Timmins v. Gore Newspapers Co.

339 So. 2d 255, 1976 Fla. App. LEXIS 15924

Opinion

ON REHEARING

PER CURIAM.

Upon consideration of appellee’s petition for rehearing and further review of the record on appeal we are of the view that the order dismissing count one of appellant’s amended complaint with prejudice for failure to state a cause of action was improvidently reversed. The instant allegation of libel is based upon the republication of a photograph which already has been found by this court to be not libelous. Timmins v. Gore Newspapers Company, 267 So.2d 891 (Fla. 4th DCA 1972). The doctrine of estoppel by judgment therefore precludes appellant from further litigating the issue. E. g., Shearn v. Orlando Funeral Home, 88 So.2d 591 (Fla.1956).

Accordingly, the opinion filed by this court on August 31, 1976 is vacated and withdrawn and the appealed order is affirmed.

AFFIRMED.

MAGER, C. J., and TROWBRIDGE, C. PFEIFFER, Associate Judge, concur. CROSS, J., dissents.