Mateo Cortez, as Representative of the Estate of Deborah Cortez v. Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray ( 2017 )
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ACCEPTED 03-17-00365-cv 21266118 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/13/2017 1:13 PM JEFFREY D. KYLE CLERK NO. 03-17-00365-CV FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 12/13/2017 1:13:06 PM JEFFREY D. KYLE Clerk MATEO CORTEZ, AS REPRESENTATIVE OF THE ESTATE OF DEBORAH CORTEZ, APPELLANT, V. SANDRA FLESHER BROWN; CHARLOTTE FLESHER ASH; CHARLENE FLESHER JOHNSTON; CONNIE LOU KEITH BARRY; RANDALL WAYNE DAVIS; VIRGINIA VILLERS; CHARLES ROBERTS; LISA A. SMITH; PATRICIA CHAPMAN; BETTY J. MARKS WEBB; JAMES BERL MARKS; LINDA MURRAY; THOMAS WAYNE MARKS; AND DONALD LEMAN WHITED, APPELLEES. Appeal from the Probate Court No. 1 of Travis County, Texas, Trial Court Cause No. C-1-PB-16-002348 APPENDIX TO APPELLANT’S RESPONSE TO APPELLEES’ MOTION TO DISMISS FOR WANT OF JURISDICTION Respectfully submitted, BROTHERTON LAW FIRM By: /s/ William J. Brotherton William J. Brotherton State Bar No. 00789989 Shawn M. Brotherton State Bar No. 24064956 BROTHERTON LAW FIRM 2340 FM 407, Suite 200 Highland Village, TX 75077 Phone: 972-317-8700 Fax: 972-317-0189 Susan S. Vance State Bar No. 24036562 susan@svancelaw.com SUSAN VANCE LAW PLLC 201 W. 5th Street, Suite 1100 Austin, Texas 78701 Phone: 512-736-7295 Fax: 866-523-5449 ATTORNEYS FOR APPELLANT I. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appendix to Appellant’s Response to Appellees’ Motion to Dismiss for Want of Jurisdiction was forwarded, on this 13th day of December, 2017, to the following: Amanda G. Taylor Craig Hopper Beck Redden LLP Brian T. Thompson 515 Congress Avenue, Suite 1900 Claire D. East Austin, TX 78701 400 W. 15th Street, Suite 408 Austin, TX 78701 Attorneys for Appellees: Linda Lou Marks Murray, individually; Charlene Rae Flesher Johnston; Charlotte Fae Flesher Ash; Sandra Kay Flesher Brown; Thomas Wayne Marks; James Berl Marks; Betty J. Webb; Patricia A. Chapman; Lisa A. Smith; Charles Bruce Roberts, Jr., Virginia Ann Roberts Villers; Randall Wayne Davis; Sherry Lynn Whited Salsbury; Terry Lee Whited; Michael Ray Whited; Donald Leaman Whited; and Connie Lou Keith Barry /s/ William J. Brotherton William J. Brotherton APPENDIX Tab Document A. June 26, 2017, Letter from Aaron C. Boone (filed in West Virginia case) B. February 14, 2017, Defendant Connie Lou Keith Barry’s Motion for Leave to File Surreply to Give Notice of Developments Relating to the Texas Litigation (filed in West Virginia case) C. June 23, 2017, Defendant Connie Lou Keith Barry’s Response in Opposition to Motion to Intervene and Request for Sanctions (filed in West Virginia case) D. June 23, 2017, Defendant Connie Lou Keith Barry’s Response in Opposition to Cortez’s Post-Judgment Motion to Dismiss (filed in West Virginia case) E. June 22, 2017, Response of Linda Murray, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, to the Motion to Intervene Filed by The Estate of Deborah Cortez F. June 27, 2017, Finding of Fact and Conclusions of Law (entered in West Virginia case) G. July 27, 2017, Memorandum in Support of Defendant Connie Lou Keith Barry’s Motion for Sanctions (filed in West Virginia case) H. September 19, 2017, Order Denying Defendant Mateo Cortez’s Motion to Alter of Amend (entered in West Virginia case) I. September 19, 2017, Order Denying Motion to Dismiss (entered in the West Virginia case) J. September 19, 2017, Order Denying Motion to Intervene (entered in the West Virginia case) K. June 9, 2017, Docketing Statement 2 APPENDIX A 600 Quarrier Street Charleston, W Charleston, West 25301 est Virginia 25301 tl Southpointe Town Center Southpointe 1800 Main 1800 Main Street, Street, Suite Suite 200 200 101 South Queen Street West Martinsburg, W est Virginia 25401 Bowles Riceur Bowles A Rice T T O R N E Y S /J\T ATTORNEYS \ T LJ\\V m\v' l.I.I* Canonsburg, Pennsylvania Canonsburg, 1217 Pennsylvania 15317 1217 Chapline Chapline Street 15317 Wheeling, West Wheeling, West Virginia 26003 Virginia 26003 7000 Hampton Center 501 Avery Street 501 Street Morgantown , W Morgantown, West est Virginia 26505 Parkersburg , West Virginia 26101 West 480 W est Jubal Early Drive, Drive, Suite 130 130 Parkersburg, 22601 Winchester, Virginia 22601 Post Office Post Office Box 49 Parkersburg, West Parkersburg, W est Virginia 26102 Virginia 26102 (304) 485-8500 (304) www.bowlesrice .com www.bowlesrice.com June 26, 2017 Aaron C. Aaron C. Boone Boone E-MailAddress: E-Mail Address: Telephone - (304) Telephone (304) 420~550l 420-550 I aboone@bowlesri ce.com aboone@bowlesrice.com Facsimile (304) 420-5587 Facsimile - (304) 420-5587 James W. Marshall, James W. Marshall, III III VIA VIA E-MAIL E-MAIL AND AND FAX FAX Michael W. Taylor Michael W. Taylor BAILEY BAILEY && WYANT, WYANT, PLLC 500 500 Virginia VirginiaStreet StreetEast, East, Suite Suite 600 600 Post Post Office Office BoxBox 3710 3 710 Charleston, Charleston, West Virginia Virginia 25337-3710 25337-3710 j1narshall@baileywvantcom jmarshal1 (ci),baileywyant.com William WilliamJ .J.B1'othe1'ton Brotherton Shawn Shawn M. Brotherton Brotherton BROTHERTON BROTHERTON LAW LAW FIRM 2340 FM 2340 FM407, 407, Suite Suite 200 200 Highland HighlandVillage, Village,Texas Texas75077 75077 william@b1'otlierto11law.com wil Iiam@brothertonlaw.com shaw1i@b1.othe1'tonlaw.com shawn@brotherton law.com Re: SANCTIONS Re: SANCTIONS NOTICE NOTICE Linda LindaMurray, Murray,as asSuccessor Trustee of Successor Trustee of the the William D. Short William D. Short and Phyllis D. and Phyllis D. Short Shott Revocable Living Trust Revocable Living Trust Dated Dated April April30, 30,1991 1991 v.v. Linda LindaLou Loul\/Iurray Murray etet al. al. Civil CivilAction ActionNo. No.15-C-28, l 5-C-28,Circuit CircuitCourt Cou1tot``Wirt of WirtCounty, County, West West Virginia Virginia Ladies &&Gentlemen: Ladies Gentlemen: The The purpose purpose of of this letter letter is is to to put put you you and and your client client on on notice notice that that my my client clientintends intends to to seek seek sanctions pursuanttotoRule sanctions pursuant Rule 11ll ofofthe theWest West Virginia VirginiaRules RulesofofCivil CivilProcedure, Procedure,ororpursuant pursuant to to the the Court's Court'sinherent inherent authority authorityto to sanction sanction bad bad faith litigation litigationconduct, conduct, unless unless your client client immediately immediately ceases and desists ceases and desistsfrom from continuing continuing to to pursue pursueclaims claims toto the the Wi William lliam D. D. Short Short and and Phyllis Phyllis D. D. Short Shott Revocable Revocable Living Living Trust TrustDated Dated April April30,30,1991, 1991,either eitherininhis hispersonal personal capacity capacity oror by by proxy proxythrough through "the "theEstate Estate of ofDeborah Deborah Cortez." Cortez." The The terms terms Qfofthe the Trust Trust instrument instrumentare are crystal crystalclear, clear,and andhave have been been ruled ruled upon uponas as aa matter matterof law by oflaw byboth both the the Circuit CircuitCourt CourtofofWirt WirtCounty, County,West WestVirginia Virginiaand andthe theProbate Probate Court Comt ofofTravis Travis It}' Bowles 13 Bowles Rice,,,. BAILEY BAILEY && WYANT, PLLC WYANT, PLLC BROTHERTON LAW FIRM BROTHERTON LAW FIRM June 26, 2017 2017 Page Page 2 County, County, Texas. Texas. TheTheplain plainlanguage language ofofthe the Trust Trust inst1u1nent makesnonoprovision instrument makes provisionfor foryour yourclient. client. Your client client has has no no claim claimto tothe the Trust, Trust,either eitherininhis hispersonal personal capacity capacity or oras as representative representative ofof "the Estate of Estate of Deborah Deborah Cortez." Cortez." YourYourclient's client'sclaims claimstotothethecontrary contrarylack lackany anybasis basis ininthe the Trust Trust instrument instrument or or support suppo1i under under the the law, law, and and have already been have already beensanctioned sanctionedininTexas. Texas. Unless Unless your your client client withdraws hishis frivolous frivolouspleadings, pleadings, iny myclient clientwill willseek seekthe thesame same sanctions West Virginia. sanctions in West Virginia. The The Circuit Circuit Court Court of ofWirt WirtCounty, County,West WestVirginia Virginiagranted grantedsuininary summaryjudgment judgmentagainst agai nst your yo ur client clientononSeptember September 15, 15, 2016. 2016 . TheThe Probate Probate Court of of Travis Travis County, Co unty, Texas Texas followed fo llowed suit suit on on December December 19, 19, 2016. 20 16. Both Bothcourts courts rejected rej ected your your client's client' s claims, claims, and and pursuant pursuant to the parties' Rule the parties' Rule l11l Agreement Agreement you you are are bound bound to abide abide by those rulings. Nonetheless, those rulings. you continue Nonetheless, you continue to to file file lrivolous frivolous pleadings pleadings in in West West Virginia, Virginia,with withthetheadmitted admittedpurpose purpose of ofobstructing obstructing the the Court's Court' s resolution resolution of ofthe the Trustee's Trustee' s motion motion for for summary summary judgment. Moreover, Moreover, itit is is clear clear that your client is is intentionally intentionally driving driving up up the the cost cost of' of this litigation litigationtotoretaliate retaliateagainst against the the Trustee andand the the Trust's Trust's rightful rightful beneficiaries. beneficiaries. The The course course of ofaction action you yo u are are pursuing in in West West Virginia Virginiahas hasalready alreadybeen been found fo und by by the the Texas Texas court court to to be be frivolous frivolous as as aa matter matter ofof law. law. Moreover, Moreover,there thereisissufficient sufficientevidence evidence to to make make aa compelling compellingcase case to to the the Court Court that that your your client's client'scontinued continued pursuit pursuitofofthis thismatter matterisisbeing being conducted conducted in in bad bad faith. faith. IfIfyour yourclient clientisisunwilling unwillingtotododothe theright rightthing thingand anddismiss dismisshishi sfrivolous frivolousclaims c laimstotothe the Trust, Trust, then then my m yclient clienthashasauthorized authorized meme to toaggressively aggressively pursue pursue sanctions against yo sanctions against youu for facilitating fac ilitating his hi s wrongful wrongfulconduct. conduct. This This matter matter is is set set for for hearing hearing tomorrow inin the the Circuit Circuit Court Court of ofWirt WirtCounty, County,West West Virginia. Virginia.I strongly I stronglyurge your urge your client clienttotoimmediately immediatelycease ceasehis hi sfrivolous frivo lousand andfutile futilepursuit pursuitofofthe the Trust, T rust, and and to to dismiss dismiss his his claims claims with withprejudice prejudice atat tomorrow's tomorrow' shearing. hearing. Sincerely, Sincerely, ~ - 6. C. /:Jo~ 60 Aaron c.C.BQOHQ A31``OI'l Boone AACB/ljp cB /ljp Enclosures E nclosures APPENDIX B Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 1 of 5 PageID #: 2099 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 2:16-cv-09951 JUDGE JOHNSTON LINDA LOU MURRAY, et al., Defendants. DEFENDANT CONNIE LOU KEITH BARRY’S MOTION FOR LEAVE TO FILE SURREPLY TO GIVE NOTICE OF DEVELOPMENTS RELATING TO THE TEXAS LITIGATION Defendant Connie Lou Keith Barry (“Mrs. Barry”), by counsel, pursuant to Rule 7.1(a)(7) of the Local Rules of Civil Procedure, files this motion requesting leave of this Court to submit a surreply to Defendant Connie Lou Keith Barry’s Motion to Remand & Motion for Attorney Fees and Costs (ECF No. 7) and to Defendant Connie Lou Keith Barry’s Response in Opposition to Defendant Mateo Cortez’s Motion to Dismiss (ECF No. 28). The purpose of the surreply would only be to provide this Court with supplemental authority from the Texas Litigation, to wit; the Order on Third Party Defendants’ Motion to Modify Judgment to Include Sanctions Award (“Order”) and Amended Final Judgment (“Amended Judgment”) entered on February 10, 2017 by the Travis County Probate Court No. 1 in Texas, under Cause No. C-1-PB-16-002348. (Attached as Exhibit 1 and Exhibit 2.) The attached Order granted the heirs-at-law’s motion that sanctions be assessed against William J. Brotherton and the Brotherton Law Firm for legal fees the heirs-at-law incurred in Texas Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 2 of 5 PageID #: 2100 defending against certain claims submitted by William J. Brotherton and the Brotherton Law Firm. The attached Amended Judgment orders William J. Brotherton and the Brotherton Law Firm, jointly and severally, to pay $65,130.76 in legal fees. The attached were entered only two (2) business days ago and were not available to Mrs. Barry at the time she filed Defendant Connie Lou Keith Barry’s Motion to Remand & Motion for Attorney Fees and Costs (ECF No. 7) or at the time she filed Defendant Connie Lou Keith Barry’s Response in Opposition to Defendant Mateo Cortez’s Motion to Dismiss (ECF No. 28). If the Court grants the instant motion for leave to file surreply, then Mrs. Barry asks that, provided it so pleases the Court, this motion and the attached Order and Amended Judgment be accepted as said surreply, so that no further documents relating to the instant motion need be filed by Mrs. Barry. Submitted this 14th day of February, 2017. /s/ Aaron C. Boone Aaron C. Boone (WVSB #9479) Bowles Rice LLP Fifth Floor, United Square 501 Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 aboone@bowlesrice.com Counsel for Defendant Connie Lou Keith Barry 2 Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 3 of 5 PageID #: 2101 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 2:16-cv-09951 JUDGE JOHNSTON LINDA LOU MURRAY, Defendants. CERTIFICATE OF SERVICE I hereby certify that on February 14, 2017, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following CM/ECF participants: Andrew R. Herrick, Esquire James W. Marshall , III, Esquire H. F. Salsbery, Esquire J. Nicholas Barth, Esquire I hereby certify that I have mailed the document by United States Postal Service to the following non-CM/ECF participants: Robert S. Fluharty, Jr., Esquire Fluharty & Townsend 417 Grand Park Drive, Suite 101 Parkersburg, WV 26105 Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 4 of 5 PageID #: 2102 Leslie L. Maze, Esquire Post Office Box 279 Elizabeth, WV 26143 William J. Brotherton, Esquire Brotherton Law Firm 2340 FM 407, Suite 200 Highland Village, Texas 75077 Joseph T. Santer, Esquire Santer and Santer Post Office Box 306 Parkersburg, WV 26102 Linda Lou Murray 197 Oakbrook Drive Mineral Wells, WV 26150 Sandra Kay Flesher Brown 99 Woodridge Drive Mineral Wells, WV 26150 Charlene Rae Flesher Johnston 37 Franklin Street Elizabeth, WV 26143 Charlotte Fae Flesher Ash 8653 White Swan Drive #104 Tampa, FL 33614 Virginia Ann Roberts Villers 28649 Alessandria Circle Bonita Springs, FL 34135 Charles Bruce Roberts, Jr. 487 Wilson Fork Elizabeth, WV 26143 Lisa Ann Rader Smith 96 Franklin Street Elizabeth, WV 26143 Patricia Ann Marks Chapman 2670 Pettyville Road Parkersburg, WV 26101 2 Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 5 of 5 PageID #: 2103 James Berl Marks 1093 S. Pleasant Hill Road Belleville, WV 26133 Thomas Wayne Marks 749 S. Long Run Road Belleville, WV 26133 Betty J. Webb 280 Bethel Road Parkersburg, WV 26101 Randall Wayne Davis 1663 Brookford Road Kernersville, NC 27284 Magen Elizabeth Whited 164 Joe Shore Drive Ravenswood, WV 26164 /s/ Aaron C. Boone Aaron C. Boone 3 8755086.1 Case 2:16-cv-09951 Document 34-1 Filed 02/14/17 Page 1 of 3 PageID #: 2104 No. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § V. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETTY J. MARKS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS ORDER ON THIRD PARTY DEFENDANTS' MOTION TO MODIFY JUDGMENT TO INCLUDE SANCTIONS AWARD On this day, the Court considered the Motion To Modify Judgment to Include Sanctions Award and the Supplement to the Motion To Modify Judgment to Include Sanctions Award (collectively the "Motion"), each filed by Third Party Defendants Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury (collectively "Third Party Defendants"). Having considered the Motion, the response thereto, the admissible evidence, the other papers on file in this matter, and the arguments of counsel, the Court hereby GRANTS the Motion in part and makes the following findings and orders: The Court finds that attorney William J. Brotherton violated Texas Civil Practices and Remedies Code Chapter 10 in signing the Original Petition in Intervention, the First Amended 1 EXHIBIT 1 Case 2:16-cv-09951 Document 34-1 Filed 02/14/17 Page 2 of 3 PageID #: 2105 No. C-1-PB-16-002348 Petition in Intervention and Third Party Petition, Second Amended Petition in Intervention and Third Party Petition, the Third Amended Petition in Intervention and Third Party Petition, and the Fourth Petition in Intervention filed in this matter. In particular, the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code § 10.001 by signing these pleadings because each of them contained the claim that Deborah Cortez was entitled to all assets from The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust") upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The Court finds that the plain language of the Trust foreclosed such a claim and that this claim was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further finds that attorney William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable. By maintaining that legal position in his Fourth Petition in Intervention, he caused the Third Party Defendants to incur additional attorneys' fees in responding to attorney William J. Brotherton' s claim regarding postponement of the trust. The Court hereby sanctions William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $31,150.76 for fees incurred for work done by Brian Thompson and his associates at Hopper Mikeska, PLLC and $33,980.00 for fees incurred by Aaron Boone and his associate attorney at Bowles Rice, LLP, for a total of $65,130.76. The Court orders that this amount be paid to the Third Party Defendants within 30 days of the entry of this order. The Court finds that there is a direct relationship between the sanctions being imposed and Mr. Brotherton's sanctionable conduct, in that the aforesaid amount represents reasonable and necessary attorneys' fees expended by attorneys for the Third Part Defendants to defend against 2 Case 2:16-cv-09951 Document 34-1 Filed 02/14/17 Page 3 of 3 PageID #: 2106 No. C-1-PB-16-002348 the frivolous claims advanced by William J. Brotherton and the Brotherton Law Firm; that the sanctions are not excessive; and that these sanctions will appropriately deter other attorneys from signing pleadings containing claims that violate Texas Civil Practices and Remedies Code Chapter 10. The Court hereby modifies its judgment entered on December 19, 2016, to include this award of sanctions. Signed this 10th day of February, 2017. 3 Case 2:16-cv-09951 Document 34-2 Filed 02/14/17 Page 1 of 2 PageID #: 2107 CAUSE NO. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § V. