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
7301173
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/8/2015 8:32:55 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00025-CV
]n tbe mbtrll QCourt of §ppeals
~ustin, m:exas
FILED IN
3rd COURT OF APPEALS
Jerry Scarbrough, et al AUSTIN, TEXAS
Appellant 10/8/2015 8:32:55 PM
JEFFREY D. KYLE
Clerk
v.
Helen Purser, et al.
Appellee
On Appeal from the 146th Judicial District Court of
Bell County, Cause No. 236,117-B
APPELLANT'S REQUEST TO TAKE JUDICIAL NOTICE OF
FACTS
Jerry W. Scarbrough Michele Barber Chimene
P. 0. Box 690866 THE CHIMENE LAW FIRM
Killeen, TX. 76549 TBN 04207500
PH: (254) 634-6266 2827 Linkwood Dr.
FAX: (254) 634-0516 Houston, TX 77025
'ws@j er y scarbrough.net PH: (832) 940-1471
No fax available
michelec@airmail.net
1
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, JERRY SCARBROUGH, and files this, his request to
Take Judicial Notice of Facts.
INTRODUCTION
1. Appellant is Jerry Scarbrough.
2. Appellees are Helen Purser, Gary W. Purser, Jr., Joann Purser, Sue E.
Purser a/ka/ Sue E. Van Zanten, and Elizabeth H. Tipton.
3. This appeal stems from a Bell County District Court case wherein the
Appellant was sued in a cross-claim lawsuit.
4. Appellant asks the Court to take judicial notice of "Plaintiffs Closing
Arguments" filed July 25, 2014, by Elizabeth Tipton, before the Bankruptcy Court
for the Western District of Texas, Waco Division in case Number 12-60683-RBK,
Adversary No. 12-6031-RBK, where she admitted that the confidentiality of Gary
Purser's medical records was waived after he died; Helen Purser's Original
Petition for Divorce, filed May 18, 2010, cause no. 243,320-C, in the 169th Judicial
District Court, Bell County, and the Agreed Temporary Orders, filed June 25, 2010
FACTS
5. In Plaintiffs Closing Arguments, page 8, Elizabeth Tipton wrote,
"Rather, limited records were properly disclosed in the context of expert
designations, and, after the death of Gary Purser, Sr., the Purser Family eventually
2
waived the confidential nature of the documents in order to introduce them into
evidence during trial." These facts directly contravene Appellee's claim that
Appellant's disclosure of Gary Purser, Sr.'s medical records was harmful or a
violation of the trial court's order on confidentiality. It also belies the fact that they
claimed Appellant should be ordered to pay them $54,000 sanctions for divulging
them after they had expressly waived their confidentiality.
6. During trial Appellees claimed that Helen Purser and her husband,
Gary Purser, Sr. had a close, harmonious marriage; however, the facts are that she
had filed a divorce action against him in May 2010, where she contended her
husband "is suffering from dementia, Alzheimer's and various medical and
emotional disorders." and, "has physically harmed Petitioner and family members
as a result of his disorders." She requested the court to conduct an emergency
hearing to expedite issuance of a protective order, and the court entered the Agreed
Orders, wherein it ordered and enjoined them from, [16.] "Changing or in any
manner altering the beneficiary on any Will, Trust, Testamentary instrument, or
life insurance on the life of Petitioner or Respondent." She also requested that she
should be awarded a disproportionate share of the parties' estate due to his mental
and emotional disorder.
7. Appellant Jerry Scarbrough attaches his affidavit in support of this
request to establish facts not apparent from the record, and incorporates true copies
3
of page 8, Plaintiffs Closing Arguments; Helen Purser's Original Petition for
Divorce; and, the Agreed Temporary Orders filed therein for all purposes, as
Exhibit "A".
ARGUMENT & AUTHORITIES
8. Under Texas Rule of Evidence 201 (b), the court may take judicial
notice of facts that are not subject to reasonable dispute if the facts are either (1)
generally known within the territorial jurisdiction of the trial court (notorious fact);
or (2) capable of accurate and ready determination by resorting to sources whose
accuracy may not reasonably be questioned (verifiable fact). Office of Pub. Uti!.
Counsel v. Public Uti!. Comm 'n, 878 S.W.2d 598, 600 (Tex. 1994).
9. The fact Appellant asks the court to judicially notice is a verifiable
fact. Tex. R. Evid. 201 (b )(2); Herasimchuk, Texas Rules of Evidence Handbook,
pp. 13 0-31 (3d ed. 1998); see, e.g., Office of Pub. Uti!. Counsel v. Public Uti!.
