Opinion
No. 05-17-00728-CV
07-05-2018
BRIAN E. VODICKA, Appellant v. A.H. BELO CORPORATION AND ERIC VAUGHN MOYÉ, INDIVIDUALLY, Appellees
On Appeal from the 116th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-16-12693
ORDER
Before the Court are appellant's unopposed motions for judicial notice filed on March 30, 2018, and April 3, 2018. Appellant requests that this Court take judicial notice of more than one hundred documents filed in numerous other venues and proceedings around the State. "An appellate court is limited to the record that is before it on appeal and generally may take judicial notice only of (1) facts that could have been properly judicially noticed by the trial judge or (2) facts that are necessary to determine whether the appellate court has jurisdiction of the appeal." Tafel v. State, 536 S.W.3d 517, 523 (Tex. 2017).
Appellant relies on this Court's opinion in Brown v. Brown, 145 S.W.3d 745, 750 (Tex. App.—Dallas 2004, pet. denied), and cases cited in Brown for the proposition that "judicial notice is proper pursuant to TEX. R. EVID. 201(d)." But in Brown, we declined to take judicial notice of documents from the appellant's divorce case because appellant did not timely present the records to the trial court. See Brown, 145 S.W.3d at 750-51. "'[A]n appellate court is naturally reluctant to take judicial notice of matters . . . when the trial court was not requested to do so.'" Tafel, 536 S.W.3d at 523 (quoting In re J.L., 163 S.W.3d 79, 84 (Tex. 2005)).
"[A]ppellate courts are reluctant to take judicial notice of matters which go to the merits of a dispute," because they are not triers of fact. SEI Bus. Sys., Inc. v. Bank One Texas, N.A., 803 S.W.2d 838, 840 (Tex. App.—Dallas 1991, no writ). "As a general rule, appellate courts take judicial notice of facts outside the record only to determine jurisdiction over an appeal or to resolve matters ancillary to decisions with are mandated by law (e.g., calculation of prejudgment interest when the court renders judgment)." Id. As we explained in Hood v. Wal-Mart Stores, Inc., No. 05-05-01049-CV, 2008 WL 256763, at *1 n.1 (Tex. App.—Dallas 2005, pet. denied) (mem. op.), to go further than these two situations "runs the risk of effectively rendering this Court into one of original, not appellate, jurisdiction." Because "[t]he proffered materials do not affect our jurisdiction over this appeal or resolve a matter ancillary to a decision mandated by law," id., and because the materials were not presented to the trial court, we will not consider them on appeal. See Tafel, 536 S.W.3d at 523.
Accordingly, we DENY appellant's motions.
/s/ ELIZABETH LANG-MIERS
JUSTICE