David Jessup v. Jeannie Jessup

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISIONS II & III

DAVID JESSUP

APPELLANT

V.

JEANNIE JESSUP

APPELLEE

CA 04-699

April 27, 2005

APPEAL FROM THE ARKANSAS

COUNTY CIRCUIT COURT

[E-199-149]

HONORABLE DAVID G. HENRY,

CIRCUIT JUDGE

SUPPLEMENTAL OPINION UPON

DENIAL OF REHEARING

David M. Glover, Judge

Appellant, David Jessup, has filed a petition for rehearing in which he contends that this court erred in refusing to address the valuation issue in our original opinion. Responsive to the petition, we deny the request for rehearing but supplement our original opinion for clarification.

As we explained in our original opinion, we did not address the valuation issue because appellant "raised no objection below to the trial court's expression of the Suburban's value . . . ." Appellant now contends in his petition's supporting brief that "the appellant is not required to object to the trial judge's statements of personal knowledge under Rule 605 of the Arkansas Rules of Evidence." Rule 605 provides:

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

(Emphasis added.) The problem with appellant's new argument, however, is that it differs from the two arguments he raised in his original appeal briefs to this court regarding the fair-market value of the vehicle.

In his initial appeal brief, appellant argued that there was "absolutely no evidence introduced to establish the value of the vehicle," and that the court's statement valuing the vehicle at $14,000 was conjecture and speculation, which even if plausible, could not take the place of proof. In his reply brief, appellant further contended:

[T]he only ways to prove facts at trial are through admissible testimony including various exceptions to the hearsay rule, judicial notice, request for admissions and stipulations of fact. In this case no request for admission existed, no stipulations of fact applied to the vehicles, and no testimony was given concerning the value of either vehicle in question. This leaves judicial notice as the only way this evidence could be appropriately introduced at trial.

Judicial notice is a process that establishes as truth in a court of law certain facts dealing with the case that are generally known in the area or indisputable. Rule 201 of the Arkansas Rules of Evidence deals with judicial notice and the process of entering evidence by judicial notice. Although any party may request the court to take judicial notice of a fact or the Court may take judicial notice sua sponte, this process was not initiated by the appellee nor the court in giving its opinion. "It is important to note that facts which just happen to be within the personal knowledge of the trial judge are not subject to judicial notice, unless they fit within the two subcategories stated in Rule 201(b)."

. . .

The evidence of the value of the vehicle in the case at hand fails to qualify as being judicially noticed for a number of reasons. First and foremost, this statement by the court is not "generally known" or "capable of accurate and ready determination" as called for in Rule 201(b). No knowledge of the mileage or condition of the Suburban was sought before declaring the amount of its worth by the court. Also the court failed to identify this fact as being judicially noticed thereby depriving appellant of the opportunity to respond and rebut this evidence. In addition, no justification was provided for this evidence introduced by the court and it was not subject to cross-examination or review, thus there was no proper basis for taking judicial notice.

(Citations omitted and emphasis added.) Thus, appellant made no mention of Rule 605 in his original briefs.

Despite appellant's position in his original briefs, in paragraphs five and six of his petition for rehearing, he now reverses his position and contends:

5. Clearly, the trial court was not taking judicial notice of the value of the vehicle because there was no evidence from which judicial notice could be taken in accordance with the requirements of Rule 201(b) of the Arkansas Rules of Evidence. Further, the court could not be applying its common knowledge to draw inferences because there was no evidence on the vehicle actually introduced from which to make any inference. Instead, the statement by the court was obviously a statement of his personal knowledge, in effect testimony, and no objection is required in order to pursue the point under Rule 605 of the Arkansas Rules of Evidence.

6. The opinion of the court is erroneous because it required the appellant to object to testimony by the trial court.

(Emphasis added.)

Rule 201 of the Arkansas Rules of Evidence provides:

  Judicial notice of adjudicative facts.

(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of Facts. A judicially noticed fact must be one 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 resert [resort] to sources whose accuracy cannot reasonably be questioned.

(c) When Discretionary. A court may take judicial notice, whether requested or not.

(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be Heard. A 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. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing Jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed.

Viewing the trial court's comments about the Suburban's value as appellant did in his original briefs to this court, i.e., as a judicially noticed fact, appellant was entitled "to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed"; however, he was required to make a "timely request" to do so. Rule 201 (e). Thus, while appellant was entitled to raise objections about the taking of judicial notice by the trial court under the circumstances of this case, he had to make a timely request to do so, which he did not do.

Moreover, had appellant wanted the judge's comments to be considered as testimony under Rule 605, which does not require an objection, he would not have argued that the trial judge was taking improper judicial notice of a fact, as he did in his original briefs. Rather, he is now changing his original appellate argument and reclassifying "judicial notice" as "testimony" because the latter does not require an objection. We will not consider contentions in a petition for rehearing that were not made in the original briefs. Burks Motors v. International Harvester Co., 250 Ark. 641, 466 S.W.2d 945 (1971).

Petition for rehearing denied.

Hart, Robbins, Griffen, Neal, and Roaf, JJ., agree.