United States District Court, M.D. Florida, Orlando Division
In Re William W. Cole, Jr.
LORI PATTON, PRN REAL ESTATE AND INVESTMENTS, LTD. and NANCY ROSSMAN, Appellees. WILLIAM W. COLE, JR., Appellant,
G. BYRON JUDGE
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.
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).
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).
STANDARD OF REVIEW
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.”
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.”)).
Exhibit A: Testimony Transcript from Related
motion for judicial notice of the transcript segment from
trial proceedings in a separate but related bankruptcy case
is due to be denied.
Court is guided by In re SI Restructuring Inc., 480
Fed.Appx. 327 (5th Cir. 2012) (per curiam),  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.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[.]”
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.
Exhibit B: Property Appraiser ...