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETTY J. MARKS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion for Summary Judgment") filed by Third Party Defendants, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (collectively "Third Party Defendants"), in Cause Number C-1-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the_ Motion for Summary Judgment in its entirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular, the Court dismissed any and all claims that Mateo Cortez, in his individual 1 EXHIBIT 2 Case 2:16-cv-09951 Document 34-2 Filed 02/14/17 Page 2 of 2 PageID #: 2108 capacity or in his capacity as personal representative of the Estate of Deborah Cortez, had to any assets of T he William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Co1tez. Also on December 19, 2016, the Court considered Third Party Defendants ' Motion to Sever. After considering the Motion to Sever, the response, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the Motion to Sever in its entirety and ORDERED that Mateo Corez's claims against Third Party Defendants in this lawsuit be severed in their entirety and assigned the new cause number C-1-PB-1 6-002348. On January 16, 20 17, Third Party Defendants filed their Motion to Modify Judgment to Include Sanctions Award (the " Motion to Modify"), which extended the plenary power of the Court to modify its judgment. The Motion to Modify was heard by the Court at a hearing on January 30, 2017. After considering the Motion to Modify, the response, the admissibl e evidence presented at the hearing, the response, the arguments of counsel, and the other papers on file with the Court, granted the Motion to Modify in pa11 and granted sanctions. T he Court sanctions attorney William J. Brotherton and the Brotherton Law Firm, jointl y and severally, in the amount of $65, 130.76, and ORDERS that this amount be paid to the Th ird Party Defendants within 30 days of the entry of thi s final judgment. Thi s amended judgment finall y disposes of all claims and parties and 1s final and appea lable. Signed this 10th day of February, 20 17. 2 APPENDIX C Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 2/23 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA · LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated ApriJ 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 Judge Waters LINDA LOU MURRAY, et al., Defendants. DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO MOTION TO INTERVENE AND REQUEST FOR SANCTIONS Defendant Connie Lou Keith Barry ("Mrs. Barry"), by counsel, responds in opposition to the motion to intervene filed by Mateo Cortez, "in his capacity as the Personal Representative of the Estate of Deborah Cortez." Mateo Cortez ("Cortez") 1 s latest set of filings are yet another frivolous attempt to obstruct the Trustee's administration of the William D. Short and Phyllis D. Short Revocable Living Trust dated April 30, 1991 (the ''Trust'~. and to drive up the costs of this litigation for the Trust's true beneficiaries. Cortez's motion should be denied. and his counsel should be sanctioned for knowingly filing frivolous papers with this Court. INTRODUCTION Cortez was the husband of Deborah Cortez (nee Short), and is her sole heir at law and the administrator of her estate. Cortez has been a party to this case since November 10, 2015 (the date of filing), but made zero effort to join "the Estate of Deborah Cortez'• as a party, or to suggest that it should be made a party, until after this Court granted summary judgment against , Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 3/23 him on September 15, 2016. 1 At all times, Cortez had actual knowledge of this case and sole control over "the Estate of Deborah Cortez" as its administrator, and was represented by the same lawyers who now seek to appear and re~litigate this case on behalf of "the Estate of Deborah Cortez." Indeed, both before this Court and the Texas court, Cortez argued prior to judgment that the entirety of the Trust belongs to him personally as the sole heir of his late wife. Now, nine months after this Court granted summary judgment against him1 and two weeks before the Court talces up the Trustee's motion to distribute the Trust to its rightful beneficiaries! Cortez attempts to reargue the same baseless claims that this Court and the Texas court both rejected. Of course, as this Court ruled in its September 15, 2016 order granting partial summary judgment, neither Cortez nor "the Estate of Deborah Cortez" have any interest in the Trust. By the plain language of the Trust instrument, Deborah Cortez only had an interest in the Trust during her life, and that interest extinguished upon her death. The Trust assets now belong to the heirs at law of William D. Short and Phyllis D. Short; Cortez and ''the Estate of Deborah Cortez" are not heirs at law of either settlor, and have zero interest in the Trust. Both this Court and the Texas court reached this conclusion as a matter of law. On December 19, 2016, the Texas court also granted summary judgment against Cortez on all of his claims, concluding as a matter of law that Cortez and "the Estate of Deborah Cortez)j have zero interest in the Trust: 1 Cortez moved to alter or amend the Court's judgment, arguing in part that the Court failed to join "the Estate of Deborah Cortez" as an indispensable party. Cortez failed to raise this defense prior to judgment, and thus waived it. See W.Va. R. Civ. P. l2(h)(2) (stating that defense offailure to join an indispensable party may only be made "in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits."). In any event, Cortez's interests and "the Estate of Deborah Corte:t's" interests are identical, so ''the Estate" was neither necessary nor indispensable to this case. 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 4/23 On this day, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion") filed by Third Party Defendants . . . Connie [Lou] Keith Barry ... all in their individual capacities. Having considered the Motion, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular, tlie Court liereby dismisses any and all claims that Mateo Cortez, in Ids indlvidugl cqpacitv or in his cgpacitv as l!,,r,rsonal representative ofthe Estate o[.Deborali Cortez. has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust,,), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray, in her capacity as trustee of the Trust. Exhibit A, Order Granting Third Party Defendants' Traditional and No Evidence Motion for Summary Judgment, Civil Action No. C-l·OB~14~1564 (Tex. Probate Ct. Dec. 19, 2016) (emphasis added). The Texas court subsequently amended its judgment to include sanctions against Cortez's lawyers, finding that Cortez's argument that "the Estate of Deborah Cortez', was entitled to the assets of the Trust was frivolous: The Court finds that attorney William J. Brotherton violated Texas Civil Practices and Remedies Code Chapter 10 in signing the Original Petition in Intervention [and subsequent pleadingsJ filed in this matter. In particular, the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code§ 10.001 by signing these pleadings because eac/1 of them contained the claim that Debora/, Cortez was entitled to all assets from [the Trust). 1hr Court finds that the plain language of tlie Trmt fQredg$_ed such a claim and that this claim was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further finds that William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable .... 3 , Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 5/23 Exhihit B, Order on Third Parr; Defendants' Motion to Modify Judgment to Include Sanctions Award, Civil Action No. C~l~OB-14-1564 (Tex. Probate Ct. Feb, 10, 2017) (emphasis added). The Texas court sanctioned Cortez's lawyers in the amount of $65,130.76 for driving up Mrs. Barrf s legal fees in Texas with his frivolous claims. Although Cortez seeks to "intervene" on behalf' 1ofthe Estate of Deborah Cortez," in reality he seeks to hide behind a nominal party to avoid this Court's judgment, and to reargue in West Virginia the same ridiculous and insupportable legal theories that led to sanctions against his lawyers in Texas. The Court should deny Cortez's motion (and all of his other frivolous claims for relief), and sanction his counsel for wasting the Court's time and the parties' resources. ARGUMENT A. CORTEZ'S ATTEMPT TO i 41NTERVENE ON BEHALF OF THE ESTATE OF DEBORAH CORTEZ" SHOULD BE DENIED. Cortez's motion to intervene is frivolous and should be denied. Rule 24 of the West Virginia Rules of Civil Procedure states: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this State confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. W.Va. R. Civ. P. 24. "West Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction whlch is the subject of the action; (3) disposition of the action may. as a practical matter. impair or impede the applicant's 4 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 6/23 ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties." Syl. Pt. 2, State ex rel. Ball v. Cummings. 208 W.Va. 393,540 S.E.2d 917(1999). For obvious reasons, Cortez cannot meet a single one of these criteria. First, Cortez's motion is untimely. "While Rule 24 of the West Virginia Rules of Civil Procedure provides for the intervention of parties upon a timely application, the timeliness of any intervention is a matter of discretion with the trial court." Syl. Pt. 3, State ex rel. Ball v, Cummings, 208 W.Va. 393,
540 S.E.2d 917(1999). Cortez had actual notice of this suit in 2015, and knew or should have known at that time that he needed to "intervene on behalf of the Estate of Deborah Cortez" if he or his lawyers believed "the Estate" had an interest in this litigation. Instead, Cortez fought this case on other grounds, and specifically argued that he was personally entitled to the proceeds from the Trust. Cortez did not move to "intervene on behalf of the Estate" until nine months after this Court rejected his claim to the Trust and granted summary judgment against him. The Supreme Court of Appeals of West Virginia has upheld refusals to grant intervention where the movant had knowledge of a case but failed to move for intervention until after entry ofjudgment. See West Virginia Public Employees Ins. Bd. v. Blue Cross Hosp. Service, Inc .• 180 W.Va. 177,
375 S.E.2d 809(1988) (motion to intervene untimely when filed three months after entry of dismissal order and movants knew or had reason to know of the pendency of the action prior to judgment); Pauley v. Bailey, 171 W.Va. 651,
301 S.E.2d 608(1983) (permissive intervention) (motion to intervene untimely when filed almost one year after evidentiary hearings had closed and seven months after court's orders). This Court should similarly deny Cortez's motion as untimely. Next, "the Estate of Debot'ah Cortez" has absolutely no interest in the Trust. Under the second and third pro11gs of Rule 24(a)(2), the movant must demonstrate both "an interest 5 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 7/23 relating to the property ... which is the subject of the action" and that disposition of the action may "impair or impede the applicanf s ability to protect that intel'est." W.Va. R. Civ. P. 24. Mrs. Barry will not belabor points which have already been established by this Court and the Texas court as a 0 matter of law. The Estate of Deborah Cortez" has no interest in the Trust because the plain and unambiguous language of the Trust instrument affords no interest to Deborah Cortez upon her death. Deborah Cortez only possessed a life interest in the Trust income, which extinguished when she died. The disposition of this action will not impair the ability of"the Estate of Deborah Cortez" to protect its interest in the Trust because "the Estate of Deborah Cortez" has no interest to protect. This Court has already ruled on that issue and need not revisit it. Finally, "the Estate of Deborah Cortez" was adequately represented in this litigation by Cortez himself, who is the administi·ator and sole heir of the estate. As to adequacy of representation by existing parties, "generally courts compare the interests asserted by the proposed intervenor with the interests of the existing party. If the proposed intervenor's interest is not represented by the existing party, or the existing party's interests are adverse to those of the proposed intervenor, intervention should be granted.... [However], if the interests are identical, intervention should be denied unless there is a compelling showing as to why the existing representation is inadequate." State ex rel. Ball v. Cummings, 208 W.Va. 393,403,
540 S.E.2d 917, 927 (1999) (internal citations omitted). Cortez and "the Estate of Deborah Cortez" have identical interests in the Trust (zero) and identical interests in this litigation: they both seek to obtain the entirety of the Trust proceeds, either through direct distribution to Cortez personally or through distribution to ''the Estate of Deborah Cortez," which would then flow through to Cortez personally as its sole heir. Cortez and "the Estate's" ider1tity of interest is clear from the simple fact that Cortez controls every decision made by "the Estate of Deborah Cortez," and is the only 6 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 8/23 person that benefits from "the Estate." Indeeds Cortez and "the Estate of Deborah Cortez,, 9!! represented by the same ler,al counsel in this case, which would violate the West Virginia Rules of Professional Conduct if their interests were adverse in any way. See W.Va. R. Prof. Conduct § 1.7 (simultaneous representation of adverse parties in litigation is a non.waivable conflict of interest). "The Estate of Deborah Cortez" cannot deny that Cortez himself, as the administrator and sole heir, had every opportunity to represent its claimed interest in this litigation. B. THE COURT SHOULD SANCTION CORTEZ'S COUNSEL FOR ATTEMPTING TO OBSTRUCT THIS CASE WITH FRIVOLOUS FILINGS. Although Cortez ostensibly seeks to protect the interests of "the Estate of Deborah Cortez/' both this Court and the Texas court have already rejected Cortez's claim that the Trust should have terminated, passed to Deborah Cmtez, and ultimately inherited by Cortez personally as the sole beneficiary of "the Estate of Deborah Cortez." Exhibit A. In fact, the Texas court futther found in February of2017 that Cortez's claim was frivolous and sanctionable. Exliibit B. The truth is that Cortez only filed his most recent round of West Virginia motions to obstruct or delay the Court's upcoming hearing on the Trustee's motion for summary judgment. Cortez's filings are clearly frivolous, and his attorneys should be sanctioned in West Virginia for the same reasons they were sanctioned in Texas. HThere is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs/ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.'' Syl. Pt. 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48,
365 S.E.2d 246(1986). Parties whose interest in the legal process is to oppress or cheat othe1·s should be discouraged. Non-disputes should, of course, be filtered out of the legal process by the subjective decision of the litigants themselves or else by thefr attorneys. Where they are not, court§ and juries, which specialize in determining the question of 7 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 9/23 good faith, are capable of dytjnguishing good faith dis:eutes from nondisgutes and assessing an appropriate penalty in the form of an award of attornexs' fees. Nelson v. West Virginia Public Employees Ins. Bd., 171 W.Va. 445,454,300 S.E.2d 86, 95 (1982) (Neely, J., concurring)(emphasis added). "By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law .... " W.Va. R. Civ. P. 1l(b) (emphasis added). The Court may impose sanctions on its O'Wll initiative if it finds that a party violated Rule 1l(b). See W.Va. R. Civ. P. 1l(c)(l)(B). 2 The timing of Cortez's attempt to intervene as "the Estate of Deborah Cortez" was not a coincidence, and should not go unnoticed by this Court. Cortez filed his motion on June 12, 2017 -- two weeks before the Trustee intends to bring her motion for summary judgment on for a hearing. The Court's ruling on the Trustee's motion will determine as a matter of law the finaJ 2 Due to the fact that Cortez filed his motions within two weeks of the Court's hearing, Mrs. Barry is unable to provide the required twenty-one (21) day notice to file a Rule 11 sanctions motion in her own capacity before the Court's hearing. However, the Court may still take up the issue of sanctio11s .sua sponte under Rule l l(c)(l)(B), and always hqs equitable authority to sanction bad faith conduct mtder Sally-Mike Properties. Mrs. Barry fully intends to seek recovery of all her attorneys' fees and costs in this action as a result of Cortez's frivolous and vexatious conduct, which inc]udes not only filing frivolous claims to the Trust proceeds, but also improvidently removing the case to federal court to create additional delay, and filing additional frivolous motions to prevent the Court from reaching the merits of the Trustee's summary judgment motion. 8 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 10/23 distribution of the Trust to its rightful beneficiaries. The true purpose of Cortez's motion is obvious: Cortez hopes to delay or obstruct the Court's disposition of the Trustee's summary judgment motion by arguing that the Court must first rule on his new filings. Indeed, Cortez's lawyers made no effort to conceal the improper purpose of his filings. By letter dated June 15, 2017, Cortez's counsel specifically requested that the Trustee reschedule the upcoming hearing on her summary judgment motion in light of Cortez's new filings: I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. Exltlbit C, Letter dated June 15, 2017 from William J. Brotherton to Robert S. Fluharty, Jr. This Court and the Texas court have already rejected Cortez's position. His remedy under the law is to take an appeal of those decisions. Instead, Cortez continues to present frivolous filings, with the stated purpose of delaying this Court's consideration of the Trustee's summary judgment motion. Cortez's conduct smacks of bad faith, and the Court has inherent equitable authority under Sally- Mike Properties, and sua sponte authority under Rule ll(c)(l)(B), to sanction Cortez and his lawyers for their wrongful conduct. Accordingly, Mrs. Bany requests that the Court award Mrs. Barry and the Trustee all of their attorneys' fees and costs incurred in this action as a sanction against Cortez and his lawyers for their conduct in obstructing this case. 9 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 11/23 .._/4. .Q . b Aaron C. Boone (9479) 7) 6)U_ Bowles Rice LLP Fifth Floor, United Square 50 l Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 and David A. DeJamett (5190) J. Tyler Mayhew (11469) Bowles Rice LLP 105 West Burke Street Martinsburg. West Virginia 25401 (304) 264~4232 Facsimile (304) 264~3822 Counsel for Defend.ant Connie Lou Keith Barry 10 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 12/23 No. C-l-PB-14-001564 LINDA MURRAY1 SUCCESSOR § IN THE PROBATE COURT NO. 1 TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLISS 0. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN, § PLAINTIFF § § V, § § MATEO CORTEZ, ROBERT F. § SCHLAGER AND WELLS FARGO § BANK, NATIONAL ASSOCIATION, § OF DEFENDANTS § § ' ""'*"' § § MATEO CORTEZ, AS REPRESENTATIVE§ OF THE EST ATE OF DEBORAH CORTEZ§ INTERVENOR § § V. § § LINDA MURRAY, SUCCESSOR § TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLLIS l>. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN § § TRAVIS COUNTY, TEXAS O@ER GRANTING THIRD PARTY DEFENDANTS' TUADITIONAL AND NO EVIDENCE MOTION FQR SUMMARY J!,ZDGMENT On this day. the Court considered the Tt'aditional and No Evidence Motion lb1· Summa1y Judgment (the ··Motion·') filed by Third Party Defe11dar1ts, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnslon, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villel's. Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty .J. Marks Webb, James Berl Marks. Linda Murray, Thomas Wayne Marks, Donald Leman Whited 1 Michael Ray Whited, EXHIBIT A Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 13/23 No. C-1-PB-14-001564 Terry Lee Whited and She11y Lynn Whited Salsbury, all in their individunl capacities. Having considered the Motion, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court. the Court hereby GRANTS the Motion in its entirety. [tis therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed i11 their entirety. ln pa11icular, the Com·t hereby dismisses any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal 1·epresentative of the Estate of Deborah Cortez, has to any assets of The WHliam D. Short and Phyllis D. Short Revocable Livit1g Trust (the "Trust'1), other than his claim for undistributed income from the Trust during the lite of Debol'ah Cortez. This judgment has no effect on Mateo Cortez's breach of fiducim-y duty against Linda Murray. in her capacity as trustee of the l"rust. SIGNED this l 9lh day of December, 2016. 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 14/23 No. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERSt CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETfY J. MARKS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS ORQER ON THIRD PARTY PIFENDANIS' MOTIQ~ TO MODIFY JUDGMENT TQ INCLUDE SANCTIQNS AWARD On this day, the Court considered the Motion To Modify Judgment to Include Sanctions Award and the Supplement to the Motion To Modify Judgment to Include Sanctions Award (collectively the "Motion•'), each filed by Third Party Defendants Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts. Lisa A. Smith, Patricia Chapman. Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury (collectively "Third Party Defendants 0 ). Having considered the Motion, the response thereto, the admissible evidence, the other papers on file in this matter, and the arguments of counsel, the Court hereby GRANTS the Motion in part and makes the following findings and orders: The Court finds that attorney William J. Brotherton violated Texas Civil Practices and Remedies Code Chapter 10 in signing the Original Petition in Intervention, the First Amended 1 EXHIBIT B Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 15/23 No, C-1-PB-16-002348 Petition in Intervention and Third Party Petition, Second Amended Petition in Intervention and Third Party Petition, the Third Amended Petition in Intervention and Third Party Petition, and the Fourth Petition in Intervention filed in this matter. In particular, the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code § I 0.001 by signing these pleadings because each of them contained the claim that Deborah Cortez was entitled to all assets from The William D. Short and Phyllis D. Short Revocable Living Trost (the "Trost") upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The Court finds that the plain language of the Trust foreclosed such a claim and that this claim was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further fmds that attorney William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable. By maintaining that legal position in his Fourth Petition in Intervention, he caused the Third Party Defendants to incur additional attorneys' fees in responding to attorney William J. Brotherton's claim regarding postponement of the trust. The Court hereby sanctions William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $31,150.76 for fees incutted for work done by Brian Thompson and his associates at Hopper Mikeska, PLLC and $33,980.00 for fees incurred by Aaron Boone and his associate attorney at Bowles Rice, LLP, for a total of $65,130.76. The Court orders that this amount be paid to the Third Party Defendants within 30 days of the entry of this order. The Court finds that there is a direct relationship between the sanctions being imposed and Mr. Brotherton•s sanctionable conduct, in that the aforesaid amount represents reasonable and necessary attorneys• fees expended by attorneys for the Third Part Defendants to defend against 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 16/23 No, C-1-PB-16-002348 the frivolous claims adva11ced by William J. Brotherton and the Brotherton Law Finn; that the sanctions are not excessive; and that these sa11ctio11s will appropriately deter other attorneys from signing pleadings containing claiins that violate Texas Civil Practices and Remedies Code Cbapter 10. The Court hereby modifies its judgment entered on December 19, 2016. to include this award of sanctions. Signed this 10th day ofFebn1ary. 2017. OUYHERMAN 3 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 17/23 CAUSE NO, C-1-PB-16--002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ·;o --0 (1"\ ROBERTS, LISA A. SMITH, PATRICIA § :s :-> CHAPMAN, BETTY J. MARKS WEBB, § J;: ~ JAMES BERL MARKS, LINDA MURRAY,§ THOMAS WAYNE MARKS, DONALD LEMAN WHITED, MICHAEL RAY § § - 0 WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUN1Y, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion for Summary Judgment") filed by Third Party Defendants. Sandra Flesher Brown. Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Ten-y Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (collectively ..Third Party Defendants"), in Cause Number C-l-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidence, the arguments of counsel; and the other papers on file with the Court, the Court GRANTED the_ Motion for Summary Judgment in its entirety and ORDERED. that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular, the Court dismissed any wid all claims that Mateo Cortez, in his individual 1 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 18/23 capacity or in his capacity as personal representative of the Estate of Deborah Cortez, had to any assets of The William D. Short and Phyllis 0. Short Revocable Living Trust (the "Trust''), other than his claim for undistributed income from the Tnist during the life of Deborah Cortez. Also on December 191 2016, the Com1 considered Third Party Defendants' Motion to Sever. After considering the Motion to Sever, the response, the arguments of counsel, and the other papers 011 fl.le with the Court, the Court GRANTED the Motion to Sever in its entirety and ORDERED that Mateo Corez's claims against Third Party Defemdants ii1 this lawsuit be severed in their entirety and assigned the new cause number C-l-PB-16-002348. On January 16, 20 I 7, Third Party Defendants filed their Motion to Modify Judgment to Include Sanctions Award (the "Motion to Modify")1 which extended the plenary power of the Court to modify its judgment. The Motion to Modify was beard by the Court at a hearing 011 January 30, 2017. After considering the Motion to Modify, the response, the admissible evidence presented at the hearing, the response, the arg1.1ments of counsel, and the other papers 011 file with the Court, granted the Motion to Modify in pait and granted sanctions. The Court sanctions attorney William J. Brotherton and the Brotherton Law Fim1.jointly and severally, in the amount of $65,130.76, and ORDERS that this amount be paid to the Third Party Defendants within 30 days of the entry of this final judgment. This amended judgment finally disposes of all claims and parties and is final and nppealable. Signed this 10th day of February, 2017, 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 19/23 BROTHERTON LAW FIRM ATTOR.Nli'.Y8 AND COUNSBLORS AT LAW 2340 FM 407, SUITE 200 HIGHLAND VILLA.GE, TEXAS 75077 TELBPHONB! 972-317-8700 FACSIMILE: 972-317-0189 WILLIAM J. BROTHERTON willlam@brothertonlaw.com LICRNSt.D IN TIXM ANP Noa.m l)AXQTA June 15, 2017 Via E-Mail: rsfluharty@fntlawgfflces.com Robert S. Fluharty, Jr. Fluharty & Townsend 417 Grand Park Drive, Suite 1O1 Parkersburg, WV 26105 RE: In the Circuit Court of Wirt County, West Virginia; Civil Action No. 15.C-28; Linda Murray. in Her' Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust v. Mateo Cortez et al. Dear Mr. Fluharty: I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27 th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. If this is something you wish to discuss, please do not hesitate to call. Otherwise, we will schedule our motions to be heard at the same time. Very truly yo1.1rs > WJB/dj ce: All Parties (per attached Certificate of Service) Client EXHIBIT C Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 20/23 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing correspondence has been served on this 15th day of June, 2017, by U.S. First Class Mail to the below interested parties: Robert S. Fluharty, Jr. Charlene Rae FlesherMJohnston 417 Grand Park Drive PO Box 793 Suite 101 Elizabeth, WV 26143 Parkersburg, WV 26105 Attorney Pot: Linda Murray Charles Bruce Roberts 487 Wilson Fork J. Nicholas Barth Elizabeth, WV 26143 Barth & Thompson PO Box 129 Charlotte Rae Flesher--Ash Charleston, WV 25321-0129 8653 White Swan Dr., #104 Attorney For: Linda Murray Tampa, FL 33614 Aaron C. Boone James Berl Marks Bowles Rice McDavid Graff & Love LLP 1093 S. Pleasant Hill Road POBox49 Belleville, WV 26133 Parkersburg, WV 26102-0049 Attorney For: Connie Lee Keith Barry Linda Lou Murray 197 Oakbrook Drive David A. DeJarnett Mineral Wells, WV 26150 Bowles Rice McDavid Graff & Love LLP PO Drawer 1419 Lisa Ann Rader Smith Martinsburg, WV 25402-1419 96 Franklin Street Attorney For: Connie Lee Keith Barry Elizabeth, WV 26143 Leslie L. Maze Magen Elizabeth Whited PO Box279 Elizabeth, WV 26 I43 Elizabeth, WV 26143 Attorney For: Donald Leaman Whited; Michael Ray Patricia Ann Marks Chapman Whited; Sherry Lynn Whited Salsbury; Sheila Pettry, 2670 Pettyville Road Tywanna Pettry, and Amanda Pettry, Heirs of Teresa Parkersburg, WV 26101 Annette Whited Pettrey; Terry Lee Whited Randall Wayne Davis 1663 Brooksford R.oad Joseph T. Santer Kernersville, NC 27284 Santer & Santer PO Box 306 Sandra Kay Flesher Brown Parkersburg, WV 26102 99 Woodridge Drive Ouardian ad Litem For: Unknown beneficiaries Mineral Wells, WV 26150 Betty Jo Mark& Thomas Wayne Marks 1834 S. Pleasant Hill Road 749 S. Long Run Road Belleville, WV 26133 Belleville, WV 26133 Virginia Ann Roberts Villers 28649 Allesandria Circle Bonita Sp · 1gs, FL 31435 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 21/23 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CML ACTION NO. 15-C~28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. CERTIFICATE OF SERVICE The undersigned, counsel for Defendant Connie Lou Keith Barry, hereby certifies that on the 23rd day of June 2017, he served the foregoing and hereto annexed DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO MOTION TO INTERVENE AND REQUEST FOR SANCTIONS upon counsel of record and pro se parties by the methods described below: Robert S. Fluharty, Jr., Esquire Fluharty & Townsend 417 Grand Park Drive, Suite 101 Parkersburg, WV 26105 VIA US Mail and Fax: 304-485-0560 J. Nicholas Barth, Esquire Barth & Thompson 202 Berkley Street Charleston, WV 26321 VIA US Mail and Fax: 304-342-6215 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 22/23 Leslie L. Maze, Esquire Post Office Box 279 Elizabeth, WV 26143 VIA US Mail and Fax: 304·275·3721 James W. Marshall. m. Esquire H. F. Salsbery, Esquire Michael W. Taylor, Esquire Bailey & Wyant, PLLC 500 Virginia Street East, Suite 600 Post Office Box 3710 Charleston. WV 25337-3710 VIA US Mail and Fax: 304~3 43~3133 William J. Brotherton, Esquire Shawn M. Brotherton, Esquire Brotherton Law Finn 2340 FM 407, Suite 200 Highland Village, Texas 75077 VIA US Mail and Fax: 972-3]7.0189 Joseph T. Santer, Esquire Santer and Santer Post Office Box 306 Parkersburg, WV 26102 VIA US Mail and Fax: 304-422-5599 Linda Lou Murray 197 Oakbrook Drive Mineral Wells, WV 26150 Sandra Kay Flesher Brown 99 Woodridge Drive Mineral Wells, WV 26150 Charlene Rae Flesher Johnston P.O. Box 793 Elizabeth, WV 26143 Charlotte Fae Flesher Ash 8653 White Swan Drive #104 Tampa, FL 33614 Virginia Ann Roberts Villers 28649 Alessandria Circle Bonita Springs1 FL 34135 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 23/23 Charles Bruce Roberts, Jr. 487 Wilson Fork Elizabeth, WV 26143 Lisa Ann Rader Smith Post Office Box 717 Elizabeth, WV 26143 Patricia Ann Marks Chapman 2670 Pettyville Road Parkersburg. WV 26101 James Berl Marks 1093 S. Pleasant Hill Road Belleville, WV 26133 Thomas Wayne Marks 749 S. Long Run Road Belleville, WV 26133 Betty J. Webb 280 Bethel Road Parkersburg, WV 261 O1 Randall Wayne Davis 1663 Brookford Road Kernersville, NC 27284 Magen Elizabeth Whited 164 Joe Shore Drive Ravenswood, WV 26164 Aaron C. Boone 3 APPENDIX D Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 2120 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her capacity as Successor Trustee of the Willi11m D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 1s..c-2s Judge Waters LINDA LOU MURRAY, et al., Defendants. DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO CORTEZ'S POST-JUDGMENT MOTION TO DISMISS Defendant Connie Lou Keith Barry ("Mrs. Barry"), by counsel, responds in opposition to Mateo Cortez's (''Cortez;,) po1t-iudgment motion to dismiss, in which Cortez again attempts to convince this Court to defer to proceedings in Texas. INTRODUCTION Cortez's duplicative and untimely motion should be denied. Although presented 11 as a motion to dismiss "for lack of jurisdiction'' or failure to state a claim," Cortez has simply repackaged the same forum non conveniens arguments that this Court and the Supreme Court of Appeals of West Virginia rejected last year. Indeed, the Texas court has specifically stated that it would not interfere with this Court•s jurisdiction: "THE COURT: I'm not going to prohibit them from proceeding, I'm not going to order them to dismiss in West Virginia. You all can go to West Virginia and argue." First, Cortez lacks standing to assert a Rule 12(b) Motion to Dismiss because judgment has already been entered against him. Second, notwithstanding his lack of standing, Cortez's motion is based on the false premise that Texas is now administering the Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 3/20 Trust. Lastly, given that the instant motion is frivolous, and filed solely to delay this Honorable Court's efforts, sanctions should be assessed against Cortez's counsel. ARGUMENT A. CORTEZ'S MOTION SHOULD BE DENIED BECAUSE POST-JUDGMENT MOTIONS TO ABSTAJN ARE NOT PERMITTED BY THE RULES OF CIV1L PROCEDURE. On September 15, 2016, this Court entered judgment against Cortez, dismissing any and all claims that Cortez has to the Trust. Order Granting Motion for Partial Summary Judgment, Wirt County Civil Action No. 15-C-28 (September 15, 2016). As discussed below, Cortez's motion to dismiss seeks to re-litigate his argument that this Court should decline jurisdiction in deference to parallel proceedi11gs in Tex.as. Cortez, however, has no legal right to ask this court to abstain post~judgment. W.Va. R. Civ. P. 12(h) (defenses other than lack of subject matter jurisdiction are waived unless raised prior to judgment). Moreover, Cortez's arguments are not only untenable, they are based on false and intentionally misleading premises. B. CORTEZ'S MOTION SHOULD BE DENIED BECAUSE THE TEXAS COURT IS NOT ACTIVELY ADMINISTERING THE TRUST. Cortez bases his motion on the Princess Lida doctrine, which is not a jurisdictional doctrine, but rather an abstention doctrine based on 75-year old dicta. See al- Abood ex rel. Al-Abood v. El-Shamari,217 F.3d 225(4th Cir. 2000) (citing cases holding that the Princess Lida doctrine is based on abstention and not lack of jurisdiction). See also Crawford v. Courtney,
451 F.2d 489, 491-92 (4th Cir. 1971) (describing the Princess Lida doctrine as dicta). Like forum non conveniens, abstention doctrines are not mandatory jurisdictional limitations on a court; they are discretionary doctrines; grounded in equitable concerns regarding comity between courts of concurrent jurisdiction. See Quackenbush v. 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 4/20 Allstate Ins. Co., S17 U.S. 706, 722 (1996) (abstention and forum non conveniens doctrines proceed from the same premise that in rare circumstances, courts can relinquish their jurisdiction in favor of another forum). The premise of Cortez's instant motion, and the premise of Cortez's earlier and unsuccessful forum non conveniens motion, are identical. Cortez argues that a Texas court is exercising concurrent jurisdiction over the parties• dispute, therefore this West Virginia Court should "step aside''. Cortez filed a "Petition in Intervention" in Texas on behalf of "the Estate of Deborah Cortez," in which he sought a declaratory judgment regarding the distribution of the Trust assets. 1 Cortez, however, intentionally omitted from his motion to dismiss that: (1) no other party asked the Texas court to decide how the Trust should be distributed or to assume control over the Trusti and, more importantly, (2) the Texas court dismissed all of Cortez's claims in their entirety. The fact that no party other than Cortez asked the Texas court to administer the Trust is critical because, on December 19, 2016, the Texas court granted summary judgment against Cortez on all of the claims alleged in his "Petition in Intervention," concluding as a matter of law that Co1tez and 0 the Estate of Deborah Cortez" have zero interest in the Trust: On this day, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the ''Motion'•) filed by Third Party Defendants ... Connie [Lou) Keith Ban·y ... all in their individual capacities. Having considered the Motion, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular, the C9urt herebJ?, dismisses any and all 1 Corte2: filed his "Petition in Intervention° to establish a defense against the Trustee's tort claims against him for stealing from the Trust. Cortez has since pointed to his "Petition in Intervention" a.s the reason for why this case should be dismissed and litigated in Texas. 3 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 5/20 claims tl,at Mateo Corte;, in liis indi}!idual cagqcitv or in Ms capacity as personal representative of the Estate o( Debora/, Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust,'), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray, in her capacity as trustee of the Trust. Exhibit A, Order Granting Third Party Defendants' Traditional and No Evidence Motion for Summary Judgment, Civil Action No. C-1-0B-14-1564 (Tex. Probate Ct. Dec. 191 2016). Mol'eover, the Texas court subsequently amended its judgment to include sanctions against Cortez's lawyers, finding that Cortez's claims were :frivolous and were not warranted by existing law; the extension, modification, or reversal of existing law; or the establishment of new law. Exhibit B, Order on Third Party Defendants' Motion to Modify Judgment to Include Sanctions Awardi Civil Action No. C-1-0B-14-1564 (Tex. Probate Ct. Feb. 10, 2017). Pertinent to this motion, the Texas court found that sanctions were appropriate because "attorney William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable." Exhibit B. The date referenced in the Texas court's sanction order is the day after this Cburt granted summary judgment against Cortez, which proves that the Texas court agrees that the Trustee's claims were properly brought in West Virginia. Otherwise, the Texas court obviously would not have deferred to the findings in this Court's September 15~ 2016 order granting summary judgment. In sum, Cortez claims that the Princess Ltda doctrine applies and deprives this Court of jurisdiction. Again, there is no claim before a Texas court to administer the Trust. Even if Cortez's "Petition in Intervention" did implicate the Princess Lida doctrine, his claims have been dismissed in their entirety, which undel' Texas law is final for collateral estoppel 4 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 6/20 purposes irrespective of his right to appeal. See Scurlock Oil Co. v. Smithwick,
