               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

WEST BROOK ISLES PARTNER'S 1,                )
LLC,                                         )
                                             )
              Appellant,                     )
                                             )
v.                                           )   Case No. 2D13-6165
                                             )
COMMONWEALTH LAND TITLE                      )
INSURANCE COMPANY; NAVARETTA                 )
& NAVARETTA, ATTORNEYS AT LAW,               )
P.A.; and STEPHEN NAVARETTA,                 )
INDIVIDUALLY,                                )
                                             )
              Appellees.                     )
                                             )

Opinion filed April 24, 2015.

Appeal from the Circuit Court for Pinellas
County; Jack Day, Judge.

A. Christopher Kasten, II of Bush Ross,
P.A., Tampa, for Appellant.

Marie A. Borland and J. Scott Slater of
Hill Ward & Henderson, P.A., Tampa, for
Appellees Navaretta & Navaretta, P.A.
and Stephen Navaretta.

Shawn G. Rader, James E. Walson, and
Jennifer R. Dixon of Lowndes, Drosdick,
Doster, Kantor & Reed, P.A., Orlando,
for Appellee Commonwealth Land Title
Insurance Company.


LaROSE, Judge.
                West Brook Isles Partner's 1, LLC (WBI), appeals the final summary

judgments entered in favor of Commonwealth Land Title Insurance Company, Navaretta

& Navaretta, P.A., and Stephen Navaretta, Esquire. We have jurisdiction. See Fla. R.

App. P. 9.030(b)(1)(A). WBI sued the appellees for a real estate transaction that

allegedly went bad. After carefully reviewing the record and with the benefit of oral

argument, we affirm. We write to explain why the applicable statute of limitations bars

WBI's claims.

                In 2004, WBI purchased from TAJ Development, Inc., five parcels in an

undeveloped condominium project, Westbrook Isles. Allegedly, WBI thought it was

buying vacant, unencumbered raw land. WBI intended to build condominium units on

the land; but, if that was not economically feasible, WBI would develop the land for other

uses. Seemingly, TAJ also believed it was selling unencumbered raw land. However,

by virtue of a 1995 Fourth Amendment to the Declarations of Condominium, the parcels

rested in the condominium form of ownership. Indeed, Mr. Navaretta prepared and

recorded the condominium documents when he counseled the original developer, a joint

venture of WBI and TAJ. The joint venture was dissolved in 2003, and TAJ, the seller

here, acquired the parcels. The parcels remained undeveloped.

                When WBI bought the parcels in 2004 from TAJ, Mr. Navaretta

represented WBI; he also served as Commonwealth's title agent. His law firm,

Navaretta & Navaretta, P.A., was the closing agent. Our record contains an August 25,

2004, title search report describing the property as phased condominium units. An

executed title commitment, dated August 25, 2004, describes the property as twenty




                                           -2-
condominium units in phases 2, 7, 8, 9, and 10 of Westbrook Isles Condominium. It

notes twenty 2003 real property tax payments for each unit.

              The September 21, 2004, purchase and sale agreement refers to the

property as "Phases 2, 7, 8, 9, and 10 Westbrook Isles Condominium." The agreement

provides that "Seller agrees to sell, and Buyer agrees to purchase the Land, together

with all of Seller's right, title and interest (if any) in and to all easements, developments,

rights and permits and other appurtenances incidental to the Land." The agreement

addresses condominium dues and assessments. On September 29, 2004, Mr.

Navaretta sent the August 25 title commitment to Doug East, WBI's agent who had

signed the purchase and sale agreement. Mr. Navaretta also sent a copy of the title

commitment to TAJ.

              On September 22 and 23, 2004, Mr. Navaretta sent Commonwealth the

metes-and-bounds descriptions for each parcel, "relevant to [the] title search." Our

record contains an unexecuted title commitment package reflecting these metes-and-

bounds descriptions.

