Stephen Fox v. Mirna Azucena Alberto ( 2015 )

Order filed February 3, 2015.
In The
Fourteenth Court of Appeals
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NO. 14-13-00007-CV
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STEPHEN D. FOX, Appellant
V.
MIRNA A. ALBERTO, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2009-54595
ORDER
This court issued an opinion and judgment on December 11, 2014.
Appellant Stephen D. Fox has filed three motions, with the following titles:
“Appellant’s Rule 49.1 Motion for Rehearing,” “Appellant’s Motion to Abate
Appeal,” and “Appellant’s Motion to Take Judicial Notice.” Other than the titles
and prayers, the text of these three motions is virtually identical.
This court gives effect to the substance, rather than the form or title, of Fox’s
motions. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980). Part
of each motion is a motion under Texas Rule of Evidence 201 for this court to take
judicial notice of the contents of its files in two cases: (1) In re Fox, No. 14-12-
00439-CV, and (2) Fox v. Alberto, No. 14-12-00439-CV (hereinafter collectively
the “Other Cases”).
An appellate court has the power to take judicial notice for the first time on
appeal. See MCI Sales & Service, Inc. v. Hinton, 329 S.W.3d 475, 484 n.7 (Tex.
2010). To be the proper subject of judicial notice, an adjudicative fact must be
either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned. See Tex. R. Evid. 201(b); MCI Sales & Service,
Inc., 329 S.W.3d at 484 n.7. Judicial notice is mandatory if requested by a party
and if the court is supplied with the necessary information. See Tex. R. Evid.
201(d); MCI Sales & Service, Inc., 329 S.W.3d at 484 n.7.
This court may take judicial notice of the existence of the documents filed
with this court in the Other Cases and the times at which those documents were
filed with this court. Though these facts are capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned, these facts are not relevant to the resolution of this appeal.
Nonetheless, appellate courts faced with this situation have taken judicial notice of
the facts and then concluded that the facts are not relevant to the resolution of the
appeal. See MCI Sales & Service, Inc., 329 S.W.3d at 484 n.7.; Oistad v. Baker &
Hostetler, L.L.P., No. 01-05-00493-CV, 2006 WL 488594, at *6, n.7 (Tex. App.—
Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.). Accordingly, to the extent
Fox moves this court to take judicial notice in each of his motions as to the
existence of the documents filed with this court in the Other Cases and the times at
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which those documents were filed with this court, we grant this relief and conclude
that those facts are not relevant to the analysis and disposition of this appeal. See
MCI Sales & Service, Inc., 329 S.W.3d at 484 n.7.; Oistad, 2006 WL 488594, at
*6, n.7. To the extent Fox moves this court to take judicial notice as to the truth of
the statements contained in these documents or the authenticity or accuracy of
these documents, Fox has not shown that these facts are either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned. See Guyton v. Monteau, 332 S.W.3d 687, 692–93 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). Accordingly, we deny any other request for
judicial notice in Fox’s motions.
In part of each motion, Fox asserts that this court should abate this appeal
and order Judge Underwood to conduct another recusal hearing. Because this
relief is inconsistent with this court’s prior opinion and judgment, the substance of
these parts of the motions is a motion for rehearing. In the remaining portions of
each motion, the substance of the relief sought also is a motion for rehearing.
Concluding that Fox is not entitled to rehearing and that this court should not
modify, vacate, or withdraw its opinion or judgment of December 11, 2014, we
deny the remainder of the relief sought in Fox’s motions.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
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