ROBERT J. ROGERS, M.D., PETITIONER,
v.
STATE BOARD OF MEDICAL EXAMINERS OF FLORIDA, RESPONDENT
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The court addresses whether a petitioner challenging an agency decision must pay the costs of preparing the record on appeal. The court holds that the designating party (petitioner) bears the initial cost of record preparation under Florida appellate rules, though it denies the respondent's motion to dismiss due to ambiguity in the applicable rule regarding what costs are covered.
The court holds that the designating party (petitioner) must bear the initial cost of record preparation. However, the court denies the respondent's motion to dismiss due to ambiguity in Rule 9.200(b)(1) regarding whether preparation costs beyond mere transcription are covered. The petitioner is ordered to pay the $493.60 for record preparation forthwith.
[1] The initial cost of preparing the record on appeal is placed upon the designating party.
[2] A motion to dismiss for failure to pay for the record on appeal may be denied due to ambiguity in the appellate rules regarding transcription costs.
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Join FLexlaw to unlock all legal intelligence“F.S. 120.57(l)(b)(6) requires an agency to accurately and completely preserve all testimony in a proceeding and, on request of any party, to make a full or partial transcript available "at no more than actual cost".”
Establishes the statutory framework for agency preparation of records on appeal
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Join FLexlaw to unlock all legal intelligenceOn February 7, 1977, petitioner Rogers directed the State Board of Medical Examiners to prepare and certify the record on appeal, requesting copies fo…
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On February 7, 1977 the petitioner filed directions to the lower tribunal (respondent) instructing the respondent to include and certify as the record-on-appeal all papers, exhibits and documents filed in the proceeding giving rise to this controversy together with the transcript of the proceedings. The directions requested copies to each party. The respondent complied with the petitioner’s directions and submitted a bill in the sum of $493.60 (See F.S. 120.-57(l)(b)(6)). Upon petitioner failing to pay for the preparation of the record on appeal, which was prepared in accordance with petitioner’s directions, respondent moved for dismissal. Respondent filed a reply to the motion to dismiss, attaching thereto a check drawn on the trust account of petitioner’s attorney, payable to respondent, in the sum of $493.60. In that reply, however, petitioner takes the position that he is not required to pay for the preparation of the record on appeal.
F.S. 120.57(l)(b)(6) requires an agency to accurately and completely preserve all testimony in a proceeding and, on request of any party, to make a full or partial transcript available “at no more than actual cost”.
F.S. 120.68(2) requires, inter alia, that “Review proceedings shall be conducted in accordance with the Florida appellate rules.”
Although we concede that Rule 9.200 Fla.R.App.P. is less than clear on the subject, we construe that Rule as requiring, and we so hold, that the initial cost of preparation of the record on appeal is placed upon the designating party, sub ju-dice the petitioner. Rule 9.400(a) Fla.R.App.P. relates to the taxation of costs, to the prevailing party after the case is concluded. That rule is not applicable until the prevailing party can be determined. It is not, therefore, applicable at this juncture of the case sub judice.
The check above mentioned which was attached to petitioner’s reply to respondent’s motion to dismiss has no place in this court.
Accordingly, it is
ORDERED THAT:
1. Because of the ambiguity of Rule 9.200(b)(1) Fla.R.App.P. in that it specifically mentions only the costs of “transcription”, we deny respondent’s motion to dismiss. 2. The Clerk of this Court is directed to return to petitioner the check which he attached to his reply.
3. Petitioner being the designating party, he shall forthwith pay respondent for the preparation of the record on appeal.
4. This cause shall proceed in accordance with the applicable rules.
By Order of the Court dated this 13th day of October, A.D., 1978. Acting Chief Judge Tyrie A. Boyer, Judge Woodrow M. Melvin and Judge E. R. Mills, Jr.
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Phares v. Harley G. Cowles and Grace D. Cowles, 459 So. 2d 1110 (Fla. 4th DCA 1984)…be said to have qualified as a “prevailing party.” In the absence of an ability to identify with a relative degree of certainty just who the prevailing party might be, it would be inappropriate to assess costs. Rogers v. Board of Medical Examiners, 364 So. 2d 1239 (Fla. 1st DCA 1978). There being no demonstration of abuse of discretion, the judgment below in reference to the division of costs is affirmed. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). Affirmed in part, reversed in part, and remanded for…
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Akers v. Palm Beach Newspapers, Inc., 373 So. 2d 926 (Fla. 4th DCA 1979)…ING PARTIES TO THE APPEAL WITH A COPY OF THE PORTION OF THE TRANSCRIPT TO BE INCLUDED IN THE RECORD ON APPEAL AT THE INITIAL EXPENSE OF THE DESIGNATING PARTY? DOWNEY, C. J., and LETTS, J., concur. . See Rodgers v. State Board of Medical Examiners, 364 So. 2d 1239 (Fla. 1st DCA 1978) where the First District commented upon the ambiguity of the transcript portions of Rule 9.200 Fla.R.App.P.…
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