724 S.W.2d 1(Tex. 1986) (judgment is final for purposes of issue and claim preclusion despite taking of appeal). 2 Although Cortez claims that the Texas court has taken a number of steps to administer the Trust, none of his claims are true. Neither the Trustee, nor any of the rightful beneficiaries of the Trust, have asked the Texas court to detennine how the Trust should be distributed. That claim is only pending here in West Virginia, and the Texas court has stated that it won't inte1fere with this Court's adjudication of the issues before it: "THE COURT: I'm not going to prohibit them from proceeding, I'm not going to order them to dismiss in West Virginia. You all can go to West Virginia and argue." Exhibit C, Transcript Excerpt, Application for Temporary Restraining Order and Injunctive Relief, at p. 25, Civil Action No. C-1-OB-14-1564 (Tex. Probate Ct. Dec. 18, 2015). Accordingly, the Court should reject Cortez's arguments, and reject his attempt to further delay and obstruct the Trustee's efforts to distribute the Trust to its rightful beneficiaries. C. CORTEZ AND HIS LAWYERS SHouio BE SANCTIONED FOR FILING FRIVOLOUS PAPERS TO OBSTRUCT OR DELAY THIS CASE. For the same reasons stated in Defendant Connie Lou Keith Barry's Response in Opposition to Motion to Intervene and Request for Sanctions, Cortez and his lawyers should be sanctioned for the filing of their Motion to Dismiss, which is frivolous and filed for the sole purpose of delaying further action in this Court. DATED this 23ro day of June 2017. 2 The Texas court's order granting summary judgment against Cortez meets the remaining elements of collateral estoppel. The elements of collateral estoppel are that: "(1) the facts sought to be litigated in the first action were fully and fairly Jitigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action." Eagle Properties, Ltd v. Scharbauer,
807 S.W.2d 714, 721 (Tex. 1990). 5 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 7/20 ~.t,b~ Aaron C. Boone (94 79) Bowles Rice LLP Fifth Floor, United Square 501 Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 and David A. DeJarnett (5190) J. Tyler Mayhew (11469) Bowles Rice LLP 105 West Burke Street Martinsburg, West Virginia 25401 (304) 264-4232 Facsimile (304) 264-3822 Counsel for Defendant Connie Lou Keith Barry 6 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 8/20 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. CERTIFICATE OF SERVICE The undersigned, counsel for Defendant Connie Lou Keith Barry, hereby certifies that on the 23 rd day of June 2017, he served the foregoing and hereto annexed DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO CORTEZ'S POST- JUDGMENT MOTION TO DISMISS upon counsel of record and pro se parties by the methods described below: Robert S. Fluharty, Jr., Esquire Fluharty & Townsend 41 7 Grand Park Drive, Suite 101 Parkersburg, WV 26105 VIA US Mail and Fax: 304-485-0560 J. Nicholas Barth, Esquire Barth & Thompson 202 Berkley Street Charleston, WV 26321 VIA US Mail and Fax: 304~342-6215 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 9/20 Leslie L. Maze. Esquire Post Office Box 279 Elizabeth, WV 26143 VIA US Mail and Fax: 304..275-3721 James W. Marshall, III, Esquire H. F. Salsbery, Esquire Michael W. Taylor, Esquire Bailey & Wyant, PLLC 500 Virginia Street East, Suite 600 Post Office Box 3710 Charleston, WV 25337-3710 VIA US Mail and Fax: 304-343-3133 William J. Brotherton, Esquire Shawn M. Brotherton, Esquire Brotherton Law Firm 2340 FM 407, Suite 200 Highland Village, Texas 75077 VIA US Mail and Fax: 972-317-0189 Joseph T. Santer, Esquire Santer and Santer Post Office Box 306 Parkersburg, WV 26102 VIA US Mail and Fax: 304-422-5599 Linda Lou Murray 197 Oakbrook Drive Mineral Wells, WV 26150 Sandra Kay Flesher Brown 99 Woodridge Drive Mineral Wells. WV 26150 Charlene Rae Flesher Johnston P.O. Box 793 Elizabeth, WV 26143 Charlotte Fae Flesher Ash 8653 White Swan Drive #104 Tampa, FL 33614 Virginia Ann Roberts Villers 28649 Alessandria Circle Bonita Springs, FL 34135 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 10/20 Charles Bruce Roberts, Jr. 487 Wilson Fork Elizabeth, WV 26143 Lisa Ann Rader Smith Post Office Box 717 Elizabeth, WV 26143 Patricia Ann Marks Chapman 2670 Pettyville Road Parkersburg. WV 26101 James Berl Marks 1093 S. Pleasant Hill Road Belleville, WV 26133 Thomas Wayne Marks 749 S. Long Run Road Belleville, WV 26133 Betty J. Webb 280 Bethel Road Parkersburg, WV 26101 Randall Wayne Davis 1663 Brookford Road Kernersville, NC 27284 Magen Elizabeth Whited 164 Joe Shore Drive Ravenswood, WV 26164 Aaron C. Boone 3 9054566.1 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 11/20 LINDA Ml!URAV 1 SUCCESSOR § IN THE PROBATE COURT NO, J TRUSTEEANDONBEHALFOPTHE § WILLIAM D. SHORT AND PHYLISS 0. § SHORT REVOCABLE LIVlNG TRUST § INCLUDING THE CREDIT SHELTElt § TRUST CREATEJ) THEREJN1 § · .PLAINTIFF § § V. § § MATEO CORTEZ ROBERT F. § SCHLAGER AND WELLS FARGO § DANK, NATIONAL ASSOCIATION, § OF DEFENDANTS § § § § MATI~O CORTEZ, AS REPRESENTATIVE§ OF THE ESTATE OF DEBORAH CORTEZ§ INTERVENOR § § V. § § J.,JNDA MURRAY, SUCCESSOR § TRUSTEEANDONBEHALFOFTHE § WILLIAM D. SHORT AND 'PHYLLIS D. ~ SHORT REVOCABLE LIVING TRUST § INCLl/DING THE CREDIT SHELTER § TRUST CREATED THERElN § § TRAVIS COUNTY, TEXAS ORDER GRANTING THIRD PARTY DEFENDANTS' TRADITIONAL AND NO EYIDENCJk MOTION FOR SUMMARY JUDGMENT, On 1his day. the Court considered the Traditional and No Evidence Motion for Smn1nary .ludgmc11l (1he ··Motion'·) tiled by Third Pt'lrtY Defendm1ts, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie L.ee Keith Ban-y, Randall Wayne Davis, Virginh\ Villers, Charles Robe11s~ Lisa A. Smith. Pntticiti Chapman, Betty .I. Mfltks Webb, fomcs Berl Marks. Linda Mmray. Thomas Wayne Marks. Donald Lem~m Whited, Michl1e! Ray Whited, EXHIBIT . A Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 12/20 No, C-l~PR-14~001564 Tcn-y Lee Whited and Sherry Lynn Whiled Salsbury, nll in their individual capacities. Mnving considered the Motion, the response. all admissible st1111mai·y judgment evidence, the arguments of counsel. and the other papers on tile with the Court. the Co~ll'l hereby GRANTS the Motion in its entirety. It is the1·efore, ORDERED> that Maleo Cortez's claims against Third Party Defendants in this lawsuit a.re dismissed in their enlirety. In parlicular, the Court hereby dismisses nny and al! claims that Mateo Cortez. in his individual cnpacit)' or in his capacity ns personal representative or the Estate or Deboruh Cortez, has to tmy m1sets of The William D. Short ~ind Phyllis D. Short Revocable Living Trust (the :.Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach or fiduciary duty against Linda Murray. in her capacity tis trustee of the: TrusL SIGNED this 19th day ofDecember, 2016. 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 13/20 No. C-l·PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ PlaintljJ § § ~ § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOBSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETTY J. MARl{S WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEK WHITED and § SHERRY LYNN WHITED SALSBURY § Defendanta § TRAVIS COUNTY, TEXAS ORDER QN THIRD Pt\BTY PEFENDANIS' MOTION TO MODIFY JJJPGMl~T TO INCLUDE SANCTIONS AWARD On this day, the Court considered the Motion To Modify Judgment to Include Sanctions Award and the Supplement to the Motion To Modify Judgment to Include Sanctions Award (collectively the "Motion"), each filed by Third Party Defendants Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston1 Connie Lou Keith Barryt Randatl Wayne Davia, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks. Donald Leman Whited, Michael Ray Whited1 Terry Lee Whited and Sheny Lynn Whited Salsbury (collectively "Third Party Defendants''). Having considered the Motion, the response thereto, the admissible evidence, the other papers on flle in this matter, and the arguments of counsel; the Court hereby GRANTS the Motion in part and makes the following findings and orders: The Court finds that attorney William J, Brotherton violated Texas Civil Practices and Remedies Code Chapter l O in signing the Original Petition in Intervention, the FJrst Amended 1 EXHIBIT . B Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 14/20 No. 0·1-PB-16.002348 Petition in Intervention and Third Party Petition, Second Amended Petition in Intervention and Third Party Petition, the Third Amended Petition in Intervention and Third Party Petition, and the Fourth Petition in Intervention filed in this matter. In particular) the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code § 10.001 by signing these pleadings because each of them contained the claim that Doborah Cortez was entitled to all assets ftom The William D. Short and Phyllis D. Short Revc,cable Living Trust {the 0 Trust") upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The Court finds that the plain language of the Trust foreclosed such a claim and that this claim was not warranted by existing law or by a non•mvolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further finds that attomoy William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable. By maintaining that legal position in his Fourth Petition in Intervention, he caused the Third Party Defendants to incur additional attorneys' fees in responding to attorney William J. Brotherton's claim regarding postponement of the trust. The Court hereby sanctions William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $31,150.76 for fees incurred for work done by Brian Thompson and his associates at Hopper Mikeska, PLLC and $33,980.00 for fees incurred by Aaron Boone and his associate attorney at Bowles Rice, LLP, for a total of $65,130.76. The Court orders that this amount be paid to the Third Party Defendants within 30 days of the entry of this order. The Court finds that there is a direct relationship between the sanctions being imposed and Mr. Brotherton 's sanctionable conduct, in that the aforesaid amount represents reasonable and necessary attorneys• fees expended by attorneys for the Third Part Defendants to defend against 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 15/20 the ft·ivolous claim5 advanced by William J. Brotherton and the Brotherton Law Firm; that the sanctions are not excessive; and that these sanctions will appropriately deter other attorneys from .signing pleadings containing claims that violate Texas Civll Practices end Re111edics Code Chapter 10. The Court hereby modifies its judgment entered on December 19, 2016, to inch.1de this award of sanctions. Sig11ed thi.s 10th day ofFebruary1 2017. 3 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 16/20 CAUSE NO. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A, SMITH, PATRICIA § CHAPMAN, BETTY J. MAR.KS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD. § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the ..Motion for Summary Judgment'') filed by Third Party Defendants, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis. Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whi1ed, Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (colJectively 0 Third Party Defendants•,, in Cause Number C-1-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidencet the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the. Motion for Summary Judgment in its entirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular; the Court dismissed any and all claims that Mateo Cortez, in his individual 1 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 17/20 capacity or irt his capacity as personal rcprcsentutive of the Estate of Debornh Co11cz 1 had to any misets of The William D. Shott and Phyllis D. Short Revocable Living Trust (the "Trust"), other tlmn his clnim for undistributed income from the Trnst during the life of Debornh Cortez. Also on December 19, 2016, the Court considered Third Party Defendants' Motion to Sever, After considering the Motion to Sever, the response, the tl!'guments of cmmsel, and the other papers on flle with the Court, the Cou,t GRANTED the Motion ro Sevot· In its entirety and ORDERED that Mateo Corez's claims against Tbircl Party Defendants in this lawsllit be severed in their entirety and assignee! the now CilUSC number C" I~PB" 16"002348. On January 16, 2017, Third Parly Defendants filed their Motion to Modify ,Judgment to Include Sunctio11s Award (the .. Motion to Modify"), which extended the plenary powei- of the Court to modify its judgment. The Motion to Modify was heard by the Court at fl heal'ing on January 30, 2017. After considering the Motion to Modify, the response, the admissible evidence presented at the hoaring, the response, rhe urguments of counsel, and the othor papers on file with the Court, grnnted the Motion to Modify in part and granted S'1nctions. The Coul't sanctions altomey William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $65,130.76 1 and ORDERS that this amount be paid to the Third Party Defendttnts within 30 days of the entry of this final judgment. This amended judgment finally disposes of all ctnin1s and parties and 1s final and nppcalable. Signed this 10th dny of Feb1·uary. 2017. 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 18/20 1 l REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES 2 TRIAL COURT CAUSE NO. C-1-PB-14-001564 3 LINDA MURRAY, SUCCESSOR * IN THE PROBATE COURT TRUSTEE AND ON BEHALF OF THE * 4 WILLIAM D. SHORT AND PHYLLIS * D. SHORT REVOCABLE LIVING TRUST* 5 INCLUDING THE CREDIT SHELTER * TRUST CREATED THEREIN * 6 l?LAINTIFF * * 7 vs, * * 8 MATEO CORTEZ, ROBERT F. * SCHLAGER AND WELLS FARGO BANK, * 9 NATIONAL ASSOCIATION, * DEFENDANTS * 10 * ***** * NO. 1 OF 11 * MATEO CORTEZ, AS REPRESENTATIVE* 12 OF THE ESTATE OF DEBORAH * CORTEZ, INTERVENOR * 13 * vs. * 14 * LINDA MURRAY, SUCCESSOR TRUSTEE* 15 AND ON BEHALF OF THE WILLIAM D.* SHORT AND PHYLLIS D. SHORT * 16 REVOCABLE LIVING TRUST * INCLODING THE CREDIT SHELTER * 17 TRUST CREATED THEREIN, * RESPONDENT IN THE INTERVENTION* TRAVIS COONTY, TEXAS 18 ************************************************************** 19 APPLICATION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF 20 ************************************************************** 21 On the 18th day of December, 2015, the following 22 Application for Temporary Restraining Order and Injunctive 23 Relief came on to be heard outside the presence of a jury, in 24 the above-entitled and numbered cause before the Honorable Guy 25 Herman, Judge Presiding, held in Austin, Travis County, Texas. ,.. MELISSA VOIGT, CSR (512) 854-9258 EXHIBIT C Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 19/20 25 1 MR. BROTHERTON: It was a quick show. 2 THE COURT: I know, Be's fast, he's speedy 3 sometimes. 4 MR. HESTER: He showed it to the wrong person. 5 THE COURT: I'm not going to prohibit them from 6 proceeding, I'm not going order them to dismiss in West 7 Virginia. You all can go to West Virginia and argue. 8 MR. BROTHERTON: The problem is of course, Your 9 Honor, is our guy has limited funds and -- 10 THE COURT: But he's got good lawyers, so -- who 11 are looking at an opportunity if you•re right of getting five 12 million dollars. 13 MR. COHEN: Yeah. 14 THE COURT: X'm sure that you can -- 15 MR. COHEN: Should have signed a contingent fee. 16 THE COURT: -~ make your way to West Virginia. 17 MR. BROTHERTON: Well, I certainly -- well, we can 18 come back. What about the setting, the injunction? 19 THE COURT: Because this is just a TRO time so -- 20 MR. COHEN: Yeah. 21 THE COURT: Be 14 days from now. 22 MR. BROTHERTON: Okay. So just get with your 23 clerk to get set a date. 24 THE COURT: Well, yes. Let's see. I don't know 25 when that would be. MELISSA VOIGT, CSR (512) 854-9258 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 20/20 29 1 THE STATE OF TEXAS 2 COUNTY OF TRAVIS 3 I, MELISSA VOIGT, Official Court Reporter in and 4 for the Probate Court No. 1 of Travis County, State of Texas, 5 do hereby certify that the above and foregoing contains a true 6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the 8 parties to be included in this volume of the Reporter's 9 Record, in the above-styled and numbered cause, all of which 10 occurred in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of 12 the proceedings truly and correctly reflects the exhibits, if 13 any, offered by the respective parties. 14 I further certify that the total cost for the 15 preparation of this Reporter's Record is $130.50 and was paid 16 by Rose Cohen. 17 WITNESS MY OFFICIAL HAND this the 17th day of 18 March, 2016. 19 20 /s/ Melissa Voiqt 21 MELISSA VOIGT, CSR i4886 Official Court Reporter 22 Probate Court No. 1 Travis County, Texas 23 1000 Guadalupe, Room 217 Austin, Texas 78701 24 (512) 854-9258 C.S.R. Certification No. 4886 25 Expires: 12/16 MELISSA VOIGT, CSR (512) 854-9258 APPENDIX E IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, Plaintiff, vs. CIVIL ACTION NO. 15-C-28 HONORABLE ROBERT A. WATERS,Judge LINDA LOU MURRAY, et als, Defendants. RESPONSE OF LINDA MURRAY, IN HER CAPACITY AS SUCCESSOR TRUSTEE OF THE WILLIAM D. SHORT AND PHYLLIS D. SHORT REVOCABLE LIVING TRUST, TO THE MOTION TO INTERVENE FILED BY THE ESTATE OF DEBORAH CORTEZ Comes now Linda Murray, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, and files her Response to the Estate of Deborah Cortez' Motion to Intervene. The Movant has filed a Motion to Intervene in the case at bar relying upon Rule 24(a)(2) of the West Virginia Rules of Procedure. Rule 24(a)(2) provides: (a) Intervention of Right- Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the adjudication of the action may as a practicable matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. The timeliness of an application to intervene is a matter of discretion with the trial court. Syllabus Point 10, Pioneer Co. v. Hutchinson, 220 S.E.2d. 894 (1975), overruled on other 1 grounds; Syllabus Point, West Virginia Public Employees Insurance Board v. Blue Cross Hospital Service, Inc., 180 W.Va. 178 (1988). In the West Virginia Public Employees Insurance Board case, the West Virginia Supreme Court of Appeals applied the same standard for review of the timeliness of a motion to intervene as applied in Federal Court Review of such decisions. "The same standard has been applied in federal review of such decisions. In NAACP v. State ofNew York,413 U.S. 345,
93 S. Ct. 2591,
37 L. Ed. 2d. 648 (1973), the party moving to intervene filed its motion just four days after the entry of the summary judgment order, yet the United States Supreme Court affirmed the trial judge's denial intervention. The court enumerated the criteria for reviewing a trial judge's discretionary decision to deny motion to intervene. Three areas were considered by the court: whether the underlying action had progressed to a point that intervention would substantially affect the parties to the original action; whether unusual circumstances exist which establish that the interest the movant alleges was inadequately protected; and whether the movant knew or should have known of the pendency of the action."
