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Jenks v. West Carrollton6/15/1989
of appellee's designation, to order such parts, the appellee within five days thereafter, shall either order the parts in writing from the reporter or apply to the court of appeals for an order requiring the appellant to do so. At the time of ordering, a party shall arrange for the payment to the reporter of the cost of the transcript."
Appellant Jenks filed her notice of appeal on January 7, 1988. From the record it appears that appellant did not order a transcript from the court reporter until March 17, 1988, and then only a partial transcript. Further, appellant did not file a copy of the request with the court or serve a copy on the appellee, as required by App. R. 9(B).
Appellee, not knowing whether appellant had ordered a full transcript, ordered a full transcript. Appellee claims that, as the time for designation of further portions had expired, it had no choice but to order a full transcript to protect its own interests. The cost to appellee was $273.60.
Both counsel for appellant and counsel for appellee state by affidavit that they made several attempts to reach the other by telephone to discuss the matter, but without success.
We cannot agree that appellee is entitled to receive reimbursement from appellant for costs of the transcript ordered by appellee. Appellant's failure to follow the requirements of App. R. 9(B) produced uncertainty in appellee's mind whether it ought to seek additional transcriptions. Appellant's failure was a matter that should have been brought to the attention of the court prior to any expiration of the time concerned. From the statements of the parties, it appears that a motion to compel appellant to designate parts of the transcript ordered would likely have solved the problem. By going forward unilaterally to order its own transcript, appellee assumed the obligation to pay for same.
Appellee's motion to require appellant to pay for costs of its transcript is not well-taken and is denied.
Judgment affirmed.
Brogan and Fain, JJ., concur.
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