Hillsborough County Bd. of County Com'rs v. Public Employees Relations Com'n, AI-484

Decision Date28 December 1982
Docket NumberNo. AI-484,AI-484
Citation424 So.2d 132
PartiesHILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Hillsborough County Governmental Employees Association, Inc., and Communication Workers of America, Local 3178, Appellees.
CourtFlorida District Court of Appeals

E. John Dinkel, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

Robert D. Hall, Jr., of Alley & Alley, Tampa, for amicus curiae Pinellas County Bd. of County Com'rs.

ORDER ON REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE

PER CURIAM.

This is an appeal from a final order of the Florida Public Employees Relations Commission (PERC) certifying the Hillsborough County Government Employees Association (HCGEA) as the exclusive bargaining representative for certain county employees. Pinellas County was granted leave to appear as amicus curiae.

In the course of the proceedings below, the petition for certification was challenged on the grounds that HCGEA had misrepresented its affiliation status in PERC's registration files and therefore was not properly registered. In its final order PERC found "... that while there is a relationship between HCGEA and either the FPBA or the HCPBA, there is no evidence that the HCGEA is affiliated with either organization in any legal sense which casts doubt upon the validity of the HCGEA's registration license."

In the appendix to its amicus brief, Pinellas County included portions of the record in a case which was before the local Pinellas County PERC where HCGEA's registration was revoked because of its failure to disclose its affiliation status. Pinellas County requests the Court take judicial notice of the county PERC record and decision pursuant to Section 90.202, Florida Statutes.

The Commission moves to strike the portions of the appendix containing the Pinellas County PERC record on the grounds that (1) the county record was not submitted to PERC in the instant case and the Pinellas County PERC relied upon facts that were not before the Florida PERC in this proceeding; (2) the evidence code sections relating to judicial notice were not meant to apply to an appellate proceeding but were intended to authorize a trial court judge to take judicial notice of the specified matter; (3) Florida Rule of Appellate Procedure 9.220 allows "other authorities" to be included in the appendix but the Pinellas County PERC record is not "other authority".

Pinellas County responds that judicial notice is requested not to raise factual matters but merely to limit the impact of the "no evidence" statement in the final order on appeal to the record in this case and to reflect that there were differences in the evidence considered by the two agencies. Pinellas County argues, citing to Section 90.202(6), that judicial notice is appropriate because the Pinellas County PERC order is currently on appeal to the Second District Court of Appeal and the matters in the appendix are portions of the record before that court. Lastly, Pinellas County asserts that the disputed portion of the appendix is properly included in the appendix as "other authority".

Because Section 90.203 states that a court shall take judicial notice of any matter in Section 90.202 when properly requested, we must determine whether Section 90.203 applies to appellate proceedings.

Section 90.203, Florida Statutes (1981), is part of the Florida Evidence Code. Section 90.103(1) states that the Florida Evidence Code shall apply "... to the same proceedings that the general law of evidence applied to before the effective date of the code." The general law of evidence did not apply to appellate proceedings prior to the effective date of the Code. An appeal has never been an evidentiary proceeding; it is a proceeding to review a judgment or order of a lower tribunal based upon the record made before the lower tribunal. An appellate court will not consider evidence that was not presented to the lower tribunal because the function of the appellate court is to determine whether the lower tribunal committed error based on the issues and evidence before it. See Tyson v. Aikman, 159 Fla. 273, 31 So.2d 272 (Fla.1947); Seashole v. F & H of Jacksonville, Inc., 258 So.2d 316 (Fla. 1st DCA 1972).

We therefore hold that The Florida Evidence Code does not apply to appellate proceedings, 1 and we are not bound by Section 90.203 to take judicial notice of those matters listed in Section 90.202.

Although appellate courts may, when appropriate, take judicial notice of their own records, 2 and such judicial notice is mandatory under certain circumstances, 3 we have discovered few cases in which an appellate court has found it permissible to take judicial notice of the records of another court in a totally separate and distinct case. 4 Numerous cases have held that an appellate court may not take judicial notice of the record in a separate proceeding. In Atlas Land Corporation v. Norman, 116 Fla. 800, 156 So. 885 (Fla.1934), the Supreme Court explained the reasons why such judicial notice would not be taken.

The circuit court whether sitting as a court of law or as a court of equity, is a court of record. As such, its judgments or decrees are to be supported, as well as tested, by what its record in the particular case may show, not by what its records at large may disclose. This is necessarily...

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  • City of Miami v. F.O.P. Miami Lodge 20
    • United States
    • Florida District Court of Appeals
    • January 31, 1989
    ...stated that the Florida Evidence Code does not apply to appellate proceedings, Hillsborough County Board of County Commissioners v. Public Employees Relations Commission, 424 So.2d 132, 134 (Fla. 1st DCA 1982), but the correctness of this statement is debatable. See 1 C. Ehrhardt, supra § 2......
  • Von Eiff v. Azicri, 96-3273
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    • Florida District Court of Appeals
    • September 17, 1997
    ...be factored into our decision since it was not litigated before the lower court. See Hillsborough County Bd. of County Comm'r v. Public Employees Relations Comm., 424 So.2d 132, 134 (Fla. 1st DCA 1982) (appellate court will not consider evidence that was not presented to lower tribunal, sin......
  • Cohen v. Shushan
    • United States
    • Florida District Court of Appeals
    • March 15, 2017
    ...This court should only consider evidence that was before the trial court. See id. (quoting Hillsborough Cty. Bd. of Cty. Comm. v. Pub. Emps. Relations Comm. , 424 So.2d 132, 134 (Fla. 1st DCA 1982) ) ("[T]he function of an appellate court is to determine whether the lower tribunal committed......
  • Page v. City of Fernandina Beach
    • United States
    • Florida District Court of Appeals
    • June 15, 1998
    ...is to review the alleged (and challenged) error(s) committed by the trial court. See Hillsborough County Bd. of County Comm'r v. Public Employees Relations Comm'n, 424 So.2d 132, 134 (Fla. 1st DCA 1982). I am not persuaded, as reasoned by the concurring opinion, that appellants' limited cha......
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