DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MIKE ULIZIO,

Petitioner,

v.

MMMG, LLC and MOBILE MIKE PROMOTIONS, INC.,

Respondents.

Nos. 4D21-2600 and 4D21-2601

[March 9, 2022]

Consolidated petitions for writ of certiorari to the Circuit Court for the 

Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez, 

Judge; L.T. Case Nos. CACE14-000419 and CACE16-018117.

Jonathan M. Weirich and Donald G. Peterson of Yarnell & Peterson, 

P.A., Naples, for petitioner.

Gary S. Phillips and Jeffrey B. Shalek of Phillips, Cantor & Shalek, P.A., 

Hollywood, for respondents.

PER CURIAM.

Mike Ulizio petitions for certiorari review of an order in two consolidated 

cases denying his motion for summary judgment, which claimed tribal 

sovereign immunity. We treat this case as an appeal under Florida Rule 

of Appellate Procedure 9.130(a)(3)(F)(iii), which allows review of a nonfinal 

order denying a motion that “asserts entitlement to sovereign immunity.”1

Ulizio argues that he is entitled to tribal sovereign immunity because 

the claims against him stemmed from actions he took in his capacity as 

chief financial officer (“CFO”) for the Seminole Tribe of Florida, Inc.

(“STOFI”), a corporate entity of the Seminole Tribe (the “Tribe”). We reverse

because there are no disputed issues of material fact that create a 

1 This rule became effective January 23, 2020. See In re Amends. to Fla. Rule of 

App. Proc. 9.130, 289 So. 3d 866, 867 (Fla. 2020). Previously, the rule allowed 

for review of such an order only if it determined the issue “as a matter of law.” 

Id. The new rule removed this requirement. Id. The order at issue was entered 

in August 2021, well after the amendment went into effect.
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reasonable inference that Ulizio acted beyond the scope of his authority as 

CFO and because the application of tribal sovereign immunity does not 

depend on whether a Tribe employee is a tribe member.

Federal law recognizes STOFI as a tribal corporation. Howard v. 

MMMG, LLC, 299 So. 3d 40, 42 (Fla. 4th DCA 2020). In 1995, the Tribe 

enacted an ordinance addressing the Tribe’s sovereign immunity and how 

it may be waived. Id. Ordinance C-01-95 recognizes that sovereign 

immunity extends to tribal officials, employees, and authorized agents 

unless the Tribe unequivocally consents to suit. Id. The ordinance 

provides in part:

[A]ll tribal officials, employees or other authorized agents shall 

likewise be immune from suit brought by any third-party in 

any state or federal court where such tribal official, employee 

or other authorized agent is either acting on behalf of [the 

Tribe] in the course of their agency or where the acts of 

such tribal official, employee or other agent, though 

mistaken, negligent or otherwise improper are within that 

degree of authority which [the Tribe] is capable of 

bestowing upon the agent as a matter of federal, 

constitutional or tribal law . . . .

Id. (emphasis in original).

We have previously affirmed the trial court’s dismissal of claims based 

on tribal sovereign immunity against STOFI and some officials, MMMG, 

LLC v. Seminole Tribe of Fla., Inc., 196 So. 3d 438 (Fla. 4th DCA 2016), and 

later granted petitions for writ of certiorari after STOFI board member 

Larry Howard was denied tribal sovereign immunity, Howard, 299 So. 3d 

40. The claims against Ulizio are like the ones brought against Howard. 

See id. 

In Howard, Michael Wax, a local radio personality and owner of Mobile 

Mike Promotions, Inc., entered his company into a joint venture with 

STOFI, forming MMMG, LLC, to provide promotional and advertising 

services to STOFI. Id. STOFI allegedly violated the agreement, and, in 

response, MMMG and Mobile Mike Promotions sued STOFI and STOFI 

officials, including board member Larry Howard. Id. Plaintiffs alleged the 

officials acted beyond their authority and directed STOFI to divert business 

from MMMG to Redline Media Group, Inc., a business owned by tribe 

member Sallie Tommie. Id. at 43.
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STOFI successfully moved to dismiss based upon tribal sovereign 

immunity. Id. The trial court found STOFI was entitled to tribal sovereign 

immunity but denied dismissal as to STOFI officials, finding factual 

disputes as to whether they acted beyond the scope of their authority. Id. 

Plaintiffs then filed a new derivative action, and the cases were 

consolidated. Id. In the consolidated cases, STOFI officials moved for 

summary judgment again, raising tribal sovereign immunity. Id. The trial 

court granted some officials summary judgment but denied Howard’s 

motions. Id. The court concluded that Wax’s affidavit created a factual 

dispute as to whether Howard received personal benefits for diverting 

business from MMMG to Redline. Id.

