42
Fla. L. Weekly D517cTop of Form
Fla. L. Weekly D517cTop of Form
Torts
— Defamation — Dismissal — Trial court erroneously went outside four corners
of complaint and its attachments in dismissing defamation complaint on basis
that defamatory statements were allegedly made during course of judicial
proceeding and, thus, were absolutely privileged — Neither the complaint nor
its exhibits allege that a judicial proceeding existed at time of the allegedly
defamatory statements
— Defamation — Dismissal — Trial court erroneously went outside four corners
of complaint and its attachments in dismissing defamation complaint on basis
that defamatory statements were allegedly made during course of judicial
proceeding and, thus, were absolutely privileged — Neither the complaint nor
its exhibits allege that a judicial proceeding existed at time of the allegedly
defamatory statements
CECIL
ROLLE, Appellant, vs. COLD STONE CREAMERY, INC., et al., Appellees. 3rd
District. Case No. 3D13-1821. L.T. Case No. 12-19002. Opinion filed March 1,
2017. An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge. Counsel: 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.
ROLLE, Appellant, vs. COLD STONE CREAMERY, INC., et al., Appellees. 3rd
District. Case No. 3D13-1821. L.T. Case No. 12-19002. Opinion filed March 1,
2017. An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge. Counsel: 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 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.
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
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.
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 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:
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 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.
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:
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.”
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.”
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.”
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.”
and Rolle make several false and defamatory statements regarding several
expenses, seemingly connecting these expenses to the ‘hidden expenses’
allegedly incurred by the franchisees.”
· “In addition, Rolle states
that Cold Stone requires its franchisees to purchase equipment from a company
that it controls.”
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.”
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 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.
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 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
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).
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 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).
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 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.
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, 451 (Fla. 3d DCA 1999) (same).
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, 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.
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.
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 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.
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 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
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:
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
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.
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.
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.
III.
CONCLUSION
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.
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.
AND REMANDED.
__________________
1The
Letter is attached as an exhibit to Rolle’s First Amended Complaint.
Letter is attached as an exhibit to Rolle’s First Amended Complaint.
2The
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.)
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.)
3Specifically,
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.”
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.”
4The
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.
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.
* *
*
*