Rolle v. Cold Stone Creamery, Inc.
212 So. 3d 1073
| Fla. Dist. Ct. App. | 2017Background
- Rolle, a former Cold Stone franchisee, appeared in a CNBC documentary criticizing franchising; Cold Stone did not participate.
- Cold Stone retained attorney Robert Zarco, who sent a December 23, 2010 letter to CNBC (the “Letter”) disputing Rolle’s statements and demanding discontinuation of rebroadcasts; the Letter criticized Rolle and included allegedly defamatory statements about his business practices.
- Zarco also published the Letter to a blogger, who posted excerpts and linked the Letter as a PDF.
- Rolle sued (First Amended Complaint) alleging defamation per se, defamation per quod, and conspiracy to defame; he attached the Letter and other counsel letters to the complaint.
- The trial court dismissed all counts with prejudice, concluding the Letter was protected by absolute privilege (as related to judicial proceedings) or was a pre-suit statutory notice; the district court reversed because the dismissal relied on facts outside the complaint’s four corners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Letter is absolutely privileged because it was made in the course of or related to judicial proceedings | Rolle contended the Letter was defamatory and not privileged; complaint and exhibits do not show an ongoing judicial proceeding tied to the Letter | Appellees argued the Letter was connected to existing litigation and thus absolutely privileged | Reversed: trial court improperly relied on facts outside the complaint; complaint/exhibits do not establish absolute privilege on their face |
| Whether the Letter qualifies as the statutory five-day pre-suit notice under Fla. Stat. § 770.01 | Rolle’s pleading did not characterize the Letter as a §770.01 notice; other explicit counsel letters did comply with §770.01 | Appellees argued the Letter was a pre-suit statutory notice and thus privileged | Reversed: the Letter on its face did not function as a §770.01 five-day notice; other exhibits did show §770.01 notices but not the Letter |
| Whether dismissal with prejudice was appropriate at the motion-to-dismiss stage | Rolle argued dismissal was premature and facts must be taken as true; amendment should be allowed if necessary | Appellees argued affirmative defenses like absolute privilege can justify dismissal if apparent on the complaint face | Reversed and remanded: dismissal with prejudice improper because defenses did not conclusively appear within the four corners of the complaint |
Key Cases Cited
- Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLP, 137 So. 3d 1081 (Fla. 3d DCA 2014) (standard for reviewing motions to dismiss)
- Fla. Bar v. Greene, 926 So. 2d 1195 (Fla. 2006) (purpose of motion to dismiss is to test legal sufficiency, not factual disputes)
- Pacific Ins. Co., Ltd. v. Botelho, D.O., 891 So. 2d 587 (Fla. 3d DCA 2004) (courts may not look beyond the four corners of the complaint on a motion to dismiss)
- Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992) (statements made in judicial proceedings are absolutely privileged)
- Burton v. Salzberg, 725 So. 2d 450 (Fla. 3d DCA 1999) (absolute privilege application in pretrial communications)
- Beach Roundhhouse Town Corp. v. Skinner, 356 So. 2d 881 (Fla. 3d DCA 1978) (reversing dismissal where complaint did not conclusively show lack of authority to sue)