Appeals panel: Judge erred in allowing contract suit to proceed vs MBC Gospel Network despite lack of original note

By Marian Johns | Apr 23, 2019

TALLAHASSEE — A Florida state appeals panel says a Leon County judge ignored the law when she allowed Florida's News Channel to continue with a contract lawsuit against Christian TV programmer MBC Gospel Network, even though the plaintiff couldn't produce an original copy of the promissory note at the heart of the controversy.

The appeals panel, however, said the judge was correct in not allowing MBC to rope in two of its celebrity investors, including former world heavyweight champion Evander Holyfield and former Major League Baseball star Cecil Fielder, into the litigation as co-guarantors of the disputed promissory note. 

On April 22, a three-judge panel of the Florida First District Court of Appeal granted MBC's appeal of a Leon County trial court's ruling against them. The case involved a dispute over a loan, and a lost promissory note with the Florida's News Channel. 

According to the court filing, appellants MBC Gospel Network, LLC, Willie Gary, Lorenzo Williams, Lori Metoyer, Chan Abney and Thomas Weiksnar, petitioned the court to reverse a decision by Leon County judge Karen Gievers who ruled in favor of Florida's News Channel LC, Holyfield, Fielder and Rick Newberger. The appellant court was also asked to review the trial court's "failing to dismiss the case for failure to join" Holyfield and Fielder as "indispensable parties."  

Leon County Judge Karen Gievers   2nd Judicial Circuit

The case involves MBC Gospel Network's failure to pay Florida's News Channel according to a promissory note allegedly signed by MBC in 2004 and resolved after a court action in 2005 filed by Florida's News Channel. 

MBC allegedly paid and then signed a second promissory note to pay principal and interest with the guarantors to pay only the interest, court documents show.  After MBC's failure to pay according to the second note, FNC once again sued MBC, who in turn asked the court to dismiss the matter because the original note was not included in the complaint and was believed to have last been in the possession of Florida's News Channel's deceased attorney.  

Judge Gievers, however, allowed the case to move forward despite FNC's inability to produce the note at the heart of the controversy.

Florida's News Channel argued that the note was not assumed to be lost but that it would be "unduly burdensome" to obtain the original from the estate of their deceased attorney to which the trial court allowing the copy to be used as evidence. 

The appellate court disagreed 

In the First District court's decision, Judge Timothy D. Osterhaus ruled the trial court's decision to allow the "disputed duplicate of the original note as evidence" is "contrary" to Florida's Evidence Code statute, as well as case precedent. Osterhaus also stated that the court found there was no "trial by consent of a lost note claim" and that "the trial court did not require Florida's News Channel to produce the original note or reestablish it before entering judgment in its favor." 

Judge Harvey L. Jay III concurred, while Judge Scott Makar dissented. 

The appellate court agreed with the trial court's decision regarding Holyfield and Fielder not being joined as indispensable parties.

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