JOHN G. ARIKO, JR., AND EPOCH MANAGEMENT, INC., N/K/A EM MANAGEMENT, INC., APPELLANTS,
v.
ANTHONY J. NICHOLSON, APPELLEE
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DAUKSCH, Judge.
ON MOTION FOR REVIEW OF COST JUDGMENT
Appellee seeks our review of an order awarding appeal costs to appellants. We have jurisdiction under Florida Rule of Appellate Procedure 9.400(c).
Appellants sought a new trial because they were denied an appeal of the trial they lost. This court awarded a new trial because the court reporter lost the trial notes in a house fire, and the record could not be reconstructed. See Ariko v. Nicholson, 606 So. 2d 435 (Fla. 5th DCA 1992). Through no real fault of anyone the new trial must be had so that effective appellate review can be afforded the losing party. That decision to permit a retrial was not on the merits of the appeal but as a result of the unusual loss suffered by the court reporter. No party prevailed so neither is entitled to costs or fees yet. The time for cost awards will be at the conclusion of the appeal which follows the new trial.
ORDER QUASHED; REMANDED.
HARRIS, C.J., and W. SHARP, J., concur.
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Cited By
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Mahnke v. Rice, 703 So. 2d 1235 (Fla. 5th DCA 1998)…actical reason for encouraging the attendance of court reporters: to ensure an appellate record as required by rule 9.200, Florida Rules of Appellate Practice. Without a record, the court may require that the case be tried again. Ariko v. Nicholson, 632 So. 2d 174 (Fla. 5th DCA 1994). Or, a party who fails to provide the appellate court with a transcript of the proceedings may lose because the appellate court must presume the trial court’s findings are correct unless there is an error on the face of the judgm…
Authorities Cited
- Hickman v. State, 606 So. 2d 435 (Fla. 2d DCA 1992)
- Ariko v. Nicholson, 606 So. 2d 435 (Fla. 5th DCA 1992)