              The October 28, 2004, warranty deed, interestingly, notes that the

property is "[s]ubject to condominium documentation, restrictions, reservations and

easements of record . . . ." Our record includes the note of a TAJ representative

observing that the warranty deed needed correction to properly identify the property.

Although Mr. Navaretta testified that he was entitled to rely on the legal description that

the Commonwealth title search provided, he later realized that "the recording data was

not complete." He claimed that the conveyed property was phases and undeveloped

units of a condominium project.



                                             -3-
              Mr. Navaretta rerecorded a second copy of the warranty deed on

November 4, 2004. A notation states as follows: "Subject to condominium

documentation, restrictions, reservations and easements of record, if any, and taxes

subsequent to December 31, 2003." The January 15, 2005, Commonwealth title

insurance policy describes the property as condominiums by phase. A March 2006

mortgage on the property, involving WBI and one of its members, also described the

property as twenty "units" within phases and buildings subject to a declaration of

condominium. Our record seems clear that at closing, WBI purchased condominiums in

a project yet to be developed.

              WBI admits that it did not read the key transaction documents, claiming

instead that it relied on Mr. Navaretta and his law firm. Mr. Navaretta, for his part,

testified that WBI knew it was purchasing only phases in a condominium project.

              After the October 2004, closing, WBI marketed the condominium units it

planned to build. By August 2006, however, souring market conditions compelled WBI

to abandon its sales efforts. When the 2006 mortgage was foreclosed in 2009, the

complaint described the property as twenty condominium units. WBI claims that in late

2010 it finally realized it did not own unencumbered raw land. WBI demanded relief from

Mr. Navaretta and Commonwealth.

              In June 2011, Commonwealth sued WBI for declaratory relief. The

complaint alleged (1) that Commonwealth issued a title policy to WBI; (2) that WBI

submitted a claim alleging that the warranty deed's legal description was incorrect and

did not match the description in the policy; (3) that WBI claimed that Commonwealth

was responsible for the alleged failings of Mr. Navaretta and his law firm; and that



                                            -4-
(4) Commonwealth procured a corrective warranty deed with the policy's property

description and offered to record it to exercise its right under the policy to correct the

alleged title defect. Commonwealth asked the trial court to find that it had fully complied

with its policy obligations.

              WBI filed a counterclaim against Commonwealth on September 16, 2011,

and joined Mr. Navaretta and his law firm as counterclaim defendants. WBI's Third

Amended Counterclaim included three counts against Commonwealth for breach of

fiduciary duty and constructive fraud as closing agent and breach of contract for the title

commitment; three counts against Mr. Navaretta for legal malpractice, fraud, and

constructive fraud in his capacity as WBI's attorney; and two counts against the law firm

for constructive fraud and breach of fiduciary duty in its role as closing agent. Mr.

Navaretta, his law firm, and Commonwealth pleaded an affirmative defense that the

statutes of limitations barred WBI's claims.

              Absent tolling of the statute of limitations, WBI had two years from the

October 2004 closing to sue Mr. Navaretta. See § 95.11(4)(a), Fla. Stat. (2004) (two-

year limitation for professional malpractice, whether based on contract or tort). For the

constructive fraud and breach-of-fiduciary-duty claims against the law firm and

Commonwealth, WBI should have sued by 2008. See §§ 95.11(3)(j),(o) (four-year

limitations). For the breach-of-contract claim against Commonwealth, WBI should have

sued by 2009. See § 95.11(2)(b) (five-year limitation). WBI waited too long; it filed its

counterclaim in September 2011.

              Mr. Navaretta, his law firm, and Commonwealth moved for summary

judgment, asserting that WBI's claims were time-barred. They argued that WBI knew or



                                            -5-
should have known by February 2005, when Mr. Navaretta sent WBI the closing

documents, and certainly no later than March 2006, when WBI referred to the property

in the mortgage as twenty "condominium units," that it had not purchased

unencumbered raw land. Even if WBI were deemed not to have known until March

2006, an outer limit of five years for Commonwealth's alleged breach of contract would

have been March 2011, months before WBI filed its counterclaim.