Comm 'n, 878 S.W.2d 598, 600 (Tex. 1994) (contents of published PUC order);
Graffv. Whittle, 947 S.W.2d 629, 635 (Tex. App.-Texarkana 1997, writ denied)
(population of Red River County was less than 50,000); Drake v. Holstead, 757
S.W.2d 909, 911 (Tex. App.-Beaumont 1988, no writ) (once supplied with
computation, court should have taken judicial notice of the distance a car would
travel at a given speed); J Weingarten, Inc. v. Tripplett, 530 S.W.2d 653, 656
(Tex. App.-Beaumont 1975, writ refd n.r.e.) (court may consult weather bureau
4
records to judicially notice a weather report for a particular day). Thus, this court
should take judicial notice of "Plaintiffs Closing Argument" where Elizabeth
Tipton wrote, ", after the death of Gary Purser, Sr., the Purser Family eventually
waived the confidential nature of the documents in order to introduce them into
evidence during trial."
10. The court must take judicial notice of a fact if a party makes a proper
request and supplies the court with the necessary information. See Tran v.
Fiorenza, 934 S.W.2d 740, 742 (Tex. App.-Houston [1st Dist.] 1996, no writ);
Fred S. James & Co. v. West Tex. Compresses, Inc., 741 S.W.2d 571, 573 (Tex.
App.-Eastland 1987, no writ).
11. Under Rule 201(±), Judicial notice may be taken at any stage of the
proceeding.
5
PRAYER
WHEREFORE, PREMISES CONSIDERED, Jerry Scarbrough,
Appellant, asks the court to take judicial notice of the requested facts.
Respectfully submitted,
/s/ Jerry Scarbrough /s/ MB CHIMENE
Jerry W. Scarbrough Michele Barber Chimene
P. 0. Box 690866 THE CHIMENE LAW FIRM
Killeen, TX. 76549 TBN 04207500
PH: (254) 634-6266 2827 Linkwood Dr.
FAX: (254) 634-0516 Houston, TX 77025
jws@j erryscarbrough.net PH: (832) 940-1471
No fax available
michelec@ainnail.net
CERTIFICATE OF CONFERENCE
The undersigned attempted to contact Daryl Moore, Counsel for the Pursers,
but it was late in the day and she was unable to reach him. She would have waited
until the following day for filing, but she will be out of town on Friday, 10/09 for her
birthday and needed to file this before she left town. Counsel apologizes to the
court, as she believes that she could have reached an agreement if she had planned
better. She had very little notice of the motion herself. /s/ MB CHIMENE
6
CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of October 2015 a true and correct copy
of the Appellant’s Request to Take Judicial Notice was served, as indicated below,
on counsel for Appellees Daryl Moore via ECF at daryl@heightslaw.com and via
email on all three of Appellees’ counsel, Mr. Moore, Elizabeth Tipton, Ms. Storey,
and Jack Crews on the same date.
/s/ Michele Barber Chimene
Michele Chimene
7
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief was produced in proportional type,
14 pt. Times New Roman font, and it does not exceed the page limits for a Request
to Take Judicial Notice.
/s/ Michele Barber Chimene
Michele Chimene
8
EXHIBIT "A"
STATE OF TEXAS §
COUNTY OF BELL §
AFFIDAVIT OF APPELLANT JERRY SCARBROUGH
Before me, the undersigned notary, on this day, personally appeared Jerry
Scarbrough, a person whose identity is known to me. After I administered an oath
to him, upon his oath, he said:
"My name is Jerry Scarbrough. I am capable of making this affidavit. The
facts stated in this affidavit are within my personal knowledge and are true and
correct.
The cover page, and page 8, of Plaintiffs Closing Arguments, in United
States Bankruptcy Court, Western District of Texas, Waco, Division, filed by the
Appellees July 25, 2014; Helen Purser's Original Petition for Divorce, and Agreed
Temporary Orders, filed in the 169th Judicial Court in Bell County Texas, are true
copies of the originals, and are attached to this affidavit for all purposes."
SWORN TO AND SUBSCRIBED before me on the ~aay of
ft~
< server
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------- ---------- -------~
r 18
I
I PROMISSORY NOTE
$10,000.00 Date: 7/13/2010
For value received, the undersigned Gary Purser (the "Borrower"), at - - - - -- - -
Killeen, Texas 76543, promises to pay to the order of Carothers Homes, LLC, (the "Lender"), at
PO Box 3087, Harker Heights, Texas 76548, (or at such other place as the Lender may designate
in writing) the sum of $10,000.00 with no interest.
The unpaid principal shall be payable in full on - - - - - - - - (the "Due Date").
All payments on this Note shall be applied first in payment of accrued interest and any remainder in
payment of principal.
