                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                         NOVEMBER 8, 2010
                                     No. 09-16404
                                                                            JOHN LEY
                               ________________________                      CLERK

                      D. C. Docket No. 09-00710 CV-ORL-22KRS

GATEWAY INVESTORS, LLC,
a Florida limited liability company,

                                                                            Plaintiff-Appellant,

                                             versus

INNOVEST CAPPITAL, INC., a
Delaware corporation, GATEWAY
CONDOMINIUMS, INC., a Delaware
corporation, et al.,

                                                                        Defendants-Appellees.
                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                            _________________________

                                     (November 8, 2010)

Before DUBINA, Chief Judge, ANDERSON, Circuit Judges, and COAR,* District
Judge.
_______________
*Honorable David H. Coar, United States District Judge for the Northern District of Illinois,
sitting by designation.
PER CURIAM:

      After oral argument and careful consideration, we have concluded that the

judgment of the district court is due to be affirmed. Plaintiff’s principal argument

on appeal is that the district court erred in concluding that the Agreement between

the parties was unambiguous. Plaintiff argued in the district court, and argues on

appeal, that the Business Plan attached to the Agreement as Exhibit D established a

two-year duration for the venture. Plaintiff argues that that is inconsistent with

other provisions of the Agreement which clearly contemplate a more indefinite

duration for the venture. Thus, plaintiff argues that the Agreement is ambiguous,

calling for extrinsic evidence, and therefore that the district court erred in

dismissing plaintiff’s complaint with prejudice. As a matter of Florida law, we

conclude that plaintiff’s interpretation is unreasonable. We agree with the district

court that the Agreement is unambiguous, and that there is no reasonable

interpretation of the Agreement to the effect that the Agreement had a definitive

two-year duration.

      While it is true that the Business Plan attached to the Agreement as Exhibit

D seems to contemplate that all seventy three of the contemplated condominium

units would be sold within a two-year period, there is nothing in Exhibit D

suggesting that the Agreement would terminate, or would be terminable, if that

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hoped for goal were not met. Quite the contrary, the reasonable indications in

Exhibit D itself indicate that two years is merely the projected goals for selling all

73 units. Exhibit D itself refers merely to “sales projections.” Moreover, §5.06 of

the Agreement describes the attached Exhibit D merely as the “initial business

plan.” That section of the Agreement also refers to Exhibit D, and any subsequent

business plan, merely as a “projected financial model,” and refers to details thereof

as “estimates” and “projected dates.”

      Not only is there no reasonable interpretation of Exhibit D as providing for a

definitive two-year duration, after which the venture must be liquidated, other

provisions of the Agreement make it absolutely clear that the parties did not intend

such a definitive duration limitation for the venture. Quite the contrary of a

definitive two-year limit for the venture, §1.05 of the Agreement expressly

provides that the “term of the Company ... shall continue until the winding up and

liquidation of the Company and its business following a Liquidating Event as

provided in Article XII.” Similarly, §12.01(d) expressly provides that “the

Company shall not dissolve prior to the occurrence of a Liquidating Event.” The

“Liquidating Events” are expressly set out in §12.01(a), (b) and (c). None of these

“Liquidating Events” include the failure to sell all 73 condominium units within a

two-year period, or within any other specified time period. Rather, the

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“Liquidating Events” are: (a) the sale or disposition of substantially all of the

assets; (b) the unanimous vote of the members to dissolve or liquidate; and (c) the

happening of any other event that makes it unlawful or impossible or impractical to

carry on the business of the Company. Plaintiff’s argument is that the initial

Business Plan was contemplated to extend over two years, that said two years has

expired, leaving no current Business Plan, thus making it impractical to carry on

the business. However, plaintiff’s argument is flawed, and its interpretation is

unreasonable, because §5.06(a) of the Agreement expressly provides: “Until a

revised business plan is approved, the then current Business Plan shall continue to

constitute the Business Plan.” Thus, contrary to plaintiff’s argument, there is a

current Business Plan, thus eliminating plaintiff’s sole reason for suggesting that it

is impractical to continue the business.

      We also reject plaintiff’s challenge to the district court’s dismissal of

plaintiff’s several breach of fiduciary duty claims. We agree with the district court

that these claims are barred by Florida’s economic loss rule. We also agree with

the district court that plaintiff’s conspiracy count is without merit. Plaintiff

claimed that the several defendants conspired to breach a fiduciary duty. Because

the underlying breach of fiduciary duty claims are non-actionable, there can be no

conspiracy with respect thereto. Finally, we cannot conclude that the district court

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abused its discretion in dismissing plaintiff’s complaint with prejudice. Not only

has plaintiff been given three attempts already, it is abundantly clear that any

additional attempts to amend would be futile.

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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