Opinion
No. 78-1346.
June 5, 1979. Rehearing Denied July 5, 1979.
Appeal from Circuit Court, Dade County; John V. Ferguson, Judge.
Nathan Kurtz, Miami, for appellant.
Joseph P. Averill, Miami, for appellees.
Before PEARSON, HENDRY and BARKDULL, JJ.
The complaint, which alleges libel, is fatally defective in that the plaintiff has failed to allege compliance with Section 770.01, Florida Statutes (1977). See Hevey v. News-Journal Corporation, 148 So.2d 543 (Fla. 1st DCA 1963). Nevertheless, the trial court allowed discovery and, thereafter, entered a summary final judgment for the defendants. The discovery fully supported the judgment because no genuine issue of material fact appears from the plaintiff's admissions that he had no proof of actual malice. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See also State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So.2d 904 (Fla. 1977); and Ross v. Gore, 48 So.2d 412 (Fla. 1950).
Affirmed.