FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 8, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13151

Non-Argument Calendar

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D. C. Docket No. 07-00082-CV-FTM-34-SPC

MAXI-TAXI OF FLORIDA, INC.,

a Florida corporation,

AARON AIRPORT TRANSPORTATION, INC.,

VINCENT ANGIOLILLO,

d.b.a. Class Act Limousine,

PRESTIGE TRANSPORTATION, INC.,

LUXURY SEDAN SERVICE, LLC,

ARISTOCRAT LUXURY TRANSPORTATION, INC.,

ANGEL PEREZ,

d.b.a. Angel’s Transportation,

Plaintiffs-Appellants,

versus

LEE COUNTY PORT AUTHORITY,

Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 8, 200)
Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Plaintiff-Appellants (“Plaintiffs”) appeal the district court’s grant of

summary judgment on their equal protection and tortious interference with

business claims against Defendant-Appellee Lee County Port Authority (“LCPA”).

We affirm.

BACKGROUND

In August of 2006, LCPA promulgated a new rule that certain types of

vehicles were no longer permitted to use the commercial lanes directly in front of

the Southwest Florida International Airport (“Airport”). LCPA sent a letter

alerting those concerned that “all courtesy permitted vehicles, except hotel shuttles,

and occasional users will begin using the parking garage instead of dwelling in the

commercial transportation plaza.” The LCPA’s rules define “courtesy permitted

vehicle” as “any commercial ground transportation vehicle that is neither a demand

vehicle nor a bus.” Vehicles affected by this rule include permitted operators of

limousines, vans, and business courtesy vehicles for hire by prearranged agreement

between the operator and the customer and expressly exclude all types of buses,

hotel shuttles, and any type of “walk up” or “on-demand” service provider, such as

a taxicab service. On September 6, 2006, LCPA issued another letter explaining

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that “pre-reserved operators desiring to meet and greet their customers in the

terminal are required to park in the parking garage.” LCPA reserved twenty-four

parking spaces marked “limo only” on the second level of the pay parking garage

and limousine and prearranged vehicle drivers were also permitted to park in the

commercial holding lot near the terminal.

Plaintiffs are licensed providers of prearranged livery and limousine services

who are within the class of “courtesy permitted vehicles” no longer allowed access

to the commercial lanes under LCPA’s rules and regulations. Plaintiffs, in their

amended complaint, allege that the rule excluding them from the commercial lanes

prevents them from competing for certain types of customers while allowing “other

types of transportation providers to continue to serve customers in the same way

they always had.” Plaintiffs assert that these “rules and regulations [] place

Plaintiffs into an arbitrary and unreasonable class” in violation of the state and

federal constitutional guarantee of equal protection under the law. Plaintiffs’

amended complaint also asserts a state tort claim against LCPA for “intentional[]

disrupt[ion of] the relationship between Plaintiffs and their customers.”

Following discovery, LCPA moved for summary judgment, asserting that

Plaintiffs could not present evidence in support of their equal protection claim or

their intentional disruption of business relationship claim. Plaintiffs responded.

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As a threshold matter, the district court considered which of the three types

of equal protection claims Plaintiffs were asserting: a challenge to a facially

unequal rule, a challenge to the neutral administration of a facially neutral rule that

has a disparate impact, or a challenge to the unequal administration of a facially

neutral rule. After considering the allegations of the amended complaint and

Plaintiffs’ arguments in opposition to summary judgment, the district court found

that Plaintiffs’ claim challenged the fact that the new rule, on its face,

impermissibly distinguished between “courtesy permitted vehicles, except hotel

shuttles,” and all other commercial vehicles, and that therefore Plaintiffs were

asserting a facial challenge. Applying the appropriate standard for facial

challenges, the district court found that LCPA’s distinction between “courtesy

permitted vehicles, except hotel shuttles” and “on-demand vehicles and buses” was

a reasonable one rationally related to the legitimate government interest in safety

and security such that the rule did not violate Plaintiffs’ equal protection rights.

The district court also found that Plaintiffs did not present evidence of a business

relationship that was likely to have continued but for LCPA’s new rule or any

evidence that LCPA acted with the requisite intent to disrupt Plaintiffs’ business

relationships. Therefore, the district court found Plaintiffs had not established

necessary elements of their intentional disruption to business relationship tort

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claim.

On appeal, Plaintiffs assert that the district court erred in finding that they

were making a facial challenge to the LCPA rule, rather than a challenge to the

LCPA’s unequal application of the rule. Plaintiffs argue that the district court

therefore erred in applying the standard for a facial challenge to its analysis of the

equal protection claim and that, under the correct “as applied” standard, summary

judgment is inappropriate. Plaintiffs also argue that the district court erred by

requiring them to present evidence in support of their claim that they lost business

as a result of LCPA’s rules where LCPA had offered only a general denial of their

allegations.

