            Case: 11-16126    Date Filed: 11/20/2012   Page: 1 of 9

                                                           [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-16126
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 1:10-cv-24217-MGC



JOHN ROBERT JOHNSON,
DIANA CANTU, as his wife,

                                                           Plaintiffs-Appellants,

                                    versus

UNIQUE VACATIONS, INC.,
a Florida corporation,
SANDALS RESORTS INTERNATIONAL, LTD.,
a foreign corporation, d.b.a. Sandals Grande
St. Lucian Spa and Beach Resort, et al.,

                                                         Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (November 20, 2012)

Before TJOFLAT, KRAVITCH and EDMONDSON, Circuit Judges.
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PER CURIAM:



        Plaintiffs-Appellants, John Robert Johnson and his wife, Diana Cantu,

appeal the grant of summary judgment in favor of defendants on a claim of

negligence that resulted in personal injury to Johnson while he was on a

horseback-riding excursion with Cantu at a resort in St. Lucia.1 No reversible

error has been shown; we affirm.

        Plaintiffs, residents of Illinois, traveled to St. Lucia in November 2007 for a

prepaid vacation at Sandals Grande St. Lucian Spa and Beach Resort (“Sandals

Grande”). They used Unique Vacations, Inc. (“Unique”) to make their vacation

accommodations and travel arrangements for their all-inclusive stay at Sandals

Grande. On 26 November 2007, plaintiffs booked and paid for a horseback-riding

excursion through the Sandals Grande tour desk. The excursion was operated by

International Pony Club, who is not a party to the instant action. After purchasing

the excursion tickets, Cantu signed an excursion ticket sales receipt which

included these words:




    1
      We review de novo the district court’s grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). And we view the evidence in the light most
favorable to the non-moving party. Id.

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      There exists no relationship of master and servant or of agency
      between the Operators of Tours and the Tour Desk of Sandals Grande
      St. Lucian. The Operators of tours sold at the Tour Desk of Sandals
      Grande St. Lucian are solely responsible for their acts and omissions
      and Sandals Grande St. Lucian assumes no responsibility for such
      acts and omissions or for any injury, loss, damage, sickness, or
      accident sustained on any of the tours offered for sale at the Tour
      Desk.

      On 27 November 2007, plaintiffs, along with other Sandals Grande resort

guests, were transported from the resort to an off-site location on a bus operated

by Sandals Resorts International, Ltd. (“Sandals”). Upon arrival, plaintiffs signed

a waiver on a sign-in sheet for the excursion, which stated in part:

      While we take every reasonable step to ensure your enjoyment and
      safety, one must recognize the existence of an inherent risk associated
      with horseback riding and being close to horses. Consequently, each
      rider will be required to sign this waiver. By doing so, the customer
      gives up the right to sue International Pony Club and their employees,
      representatives, officers and agents, for any injuries sustained by the
      customer and his personal belongings, including other activities
      engaged on the beach, like swimming, swimming with the horses,
      exploring, snorkeling, etc.

      Johnson alleged that, after he mounted his horse, a tour guide smacked the

horse causing the horse to start running unexpectedly. He was thrown from the

horse and suffered serious injuries. Plaintiffs later filed a complaint against

Unique, Sandals Grande, and Sandals, alleging that defendants were vicariously

liable for Johnson’s injuries due to their relationship with International Pony Club.



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Cantu also brought an action for loss of consortium. Defendants, in turn, moved

to dismiss the complaint based on forum non conveniens, on contractual waiver,

and for failure to establish an agency relationship between International Pony Club

and defendants.

       On appeal, plaintiffs first argue that the district court erred by converting

defendants’ motion to dismiss into a motion for summary judgment -- and then

granting the motion -- because issues of fact existed about whether an agency

relationship could be found between defendants and International Pony Club.

When a court considers matters outside of the pleadings in a Fed.R.Civ.P. 12(b)(6)

motion to dismiss, the court converts that motion into a motion for summary

judgment. See Fed.R.Civ.P. 12(d)2; Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d

1265, 1267 (11th Cir. 2002). And when conversion occurs, the adverse party must

be “given express, ten-day notice of the summary judgment rules, of his right to

file affidavits or other material in opposition to the motion, and of the

consequences of default.” Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.

1985).


  2
     If, on a Rule 12(b)(6) motion, “matters outside the pleading are presented to and not excluded
by the court, the motion must be treated as one for summary judgment under [Fed.R.Civ.P.] 56. All
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed.R.Civ.P. 12(d). Here, the district court considered exhibits, including copies of the
receipt and waiver, that defendants attached to their motion to dismiss.

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       The record shows that the district court fully explained to plaintiffs the

consequences and procedure of conversion -- they were given the requisite ten-day

notice and advised to submit additional evidence in support of, or in opposition to,

the motion. Plaintiffs availed themselves of this right and filed an opposition to

the motion for summary judgment, including supporting exhibits. As a result, the

district court did not err in converting defendants’ motion to dismiss to a motion

for summary judgment.

