Seminole Tribe of Florida v. McCor

• Decision Date: 15 June 2005
• Docket Number: No. 2D04-4062.,2D04-4062.
• Citation: 903 So.2d 353
• Parties: SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, d/b/a Seminole Indian Casino, Petitioner, v. Angela McCOR, Respondent.
• Court: Florida District Court of Appeals

903 So.2d 353

SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, d/b/a Seminole Indian Casino, Petitioner, v. Angela McCOR, Respondent.

No. 2D04-4062.

District Court of Appeal of Florida, Second District.

June 15, 2005.

Donald A. Orlovsky of Kamen & Orlovsky, P.A., West Palm Beach, for Petitioner.

Richard D. Giglio of Maney & Gordon, Tampa, for Respondent.

CANADY, Judge.

The Seminole Tribe of Florida seeks certiorari review of the trial court's order denying the Tribe's motion to dismiss or for summary judgment. The Tribe's motion was based on the assertion that the Tribe was, by virtue of its status as a federally recognized Indian tribe, immune from the suit for negligence brought by Angela McCor for injuries she allegedly suffered at the gaming facility located on the Tribe's Tampa reservation. Because the trial court's denial of the Tribe's motion was a clear departure from the essential requirements of law resulting in injury to the Tribe which cannot be remedied on appeal, we grant the Tribe's petition.

I. Background

McCor's action against the Tribe—which was initiated in August 2002—seeks damages for injuries she allegedly sustained from being struck by a chair while she was at the Tribe's gaming facility in Tampa. In November 2002, the Tribe filed a motion to dismiss for lack of subject matter jurisdiction—based on tribal sovereign immunity—along with supporting affidavits.

In December 2003, McCor filed an amended complaint. The amended complaint—like the initial complaint—alleged that at the time of the incident at issue the Tribe was insured by St. Paul Fire and Marine Insurance Company for $1,000,000 in liability coverage. The complaint further alleged that by possessing the insurance coverage the Tribe had waived its sovereign immunity to the extent of the policy coverage. After answering the amended complaint and further asserting its tribal sovereign immunity by way of an affirmative defense, the Tribe, in May 2004, filed its motion to dismiss or, in the alternative, for summary judgment. In its motion, the Tribe asserted that it "is entitled to immunity from suit in all state and federal courts under the doctrine of tribal sovereign immunity," that the Tribe "has not waived sovereign immunity for any of McCor's claims in this litigation," and that the circuit court therefore "lacks subject matter jurisdiction over this suit."

In support of this motion, the Tribe relied on the same affidavits that had been filed in November 2002. These affidavits were executed by Max B. Osceola, Jr., a member of the Tribal Council, and by Mary Jane Willie, the "Official Tribal Clerk." The Osceola affidavit states that the Tribe "was formally organized for the common welfare of its tribal members in accordance with the provisions of section 16 of the Indian Reorganization Act of 1934 and has since been federally recognized and designated as an organized Indian tribe."¹ The affidavit also recites: "At no time, and under no circumstances, have any claims or a waiver of tribal sovereign immunity respecting [a claim such as McCor's] been approved by the Tribal Council." Attached to the Osceola affidavit are copies of the amended constitution and bylaws of the Tribe and of Tribal Ordinance C-01-95. As the affidavit states, the constitution—the Tribe's charter—"describes the rights of the [Tribe] as a body politic to determine its destiny through self-government" and provides that the "Tribe conducts its governmental business through an elected governing council—The Tribal Council of the Seminole Tribe of Florida." The Tribal Ordinance, which was adopted March 16, 1995, by the Tribal Council, recites that the Tribe was "formally organized ... in accordance with the provisions of Section 16 of the Indian Reorganization Act of 1934." The ordinance states "that the Seminole Tribe of Florida ... [is] immune from suit brought by any third-party in any state or federal court without the clear and unequivocal consent of the Seminole Tribe of Florida or the clear, express and unequivocal consent of the United States Congress. This immunity shall apply whether the Tribe ... is engaged in a private enterprise or governmental function." The ordinance further provides

that the consent of the Seminole Tribe of Florida to waive its immunity from suit in any state or federal court may only be accomplished through the clear, express and unequivocal consent of the Seminole Tribe of Florida pursuant to a resolution duly enacted by the Tribal Council of the Seminole Tribe of Florida sitting in legal session. Any such resolution purporting to waive sovereign immunity as to the Seminole Tribe of Florida... shall specifically acknowledge that the Seminole Tribe of Florida is waiving its sovereign immunity [on] a limited basis and describe the purpose and extent to which such waiver applies. The failure of the Tribal Council resolution to contain such language shall render it ineffective to constitute a waiver of tribal sovereign immunity.

