MENNELLA PLASTERING, INC., A FLORIDA CORPORATION, PETITIONER,
v.
ADOBE BRICK AND SUPPLY CO., INC., A FLORIDA CORPORATION AND UNITED STATES FIDELITY AND GUARANTY CO., A MARYLAND CORPORATION, RESPONDENTS
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The Florida Supreme Court held that while a trial judge may not take judicial notice of records from another pending or concluded case in the same court, the error is harmless when the entire record is included on appeal and the appellant is not prejudiced.
Although a trial court is not authorized to take judicial notice of records from a different case pending or disposed of in the same court outside the record before it, such error is harmless when the complete record relied upon is included in the appellate record and the appellant is not prejudiced by the procedure.
[1] A trial court may not take judicial notice of records in a different case pending or disposed of in the same court outside the record in the case before it.
[2] An appellate court is not similarly situated to a trial court and may not consider records from other cases not properly introduced into evidence.
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Join FLexlaw to unlock all legal intelligence“the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the case before him”
Statement of the established rule prohibiting judicial notice of outside case records
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Join FLexlaw to unlock all legal intelligenceA trial judge entered summary judgment for the respondent in an action between Mennella Plastering and Adobe Brick, relying on pleadings, affidavits, …
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By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District (Mennella Plastering, Inc. v. Adobe Brick and Supply Co., 265 So.2d 750), which allegedly conflicts with a prior decision of this Court (Kostecos v. Johnson, 85 So.2d 594), on the same point of law. Fla.Const., art. V, § 4, F.S.A. We have found that there is direct conflict and, therefore, we have jurisdiction.
The sole matter raised for consideration before this Court is whether or not a circuit judge may take judicial notice of another suit pending before or decided by the circuit court. In the case sub judice, the *2trial judge entered a summary judgment in favor of respondent, relying on the pleadings, affidavits, depositions, and transcripts of testimony in the case sub judice and in another action between the parties which had been concluded before the circuit court. The earlier trial record was not introduced into evidence, but was included in the record on appeal, over the objection of petitioner. The District Court affirmed the trial court.
Kostecos v. Johnson, supra, relied upon by petitioner, held:
“Although no error is assigned on this proposition, both parties evidently agreeing that the procedure was correct, we are constrained to point out that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the case before him.” 85 So.2d 594, 596.
In Kostecos v. Johnson, supra, the reason for the rule was evident in that the record on appeal was insufficient, containing only selections of the record relied upon. However, this Court relied upon that record in considering the merits of the case and, while decrying the practice, affirmed the trial court. The Court noted the reason for the rule:
“The judgment recites that the trial judge took judicial notice of the entire contents of the records in the two delinquent tax cases. Undoubtedly he could conveniently call upon the office of the clerk of the court to bring the records before him and make them available for his examination in arriving at a judgment. Upon appeal, however, this court is not similarly situated and we are, therefore, obviously without the information contained in the two records . . . .” 85 So.2d 594, 596.
The infirmity which plagued this Court in Kostecos v. Johnson, supra, is not present in the case sub judice, as the record relied upon by the trial judge was included, in its entirety, in the record on appeal. Neither was there any showing that the petitioner was prejudiced by the procedure. The error was harmless. Although there is conflict, we should not disturb the decision of the trial court and of the District Court of Appeal. Fla.Stat. § 924.33, F.S.A.
Accordingly, the writ of certiorari is discharged.
Tt is so ordered.
ROBERTS, Acting C. J., and BOYD, McCAIN and DEKLE, JJ., concur.
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Bergeron Land Dev., Inc. v. Knight, 307 So. 2d 240 (Fla. 4th DCA 1975)…ety of the trial court’s conclusion as to the effect of prior litigation on the rights of the parties in the present controversy. The present case is thus distinguishable from Mennella Plastering, Inc., v. Adobe Brick And Supply Co., Inc., Fla.1973, 273 So. 2d 1. The trial court erred in granting the motion for judgment on the pleadings filed by appellee Monico, Inc. Since the cause must be returned for further proceedings, the trial court is directed to reinstate the lis pendens expunged by order of March…
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City OF Clearwater v. United States Steel Corp. & U.S.S. Realty Dev., 469 So. 2d 915 (Fla. 2d DCA 1985)…ver, stipulated that the court could consider and take judicial notice of all other proceedings between them. The trial court therefore properly considered the issue of res judicata. See Mennella Plastering, Inc. v. Adobe Brick and Supply Co., Inc., 273 So. 2d 1 (Fla.1973); Lagarde v. Outdoor Resorts of America, Inc., 428 So. 2d 669 (Fla. 2d DCA 1982); cf. Kostecos v. Johnson, 85 So. 2d 594 (Fla.1956). A review of the pleadings and evidence presented in the prior case, and a review of the complaint current…
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Murray J. Kerper and Susan A. Kerper v. NCNB Nat'l Bank OF Fla., 496 So. 2d 199 (Fla. 4th DCA 1986)…Based upon the facts and circumstances found herein, we believe any error in this procedure was harmless and that the trial judge’s findings of the amount due are supported in the record. See Mennella Plastering, Inc. v. Adobe Brick and Supply Co., 273 So. 2d 1 (Fla.1973). The Kerpers’ second point on appeal contends the trial court erred in finding against them on their affirmative defense of usury. In their appellate brief, the Ker-pers argue that the lease involved herein was a disguised loan yielding…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kostecos v. Johnson, 85 So. 2d 594 (Fla. 1956)
- Crivello v. State, 265 So. 2d 750 (Fla. 3d DCA 1972)
- Menella Plastering, Inc. v. Adobe Brick & Supply Co., Inc., 265 So. 2d 750 (Fla. 3d DCA 1972)