       Next, plaintiffs contend that the district court erred in granting summary

judgment because the court placed the burden on them -- as the nonmoving party -

- to establish the existence of an agency relationship between defendants and

International Pony Club.3

       Summary judgment is appropriate where the moving parties demonstrate,

through pleadings, interrogatories, and admissions, together with affidavits, if any,

that no genuine issue of material fact exists and that they are entitled to judgment

as a matter of law. Fed.R.Civ.P. 56(a), (c). Once a party properly supports a

motion for summary judgment by demonstrating the absence of a genuine issue of


   3
     In general, the existence of an agency relationship is one for the jury to decide as the triers of
fact. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla. 2003). “The question
can be resolved by summary judgment only in those cases where the evidence is capable of but one
determination and there is no evidentiary question for the jury to resolve.” Font v. Stanley Steemer
Intern., Inc., 849 So.2d 1214, 1216 (Fla. Dist. Ct. App. 2003).

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material fact, the nonmoving party must come forward with specific facts showing

a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct.

2548, 2553, 91 L.Ed.2d 265 (1986). “A genuine issue of material fact does not

exist unless there is sufficient evidence favoring the nonmoving party for a

reasonable jury to return a verdict in its favor.” Chapman v. AI Transp., 229 F.3d

1012, 1023 (11th Cir. 2000) (en banc) (citation omitted).

      The record supports the district court’s conclusion that plaintiffs failed to

show sufficient evidence that International Pony Club was an agent of defendants.

Plaintiffs failed to rebut the evidence showing that defendants did not in any way

own, operate, or exercise the right to control International Pony Club. See

Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1077 (11th Cir. 2003)

(holding there was “no agency relationship” between two companies absent a lack

of acknowledgment that one acted on behalf of another). The receipt for the

excursion -- that plaintiffs acknowledge Cantu signed when she paid for the

horseback excursion -- clearly noted that International Pony Club was “solely

responsible for their acts and omissions” and that Sandals Grande “assume[d] no

responsibility for such acts and omissions,” or injuries sustained on the tours

offered for sale at the tour desk. See Restatement (Second) of Agency § 14 cmt. b

(1957) (“If the existence of an agency relation is not otherwise clearly shown, as

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where the issue is whether . . . an agency has been created, the fact that it is

understood that the person acting is not to be subject to the control of the other as

to the manner of performance determines that the relation is not that of agency.”);

see also Commodity Futures Trading Comm’n, 575 F.3d at 1190 (relevant to

control in an agency relationship is authority to supervise and discipline the

agent).

      Defendants repeatedly represented to their customers that defendants had no

agency relationship with the operators of the horseback-riding excursion. A

display posted on the tour operator desk clearly noted that International Pony Club

was no agent of defendants. Plaintiffs cite to several contractual provisions in an

agreement between Jairo Management Limited (“Jairo”), Sandals Grande’s

management company, and International Pony Club to argue that Jairo retained the

authority to control International Pony Club’s horseback-riding excursions. To the

contrary, the record evidences that International Pony Club operated as an

independent contractor. See Vermeulen v. Worldwide Holidays, Inc., 922 So.2d

271, 274 (Fla. Dist. Ct. App. 2006) (“The standard for determining whether an

alleged agent is an independent contractor is the degree of control exercised by the

employer or owner of the alleged agent.”) (quotation and alteration omitted).




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      The contract provisions listed by plaintiffs do not relate to control; none of

the requirements dictated how International Pony Club was required to operate its

horseback-riding excursion tours. The contract specifically stated that

International Pony Club was wholly responsible for the maintenance of “all the

animals, equipment and/or vehicles used in the provision of the Services.”

International Pony Club also was responsible for hiring and supervising its own

employees, as well as procuring its own licenses, insurance, and permits. Nothing

indicates that defendants instructed International Pony Club, in substance, on how

to run its business. See Harper ex rel. Daley v. Toler, 884 So.2d 1124, 1131 (Fla.

Dist. Ct. App. 2004) (noting that, an agency relationship exists where the principal

controls the means by which the agency conducts its business, but where the

principal controls only the results to be obtained from the business, the

relationship is one of an independent contractor).

      Despite plaintiffs’ claims of an agency relationship between International

Pony Club and defendants, the mere allegation of agency is insufficient to create a

principal/agent relationship. See Vermeulen, 922 So.2d at 274-75 (affirming the

grant of summary judgment where the plaintiff failed to present evidence showing

that defendants owned, operated, or controlled the negligent party). Here,

plaintiffs have presented no evidence indicating that defendants owned, operated,

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or controlled International Pony Club. As such, plaintiffs’ speculations are

insufficient to create an issue of fact about agency; and the district court properly

granted summary judgment to defendants.4

       AFFIRMED.




  4
   Because Johnson does not have an actionable tort against defendants, the district court properly
concluded that Cantu’s loss of consortium claim fails as a matter of law. See Gates v. Foley, 247
So.2d 40, 45 (Fla. 1971) (under Florida law, a loss of consortium claim is a derivative claim and is
dependent upon the existence of an actionable tort causing harm to the plaintiff’s spouse).

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