Judicial Notice on Appeal: Why All the Fuss?
One of the most fundamental principles of appellate law is “preservation below.” The basic rule is evidence cannot be presented for the first time on appeal. After all, appellate courts are not fact-finding tribunals. They evaluate and correct harmful errors lower courts made after the litigant’s counsel lodged a contemporaneous and specific objection and argument. Instances of reversal for fundamental, unpreserved error today are rare.
So, it’s no wonder that the far-from-predictable rules of judicial notice on appeal leave practitioners uncertain about what they can present, if anything, for the first time on appeal. Some of those reading this article, for example, may not even be aware that judicial notice on appeal is even possible, let alone appropriate, provided the rules for doing so have been followed. This article discusses the reasons behind judicial notice, and how those reasons have played out in the more complicated setting of the appellate forum, where records are supposed to be “frozen in time.”
The Origins of Judicial Notice
Though judicial notice is a concept much older than the illustration about to follow, one of the most famous tales of the inextricable value of judicial notice concerns Abraham Lincoln, one of our nation’s great trial lawyers. The story has numerous variations (and criticisms). But the following is most appropriate for this discussion.
Lincoln defended a man named William “Duff” Armstrong, who had been charged with murder.1 Armstrong’s co-defendant, Jim Norris, had already been convicted of murder, and Armstrong was to be tried next.2 The testimony at Norris’ trial was that, on the evening of August 29, 1857, Armstrong and Norris argued with a man named Metzker, who was later found dead. Charles Allen was the state’s key eyewitness.3 Allen claimed he saw Norris and then Armstrong strike Metzker in the head.4 The prosecution used Allen’s eyewitness testimony to convict Norris.5
During Armstrong’s trial, Allen again presented testimony similar to his testimony in the Norris trial.6 Lincoln cross-examined Allen in great detail, directing much of his examination to Allen’s claim that he had seen the whole attack on Metzker in bright moonlight on the evening of August 29, 1857, from a distance of some 150 feet.7 At the end of the cross-examination, Lincoln produced an 1857 edition of an almanac that contained information that the moon would not have been shining brightly on August 29, 1857.8 Based on that information, Lincoln argued Allen could not have clearly seen the attack from 150 feet away.9 Many have since posited that Lincoln’s production of the almanac — and the lower court’s judicial notice of it — broke the prosecution’s case and won the acquittal of Lincoln’s client.10
But did the court properly allow the almanac? Without question, the issue of whether the moon shone brightly that evening was relevant and vital to the prosecution, because Allen testified he could see the attackers at night some 150 feet away. But whether the moon shone brightly that evening was also a basic, indisputable fact, which is precisely why a trial court correctly allowed it. The question in this article is whether it would have been allowed under Florida’s appellate judicial notice standards today?
Judicial Notice in Florida
The answer is a resounding “yes, maybe.” The debate over judicial notice is not easily resolved. There is a strong policy in appellate practice that parties are prohibited from raising issues or arguments or presenting evidence or documents for the first time on appeal. Yet, there is an equally strong policy that appellate courts not render decisions contrary to facts and law undisputed and incontrovertible. As a result, in the interests of justice, Florida appellate courts will, as a matter of actual practice, judicially notice matters for the first time on appeal, usually without even referencing the evidence code.
