- pellees’ claim that Florida Aerial is engaged in “media activities [and] is a media defendant,” we cannot agree that a banner towed overhead by an airplane falls within the purview of the statute. To the extent it holds to the contrary, the circuit court’s order is in error. Gifford does not contest on appeal that portion of the order which holds that her complaint fails to state a cause of action.
Therefore, after remand the circuit court shall afford Gifford a reasonable time within which to amend her complaint.
Reversed.
DANAHY, A.C.J., and CAMPBELL and FRANK, JJ., concur. . This appeal was initiated by the timely filing of notice.
However, because the circuit court’s order indicates that the dismissal of Gifford’s complaint is "without prejudice,” appellees maintained that the order was non-final in nature and thus not appealable. Hancock v. Piper, 186 So. 2d 489 (Fla.1966).
Gifford, in response to the motion, suggested that review by certiorari would be appropriate because of the possibility of irreparable injury that would not be remediable by appeal. See Bridges v. Williamson, 449 So. 2d 400, 401 (Fla. 2d DCA 1984).
We denied appellees' motion to dismiss on this basis. Having reviewed the entire record as well as the briefs submitted by both parties, we now conclude that the circuit court's order is in fact a final order and therefore appealable. Compli-atice with section 770.01, where necessary, is a condition precedent to maintaining an action, and one cannot satisfy the statute by providing notice subsequent to filing the complaint. Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. 4th DCA 1975).
If the statute were applicable to Gifford’s action, amendment of the existing complaint would not be authorized. Presumably, therefore, the circuit court dismissed the action without prejudice to refile rather than merely to amend.
. A second and more thorough letter from Gif-ford's attorney followed, but not until after the filing of the complaint.
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Pansy O. Carlton v. Wal-Mart Stores, Inc., 621 So. 2d 451 (Fla. 1st DCA 1993)…er than “without prejudice” to file an amended complaint in the first action. We believe that, because the dismissal ends the judicial labor in the first action, the dismissal is sufficiently “final” to permit an appeal. Compare Gifford v. Bruckner, 565 So. 2d 887 (Fla. 2d DCA1990) (order dismissing action “without prejudice” is a final order when it is clear that the order was intended to be “without prejudice” to file another action, rather than to amend the complaint in the first action), with Augustin v.…
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Mancini v. Personalized AIR Conditioning & Heating, Inc., 702 So. 2d 1376 (Fla. 4th DCA 1997)…ction 770.01, which she claims was a condition precedent to plaintiffs suit for libel. Failure to comply with the notice provision of section 770.01 requires dismissal of the complaint for failure to state a cause of action. See Gifford v. Bruckner, 565 So. 2d 887 (Fla. 2d DCA 1990); Davies v. Bossert, 449 So. 2d 418 (Fla. 3d DCA 1984); Cummings v. Dawson, 444 So. 2d 565 (Fla. 1st DCA 1984). If section 770.01 applies, defendant is entitled to certio-rari relief from the trial court’s refusal to dismiss the co…
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Zelinka v. Americare Healthscan, Inc., 763 So. 2d 1173 (Fla. 4th DCA 2000)…“other medium” to refer to television and radio broadcasting stations, concluding that the section did not apply to broadcasts over the citizen’s band radio. See Davies v. Bossert, 449 So. 2d 418, 420 (Fla. 3d DCA 1984). Compare Gifford v. Bruckner, 565 So. 2d 887 (Fla. 2d DCA 1990)(holding that section does not apply to defendant who flew airplane towing banner with alleged defamatory statements). Petitioner asserts that this court should find that the internet is an “other medium” within the meaning of the…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. 4th DCA 1975)
- Hancock v. Wilford J. Piper and Alida Piper, 186 So. 2d 489 (Fla. 1966)
- Columbus Bridges and Alma P. Bridges v. Carlton Williamson, 449 So. 2d 400 (Fla. 2d DCA 1984)
- A.B. v. State, 449 So. 2d 418 (Fla. 3d DCA 1984)
- Gustav E. Hulander v. Sunbeam Television Corp., 364 So. 2d 845 (Fla. 3d DCA 1978)