Jerry Scarbrough, Denise Steele, and Melissa Victoria Deaton v. Helen Purser, Sue E. Purser A/K/A Sue E. Van Zanten, Gary W. Purser, Jr., Joann M. Purser, and Elizabeth H. Tipton

Court of Appeals of Texas·Decided October 13, 2015·No. 03-13-00025-CV·Published

Opinion

ACCEPTED 03-13-00025-CV 7355184 THIRD COURT OF APPEALS AUSTIN, TEXAS 10/13/2015 3:09:34 PM JEFFREY D. KYLE CLERK NO. 03-13-00025-CV

FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 10/13/2015 3:09:34 PM JEFFREY D. KYLE Clerk

JERRY SCARBROUGH, ET AL., APPELLANTS,

HELEN PURSER, ET AL., APPELLEES.

ON APPEAL FROM THE 146TH JUDICIAL DISTRICT COURT BELL COUNTY, TEXAS

APPELLEES’ RESPONSE TO APPELLANT’S REQUEST TO TAKE JUDICIAL NOTICE OF FACTS OUTSIDE THE RECORD

TO THE HONORABLE COURT OF APPEALS:

Appellees, Helen Purser, Sue E. Purser a/k/a Sue E. Van Zanten, Gary W.

Purser, Jr., Joann M. Purser, and Elizabeth H. Tipton (collectively, Purser), file this

Response to Appellant’s Request to Take Judicial Notice of Facts.

Importantly, in his motion, Scarbrough neglects to address that the rules limits

an appellate court’s ability to take judicial notice of facts outside the record to those instances involving the court’s jurisdiction or to matters ancillary to decisions

mandated by law. When the applicable law is considered, appellant’s motion must

be denied.

I. INTRODUCTION

The “facts” Appellant asks this Court to consider for the first time on appeal

are not facts at all. Instead, Appellant asks the Court to take judicial notice of a

portion of a written closing argument that was tendered in the adversarial proceeding

in bankruptcy court.

The portion of the argument Appellant asks the Court to take judicial notice of

relates to the issue of whether the trial court abused its discretion in determinating

that Scarbrough violated a Confidentiality Order that:

1. Provided, among other things, that all medical records of Mr. Purser

were to be confidential, CR:6997;

2. Scarbrough signed as attorney for Deaton and Steele, CR:7002;

3. Scarbrough admitted he was bound to obey, 2dSuppRRVol.4:124-25;

2dSuppRRVol.5:29; and

4. Scarbrough conceded he intentionally disregarded on at least two

occasions, 2dSuppRRVol.4:8-10; 2dSuppRRVol.5:33.

-2- During two evidentiary hearings related to Scarbrough’s violations of the

Confidentiality Order, the trial court heard Scarbrough attempt to excuse his violation

because, among other reasons, the Texas Rules of Civil Procedure do not apply to

him and are unfair. 2dSuppRRVol.4:12; 2dSuppRRVol.5:17, 43, 47, 49, 54, 56.

The Pursers respectfully direct the Court’s attention to their brief for a more

detailed discussion of the record and the law governing the issue of the trial court’s

discretion in determining that Scarbrough violated a court order. APPELLEES’ BRIEF

at pp. 94-101.

In his request for this Court to take judicial notice, Scarbrough concedes he

seeks to “establish facts not apparent from the record” in this case. REQUEST ¶ 7.

Scarbrough urges this Court to consider facts outside the record for two reasons: (1)

to contravene the Pursers’ alleged claim they were harmed by Scarbrough’s violation

of the Confidentiality Order; and (2) to assess the Pursers’ credibility. Scarbrough’s

reasons for considering this non-evidence fail as a matter of law.

APPLICABLE LAW

This Court has recognized that a court may not take judicial notice of the truth

of allegations in the court’s records. Tschirhart v. Tschirhart, 876 S.W.2d 507, 508

(Tex.App.)Austin 1994, no writ) (court’s emphasis). Yet, that is precisely what

Scarbrough asks this Court to do. Under Tschirhart, the Court should reject out of

-3- hand Scarbrough’s attempt to consider materials outside the record to assess the

Pursers’ credibility.

Further, as the Pursers explained in their brief, there is no authority — and

Scarbrough cites none — for the proposition that a party moving for sanctions must

show harm or injury before the court may impose sanctions. APPELLEES’ BRIEF at p.

99. The Court should therefore deny Scarbrough’s improper attempt to have the

Court consider materials outside the record which are not “facts,” and which are not

relevant to the issue of whether the trial court abused its discretion in concluding that

Scarbrough’s conduct was sanctionable.

Scarbrough also ignores the rule that appellate courts generally take judicial

notice of facts outside the record only to determine jurisdiction or to resolve matters

ancillary to decisions which are mandated by law (e.g., calculation of prejudgment

interest when the court renders judgment). SEI Bus. Sys., Inc. v. Bank One Texas,

N.A., 803 S.W.2d 838, 841 (Tex.App.)Dallas 1991, no writ); see Freedom

Communications, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex.2012) (court

determined it was appropriate to take judicial notice of facts in a plea agreement

because they were relevant to determination whether trial court had jurisdiction);

TEX.GOV’T. CODE ANN. § 22.220(c) (Vernon 1988) (Each court of appeals may, on

-4- affidavit or otherwise, as the court may determine, ascertain the matters of fact that

are necessary to the proper exercise of its jurisdiction).

As the Texas Supreme Court has explained, an appellate court is reluctant to

take judicial notice of matters when a trial court was not requested to do so and was

not given an opportunity to take such matters into consideration. Sparkman v.

Maxwell, 519 S.W.2d 852, 855 (Tex. 1975). The Court of Appeals is not a trier of

fact. SEI Bus. Sys., 803 S.W.2d at 841.

“For [an appellate court] to consider evidence for the first time, never presented

to the trial court, would effectively convert [the appellate] Court into a court of

original, not appellate jurisdiction.” Deerfield Land Joint Venture v. Southern Union

Realty Co., 758 S.W.2d 608, 610 (Tex.App.)Dallas 1988, writ denied). Moreover,

appellate courts are reluctant to take judicial notice of matters that go to the merits of

a dispute. Taylor v. Margo, No. 08-14-00066-CV, 2015 WL 5449806, at *7, ___

S.W.3d ___, ___ (Tex. App. )El Paso Sept. 16, 2015, no pet. h.).

None of the cases Scarbrough cites as examples of judicial notice of verifiable

facts apply in this case. The Court should reject Scarbrough’s improper attempt to

expand the limited instances in which judicial notice may be taken and should deny

Scarbrough’s motion. However, if the Court determines it should take judicial notice

of the matters Scarbrough plucked from the record in the bankruptcy proceeding, then

-5- the Pursers respectfully request that the Court consider the entire written closing

argument — not just the portion selected by Appellant — as that compelled the

bankruptcy court to find, among other things, that:

1. Scarbrough committed a willful and malicious act when he disseminated

the false and outrageous allegations that the Purser Family abused and

murdered their father;

2. Scarbrough acted in other ways that reinforce the conclusion that he

intended to harm the Purser Family;

3. Scarbrough used harassing and contumacious methods in an attempt to

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