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STANDARD OF REVIEW

“We review the district court’s grant of summary judgment de novo,

applying the same legal standards that bound the district court, and viewing all

facts and reasonable inferences in the light most favorable to the nonmoving

party.” Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir. 2005)

(citation and quotation omitted). Summary judgment is appropriate when “there is

 In the statement of the issues section of their appellate brief, Plaintiffs also assert that 1

the “court below failed to follow Rule 52 of the Federal Rules of Civil Procedure by making

findings fact inconsistent with the evidence presented.” Plaintiffs do not, however, make any

arguments in support of this assertion in the analysis section of their brief; therefore, this

argument has been abandoned and we will not consider it. See Access Now, Inc. v. Southwest

Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (explaining that if an issue is not fully

argued in the initial brief, evaluating its merits would be improper).

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no genuine issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

DISCUSSION

(1) Equal Protection: “Facial” or “As Applied” Challenge

We first address Plaintiffs’ claim that the district court incorrectly

interpreted their equal protection claim as a facial challenge, not an “as applied”

challenge, to the LCPA rule. Plaintiffs assert that they alleged and showed through

the depositions of LCPA’s witnesses that they “were singled out and that the

regulation was applied only to their ‘courtesy permitted vehicles’ and/or

‘prearranged vehicles’ and not to the others included in that class.” Indeed,

Plaintiffs go so far as to claim that “[e]very fact alleged by [Plaintiffs] and every

argument propounded by them during the entire course of this case demonstrates

with extreme clarity that the district court was completely in error” in interpreting

their equal protection claim as a facial challenge to the rule rather than an “as

applied” challenge.

We disagree. Plaintiffs, in their amended complaint, allege that “certain

rules and regulations were imposed by [LCPA] preventing Plaintiffs from

providing the same services to their customers as they had provided in the past and

further preventing Plaintiffs from competing for certain types of customers” and

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that these “rules and regulations [] allowed other types of transportation providers

[] continue to serve customers in the same way they always had.” Plaintiffs’

amended complaint further asserts that these “rules and regulations [] place

Plaintiffs into an arbitrary and unreasonable class” in violation of the state and

federal constitutional guarantee of equal protection under the law. As such,

Plaintiffs did not allege that LCPA unequally applied a facially neutral regulation;

rather, they asserted that LCPA’s rules and regulations, on their face, unreasonably

placed Plaintiffs into a class which could not use the commercial lanes. In their

opposition to LCPA’s motion for summary judgment, Plaintiffs asserted that all

other types of commercial vehicles, “including [] shuttle busses (sic), courtesy

vehicles from hotel and parking lot operators, large and small passenger buses,

commercial tour vans and others,” continued to use the commercial lanes after the

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rule at issue had been passed and that “only Plaintiff’s vehicles were excluded by

the new regulation.” Plaintiffs, however, did not allege or provide evidence

showing that any of the other vehicles continuing to use the commercial lanes

belonged to their class, that is, that these vehicles were other “courtesy permitted

vehicles, except buses.” Plaintiffs did not argue, in either the amended complaint

 We note that all of the types of vehicles Plaintiffs allege continued to use the 2

commercial lanes appear to be either hotel shuttles, on-demand vehicles, or buses; therefore, it is

not apparent from Plaintiffs’ allegations that any vehicles excluded under the rule continued to

be allowed access to the commercial lanes. 

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or the response to LCPA’s motion for summary judgment, that LCPA applied its

own rules and regulations unequally to exclude Plaintiffs’ vehicles while allowing

other vehicles belonging to Plaintiffs’ class to access the commercial lanes.

Accordingly, we conclude that Plaintiffs, when they were before the district court,

only challenged the rule itself and failed to argue or present evidence in support of

an “as applied” challenge.

Plaintiffs’ “as applied” argument, therefore, advances for the first time on

appeal a different theory and argument than what was considered by the district

court. This court has “repeatedly held that an issue not raised in the district court

and raised for the first time in an appeal will not be considered.” Walker v. Jones,

10 F.3d 1569, 1572 (11th Cir. 1994) (citations omitted). Admittedly, our rule

foreclosing review of issues not presented below is not jurisdictional and may be

abrogated in certain exceptional circumstances. See Dean Witter Reynolds, Inc. v.

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Fernandez, 741 F.2d 355, 360-61 (11th Cir. 1984). However, as we see it,

Plaintiffs failed to raise an argument below and now seek to resurrect the

abandoned argument by claiming the district court “misinterpreted” its claim.

