SAMUEL COHEN, APPELLANT,
v.
ADA TURKISH TRASK, APPELLEE
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PER CURIAM.
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.
JORGENSON, Judge,
dissenting.
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.
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Henshaw v. Edward E. Clark Engineers-Scientists, Inc., 490 So. 2d 161 (Fla. 3d DCA 1986)…ranted; the deficiency may be corrected by amending the complaint. See DeCarlo v. Sammons, 375 So. 2d 351 (Fla. 3d DCA 1979) (entry of summary judgment not proper vehicle for disposition of faulty or insufficient pleadings); see also Cohen v. Trask, 471 So. 2d 1294 (Fla. 3d DCA 1985). We note that the evidence relied upon by the appellants in opposing the appellee’s motion for summary judgment, essentially as set out herein, is in sharp dispute. It is the existence of this dispute which precludes summary judg…
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Cohen v. Spizz, 493 So. 2d 5 (Fla. 3d DCA 1986)…71 So. 2d 570, 570-71 (Fla. 3d DCA 1985). Third, this reversal shall be without prejudice to the defendants’ subsequent filing of a motion for judgment on the pleadings or motion for summary judgment, upon remand, if appropriate. See Cohen v. Trask, 471 So. 2d 1294, 1295 (Fla. 3d DCA 1985), pet. for review denied, 482 So. 2d 350 (Fla.1986). Reversed and remanded.…
Authorities Cited
- Dave Zinn Toyota, Inc. v. Dep't OF Hwy. Safety & Motor Vehicles, 432 So. 2d 1323 (Fla. 3d DCA 1983)
- The Est. OF George Drew Conger v. Conger, 414 So. 2d 230 (Fla. 3d DCA 1982)
- The Fla. Citrus Comm'n & Indian River Citrus League v. Owens, 239 So. 2d 840 (Fla. 4th DCA 1969)
- Truxell v. Truxell, 259 So. 2d 766 (Fla. 1st DCA 1972)
- Browning v. State, 242 So. 2d 873 (Fla. 1971)
- Smiley v. DAY, 242 So. 2d 873 (Fla. 1971)
- Integrated Container Servs., Inc. v. Overstreet, 375 So. 2d 1146 (Fla. 3d DCA 1979)