          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




1
    Judge Salter and Judge Fernandez did not participate in oral argument.
      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
Rosenthal & Rosenthal, Inc., 842 So. 2d 204 (Fla. 3d DCA 2003).2 Accepting as

true all allegations of the operative complaint, Luis Tejera and others were victims

of an illegal mortgage rescue scheme devised and perpetrated by Lincoln Lending

Services, LLC, and several related individuals and entities (collectively “the Lincoln

Defendants”).    This scheme consisted of collecting illegal up-front fees from

individuals, such as Tejera, who were in need of “mortgage rescue services,” but

after collecting payment, those services were never provided because the scheme

was “designed to steal money from consumers.”

      In furtherance of this scheme, the Lincoln Defendants advertised their services

on Channel 41 in Miami, Florida, which was operated by Okeechobee Television

Corporation,3 a company owned by Romay, and alleged to be Romay’s “alter ego.”

This television advertising provided the medium for the scheme, and enticed Tejera

and the purported class members to use the services offered by the Lincoln




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.

                                           3
Defendants.     The success of the scheme depended on this “heavy rotation of

advertising.”

      At some point, Romay was made aware that the Lincoln Defendants were not

performing any of the advertised services, but Romay became “a willing co-

conspirator in the mortgage rescue fraud scheme” and “continued to air the heavy

rotation of advertisements for the fraudulent mortgage rescue conspiracy.”       In

March 2009, the Florida Attorney General commenced a civil action against Lincoln

Lending and its managing member for this fraudulent scheme and obtained a

temporary injunction prohibiting Lincoln Lending from operating a mortgage rescue

business.

      Tejera filed the instant lawsuit as a class action against the Lincoln

Defendants, alleging claims of unfair and deceptive trade practices and civil theft.

After several amendments, a fifth amended complaint was filed alleging claims

against Romay and ACV for civil conspiracy to commit civil theft (count 19) and

civil conspiracy to perpetrate fraud in the inducement (count 21). Tejera further

alleged that he could not have discovered the facts giving rise to an action against

Romay and ACV until April 2012.4




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

                                         4
      ACV and Romay filed motions to dismiss these counts, contending that the

claims were barred by the four-year statute of limitations for civil conspiracy. As to

count 21, alleging civil conspiracy to perpetrate fraud in the inducement, Tejera

acknowledged a four-year statute of limitations applied, but contended that the

delayed discovery doctrine also applied, and that the four-year limitations period did

not begin to run until the date when the facts giving rise to the cause of action were

discovered or should have been discovered with the exercise of due diligence

(which, as Tejera alleged in the complaint, was not until April 2012). Following a

hearing, the trial court dismissed, with prejudice, count 21 against Romay and ACV.

      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 within 12 years after the date



                                          5
      of the commission of the alleged fraud, regardless of the date the fraud
      was or should have been discovered.

(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 . . . .”

                                         6
which is key to determining the applicability of delayed discovery doctrine. Indeed,

this much is clear from the Florida Supreme Court’s discussion in Monahan.

      In Monahan, the plaintiff filed suit against her sister and niece, alleging claims

for “breach of fiduciary duty, civil theft, conspiracy, conversion and unjust

enrichment, arising from the wrongful taking of cash, stocks, bonds, interest,

dividends, and pension and social security payments.” Id. at 708-09. The question

presented was “whether the delayed discovery doctrine, which delays the

commencement of the statute of limitations, is applicable to these causes of action.”

The Florida Supreme Court held:

      The delayed discovery doctrine does not apply to the claims alleged in
      this case. The Florida Legislature has stated that a cause of action
      accrues or begins to run when the last element of the cause of action
      occurs. An exception is made for claims of fraud and products
      liability in which the accrual of the causes of action is delayed until the
      plaintiff either knows or should know that the last element of the cause
      of action occurred.

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



                                          7
discovery doctrine did not apply to the plaintiff’s claim for civil conspiracy, noting:

“On appeal, all parties address Young’s causes of action as if they sounded in fraud.

However, the complaint alleges civil conspiracy and does not mention fraud.” Id. at

386 n.3 (emphasis added).

      This much is implicit in the Monahan and Young decisions: the mere fact that

the claim is framed as a civil conspiracy (and therefore subject to a four-year statute

of limitations) does not end the analysis. The next and separate question is when did

that four-year limitations period begin to run? In answering that question, we must

determine whether the claim as alleged is an “action founded upon fraud.” We

answer that question in the affirmative, and hold that the trial court erred in

dismissing count 21 with prejudice based upon the expiration of the statute of

limitations.

      Appellees also rely upon Olson v. Johnson, 961 So. 2d 356 (Fla. 2d DCA

2007) for their contention that the delayed discovery doctrine does not apply to this

cause of action for conspiracy to commit fraud in the inducement. This reliance,

however, is misplaced.      In Olson, the plaintiff sued for, inter alia, malicious

prosecution and civil conspiracy to commit malicious prosecution. In addressing

whether these actions were barred by the statute of limitations, our sister court

observed, unremarkably, that “[t]he statute of limitations for both malicious

prosecution and civil conspiracy is four years.” Id. at 359.



