                                                                                  ACCEPTED
                                                                              01-14-00629-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        4/20/2015 11:29:16 AM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                         NO. 01-14-00629-CV

                IN THE FIRST COURT OF APPEALS            FILED IN
                                                  1st COURT OF APPEALS
                        HOUSTON, TEXAS                HOUSTON, TEXAS
__________________________________________________________________
                                                  4/20/2015 11:29:16 AM
                                                      CHRISTOPHER A. PRINE
                    ELIZABETH M. TRAMMELL,                   Clerk
                            Appellant

                                  v.

                  FLETCHER V. TRAMMELL, SR.
                             Appellee
__________________________________________________________________

              APPELLEE’S OBJECTION TO SPECIFIC
          MATTERS WITHIN APPELLANT’S REPLY BRIEF
__________________________________________________________________

                  On Appeal from Cause No. 2010-72050
        In the Interest of J.E.T., F.V.T. and A.G.T., Minor Children
                         308th Family District Court
                               Houston, Texas
 _______________________________________________________________

                                       SALLEE S. SMYTH
                                       Attorney at Law
                                       SBT# 18779400
                                       800 Jackson Street
                                       Richmond, Texas 77469
                                       (281) 238-6200
                                       (281) 238-6202 (Fax)
                                       smyth.sallee@gmail.com

                       Attorney for Appellee
                   FLETCHER V. TRAMMELL, SR.




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           APPELLEE’S OBJECTION TO SPECIFIC MATTERS
                WITHIN APPELLANT’S REPLY BRIEF

      Appellee, FLETCHER V. TRAMMELL, SR., (hereinafter referred to as

“Fletcher”) formally objects to specified matters within the Reply Brief as filed by

Appellant, ELIZABETH M. TRAMMELL (hereinafter referred to as “Elizabeth”).

      Fletcher respects the Texas Rules of Appellate Procedure and recognizes that

they do not permit him to offer any additional response to the substantive legal

arguments raised within Elizabeth’s Reply Brief as she carries the burden in this

appeal and thus garners the last word.

      Nevertheless, Fletcher feels compelled to object to certain arguments within

Elizabeth’s Reply Brief because they directly misrepresent the underlying appellate

record or include arguments based on matters wholly outside the appellate record,

blatantly disregarding the rules which govern the scope of this court’s review.

      Fletcher seeks to preserve these objections for appellate purposes.

      All references to the record will use the same abbreviations previously

adopted in Appellee’s Response Brief.

      A. Ethical Obligations in Briefing and Scope of appellate court review,
         generally.

      Under the rules of appellate procedure a party’s argument within briefing

must contain clear and concise argument for the contentions made, with

appropriate citations to the record. Tex. R. App. P. Rule 38.1(i). The rule implies


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that when a party makes a particular contention and relies upon facts developed at

trial to support or analyze it, that party must offer the court guidance on where to

locate the relevant evidence in the record. Further, while it must be recognized

that often times the underlying evidence will be disputed, in a situation where it is

not, a party cannot simply create new or speculative facts to support their

arguments when those claims either find no support in the existing record or may,

in fact, totally misrepresent the evidence actually admitted at trial.

      The Corpus Christi court of appeals has summarized the significance of

accurate, professional and ethical briefing, stating:

      Attorneys owe to the courts duties of scrupulous honesty,
      forthrightness, and the highest degree of ethical conduct. Inherent in
      this high standard of conduct is compliance with both the spirit and
      express terms of the rules of conduct. The Texas Disciplinary Rules
      of Professional Conduct prohibit a lawyer from knowingly making a
      false statement of material fact to a tribunal. Tex.-Ohio Gas, Inc. v.
      Mecom, 28 S.W.3d 129, 145 (Tex. App. – Texarkana 2000, no pet.)
      [citing Tex. Disciplinary R. Prof’. Conduct 3.03(a)(1).] We also find
      guidance in the Standards for Appellate Conduct promulgated by the
      Texas Supreme Court. … Those standards set out that “counsel should
      not misrepresent, mischaracterize, misquote, or miscite the factual
      record or legal authorities.”

In re A.M.B.V., 2015 Tex. App. LEXIS 59, 30 (Tex. App. – Corpus Christi January

8, 2015, no pet.)(mem. opinion).

