       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 25,2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-277
                         Lower Tribunal No. 12-12816
                             ________________


             Miccosukee Tribe of Indians of Florida, etc.,
                                    Appellant,

                                        vs.

       Guy Lewis, Michael R. Tein, and Lewis Tein, P.L., etc.,
                                    Appellees.

     An Appeal from the Circuit Court for Miami-Dade County, John W.
Thornton, Jr., Judge.

     Bernardo Roman III; Yesenia Lara and Yinet Pino, for appellant.

      Carlton Fields Jorden Burt, P.A., and Jack Reiter, Nancy C. Ciampa, and
Paul A. Calli, for appellees.


Before WELLS, SALTER, and LOGUE, JJ.

     LOGUE, J.
      The Miccosukee Tribe of Indians appeals an order that dismissed its case

and, in the alternative, granted summary judgment in favor of Guy Lewis, Michael

Tein, and Lewis Tein, PL (hereinafter the Lawyers). We disagree with the

dismissal but affirm the summary judgment.

       The Lawyers represented the Tribe under its previous chairman. With the

election of a new administration, the Tribe sued the Lawyers alleging counts of

malpractice, breach of fiduciary duty, fraud, fraud in the concealment, RICO

conspiracy, RICO, theft, and conversion. Among other things, the Tribe claimed

the Lawyers fraudulently billed the Tribe, represented certain tribal members in

conflict with their representation of the Tribe, bribed the prior chairman with

kickbacks, improperly divulged Tribal finances to the Federal Internal Revenue

Service, and failed to inform the Tribe of the prior chairman’s charging improper

expenses to the Tribe.

      The Lawyers moved to dismiss and for summary judgment contending (1)

the lawsuit concerned an intra-tribal dispute over which the court lacked

jurisdiction, and (2) the undisputed material facts indicated that the Lawyers had

no liability. The trial court granted summary judgment and, in the alternative,

granted the motion to dismiss.




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                                   1. Jurisdiction

      Concluding this case was essentially a dispute between tribal members over

intra-tribal governance which was a matter left to the sovereign tribe to resolve, the

trial court dismissed this case for lack of jurisdiction. We agree with the Tribe that

the dismissal was in error. The dispute on this issue focuses on the Lawyers’ intent

to raise as one of their defenses the claim that the Tribal government ratified or

approved their actions, which, the Lawyers assert, raises the issue of whether those

officials had the authority to do so. Because of its sovereign status, the Tribe has

the right under certain circumstances to cause a Federal or State court to refrain

from deciding issues of intra-tribal governance, at least in the first instance. Smith

v. Babbitt, 100 F.3d 556, 558 (8th Cir. 1996) (“Indian tribes retain elements of

sovereign status, including the power to protect tribal self-government and to

control internal relations.”). The Tribe’s right in this regard, however, does not bar

the Tribe from accessing Florida courts to resolve claims under Florida law against

its Florida lawyers.

      Instead, when filing a claim in a Florida Court, the Tribe is deemed to have

waived the right to determine matters of intra-tribal governance, to the limited

extent that deciding such issues is absolutely necessary to resolve the defenses and

therefore the Tribe’s claim. See generally Miccosukee Tribe of Indians of Fla. v.

Bermudez, 92 So. 3d 232, 235 (Fla. 3d DCA 2012) (holding the Tribe’s filing of



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document in a State court proceeding “constituted a clear, explicit, and

unmistakable waiver of the Tribe’s claim to sovereign immunity”); Ortiz-Barraza

v. United States, 512 F.2d 1176, 1179-80 (9th Cir. 1975) (in prosecution for

violation of federal laws, federal court analyzed constitution and laws of Papago

Tribe and determined Papago police officer acted within his authority in making

stop and arrest of non-tribal member).

      We distinguish Miccosukee Tribe of Indians of Florida v. Cypress, 975 F.

Supp. 2d 1298, 1307 (S.D. Fla. 2013), in which the court dismissed for lack of

jurisdiction a lawsuit by the Tribe against “its former officials and agents

[including its past chairman]” and its lawyers because “the Miccosukee Tribe is

asking the Court to decide that the Defendants unlawfully exceeded their authority

as officers and agents of the Miccosukee Tribe when it engaged in behavior the

Miccosukee Tribe contends were not in its interest.” In contrast, the suit here is

against only the Lawyers, who are not members or officers of the Tribe and none

of the Tribe’s theories of liability depend on Tribal law.

      The purpose of the legal recognition of tribal sovereignty is to protect the

Tribe. Courts should be wary of interpreting this doctrine in a manner that

immunizes non-tribal members, particularly from suits brought by the Tribe in

State courts for violations of State law. Using the doctrine in such a manner flips




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the doctrine on its head. Instead of providing protection, this interpretation

damages the Tribe by depriving it of remedies against non-tribal wrongdoers.

      Here, even if some of the defenses might require the resolution of questions

of tribal law, this lawsuit by the Tribe against its Florida lawyers is not an intra-

tribal dispute that the Tribe is barred from filing in State court.

                                 2. Summary Judgment

      Turning to the second issue, however, we find that the trial court properly

granted summary judgment. In support of their motion for summary judgment, the

Lawyers filed affidavits, depositions, and records reflecting evidence which, if it

was the only evidence admitted at trial, would support a ruling in favor of the

Lawyers. This presentation met the Lawyers’ burden as the movants for summary

judgment. Once the movants made such a presentation, the burden shifted to the

Tribe as the non-movant opposing the motion to either (1) come forward with

conflicting evidence that created a disputed issue of material fact which, if decided

in favor of the Tribe, would support a judgment for the Tribe; or (2) file an

affidavit, pursuant to Florida Rule of Civil Procedure 1.510(f), describing with

specificity the additional discovery needed to obtain such evidence. The Tribe did

neither. For example, the Tribe’s expert was unable to identify a single invoice by

the Lawyers that he believed was fraudulent, illegal, or excessive. Summary

judgment cannot fulfill its purpose “to test the sufficiency of the evidence to



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determine if there is sufficient evidence at issue to justify a trial or formal hearing

on the issues raised in the pleadings,” The Florida Bar v. Greene, 926 So. 2d 1195,

1200 (Fla. 2006), if the non-moving party responds to a motion for summary

judgment by refusing to reveal the evidence it intends to rely upon at trial, or by

hiding the fact it has no evidence.

      Accordingly, we vacate the order on appeal as to the dismissal for lack of

jurisdiction, but affirm the summary judgment.




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