                                          8
      However, the question presented in this case is not whether a four-year statute

of limitations applies to this claim; Tejera concedes this very point, because whether

count 21 is characterized for limitations purposes as a claim for conspiracy or one

for fraud, each is subject to a four-year statute of limitations. See § 95.11(3)(o)

(establishing four-year statute of limitations for intentional torts not otherwise

covered by this section); § 95.11(3)(j) (establishing four-year statute of limitations

for fraud). Rather, the relevant question is when that four-year period began to run,

and whether Tejera is authorized by section 95.031(2)(a) to rely on the delayed

discovery doctrine because this claim, regardless of its conspiratorial character, is an

“action founded upon fraud.”       There can be no doubt that Tejera’s claim for

conspiracy to perpetrate fraud in the inducement alleges an action founded upon

fraud, and this conclusion is buttressed by case law addressing the concept of civil

conspiracy in Florida.

      Nor does our recent decision in Flatirons Bank v. Alan W. Steinberg Ltd.

P’ship., 233 So. 3d 1207 (Fla. 3d DCA 2017) lend support to appellees’ position.

Here are the salient facts taken from the majority opinion in Flatirons:

      Mark Yost was the former board chairman and president of Flatirons Bank.

In 2009, Yost arranged for Flatirons to issue bogus lines of credit, enabling Yost to

steal nearly $4 million from Flatirons. These funds were then transferred to entities

owned or controlled by Yost, including an entity called the Yost Partnership, a



                                           9
limited partnership and investment vehicle which operated from 1991 until 2010.

The Alan W. Steinberg Limited Partnership (Steinberg) was a limited partner of, and

investor in, the Yost Partnership. From 2000 to 2004, Steinberg had invested $2.2

million in the Yost Partnership.

       Flatirons discovered Yost’s fraud in 2010, and their investigation revealed

that a year earlier Yost had transferred $1 million to Steinberg. In an attempt to

recoup the funds embezzled by Yost, Flatirons filed a claim against Steinberg for

unjust enrichment, seeking the $1 million Yost had transferred to Steinberg.

      Steinberg answered and, as an affirmative defense, asserted that Flatirons’s

unjust enrichment claim was barred by the four-year statute of limitations. The

matter proceeded to trial and, following trial, the trial court determined that the

action was barred by the statute of limitations. The trial court found that the delayed

discovery doctrine did not apply to Flatirons’s unjust enrichment claim against

Steinberg.

      This court affirmed the trial court’s determination. In doing so, however, we

noted the following findings by the trial court, which distinguish Flatirons from the

instant case:

      - Flatirons and Steinberg had no relationship with each other;

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




                                          10
      - Upon receiving the $1,000,000.00 transfer, Steinberg actually
        suffered a net loss of approximately $1,200,000.00 as a result of the
        Yost Partnership’s fraud and misconduct;

      - 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.




                                        11
      In the absence of any allegation of fraud or fraudulent conduct by Steinberg,

or a conspiratorial relationship between Yost and Steinberg, the claim against

Steinberg could not qualify as an “action founded upon fraud,” and, accordingly, the

delayed discovery doctrine could not be invoked as against a statute of limitations

defense.

      By contrast, the very different facts alleged here necessarily lead to a very

different result. Tejera has alleged that Romay and ACV engaged in a conspiracy

to perpetrate fraud; that they knowingly committed fraudulent acts in furtherance of

that conspiracy; and that Tejera could not have discovered the facts giving rise to

this cause of action against Romay and ACV until April 2012.

      A final legal principle applies to our analysis: There is no freestanding cause

of action in Florida for “civil conspiracy.” In order to state a claim for civil

conspiracy, a plaintiff must allege an underlying independent tort. The conspiracy

is merely the vehicle by which the underlying tort was committed, and the

allegations of conspiracy permit the plaintiff to hold each conspirator jointly liable

for the actions of the coconspirators. As we reaffirmed in Banco de los Trabajadores

v. Cortez Moreno, 237 So. 3d 1127, 1136 (Fla. 3d DCA 2018):

      Florida does not recognize civil conspiracy as a freestanding tort. SFM
      Holdings Ltd. v. Banc of Am. Secs., LLC, 764 F.3d 1327, 1338-39
      (11th Cir. 2014) (applying Florida law). The gist of a civil conspiracy
      is not the conspiracy itself, but the underlying civil wrong occurring
      pursuant to the conspiracy and which results in the plaintiff’s damages.
      Marriott Int’l, Inc., v. Am. Bridge Bahamas, Ltd., 193 So. 3d 902, 909


                                         12
      (Fla. 3d DCA 2015). The conspiracy does not give rise to an
      independent cause of action, but is a device to allow a plaintiff to spread
      liability to those involved in causing the underlying tort. Lorillard
      Tobacco Co. v. Alexander, 123 So. 3d 67, 80 (Fla. 3d DCA 2013)
      (observing: “Conspiracy is not a separate or independent tort but is a
      vehicle for imputing the tortious acts of one coconspirator to another to
      establish joint and several liability.”) (quoting Ford v. Rowland, 562
      So. 2d 731, 735 n.2 (Fla. 5th DCA 1990)). The conspiracy therefore,
      is inextricably linked with the underlying tort. Blatt v. Green, Rose,
      Kahn & Piotrkowski, 456 So. 2d 949, 950-51 (Fla. 3d DCA 1984).

      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.

                                          13