We have permitted issues to be raised for the first time on appeal under only five 3

circumstances: (1) where the issue involves a “pure question of law” and the refusal to consider

it would result in a miscarriage of justice; (2) where the appellant had no opportunity to raise it

at the trial level; (3) where strict application of the rule would result in patently unjust results;

(4) where the proper resolution is beyond doubt; and (5) where the issue presents significant

question of general impact or great public concern. See Access Now, Inc., 385 F.3d at 1332. 

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Under these circumstances, no compelling reason justifies the abrogation of our

general rule.

For the above reasons, we decline to consider Plaintiffs’ “as applied” equal

protection challenge to the LCPA rule. Plaintiffs raise no objection on appeal to

the district court’s grant of summary judgment on Plaintiffs’ facial challenge to the

rule. We therefore affirm the district court’s decision on this issue without further

discussion.

(2) Tortious Interference with an Advantageous Business Relationship

Plaintiffs next assert that the district court erred in requiring them to “offer

proof of the kind and nature that would normally be reserved for trial in order to

defeat [LCPA’s] motion for summary judgment.” Plaintiffs contend that because

LCPA did not introduce evidence refuting their assertions that (1) the LCPA rule

caused them to lose customers who would otherwise have continued a business

relationship and (2) LCPA acted intentionally to interfere with Plaintiffs’ business

relationships, it was error for the district court to require “strict proof” of these

elements of the claim. Plaintiffs argue that LCPA’s “mere denial” of their

allegations “does not create a condition wherein a nonmovant must prove facts that

support its allegations.”

Plaintiffs misunderstand the summary judgment standard. It is well settled

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that “after adequate time for discovery and upon motion, [summary judgment is

appropriate] against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-323

(1986). Accordingly, in response to a motion for summary judgment, a

nonmoving-plaintiff must present evidence in support of his allegations sufficient

to raise a genuine issue of material fact regarding each element of his claim. As

established in Celotex, it is not necessary for the party moving for summary

judgment to introduce any evidence at all in order to prevail on his motion. Rather,

in cases in which the nonmoving party will bear the burden of proof at trial, the

movant can seek summary judgment by establishing that the opposing party has

insufficient evidence to prevail as a matter of law, thereby forcing the opposing

party to come forward with some evidence or risk having judgment entered against

him. Id. Where the nonmoving party fails to present such evidence, “there can be

‘no genuine issue as to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.” Id. Accordingly, once LCPA brought the motion for

summary judgment, the district court correctly required Plaintiffs to “go beyond

the pleadings, and by [their] own affidavits, or by depositions, answers to

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interrogatories, and admissions on file, designate specific facts showing that there

is a genuine issue for trial.” Jeffrey v. Sarasota White Sox, Inc., 64 F.3d 590, 593-

94 (11th Cir. 1995) (internal citations and quotation marks omitted).

Upon review of the record in this case, we conclude that the district court

correctly found Plaintiffs failed to present sufficient evidence in support of the

required elements of a tortious interference claim. Under Florida law, the elements

of a claim of tortious interference with an advantageous business relationship are:

“(1) the existence of a business relationship, not necessarily evidenced by an

enforceable contract; (2) knowledge of the business relationship on the part of the

defendant; (3) an intentional and unjustified interference with the relationship by

the defendant; and (4) damage to the plaintiff as a result of the breach of the

relationship.” Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.

1985). Proof of the requisite intent is necessary as “[t]here is no such thing as a

cause of action for interference which is only negligently or consequentially

effected.” Ethyl Corp. v. Balter, 386 So.2d 1220, 1223-24 (Fla. 3d DCA 1980).

In response to LCPA’s motion for summary judgment, Plaintiffs failed to

identify any record evidence suggesting that LCPA promulgated the rule at issue

with the intention of interfering with Plaintiffs’ business relationships. As

discussed above, Plaintiffs cannot merely rely upon the unsupported allegations in

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their complaint, but were required to submit some evidence or sworn statement in

support of each element of their claims. The only evidence before the court

regarding LCPA’s intent is that provided by LCPA, which indicates that it

promulgated the rule in order to address issues of Airport security, public safety,

and traffic regulation. Because no evidence supports Plaintiffs’ claim that LCPA

acted intentionally to interfere with its specific business relationships, we conclude

that LCPA is “entitled to a judgment as a matter of law” on Plaintiffs’ tortious

interference with business relationship claim.

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CONCLUSION

Based on the foregoing, we conclude that the district court’s grant of

summary judgment to LCPA should be AFFIRMED.

 Because we conclude that summary judgment is merited due to Plaintiffs’ failure to 4

present evidence on this essential element of the claim, we decline to consider whether the

district court erred in finding that Plaintiffs’ also failed to present evidence of an on-going

business relationship. 

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