TEJERA, ET AL.

v.

LINCOLN LENDING SERVICES, ET AL.

Third District Court of Appeal State of Florida

Opinion filed February 27, 2019. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D16-2746 Lower Tribunal No. 09-76467 ________________

Luis Tejera, et al., Appellants,

vs.

Lincoln Lending Services, LLC, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge.

Corona Law Firm, P.A., and Ricardo Corona and Ricardo M. Corona, for appellants.

Dorta & Ortega, P.A., and Omar Ortega and Rosdaisy Rodriguez; David M. Rogero, P.A., and David M. Rogero and Yvette H. Ayala, for appellees.

Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.¹

2

EMAS, C.J.

I. INTRODUCTION

Luis Tejera appeals the trial court’s order dismissing with prejudice counts 19 and 21 of the operative complaint against Omar Romay (“Romay”) and America- CV Network, LLC (“ACV”), as barred by the statute of limitations. We affirm without further discussion the trial court’s dismissal of count 19 (alleging a claim for civil conspiracy to commit civil theft), as the trial court properly determined that count was barred by the statute of limitations. However, we reverse the trial court’s order dismissing count 21 (alleging a claim for civil conspiracy to perpetrate fraud in the inducement). Upon our de novo review, see Nationstar Mortg., LLC v. Sunderman, 201 So. 3d 139, 140 (Fla. 3d DCA 2015), we hold that count 21, as alleged against Romay and ACV, is an “action founded upon fraud,” thereby permitting application of the delayed discovery doctrine in determining when the statute of limitations period began to run.

II. THE ALLEGATIONS OF THE COMPLAINT

“A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues, and the allegations of the complaint must be taken as true and all reasonable inferences therefrom construed in favor of the nonmoving party.” The Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006); Susan Fixel, Inc. v.

2 The affirmative defense of statute of limitations is generally a matter to be raised in an answer and not a motion to dismiss. However, where the facts constituting that defense affirmatively appear on the face of the complaint and establish conclusively that the action is barred as a matter of law, it may be raised and considered in a motion to dismiss. Grove Isle Ass’n, Inc. v. Grove Isle Associates, LLLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 2014). But because an affirmative defense may be avoided by facts alleged in a reply to the affirmative defense, dismissal is warranted only if the allegations of the complaint conclusively negate a plaintiff’s ability to plead facts in avoidance of the statute of limitations defense. Id.; Rigby v. Liles, 505 So. 2d 598, 601 (Fla. 1st DCA 1987). 3 Tejera alleged that ACV’s corporate predecessor was Okeechobee.

4 Tejera first added Romay and ACV as defendants in an amended complaint filed in October 2013.

III. DISCUSSION

a. The Delayed Discovery Doctrine While fraud claims are subject to a four-year statute of limitations (see section 95.11(3), Fla. Stat. (2009)), when that four-year limitations period begins to run depends upon the application of the delayed discovery doctrine. The Florida Legislature enacted section 95.031(2)(a), which codified the delayed discovery doctrine, and provides: An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within¹² years after the date

(Emphasis added). This court and others have expressly held that the delayed discovery doctrine applies to a claim for fraud in the inducement. See Brooks Tropicals, Inc. v. Acosta, 959 So. 2d 288 (Fla. 3d DCA 2007); Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005). Romay and ACV contended below, and on appeal, that because count 21 is a civil conspiracy claim, it is subject to a four-year statute of limitations.⁵ More to the point, they contend that the delayed discovery doctrine is inapplicable because, if properly characterized as a civil conspiracy claim, count 21 is necessarily not an “action founded upon fraud.” b. Monahan, Young, Olson and Flatirons For this proposition, Romay and ACV rely upon Davis v. Monahan, 832 So. 2d 708 (Fla. 2002). However, Monahan does not support, and in fact undercuts, this legal proposition. Further, appellees’ argument avoids the central issue here: regardless of what period of limitations applies to a civil conspiracy claim, the discrete question presented is whether count 21 is an “action founded upon fraud,”

5 For this assertion, Romay and ACV rely upon section 95.11(o), Florida Statutes (2009) which provides a four-year limitations period for an “action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort . . . .”

Id. at 709. (Emphasis added.)

Importantly, the Court did not hold that the delayed discovery doctrine is inapplicable to every claim of civil conspiracy, noting that the doctrine did not apply in the instant claim because “Monahan did not allege fraud, so there was no specific allegation that [the defendants’] actions caused Monahan’s delayed discovery.” Id. at 712 (emphasis added). This analysis was followed in Young v. Ball, 835 So. 2d 385, 386 n.3 (Fla. 2d DCA 2003), in which our sister court held that the delayed

- Steinberg received the $1,000,000.00 in good faith and without knowledge of Yost’s fraud;

- As a result of Steinberg’s investment into the Yost Partnership, Steinberg had paid adequate consideration for the $1,000,000.00 that the Yost Partnership transferred to Steinberg; and

- Flatirons conferred no direct benefit on Steinberg.

Flatirons, 233 So. 2d at 1210 (emphasis added). While these findings are relevant to the determination that Flatirons failed to establish unjust enrichment, the first two (highlighted) findings also reveal why we concluded that the delayed discovery doctrine did not apply to the claim against Steinberg: While a feature of Flatirons’s unjust enrichment claim might have been Yost’s fraud and deceit, Flatirons’s unjust enrichment claim against Steinberg is not “founded upon fraud” so as to implicate Florida’s delayed discovery doctrine.

Id. at 1213. In other words, in Flatirons, the bank did not contend that Steinberg had engaged in any fraudulent activity, but instead contended merely that Steinberg was the recipient of funds which were embezzled by Yost (the fraudster) and later transferred to Steinberg, a non-fraudster who acted in good faith and who had no relationship with Yost.

Given that there is no freestanding cause of action for civil conspiracy, we must conclude that count 21, as pleaded by Tejera, is an action founded upon fraud.

IV. CONCLUSION

Because Tejera’s claim of conspiracy to perpetrate fraud in the inducement alleged an action “founded upon fraud,” section 95.031(2)(a)’s delayed discovery doctrine may properly be invoked in determining when the statute of limitations began to run on this claim. The trial court erred in dismissing this count with prejudice, as barred by the statute of limitations, where Tejera’s complaint alleged that he could not have discovered the facts giving rise to this claim against Romay and ACV until April 2012.6 Affirmed in part, reversed in part, and remanded for further proceedings.

6 Because this issue was decided at the motion-to-dismiss stage, we must accept this allegation as true and all reasonable inferences must be construed in favor of Tejera. The Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006). We express no opinion on the merits of this allegation or whether Tejera ultimately can establish he did not discover, and in the exercise of due diligence could not have discovered, the facts giving rise to his claim against Romay and ACV until April 2012.