NAACP, 413 U.S. at 366-69, 93 S.Ct. at 2602-04,
37 L. Ed. 2d. at 662-64, West Virginia Public Employees Insurance
Board, supra, at pg. 814. Based upon review and analysis of the areas to be considered by this Court in ruling upon the pending motion, the motion should be denied for the following reasons: I. The Estate of Deborah Cortez bas no standing to Intervene in this civil action. It is axiomatic that the "Estate of Deborah Cortez" is not a proper party to this action, has no right to intervene and properly not named as a party. Estates are not natural or artificial persons, and they lack legal capacity to sue or to be sued, an action against an estate must be brought against an administrator or executor as a representative of the estate. 31 Am.Jur.2d, Executors and Administrators.§ 1141 (2016) The Estate of Deborah Cortez is non sui juris, as such it lacks the legal capacity to intervene in this action. This principle is clearly recognized in 2 the proposed intervenor hails. It is well settled that "an 'Estate' is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party." Gavishev. Spence, 129 S.W.Jd 701, 704n.l (Tex. App. 2004). Defendant's estate was not a legal entity and could not be sued as such. Henson v. Estate ofCrow,
734 S.W.2d 648, Supreme Court of Texas (1987). Price v. Estate ofAnderson, 522 S.W.2d 690,691 (Tex. 1975). II. The Motion Is Untimely This case was initially filed on November 20, 2015, nearly 19 months prior to the filing of the intervenor's motion. In the original Complaint filed in this action, Mateo Cortez, now the Personal Representative of the Estate of Deborah Cortez, was named as an individual defendant. Paragraph 13 of the Complaint stated: "13. Mateo Cortez, the surviving spouse of Deborah Ann (Short) Cortez, claims that as the surviving spouse of Deborah Ann (Short) Cortez he is entitled to the Trust proceeds. His claim is without legal merit, nevertheless, in order that he may appear and protect his interest, if any, he is named as a defendant herein." Mateo Cortez was not named as a defendant in his capacity as Personal Representative of the Estate of Deborah Cortez in the Complaint for the reason that at the time filing of the Complaint there was no on-going administration of the Estate of Deborah Cortez. Over three and one-half years prior to the filing of the Complaint, on February 21, 2012, two and one-half months after the death of Deborah Cortez, the movant, Mateo Cortez filed a Small Estate Affidavit in the Probate Court of Travis County, Texas. A copy of the Affidavit is attached hereto, marked as Exhibit A and made part hereof. In his Affidavit, Mateo Cortez swore that the 3 total value of all known assets of the decedent, as of the date of her death, not including the homestead and exempt property, does not exceed $50,000.00. The Affidavit stated that there was no petition for appointment of a personal representative pending, nor had one been granted. In the civil action sub judice, the defendant Mateo Cortez has repeatedly claimed that: (I) he was married to Deborah Cortez; (2) Deborah Cortez died intestate and without issue; and (3) he is the sole heir at law of Deborah Cortez. Mateo Cortez is the individual who had a right to open the estate of Deborah Cortez, V. T. C.A., Estate Code §304.00 I. He failed to do that with the result that he was the only person who could be served with the legal process intended to notify the heirs of Deborah Cortez of this litigation. The interests of Mr. Cortez are identical to the interest of"the estate of Deborah Cortez". Mr. Cortez should not be heard to complain about what he caused by willfully misrepresenting to the Texas Probate Court the extent of the assets of Deborah Cortez. The movant has been aware of the pendency of this action since its initial filing. Mateo Cortez did not become appointed as the Personal Representative of the Estate of Deborah Cortez until well after the filing of the Complaint. The movant has no justification, other than malicious interference, for the delay in filing the Motion to Intervene as the Personal Representative of the Estate of Deborah Cortez. III. The Estate of Deborah Cortez has no interest in the Property which is subiect of this action. The Estate of Deborah Cortez has no interest in the property which is the subject of this action. This has been specifically found by the Travis County Probate Court. In a parallel case filed in the State of Texas, styled Mateo Cortez, as Representative of the Estate of Deborah 4 Cortez, Plaintiff, vs. Sandra Fleshman Brown, et al., Travis County Probate Court No. l, Cause No. C-l-PB-16-002348, Judge Guy Hannon on February 10, 2017, entered an Amended Final Judgment ordering that the claim of Mateo Cortez as Personal Representative of the Estate of Deborah Cortez be dismissed in its entirety. The Judgment Order states in pertinent part: "In particular, the court dismissed any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez, (emphasis added) had to any assets of the William D. Short and Phyllis D. Short Revocable Living Trust (the Trust), other than his claim for undistributed income from the Trust during the life of Deborah Cortez." In its Amended and Final Judgment, the Texas Probate Court imposed sanctions upon the attorney for Mateo Cortez, William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amountof$65,130.76. The defendants in the Texas litigation had previously filed a Motion to Modify Judgment to include the sanctions award. The Court in its Order granting the Motion found that William J. Brotherton violated Texas Civil Procedure Remedies Code Chapter 10 in signing the original Petition in Intervention, the First Amended Petition in Intervention and the Third Party Petition, Second Amended Petition in Intervention and the Third Party Petition, the Third Amended Petition in Intervention and the Third Party Petition and the Fourth Petition in Intervention filed in this matter. In particular, the Court found that "Mr. Brotherton violated Texas Civil Procedure and Practices Remedies Code § l 0.001 by signing these pleadings because each of them contained the claim that Deborah Cortez was entitled to all the assets from the William D. Short and Phyllis D. Short Revocable Living Trust (the Trust) upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The court finds that the plain language of the Trust foreclose such claim and that this claim does not warrant 5 by existing law or by a non-frivolous argument for the extension, modification, or reversing of existing law or the establishment of new law." Copies of the Amended Final Judgment entered in the Travis County Probate Court litigation on February I0, 2017, and the Order on Third Party Defendant's Motion to Modify Judgment and Include Sanction Award dated February 10, 2017, are attached hereto, marked as Exhibits A and B, and made part hereof. IV. The Movant's interest in the proceeding bas been adequately represented by the original defendant, Mateo Cortez. Mateo Cortez was originally named as a defendant in this proceeding and has heretofore been dismissed from this action by this Court. By Order entered by this Court on September 15, 2016, the Court found that "Mateo Cortez is not a beneficiary of the Trust and is not entitled to share in the distribution of Trust assets." The Movant's claimed interest in the property set out in his Motion to Intervene is identical to the claim made by Mateo Cortez in his individual capacity. Mateo Cortez is the sole beneficiary of the Estate of Deborah Cortez. The claim now being advanced by Mateo Cortez in his capacity as the Personal Representative of the Estate of Deborah Cortez is identical in all respects to the claim made by Mateo Cortez in his individual capacity. With both claims, Mateo Cortez is ultimately seeking an Order from the Court that he is entitled to distribution of all the assets of the Short Trust The Court has already fully considered his claim as to Mateo Cortez in his individual capacity and found it to be without any merit whatsoever and dismissed Mateo Cortez as a party to this action. Now, Mateo Cortez, wearing a different hat, is simply attempting to re~litigate his dismissal. The Motion is frivolous and is filed in violation of Rule 11 of the West 6 Virginia Rules of Civil Procedure. V. Intervention will unduly delay or prejudice the adjudication of the rights of the remaining parties to this action. The controversy giving rise to this proceeding has been the subject of extensive litigation in this Court, the Travis County Probate Court in the State of Texas, the United States District Court for the Southern District of West Virginia, and the West Virginia Supreme Court of Appeals at considerable time and expense to the parties. All aspects of this case have been reviewed in detail by the various Courts. In each instance of court review, the Movant has been rendered an adverse ruling. The Motion before the Court is simply another effort by the Movant, Mateo Cortez, and his sanctioned counsel, William J. Brotherton, to delay the ultimate conclusion of this case, all to the prejudice of the real parties in interest. VI. Conclusion For all the above-stated reasons, Linda Murray, in her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, respectfully prays that the Court deny the Motion to Intervene filed by the Estate of Deborah Cortez. LINDA MURRAY BY COUNSEL 7 l`` .· ..1·· WV State Baf#l~9 417 Grand r•Dri:Voe, Suite 101 Parltersbllr~ WV 2Ki10.S 304/424~5449. Couns.el for Linda .Mtmr.ay 8 Cause No. C-1-PB-12-00O~ EXHIBIT A -------- ·~ ... ~ \~: IN THE ESTATE OF § IN THE PROBATE COURT ~ \~ ~ DEBORAH A. CORTEZ § § § NO._____ t ,r ``"{- (P c;.. 0 ~ ~ A'\179 W. Va. 48--- Notary Public in and for Travis County, State of Texas l, My Commission Expires: i/,..,.f S- Pa2e 2 of4 STATE OF TEXAS § § COUNTY OF TRAVIS § "1 have no interest in the Bstate of DEBORAH A. CORTEZ, Deceased, and am not related to Afftdav~ are true." h. Decedent under the laws of descent and distribution of the State of Texas. The facts contained in this ~ Sergio``,.{-{ SWORN TO and SUBSCRIBED BEFORE ME by Sergio Madrigal, this 1!L_ day of fd>r1ta,q_ _ _ _, 2012, to certify which witness my hand and seal of office, in the capacity therein stated. 0 (Seal) -'4, Y1Vm.c1 ~ No Public i and for Travis County, State of TeXJ!SI J My Commission Expires: i:J(.J I '-l 20()- STATE OF TEXAS § § COUNTY OF TRAVIS § "I have no interest in the Estate of DEBORAH A. CORTEZ, Deceased, and am not related to Decedent under the laws of descent and distribution of the State of Texas. The facts contained in this Affidavit are true." ~Affiante) SWORN TO and SUBSCRIBED BEFORE ME by John Alvarez, this~ day o f @ ~ 2012, to certify which witness my hand and seal of office, in the capacity therein stated. (Seal) e SUSlEA.BAAREAA My Commts:slon E,cplle8 July 24, 2016 ~w~.5~ Notary Public in and for Travis County, State of Texas My Commission Expires: -,JJ.fff,"f> BENLBARRBRA Attorney for MATEO CORTEZ State Bar No.: 01808450] 606 W.Oltorf Austin, Texas 78704 Telephone: (512) 445-2054 Facsimile: (512) 445-4985 -'"' ~ L Ob , l "'.oe"- .. ,-,ero. (t).SLic LA l)cl,,t.. ~e:r- Pue3of4 EXlllBITB No. C-1-PB-14-001564 LINDA MURRAY, SUCCESSOR § IN THE PROBATE COURT NO. I TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLISS D. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN, § PLAINTIFF § ,_.. ..-(\ § ·:~- t;;:'.. ~ •..f\ V. § S?"\ '•? § ,·7 . ::, -,·., MATEO CORTEZ, ROBERT F. § :; :_; ."\ SCHLAGER AND WELLS FARGO § --0 \ -:;;. ,·'> BANK, NATIONAL ASSOCIATION, § OF ti' ~7. DEFENDANTS § § ;p;;: a . '- ***** § ,, § MATEO CORTEZ, AS REPRESENTATIVE§ OF THE ESTATE OF DEBORAH CORTEZ§ INTERVENOR § § V. § § LINDA MURRAY, SUCCESSOR § TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLLIS D. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN § § TRAVIS COUNTY, TEXAS ORDER GRANTING THIRD PARTY DEFENDANTS' TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT On this day. the Court considered the Traditional and No Evidence Motion for Summary Judgment (the ··Motion") filed by Third Party Defendants. S,mdra Flesher Brown. Charlotte Flesher Ash. Charlene Flesher Johnston. Connie Lee Keith Barry. Randall Wayne Davis. Virginia Villers. Charles Roberts. Lisa A. Smilh. Patricia Chapman. Betty J. Marks Webb. James Berl Marks. Linda Murray. Thomas Wayne Marks. Donald Leman Whited. Michael Ray Whited. No. C-1-PB-14-001564 Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities. Having considered the Motion. the response. all admissible summary judgment evidence. the argumenls of counsel. and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore. ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular. the Court hereby dismisses any and all claims that Mateo Cortc7_ in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez. has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust {the '·Trusf'). other than his claim for undistributed income from the Trust during the file of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray. in her capacity as trustee of the Trust SIGNED this 19th day of December. 2016. .., Case 2:16~Qv-09951 Document 34-2 Filed 02/14/17 Page 1 of 2 PagelD #: 2107 EXHIBITC CAUSE NO. C-l-,.PB,.16-002348 MATEO CORT:E:Z, AS REPRESENTATIVE§ IN THE PROBATE COURTNO, l OF THE ESTATE OF DEBORAH CORTEZ§ Plaitttiff § § ~ § OF § SANDRA FLESHFJR BROWN, § CHARLOT'I'E FLISI$RASII, § CHARLENE FLESHERJOI{STON, § CONNIE BARRY, llA:NDALL WAYNE § DAVIS,.VIRGJNL\ VltL&a&. CHARLES § ROBERTS, LIS-" A. SMITB, PATRICIA § CHAPMAN,. BETn: J. MARKS. WEBB, § JAMES BERL MAJU(S, LINDA MURRAY, § 'THOMAS WAYNE MARKS, DONALD § LEMAN WBITE01 MIPHAE~ RAY § WHITED, TERRY LEE WHITED and .§ SHERRY LYNN'WtiITED SALSBURY § Dl!fendanta § TR.AVIS•COUNTY,TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion fQr Summary Judgm~nt (th~ ··Motion for Summary Ju(lgrnenf')filed by Third Party P~fendants, Sandra Flesher Brown. Charlotte Flesher A.sh, Charlene Flesher Johnston. Connie lee Keith Chapman1 Betty J. Marks Webb, James Berl ·Marks, Linda Murray, Thomas Wayne Marks. DQnald Leman Whj~ Michael Ray Whited, Terry Lee Whited and Sh.eey Lynn Whited Satsbury, an in their individua,l capacities (collectively "Third Party Defendants,.), in Cause Number C-J .;PB-14-001564. After considering the Motion for Summary Judgment, the response1 aU admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court. the Court GRANTED the Motion for Summary Jud3ment in itsentirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In partfouuu-, the Co:urt di~missed any and all claims that Mateo Ct.irte:i:, in 11.is inttlvidual l case 2:16-cv-09951 Document 34-2 Filed 02/14/17 Page 2 of 2 PagelD #: 2108 capacity or in hi.s capacity .is personal representative of the Estate or Dcbornh Cmtcz. had 10 uny us.sets ofThc \Villiam D. Short and Phyllis D. Short Revocable Living Trust (lhc ·Trust''). othcf thnn his claim tor undistributed irn:omc from the Trust d~1ring the life or Dcht>nth Cortez. Also on December l 9. 201 (1, the Court considered Third Party De fondant!>· Motion to Sever; Aficr considering the Motion to Scwr, the response, the arguments of counsel. and tlm other p.ipcrs on file with the Court. the Court GRANTED the Motion to Sever in it~ entirety nnd ORDERED tlmt Marco Corcz's claims against Third Party Dcfonchmts in this lawsuit be .severed in thcfr entirety and assjgned the new cause number C-l-PB-16-00234{{. On January 16. 2017. Third Party f)dcndanrs filed their l'vfotfon 10 Modify Judgment JO Include Sanctfon$ Award (the "Motion to l\.1lodify"), which extended the plenary power of the Coun to modify iis judgment. The Motion to i\fodify was heard by the Court at a hearing on .lanuury 3(). 2017. A flcr considering the Motion to Modify, the response, the mhnissiblc evidence prcscntcd at the hearing, the response, tht arguments of counsd, and the other papers on file wirh the Court. gnintcd the iVlotion to rvlodify in part and granted sanctions. The Comt sanctions nttorncy Williain .I. Brodwrton and the Brothcn<:111 Law Finn, Jointly and scvcrnlly. in the amount of $65.130.76, ntul ORDERS thul this amount be paid to the Third P.irly Dclcndants within 30 duys of the entry of this final judgment. This ac11cnded judgment finally disposes of nit claims anil partk:- und is fim1! and appe,ilabk. Sigli¢d this l 0th day of February. 20 l 7, 2 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA Linda Murray, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, CIVIL ACTION NO: 15-C-28 vs. Honorable Robert A Waters, Judge Linda Lou Murray, et a/s., Defendants. CERTIFICATE OF SERVICE The undersigned, counsel of record for Plaintiff, Linda Murray in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, in the above styled action, hereby certifies that on this 22nd day of June, 2017, he served the foregoing and hereto attached RESPONSE OF LINDA MURRARY, IN HER CAPACITYAS SUCCESSOR TRUSTEE OF THE WILLIAM D. SHORT AND PHYLLIS D. SHORT REVOCABLE LIVING TRUST, TO THE MOTION TO INTERVENE FILED BY THE ESTATE OF DEBORAH CORTEZ upon the Defendants, by United States Mail, First-Class postage prepaid, to the following counsel of record and other persons in envelopes addressed as follows: ames W. Marshall, 111, eslie L. Maze, Esquire aron C. Boone, squire ttorney at Law aitlyn N. McKitrick, AILEY & WYANT, PLLC 0 Box 279 avid A DeJarnett 00 Virginia Street, East - lizabeth, WV 26143 owles Rice, LLP uite 600, Post Office Box ounsel of record for the ifth Floor, United Square 710 ollowing Defendants: 10 Avery Street, PO Box 49 harleston, WV 25337-3710 herry Lynn Whited Salsbury arkersburg, WV 26101 ounsel of Record for the erry Lee Whited ounsel of Record for the efendant, Mateo Cortez ichael Ray Whited efendant, Connie Lou Keith onald Whited arry. state of Teresa Whited ettrey, deceased - Sheila ettrey, Tywanna Pettrey, and manda Pett Beneficiaries irginia Ann Villers oseph T. Santer, Esquire andall Wayne Davis 8649 Allesandria Circle anter and Santer 663 Brooksford Road onita Springs, FL 34135 0 Box 306 ennersville, NC 27284 arkersburg, WV 26102 uardian ad litem for nknown Defendants. harlotte Flesher Ash harles Bruce Roberts isa Ann Rader Smith 653 White Swan Drive 87 Wilson Fork 6 Franklin Street pt. 104 lizabeth, WV 26143 lizabeth, WV 26143 am a FL 33614 homas Wayne Marks ames Berl Marks etty Jo Marks 49 South Long Run Road 093 South Pleasant Hill 834 South Pleasant Hill elleville, WV 26133 oad oad elleville WV 26133 elleville WV 26133 andra Kay Brown agen Elizabeth Whited 9 Woodridge Drive 64 Joe Shore Drive ineral Wells WV 26150 avenswood WV 26143 harlene Flesher Johnston inda Lou Murray illiam J. Brotherton 7 Franklin Street 97 Oakbrook Drive rotherton Law Firm lizabeth, WV 26143 ineral Wells, WV 26150 340 FM 407, Suite 200 i hland Villa e TX 75077 Plaintiff Linda Murray By Couns , R'l--~'-,...F-t-fi · , J WV State Bar No. 1229 Fluharty & Townsend 417 Grand Park Drive, Suite 101 Parkersburg, WV 26105 304.422.544 G:\RSF\Civil\Short Family Trust, Linda Murray, Trustee 9360\WIRT COUNTY SUIT\Pleadings\Certificate of Service TTEE response to MTINTERVEN by EDC 06.21.17.wpd APPENDIX F IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA Linda Murray, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, vs. CIVIL ACTION NO. 15-C-28 HONORABLE ROBERT A WATERS, Judge Linda Lou Murray, et als, Defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came on for hearing this 27 111 day of June 2017 on the properly served motion for summary judgment and notice of hearing thereon filed by the Plaintiff, Linda Murray, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991. The plaintiff, Linda Murray, appeared in person and by her counsels Robert S. Fluharty Jr., and J. Nicholas Barth. The defendant Connie Lou Keith Barry, appeared in person and by her counsel Aaron A. Boone. The defendants Donald Lehman Whited, Michael Ray Whited, Sheri Lynn Whited Saulsberry, Sheila Patry, I want to Patry, Amanda Patry (all heirs of Theresa Annette Whited Patry), and Terry Lee Whited appeared by their counsel Leslie Maze. Joseph Santer, Guardian ad Litem for unknown defendants and the minor defendant was present throughout the hearing. The court reporter made a list of the parties who appeared pro se. Although Mateo Cortez was dismissed as a party to this civil action pursuant to the order of this Court entered September 15, 2016, counsel for Mr. Cortez were present at the hearing on this motion for summary judgment allowed to participate, and the Court considered the matters raised by them in their response to the motion for summary judgment served on the 21 st day of June, 2017. The Court has reviewed the pending motions and memoranda filed by all parties herein and being fully apprised of the parties respective positions in finding the motion ripe for decision the Court hereby makes the following findings of fact and conclusions of law. FILED Circuit Court 0atel,-30-1, CLERK7=J . . FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. This action was filed pursuant to the West Virginia Uniform Declaratory Judgment Act seeking an Order from the Court directing the distribution of assets from a Trust to the persons determined by the Court to be entitled to receive the same. 2. In its order dated the 15th day of September, 2016 this Court made Findings of Fact and Conclusions of Law. Those findings of fact and conclusions of law are hereby ratified and approved and confirmed and adopted herein as though set forth herein verbatim. 