Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/20/2015 11:29:16 AM CHRISTOPHER A. PRINE Clerk *1 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 HOUSTON, TEXAS __________________________________________________________________
ELIZABETH M. TRAMMELL, 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 308 th 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.
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
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 [14 th Dist.] 1999, no
pet.). It is improper for parties to rely on matters outside the record in making
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 [1 st Dist.] 1999, no pet.); San Jacinto
Methodist Hosp. v. Bennett, 256 S.W.3d 806, 815 (Tex. App. – Houston [14 th
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
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."
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
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
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.
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 20 th 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