Case: 11-51108        Document: 00511910461              Page: 1       Date Filed: 07/05/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                                        FILED
                                                                                        July 5, 2012

                                          No. 11-51108                                 Lyle W. Cayce
                                        Summary Calendar                                    Clerk



In the Matter of: SI RESTRUCTURING INCORPORATED,


                                                          Debtor

------------------------------------------------------------------------------------

JOHN C. WOOLEY; JEFFREY J. WOOLEY,


                                                          Appellants

v.

HAYNES & BOONE, L.L.P.; SAM COATES; PIKE POWERS; JOHN SHARP;
SARAH WEDDINGTON; GARY CADENHEAD,


                                                          Appellees




                      Appeal from the United States District Court
                           for the Western District of Texas
                                    No: 5:10-CV-458


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
   Case: 11-51108       Document: 00511910461         Page: 2     Date Filed: 07/05/2012



                                       No. 11-51108

PER CURIAM:*
       During a bankruptcy proceeding, Appellants John C. Wooley and Jeffrey
J. Wooley sought judicial notice of the content of filings from a prior but related
bankruptcy proceeding. The bankruptcy court granted motions to strike the
documents when they were designated as part of the record in an earlier appeal
in this case. Because it would have been improper to take judicial notice of the
contents of filings from another case and the bankruptcy court and district court
did not err, we AFFIRM the ruling of the district court.
                                     BACKGROUND
       The Wooleys are former officers and directors of Schlotsky’s Inc. which
filed for Chapter 11 bankruptcy in August 2004. In December 2008, the Wooleys
filed a motion seeking permission from the bankruptcy court to pursue claims
against Haynes and Boone and former outside directors on behalf of the
bankruptcy estate which was denied. At a hearing on the Wooleys’ Section 7.7
motion, the Wooleys’ attorney requested that the bankruptcy court take judicial
notice of evidence their expert relied upon which was previously admitted in a
different adversarial proceeding. The bankruptcy court declined to take notice
stating: “I have a problem with using judicial notices as substitute for the
introduction of materials that might otherwise be subject to legitimate evidence
objections.” The Wooleys appealed and designated these documents as part of
the record even though the documents were never properly admitted to this
proceeding. The appellees filed motions to strike those portions of the appellate
record which were not admitted at the hearing. The motions to strike were
granted on January 21, 2010, striking nine documents from the record on
appeal. The Wooleys appealed and the district court affirmed noting that the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                   No. 11-51108

Wooleys waived this argument due to deficient briefing and, in the alternative,
that the bankruptcy court did not err in striking the disputed evidence. The
Wooleys timely appealed.
                            STANDARD OF REVIEW
      “We review actions taken by the district court in its appellate role for an
abuse of discretion.” Zer-Ilan v. Frankford (In re CPDC Inc.), 

, 698
(5th Cir. 2000). And we “review a district court’s admission or exclusion of
evidence for abuse of discretion.” United States v. Wilson, 

, 359 (5th
Cir. 2003).
                                  DISCUSSION
      The Wooleys claim that judicial notice was proper because the information
“was testimony and evidence in the same court, in a related proceeding, over
which the same judge presided.” They allege that introducing this testimony
and evidence would have been redundant. The appellees claim the bankruptcy
and district courts did not err because the information was never admitted into
evidence and therefore judicial notice of its contents would be improper.
      Federal Rule of Bankruptcy Procedure 8006, like Federal Rule of Appellate
Procedure 10, requires the appellant to file items to constitute the appellate
record. Federal Rule of Appellate Procedure 10 limits the record on appeal to:
“(1) the original papers and exhibits filed in the district court; (2) the transcript
of proceedings, if any; and (3) a certified copy of the docket entries prepared by
the district clerk.” FED. R. APP. P. 10(a).
      Rule 8006 provides that the record on appeal from a bankruptcy
      court decision consists of designated materials that became part of
      the bankruptcy court’s record in the first instance. The rule does not
      permit items to be added to the record on appeal to the district court
      if they were not part of the record before the bankruptcy court.
Zer-Ilan v. Frankford (In re CPDC, Inc.), 

, 443 (5th Cir. 2003). We
must make two determinations: (1) whether the information was part of the


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                                  No. 11-51108

record before the bankruptcy court, 

the information meets
the narrow purpose of judicial notice. See Taylor v. Charter Med. Corp., 

, 830-31 (5th Cir. 1998).
      As the district court noted, the disputed evidence was not admitted as
evidence before the bankruptcy court when it ruled on the Section 7.7 motion.
Further, the Wooleys sought judicial notice of the contents of the disputed
evidence. The Wooleys cite no caselaw, and we have found none, which supports
a court judicially noting the contents of materials not properly admitted.
Instead, this court has noted that while “a court may take judicial notice of a
‘document filed in another court . . . to establish the fact of such litigation and
related filings,’ a court cannot take judicial notice of the factual findings of
another court.” 

Lib. Mut. Ins. Co. v. Rotches Pork Packers,
Inc., 

, 1388 (2d Cir. 1992)). We see no reason to require a court to
take judicial notice of the contents of evidence not properly introduced in the
bankruptcy proceeding and conclude that the district court did not abuse its
discretion in affirming the bankruptcy court’s grant of the appellees’ motion to
strike.
      For the foregoing reasons, we AFFIRM the ruling of the district court.




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