IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51108

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

July 5, 2012

Lyle W. Cayce

Clerk

Case: 11-51108 Document: 00511910461 Page: 1 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.

2

Case: 11-51108 Document: 00511910461 Page: 2 Date Filed: 07/05/2012
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.), 221 F.3d 693, 698

(5th Cir. 2000). And we “review a district court’s admission or exclusion of

evidence for abuse of discretion.” United States v. Wilson, 322 F.3d 353, 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, likeFederal 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.), 337 F.3d 436, 443 (5th Cir. 2003). We

must make two determinations: (1) whether the information was part of the

3

Case: 11-51108 Document: 00511910461 Page: 3 Date Filed: 07/05/2012
No. 11-51108

record before the bankruptcy court, Id., and (2) whether the information meets

the narrow purpose of judicial notice. See Taylor v. Charter Med. Corp., 162 F.3d

827, 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.” Id. at 830 (quoting Lib. Mut. Ins. Co. v. Rotches Pork Packers,

Inc., 969 F.2d 1384, 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. 

4

Case: 11-51108 Document: 00511910461 Page: 4 Date Filed: 07/05/2012