       Third District Court of Appeal
                                State of Florida

                            Opinion filed March 1, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-1821
                          Lower Tribunal No. 12-19002
                              ________________


                                   Cecil Rolle,
                                     Appellant,

                                         vs.

                     Cold Stone Creamery, Inc., et al.,
                                     Appellees.


      An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.

      Jonathan P. Stevens (Gainesville); Melanie C. Hapner (Fort Lauderdale), for
appellant.

      Zarco Einhorn Salkowski and Brito, P.A., and Robert M. Einhorn, Alejandro
Brito, Christopher Wiesman, and Alaina B. Siminovsky, for appellees The
NIACCF, Inc., Robert Zarco, Esq., Zarco Einhorn Salkowski and Brito, P.A.,
Rodolfo Puig, Frank Caperino, and Edward Reesman; Kubicki Draper and Caryn
L. Bellus and Bretton C. Albrecht, for appellees Cold Stone Creamery, Inc., The
Kahala Corp., and Daniel Beem.

Before LAGOA and FERNANDEZ, JJ., and SHEPHERD, Senior Judge.

      LAGOA, J.
        Cecil Rolle (“Rolle”) appeals from orders dismissing his First Amended

Complaint against Cold Stone Creamery, Inc. (“Cold Stone”), the Kahala Corp.

(“Kahala”), the National Independent Association of Cold Stone Creamery

Franchisees, Inc. (“NIACCF”), Robert Zarco, Esq. (“Zarco”), Zarco Einhorn

Salkowski & Brito, P.A. (“Zarco P.A.”), Daniel Beem, Rodolfo Puig, Frank

Caperino, and Edward Reesman (collectively, “Appellees”), with prejudice. We

reverse the two orders of dismissal with prejudice because the trial court went

outside the four corners of the complaint and its attachments in granting the

Appellees’ motions to dismiss.

I.      FACTUAL AND PROCEDURAL HISTORY

        In 2010, Rolle, a former Cold Stone franchisee, participated in a CNBC

documentary titled, “Behind the Counter: The Untold Story of Franchising” (the

“Documentary”). Cold Stone declined an invitation to participate in the

Documentary. The Documentary began airing on December 16, 2010.

        In response to the Documentary airing, Cold Stone retained Zarco to

represent the Cold Stone Creamery Franchisee National Advisory Board (“NAB”)

and NIACCF. On December 23, 2010, Zarco sent a letter (the “Letter”) to David

Sternlicht, media counsel for CNBC.1 In the Letter, Zarco chastised CNBC for

broadcasting the Documentary and stated that Rolle made false and defamatory

statements about Cold Stone in the Documentary.          Zarco also defended Cold


1   The Letter is attached as an exhibit to Rolle’s First Amended Complaint.
                                             2
Stone’s business practices against Rolle’s claims and demanded that CNBC stop

broadcasting the Documentary. The Letter did not explicitly threaten litigation

against CNBC or Rolle, but concluded as follows:

      For the numerous reasons expressed herein, we demand that you
      immediately discontinue rebroadcasting the show. Please contact me
      to discuss what appropriate remedy can be crafted to correct the
      damage that has already been done. Because of the urgency of this
      matter, I request that you call me over the weekend on my personal
      cell phone, REDACTED, as time is of the essence.

      Of significance to this appeal, the Letter contained a number of comments

critical of Rolle’s business practices and ethics that Rolle alleges are false and

defamatory:

          “Evidently, Rolle was not a good businessman or ethical at that.
           He ran several personal expenses through his business,
           including but not limited to expensing over $1,000 on
           University of Florida football tickets, knowing full well that it
           violated federal tax laws and was contrary to the mandates of
           the Internal Revenue Code.”

          “Despite such knowledge, Rolle also paid medical bills using
           funds generated by his Cold Stone business for an injured
           employee because he refused to carry worker’s compensation
           insurance.”

          “Moreover, after Rolle’s Cold Stone franchises failed, he
           opened his own ice cream location in the same location as one
           of his former Cold Stone businesses and named it ‘Frost Top
           Creamery,’ in clear violation of the terms of his franchise
           agreement with Cold Stone.”

          “Then, on the show, CNBC and Rolle make several false and
           defamatory statements regarding several expenses, seemingly
           connecting these expenses to the ‘hidden expenses’ allegedly
           incurred by the franchisees.”

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          “In addition, Rolle states that Cold Stone requires its
           franchisees to purchase equipment from a company that it
           controls.”

      In addition to sending the Letter to CNBC, Zarco also published the Letter to

Janet Sparks (“Sparks”), a freelance writer for BlueMauMau.org, an internet blog

that publishes stories and news for franchisees. On December 26, 2010, Sparks

published an article titled, “CNBC Shelves Cold Stone Story after Zarco Attacks.”

Sparks quoted portions of the Letter in the article, and the Letter was attached to

the article via hyperlink as a PDF. The article reported that Zarco P.A. planned to

file suit on behalf of NAB and NIACCF, and that Cold Stone was planning “a

potential legal campaign to clarify [its] position and correct the inaccuracies

presented in the CNBC piece.”

