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The tale of an ill-fated Spanish-language soap opera will play out in the chambers of Florida’s 3rd District Court of Appeal in Miami next week when lawyers for the Hialeah, Fla.-based Telemundo Network argue that the company had the right not to air a popular Argentine telenovela program. Miami-based Spanish Television Services sued Telemundo in Miami-Dade Circuit Court in 1995 for breach of a written and oral contract and for promissory estoppel. The production company claimed that Telemundo breached a deal to broadcast the show “Mas Alla del Horizonte” (“Beyond the Horizon”). It said it had spent about $14 million producing 170 episodes of the show, and lost $850,000, or $5,000 per episode, due to Telemundo’s decision. The decision not to air the show was made in 1995 by Telemundo chief executive Roland Hernandez, who was brought in to guide Telemundo through its bankruptcy reorganization. Hernandez dismantled the programming department and began to implement a plan to fill the network’s prime-time hours with Mexican-produced programming, which he believed would draw a bigger audience. The move came just weeks after Telemundo promoted “Mas Alla del Horizonte” with great fanfare. At issue in the lawsuit was whether the two companies had a written or oral contract to air the show, and, if there was a written contract, whether Telemundo had a 60-day “out clause” permitting it to cancel the show for whatever reason it saw fit. During the trial, Telemundo argued that there never was a written or oral agreement. But its attorneys contended that if there had been an oral agreement, the terms were laid out in a written contract that never was signed by both parties. That contract, they said, allowed Telemundo to cancel the show. Attorneys for Spanish Television Services criticized Telemundo for trying to have it both ways. Telemundo asked Florida Circuit Judge Amy Dean to rule in its favor. She granted Telemundo’s motion with respect to the plaintiff’s claims for breach of written contract and promissory estoppel, but denied Telemundo’s motion on limiting damages under the termination provision, leaving that question up to the jury. In November 1999, the jury awarded Spanish Television $2.6 million. Dean reduced the award to $1.2 million, consisting of $850,000 for the amount of the contract plus interest. She said that since the total contract only was for $850,000, that’s all Spanish Television was entitled to. On Tuesday, both sides will reargue the case before the 3rd District Court of Appeal. Telemundo contends that the award should be overturned, while Spanish Television claims that it’s entitled to the full $2.6 million awarded by the jury. Though there was no evidence presented at trial that Telemundo had signed a contract with Spanish Television to air the show, the plaintiff contended that it had done business with Telemundo in the past on the basis of oral agreements. While attorneys for Telemundo say that may be true, “those prior agreements included the identical 60-day out clause language that was included in this case,” says Alan Rosenthal, a partner at Adorno & Zeder in Miami who is representing Telemundo in the appeal. In addition, he argues that even when there was an oral agreement, it eventually was followed by a written contract. “There were a few soccer broadcasts where the contract was entered into and signed after the broadcast,” Rosenthal says, “but never for programming like this had there been any agreement entered into by these parties other than in writing.” Ben Kuehne, a name partner at Kuehne & Sale in Miami who is representing Spanish Television, suggests that Telemundo’s position is legally flawed. “The jury correctly rejected Telemundo’s unsupported — and plainly frivolous — defense that no contract existed,” he wrote in his appellate brief. “The jury correctly rebuffed Telemundo’s inconsistent defense that the contract, which did not exist, actually included an early termination clause, which limited damages to $170,000.” In an interview, Kuehne adds that “Telemundo is arguing that they’re benefiting from a contract they admit they never signed. It’s kind of like denying you were injured and then seeking damages for your injuries.” Telemundo also claims in its appeal that lawyers for Spanish Television presented a closing argument “rife with improper and inflammatory references.” Rosenthal says Spanish Television’s lawyers told the jury that while Telemundo was owned by a Japanese conglomerate, Sony Corp., “this was America,” where in business “an agreement, a deal still means something.” Kuehne countered in his appellate brief that at no time during the trial did Telemundo’s attorneys complain about what was said at closing arguments. To complain about that now, he wrote, is “a desperate act of ill-conceived post-trial litigation strategy.”

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