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 ( 2015 )

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,
V.
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.
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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
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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
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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
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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
recover damages or coerce a nuisance settlement of claims made in bad
faith; and
4. Throughout the Bell County litigation, Scarbrough filed frivolous
motions and pleadings, and attempted to use extra-judicial tactics to gain
advantage.
In re Scarbrough, 516 B.R. 897, 910, 911, 913, 918 (Bankr. W.D. Tex. 2014).
PRAYER
For the reasons stated, appellees requests that this Court deny Appellant’s
Request to Take Judicial Notice of Facts. Alternatively, if the Court grants the
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request, then appellees request that the Court take judicial notice of the entire written
Closing Argument of the Purser Family, not just the portion attached by Appellant.
Respectfully submitted,
DARYL L. MOORE, P.C.
BY: /s/ Daryl L. Moore
Daryl L. Moore (Lead Counsel)
State Bar No. 14324720
1005 Heights Boulevard
Houston, Texas 77008
Telephone: 713/529-0048
Facsimile: 713/529-2498
Email: daryl@heightslaw.com
Counsel for appellees
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this motion, excluding
the contents listed in TRAP Rule 9.4(i), is 1,091.
This motion complies with the typeface requirements of TRAP Rule 9.4(e)
because it uses a conventional typeface no smaller than 14-point (WordPerfect X6 14-
point Times New Roman).
/s/ Daryl L. Moore
Daryl L. Moore
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CERTIFICATE OF SERVICE
On October 13, 2015, I sent a true and correct copy of this response via E-
service to the following:
Michele Barber Chimene
THE CHIMENE LAW FIRM
15203 Newfield Bridge Ln.
Sugar Land, Texas 77498
michelec@airmail.net
Jerry W. Scarbrough
JERRY SCARBROUGH, P.C.
P. O. Box 690866
Killeen, Texas 76549
Attorneys for appellants,
Jerry Scarbrough, Melissa Deaton,
and Denise Steele
/s/ Daryl L. Moore
Daryl L. Moore
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