      On January 17, 2012, Rolle filed the three-count First Amended Complaint

against Appellees, alleging defamation per se, defamation per quod, and

conspiracy to defame. Appellees moved to dismiss the First Amended Complaint

on several grounds. Following a hearing on Appellees’ motions to dismiss, the trial

court subsequently entered two identical orders dismissing the First Amended

Complaint as to all Appellees with prejudice. With respect to all the Appellees, the

trial court found “that Counts I, II and III of Plaintiff’s First Amended Complaint

are subject to dismissal on the grounds that the statements allegedly made and

conduct allegedly engaged in by Defendants were made in the course of a judicial


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proceeding and, thus are absolutely privileged.” The trial court further found “that

as a result of the existence of the absolute privilege, any attempt by Plaintiff to

allege these claims in a subsequent pleading would be futile, thus, the dismissal of

Counts I, II and III of Plaintiff’s First Amended Complaint is WITH

PREJUDICE.” (emphasis in original). This appeal ensued.

II.   ANALYSIS

      We review de novo a trial court’s order granting a motion to dismiss. See

Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLP, 137 So. 3d 1081, 1089 (Fla. 3d

DCA 2014). The purpose of a motion to dismiss is “to test the legal sufficiency of

the complaint, not to determine factual issues.” See Fla. Bar v. Greene, 926 So. 2d

1195, 1199 (Fla. 2006). Unlike a motion for summary judgment, when ruling on a

motion to dismiss, “‘[a] court may not go beyond the four corners of the complaint

in considering the legal sufficiency of the allegations.’” See Pacific Ins. Co., Ltd.,

v. Botelho, D.O., 891 So. 2d 587, 590 (Fla. 3d DCA 2004) (quoting Barbado v.

Green & Murphy, P.A., 758 So. 3d 1173, 1174 (Fla. 4th DCA 2000)).

Additionally, all allegations must be taken as true, and “any reasonable inferences

drawn from the complaint must be construed in favor of the non-moving party.”

Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010).

      Finally, in considering a motion to dismiss, a trial court is required to

consider exhibits attached to and incorporated into the complaint. See Harry

Pepper & Assocs. v. Lasseter, 247 So. 2d 736, 736 (Fla. 3d DCA 1971); see also

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K.R. Exch. Servs., Inc. v. Fuerst, Humphrey, Ittleman, PL, 48 So. 3d 889, 894 (Fla.

3d DCA 2010); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157,

1159 (Fla. 3d DCA 2008); Merovich v. Huzenman, 911 So. 2d 125, 128 n.5 (Fla.

3d DCA 2005).

      Affirmative defenses are generally matters raised in an answer and not a

motion to dismiss. Grove Isle, 137 So. 3d at 1089. “However, where the facts

constituting the defense affirmatively appear on the face of the complaint and

establish conclusively that the defense bars the action as a matter of law, a motion

to dismiss raising the defense is properly granted.” Id.

      Appellees assert the Letter is protected by absolute privilege, because it was

sent during the course of and had a relationship to judicial proceedings—i.e.,

ongoing litigation between Rolle and Cold Stone. Alternatively, Appellees argue

the Letter is protected as a statutorily mandated pre-litigation notice. “The law in

Florida has long been that defamatory statements made in the course of judicial

proceedings are absolutely privileged . . . regardless of how false or malicious the

statements may be, so long as the statements are relevant to the subject of inquiry.”

Fridovich v. Fridovich, 598 So. 2d 65, 66 (Fla. 1992) (citing Myers v. Hodges, 44

So. 357, 361 (1907)). “Th[e] privilege . . . arises immediately upon the doing of

any act required or permitted by law in the due course of the judicial proceedings

or as necessarily preliminary thereto.” Ange v. State, 123 So. 916, 917 (Fla. 1929).

See also Fridovich, 598 So. 2d at 66 (same);2 Burton v. Salzberg, 725 So. 2d 450,

                                          6
451 (Fla. 3d DCA 1999) (same).

      While it may well be true that the Appellees will ultimately prevail on an

affirmative defense such as absolute privilege, at this stage of the proceeding, there

is nothing in the four corners of the complaint or its exhibits that allege a fact or

facts to support that defense. Indeed, neither the complaint nor its exhibits allege

that a judicial proceeding existed at the time the Letter was sent to either CNBC or

to the reporter, Janet Sparks.

      Moreover, a review of the First Amended Complaint fails to allege that the

Letter was sent as a statutory five day pre-suit notice under section 770.01, Florida

Statutes (2011).   The Letter does not, on its face, indicate that it was sent as a five

day pre-suit notice required under section 770.01.