      Further, appellate review is confined to a proper appellate record. Melendez

v. Exxon Corp., 998 S.W.2d 266, 280 (Tex. App. – Houston [14th Dist.] 1999, no

pet.). It is improper for parties to rely on matters outside the record in making
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arguments to the court. Id. Likewise, documents attached to an appellate brief that

do not appear in the record may not be considered by the court. Till v. Thomas, 10

S.W.3d 730, 733 (Tex. App. – Houston [1st Dist.] 1999, no pet.); San Jacinto

Methodist Hosp. v. Bennett, 256 S.W.3d 806, 815 (Tex. App. – Houston [14th

Dist.] 2008, no pet.). Finally, the Standards for Appellate Conduct provide that

“[t]he court will take special care not to reward departures from the record.” Tex.

Supreme Court, Standards for Appellate Conduct, The Court’s Relationship with

Counsel, 2, available at www.texcourts.gov/rules-forms/rules-standards.aspx.

      B. Objection to Misrepresentation of Existing Appellate Record

      Within her Reply Brief, Elizabeth (through her counsel) makes the following

statements in response to Fletcher’s claim that Elizabeth does not financially

contribute to the support of the children independent of those amounts provided to

her by Fletcher:

      Moreover, in his brief, Fletcher disingenuously claims that Elizabeth
      should be required to obtain her own employment. Yet at the time of
      their divorce, he clearly intended for her to be a stay at home mom to
      take care of the children, and the parties structured the divorce decree
      to reflect that decision. Now he is criticizing her for his own breach of
      their contract. This is another example of the only consideration that
      must be taken into account is what is best for him.

(Reply Brief, pp. 8-9)

      The statement regarding Fletcher’s “intent” when structuring the parties’

initial child support agreement omits any reference to the appellate record. This is


                                         4
so because no such evidence appears in the record, and in fact, the statement

directly misrepresents the only trial testimony on the subject.

      During trial, Fletcher specifically testified that his agreement to pay above

guideline child support was made in hopes that it would ease the transition for

Elizabeth to move on, expressing the desired possibility that she would use her law

school education and degree which they had invested in during marriage to begin

practicing law. (RR 34, 103-104) Elizabeth’s claims to the contrary within her

brief “misrepresent, mischaracterize, misquote, or miscite” the appellate record

contrary to applicable rules and standards and as such, Fletcher objects.

      C. Objection to Reliance Upon Matters Outside the Appellate Record

      In a more blatant violation of the existing rules and standards, Elizabeth

attaches “Tab 1” to her Reply Brief, which she represents within her briefing to

be “pages from [Fletcher’s] website,” implying that Fletcher’s testimony at trial

admitted to this specific publication even though it was never offered or admitted

into evidence.    (See Elizabeth’s Reply Brief, p. 9 and Tab 1)         Specifically,

Elizabeth’s Reply Brief states:

      During his testimony, Fletcher admits that he publicizes on his firm's
      website for his professional corporation, Trammell, P.C., that he has
      won big verdicts. (RR 89.) The website states, in part, that "Fletch is
      one of the top trial lawyers in America. In the past five years he has
      won over $1.7 billion in trial judgments against major pharmaceutical
      manufacturers, on top of hundreds of millions more in pre-trial
      settlements. His $1.2 billion jury verdict against Johnson & Johnson
      in 2012 was the highest judgment of any kind in America that year."
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        See copies of pages from his website attached hereto as Tab 1 of the
        Appendix. Presumably, the snapshot of Fletcher's salary decline over
        the last two or three years took place while he was an employee at a
        prior law firm; at this point in time, it appears that Fletcher presently
        owns his own law firm, Trammell, P .C., and is one of the top trial
        lawyers in America.

(See Reply Brief, pp. 9-10) ((Emphasis added)

        At trial, Fletcher testified that he was employed by Bailey Peavy Bailey

(formerly Bailey Perrin Bailey) (RR 20), admitting that some of his significant

litigation victories were published on “my firm’s website.” (RR 89) The website

he was obviously referring to at trial was that of Bailey Peavy Baily where he was

then currently employed. (RR 89) Copies of the firm’s website publications were

not offered or admitted as evidence at trial. Nevertheless, Elizabeth now attaches

Tab 1 to her Reply Brief, characterizing it as pages from “the website” which

Fletcher’s trial testimony apparently referred to. (Emphasis added)

        Because an appellate court may not consider matters outside the appellate

record, it is understood that parties’ and/or their counsel should likewise not supply

this information to the court or rely upon it to support their appellate arguments.

