Spy, Inc., Deno Spyropoulos, and Gina Spyropoulos v. SC Legacy Independence, LTD., and Weitzman Management Corp. ( 2015 )

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