Meaning, before the adoption of Florida’s evidence code,11 appellate courts often took judicial notice of many different kinds of facts. The Supreme Court of Florida judicially noticed the unstable or fluctuating real estate values at the time a particular contract was made;12 that the tourist industry was one of state’s greatest assets for purposes of determining whether a statute authorizing a municipal resort tax was constitutional;13 of extreme deflation in Florida real estate values after the collapse of the 1925 boom and almost total lack of market for real estate in Dade County in June 1928;14 that the public largely measures grades of clothing by the sales price;15 that the par value of stock is very often in excess of its actual cash or market value;16 and that growing timber is a valuable asset in Florida and that the cutting of timber out of “cut-over pine” lands takes away the value of those lands.17
Pre-evidence code, Florida’s district courts of appeal, likewise, judicially noticed a wide variety of adjudicative facts including the fact of general market conditions concerning realty at particular times;18 that a bridge or causeway connecting the mainland with a series of undeveloped keys would have a substantial impact and influence on the value and use of the keys property involved;19 that between the April 1956 date of the contract to sell land and the September 1959 date of the final decree denying specific performance of the contract, land values in the area had increased substantially;20 that land having a fair market value of $500 to $1,000 an acre is immediately enhanced in value from $25,000 to $50,000 an acre after a limited access highway and its necessary interchange facility have been constructed across it.21
The courts also noticed that a hotel was within a 25-mile radius of the airport;22 that the credit life insurance business operates extensively in Florida in response to legitimate demand;23 that a substantial difference exists between a type of business generally conducted by an operator of terminal facilities for storage of gasoline and petroleum products in great bulk pending resale versus that type of business conducted generally by wholesalers in gasoline and petroleum products;24 that in a proceeding to recover the cost of obtaining a supersedeas bond to cover costs, surety companies require security to be given to protect themselves in the event the judgment debtor is unable to pay the judgment if the judgment were affirmed on appeal, and that the bond premium required is considerably less when the securities are of a type readily convertible into cash;25 and that, in a libel action against a newspaper for publication of a news item, a member of the newspaper staff wrote the newspaper’s headlines, rather than general dispatch.26
But Florida’s Supreme Court and appellate courts have also refused to notice matters for the first time on appeal, precisely because they were not presented in the trial court.27 These decisions reflect that the appellate courts were deciding whether to judicially notice an adjudicative fact on a case-by-case, issue-by-issue basis, yielding little direction for appellate parties as a result.
Thus enters Florida’s evidence code, which does not specifically state that its judicial notice provisions apply to the appellate courts. There is no question, however, that post-evidence code, appellate courts recognize their power to judicially notice adjudicative facts on appeal,28 as well as the power to judicially notice law and judicial records.29
The limitation on judicial notice seems to be procedural; though it does appear in the case law or in actual appellate practice. That is, F.S. §90.204(1) provides that, before an appellate court takes judicial notice of an adjudicative fact, it shall afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and the nature of the matter noticed.
Florida’s Judicial Notice on Appeal Rules are Consistent with Federal Rules on Judicial Notice
The Federal Rules of Evidence provide that judicial notice may be taken at any stage of the proceedings, whether requested or not,30 of adjudicative facts that are “not subject to reasonable dispute” and either 1) “generally known within the territorial jurisdiction of the trial court” or 2) “capable of accurate and ready determination.”31 Judicial notice in Florida and federal court is based on the notion that certain undisputed facts or incontrovertible propositions exist that may be accepted as true without further proof.32 “Judicial notice, therefore, merits that traditional caution is given, and courts should strictly adhere to the criteria established by the Federal Rules of Evidence before taking judicial notice of pertinent facts.”33
A court must take judicial notice “if requested by a party and provided with the necessary information.”34 Either party is “entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.”35 Notwithstanding the seeming liberality of the federal principles of judicial notice, federal judicial notice is appropriate only of a fact “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”36
Additionally, the federal judicial notice rule is applied somewhat conservatively, because federal appellate courts also recognize that accepting disputed factual propositions about a case not tested through the adversarial system of trial is a sharp departure from standard practice.37
The law of Venezuela on fruit flies, for example, may be “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned” pursuant to Federal Rule of Evidence 201, but it does not mean that it is always relevant to judicial notice and the matter at issue. The courts, therefore, will not necessarily circumvent the provisions of Federal Rule of Criminal Procedure 26.1 (concerning laws of a foreign country) by taking judicial notice of foreign law.38
While federal Rule of Evidence 201 addresses judicial notice on appeal of adjudicative facts, courts have historically developed judicial notice of law.39 The proposed Federal Rules of Evidence 203 (on judicial notice of law) and 204 (on proving law) could provide even better guidance on this issue.40 Federal appellate courts, for example, recognize that they may take judicial notice of law and even of contracts, as well as the rules, regulations, and orders of administrative and other quasi-judicial bodies that are issued pursuant to their delegated authority.41
Need to Codify an Appellate Rule Clarifying Judicial Notice Provisions in Appellate Context
What these statutes, rules, and decisions reflect is that the information contained in the famous almanac about the moonlight on the evening of August 29, 1857, successfully changed the outcome of Lincoln’s defense of Armstrong, and those were facts that the trial court properly judicially noticed at the trial level. But it does not necessarily follow that indisputable facts and law should be noticed for the first time on appeal.
