Mergens v. Dreyfoos

166 F.3d 1114

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 3, 1999
• Docket: 97-5412
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED No. 97-5412 U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 2/03/99 D. C. Docket No. 95-8793-CIV-KLR THOMAS K. KAHN CLERK ANN A. MERGENS, individually, and as Trustee for the Ann A. Mergens Revocable Trust; et al., Plaintiffs-Appellants, Cross-Appellees,

versus

ALEX W. DREYFOOS, JR; PHOTO ELECTRONICS CORPORATION, a Florida corporation; et al., Defendants-Appellees, Cross-Appellants.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (February 3, 1999)

Before ANDERSON and DUBINA, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:

Plaintiffs-Appellants Ann Mergens, individually, and as Trustee for the Ann M. Mergens

Revocable Trust, Mary Mergens Loughran, and Paul Mergens (“Mergenses”) appeal the district

court’s order granting the Defendants-Appellees Alex W. Dreyfoos, Jr., Photo Electronics

Corporation, Carolyn B. Dreyfoos, D.E. Murray, Photo Electronics Company, L.P., and Freedom

Communications, Inc. (“Dreyfoos”) motion for judgment on the pleadings. Based on a thorough

review of the pleadings, briefs and record, we conclude that the Mergens federal securities fraud and common law fraud claims are barred by the general release and merger clause. Similarly, the district

court did not abuse its discretion in declining to exercise supplemental jurisdiction over Plaintiffs-

Appellants’ remaining common law breach of fiduciary duty claim and dismissing it without

prejudice. Accordingly, we affirm.

FACTS

These claims arose out of the negotiation and execution of a Stock Repurchase Agreement

(“Agreement”) for the sale of the Mergenses’ 38% minority equity interest in Photo Electronics

Corporation (“PEC”) to Dreyfoos, PEC’s majority stockholder. On January 17, 1994, the parties

entered into this Agreement whereby the Mergenses received $3 million in cash and a $11.5 million

promissory note to be paid in eight years. The Agreement contained a merger clause and a general

release applicable to all claims accrued as of the date of the Agreement. On September 28, 1995,

the day after Dreyfoos paid the note in full, the Mergenses learned that PEC had sold its main asset,

WPEC-TV, to Freedom Communications for $150-160 million. Believing that Dreyfoos had

realized a windfall, the Mergenses sought to rescind the Agreement but Dreyfoos refused.

The Mergenses brought this action in the United States District Court for the Southern

District of Florida in December, 1995, alleging in Counts I-III federal securities fraud in violation

of both Section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j, and Rule 10b-5,

17 C.F.R. § 240.10b-5; alleging in Count IV common law fraud in the inducement; and alleging in

Count V common law breach of fiduciary duty. Specifically, the Mergenses alleged that Dreyfoos

and PEC misrepresented the cash flow and other assets of PEC in order to induce them to sell at a

price far below market value. The Mergenses further alleged Dreyfoos fraudulently represented in

the Agreement itself that PEC did not contemplate the sale of its assets. On July 18, 1997, the court

granted Defendants-Appellees motion for summary judgment on the pleadings with respect to the

federal securities fraud and the common law fraud claims and dismissed the fiduciary duty claim

without prejudice for want of federal subject matter jurisdiction. 28 U.S.C. § 1367(c)(3). The court

2 held that the Agreement’s merger clause and general release barred any securities fraud claim based

on misrepresentations or omissions not preserved in the Agreement itself; that a misrepresentation

contained in the Agreement only gave rise to a breach of contract claim; and that the rule of

unjustifiable reliance barred the fraud in the inducement claim.

On appeal, the Mergenses argue that the merger clause and general release do not bar federal

securities law and common law fraud claims where a misrepresentation is expressly set forth in the

written agreement. Second, the Mergenses contend that neither the Agreement’s terms nor the rule

of unjustifiable reliance bar fraud claims based on representations made to third parties or omissions.

Third, the Mergenses argue as Cross-Appellees that the court was not required to dismiss the

fiduciary duty claim which it dismissed without prejudice.

In response, Dreyfoos argues that the general release and rule of justifiable reliance bar all

claims. Dreyfoos also argues, as Defendants-Cross-Appellees, that the district court erred by failing

to dismiss the breach of fiduciary duty claim with prejudice.

STANDARD OF REVIEW

This Court reviews judgments on the pleadings de novo. See Ortega v. Christian, 85 F.3d

1521, 1524-25 (11th Cir. 1996). Judgment on the pleadings is appropriate where no issue of material

fact remains unresolved and the moving party is entitled to judgment as a matter of law. Id. at 1524.

When reviewing judgment on the pleadings, we must take the facts alleged in the complaint as true

and view them in the light most favorable to the nonmoving party. Id. at 1524.

