Miccosukee Tribe of Indians of Florida v. Lewis Tein, P.L.
227 So. 3d 656
| Fla. Dist. Ct. App. | 2017Background
- Lewis and Tein are attorneys who defended two Miccosukee tribal members in a 2000 wrongful-death matter (Bermudez). A 2009 judgment against the clients led to collection efforts that implicated payments/records from the Tribe.
- The Tribe’s attorney, Roman, provided plaintiffs’ counsel copies of 61 checks/check stubs showing payments to Lewis and Tein; the trial court allowed a limited deposition of Roman, finding a limited waiver of sovereign immunity for that subject matter; the Third DCA denied certiorari in Miccosukee Tribe v. Bermudez, describing the waiver as limited to the disclosure.
- The Tribe later sued Lewis and Tein in multiple actions (state and federal) alleging malpractice, fraud, RICO, etc.; those suits were dismissed and the Tribe was sanctioned for filing baseless claims.
- Lewis and Tein then sued the Tribe for statutory civil remedies and malicious prosecution based on the Bermudez matter and the subsequent suits. The Tribe moved to dismiss asserting tribal sovereign immunity.
- The trial court denied the Tribe’s motion, concluding Bermudez and the Tribe’s subsequent litigation conduct constituted a clear, explicit, and unmistakable waiver of immunity; the Third DCA reversed, holding the Bermudez waiver was limited and prior litigation conduct did not waive immunity for a later, separate suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of the Bermudez waiver | Bermudez waived tribal immunity broadly — it opened the door to related litigation against the Tribe | Bermudez waiver was limited to allowing Roman’s deposition about the checks/check stubs only | Waiver in Bermudez was limited to the subject of the disclosure (the checks) and did not waive immunity for separate subsequent suits |
| Whether prior litigation conduct (frivolous suits, false statements) waived immunity for later suit | The Tribe’s pattern of filing frivolous lawsuits and false statements constituted a clear, explicit, unmistakable waiver of immunity allowing Lewis & Tein’s separate suit | Prior participation or bad-faith litigation in earlier suits does not constitute a waiver for subsequent, related litigation | Prior suits did not waive immunity for a later, separate action; bad-faith conduct can be sanctioned in the case where it occurred but does not create a broad waiver for new litigation |
| Standard of review/appealability | (Not disputed) | (Not disputed) | Denial of sovereign immunity is appealable as a non-final order; review is de novo on the legal question of immunity |
| Remedy when immunity not waived | Lewis & Tein sought to proceed on their claims and obtain relief | Tribe sought dismissal based on sovereign immunity | Because the Tribe did not clearly and unmistakably waive immunity as to this case, the complaint must be dismissed as to the Tribe |
Key Cases Cited
- Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751 (tribal sovereign immunity persists absent clear waiver or congressional abrogation)
- Three Affiliated Tribes v. Wold Eng’g, 476 U.S. 877 (federal and tribal interests underlie immunity despite inequity)
- Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (tribe does not waive immunity to compulsory counterclaims simply by suing)
- McClendon v. United States, 885 F.2d 627 (9th Cir.) (waiver in one suit limited to that suit’s issues; does not broadly expose tribe to related suits)
- Jicarilla Apache Tribe v. Hodel, 821 F.2d 537 (10th Cir.) (earlier litigation does not constitute unequivocal waiver for subsequent related actions)
- Beecher v. Mohegan Tribe of Connecticut, 918 A.2d 880 (Conn. 2007) (prior vexatious litigation does not waive tribal immunity for later claims)