3. The court having denied the Motion to Intervene served by the Estate of Deborah Cortez on the 12th day of June, 2017 and the Motion to Dismiss served by Mateo Cortez on the 12th day of June, 2017, and the Motion to Alter or Amend, (denominated as Motion for Reconsideration in the certificate of service) served by Mateo Cortez on the 29 th day of September, 2016. 4. The Court concludes that there is no just reason for delay and expressly directs the entry of a judgment order setting forth the identity of the persons entitled to share in the William D. Short and Phyllis D. Short Revocable Living Trust, and the proportionate interest of the net Trust which each is entitled to receive. JUDGE ROBERT WATERS PREPARED BY: I hereby certify that the foregoing is atrue and correct copy of the original entry on file in my office ATTEST: Carol Frame 'it Clerk-Wirt Cou , VN G:\RSF\Civi_l\Short Family Trust, Linda Murray, Trustee 9360\WIRT COUNTY SUIT\version 2 Findings of Fact and Conclusions of Law 06.26.18.wpd ACCEPTED 03-17-00365-cv 21267080 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/13/2017 1:36 PM JEFFREY D. KYLE CLERK APPENDIX G IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. MEMORANDUM IN SUPPORT OF DEFENDANT CONNIE LOU KEITH BARRY'S MOTION FOR SANCTIONS Defendant Connie Lou Keith Barry ("Mrs. · Barry"), by counsel, submits the following memorandum of law in support of Defendant Connie Lou Keith Barry's Motion for Sanctions (the "Motion"), pursuant to this Court's equitable power to sanction bad faith, vexatious, wanton, or oppressive litigation conduct articulated in Syllabus Point 3, Sally-Mike Properties v. Yokum,
,
365 S.E.2d 246(1986). I. INTRODUCTION Mateo Cortez, for years, never claimed that he or the Estate of Deborah Cortez were the sole beneficiaries to the Trust. However, as soon as Mateo Cortez and his counsel discovered that the Trust contained 5.2 Million in assets, they immediately concocted meritless arguments to suggest that he was the sole beneficiary to the Trust Assets. This forced Mrs. Barry to hire counsel to refute these claims. However, even after winning judgment against Mateo Cortez on September 15, 2016, Mrs. Barry had to expend tens of thousands of additional dollars in litigation costs solely to respond to further, frivolous filings that were submitted solely to: (a) delay this Court's consideration of the Trustee's motion for summary judgment, and (b) to drive up Mrs. Barry's litigation costs and deplete the Trust Assets. Accordingly, this Court should sanction Mateo Cortez and his counsel, and order them, jointly and severally, to pay any and all costs incurred on behalf of Mrs. Barry, at a minimum, since September 15, 2016. II. STANDARD OF REVIEW 1. "There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syl. Pt. 3, Sally- Mike Properties v. Yokum, 179 W.Va. 48,
365 S.E.2d 246(1986). 2. "In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case." Sy!. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381,472 S.E.2d 827 (1996). 3. "Before imposing sanctions for filing frivolous pleadings and advancing frivolous arguments, a trial court must give the alleged contemnor notice and an opportunity to be heard on the questions of frivolousness, appropriate sanctions, and, if an award of attorney's fees is to be made, on the necessity and reasonableness of such fees. At the conclusion of such hearing, the trial court must make sufficient findings of fact and conclusions of law to enable the 2 appellate court to conduct a meaningful review." Sy!. Pt. 6, Czaja v. Czaja, 208 W.Va. 62,
537 S.E.2d 908(2000). Ill. STATEMENT OF CONDUCT GIVING RISE TO SANCTIONS Background 4. This action involves the proper distribution of the assets of the "William D. Short and Phyllis D. Short Revocable Living Family Trust Dated April 30, 1991 ," as amended and restated by the "Second Amendment and Restatement of The William D. Short and Phyllis D. Short Revocable Living Trust" dated January 5, 2000 (collectively, the "Trust"). 5. On December 9, 2011, Deborah Cortez, the sole daughter of William D. Short and Phyllis D. Short died. 6. On February 23, 2012, Mateo Cortez, the widower of Deborah Cortez, filed a Small Estate Affidavit (Exl,ibit A - Small Estate Affidavit, Cause No. C-1-PB-12-338, Probate Court of Travis County, Texas), confirming that he was the sole heir to the Estate of Deborah Cortez, and confirming that the Estate of Deborah Cortez had less than $50,000 in assets. 7. On August 28, 2014, the Trustee, Linda Murray, filed an action in the Probate Court of Travis County, Texas, asserting, inter alia, that Mateo Cortez and/or Deborah Cortez had misappropriated certain trust assets during Deborah's lifetime. 8. On October 3, 2014, Mateo Cortez filed "Mateo Cortez's Original Answer" (Exliibit B - Mateo Cortez's Original Answer, Cause No. C-l-PB-14-1564, Probate 3 Court of Travis County, Texas) to the Trustee's action. In his Answer, Mateo Cortez did not claim that he or the Estate of Deborah Cortez was entitled to the entirety of the Trust Assets. 9. On March 16, 2015, Mateo Cortez filed "Mateo Cortez's First Amended Answer" (Exhibit C - Mateo Cortez's First Amended Answer, Cause No. C-l-PB-14-1564, Probate Court of Travis County, Texas) to the Trustee's action. In his Amended Answer, Mateo Cortez did not claim that he or the Estate of Deborah Cortez was entitled to the entirety of the Trust Assets. 1 10. On June 19, 2015, counsel for Mateo Cortez deposed the Trustee. During this deposition, the Trustee revealed, for the first time to Mateo Cortez and his counsel, that the Trust contained approximately 5.2 Million in assets. 11. On June 26, 2015, Mateo Cortez and his counsel (the Law Firm of William Brotherton) filed their Original Petition in Intervention 2, arguing (for the first time, ever) that Mateo Cortez and/or the Estate of Deborah Cortez were the sole beneficiaries to the Trust and were, therefore, entitled to the entirety of the Trust Assets. 1 Of note, "Mateo Cortez's Original Answer" and ".Mateo Cortez's First Amended Answer" were signed by Attorney John Clark Long IV of Dallas, Texas (Texas State Bar No. 12520500). The signature line for these two pleadings suggests that Mr. Long was not directly affiliated with the Brotherton Law Firm at this time because Mr. Long had a mailing address separate from the Brotherton Law Finn, and because Mr. Long's email address was john@johnlonglawyer.com. However. when Mateo Cortez flied his "Original Petition in Intervention," Mr. Long was directly affiliated with the Brotheron Law Finn because Mr. Long's name appeared directly underneath William Brotherton's name, because Mr. Long no longer had a separate mailing address, and because Mr. Long's email address was john@brothertonlawfrrm.com. 2 Mrs. Bany believes that most, if not all, of the pleadings referenced herein have previously been submitted to this Court. As such, unless otherwise indicated, they will not be attached as exhibits to this Motion. Notwithstanding, Mrs. Barry submits all prior pleadings in further support of her Motion for Sanctions as though they were specifically attached hereto. 4 12. On November 20, 2015, the Trustee filed her Complaint in the Circuit Court of Wirt County, West Virginia, asking this Honorable Court to determine who were the rightful beneficiaries to the Trust. 13. On September 15, 2016, this Court granted Mrs. Barry's motion for partial sununary judgment, and dismissed Mateo Cortez as a defendant in this case based upon the findings, conclusions, and rulings reflected therein. Among other findings, the Court concluded that the plain and unambiguous language of the Trust instrument provides that: (i) the net income of the Trust would be paid to Mr. and Mrs. Short during their lives; (ii) upon Mr. and Mrs. Short's death, the net income of the Trust would then be paid to their daughter, Deborah Cortez, during her life; and then, (iii) upon Deborah's death, any remaining Trust assets would be distributed to the "heirs of law" of Mr. and Mrs. Short, and not to Cortez. The Court also rejected Mateo Cortez's arguments that the Trust should have terminated upon the death of Mrs. Short and its assets distributed to Deborah during her life; and as a result the Trust assets should be treated as an asset of Deborah's estate, of which Cortez is the sole heir and beneficiary. Statement oftlie improper purposes underlvi11g Mateo Cortez's actions 14. Following this Court's entry of summary judgment against him on September 15, 2016, Mateo Cortez, in both his personal capacity and his capacity as the Personal Representative of the Estate of Deborah Cortez (collectively, "Mateo Cortez"), filed numerous additional pleadings that are improper under the rules of procedure, that assert obviously frivolous claims, and that were filed to obstruct further progression of this case and to drive up the parties' litigation costs. These pleadings were filed for the following improper purposes: 5 a. The primary improper purpose of Mateo Cortez's frivolous post- judgment filings was to delay this Court's consideration of the Trustee's motion for summary judgment, filed September 21, 2016, the resolution of which would trigger the parties' "Rule 11 Agreement" in Texas. (Exlzibit D - Rule 11 Agreement, Cause No. C- l-PB-14-1564, Probate Court of Travis County, Texas) The "Rule 11 Agreement" was executed by counsel for Mateo Cortez and the Trustee, and permits the Trustee to distribute assets of the Trust "as may be permitted by a final order by a court of competent jurisdiction." Point being, once Judge Waters ruled on the Trustee's motion for summary judgment, then the Trustee could distribute the Trust assets per the Rule 11 Agreement. b. The secondary improper purposes of Mateo Cortez's frivolous post-judgment filings were: (a) to drive up the litigation costs incurred by the Trustee and the true beneficiaries of the Trust; (b) to deplete the Trust assets available for distribution; and (c) to retaliate against individual beneficiaries (such as Mrs. Barry) for asserting their rightful interests in the Trust. Frivolous pleadings filed after Mrs. Barry obtained judgment against Mateo Cortez3 15. Mateo Cortez submitted the following frivolous filings after this Court granted judgment against him: :J To be clear, Mrs. Barry contends that, from the outset of litigation in West Virginia, Mateo Cortez and his counsel have proffered meritless arguments not founded in Jaw or fact. As such. this Court has every right, under Sally Mike Properties, to order Mateo Cortez and his counsel to pay all of Mrs. Barry's legal fees. However, this Motion for Sanctions will focus on why the pleadings filed after Mrs. Barry obtained judgment against Mateo Cortez are particularly egregious. 6 a. Motion to Amend or Alter: On September 29, 2016, Mateo Cortez filed a motion to alter or amend the Court's summary judgment order against him. Although the motion was procedurally proper, the grounds for relief were frivolous and simply sought to rehash the Court's rulings under baseless alternate legal theories. b. Notice of Removal, Motion to Dismiss: On October 21, 2016, Mateo Cortez filed a notice of removal of this case to the United States District Court for the Southern District of West Virginia, despite the fact that he was no longer a party to the case, there was no basis for invoking federal jurisdiction, and the time for removal had expired nearly a year earlier. Mateo Cortez filed for removal two (2) days after the Trustee noticed her summary judgment motion for a hearing, and did so to prevent the Court from holding that hearing and to delay the Court's disposition of his motion to alter or amend. Additionally, upon removing the case, Mateo Cortez attempted to collaterally attack this Court's rulings by filing a successive, post-judgment motion to dismiss in federal court. On April JO, 2017, the Federal Court rejected Mateo Cortez's argument, and remanded this matter back to the Circuit Court of Wirt County, West Virginia. c. Motion to Dismiss & Motion to Intervene: On June 12, 2017, Mateo Cortez filed (1) a second post-judgment motion to dismiss "in his personal capacity," and (2) a motion to intervene "in his capacity as personal representative of the Estate of Deborah Cortez," along with a proposed intervenor complaint seeking to re- argue his entitlement to the Trust under yet another baseless legal theory. By letter to counsel dated June 15, 2017, (Exhibit E - Brotherton June I 5, 2017 letter) counsel for Mateo Cortez conceded that the intent of these two motions was to delay this Court's resolution of the Trustee's motion for summary judgment: 7 (Mr. Brotherton): I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. E.xhibitE. Notice to Mateo Cortez and his counsel that their conduct was sanctionable I 6. As mentioned below, counsel for Mateo Cortez has, on occasion, argued that he should not be sanctioned because he was never given notice that his conduct was sanctionable. See infra. Accordingly, to demonstrate the efforts to avoid seeking the requested sanction in West Virginia, the following chronicles the various filings, letters, statements, and/or rulings placing Mateo Cortez and his counsel on notice that his claims have no merit and/or that continued litigation of his claims is oppressive, vexatious, and sanctionable: a. September 15, 2016: In this Court's Order granting Mrs. Barry's motion for partial summary judgment, this Court made clear that neither Mateo Cortez, nor the Estate of Deborah Cortez, are entitled to take under the Trust. b. November 7, 2016: In her November 7, 2016, Motion to Remand and Award of Attorneys Fees and Costs, Mrs. Barry made clear that Mateo Cortez removed this case to Federal Court solely to delay the proper administration of the Trust: Additionally, Defendant Cortez did not seek to remove this case until after the state court ruled that he is NOT entitled to a distribution from the Trust. Therefore, it is clear from the timing of this Notice of Removal that the purpose of removing to federal court was solely to obstruct the progression of the state court case, and to delay his obligation to appeal that court's judgment. 8 (See Document 8, Memorandum in support of Mrs. Barry's Motion to Remand, p. 2, not auached4) c. November 11, 2016: In her November 11, 2016, Motion to Remand and Award Attorney Fees and Costs, the Trustee made clear that Mateo Cortez removed this case to Federal Court solely to delay the proper administration of the Trust: In the case at bar there is no reason, other than delay or obstruction, for Cortez to have waited until October 21, 2016, to seek to remove this proceeding from the state court to federal court. (See Document 14, Memorandum in support of Plaintiffs Motion to Remand, p. 14, not attached) d. December 19, 2016: On December 19, 2016, the Texas court also granted summary judgment against Mateo Cortez, dismissing "any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the 'Trust'), other than his claim for undistributed income from the Trust during the life of Deborah Cortez." (See, Order Granting Third Party Defendants' Traditional and No Evidence Motion for Summary Judgment, Cause No. C- l-PB-14-1564, Probate Court of Travis County, Texas, Dec. 19, 2016, not attached). e. January 30, 2017: During a sanctions hearing before the Probate Court of Travis County, Texas, counsel for Mateo Cortez argued, incredulously, that they were never informed that their arguments qualified as bad faith: 4 Mrs. Barry believes the pleadings in Federal Court have been transmitted to the Circuit Clerk and the Court can consider the same as if they were attached hereto. Should the Court need courtesy copies of any pleading, Federal or other, please contact the office of Mrs. Barry's counsel. 9 (Mr. Ruback) If counsel believed that my client was making bad faith arguments from the initial filing in the case, from each hearing that this Court has heard in the case, why didn't counsel bring that to my client's attention? Why didn't counsel bring that to the Court's attention? Laches would bar the arguments they're making today. (Exhibit F - Transcript of January 30, 2017 Hearing, Cause No. C-1-PB-16-2348, Probate Court of Travis County, Texas, p. I 55). However, during this hearing, the undersigned made clear that counsel for Mateo Cortez knew or should have known as early as February of 2016 that Mateo Cortez's claims were sanctionable: (Mr. Ruback) Q: Mr. Boone, when did you first advise my clients that you believe their conduct was sanctionable? (Mr. Boone) A: I think when we had a hearing - I think it was back in February or March [of2016] there was a room full of heirs at law in West Virginia, and there was Judge Waters, there was myself, there was several other attorneys. And I - I believe the discussion about the claims raised by Mateo Cortez, the discussion how they were without any merit at all should have given notice to the Brotherton Law Firm that these claims should not have been continued. (Exhibit F, p. I 09) f. February 10, 2017: On February IO, 2017, the Texas court awarded sanctions against Cortez's lawyers, finding that arguments advanced by Cortez in Texas were frivolous. (Exhibit G - Order on Third Party Defendants' Motion to Modify Judgment to Include Sanctions Award, Cause No. C-I-PB-16-2348, Probate Court of Travis County, Texas). The Texas court sanctioned Cortez's lawyers in the amount of $65,130.76 for driving up Mrs. Barry's legal fees in Texas with frivolous claims. 5 The entire transcript is attached as an exhibit to this Motion. Mrs. Bany asks thjs Court to take judicial notice of this transcript, and to accept and consider same in support of this Motion. 10 g. February 23, 2017: On February 23, 2017, the undersigned sent a letter to William J. Brotherton, with carbon copy to James W. Marshall, III, H. F. Salsbery, and Andrew R. Herrick of the law finn of Bailey and Wyant, demanding "that Mateo Cortez and/or the Estate of Deborah Cortez immediately withdraw any and all claims to the Trust Assets," and explaining that if counsel for Mateo Cortez failed to immediately withdraw their claims to the Trust Assets, then the undersigned "will take appropriate action to: (a) seek additional sanctions against your firm and (b) seek sanctions against Mr. Mateo Cortez personally." (Exhibit H - Boone February 23, 2017 letter) On March 1, 2017, William Brotherton rejected the undersigned's February 23, 2017, demand, suggesting that the orders from Judge Waters and Judge Hennan are "riddled with <>rrors and inaccuracies." (Exhibit I-Brotherton March I, 2017 letter). h. April 11, 2017: On April 11, 2017, the United States District Court for the Southern District of West Virginia remanded this matter back to the Circuit Court of Wirt County, West Virginia, thereby rejecting the arguments proffered by Mateo Cortez to justify removal. (See Document 36, Memorandum Opinion and Order, not attached) i. May 10, 2017: On May 10, 2017, the parties conducted mediation in Houston Texas. The matter did not resolve. j. June 26, 2017: By letter dated June 26, 2017, the undersigned again warned Mateo Cortez's attorneys that their litigation tactics were frivolous and taken in bad faith, and further warned that Mrs. Barry would seek sanctions against them if they refused to cease their obstruction of this case. (Exhibit J - Boone June 26, 2017 II letter) Mateo Cortez and his attorneys have nonetheless refused to withdraw their frivolous claims. IV. ARGUMENT To recover reasonable attorneys' fees and costs as a sanction, the prevailing litigant must show that the losing party "acted in bad faith, vexatiously, wantonly or for oppressive reasons." See Sy!. Pt. 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48,
