          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5124
                  _____________________________

MBC GOSPEL NETWORK, LLC,
WILLIE GARY, LORENZO
WILLIAMS, LORI METOYER, CHAN
ABNEY, and THOMAS WEIKSNAR,

    Appellants,

    v.

FLORIDA’S NEWS CHANNEL, LC,
EVANDER HOLYFIELD, CECIL
FIELDER, and RICK NEWBERGER,

    Appellees.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

                           April 22, 2019



OSTERHAUS, J.

     MBC Gospel Network, LLC and individual guarantors of a
promissory note appeal an order entering judgment against them
on a note that is apparently lost. We reverse because the trial court
did not require their creditor, Florida’s News Channel, LC, to
produce the original note, or to reestablish the lost note as required
by section 673.3091, Florida Statutes.
                                   I.

     In 2004, MBC Gospel Network, LLC signed a promissory note
with Florida’s News Channel, LC. After MBC failed to make
payments due on the note, an action was filed in 2005, and a final
summary judgment was entered against MBC. Upon collection,
MBC signed a second note, guaranteed by the other appellants—
Willie Gary, Lorenzo Williams, Lori Metoyer, Chan Abney, and
Thomas Weiksnar—among others. The second note made MBC
responsible for both the principal and interest, and the individual
guarantors responsible solely for the interest.

     In 2015, Florida’s News Channel filed suit against appellants
MBC and most of the individual guarantors for payments due on
the second note. Appellants moved to dismiss the complaint
because only a partially executed and undated copy of the note was
attached, and because the complaint failed to include a lost note
count. The trial court denied the motion to dismiss and set the case
for trial.

     In October 2017, the trial court held a non-jury trial. Florida’s
News Channel moved to enter a copy of the promissory note into
evidence over an objection that it was deficient and not the original
note. Evidently, the original note was last in the possession of
Florida’s News Channel’s attorney, who is now deceased. No one
has sought the original note from the attorney’s estate, or knows
where it is. Appellants also objected because Florida’s News
Channel failed to allege a lost note claim, or reestablish the lost
note. The trial court admitted the disputed copy of the note into
evidence, stating, “I don’t know if it’s the original, but I’m not going
to bog the testimony down at this point to delay the testimony part
of the trial.” Then it entered judgment for Florida’s News Channel,
requiring it to indemnify Appellants in case a future holder of the
original note comes forward against them.

                                  II.

                                  A.

    The first issue on appeal is whether the trial court erred by
granting judgment without requiring Florida’s News Channel to

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demonstrate its entitlement to enforce the note by producing the
original promissory note, or reestablishing it as a lost note. “As a
general rule, ‘[a] trial judge’s ruling on the admissibility of
evidence will not be disturbed absent an abuse of discretion.’
‘However, a court’s discretion is limited by the evidence code and
applicable case law. A court’s erroneous interpretation of these
authorities is subject to de novo review.’” Pantoja v. State, 59 So.
3d 1092, 1095 (Fla. 2011) (citations omitted).

      Under the Florida Evidence Code, section 90.953, Florida
Statutes, a duplicate document is admissible to the same extent as
an original, but not if the document “is a negotiable instrument as
defined in s. 673.1041.” § 90.953(1), Fla. Stat. (emphasis added).
This case involves a promissory note that qualifies as a negotiable
instrument under section 673.1041, requiring Appellants to make
regular interest payments on MBC’s debt. See Heller v. Bank of
America, NA, 209 So. 3d 641, 644 (Fla. 2d DCA 2017) (noting that
“a promissory note is a negotiable instrument” that must be
surrendered “to remove it from the stream of commerce and
prevent the negotiation of the note to another person”). Because
this case involves a disputed negotiable instrument, a duplicate of
the promissory note was not admissible as though it was the
original note in the absence of Florida’s News Channel
reestablishing the lost note. See Franklin v. Bank of Am., N.A., 202
So. 3d 923, 924 (Fla. 1st DCA 2016) (quoting Servedio v. U.S. Bank
Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010)) (“A plaintiff
must tender the original promissory note to the trial court or seek
to reestablish the lost note under section 673.3091, Florida
Statutes.”); see also Perry v. Fairbanks Capital Corp., 888 So. 2d
725, 727 (Fla. 5th DCA 2004) (enforcement of a promissory note
required “either the original [to] be produced, or the lost document
[to] be reestablished under section 673.3091”).

