DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LARRY HOWARD,

Petitioner,

v.

MMMG, LLC and MOBILE MIKE PROMOTIONS, INC.,

Respondents.

Nos. 4D19-3538 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 Nos. 14000419 CACE (14) and 16018117 CACE (14).

Peter W. Homer and Howard S. Goldfarb of Homer Bonner Jacobs Ortiz, 

P.A., Miami, for petitioner.

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

Hollywood, for respondents.

PER CURIAM.

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

court orders denying his motion for summary judgment based on tribal 

sovereign immunity. We grant the petitions because the 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 Tribe of Florida, 

Inc. (STOFI) is a tribal corporation, also chartered and approved by the 

United 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 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 . . . .

(Emphasis 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. Seminole 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 Promotions, 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 and 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 its 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 officials, 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 court affirmed the dismissal as to STOFI. See MMMG, 

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

After this court 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 officials 

dishonored the Joint Venture agreement by directing STOFI to divert 

business from the Joint Venture to other parties, including Redline. 

The STOFI officials, including 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 

terminating 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 orders granting summary judgment as to 

the STOFI officials except for Howard, finding that “they are entitled to 

tribal sovereign immunity and all asserted claims against them are 

dismissed with prejudice.” The circuit court denied summary judgment 

as to Howard, reasoning that the Wax affidavit created a factual dispute 

as to whether Howard received a personal benefit from his alleged conduct. 

These petitions timely followed.

Discussion

Because the court did not deny immunity “as a matter of law,” and 

determined that there were disputed facts, we review the nonfinal order by 

petition for writ of certiorari. See Seminole Tribe of Fla. 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 1219-

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 ‘individual 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) (quoting 

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 under 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 

Fla. Rule of Appellate Procedure 9.130, 289 So. 3d 866, 869 (Fla. 2020); see also 

Fla. 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 review of the order at issue in this proceeding.
5

As the circuit court correctly concluded when it granted summary 

judgment for the other STOFI officials, they were acting within the scope 

of their authority. None of Mobile Mike’s allegations establish that Howard 

or any of the STOFI officials 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 the Joint Venture, and that he, 

along with the other STOFI officials, “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 contracts, require a majority vote by the board of 

directors. Howard and the other STOFI officials 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 forth 

that Howard acted outside the scope of his authority for personal gain is 

the Wax affidavit’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 requirements of law by 

denying immunity based on the Wax affidavit 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 original, basic inference was established to the exclusion 

of all other reasonable inferences.

Nielsen 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 Constr. Indus., Inc., 133 So. 3d 1053, 1055 

(Fla. 4th DCA 2014).

The Wax affidavit failed to establish that Howard received an improper 

personal benefit. Even 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 summary 
6

judgment as there is no evidence that Howard acted outside the 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 motion for summary judgment as to Howard. This harm is 

irreparable if immunity is not given its intended effect. 

Accordingly, the petitions for writ of certiorari are granted.

Petitions granted.

WARNER, DAMOORGIAN and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.