              WBI maintains that the statutes of limitations were tolled because Mr.

Navaretta fraudulently concealed the fact that WBI was buying condominium units

rather than unencumbered raw land. WBI claims not to have discovered the problem

until nearly six years after the 2004 closing. According to WBI, Mr. Navaretta failed to

provide WBI a copy of the original title commitment for review prior to closing. WBI

insists that it did not have sufficient time or opportunity to review the closing documents

closely. WBI allegedly relied on Mr. Navaretta's statement that the documents were

proper and signed specific places indicated in the documents as advised.

              WBI argues that Mr. Navaretta knew before and during the closing that

WBI would not have closed had it been aware that the purchase did not include the

land. WBI argues that Mr. Navaretta made a conscious decision to conceal the facts

because he wanted to get paid for legal and title work. WBI contends that its claim is

supported by the facts that Mr. Navaretta did not use the purchase and sale

agreement's legal description in the title and closing documents and that he improperly

corrected and rerecorded the legal description in the deed after the closing.

Unfortunately, WBI confuses fraud and fraudulent concealment.




                                           -6-
              Our record contains no evidence that WBI told Mr. Navaretta that it

planned to use the property for anything other than condominiums. Doug East, WBI's

agent and contact person with Mr. Navaretta, testified that he could not recall whether

WBI asked Mr. Navaretta to clarify the nature of the interest WBI was purchasing. Mr.

East only "glanced at" the contract before signing it but did not pay attention to the

property description until later.

              After the hearing, the trial court granted summary judgment and entered

final judgments in favor of Mr. Navaretta, his law firm, and Commonwealth because

WBI's claims were time-barred. On appeal, WBI argues that it did not know nor should

it have known that the land itself was not included. WBI argues that summary judgment

was improper because a material issue of fact remains as to when the statutes of

limitations began to run.

              The statute of limitations for fraud begins to run when the plaintiff should

have discovered, exercising any diligence, that the allegedly fraudulent transaction was

suspect. Breitz v. Lykes-Pasco Packing Co., 561 So. 2d 1204, 1205 (Fla. 2d DCA

1990). Fraudulent concealment is markedly distinct; it focuses on subsequent actions

to keep the improper conduct shrouded from sight. "Generally, two elements are

required before the equitable principle of fraudulent concealment will be utilized to toll

the statute of limitations, to-wit: plaintiff must show both successful concealment of the

cause of action and fraudulent means to [achieve] that concealment." Nardone v.

Reynolds, 333 So. 2d 25, 37 (Fla. 1976), superseded by statute, ch. 75-9, § 7, at 20-21,

Laws of Fla., on other grounds as stated in Nehme v. Smithkline Beecham Clinical

Labs., Inc., 863 So. 2d 201, 207 (Fla. 2003), receded from on other grounds by



                                            -7-
Hearndon v. Graham, 767 So. 2d 1179, 1184-85 (Fla. 2000). Even if WBI was

unaware, or could not have been aware through the exercise of reasonable diligence,

that the property was encumbered by a condominium declaration when it bought the

parcels, there is no evidence of fraudulent concealment after the closing. To the

contrary, Mr. Navaretta sent all the closing documents to WBI. And, certainly by 2006,

WBI's own mortgage documents made clear that it did not own raw unencumbered land.

Where there was no active concealment and a party with the exercise of due diligence

could have discovered the facts, the statute of limitations is not tolled. Jackson v.

Georgopolous, 552 So. 2d 215, 216 (Fla. 2d DCA 1989). Accordingly, we affirm the

final summary judgments based upon the expiration of the statutes of limitations. We

affirm on all other issues without further discussion.

              Affirmed.



CRENSHAW and SLEET, JJ., Concur.




                                            -8-
