Rogers v. State Board of Medical Examiners

364 So. 2d 1239, 1978 Fla. App. LEXIS 17093

• Court: District Court of Appeal of Florida
• Decided: October 13, 1978
• Docket: No. EE-454
• Status: Published

Opinion

ON MOTION TO DISMISS

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.