The matters that can be noticed, as set forth in F.S. §§90.201 and 90.202, appropriately define those subjects proper for judicial notice at the trial level.42 It makes no sense, however, to have §§90.201 and 90.202 only apply at the trial level while the appellate courts fashion standards on a case-by-case basis, perpetuating uncertainty over what can be noticed. Sections 90.201 and 90.202 should also expressly apply at the appellate levels and appellate litigants should be subject to their limits. Section 90.207 also strongly suggests that judicial notice on appeal is proper. It also suggets the evidence code judicial notice provisions applies to appellate, and not just trial, courts: “[T]he failure or refusal of a court to take judicial notice of a matter does not preclude a court from taking judicial notice of the matter in subsequent proceedings,” in accordance with the procedures set forth in the code. This also makes sense because §§90.203 and 90.204, which set forth the procedures for a court to take judicial notice, do not limit themselves to trial courts, only citing “the court.”43
But applying the judicial notice provisions of the evidence code in the appellate forum is not an easy matter. Undisputed and incontrovertible facts in a criminal appeal, for example, may present a whole host of due process concerns that civil appeals may not. Moreover, judicially noticing that which the litigants failed to do themselves in the lower tribunal turns the notion of reviewing preserved error on its head. How can it be logically argued that a trial judge, who was never afforded the opportunity to consider that which is being judicially noticed for the first time on appeal, committed reversible error?
The First District in Gulf Coast Home Health Services v. Department of Health Rehabilitative Services, 503 So. 2d 415, 417 (Fla. 1st DCA 1987), has articulated some of the best guidance on this issue:
The general rule that we deduce from these opinions, and the one which we have applied in disposing of the motions before us, is that it is altogether appropriate for the appellate court to take judicial notice of the existence of other cases, either pending or closed, which bear a relationship to the case at bar. That notice may include, at minimum, the identity of the parties and their counsel, the lower tribunal from which an appeal was taken and the provisions of the order on appeal, issues presented in the briefs, the status of a file within the court, and the dates of orders of the trial and appellate courts. To fail to do so would handicap the court with a tunnel vision that could lead to inconsistent results in some instances and would simply waste judicial resources in others. On the other hand, we find no persuasive support, either in the case law or in logic, for the type of judicial notice requested by Gulf Coast. In fact, we find that a policy of granting the kind of relief sought by Gulf Coast would be unworkable, unfair, and fly in the face of well-established principles regarding appellate review. While we can envision an unusual circumstance, for example an allegation of fraud upon the court, where the court might find it necessary to make an exception to the rule announced here, the grounds stated by Gulf Coast are clearly not of such tenor.
Judicial notice on appeal is a vital adjudicative device for advancing appellate decisions on the merits. But it should be clarified in Florida, in the same way that there is a move to clarify it in the federal rules. This is even more important today because efforts to advance appellate decisions fully on the merits must be counterbalanced with the strong policies of appellate preservation and review. Sound appellate practice still dictates that it is the better course of action to seek, with the assistance of a skilled appellate practitioner, judicial notice of these items at the lower tribunal level and bring their consideration, or denial, up for review on appeal by correctly using the evidence code and proper procedure. Doing so eliminates the risk that an appellate court will deny a motion for judicial notice submitted for the first time on appeal. It also increases the chances of an appellate court having an adequate appellate record that affords a meaningful opportunity for appellate review of the decision being challenged as error on appeal. More liberal appellate judicial notice places the appellate court in the role of fact-finding body and of allowing appellate litigants the proverbial “second bite of the apple,” rather than the intended role of reviewer of error.
1See Moonlight: Abraham Lincoln and the Almanac Trial (Reviewed), 7 Ga. B. J. 61 (2001 WL 1768535); H. Mitchell Caldwell, L. Timothy Perrin & Christopher L. Frost, The Art and Architecture of Closing Argument, 76 Tulane L. Rev. 961, 1048 (March 2002) (citing John J. Duff, A. Lincoln: Prairie Lawyer 350 (1960) (recounting the “Almanac Trial”)); Richard H. Underwood, Not So Great Moments in Trial Advocacy: Clement Vallandigham, 13 Widener L. J. 185 (2003); Richard H. Underwood, Legal Ethics Issue Moonlight: Abraham Lincoln and the Almanac Trial, by John Evangelist Walsh 29 N. Ky. L. Rev. 237 (2002); Richard H. Underwood, Book Review: An Attack on The Abraham Lincoln Almanac Trial Legend 36 Ark. Lawyer 17 (Summer 2001).