In contrast, review of the district court’s dismissal of the state cause of action for want of

subject matter jurisdiction is reviewed under the abuse of discretion standard. See L.A. Draper &

Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 440 (11th Cir. 1984).

DISCUSSION

3 The first issue is whether the release in the written Agreement bars the Mergenses’ federal

securities and common law fraud claims. As set forth in the Agreement, Plaintiffs-Appellants

contracted to release Defendants-Appellees from any claim they “ever had, now have . . . shall or

may have . . . from the beginning of the world to the date [of the Settlement Agreement].” The

parties also stipulated, pursuant to Art. V.8 of the Agreement, that Florida law will govern in the

event of a dispute1.

Under Florida law, “[t]he validity and effect of a settlement and release are governed by

contract law.” Travelers Insurance Co. v. Horton, 366 So.2d 1204 (Fla. 3rd DCA 1979). “A party

is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary

contract.” Medical Center Health Plan v. Brick, 572 So.2d 548, 551 (Fla. 1st DCA 1990).

The Agreement contains four relevant provisions. First, the Mergenses warranted that they

were sophisticated sellers and that they were provided with the full opportunity to investigate and

evaluate the financial condition of PEC. Second, Dreyfoos warranted that he had no current

intention or plan to sell PEC or PEC’s assets. Third, the Mergenes agreed to release Dreyfoos from

any and all causes of action from the beginning of time to the date the agreement was signed.

Finally, the parties agreed that Agreement represented the entire understanding of the parties and

that any prior representation was superseded by the current contract.

The district court was correct in holding that the general release unambiguously bars all

actions premised on claims that arose before, and contemporaneous to, the execution of the

Agreement. The only question remaining is whether the Mergenses can establish that the release

was procured by fraud, thereby making it voidable.

1 Although the Mergenes urge this Court to ignore the plain wording of the contract and apply federal common law to this action, case law in this circuit does not allow us to do so. See, Finn v. Prudential-Bach Securities, Inc., 821 F.2d 581, 586 n.5 (11th Cir. 1987)(applying state law to determine the validity of release of federal securities law claims); Pettinelli v. Danzig, 722 F.2d 706, 709(11th Cir. 1984).

4 The Mergenses contend that their fraud causes of action survive the release because Dreyfoos

fraudulently misrepresented in the Agreement that he had no current intention to sell PEC or any of

its assets. To prove fraud under Florida law, the plaintiff must show that “1)the defendant made a

false representation of past or present fact, 2)the defendant knew the statement was false, 3)the

statement was made for the purpose of inducing the plaintiff to rely on it, and 4)the plaintiff’s

reliance was reasonable.” Finn v. Prudential-Bache Securities, Inc., 821 F.2d 581, 586 (11th Cir.

1987)(citing Pettinelli v. Danzig, 722 F.2d 706, 709 (11th Cir. 1984)).

The district court relied on Pettinelli, 722 F.2d at 706, in holding that the Mergenses were

not justified in relying on any representation for purposes of establishing a fraud claim. In Pettinelli

this Court addressed a claim brought by the plaintiff alleging the defendant fraudulently induced him

to execute a contract concerning the sale of securities. This Court held that no fraud cause of action

existed because the plaintiff was unable to show a material misrepresentation, and even assuming

a material misrepresentation existed, reliance on that representation was unjustifiable as a matter of

law. With respect to the rule of justifiable reliance, this Court said “[w]hen negotiating or

attempting to compromise an existing controversy over fraud and dishonesty it is unreasonable to

rely on representations made by the allegedly dishonest parties.” Id. at 710.

Prior to the execution of the Agreement in the instant case, the Mergenses complained

Dreyfoos was mismanaging PEC alleging “a shocking waste of corporate assets and personal profit

at the expense of PEC shareholders by Dreyfoos.” The attorney for the Mergenses sent a letter to

Dreyfoos threatening litigation if Dreyfoos did not buy back the Mergens’s share of PEC. The letter

included a prepared, but not filed, complaint alleging fraud and other causes of action. A more

untrusting relationship is difficult to imagine.

Moreover, in factual situations substantially similar to this action, this Circuit and various

district courts have held that the plaintiffs were unjustified in relying on representations made by

the defendants. See Finn v. Prudential Bache Securities Inc., 821 F.2d 581, 585-586 (11th Cir.

5 1987); Hall v. Burger King Corp., 912 F.Supp. 1509, 1524-25 (S.D. Fla. 1995); Jankovich v. Bowen,

844 F.Supp. 743, 747-48(S.D. Fla. 1994); Zelman v. Cook, 616 F.Supp. 1121, 1133 (S.D. Fla. 1985).

First, the Plaintiffs-Appellants specified in the agreement that they were sophisticated sellers,

represented by both legal counsel and certified public accountants. Second, the parties had been in

an adversarial relationship since well before the execution of the Agreement. Finally, the Mergenses

entered into the Agreement, in part, to settle a lawsuit threatened by the Plaintiff-Appellants that

claimed fraud. Based on the posture of the parties prior to the execution of the Agreement, the

district court correctly held that the Mergenses had no legal right to rely on the representations of

Dreyfoos and PEC.