365 S.E.2d 246(1986). In order to determine whether the losing party's conduct rises to such a level, the Court must evaluate "(!) the seriousness of the misconduct; (2) the impact the conduct had in the case and in the administration of justice; (3) whether there are mitigating circumstances; and (4) whether the conduct was an isolated occurrence or was a pattern of wrongdoing." Pritt v. Suzuki Motor Co., Ltd, 204 W.Va. 388, 397,
513 S.E.2d 161, 170 (1998) (citing Sy!. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381,472 S.E.2d 827 (1996)). A. The Seriousness of the Misconduct I. Mateo Cortez And His Attorneys Began Their Vicious Assault On The Rightful Heirs Only After Discovering That The Trust Contained Over Five Million Dollars In Assets. From the outset, it is important to review the facts and circumstances surrounding the genesis of Mateo Cortez's frivolous arguments. In 2012, Mateo Cortez filed a Small Estate Affidavit, for the Estate of Deborah Cortez, confirming that the Estate had less than $50,000. (Exhibit A). In 2014, when Mateo Cortez responded to allegations that he misappropriated certain Trust Assets, he never claimed that he or the Estate of Deborah Cortez were the sole beneficiaries to the Trust. In fact, Mateo Cortez and his counsel did not discover the sizeable nature of the Trust until the deposition of the Trustee on June 19, 2015. 12 During a hearing before the Probate Court, the Trustee testified regarding her experience during this June 19, 2015, deposition. 6 The Trustee testified that, during her deposition, it became clear Mateo Cortez and his counsel did not know the amount of the Trust prior to this deposition and that, upon learning the amount of the Trust, Mateo Cortez and his counsel became instantly enamored of the sizeable nature of the Trust. Q. (By Mr. Boone) Who was -- who was taking the deposition? A. Brotherton. Q. The Brotherton Law Firm? Someone from the Brotherton Law Firm? A. Yes, it was. Q. And Mateo Cortez was there? A. Yes. Q. All right. A. He was with them. Q. Okay. So when they asked you how much was in the trust did you know the answer? A. Yes, I did. Q. And did you tell them the answer? A. Yes, I did. Q. What was your answer? A. 5.2 million dollars. Q. What if any reaction did yon observe at that time? 6 As noted above, on February JO, 2017 1 the Honorable Guy Herman, Judge of the Probate Court of Travis County, Texas, sanctioned William Brotherton and the Brotherton Law Firm for filing frivolous claims, and ordered them to pay $65,130.76 within 30 days to Mrs. Bany. In advance of this sanctions award, Judge Herman conducted an evidentiary hearing on January 30, 2017. At this evidentiary hearing, the Trustee testified regarding her efforts in Texas to recoup monies that were misappropriated by Mateo Cortez, including her experience sitting for her deposition on June 19, 2015. 13 A. You could see eyes rolling. Q.Howso? A. Just so you could -- you could just see that they knew there was a lot of money. And then shortly after we had a break. Q. Shortly after that question there was a break? A. Yes. Q. And what do you mean by "a break?" A. 15 minute break. Q. Counsel left and -- A. Counsel left, we -- yes. Q. And do you recall if there were many questions after the break concluded? A. No, there wasn't. Q. And that deposition occurred on June 19th, 2015, correct? A. That is correct. Q. Now, did Mateo through his counsel make any claims after that deposition that were new and different? Did they file any papers or pleadings or anything after that deposition? A. Oh, yes. They filed -- they filed saying that that money belonged to Mateo Cortez and all -- and it was all of it. He -- Matt said all of the money belonged to him. (Exhibit F, pp. 85-86)( emphasis added). As such, in light of Mateo Cortez's filings in 2012 and 2014, and in light of the June 19, 2015, deposition, it is clear that Mateo Cortez had no any idea regarding the sizeable nature of the Trust. In fact, it wasn't until seven (7) days after the June 19, 2015, deposition, did Mateo Cortez first allege that he and/or the Estate of Deborah Cortez were entitled to the entirety of the Trust Assets; on that date, June 26, 2015, William Brotherton filed Mateo Cortez's 14 "Original Petition in Intervention," claiming that Mateo Cortez is the sole heir to the Trust Assets. Point being, it was only after learning that the Trust Assets contained 5.2 Million did Mateo Cortez and his Legal Team begin to embark with their "no holds bar" quest to strip the rightful beneficiaries of their rights to the Trust Assets. Without question, the timing of their actions reveal that Mateo Cortez and his counsel have been motivated solely by greed, and not by any legitimate claim to the Trust Assets. 2. Mateo Cortez And His Attorneys Filed Their Claims Without Any Justification In Fact Or Law. The inability of Mateo Cortez's counsel to articulate any reasonable justification for claiming Mateo Cortez is sole heir to the Trust Assets further demonstrates the seriousness of the misconduct. At the January 30, 2017, hearing before the Probate Court, Texas Counsel for the heirs-at-Jaw, Brian Thompson, examined Mr. Brotherton under oath, and asked Mr. Brotherton to explain why Mateo Cortez is entitled to take under the "Postponement Section" of the Trust. (Exhibit F, pp. 37 - 48). As the record demonstrates, Mr. Brotherton could not sufficiently explain the basis for his claim. First, Mr. Brotherton rationalized his inability to fully explain the basis for Iris initial pleading with being preoccupied by a matter in North Dakota. Q. (Mr. Thompson) Okay. It seems to me that most of the claims that you brought -- or all of the claims that you brought on behalf of your client were based on Texas Jaw as it exists now. You weren't saying that law should change, were you? A. (Mr. Brotherton) Again -- and I've got to say over the last six months I've spent most of my time in North Dakota so I haven't been involved in this case in a little while. So you may want to talk with Mr. Hester about some of those technical issues. 15 (Exhibit F, p. 20). Further, when pressed for a simple explanation as to why the Estate of Deborah Cortez is entitled to take under the Postponement Provision (Section D), Mr. Brotherton could not provide an explanation: Q. And again, back to my original question, is there any other language in that D portion, the postponement of possession portion, that you believe supports this postponement provision claim? A. You're talking about in the trust? Q. Well, sir, the claim cites in every single one of the pleadings that we looked at, the claim cites Article 8 Section D to support this claim. And I'm asking you, can you point out what language you believe in Article 8, Section D supports this claim? And that's on Page 5 of the trust. A. Well, I mean, whatever we put in our pleadings is -- is -- addresses that. I'm not going to sit here and try and explain it all to you at this point because certainly we've outlined in our pleadings, we've consulted with necessary experts and we believe every claim we've made is colorable. Q. Was Mr. Kelsey going to testify in this case if it had reached trial as an expert? A. I hadn't made that decision yet. Q. He certainly was never designated as an expert, was he? A. Correct. (Exhibit F, pp. 40-41). In sum, Mr. Brotherton could not justify his argument that Mateo Cortez, pursuant to the Postponement provision, was entitled to the Trust Assets. As such, Judge Herman agreed that Mr. Brotherton's conduct was sanctionable, and ordered Mr. Brotherton to pay $65,130.76 to Mrs. Barry for her legal fees in Texas. (To date, Mr. Brotherton refuses to pay this sanctions 16 award.) Mr. Brotheron testified that the arguments proffered in Texas were "virtually identical" to the arguments proffered in West Virginia. (Exhibit F, p. 42). As such, just as Judge Herman awarded sanctions against the Brotherton Law Firm for fees and costs expended by Mrs. Barry in Texas, so should this Honorable Court similarly award sanctions for fees and costs expended by Mrs. Barry in West Virginia. 3. Mateo Cortez And His Attorneys Deliberately Filed Frivolous Pleadings With The Improper Purpose Of Obstructing The Progression Of This Case And Driving Up The Parties' Litigation Costs. Each time the Trustee would notice her motion for summary judgment for a hearing, Mateo Cortez would initiate a new filing to delay this Court's consideration of the Trustee's motion. First, when the Trustee filed a notice on September 21, 2016, setting her Motion for Summary Judgment for hearing on November 3, 2016, Mateo Cortez removed this case to Federal Court on October 21, 2016. Later (after remand), when the Trustee again filed a notice on April 20, 2017, setting her motion for hearing on June 27, 2017, counsel for Mateo Cortez filed a Motion to Dismiss and Motion to Intervene. Incredulously, a letter from William Brotherton confirms that the sole intent of these two motions was to delay consideration of Trustee's motion for summary judgment. I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. ExhibitE The reason why Mateo Cortez has repeatedly attempted to derail consideration of the Trustee's Motion for Summary Judgment is because once the Court grants the Trustee's 17 motion for summary judgment, then the assets may be distributed. Pursuant to a Rule 11 Agreement executed by counsel for Mateo Cortez and counsel for Trustee, the Trustee may distribute assets of the Trust "as may be pennitted by a final order by a court of competent jurisdiction." Exhibit D. Mateo Cortez has attempted to obstruct the proceedings in this Court precisely because the declaratory relief requested by the Trustee (i.e., "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same") would trigger the Rule 11 Agreement. Additionally, Mateo Cortez has also filed these pleadings to drive up the costs of this litigation, in a plan to deplete the Trust assets and to cause financial hann to the individual Trust beneficiaries. In West Virginia alone, the rightful beneficiaries of the Trust have been forced to defend against multiple motions, an extraordinary writ petition, and an improvident post-judgment case removal, to the tune of tens of thousands of dollars in legal fees and nearly two years of delay. Each of Mateo Cortez's litigation tactics have been rejected by the court(s) that have considered them, yet the Trustee and the true beneficiaries of the Trust have nonetheless suffered real financial hann in defending against them. B. The Conduct of Mateo Cortez and His Counsel has Impacted the Financial, Physical and Emotional Wellbeing of the Parties. I. Mrs. Barry Has Expended Over Tens of Thousand Dollars Fighting Meritless Litigation. The impact of Mateo Cortez's misconduct was the abuse of the legal system through the attempted prosecution of a series of baseless claims: Although there is an undeniable interest in the maintenance of unrestricted access to the judicial system, unfounded claims or defenses asserted for vexatious, wanton, or oppressive purposes 18 place an unconscionable burden upon precious judicial resources already stretched to their limits in an increasingly litigious society. In reality to the extent that these claims or defenses increase delay or divert attention from valid claims or defenses asserted in good faith, they serve to deny the very access to the judicial system they would claim as justification for their immunity from sanction. Daily Gazette Co. v. Canady, 175 W.Va. 249,252,332 S.E.2d 262,265 (1985). Mateo Cortez's misconduct also had a profound impact on Mrs. Barry, who has incurred tens of thousands of dollars in legal fees defending against baseless claims that never should have been pursued. 2. The Trustee Has Suffered Emotionally And Physically. During the January 30, 2017, hearing, the Trustee testified that the frivolous litigation has adversely affected the Trustee's relationship with her family, and adversely impacted her emotional and physical health. Firstly, the litigation has adversely affected the Trustee's relationship with her family. Once Mateo Cortez argued that he was entitled to the entirety of the Trust Assets, the Trustee was forced to institute proceedings in West Virginia to detem1ine the rightful heirs. Once the Trustee filed the Complaint in West Virginia, and served notice to her family members, her family members became unhappy with her. (Exhibit F, pp. 91-92). The Trustee testified that the ongoing litigation has caused a strain with her sister and brother. (Exliibit F, pp. 91-92). Secondly, the litigation has adversely affected the Trustee's physical and emotional health. The litigation has caused the Trustee to gain significant weight (Exhibit F, p. 95) and has required her to take anti-anxiety medication (Exhibit F, p. 95). 19 In sum, the conduct of Mateo Cortez and his counsel, in prosecuting his baseless claim, has adversely impacted the emotional and physical well-being of the Trustee, Linda Murray. C. There are No Mitigating Circumstances to Excuse the Misconduct There are no mitigating circumstances that can justify Mateo Cortez's misconduct. Every court to consider Mateo Cortez's claims to the Trust has rejected them. Moreover, on February 10, 2017, the Texas court sanctioned Mateo Cortez for the amount of Mrs. Barry's accrued attorneys' fees and costs in Texas, finding that his claims in Texas (and which he has sought to litigate here) were frivolous and were not warranted by existing law; by the extension, modification, or reversal of existing law; or by the establishment of new law. Despite one court already finding his litigation tactics frivolous as a matter of law, Mateo Cortez has continued to pursue those claims in this Court. D. The Conduct of Mateo Cortez and His Counsel has Permeated the Entirety of Litigation. Mateo Cortez's misconduct was not an isolated occurrence, but has been a repeated pattern of misconduct not only before this Court but also in the litigation in Texas. Mateo Cortez has repeatedly attempted to distort the status of this case and the Texas case, the plain language of the Trust instrument, and the laws applicable to the Trust. He has abused the rules of procedure in West Virginia and in Texas in an effort to either convince a court to agree with his distorted and frivolous view of the Tmst instrument, or to obstruct the lawful administration of the Trust. As a result, the Trustee, Mrs. Barry, and others have expended an incredible amount of time, effort, and money in defending the plain language of the Tmst (and the clear intent of the settlers) against a never-ending succession of bogus filings, filings 20 submitted by a party that doesn't even have an interest in the Trust assets. Moreover, Mateo Cortez has continued to file frivolous pleadings in West Virginia and in Texas even after being specifically put on notice that his litigation conduct is being conducted in bad faith, and even after having been sanctioned in Texas. V. CONCLUSION From the outset of this case, Mateo Cortez and his attorneys have wrongfully and unnecessarily forced Mrs. Barry and others to expend over tens of thousands of dollars in legal fees, over the course of nearly two years, defending against obviously frivolous claims. The sole purpose of this improper conduct is clear: to obstruct the administration of justice, to deplete the assets of a Trust to which he has zero claim, and to retaliate against the true beneficiaries of the Trust for defending their interests. Although Mrs. Barry, as well as others, are arguably entitled under Sally Mike Properties for all their attorney fees expended in the case, Mrs. Barry is choosing to focus her motion for sanctions on the conduct of Mateo Cortez and his counsel after this Court entered judgment against Mateo Cortez on September 15, 2016. The reason why Mrs. Barry is focusing on the conduct after September 15, 2016, is because prior to September 15, 2016, Mateo Cortez was responding to a Complaint filed in West Virginia that: (a) sought to determine who were the rightful beneficiaries under the Trust, and (b) specifically named Mateo Cortez as one of the individuals laying claim to the Trust. Point being, it is not surprising Mateo Cortez, under those circumstances, would respond to this Complaint and lob arguments (however tenuous) in response to the Trustee's Complaint. However, once this Court entered its well-reasoned decision on September 15, 2016, denying Mateo Cortez's claims, Mateo Cortez and his counsel 21 were unequivocally placed on notice that their claims had zero merit, and that any further improper behavior to frustrate the lawful administration of the Trust would not go unpunished. From September 15, 2016, forward, Mateo Cortez and his counsel engaged in improper conduct intended solely to delay the proper administration of the Trust; to waste the time and resources of Connie Barry, the Trustee and others; and to deplete the Trust Assets. From September 15, 2016, forward, despite repeated warnings, Mateo Cortez and his counsel engaged in willful, vexatious, and malicious litigation, entitling Mrs. Barry to an award of attorney fees. See Sy!. Pt. 3, Sally-Mike Properties v. Yokum, I 79 W.Va. 48,
