9863 WEST ATLANTIC AVENUE, INC., A FLORIDA CORPORATION, AND ALLY ESMAIL D/B/A PEANUTS COUNTRY STORE, APPELLANTS,
v.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, APPELLEE
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A new trial is ordered because a significant portion of the trial transcript is missing due to stolen court reporter notes, preventing a complete reconstruction of the record.
Appellants appealed an eminent domain award, but a portion of the trial transcript, including appraiser testimony, was lost when the court reporter's …
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PER CURIAM.
In this eminent domain case, the appellants have appealed from a final judgment awarding them $445,000 as full payment for the taking of their property by the appellee. Their appeal concerns, in part, the amount of the compensation awarded to them for the taking. After they filed their designation to the court reporter for transcription of the proceedings, the reporter informed them that some of her notes taken during the trial were stolen and, therefore, a portion of the transcript is missing. The missing portions include much of the testimony of both parties’ property appraisers.
We relinquished jurisdiction to the trial court for the parties to attempt to reconstruct the record pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Each side filed Statements of Evidence, as well as objections to the other side’s Statement. The court entered an order approving only a portion of the reconstructed testimony of both appraisers. In failing to approve the remainder of the testimony, the court stated it did not independently recall the balance of such testimony.
It is undisputed that the loss of a portion of the reporter’s notes was not caused by any lack of diligence on the part of any of the parties, that the parties have attempted to assist the court in re-establishing the missing testimony, and that the court could not reconstruct all of the missing testimony or otherwise complete the record on appeal because it lacked independent recall of this testimony. In addition, because the issue concerns the amount awarded for the taking, it would appear that the omitted transcript was relevant, if not crucial, to the outcome of this appeal. Accordingly, a new trial is ordered on all issues. See Van Scoyoc v. York, 173 So. 2d 483 (Fla. 2d DCA 1965).
REVERSED and REMANDED for a new trial.
POLEN, C.J., WARNER and TAYLOR, JJ., concur.
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Citator
Cited By
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Donnie D. Jackson v. Katrice M. Jackson, 201 So. 3d 677 (Fla. 3d DCA 2016)…ecessarily has the power to award a new trial where, as here, essential records have been destroyed by an official of the lower court through no fault of the appellant.”); see also 9863 West Atlantic Avenue, Inc. v. Florida, Dep’t of Transportation, 814 So. 2d 460 (Fla. 4th DCA 2001); compare Chisholm v. Chisholm, 538 So. 2d 961 (Fla. 3d DCA 1989) (dismissing appeal for lack of record where appellant made no attempt to reconstruct the record). Accordingly, we affirm the judgment of dissolution, but reverse t…
Authorities Cited
- van Scoyoc v. Verdye Umstad York and Charlotte Paget, 173 So. 2d 483 (Fla. 2d DCA 1965)