Spy, Inc., Deno Spyropoulos, and Gina Spyropoulos v. SC Legacy Independence, LTD., and Weitzman Management Corp.

• Court: Court of Appeals of Texas
• Decided: September 2, 2015
• Docket: 05-15-00763-CV
• Status: Published

Opinion

Order entered August 28, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00763-CV

SPY, INC., DENO SPYROPOULOS, AND GINA SPYROPOULOS, Appellants

V.

SC LEGACY INDEPENDENCE, LTD. AND WEITZMAN MANAGEMENT CORP., Appellees

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-05080-2013

ORDER The underlying suit in this appeal stems from disputes over a temporary injunction and

settlement agreement in a separate suit involving appellants, appellees, and a third party.

Arguing certain documents from the separate suit are relevant to the merits of this appeal and

will “substantially affect” their brief, appellants have filed a motion to take judicial notice of

those pleadings and a motion to extend time to file the brief.

Under Texas Rule of Evidence 201, a court must take judicial notice of adjudicative facts,

including another court’s records, if requested by a party and supplied with the necessary

information. See TEX. R. EVID. 201(c),(d); Freedom Commc’n, Inc. v. Coronado, 372 S.W.3d

621, 623 (Tex. 2012) (per curiam). However, an appellate court generally takes judicial notice of facts outside the record only to determine jurisdiction or resolve matters ancillary to decisions

mandated by law. See SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex.

App.—Dallas 1991, no writ). An appellate court cannot take judicial notice of records not

properly admitted into evidence before the trial court. See Elwell v. State, 872 S.W.2d 797, 799

(Tex. App.—Dallas 1994, no pet.); see also SEI Bus. Sys., 803 S.W.2d at 841 (Tex. App.—

Dallas 1991, no writ) (“appellate courts are reluctant to take judicial notice of matters which go

to the merits of a dispute.”).

Appellants seek to have ten documents judicially noticed. Of these ten, the record

reflects only three were before the trial court. Those three are the June 12, 2012 temporary

injunction order, the August 22, 2012 temporary injunction order, and the November 14, 2014

order granting defendants’ traditional and no evidence motion for partial summary judgment.

Because those three orders are included in the clerk’s record and nothing in the record reflects

the other documents were before the trial court, we DENY appellants’ motion to take judicial

notice. See Elwell, 872 S.W.2d at 799. We GRANT the extension motion to the extent we

ORDER appellants to file their brief no later than September 14, 2015.

/s/ CRAIG STODDART JUSTICE