The Willie affidavit states that Willie is "the tribal official who has been appointed... to retain all resolutions and ordinances duly enacted by the Tribal Council." The Willie affidavit further recites that a search of the Tribe's records revealed "that at no time and under no circumstances has the Tribal Council enacted any resolution [or] ordinance or taken any other governmental action to waive tribal sovereign immunity in connection with any claim of any individual for personal injuries against the" Tribe. The affidavit also states specifically that the Tribe has never "agreed to be bound or governed by any state or federal law regarding any claim raised by Angela McCor." Attached to the Willie affidavit are copies of the amended constitution and bylaws and of the Tribal Ordinance, which the affidavit states are "genuine" copies.

After a hearing on August 2, 2004, the trial court entered an order denying the Tribe's motion. In its order, the trial court stated: "[I]t is clear that the record before me lacks sufficient evidentiary development to determine whether or not the tribal charter contains an explicit and unequivocal waiver of its immunity, and whether the tribe intended to waive its immunity through the purchase of liability insurance." The trial court denied the Tribe's motion without prejudice, "to allow the plaintiff to develop these issues through additional discovery."

II. Argument on Appeal

The Tribe argues that the record before the trial court established that the Tribe was entitled to sovereign immunity and that the trial court therefore did not have subject matter jurisdiction over McCor's claim. Certiorari relief is appropriate, according to the Tribe, because it is a clear departure from the essential requirements of law for a trial court to compel the Tribe to defend a lawsuit over which the trial court has no subject matter jurisdiction. McCor contends that the Tribe "expressly waived sovereign immunity by purchasing an insurance policy that provided coverage for negligent acts." McCor further argues that "several questions still exist as to the facts surrounding the [T]ribe's purchase of liability coverage," and that "[i]t is still unclear at this time when, how and most importantly, why such coverage was purchased by the [Tribe]." The Tribe replies that the purchase of liability insurance by the Tribe as a matter of law does not constitute a waiver of the Tribe's sovereign immunity.

III. Analysis

A. Procedural Matters

At the outset, we address two procedural questions: (1) whether the Tribe's claim that the trial court lacked subject matter jurisdiction should have been raised by way of a motion for summary judgment or by way of a motion to dismiss; and (2) whether there is a basis for this court to exercise its common law certiorari jurisdiction in the circumstances present here.

1. Challenging Subject Matter Jurisdiction

The question of whether a court lacks subject matter jurisdiction over a claim because that claim is barred by tribal sovereign immunity is a threshold question that is properly presented by way of a motion to dismiss, rather than by a motion for summary judgment. A motion to dismiss for lack of subject matter jurisdiction is analogous to a motion to dismiss for lack of personal jurisdiction. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (setting forth process for determining factual issues raised by motion to dismiss for lack of personal jurisdiction). In considering a motion to dismiss challenging subject matter jurisdiction, a trial court may properly go beyond the four corners of the complaint and consider affidavits. See Barnes v. Ostrander, 450 So.2d 1253, 1254 (Fla. 2d DCA 1984) ("Speaking motions with supporting affidavits may be filed in order to attack jurisdiction over the subject matter"); see also Holland v. Anheuser Busch, Inc., 643 So.2d 621, 623 n. 2 (Fla. 2d DCA 1994) (citing Barnes and recognizing that "under certain circumstances a trial court, on a motion to dismiss supported by affidavit, has the authority to decide ultimate issues of fact relating to ... jurisdiction over the subject matter"). Challenges to subject matter jurisdiction raised by Indian tribes asserting tribal immunity have regularly been made by way of motions to dismiss. See Seminole Tribe v. Houghtaling, 589 So.2d 1030, 1031 (Fla. 2d DCA 1991); Seminole Police Dep't v. Casadella, 478 So.2d 470, 471 (Fla. 4th DCA 1985). We therefore conclude that it was proper for the trial court to consider the Tribe's motion to dismiss with the accompanying affidavits and not appropriate to consider the motion for summary judgment. But see Mancher v. Seminole Tribe, 708 So.2d 327, 328-29 (Fla. 4th DCA 1998) (holding that challenge to jurisdiction based on tribal sovereign immunity was "not amenable to resolution by motion to dismiss because there are disputed factual questions").

2. Certiorari Jurisdiction

We have...