           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.
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).

                                        2
    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.”



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   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.

                                        4
    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

                                     5
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.




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