     The trial court followed a course contrary to the statutes and
cases. It rendered judgment after accepting the disputed duplicate
of the original note as evidence, and without requiring the lost
instrument to be reestablished. Its order acknowledged that
another person possessing the original note could come forward
against Appellants in the future. We reverse this result because
admitting a copy of the lost promissory note over Appellants’
objection was contrary to § 90.953(1) and § 673.3091.

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     In reaching this conclusion, we understand the dissent’s view
that Florida’s News Channel satisfied the lost instrument statute
in the absence of alleging and proving a lost note. But we don’t
think so. There wasn’t a trial by consent of a lost note claim.
Instead, the record shows that Appellants’ objected to entering the
note copy into evidence, whereupon Florida’s News Channel’s
counsel argued that the copy should be accepted by the trial court
because the original note might be hard to obtain from the
deceased attorney’s estate. The trial court asked Florida’s News
Channel’s counsel why it hadn’t brought a lost note claim, and
counsel answered: “Because we do not believe the note to be lost,
[and that it would be] unduly burdensome to ask us to resurrect
documents from [the deceased attorney’s] estate.” The trial court
then allowed the copy into evidence. But we don’t think an
attorney’s speculation about potential difficulties of obtaining a
non-lost note meets the statute’s requirements for proving and
enforcing a lost negotiable instrument. See § 673.3091(1)(c) & (2),
Fla. Stat. (requiring proof that possession is not reasonably
possible because “the instrument was destroyed, its whereabouts
cannot be determined, or it is in the wrongful possession of an
unknown person or a person that cannot be found or is not
amenable to process”). And so, because Florida’s News Channel did
not provide evidence supporting the elements of a lost instrument
claim, we disagree that it implicitly proved such a claim below.

                                B.

     The second issue raised by Appellants is whether the trial
court erred by failing to dismiss the case for failure to join
indispensable parties. “We review a trial court’s denial of a motion
to dismiss under a de novo standard of review.” O’Leary v. State,
109 So. 3d 874, 876 (Fla. 1st DCA 2013).

     “The Florida Supreme Court has defined an indispensable
party as ‘one whose interest in the controversy makes it impossible
to completely adjudicate the matter without affecting either that
party’s interest or the interests of another party in the action.’”
Biden v. Lord, 147 So. 3d 632, 637 (Fla. 1st DCA 2014) (quoting
Fla. Dep’t of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla.
2006)). In determining whether a party is indispensable, the
relevant question is not whether the action may proceed efficiently

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without the missing party, but “whether the action can proceed at
all” without that party. Commerce Commercial Leasing, LLC, 946
So. 2d at 1255 n.1.

     In this case, Appellants argue that two of the many individual
guarantors, Evander Holyfield and Cecil Fielder, were
indispensable parties and must have been made parties to the
lawsuit. The trial court rejected this argument citing § 46.041(1),
Florida Statutes, which states: “The makers of negotiable
instruments and all other persons who, at or before the execution
and delivery thereof, endorsed, guaranteed, or became surety for
payment thereof, or are otherwise secondarily liable for payment,
may be sued in the same action.” (Emphasis added.) We find no
error with this ruling as the statute indicates that a guarantor
“may” be sued in the same action. If a final judgment is paid by one
or more of the guarantors, the guarantors left holding the bag may
presumably enforce collection from others who are liable. See
§ 46.041(3), Fla. Stat.

                                III.

     Accordingly, we reverse in part because the trial court did not
require Florida’s News Channel to produce the original note or
reestablish it before entering judgment in its favor. We affirm as
to the indispensable parties claim.

    AFFIRMED in part, REVERSED in part, and REMANDED for
additional proceedings consistent with this opinion.

JAY, J., concurs; MAKAR, J., dissents with opinion.
                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

MAKAR, J., dissenting.

     This case is straightforward: MBC Gospel Network and
individual members of its board (MBC, collectively) agreed to pay

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monies owed to Florida News Channel (FNC) by entering a
promissory note with the news company. No party disputes the
note existed, its terms, and that requisite payments were made for
nine years until they ceased, spawning this litigation. The original
note was not made available at trial, only copies that contained
signatures of the defendants sued for collection; but, no one
contends the note was transferred to another entity or person or
was otherwise in the flow of commerce. Instead, the note was
operative for almost a decade between the original parties. By all
accounts, the original note was held by FNC’s attorney in his
business files, but the attorney died and the note was not located
as of trial.

