Not final until disposition of timely filed motion for
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 17-7504, Daryl E. Trawick, Judge.
Bernstein Law Firm and Michael I. Bernstein and Jordan C.
Kaplan, for appellants.
Solowsky & Allen and Richard L. Allen and Lauren Kain
Whaley, for appellees.
EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
Catering Holdings, Inc. ("YSCH") and Scher Duchman
("Duchman") appeal from a final order granting a
motion by the appellees, Attollo Partners, LLC
("Attollo"), Rajesh Rawal ("Rawal"), and
Roy Heggland ("Heggland"), to dismiss the second
amended complaint by YSCH and Duchman with prejudice.
underlying dispute involves complex business transactions and
the detailed documents memorializing the parties'
agreements. The trial court correctly concluded that the
written documents precluded the artfully pled tort claims and
other theories of liability advanced by YSCH and Duchman. We
affirm the dismissal of those claims with prejudice.
and Procedural History
circuit court lawsuit filed by YSCH and Duchman alleged, in
its third formulation (the second amended complaint, referred
to here as the "Complaint"), a long litany of
claims for breach of fiduciary duty; aiding and abetting
breaches of fiduciary duty; fraud in the inducement; civil
conspiracy to commit fraud; declaratory judgment; injunctive
relief; breach of contract; and breach of the covenant of
good faith and fair dealing.
parties on both sides were experienced, sophisticated
investors and entrepreneurs. Duchman founded a company, YS
Catering, Inc., which provided ready-to-eat meals to
customers under the trade name of "The Fresh Diet,
Inc." That company, referred to here as "Fresh
Diet," entered into a series of bank loans for $1.2
million, personally guaranteed by Duchman. Under New York
law, Duchman was also personally responsible for assuring
that Fresh Diet made the required state tax filings and
2013, Duchman met appellees Rawal and Heggland, who were
members of Attollo. Following negotiations between Duchman
and Attollo, Attollo acquired an 18% ownership interest in
Fresh Diet. Duchman was a shareholder of YSCH, and that
company owned a 46% interest in Fresh Diet. Rawal became the
chief executive officer, and Heggland became general counsel,
of Fresh Diet.
2014, Duchman introduced a principal of Attollo to the chief
executive officer of a publicly-traded company, Innovative
Food Holdings, Inc. ("IVFH"). IVFH engaged in a
line of business similar to that of Fresh Diet, and soon the
two companies agreed to a merger. Duchman approved and signed
an Agreement and Plan of Merger ("Merger
Agreement") in August 2014. The 31-page, detailed Merger
Agreement (subsequently an attachment to the Complaint),
contained several terms pertinent here:
• A rather typical, boilerplate merger/integration
provision, section 6.3, acknowledging that the Merger
Agreement and related written agreements "constitute the
entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof." The provision
also disclaimed any intention to benefit non-parties, and
precluding amendment ...