10 Richard H. Underwood, Not So Great Moments in Trial Advocacy: Clement Vallandigham, 13 Widener L. J. 185 (2003); Richard H. Underwood, Legal Ethics Issue Moonlight: Abraham Lincoln and the Almanac Trial, by John Evangelist Walsh 29 N. Ky. L. Rev. 237 (2002); Richard H. Underwood, Book Review: An Attack on The Abraham Lincoln Almanac Trial Legend, 36 Ark. Lawyer 17 (Summer 2001).
11 Following the legislature’s initial adoption of the Florida Evidence Code in 1976, the supreme court approved and adopted the statutory code as rules, under its constitutional authority (Fla. Const. art. V, §2(a)) “to the extent that [the code provisions] are procedural.” In re Fla. Evidence Code, 372 So. 2d 1369, 1369 (Fla. 1979).
12 Reese v. Levin, 123 So. 809 (Fla. 1929); see also, e.g., Peterson v. Paoli, 44 So. 2d 639 (Fla. 1950) (judicially noticed “applicable and controlling statute of the State of New York, even though such statute was overlooked in the proceedings in the court below.” This was judicial notice of law, not adjudicative fact.).
13 State v. City of Miami Beach, 234 So. 2d 103 (Fla. 1970).
14 Smith v. Mass. Mut. Life Ins. Co., 156 So. 498 (Fla. 1934); see also City of Coral Gables v. State, 176 So. 40 (Fla. 1937).
15 McCreary v. Cohen, 149 So. 208 (Fla. 1933).
16 E.O. Painter Fertilizer Co. v. Foss, 145 So. 253 (Fla. 1932).
17 Lang v. Horne, 23 So. 2d 848 (Fla. 1945).
18 Builders Fin. Co. of St. Petersburg v. Ridgewood Homesites, Inc., 157 So. 2d 551 (Fla. 2d D.C.A. 1963).
19 Fossey v. Dade Co., 123 So. 2d 755 (Fla. 3d D.C.A. 1960).
20 Shirley v. Lake Butler Corp., 123 So. 2d 267 (Fla. 2d D.C.A. 1960); see also Sterling Village Condo. Inc. v. Breitenbach, 251 So. 2d 685 (Fla. 4th D.C.A. 1971) (judicial notice of respective characteristics and properties of screens and glass jalousies).
21 Levit v. Dep’t of Transp., 248 So. 2d 542 (Fla. 1st D.C.A. 1971).
22 Yellow Cab Co. of Boca Raton v. Broward County, 282 So. 2d 1 (Fla. 4th D.C.A. 1973).
23 Blood Serv. Plan Ins. Co. v. Williams, 186 So. 2d 33 (Fla. 1st D.C.A. 1966).
24 Panama City v. Hi-Octane Terminal Co., 121 So. 2d 197 (Fla. 1st D.C.A. 1960).
25 Melvin v. West, 120 So. 2d 233 (Fla. 2d D.C.A. 1960).
26 MacGregor v. Miami Herald Pub. Co., 119 So. 2d 85 (Fla. 2d D.C.A. 1960).
27 See, e.g., In re Adoption of Freeman, 90 So. 2d 109 (Fla. 1956) (court should not take judicial notice of what may be contained in the record of another distinct case unless it be brought to the attention of the court by being made a part of the record); Kostecos v. Johnson, 85 So. 2d 594 (Fla. 1956); Bergeron Land Dev., Inc. v. Knight, 307 So. 2d 240 (Fla. 4th D.C.A. 1975); Truxell v. Truxell, 259 So. 2d 766 (Fla. 1st D.C.A. 1972); duPont v. Rubin, 237 So. 2d 795 (Fla. 3d D.C.A. 1970); Novack v. Novack, 196 So. 2d 499 (Fla. 3d D.C.A. 1967); In re Simpkins’ Estate, 195 So. 2d 590 (Fla. 1st D.C.A. 1967) (all similar).
28 England v. England, 520 So. 2d 699, 702 (Fla. 4th D.C.A. 1988) (in reversing trial court’s denial of request for permanent periodic alimony increase, appellate court observed: “While there was no actuarial evidence presented below, we can take judicial notice of the fact that the value of $75 today is far less than what it was in 1967.”); Smith v. Smith, 474 So. 2d 1212 (Fla. 2d D.C.A. 1985).