If any payment obligation under this Note is not paid when due, the remaining unpaid principal
balance and any accrued interest shall become due immediately at the option of the Lender.
The Borrower reserves the right to prepay this Note (in whole or in part) prior to the Due Date
with no prepayment penalty.
If any payment obligation Wlder this Note is not paid when due, the Borrower promises to pay all
costs of collection, including reasonable attorney fees, whether or not a lawsuit is commenced as
part of the collection process.
If any of the following events of default occur, this Note and any other obl lgations of tht! Borrower
to the Lender, shall become due immediately, without demand or notice:
l) the failure of the Borrower to pay the principal and any accrued interest in full on or before
the Due Date;
2) the death of the Borrower or Lender;
3) the filing of bankruptcy proceedings involving the B01mwer as a debtor;
4) the application for the appointment of a receiver for the Borrower;
5) the making of a general assignment for the benefit of the Borrower's creditors;
6) the insolvency of the Borrower;
7) a misrepresentation by the Borrower to the Lender for the purpose of obtaining or
extending credit.
EXHIBIT
©This i~> a RocketLawyer com Legal Document©
19
If any one or more of the provisions of this Note are detennined to be unenforceable, in whole or
in part, for any reason, the remaining provisions shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the legal currency of the United
States. The Borrower waives presennnent for payment, protest, and notice of protest and
nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the Lender under this Note,
or assignment by Lender of this Note shall affect the liability or the obligations of the Borrower. All
rights of the Lender under this Note are cumulative and may be exercised concurrently or
consecutively at the Lender's option.
This Note shall be construed in accordance with the laws of the State of Texas.
Signed this _ _ day of _ __ _ _ __, ___ , at - - - - - -- - -- - -
Borrower:
Gary Purser
By:
Gary~---------------------------------
Purser
©This is a Rot:;kelLawyer com Lege! Documen t iCi
---- - - - -- - -- - - - - - - - - - - - - - - - - - - - - - - - - 20
r Electronic Filing Manager Page I of2
Bell District
ELECTRONIC FILING MANAGER
Court Information
Clerk: Hoelacher, Lacey
Attorney & Filer Information
Attorney Name: Ray , JeH
Attorney Email: jray@rvm~irm .com
Bar Number: 16604400
Law Firm: Ray, Valdez, McChristian & Jeans, LLP-EI Paso
Address: 5822 Cromo Drive
City/State/Zip: El Paso, TX 79912
Phone Number: 915-832-7200
Fax Number: 915-832-7333
Filer Name: Lamas, Julie
Filer 10: jlamas
Filer Email: jlamas@ rvmjfirm .com
Filer Type: Attorney's Assistant
Filing Type and Fee Changes Allowed? Yes
Filing Information
Filing Status: Acknowledgement- Open
Filer Submiss!on DatefTime Wednesday, July 14, 2010 8:23 PM
Trace Number: ED014J015866211
Court Assignment: 264th District Court
Hearing Date:
Court Type: District
Case/Cause Number: 243,32D-C
Style/Case Name: In the Matter of the Marriage of: J. Helen Purser
and Gary W. Purser, Sr. and J. Helen Purser,
Plaintiff v. Gary W. Purser, Sr., Melissa V.
Deaton and Mary Denise Bohannon Steele,
Defendants.
Filing Type: Motion for Contempt - Family
Sealed Document: No
Special Instructions:
Comments to the Filer:
Additional Comments:
https://efileclcrk.texasonline.state. tx.us/Clerkllnboxllnbox -PrinterFriendlyFiling.aspx ?id=5... 7/15/2010
Page 2 of 2 21
Electronic Filing Manager
f Filing Parties & Attorney of Record
Name Roles
Lamas, Julie Filer
Ray, Jeff Filing Attorney - Attorney of Record - Plaintiff Counsel
Petitioner Attorneys
Nil me Roles
Schwartz, Larry Plaintiff Counsel
Roark, John Plaintiff Counsel
Ray, J&ff Filing Attorney - Attorney of Record - Plaintiff Counsel
Defense Attorneys
Nil me Roles
Redington, John Defense Counsel
Young, Baroara Defense Counsel
I
Other Parties
Payment Information
Payment Method: Credit Card- MasterCard, Account 1 ..,...........5195
Filing Fees
Bell District eFiling Fee $2.00
Motion for Contempt- Family $30.00
Filing Fee Total: $32.00
Grand Total: $32.00
Document Information
Number of Documents
Filing Document
File Name: Motion for Contempt.pdf
Document Description:
https:l/efileclerk.texasonline. state.tx. us/Clerk/Inboxllnbox-PrinterFriendlyFiling.aspx ?id=5... 7/15/2010