Opinion
No. 84-2058.
May 28, 1985. Rehearing Denied July 22, 1985.
Appeal from the Circuit Court, Dade County, Rhea Pincus Grossman, J.
Milton E. Grusmark, Miami, for appellant.
Kimbrell, Hamann, Jennings, Womack, Carlson Kniskern and Michael Fertig, Miami, and Matthew Minnow, for appellee.
Before HENDRY and DANIEL S. PEARSON and JORGENSON, JJ.
The summary judgment entered against the plaintiff on the ground that his defamation action against the defendant was barred by New York's one-year limitation period for such action is reversed upon a holding that, although the complaint is imprecise, it can generously be viewed as saying that the defamatory material first published in New York was later republished in Florida, thus meaning that Florida's four-year statute of limitations would apply to this republication, and an action based on the republication would not be limitations-barred. Upon remand, the plaintiff should be permitted to amend his complaint to specifically set forth when the publication in Florida occurred and to whom and under what circumstances it was made. Our decision is without prejudice to the defendant's right to move again for summary judgment on any appropriate grounds.
Reversed and remanded.
HENDRY and DANIEL S. PEARSON, JJ., concur.
I respectfully dissent. The court's generous view of the complaint amounts to appellate largesse rarely seen in our cases. While appellate courts frequently and properly affirm trial court rulings if they are correct for any reason which appears in the record, appellate courts rarely reverse trial court rulings on issues not framed in the appeal (appellant's own brief states: "The only issue raised here is which Statute of Limitations applies to this case."), see, e.g., Truxell v. Truxell, 259 So.2d 766 (Fla. 1st DCA 1972); Florida Citrus Commission v. Owens, 239 So.2d 840 (Fla. 4th DCA 1970) (on rehearing), cert. denied, 242 So.2d 873 (Fla. 1971), or not raised below. See, e.g., Estate of Conger v. Conger, 414 So.2d 230, 232 n. 1 (Fla. 3d DCA 1982); Integrated Container Services, Inc. v. Overstreet, 375 So.2d 1146, 1147 (Fla. 3d DCA 1979). The issue involved in this appeal is the propriety of the trial court's ruling on a motion for summary judgment, not a motion to dismiss without leave to amend.
The complaint does not mention any tortious acts occurring in Florida. The trial court properly applied section 95.10, Florida Statutes (1983), and the relevant leading case on this issue, Pledger v. Burnup Sims, Inc., 432 So.2d 1323 (Fla. 4th DCA 1983), rev. denied, 446 So.2d 99 (Fla. 1984), which is indistinguishable from the case at bar.
I would affirm the summary judgment.