Opinion
No. 92-429.
February 11, 1994.
Appeal from the Circuit Court, Orange County, Emerson R. Thompson, Jr., J.
Daniel S. Pearson, James L. Simon, Robert L. Jennings, and Lenore C. Smith of Holland Knight, Miami, for appellants.
Douglas C. Spears of Pleus, Adams Spears, P.A., Orlando, and Sylvia Walbolt and Alan Sundberg of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., St. Petersburg, for appellee.
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.