Infinite Energy, Inc., a Florida-based natural gas marketer, filed a defamation action against attorney David L. Pardue, the law firm of Hartman, Simons, Spielman & Wood, LLP “HSSW”, and Poston Communications, LLC, alleging that the defendants issued a press release that falsely accused Infinite Energy of having “deceived, cheated and misled” its customers. The trial court granted the defendants’ motions to dismiss, concluding, inter alia, that the statements were not actionable. Infinite Energy appeals. Because the trial court failed to apply the proper guidelines in evaluating the defendants’ motions to dismiss, and the complaint states a claim for defamation, we reverse. 1. Our Supreme Court has established the following guidelines applicable to motions to dismiss brought pursuant to OCGA § 9-11-12 b 6 for failure to state a claim upon which relief may be granted: “A motion to dismiss should only be granted if the allegations of the complaint, construed most favorably to the plaintiff, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.”1 In other words, “if, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied.”2
A trial court’s ruling on a motion to dismiss for failure to state a claim is subject to de novo review.3 In assessing the motion, we may consider exhibits attached to and incorporated into the pleadings.4 Here, the allegedly defamatory press release is attached to the complaint, and it states that on November 18, 2008, Pardue, then a member of HSSW, filed suit in federal court on behalf of three Korean-American dry cleaning business owners, alleging that Infinite Energy defrauded them “through exorbitant prices locked into three-year contracts signed following Hurricane Katrina.” The suit sought class-action status on behalf of the Korean Cleaners Association of Atlanta “KCAA”. The press release quotes Pardue as follows: Normally I defend class actions but I decided to help the dry-cleaning business community recover their losses in what is a clear case of wrongdoing. Infinite engaged in deliberate misinformation and scare tactics to lock the KCAA into high fixed rates when it was clear that the Katrina effect on gas prices was temporary. It is determined to reap illegal profits and to extract every penny possible from customers it has deceived, cheated and misled. The press release was picked up by various publications, and, according to the complaint, Poston tried to have it published in the Gainesville Sun, the newspaper in Florida where Infinite Energy is headquartered, although it has no customers in Gainesville.