     Given all this, the defendants insist they are entitled to a
relief from the judgment on the note because the original was not
presented at trial and no “lost note” claim was affirmatively
asserted. On the facts of this case, their claim is a technical one.
While it is true that FNC did not affirmatively plead a “lost note”
claim, FNC established in the record all that is necessary to affirm
the judgment in this case. The lost note statute says that a person
“not in possession of an instrument is entitled to enforce the
instrument” if four evidentiary requirements are met and a final
“adequate protection” measure is implemented. § 673.3091(1), Fla.
Stat. (2019).

     First, the “person seeking to enforce the instrument was
entitled to enforce the instrument when loss of possession
occurred,” which was established here: it is uncontested that FNC
was entitled to enforce the promissory note at all relevant times.
Id. § 673.3091(1)(a). Second, the “loss of possession was not the
result of a transfer by the person or a lawful seizure,” which was
also established; no one claims FNC transferred the note or that it
had been lawfully seized. Id. § 673.3091(1)(b). Third, the “person
cannot reasonably obtain possession of the instrument because the
instrument was destroyed, its whereabouts cannot be determined,
or it is in the wrongful possession of an unknown person or a
person that cannot be found or is not amenable to service of
process.” Id. § 673.3091(1)(c). The trial judge held, and MBC hasn’t
objected, that FNC “could not produce the original signed note,
apparently because plaintiff’s attorney passed away without
forwarding it” to FNC. This finding meets the requirement that

                                 6
FNC could not reasonably obtain the original because its
whereabouts could not be determined. Fourth, a “person seeking
enforcement” of a lost instrument “must prove the terms of the
instrument and the person's right to enforce the instrument.” Id.
§ 673.3091(2). The trial court found that “the testimony confirmed
no dispute over the basic terms of the note, nor the fact that the
defendant guarantors had performed for many years under the
acknowledged terms of the note.” As such, all four statutory
requirements were met.

    The final statutory requirement is that FNC provide
“adequate protection” of MBC should a claim be made against
MBC on the original note:

    The court may not enter judgment in favor of the person
    seeking enforcement [of a lost instrument] unless it finds
    that the person required to pay the instrument is
    adequately protected against loss that might occur by
    reason of a claim by another person to enforce the
    instrument. Adequate protection may be provided by any
    reasonable means.

Id. This portion of the statute addresses MBC’s concern that some
unknown person or entity may get its hands on the original note
and try to enforce it against MBC in the future. To allay this fear,
the trial court ordered FNC “to indemnify the individual
guarantors against further litigation initiated on the note by any
other person or entity, and . . . require[d] [FNC] to provide a
defense against any such further litigation.” This language, along
with FNC’s written indemnification in the record, satisfies the
“adequate protection” of the lost note statute. See Perry v.
Fairbanks Capital Corp., 888 So. 2d 725, 727 (Fla. 5th DCA 2004)
(where a party “alleges that the note is lost, destroyed or stolen,
the trial court is authorized by statute to take the necessary
actions to protect the party required to pay the note against loss
that might occur by reason of a claim by another party to enforce
the instrument.”).

    On this record, MBC cannot establish prejudice; and it is form
over substance to require FNC to undertake pointless efforts in
search of the original. The trial court’s factual findings plus its

                                 7
requirement of adequate protection of MBC meets all the
prerequisites of the lost note statute: MBC is indemnified by FNC
in the unlikely event a third party finds the original note and tries
to enforce it against MBC. As such, MBC’s claim of error is
harmless and the judgment should be affirmed. § 59.041, Fla. Stat.
(2019) (“No judgment shall be set aside or reversed. . . on the . . .
improper admission or rejection of evidence or for error as to any
matter of pleading or procedure, unless in the opinion of the court
to which application is made, after an examination of the entire
case it shall appear that the error complained of has resulted in a
miscarriage of justice. This section shall be liberally construed.”);
see, e.g., O'Connell v. Citizens Nat. Bank of Hollywood, 254 So. 2d
236, 237 (Fla. 4th DCA 1971) (affirming judgment on promissory
note where defendant showed no harm or prejudice from filing of
amended complaint to correct note defects).

                  _____________________________


Elaine Johnson James and Larry A. Strauss of Gary, Williams,
Parenti, Watson & Gary, P.L.L.C., Stuart, for Appellants.

Patrick R. Frank and Keisha D. Rice of Frank & Rice, P.A.,
Tallahassee, for Appellees.




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