The Mergenses contend, notwithstanding Pettinelli and its progeny, that they were justified

in relying on representations set forth in the written agreement, no matter how adversarial the

relationship might be. This argument is plainly correct, but only to the extent that they have a right

to rely on an express term when pursuing a contract cause of action. As the court explained in

Pettinelli, where a written agreement explicitly contains representations, and those representations

have not been performed, a breach of contract action may be appropriate. Id. at 710. As the

Mergenses have not plead breach of contract, no cause of action is available based on such a theory.2

The Mergenses also contend that they justifiably relied on misrepresentations made to

“neutral” third parties, i.e., parties with whom the Defendant-Appellees were not in an adversarial

relationship, and that these misrepresentations can form the basis of their fraud claims. We do not

agree.

The Mergenses had no right rely to on any representation presented by Dreyfoos to a third

party concerning facts relevant to the sale of their stock. The Plaintiffs-Appellants’ Amended

Complaint expressly states that on June 23, 1993 PEC’s chief financial officer commissioned Merrill

2 We offer no opinion as to the merits of such a claim. We only note that when express terms in a contract are breached the appropriate action is for breach of contract.

6 Lynch to value the Mergenses’ interest in PEC as an inducement to sell. At that point in time, the

Mergenses had already threatened a shareholder’s action, discovered a shocking waste of corporate

assets, and commissioned a valuation of their interest in PEC with independent accountants. These

facts show that the parties were clearly adversaries when the reliance on PEC’s alleged

misrepresentations to Merrill Lynch occurred. Furthermore, as PEC intended the Merrill Lynch

report to induce the Mergenses to sell, it was just as unreasonable for the Mergenses to assume that

PEC made a full and accurate disclosure in negotiating their Agreement. Finally, the Merrill Lynch

report contained an explicit disclaimer stating that the findings were based only on information

provided by PEC, that it did not independently verify such information, and that it assumed such

information to be accurate. Given the strong disclaimer, the nature of the parties relationship at that

time, and the knowledge that the report was created to induce a sale, this Court affirms the district

court’s holding that reliance on such misrepresentation was unjustifiable as a matter of law.

Finally, the Mergenses contend that they were justified in relying on Defendant-Appellee’s

omissions. To support this argument, the Mergenses cite a federal securities fraud case where the

plaintiffs were not required to prove reliance on omissions. See Affiliated Ute Citizens of Utah v.

United States, 406 U.S. 128, 153, __ S.Ct. __, __ L.E.d __ (1972). In Affiliated, the Supreme Court

held that it was sufficient for plaintiffs to prove the facts withheld were material to the investment

decision. Id. at 153-154. However, the Mergenses point to no authority that has applied this

exception to the rule of justifiable reliance to a common law fraud in the inducement claim.

Although the Plaintiffs-Appellants contend Pettinelli is not applicable because the facts in

that case concerned misrepresentations, not omissions, we find the opinion persuasive nonetheless.

As misrepresentations can so easily be characterized as omissions,3 an exception for omissions

3 An example of re-characterizing a misrepresentation as an omission came at a hearing before the district court where counsel for the Mergenses stated, “I will give you some of the omissions in our case. The defendants in our case omitted to tell us that the projections they had given us as to how this business was going and how it would do in the future were false.”

7 would virtually eliminate the Pettinelli rule altogether. Given this Circuit’s and district courts’

reliance on Pettinelli, see supra, we conclude that the district court correctly dismissed the

Mergenses’ fraud in the inducement claim.

Lastly, the Defendants-Cross-Appellants contend that the district court abused its discretion

by dismissing the Mergenses’ state common law fiduciary claim without prejudice. Dreyfoos argues

that as the Agreement’s general release equally bars this claim the district court should have

exercised supplemental jurisdiction and dismissed the claim with prejudice.

The district court did not abuse its discretion in declining to exercise supplemental

jurisdiction over Plaintiffs-Appellants’ fiduciary duty claim. Discretion over pendant state claims

is expressly conferred to district courts by statute. 28 U.S.C. § 1367(c) provides that a district court

may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over

which it has original jurisdiction.” More specifically, this Court has noted that “if the federal claims

are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of state claims.”

L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984)(citing United

Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).

In the instant case, the district court granted Defendant-Appellees’ motion for judgment on

the pleadings with respect to all claims over which the court had original jurisdiction. As all of the

federal claims were dismissed before trial, the district court appropriately declined to exercise

supplemental jurisdiction over Plaintiffs-Appellants’ remaining state claim. This Court now holds

that the district court did not abuse its discretion in dismissing Count V without prejudice.

AFFIRMED.