DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MIKE ULIZIO,
Petitioner,
v.
MMMG, LLC and MOBILE MIKE PROMOTIONS, INC.,
Respondents.
Nos. 4D21-2600 and 4D21-2601
[March 9, 2022]
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. CACE14-000419 and CACE16-018117.
Jonathan M. Weirich and Donald G. Peterson of Yarnell & Peterson,
P.A., Naples, for petitioner.
Gary S. Phillips and Jeffrey B. Shalek of Phillips, Cantor & Shalek, P.A.,
Hollywood, for respondents.
PER CURIAM.
Mike Ulizio petitions for certiorari review of an order in two consolidated
cases denying his motion for summary judgment, which claimed tribal
sovereign immunity. We treat this case as an appeal under Florida Rule
of Appellate Procedure 9.130(a)(3)(F)(iii), which allows review of a nonfinal
order denying a motion that “asserts entitlement to sovereign immunity.”1
Ulizio argues that he is entitled to tribal sovereign immunity because
the claims against him stemmed from actions he took in his capacity as
chief financial officer (“CFO”) for the Seminole Tribe of Florida, Inc.
(“STOFI”), a corporate entity of the Seminole Tribe (the “Tribe”). We reverse
because there are no disputed issues of material fact that create a
1 This rule became effective January 23, 2020. See In re Amends. to Fla. Rule of
App. Proc. 9.130,
289 So. 3d 866, 867 (Fla. 2020). Previously, the rule allowed
for review of such an order only if it determined the issue “as a matter of law.”
Id. The new rule removed this requirement.
Id. The order at issue was entered
in August 2021, well after the amendment went into effect.
reasonable inference that Ulizio acted beyond the scope of his authority as
CFO and because the application of tribal sovereign immunity does not
depend on whether a Tribe employee is a tribe member.
Federal law recognizes STOFI as a tribal corporation. Howard v.
MMMG, LLC,
299 So. 3d 40, 42 (Fla. 4th DCA 2020). In 1995, the Tribe
enacted an ordinance addressing the Tribe’s sovereign immunity and how
it may be waived.
Id. Ordinance C-01-95 recognizes that sovereign
immunity extends to tribal officials, employees, and authorized agents
unless the Tribe unequivocally consents to suit.
Id. The ordinance
provides in part:
[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 . . . .
Id. (emphasis in original).
We have previously affirmed the trial court’s dismissal of claims based
on tribal sovereign immunity against STOFI and some officials, MMMG,
LLC v. Seminole Tribe of Fla., Inc.,
196 So. 3d 438 (Fla. 4th DCA 2016), and
later granted petitions for writ of certiorari after STOFI board member
Larry Howard was denied tribal sovereign immunity, Howard,
299 So. 3d
40. The claims against Ulizio are like the ones brought against Howard.
See
id.
In Howard, Michael Wax, a local radio personality and owner of Mobile
Mike Promotions, Inc., entered his company into a joint venture with
STOFI, forming MMMG, LLC, to provide promotional and advertising
services to STOFI.
Id. STOFI allegedly violated the agreement, and, in
response, MMMG and Mobile Mike Promotions sued STOFI and STOFI
officials, including board member Larry Howard.
Id. Plaintiffs alleged the
officials acted beyond their authority and directed STOFI to divert business
from MMMG to Redline Media Group, Inc., a business owned by tribe
member Sallie Tommie. Id. at 43.
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STOFI successfully moved to dismiss based upon tribal sovereign
immunity. Id. The trial court found STOFI was entitled to tribal sovereign
immunity but denied dismissal as to STOFI officials, finding factual
disputes as to whether they acted beyond the scope of their authority. Id.
Plaintiffs then filed a new derivative action, and the cases were
consolidated. Id. In the consolidated cases, STOFI officials moved for
summary judgment again, raising tribal sovereign immunity. Id. The trial
court granted some officials summary judgment but denied Howard’s
motions. Id. The court concluded that Wax’s affidavit created a factual
dispute as to whether Howard received personal benefits for diverting
business from MMMG to Redline. Id.
