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.
2
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
3
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
4
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
5
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.
6