### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

LARRY HOWARD
, Petitioner

,

v.

MMMG, LLC and MOBILE MIKE PROMOTIONS, INC.
, Respondents

.

No s . 4D 19

- 3538 and 4D19

- 3539

[ June 24, 2020 ]

Consolidated petitions for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Carlos A. Rodriguez

, Judge; L.T. Case No s

. 14000419 CACE (14) and 16018117 CACE (14)

.

Peter W. Homer and Howard S. Goldfarb of Homer Bonner Jacobs Ortiz, P.A., Miami, fo r petitioner.

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

P ER C URIAM

.

Larry Howard petitions for a writ of certiorari seeking review of circuit

court order s denying his motion for summary judgme nt based on tribal sovereign immunity. We grant the petition s because t he trial court departed from the essential requirements of law in concluding that disputed issues of material fact precluded summary judgment

.

Background

The Seminole Tribe (“the Tribe”) is a federally recognized Native American tribe governed by a tribal council, which is duly chartered and recognized by the U.S. Department of the Interior, pursuant to section 16
of the Indian Reorganization Act of 1934. 1 The Seminole Trib e of Florida, Inc. (STOFI) is a tribal corporation, also chartered and approved by the

U nited States Department of the Interior, pursuant to section 17 of the

1 See 25 U.S.C. § 5123, formerly cited as 25 U.S.C. § 476.2 Act. STOFI’s ownership is vested in the approximately 4,000 registered

members of the Tribe and a board of directors controls its operations. At all times material to this action, Howard was on the STOFI board of

directors.

In 1995, the Tribe enacted Ordinance C

- 01

- 95 to address sovereign immunity and waiver of immunity. The Ordinance, which was approved
by the Department of the Interior, 2 provides in part:

One of the longstanding powers that the [Tribe] has always had and retained is its rights as a sovereign government to tribal sovereign immunity for itself, its subordinate economic

and governmental units, its tribal officials, employees and authorized agents . . . .

. . . .

. . . [T]he [Tribe], its subordinate economic and governmental units as well as its tribal officials, employees and authorized agents are immune from suit brought by any

third

- party in any state or federal court absent the clear, express and unequivocal consent of the [Tribe] or the clear, express and unequivocal consent of the United States Congress. This immunity shall apply whether the Tribe or any

subordinate economic or governmental unit is engaged in a private enterprise or governmental function

. . . .

. . . [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 cou rt 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

a re within that degree of authority which [the Tribe] is capable of bestowing upon the agent as a matter of federal,

constitutional or tribal law . . . .

( E mphasis added).

2 The validity of the Ordinance has been recognized by multiple courts. See Seminole Tribe of Fla. v . Ariz , 67 So. 3d 229, 231

- 32 (Fla. 2d DCA 2010 ) ; Sanderlin

v. Seminol e Tribe of Fla. , 243 F.3d 1282, 1287 (11th Cir. 2001).3 Michael Wax, aka Mobile Mike, a South Florida radio personality, owns

Mobile Mike P romotions, Inc. In 2011, Wax’s company and STOFI entered into a joint venture agreement and formed MMMG, LLC (the “Joint Venture”) to “provide promotional, advertising and marketing services” to STOFI. STOFI later violated the agreement. Wax’s company a nd the Joint Venture (collectively “Mobile Mike”) filed a complaint against STOFI and other tribal members individually. Mobile Mike alleged that STOFI officials, including Howard, acted outside the scope of their authority by directing STOFI to divert it s business away from the Joint Venture to Redline Media Group, Inc. (“Redline”) , which was owned by fellow tribe

member Sallie Tommie.

In 2014, STOFI and the STOFI officials moved to dismiss asserting sovereign immunity. The circuit court found that STOFI was entitled to tribal sovereign immunity and entered an order dismissing with prejudice all claims against STOFI. As to the STOFI of ficials, the circuit court found disputed factual allegations on the issue of whether the STOFI officials were acting within the scope of their duties and did not dismiss the claims against them. This c ourt affirmed the dismissal as to STOFI

. See MMMG,

L

LC v. Seminole Tribe of Fl a. , Inc. , 196 So. 3d 438 , 439 (Fla. 4th DCA 2016).

After this c ourt affirmed the circuit court’s dismissal , Mobile Mike

commenced a new “derivative” action in 2016. The circuit court

consolidated the 2014 and 2016 cases for all purposes, including discovery and trial. The new complaint alleged that STOFI o fficials dishonored the Joint Venture agreement by directing STOFI to divert business from the Joint Venture to other parties, including Redline.

The STOFI o fficials, includ ing Howard, moved for summary judgment asserting tribal sovereign immunity. The circuit court held a hearing but deferred ruling to allow Mobile Mike to conduct additional depositions and discovery relating to Howard personally benefitting for aiding in

t erminating the agreement.

To oppose summary judgment, Mobile Mike then filed an affidavit from

Michael Wax that states:

Larry Howard specifically told me that he had to kill the MMMG deal because of the pressure being put on him by his sister, Sallie Tommie, to have MMMG stop doing business with Seminole Gaming. Larry Howard told me that if he helped kill the deal that “my sister would take care of me.”4 At the continued hearing, counsel for Mobile Mike conceded that discovery had not revealed any evidence that Howard received illicit personal benefits.