Evidence in this matter concluded in June 2014 and Elizabeth and her counsel are

not permitted to simply supply new information to the appellate court when it suits

them.

        Further, despite “implying” that the Tab 1 document represents historical

data about which Fletcher allegedly testified at trial, a review of the footer on the
                                           6
Tab 1 document shows it was printed off a computer on April 10, 2015, ten months

after trial ended. (See Tab 1 document, Reply Brief, Adope page 23) The final

page of the Tab 1 document also indicates that it is from a website established in

2015, at least six months after trial concluded. (See Tab 1 document, Reply Brief,

Adobe page 25)

      Surprisingly, Elizabeth’s reply arguments don’t even attempt to hide her (or

her counsel’s) obvious knowledge that the Tab 1 document relates to information

which post-dates the trial and ventures outside the proper appellate record. This is

clear for two reasons. First, Elizabeth must actually attach and provide the Tab 1

document to this Court since it is not otherwise available in the existing appellate

record. Second, Elizabeth affirmatively uses the Tab 1 document to inform this

Court that Fletcher’s employment circumstances may have changed since the 2014

trial, speculating that Fletcher may have experienced a reversal of fortune which

she in turn claims should undermine the trial court’s child support reduction and

influence her request for this Court to reverse it. Elizabeth’s careless and improper

speculation is based on unauthenticated, unsubstantiated and unexplained evidence

presented for the first time to this Court without regard to any rules or standards

which prohibit it.

      If Elizabeth believes that Fletcher’s financial circumstances have materially

and substantially changed since the underlying order the subject of this appeal was


                                         7
rendered so as to justify an increase in support, then Elizabeth has every right to

dismiss this appeal and file a new suit to modify Fletcher’s existing child support

obligation as ordered by the trial court in June, 2014. But Elizabeth has no right to

infiltrate the existing appellate record with innuendo and speculation based on

unadmitted documents she simply chooses to attach to her Reply Brief and attempt

to disguise it as accepted advocacy. To the extent she has done so, Fletcher

objects.

                          CONCLUSION AND PRAYER

      Appellee, FLETCHER V. TRAMMELL, requests the Court to abstain from

consideration of Elizabeth’s arguments which misrepresent the testimony at trial.

Further, Appellee, FLETCHER V. TRAMMELL, requests this Court to abstain

from any substantive review and/or consideration of Tab 1 as attached to

Elizabeth’s Reply Brief as well as those arguments which refer to or rely upon it.

      The matters specifically objected to herein as contained within Appellant,

ELIZABETH TRAMMEL’S, Reply Brief reveal an apparent disregard for the

rules of appellate procedure and accepted standards for appellate conduct. As

such, Appellee, FLETCHER V. TRAMMELL, requests this Court to consider any

other or further relief, including sanctions, which this Court may deem appropriate

in these circumstances.




                                         8
      Appellee, FLETCHER V. TRAMMELL, SR., requests all such other relief

to which he may show himself entitled.

                                       Respectfully submitted,

                                         /s/ Sallee S. Smyth
                                       SALLEE S. SMYTH
                                       Attorney at Law
                                       SBT# 18779400
                                       800 Jackson Street
                                       Richmond, Texas 77469
                                       (281) 238-6200
                                       (281) 238-6202 (Fax)
                                       smyth.sallee@gmail.com
                                       Attorney for Appellee
                                       FLETCHER V. TRAMMELL, SR.


                         CERTIFICATE OF SERVICE

      I certify that a true copy of the above Appellee’s Objections to Specific Matters

Within Appellant’s Reply Brief was served on the following counsel of record and/or

pro se party in accordance with the Texas Rules of Civil and Appellate Procedure on

this the 20th day of April 2015:

Mr. Maurice Bresenhan, Jr.
Attorney for Appellant
1177 West Loop South, Suite 1100
Houston, Texas 77027
VIA EMAIL mbresenhan@zbsplaw.com


                                        /s/ Sallee S. Smyth
                                       SALLEE S. SMYTH



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