29 See Sinclair v. State, 853 So. 2d 551 (Fla. 1st D.C.A. 2003) (appellate court may judicially notice its own records); Allstate Ins. Co. v. Greyhound Rent-A-Car, Inc., 586 So. 2d 482 (Fla. 4th D.C.A. 1991); Buckley v. City of Miami Beach, 559 So. 2d 310 (Fla. 3d D.C.A. 1990); Arnold Lumber Co. v. Harris, 503 So. 2d 925 (Fla. 1st D.C.A. 1987) (all similar). But see Hill v. State, 471 So. 2d 567 (Fla. 1st D.C.A. 1985) (appellate court denied appellee’s motion to supplement appellate record with certain documents, stating that: “Counsel for appellee should not have to be told that the appellate courts do not create records, nor do statements of counsel serve to create a record. While the documents may have been subject to judicial notice below, the place for securing such notice is in the trial court.”).
30 See Fed. R. Evid. 201(c) & (f).
31 Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997) (quoting Fed. R. Evid. 201). That authority includes Parker v. Brown, 317 U.S. 341, 363 n.9, 364 n.10, 365 n.12, 366 n.14-17, 367 n.18 (1943) (judicial notice taken of statistical data about California raisin industry appearing in several government publications); Knox v. Butler, 884 F.2d 849 (5th Cir. 1989) (census statistics); Beardmore v. Dep’t of Agriculture, 761 F.2d 677, 679 (Fed. Cir. 1985) (judicial notice taken of American Automobile Association’s 1985 edition of California map); Barber v. Ponte, 772 F.2d 982, 998-99 n.14-16 (1st Cir. 1985) (judicial notice taken of official statistics on particular age group, including marital and divorce rates, school enrollment and educational attainment, economic status, employment rate, etc., compiled by census bureau and U.S. Dep’t of Health & Human Servs.); Jones v. Ill. Dep’t of Rehab. Serv., 689 F.2d 724, 728 (7th Cir. 1982) (judicial notice taken that rubella epidemic in 1963-65 doubled number of births of hearing-impaired infants, with result that some 15,000 deaf individuals were at or approaching age of college or professional education, from study published in U.S. News & World Rep.); U.S. v. United Bhd. of Carpenters & Joiners of Am. Local 169, 457 F.2d 210 (7th Cir. 1972) (census statistics); Skolnick v. Bd. of Comm’rs of Cook County, 435 F.2d 361 (7th Cir. 1970) (census statistics); Celebrezze v. Wifstad, 314 F.2d 208, 216 (8th Cir. 1963) (judicial notice taken of facts regarding “dry farming” operations appearing in publications of the U.S. Dep’t of Agric.); see also Am. Transit Lines v. Smith, 246 F.2d 86, 90 (6th Cir.1957) (judicial notice taken of figures of American Automobile Association for 1955 showing there were 62,053,697 automobiles, including buses and trucks, in U.S.); In re Snider Farms, Inc., 83 B.R. 1003, 1008 (Bankr. N.D. Ind.1988) (judicial notice taken of agricultural statistics issued by Indiana Agricultural Statistics Service, a cooperative publication of U.S. Dep’t of Agric. and Purdue University).
32 Gen. Elec. Capital Corp., 128 F.3d at 1081.
34 Fed. R. Evid. 201(d).
35 Fed. R. Evid. 201(e).
36 Fed. R. Evid. 201(b).
37 See U.S. v. Hoyts Cinemas Corp., 380 F.3d 558 (1st Cir. 2004) (citing Fed. R. Evid. 201); see, e.g., Hinton v Dep’t of Justice, 844 F.2d 126 (3d Cir. 1988) (refusing to take judicial notice of FBI agent’s affidavit predicting the time and expense involved in complying with lower court’s Freedom of Information Act order, since the affidavit satisfied neither prong of Rule 201(b)).
38 In a criminal proceeding, issues concerning the law of a foreign country are not allowed to be raised under Fed. R. Evid. 201, but under Fed. R. Crim. P. 26.1. See, e.g., U.S. v. McClain, 545 F.2d 988 (5th Cir. 1977) (Fifth Circuit treated the applicability of the applicability of the Mexican laws concerning pre-Columbian artifacts an issue of fact for the jury).
