Gifford v. Bruckner

• Decision Date: 17 August 1990
• Docket Number: No. 90-00238,90-00238
• Citation: Gifford v. Bruckner, 565 So.2d 887 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D2113 Janet L. GIFFORD, Appellant, v. William Maxwell BRUCKNER, Jr., a/k/a "Bill Bruckner" and Florida Aerial Advertising Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 887

565 So.2d 887

15 Fla. L. Weekly D2113

Janet L. GIFFORD, Appellant, v. William Maxwell BRUCKNER, Jr., a/k/a "Bill Bruckner" and Florida Aerial Advertising Inc., a Florida corporation, Appellees.

No. 90-00238.

District Court of Appeal of Florida Second District.

Aug. 17, 1990.

Paul E. Gifford of Law Offices of Paul E. Gifford, Miami, for appellant.

Brent A. Owens and Dennis P. Dore of Dennis P. Dore, P.A., Tampa, for appellee William Maxwell Bruckner, Jr.

Jawdet I. Rubaii, Clearwater, for appellee Florida Aerial Advertising, Inc.

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 Gifford 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 appellees' 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.

1 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 (F...