The circuit court entered its order s granting summary judgment as to

the STOFI officials except for Howard, finding that “ they are entitled to tribal sovereign immunity and all asserted claims a gainst them are dismissed with prejudice.” The circuit court denied summary judgment

as to Howard

, reasoning that the Wax a ffidavit created a factual dispute as to whether Howard received a personal benefit from his alleged conduct.

Th ese petitions timely followed.

Discussion

Because the court did not deny immunity “as a matter of law,” and determined that there were disp uted facts, we review the nonfinal order by petition for writ of certiorari. See Seminole Tribe of Fl a. v. Schinneller , 197
So. 3d 1216, 1219 (Fla. 4th DCA 2016). 3 “The petitioner ’ s burden [in this certiorari proceeding] is to establish that the trial court departed from the essential requirements of the law causing irreparable injury.” Id . at 12 19

- 20.

“[T]ribal officers are protected by tribal sovereign immunity when they

act in their official capacity and within the scope of their authority . . . .” Tamiami Partners, Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of Fla. , 177 F.3d 1212, 1225 (11th Cir. 1999). “[A] tribal official

- even if sued in his ‘individua l capacity’

- is only ‘stripped’ of tribal immunity when he acts ‘manifestly or palpably beyond his authority . . .

.’ ” Bassett v. Mashantucket Pequot Museum & Research Ctr. Inc. , 221 F. Supp. 2d 271, 280 (D. Conn. 2002) (second alteration in original) (q uoting Bassett v. Mashantucket Pequot Tribe , 204 F.3d 343, 359 (2d Cir. 2000)). “[I]f the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign, whether or not they are tortious u nder general law . . . .” Larson v. Domestic & Foreign Commerce Corp. , 337 U.S. 682, 695 (1949)).

3 In a recent decision, the Florida Supreme Court amended Florida Rule of Appellate Procedure 9.130 to permit an appeal from a nonfinal order that denies a motion that “asserts entitlement to sovereign immunity.” In re Amendments to

Fl a. Rule of Appellate Procedure 9.130 , 289 So. 3d 866, 86 9 (Fla. 2020); see also

Fl a. Highway Patrol v. Jackson , 288 So. 3d 1179, 1186 (Fla. 2020) (explaining the rationale for amending the rule). The new rule became effective on January 23,

2020

- after the time for seeking r eview of the order at issue in this proceeding.5 As the circuit court correctly concluded when it granted summary judgment for the other STOFI o fficials, they were acting within the scope

of their authorit y. None of Mobile Mike’s allegations establish that Howard or any of the STOFI o fficials acted outside the scope of their authority. The claims against Howard involve his position on the board of STOFI: that he

initiated a vote to divert business from t he Joint Venture, and that he, along with the other STOFI o fficials, “participat[ed] in a scheme [ whereby ]

STOFI” diverted business from the Joint Venture.

Management of STOFI is vested in the board of directors, and actions, such as entering into contrac ts, require a majority vote by the board of

directors. Howard and the other STOFI o fficials could have directed STOFI’s business affairs as Mobile Mike alleged only by acting in their official capacities as STOFI board members. The only evidence put fort h that Howard acted outside the scope of his authority for personal gain is

the Wax a ffidavit’s assertion that “Larry Howard told me that if he helped kill the deal that ‘my sister would take care of me.’”

The circuit court departed from the essential req uirements of law by denying immunity based on the Wax a ffidavit because it required impermissible inference stacking to conclude that the phrase “take care of” meant that Howard received an illicit personal benefit and acted outside his authority.

[I]f a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference

in order to establish a further fact unless it can be found that

the ori ginal, basic inference was established to the exclusion

of all other reasonable inferences.

Niels e n v. City of Sarasota , 117 So. 2d 731, 733 (Fla. 1960). “The rule that an inference may not be stacked on another inference is designed to protect litigants from verdicts based upon conjecture and speculation.” Stanley v. Marceaux , 991 So. 2d 938, 940 (Fla. 4th DCA 2008).

“ [S]ummary judgment may be granted based on impermissible inference stacking.” O'Malley v. Ranger Const r . Indus., Inc. , 133 So. 3d 1053, 1055 (Fla. 4th DCA 2014).

The Wax a ffidavit failed to establish that Howard received an improper personal benefit. Ev en when he was questioned directly what he thought “take care of” means, Wax testified that he did not know. The Wax affidavit did not create a disputed issue of material fact to defeat summary6 judgment as there is no evidence that Howard acted outside th e scope of his authority. Mobile Mike’s claims against Howard relate to his acts in an official capacity and actions taken through his administrative role

within STOFI.

Conclusion

The circuit court departed from the essential requirements of law when

it denied the m otion for s ummary j udgment as to Howard. This harm is irreparable if immunity is not given its intended effect.

Accordingly, the petition s for writ of certiorari are granted.

Petition s granted

.

W ARNER
, D AMOORGIAN and C IKLIN
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.