39 Pharmaceutical Research & Mfrs. of Am. v. Meadows, 304 F.3d 1197 (11th Cir. 2002); Gilmere v. City of Atlanta, Ga., 737 F.2d 894 (11th Cir. 1984) (federal civil rights laws do not speak to survivorship of actions; courts must, therefore, look to laws of states in which they sit to determine if provision is made for survivorship of a given cause of action); see also J. M. Blythe Motor Lines Corp. v. Blalock, 310 F.2d 77 (5th Cir. 1972); Ubuy Holdings, Inc. v. Gladstone, 340 F. Supp. 2d 1343 (S.D. Fla. 2004) (both similar).
40 See The Evidence Project, Professor Paul R. Rice, director, American University Washington College of Law. Web site address for online versions of the proposed changes to the Federal Rules of Evidence on Judicial Notice: www.wcl.american.edu/pub/journals/evidence/toc.html, visited Feb. 22, 2006.
41 See, e.g., Int’l Bhd. of Teamsters v. Chauffeurs, 394 F.2d 36 (6th Cir. 1968); Carter v. Am. Tel. & Tel. Co., 365 F.2d 486 (5th Cir. 1966) (judicial notice of various aspects of Federal Communications Commission materials including tariffs, regulations, and its orders); Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380 (9th Cir. 1953) (judicial notice of various contractual terms); United States v. Rice, 176 F.2d 373 (3d Cir. 1949) (both district courts and federal appellate/circuit courts may take judicial notice of facts); Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481 (1943) (despite untimely injection of judicially noticed administrative law, it still may be judicially noticed for purposes of affirming opinion after jury trial because it only fortifies a result which the court thought the jury could probably have reached even in the absence of such a rule).
42 Fla. Stat. §90.201 sets forth those matters which must be judicially noticed:
“A court shall take judicial notice of:
“(1) Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States.
“(2) Florida rules of court that have statewide application, its own rules, and the rules of United States courts adopted by the United States Supreme Court.
“(3) Rules of court of the United States Supreme Court and of the United States Courts of Appeal.”
Section 90.201, sets forth those matters which may be judicially noticed:
“A court may take judicial notice of the following matters, to the extent that they are not embraced within s. 90.201:
“(1) Special, local, and private acts and resolutions of the Congress of the United States and of the Florida Legislature.
“(2) Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the United States.
“(3) Contents of the Federal Register.
“(4) Laws of foreign nations and of an organization of nations.
“(5) Official actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States.
“(6) Records of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.
“(7) Rules of court of any court of this state or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States.
“(8) Provisions of all municipal and county charters and charter amendments of this state, provided they are available in printed copies or as certified copies.
“(9) Rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or in bound written copies.
“(10) Duly enacted ordinances and resolutions of municipalities and counties located in Florida, provided such ordinances and resolutions are available in printed copies or as certified copies.
“(11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
“(12) Facts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.
“(13) Official seals of governmental agencies and departments of the United States and of any state, territory, or jurisdiction of the United States.”
43 Section 90.203, provides for compulsory judicial notice upon request:
“A court shall take judicial notice of any matter in s. 90.202 when a party requests it and:
“(1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request.
“(2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”
Section 90.204, provides for a determination of the propriety of judicial notice and nature of matter noticed:
“(1) When a court determines upon its own motion that judicial notice of a matter should be taken or when a party requests such notice and shows good cause for not complying with s. 90.203(1), the court shall afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.
“(2) In determining the propriety of taking judicial notice of a matter or the nature thereof, a court may use any source of pertinent and reliable information, whether or not furnished by a party, without regard to any exclusionary rule except a valid claim of privilege and except for the exclusions provided in s. 90.403.
“(3) If a court resorts to any documentary source of information not received in open court, the court shall make the information and its source a part of the record in the action and shall afford each party reasonable opportunity to challenge such information, and to offer additional information, before judicial notice of the matter is taken.”
Dorothy F. Easley earned her J.D. with honors in 1994 from the University of Miami School of Law and M.S, with highest honors, in 1986 from SUNY/CESF. She is board certified in appellate practice and a partner with Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., in Coral Gables, specializing in appellate, health, medical malpractice, general liability, and insurance defense.
This column is submitted on behalf of the Appellate Practice Section, Thomas C. Hall, chair, and Wendy S. Loquasto, editor.