Defendant, Frank J. DeCicco, trading as Slim's Ranch (DeCicco), obtained a favorable jury verdict in this personal injury action. Plaintiff, Brooke Lee Patton, appealed. DeCicco filed the instant motion to compel Patton to transcribe additional portions of the trial transcript for purposes of the appeal. F.R.App.P. 10(b)(3).
For the reasons stated hereafter, the motion will be granted and Patton will be ordered to have transcribed the testimony relating to the issue of DeCicco's asserted liability for Patton's injuries.
Briefly, the facts relevant to this motion are as follows: On September 25, 1981, I entered judgment in favor of DeCicco following a jury verdict in his favor. Patton filed post trial motions which I denied on January 18, 1982. On February 1, 1982, Patton filed a notice of appeal and, on February 5, 1982, she filed a transcript purchase order with the court reporter designating portions of the transcript that were to be transcribed for appeal. DeCicco was not served with a copy of the transcript purchase order. On April 23, 1982, DeCicco filed with the Court of Appeals a motion to dismiss the appeal on the ground that Patton, the appellant, had not filed the statement of issues required when only a portion of the transcript has been ordered.
See F.R.App.P. 10(b)(3). On the same day Patton mailed to DeCicco's counsel a statement of issues she intended to raise on appeal and a designation of the portions of the trial transcript that she had ordered. These documents were not received by DeCicco's counsel until April 26, 1982. (Exhibit D to Motion to Compel Transcription of Record). On May 5, 1982, DeCicco served Patton with a letter in which DeCicco designated the remainder of the trial transcript for inclusion in the appellate record. In a letter dated May 6, 1982, but not received by DeCicco's counsel until May 10, 1982, Patton refused to order any additional portions of the transcript. DeCicco, accordingly, filed the instant motion pursuant to F.R.App.P. 10(b)
on May 19, 1982.
Patton makes three arguments in opposition to DeCicco's motion. She contends that (1) the filing of the notice of appeal divests this court of jurisdiction to consider this motion; (2) DeCicco's motion is untimely; and (3) the transcript of the additional portions is unnecessary. I will consider these points in order.
Patton's jurisdictional argument is clearly without merit. F.R.App.P. 10(b) (3) specifically provides that motions to compel transcription may be addressed to the district court even though the matter is otherwise before the Court of Appeals. Moreover, it has long been settled that:
The preparation of the transcript is a continuing matter which must proceed in the District Court although jurisdiction over the case in which it will be filed may have passed to the appellate court.