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In re Cole

United States District Court, M.D. Florida, Orlando Division

July 29, 2019

In Re William W. Cole, Jr.
v.
LORI PATTON, PRN REAL ESTATE AND INVESTMENTS, LTD. and NANCY ROSSMAN, Appellees. WILLIAM W. COLE, JR., Appellant,

          ORDER

          PAUL G. BYRON JUDGE

         This cause comes before the Court without oral argument on Appellant's Motion for Judicial Notice or, in the Alternative, to Supplement Record (Doc. 20 (the “Motion”)), and Appellees' Response in Opposition (Doc. 22). With briefing complete, the matter is ripe. Upon consideration, the Motion is due to be granted in part and denied in part.

         I. BACKGROUND

         Appellant moves this Court to judicially notice, or supplement the record with, two documents: (A) a segment of the “transcript from a trial in a related adversary proceeding, ” and (B) “public record information from the Orange County Property Appraiser's website regarding” geographical boundaries of a property at issue in In re Englander, 156 B.R. 862 (Bankr. M.D. Fla. 1992). (Doc. 20, p. 2; Docs. 20-1, 20-2). As to the transcript material, Appellant contends that judicial notice is proper because its contents are “directly relevant to the issues on appeal” and taking such notice would serve the interests of justice. (Doc. 20, pp. 4-5). As to the property appraiser website information, Appellant maintains judicial notice is proper because it is a government record regarding geographical boundaries that are not subject to reasonable dispute. (Id. at pp. 5-6).

         Appellees oppose judicial notice of both exhibits. With respect to the transcript, Appellees submit, in part, that Appellant neglected to introduce the transcript testimony in the trial from this underlying bankruptcy case and therefore waived the right to present such evidence here. (Doc. 22, p. 7). As to the property appraiser website information, Appellees likewise assert that information should have been introduced in the underlying bankruptcy case, and further argue that the information has little probative value. (Id. at pp. 8-9).

         II. STANDARD OF REVIEW

         “The court may take judicial notice at any stage of the proceeding.” Fed.R.Evid. 201(d). Federal Rule of Evidence 201 controls the judicial notice determination of adjudicative facts-that is, “the facts of the particular case.” Fed.R.Evid. 201(a) advisory committee's notes to 1972 proposed rules. The Court may take judicial notice of “a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). The Eleventh Circuit has cautioned that judicial notice should be employed sparingly because it “bypasses the safeguards which are involved with the usual process of proving facts by competent evidence.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). “[T]he kinds of things about which courts ordinarily take judicial notice are (1) scientific facts: for instance, when does the sun rise or set; (2) matters of geography: for instance, what are the boundaries of a state; or (3) matters of political history: for instance, who was president in 1958.” Id.

         Generally, a court can take judicial notice of “what was said and what the judge ruled in another court proceeding, as such matters are not subject to reasonable dispute; however, the Court may not take judicial notice of any statements for their truth, as the veracity of statements are subject to reasonable dispute.” Walter v. McIntosh, No. 6:13- cv-472-Orl-37GJK, 2013 WL 4028189, at *1 (M.D. Fla. Aug. 7, 2013) (citing Amcal Gen. Contractors, Inc. v. Ace Am. Ins. Co., No. CV 09-06134 DDP (RCx), 2009 WL 3398355, at *3 (C.D. Cal. Oct. 20, 2009) (“[A] court may take judicial notice of the undisputed matters of public record, i.e., the fact that hearings and prior proceedings took place, and what was said in those proceedings, but it may not take judicial notice of disputed facts stated in public records for their truth.”)).

         III. DISCUSSION

         A. Exhibit A: Testimony Transcript from Related Proceeding

         Appellant's motion for judicial notice of the transcript segment from trial proceedings in a separate but related bankruptcy case is due to be denied.

         The Court is guided by In re SI Restructuring Inc., 480 Fed.Appx. 327 (5th Cir. 2012) (per curiam), [1] where the court affirmed a district court's refusal to take judicial notice of filings from a prior but related bankruptcy action. Like Appellant here, the Restructuring appellants sought judicial notice of “testimony and evidence [from a proceeding in] the same court, in a related proceeding, over which the same judge presided.” Id. at 328.[2]The court noted that the appellate record in a bankruptcy appeal is limited to papers, exhibits, transcripts, and docket entries from the underlying bankruptcy proceeding. Restructuring, 480 Fed.Appx. at 328-29 (citing Fed.R.Bankr.P. 8006, Fed. R. App. P. 10). Next, the court cited the general rule that “a court cannot take judicial notice of the factual findings of another court, ” id. at 329 (quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992)), before c onc luding, “W e s ee no reas on to require a court to take judicial notice of the contents of evidence not properly introduced in the bankruptcy proceeding[.]” Id.

         The Court finds that Appellant's motion for judicial notice of Exhibit A is due to be denied. As in Restructuring, Appellant seeks to admit for this Court's consideration testimony from a separate action. Appellant fails to explain why this evidence was not admitted, or similar evidence not developed, in the underlying bankruptcy action. Accordingly, the transcript testimony is unfit for judicial notice.

         B. Exhibit B: Property Appraiser ...


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