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

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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ACCEPTED

01-14-00629-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/20/2015 11:29:16 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/20/2015 11:29:16 AM CHRISTOPHER A. PRINE Clerk
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 

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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 

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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 

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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. 

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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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