Howard petitioned for certiorari review in each case, and we granted 

the petitions, finding plaintiffs failed to establish that Howard, or any 

STOFI official, acted beyond the scope of his or her authority. Id. at 44; 

see also Tamiami Partners, Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee 

Tribe of Indians of Fla., 177 F.3d 1212, 1225 (11th Cir. 1999) (recognizing 

that “tribal officers are protected by tribal sovereign immunity when they 

act in their official capacity and within the scope of their authority”). By

denying summary judgment, the trial court departed from the essential 

requirements of law by impermissibly stacking inferences from the Wax 

affidavit to find a material dispute regarding whether Howard received an 

illicit personal benefit and acted outside the scope of his authority.

Howard, 299 So. 3d at 45. 

Here, plaintiffs generally allege that Ulizio participated with Howard 

and others in a scheme to divert MMMG’s business to Redline by refusing 

to honor the terms of the MMMG operating agreement. MMMG already 

provided advertising services for Seminole Gaming when the Tribe decided 

to request bids through a request for proposal. Plaintiffs allege that Ulizio 

artificially and deceptively increased MMMG’s bid to make Redline’s bid 

look more desirable. MMMG lost the bid and stopped receiving payments 

under the terms of the operating agreement. 

Ulizio moved for summary judgment based upon tribal sovereign 

immunity. In opposition, plaintiffs again relied on the Wax affidavit. Like 

the allegations against Howard, the affidavit alleged that Ulizio told Wax 

he was being pressured by Sallie Tommie to kill the MMMG deal. The 

affidavit alleged that “Ulizio assisted Tommie to ensure that the MMMG 

enterprise failed” by increasing MMMG’s bid to amounts he knew were not

competitive—ensuring Redline’s bid was better priced—and which he 

knew was not in MMMG’s or STOFI’s best interest. Wax alleged that Ulizio 

changed the prices prepared by Mobile Mike to what Ulizio claimed were 

the “proper” retainers. The affidavit did not indicate how Ulizio changed 
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the bid, and plaintiffs did not provide evidence that any increase was 

improperly calculated.

Citing an email, the affidavit alleged that Ulizio subsequently tried to 

cover his tracks by submitting a lower bid. The email from Ulizio to STOFI 

official Tony Sanchez states that Ulizio and Wax reviewed the pricing of 

the request for proposal, had pared it down considerably “to produce more 

competitive pricing,” and advised that the new suggested staffing and 

payroll listed in the email “would put us in line with the low bidder.”

The trial court denied Ulizio summary judgment, finding the Wax 

affidavit created a material dispute of fact as to whether Ulizio altered the 

bid to Seminole Gaming to ensure that Redline Media won the contract. 

Ulizio contends that he is entitled to tribal sovereign immunity—just like 

Howard—because the claims against him are based on actions within the 

scope of his authority as CFO. The trial court suggested Howard’s 

situation was different because Howard is a tribe member, but this is not 

a material distinction if Ulizio was acting within his authority as CFO. See 

Tamiami Partners, Ltd. Ex rel. Tamiami Dev. Corp, 177 F.3d at 1225. The 

allegations against Ulizio involve conduct in his role as CFO, and plaintiffs 

failed to show that he exceeded his authority as a tribal officer. 

Plaintiffs did not offer evidence that the bid was improperly inflated. 

Further, their conclusory allegations that Ulizio breached a duty of loyalty,

or was not acting in STOFI’s best interest, did not create a disputed issue 

of material fact. See TSI Se., Inc. v. Royals, 588 So. 2d 309, 310 (Fla. 1st 

DCA 1991) (recognizing that mere conclusions in a counter-affidavit to a 

motion for summary judgment do not create questions of fact); 770 PPR, 

LLC v. TJCV Land Tr., 30 So. 3d 613, 619 (Fla. 4th DCA 2010) (“Such 

conclusory assertions are insufficient counter-evidence to avoid summary 

judgment.”). Plaintiffs have not pointed to any evidence that could show 

that Ulizio’s conduct was not authorized or directed by STOFI as a function 

of his job as CFO. Contrary to their arguments on appeal, plaintiffs did

not identify any evidence that Ulizio had an ulterior motive to harm STOFI. 

As in Howard, the Wax affidavit failed to create a disputed issue of 

material fact as to Ulizio, and there is no evidence that he acted outside 

the scope of his authority. See Howard, 299 So. 3d at 45. The trial court 

erred in denying Ulizio summary judgment and depriving him of immunity 

from suit. Accordingly, we reverse the order denying summary judgment

and remand for the court to enter summary judgment for Ulizio.

Reversed and remanded.
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MAY, GERBER, and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.