Howard petitioned for certiorari review in each case, and we granted
the petitions, finding plaintiffs failed to establish that Howard, or any
STOFI official, acted beyond the scope of his or her authority. Id. at 44;
see also Tamiami Partners, Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee
Tribe of Indians of Fla.,
177 F.3d 1212, 1225 (11th Cir. 1999) (recognizing
that “tribal officers are protected by tribal sovereign immunity when they
act in their official capacity and within the scope of their authority”). By
denying summary judgment, the trial court departed from the essential
requirements of law by impermissibly stacking inferences from the Wax
affidavit to find a material dispute regarding whether Howard received an
illicit personal benefit and acted outside the scope of his authority.
Howard, 299 So. 3d at 45.
Here, plaintiffs generally allege that Ulizio participated with Howard
and others in a scheme to divert MMMG’s business to Redline by refusing
to honor the terms of the MMMG operating agreement. MMMG already
provided advertising services for Seminole Gaming when the Tribe decided
to request bids through a request for proposal. Plaintiffs allege that Ulizio
artificially and deceptively increased MMMG’s bid to make Redline’s bid
look more desirable. MMMG lost the bid and stopped receiving payments
under the terms of the operating agreement.
Ulizio moved for summary judgment based upon tribal sovereign
immunity. In opposition, plaintiffs again relied on the Wax affidavit. Like
the allegations against Howard, the affidavit alleged that Ulizio told Wax
he was being pressured by Sallie Tommie to kill the MMMG deal. The
affidavit alleged that “Ulizio assisted Tommie to ensure that the MMMG
enterprise failed” by increasing MMMG’s bid to amounts he knew were not
competitive—ensuring Redline’s bid was better priced—and which he
knew was not in MMMG’s or STOFI’s best interest. Wax alleged that Ulizio
changed the prices prepared by Mobile Mike to what Ulizio claimed were
the “proper” retainers. The affidavit did not indicate how Ulizio changed
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the bid, and plaintiffs did not provide evidence that any increase was
improperly calculated.
Citing an email, the affidavit alleged that Ulizio subsequently tried to
cover his tracks by submitting a lower bid. The email from Ulizio to STOFI
official Tony Sanchez states that Ulizio and Wax reviewed the pricing of
the request for proposal, had pared it down considerably “to produce more
competitive pricing,” and advised that the new suggested staffing and
payroll listed in the email “would put us in line with the low bidder.”
The trial court denied Ulizio summary judgment, finding the Wax
affidavit created a material dispute of fact as to whether Ulizio altered the
bid to Seminole Gaming to ensure that Redline Media won the contract.
Ulizio contends that he is entitled to tribal sovereign immunity—just like
Howard—because the claims against him are based on actions within the
scope of his authority as CFO. The trial court suggested Howard’s
situation was different because Howard is a tribe member, but this is not
a material distinction if Ulizio was acting within his authority as CFO. See
Tamiami Partners, Ltd. Ex rel. Tamiami Dev. Corp, 177 F.3d at 1225. The
allegations against Ulizio involve conduct in his role as CFO, and plaintiffs
failed to show that he exceeded his authority as a tribal officer.
Plaintiffs did not offer evidence that the bid was improperly inflated.
Further, their conclusory allegations that Ulizio breached a duty of loyalty,
or was not acting in STOFI’s best interest, did not create a disputed issue
of material fact. See TSI Se., Inc. v. Royals,
588 So. 2d 309, 310 (Fla. 1st
DCA 1991) (recognizing that mere conclusions in a counter-affidavit to a
motion for summary judgment do not create questions of fact); 770 PPR,
LLC v. TJCV Land Tr.,
30 So. 3d 613, 619 (Fla. 4th DCA 2010) (“Such
conclusory assertions are insufficient counter-evidence to avoid summary
judgment.”). Plaintiffs have not pointed to any evidence that could show
that Ulizio’s conduct was not authorized or directed by STOFI as a function
of his job as CFO. Contrary to their arguments on appeal, plaintiffs did
not identify any evidence that Ulizio had an ulterior motive to harm STOFI.
As in Howard, the Wax affidavit failed to create a disputed issue of
material fact as to Ulizio, and there is no evidence that he acted outside
the scope of his authority. See Howard, 299 So. 3d at 45. The trial court
erred in denying Ulizio summary judgment and depriving him of immunity
from suit. Accordingly, we reverse the order denying summary judgment
and remand for the court to enter summary judgment for Ulizio.
Reversed and remanded.
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MAY, GERBER, and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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