Miami, Florida - Securities Fraud lawyer represented Appellants with challenging their claims against appellees to borrow money from an alleged wealthy investor.

This dispute traces its origins to the data breach of Panamanian law

firm Mossack Fonseca, which led to the leak of the infamous "Panama

Papers.” Appellants contend that Odebrecht, S.A., the parent construction

company of the Odebrecht Entities, recruited John Polit, the son of Carlos

Polit, a then-prominent Ecuadorian politician, to persuade unwitting entities

to borrow money from an alleged wealthy investor seeking to secure a

reliable return. In actuality, no such investor existed. The loans were paid

back to shell companies controlled by certain government actors that

Odebrecht, S.A. bribed for favorable treatment, including Carlos Polit.

Appellants accepted one such loan. After the leak of the Panama

Papers, they were both implicated in the ensuing criminal investigation.

Certain assets were subject to an official freeze order, as a result of which

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appellants purportedly incurred business losses. Attorney's fees and

litigation-related expenses stemmed from the criminal investigation.

Odebrecht, S.A. was eventually federally indicted in New York for

financial crimes and admitted to paying $788 million in bribes to various

bureaucrats around the globe to secure government contracts, including in

Ecuador, while Carlos Polit was charged and convicted in Ecuador for

accepting over $7 million in bribes from Odebrecht, S.A. and the Odebrecht

Entities.

PROCEDURAL HISTORY

Appellants filed suit in the circuit court of Miami-Dade County against

John Polit, Carlos Polit, Odebrecht, S.A., the Odebrecht Entities, and

Constructora Norberto Odebrecht del Ecuador. As relevant to this appeal,

the operative complaint alleged claims for fraud, civil conspiracy, and

violations of the Florida Racketeering Influenced and Corrupt Organizations

Act ("RICO”), as codified in section 772.101 et seq., Florida Statutes (2020),

and the Florida Deceptive and Unfair Trade Practices Act ("FDUPTA”), as

codified in section 501.201 et. seq., Florida Statutes (2020). The claims

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against Carlos Polit and the Odebrecht Entities were dismissed with

prejudice, and the instant appeals ensued.1

ANALYSIS

When considering a motion to dismiss, the trial court "must look only

to the four corners of the complaint including the attachments; and the

allegations contained therein should be taken as true without regard to the

pleader's ability to prove them.” Coriat v. Glob. Assurance Grp., Inc., 862

So. 2d 743, 743 (Fla. 3d DCA 2003). Correspondingly, on appeal, we review

de novo "whether the complaint alleges sufficient ultimate facts, which under

any theory of law, would entitle a plaintiff to the relief sought.” Cohen v. Am.

Home Assurance Co., 367 So. 2d 677, 681 (Fla. 3d DCA 1979).

In order to state a viable cause of action for fraud, a plaintiff must

allege: "(1) a false statement concerning a material fact; (2) the representor's

knowledge that the representation is false; (3) an intention that the

representation induce another to act on it; and, (4) consequent injury by the

party acting in reliance on the representation.” Johnson v. Davis, 480 So. 2d

625, 627 (Fla. 1985). Due to the proclivity of litigants to "loosely sling the

term 'fraud' into pleadings,” Florida law requires that the tortious conduct be

1 We have sua sponte consolidated appellants' separate appeals for

purposes of this opinion.

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described with precision. Thompson v. Bank of N.Y., 862 So. 2d 768, 770

(Fla. 4th DCA 2003). To fulfil this mandate, Florida Rule of Civil Procedure

1.120(b) necessitates "the circumstances constituting fraud . . . be stated

with such particularity as the circumstances may permit.” In this vein, the

claim "must clearly and concisely set out the essential facts of the fraud, and

not just legal conclusions.” Flemenbaum v. Flemenbaum, 636 So. 2d 579,

580 (Fla. 4th DCA 1994).

Similarly, a claim for civil conspiracy must allege: (1) an agreement

between two or more parties; (2) to do an unlawful act or a lawful act by

unlawful means; (3) the execution of some overt act in pursuance of the

conspiracy; and (4) damage to the plaintiff as a result of said acts. Raimi v.

Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997). In pleading conspiracy,

the plaintiff must further identify an actionable underlying tort or wrong. Id.

Distilled to its essence, the complaint in the instant case alleged fraud

on the theory that John Polit, acting as an agent for Odebrecht, S.A. and the

Odebrecht Entities, knowingly misrepresented the source of the loan in order

to induce appellants to borrow funds and facilitate a sophisticated money

laundering operation. After the loan transaction was completed, John Polit

used the corporate cloak of Odebrecht and its associated shell entities as a

subterfuge to disguise the source of the monies tendered to Carlos Polit and

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other corrupt politicians to secure illegal favors. When this arrangement was

exposed after the leak of the Panama Papers, appellants were targeted by

investigating authorities and consequently suffered damages in the form of

litigation-related expenses, unpaid interest, and business losses.

Appellees devote a considerable portion of their briefs to the

implausibility of the allegations and the failure to conclusively demonstrate

an agency relationship between the Odebrecht Entities and the remaining

parties. It is axiomatic that "[a] motion to dismiss concedes for the purposes

of the motion the truth of the well-pled allegations of the complaint.”

Lieberman v. City of Miami Beach, 147 So. 2d 16, 17 (Fla. 3d DCA 1962).

Equally well-established is the principle that "[t]he existence of an agency

relationship is ordinarily a question to be determined by a jury in accordance

with the evidence adduced at trial.” Orlando Exec. Park, Inc. v. Robbins, 433

So. 2d 491, 494 (Fla. 1983). Accordingly, we conclude the complaint stated

with sufficient particularity facts supporting the essential elements of fraud.

See also Ward v. Atl. Sec. Bank, 777 So. 2d 1144, 1146 (Fla. 3d DCA 2001)

(concluding fraud may be predicated on an intentional omission of a material

fact).

In pleading civil conspiracy, appellants advanced similar allegations

with the added contention that appellees, acting in concert with the other

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defendants, orchestrated the master plan to bribe the officials and conceal

the illegal act by laundering unlawful payments. In this regard, appellants

were alleged to be but pawns in a far-reaching scheme. Because "[e]ach

coconspirator need not act to further a conspiracy[,] each 'need only know of

the scheme and assist in it in some way to be held responsible for all of the

acts of his [or her] coconspirators,'” and, here, appellants sufficiently alleged

all conspirators engaged in a common scheme of fraud, while individual

conspirators committed overt acts, we conclude the complaint further stated

a viable claim for conspiracy. Charles v. Fla. Foreclosure Placement Ctr.,

LLC, 988 So. 2d 1157, 1160 (Fla. 3d DCA 2008) (quoting Donofrio v.

Matassini, 503 So. 2d 1278, 1281 (Fla. 2d DCA 1987)).

We conclude, however, that because neither the RICO count nor the

FDUTPA count were facially sufficient, the trial court properly dismissed

those claims.



Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent herewith.



Affirmed in part, reversed in part, and remanded for further

proceedings.