271 So. 3d 97
Fla. Dist. Ct. App.2019Background
- Tejera sued Lincoln Lending and others for a mortgage-rescue fraud scheme that collected upfront fees but provided no services; Lincoln was enjoined by the Florida AG in 2009.
- Tejera later amended to add Omar Romay and America-CV Network, LLC (ACV), alleging they aired the fraudulent ads and were part of a conspiracy to commit civil theft (Count 19) and to perpetrate fraud in the inducement (Count 21).
- Tejera alleged he could not have discovered Romay/ACV’s role until April 2012; Romay/ACV moved to dismiss both counts as time-barred by the statute of limitations.
- The trial court dismissed both counts with prejudice as barred by limitations; the appellate court affirmed dismissal of Count 19 but reversed dismissal of Count 21.
- The appellate court held Count 21 alleged an action “founded upon fraud,” so the codified delayed-discovery doctrine (section 95.031(2)(a)) could delay accrual of the 4-year limitations period alleged by the parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count 21 (conspiracy to commit fraud in the inducement) is an “action founded upon fraud” for purposes of the delayed discovery doctrine | Tejera: Count 21 alleges fraud in the inducement; therefore delayed discovery applies and the 4-year period did not begin until discovery in April 2012 | Romay/ACV: It's a civil-conspiracy claim subject to a 4-year limitations period and not an action founded on fraud, so delayed discovery is inapplicable | Held: Count 21 alleges an action founded upon fraud; delayed discovery may apply, so dismissal as time-barred was error |
| Whether dismissal with prejudice at motion-to-dismiss stage on statute-of-limitations grounds was appropriate | Tejera: Allegations that discovery occurred only in April 2012 avoid limitations at the pleading stage | Romay/ACV: Facts on the face of the complaint show the claim is time-barred | Held: At motion-to-dismiss stage, the court must accept Tejera’s allegations; dismissal with prejudice was improper for Count 21 |
Key Cases Cited
- Davis v. Monahan, 832 So. 2d 708 (Fla. 2002) (delayed-discovery doctrine applies only to claims founded on fraud or product liability; absence of fraud in pleading defeats delayed discovery)
- Brooks Tropicals, Inc. v. Acosta, 959 So. 2d 288 (Fla. 3d DCA 2007) (delayed-discovery doctrine applies to fraud in the inducement)
- Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005) (recognizing delayed discovery for fraud in the inducement)
- Flatirons Bank v. Alan W. Steinberg Ltd. P’ship., 233 So. 3d 1207 (Fla. 3d DCA 2017) (where recipient acted in good faith and had no conspiratorial or fraudulent role, claim was not an action founded upon fraud and delayed discovery did not apply)
- Nationstar Mortg., LLC v. Sunderman, 201 So. 3d 139 (Fla. 3d DCA 2015) (standard of review — de novo review of dismissal)
- Banco de los Trabajadores v. Cortez Moreno, 237 So. 3d 1127 (Fla. 3d DCA 2018) (reaffirming that civil conspiracy is not a freestanding tort; liability depends on the underlying wrong)