      In contrast, other exhibits attached to the First Amended Complaint,

specifically eight letters from Rolle’s counsel to Appellees, show on their face that

they were sent pursuant to section 770.01. Indeed, all eight letters contain a

section entitled “Five-Day Notice for Defamation Claim Pursuant to Fla. Stat. §

770.01.” The first paragraph of each letter further states that the purpose of the

letter is to serve as notice that, pursuant to section 770.01, Rolle intends to file a

civil action in the State of Florida for several false and defamatory statements.3

2 The Court in Fridovich receded from Ange to the extent those decisions are
inconsistent, stating: “defamatory statements voluntarily made by private
individuals to the police or the state's attorney prior to the institution of criminal
charges are presumptively qualifiedly privileged.” Fridovich, 598 So. 2d at 69
(emphasis added.)

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Additionally, those letters from Rolle’s counsel appear to comply with section

770.01’s requirement to identify the alleged false and defamatory statements made

by the Appellees. Thus, these letters show on their face that they were sent

pursuant to the statutory five-day pre-suit notice.

      Indeed, without additional factual information it is difficult to characterize

the Letter as a pre-suit notice as required by section 770.01. The Letter did not


3  Specifically, the exhibits are letters from: (1) counsel for Rolle, Jonathan P.
Stevens (“Stevens”) to Zarco, stating that “my client, Cecil Rolle, intends to file a
civil action against you personally and Zarco Einhorn Salkowski & Brito, P.A.
(“ZESB”) in the State of Florida for several false and defamatory statements made
by you”; (2) Stevens to Michael Reagan, Executive Vice President and General
Counsel at Kahala and Cold Stone, stating that “my client, Cecil Rolle, intends to
file a civil action in the State of Florida for several false and defamatory statements
made by Robert Zarco on behalf of Kahala Corp (“Kahala”) and Cold Stone
Creamery, Inc. (“Cold Stone”)”; (3) Stevens to Daniel Beem at Cold Stone
Creamery, Inc. National Advisory Board, stating that “my client, Cecil Rolle,
intends to file a civil action against you personally and the Cold Stone Creamery,
Inc. National Advisory Board (the “NAB”) in the State of Florida for several false
and defamatory statements made by Robert Zarco on behalf of you and the NAB”;
(4) Stevens to Rodolfo Puig at NIACCF, stating that “my client, Cecil Rolle,
intends to file a civil action against you personally and the National Independent
Association Of Cold Stone Creamery Franchisees, Inc. (the “NIACCF”) in the
State of Florida for several false and defamatory statements made by Robert Zarco
on behalf of you and the NIACCF”; (5) Stevens to Daniel Beem at Cold Stone,
stating that “my client, Cecil Rolle, intends to file a civil action against you in the
State of Florida for several false and defamatory statements made by Robert Zarco
on behalf of you”; (6) Stevens to Rodolfo Puig, stating that “my client, Cecil Rolle,
intends to file a civil action against you in the State of Florida for several false and
defamatory statements made by Robert Zarco on behalf of you”; (7) Stevens to
Frank Caperino stating that “my client, Cecil Rolle, intends to file a civil action
against you in the State of Florida for several false and defamatory statements
made by Robert Zarco on behalf of you”; and (8) Stevens to Edward Reesman
stating that “my client, Cecil Rolle, intends to file a civil action against you in the
State of Florida for several false and defamatory statements made by Robert Zarco
on behalf of you.”
                                             8
warn CNBC that a lawsuit was imminent, and thus, on its face, the Letter cannot be

said to provide notice of an impending lawsuit. Instead, the Letter can better be

described as a demand that CNBC cease and desist rebroadcasting the

documentary, as it ends with the following statements:

      For the numerous reasons expressed herein, we demand that you
      immediately discontinue rebroadcasting the show. Please contact me
      to discuss what appropriate remedy can be crafted to correct the
      damage that has already been done. Because of the urgency of this
      matter, I request that you call me over the weekend on my personal
      cell phone, REDACTED, as time is of the essence.

      Because the counts in the First Amended Complaint otherwise state valid

causes of actions,4 we find that the trial court improperly dismissed Rolle’s

pleading. See Beach Roundhhouse Town Corp. v. Skinner, 356 So. 2d 881 (Fla. 3d

DCA 1978) (reversing dismissal by trial court when four corners of complaint did

not support defense that corporations had no authority from board of directors or

corporate officers to bring suit). We, therefore, remand for the trial court to deny

Appellees’ motions to dismiss as we conclude that the First Amended Complaint,

taken as true, states causes of action for defamation per se, defamation per quod,

and conspiracy. Our decision, however, expresses no position on whether Rolle’s

causes of action or Appellees’ affirmative defenses have merit.


4  The elements of a claim for defamation are as follows: “(1) publication; (2)
falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on
a matter concerning a public official, or at least negligently on a matter concerning
a private person; (4) actual damages; and (5) statement must be defamatory.” Jews
for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). A review of the
complaint shows that each element has been properly asserted.
                                          9
III.   CONCLUSION

       Based on the foregoing, we find that because the trial court went outside the

four corners of the First Amended Complaint in granting the motions to dismiss,

we reverse the trial court’s order with instructions to reinstate Rolle’s claims.

       REVERSED AND REMANDED.




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