365 S.E.2d 246(1986). Accordingly, for the reasons set forth above, Defendant Connie Lou Keith Barry requests that the Court grant the following relief: a. That the Court enter the attached proposed Order Setting Show Cause Hearing on Issue of Sanctions, setting this matter for a hearing to show cause as to why sanctions, in the form of paying, at a minimum, all of Mrs. Barry's reasonable attorneys' fees and costs incurred in this lawsuit from September 15, 2016, forward, should not issue against: (I) Mateo Cortez, in his personal capacity and his capacity as the personal representative of the Estate of Deborah Cortez; (2) attorneys James W. Marshall, III, H.F. Salsbery, Michael W. Taylor, William J. Brotherton (pro hac vice), and Shawn M. Brotherton (pro hac vice); or (3) both, jointly and severally; b. That at the conclusion of said hearing, the Court enter an order granting Connie Lou Keith Barry's motion for sanctions and permit Mrs. Barry to submit additional papers in support of her reasonable attorneys' fees and costs; and c. For such further relief as the Court deems proper. 22 c_fi.c. 60~ Aaron C. Boone (9479) Bowles Rice LLP Fifth Floor, United Square 501 Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 and David A. DeJarnett (5190) J. Tyler Mayhew (11469) Bowles Rice LLP 105 West Burke Street Martinsburg, West Virginia 25401 (304) 264-4232 Facsimile (304) 264-3822 Counsel for Defendant Connie Lou Keith Barry 23 9109087.2 C·l·PB-12-00O2,oq CRttsoNo. _ _ _ _ _ _ __ ·.~.... ~ \~- IN THE ESTA'fE OF § lNTHEPROJJATECOURT '?-, \:) § -:>. 0 -!A •i\ DEBORAH A, CORTEZ § NO, _ _,__ 'Y.''''d>O ~ £,"f,. ~ ·tl § iJ' ~ \?. ..,, ~ DECEASED § ' TRAVISCOUNTY,TEXf3'-;}i ~ 1~ ¼ <;!: ·f~ ..,, ~ SMALL ESTATE AFFIDAYlT '?-...,~'C! •;.,, . '.1'`` " cP S'l'A,:E OF TEXAS § COU.NTY OF TRAVIS § ('-...,. MA'fEO CORTEZ ("Dlstribulee") furnishes the following informatio```` I. "DEBORAH A. CORTEZ ("Decedent") died lntes1A~Dec``6~.ai 1n Auslin, Travis County, Texas, ol tho age of 54 years. ~-~ 2, "Decedent's domlollo was In TMVIS Coun , • · xas, whor ~p~oipal 11art ofDeoedonl's property at the lime of her den th was situRted. 3, been granted, for tlto l:>ecedent's Estate. 4. ''Decedent died more that I i{tf(-l!))~ prlo p he filing oflhis Small Estate Affidavit. S. "The total volue of al i,oy11okrib``ts of the Decedent, as oftltc date of her doath, not including the homestead 11or CKo t ``does ~xceed $SO,OOO,OO, and those nonexempt assets exceed !he known liabilities``la~::~:lve ofliabilities secured by homeslead n11d exempt property. 6. "Ti1e 0~1 Jfrlllnlll···pprop`` of~1~tato of the Decedent Is o homestead which ls communlt.Y pro11erty ond locnted ... at 60 Dougla$ t~ot, A11sti11, Texas 78744..The Bstnte's interest in snid lto111estead Js vahted al a11proxl~y} 0, O,Q,_q_g.,,".!llh Is more pa11lcufarfy described as follows: --``:s;B,-Buf(eson Road Heights, 11 subdivisio11 In Travis Count)', (-;Ql!ns.abcor 1g lo tho mnp or tint Ihereofrecorded In Volume 6, Page S2, '-"-.izi";li~ecof s ofTravls Count.Y, Texas, •·``ent's 1narilol history was as follows: Married; surviving spouse; Mutco Cortez ' ecedent did. not have 01· adopt any children and did not tako a11y children lntQ decedo1it's 1 ~ 1y children, except: None. 9, "Decedent's 111other was: Pl1yllis Dale Whited, whose date of death was 02/0S/2011. I0. ''Decedent's fa.th er was: William Dorsey Short, whose date of death was O1/03/2001. 11. "Decedent hod tho following siblings: None. 12. "Decedent did not qpply for Rnd receive Medicaid benefits 011 or after March I, 2005 I3. "The nnmes, 11ddresses, relevant family history facts showing relallonsltip ofeacltDistributee to !he Decedent, nnd the share of the Estele lo whlclt each Oistrlbutee Is entltled are as follows: [ EXHIBIT A ] P•••I oU "Name: MATEO CORTEZ Address: 2602 Douglas Street, Austin Texas 78741 Relationship: husband l!tatns: Adult Share ofEstato: 100% of com1mml1y 1,roporty real and persol181 of the llomestesd located at 2602 Douglas St. Austin, Texas 7874 t Including the known nssets of Decedent's Estate as follows: La.st payroll cl1eck and nccrued vacation leave ~ . 'fype: Com111nnlty ~V,r-..7 Value: 100% or $683.39 wages and $89.~· a. me ~ion hmve totaling ~ 2 Bncnmb:~::~:: Nono . ''No claims are due and owing by the !Jft``a``l!AJJ LIABmfi:JE~ \ "Dlstrlbutee states that tho facts •Of4"1ir1 tb~ RTJlZ, Deceased. {l`` are true and prays that this Affidavit be filed ln the Small Estate Records; tha.1tjtt}l''iii\_b)~fuved by.I (o0.9urt; and the Cle.r. k Issue certified copies tltereof In order to allow tho Dl~r1;1(o Js>-e~.s~t ·tJio same to persons owing. money to the Estate of DJlllOMAR A.COlllW, ~•,lJ;lnify iliiit ori :Qctobct 3, 2014, ,4. we nn.d i:lil'llltt copy of lltis l'Jrigtnai Atisll'cr W{III ~,rv~ g/a!i1Jii$llo1fllW11rJ4q,•l~ilii i!o Co~ri$~l·ii£Rcwril <1r partI~ ofreci,rd 1JSf~lnws: M*r Collonsum ~44l F4°fnilli ··· (Ol)Vt>&'d/)lt,$1~1 Suit~ 100 i'lidtilf, ·t~iill'7~'lQl iuar!<@si!!WJIPRi1!!.loosef:com j ' • I . ,, ;I '' j ' ' J '• :. ·,'{ '' I ,l J,, ' . ,l ' . !~ . . - Flied: 3/1512015!!:,12;30:~ Dana .b'eBeiiuv9lr travi.~Q,iJ!y 01~.tk C,1'PB,14-0Q166;1 Mil'nii;a ~ln,90 lN THE'PR0.8A.1'E COUllT lllUMREll. Ill . nel'eililrutl~ .MADQ . - ·- CORTEi1s .. FIRST ,...... .... , :AMEmiED:ANSW!B ,......... - ,.. _. ;.. ,.... tto tl1e)lonomble Jlld/(e.•ofSald Cour.:t.: .''NQW com:es MNtil:g (l91\1'll'A, q`` w9µljl (ale tl!i~.\!i(St Alllel)p~d Ao~w~r an.d. WQ~ld ~ll~# !~.e followl11g: L Ma\e!i O>rte~ ,$iJ~ 'm an attorney. 20 Q. How long have you been practicing law? 21 A. Since 1994. 22 Q. And am I right that you are currently the lead 23 attorney for Mateo Cortez in this matter? 24 A. That's correct. 25 Q. You weren't always though, correct? MELISSA VOIGT, CSR (512) 854-9258 19
1 A. Ithink John Long was starting off, yes. 2 Q. How many times have you represented clients in 3 disputes involving the interpretation of trust language? 4 A. Probably seven, eight times. 5 Q. Okay. Have you ever been sanctioned? 6 A. No. 7 Q. Okay. In the course of your practice have you 8 become familiar with Texas case law and rules regarding the 9 sanctioning of attorneys?
10 A. Ihaven't had much practice with it. I rarely 11 seek sanctions against any other attorneys. 12 Q. Are you familiar with Rule 13 of the Texas Rules 13 of Civil Procedure?
14 A. Iam. 15 Q. Are you familiar with Chapter 10 of the Civil 16 Practices and Remedies Code?
17 A. Iam. 18 Q. And do you agree with me that under both of those 19 authorities the triggering event for sanctioning lawyers is 20 the signing of a pleading that is sanctionable? 2
1 A. Ibelieve that's correct. 22 Q. Do you understand that under Civil Practices and 23 Remedies Code, Chapter 10 that when you sign a pleading you're 24 certifying to the Court that each claim in that pleading 25 was -- and I quote -- "Warranted by existing law or by a MELISSA VOIGT, CSR (512) 854-9258 20 1 non-frivolous argument for the extension, modification or 2 reversal of existing law or the establishment of new law," end 3 quote?
4 A. If you've read that correctly, I have no reason to 5 deny that. 6 Q. Okay. Would you like to see it? 7 A. No, that's fine. 8 Q. Okay. So you don't have any reason to doubt that 9 I read it accurately?
10 A. If you're essentially reading it out as -- and 11 representing to the Court that that's what it is then I have 12 no reason to doubt that. 13 Q. Okay. And in looking at the pleadings in this 14 matter I didn't see that your client had made any argument for 15 the extension, modification or reversal of existing law or the 16 establishment of new law. Is that fair? 17 A. You know, I -- I couldn't say yes or no. 18 Q. Okay. It seems to me that most of the claims that 19 you brought or all of the claims that you brought on behalf 20 of your client were based on Texas law as it exists now. You 21 weren't saying that law should change, were you? 22 A. Again -- and I've got to say over the last six 23 months I've spent most of my time in North Dakota so I haven't 24 been involved in this case in a little while. So you may want 25 to talk with Mr. Hester about some of those technical issues. MELISSA VOIGT, CSR (512) 854-9258 21 1 Q. Okay. Well, you understand that you've signed 2 every pleading except for one with regard to the claims made 3 against my clients? 4 A. Correct. 5 Q. Whether you were in North Dakota or not? 6 A. Correct. 7 Q. And Mr. Hester signed one of them; is that right? 8 A. Correct. 9 Q. Okay. And so I'm asking you, can you think of an 10 example where you were asking this Court to change the law or 11 to modify the law or any of those things in any of your 12 pleadings?
13 A. I-- again, I wouldn't be able to say yes or no. 14 I don't believe so but I can't say definitively. 15 Q. Okay. Now, I'm going to hand you 16 MR. THOMPSON: May I approach the witness, Your 17 Honor? 18 THE COURT: You may. 19 Q. (By Mr. Thompson) I'm going to hand you a series 20 of documents. We don't have to mark them as an exhibit 21 because they're pleadings. But starting with the first 22 document, you see the title of that is Original Petition In 23 Intervention? 24 A. Yes. 25 Q. Okay. Are you familiar with this document? MELISSA VOIGT, CSR (512) 854-9258 22
1 A. Iam. 2 Q. And if you turn to the next to last page which is 3 Page 5, is that your signature? 4 A. Yes, it is. 5 Q. Okay. And if you look at Page 3 of this original 6 petition, petition in intervention, just below the middle of 7 the page there is a No. 2. And you state -- and this is of 8 course under a heading that says "declaratory judgment." 9 You're seeking a declaration that pursuant to the trust 10 Article 8, Section D2, upon the death of Phyllis Short, 11 Deborah Cortez as beneficiary under the trust was entitled to 12 the balance of her trust share including both principal and 13 any accrued and undistributed income because she was over the 14 age of 35 years at the time. Do you see that statement? 15 A. Yes. 16 Q. Can you explain to the Court in your words what 17 you were alleging in that statement on behalf of your client? 18 A. Well, the trust essentially stated -- and I can 19 give it to you in -- in the context of what I understand it to 20 say, and as you've stated, there is a question of the 21 interpretation as I think you testified, but the -- what we 22 believed was a colorable argument was that Ms. Cortez was 23 entitled to the contents of the trust once she reached 24 35 years of age once her parents died. 25 Q. Okay. And just to be sure, there is no question MELISSA VOIGT, CSR (512) 854-9258 23 1 that Ms. Cortez was over the age of 35 at the time Phyllis 2 Short died, correct?
3 A. Ibelieve that's correct, yes. 4 Q. And it was Phyllis Short's death that then gave 5 Deborah Cortez the ability to seek distributions under the 6 trust? I know we have a difference of opinion about what 7 those distributions were, but that was the triggering event, 8 correct? 9 A. That's my understanding, yes. 10 MR. THOMPSON: Okay. May I approach, Your Honor? 11 THE COURT: You may, sir. 12 Q. (By Mr. Thompson) Mr. Brotherton, I'm going to 13 give you as what I've marked as Exhibit No. 1. There you go. 14 Are you familiar with the document I marked Exhibit l?
15 A. Ihave seen it, yes. 16 Q. And what is that document?
17 A. It's one of the versions of the revokable living 18 trust, the Short -- William Short and Phyllis Short. 19 Q. Okay. And I think that -- is it fair to say that 20 this was the most recent version of that document? 2
1 A. Ibelieve that's correct. 22 MR. THOMPSON: Your Honor, we -- we offer 23 Exhibit 1. 24 (Movant's Exhibit No. 1 25 was offered into evidence.) MELISSA VOIGT, CSR (512) 854-9258 24 1 THE COURT: Any objection? 2 MR. RUBACK: No objection, Your Honor. 3 THE COURT: No. 1 will be admitted. 4 (Movant's Exhibit No. 1 5 was admitted into evidence.) 6 Q. (By Mr. Thompson) and, Mr. Brotherton, I may 7 refer to this shorthand as "the trust" throughout today. Is 8 that you'll understand 9 A. That's fine. 10 Q. Okay. If you turn to Page 5 of Exhibit 1, if you 11 look at Section D which I believe is Article 8, Section D, 12 postponement of possession. Do you see that?
13 A. Ido. 14 Q. Okay. Is that the provision and everything under 15 it that you think supports the claim that we've been 16 discussing?
17 A. Ibelieve that's correct. 18 Q. And if I recall that, I think you guys have called 19 it in the past the postponement provision claim? Is that 20 fair? You'll understand what I'm talking about when I say 21 that?
22 A. Ithink so, yes. 23 Q. Okay. So do you see that this statement, 24 postponement of possession, it says, "If any beneficiary is 25 under the age of 35 years at the time he or she becomes MELISSA VOIGT, CSR (512) 854-9258 25 1 entitled to distribution, his or her share shall be maintained 2 in a continuing trust which shall be administered as follows." 3 Do you see that statement?
4 A. Ido. 5 Q. And again, there is no question in this case that 6 Deborah Cortez was not a beneficiary under the age of 35 years 7 at the time she became entitled to distribution from the 8 trust, correct? 9 A. Rephrase your question? 10 Q. You see that this statement here says -- the 11 qualifying language is that if any beneficiary is under the 12 age of 35 y2ars at the time he or she becomes entitled to 13 possession, then X, Y and Z. Do you see that? 14 A. Entitled to distribution? 15 Q. Yes. 16 A. "His or her share shall be maintained in a 17 continuous -- in a continuing trust which shall be 18 administered as follows." Is that what you're referring to? 19 Q. Do you see that statement?
20 A. Ido. 21 Q. Okay. And there is no dispute in this matter that 22 Deborah Cortez was over the age of 35 at the time she became 23 entitled to distribution, correct? 2
4 A. Idon't know if I can agree with that statement. 25 I'm not sure what you're asking me to agree with. MELISSA VOIGT, CSR (512) 854-9258 26 1 Q. Okay. Well, when was -- what was the 2 triggering -- I thought we'd been through this, but what was 3 the triggering event that entitled Deborah Cortez to a 4 distribution under this trust? Was it not her mother's death? 5 A. Correct. 6 Q. Okay. And is there any dispute that at the time 7 Phyllis Short died, Deborah Cortez' mother died, that Deborah 8 was over the age of 35? 9 A. As I understand it, yes. 10 Q. Okay. In fact, she was over the age of 35 when 11 this document was executed, correct? 12 A. Correct. Well, I believe so. 13 Q. Well, sir, I can actually point out in your 14 pleadings where you stated this? 15 A. Okay. 16 Q. So do you disagree with me or no? 17 A. No. 18 Q. Okay. So if this provision, the qualifying 19 language of this provision is that you have to be under the 20 age of 35 in order for all of these things to apply to you, 21 how could you possibly think that this section applies to 22 Deborah Cortez and entitles her to the entirety of the trust? 23 A. Well, there is -- there is a lot of language in 24 here. I think we've used several arguments in this. We've 25 consulted with a trust expert on this. And so based on -- on MELISSA VOIGT, CSR (512) 854-9258 27 1 the language in this, it's our contention that Deborah Cortez 2 was entitled to the trust proceeds. 3 Q. What trust expert did you consult with on this? 4 A. Dick Kelsey. 5 Q. Okay. And Mr. Kelsey told you that your 6 interpretation of this trust, this provision of this trust was 7 correct? 8 A. That is correct. 9 Q. Okay. So you said there is some particular 10 language in here that supports your argument. Tell me what 11 that language is. 12 A. Well, there is -- there is certainly the 13 provisions in regards to if any assets of the trust remained 14 undistributed upon Deborah's death, or if she fails to survive 15 us, the remainder of the trust estate shall be distributed as 16 follows. And clearly Deborah Cortez was the beneficiary of 17 the Shorts and was an heir at law. 18 Q. Okay. Well, you understand that that -- that's 19 kind of one of the claims that you made, but in the 20 alternative you also made this claim about this 35 year-old 21 provision, correct? 22 A. Well, I think I -- like I say, I have been working 23 out of state quite a bit and I think i t would be helpful if I 24 had a copy of the -- of the claims that we've made because 25 you're asking me to recollect a very complex document. So I MELISSA VOIGT, CSR (512) 854-9258 28 1 don't want to sit here and misstate -- 2 Q. Okay. 3 A. -- what was in our pleadings. 4 Q. Okay. Well, sir, you have all of your pleadings 5 in front of you. What I've given you is -- although we've 6 just been over the original petition in intervention and -- 7 and in that section we went through this No. 2, which says 8 "Pursuant to the trust, Article 8, Section D2, upon Phyllis 9 Short's death Deborah Cortez inherited the balance because she 10 was over the age of 35." I thought we agreed that that's 11 basically the claim that we're talking about? 12 A. Okay. 13 Q. Okay. So let's set aside the heir at law issue. 14 As I told the Judge earlier I actually have been convinced now 15 that that is a colorable claim. I'm not asking for sanctions 16 against you today because of that. But I do want to 17 concentrate on this Article 8, Section D2 provision. And I 18 thought you had said that in addition to the language that I 19 have read in -- into the record, that there is additional 20 language in here that you believe supports your position and I 21 would like to know what that language is. 22 A. Well, I need a few minutes to go through and look 23 through look through the petition. 24 Q. Okay. And while you -- while you do that 25 before you do that, and I'll give you all the time in the MELISSA VOIGT, CSR (512) 854-9258 29 1 world, will you agree with me that this claim -- maybe in 2 different words, but the gist of this claim has been in every 3 petition that you've filed since that original petition?
4 A. Icouldn't say yes or no. 5 Q. Okay. Well, while you're looking through the 6 trust document, look through those amended petitions that I 7 have for you up there and then you can answer that question as 8 well. 9 MR. THOMPSON: Your Honor? 10 THE COURT: Yes. 11 MR. THOMPSON: May I be excused just to get some 12 water very quickly while he's -- 13 THE COURT: You may be. We'll take a five minute 14 recess. 15 MR. THOMPSON: Thank you, Judge. 16 (Brief recess.) 17 THE COURT: Are you ready now? 18 MR. RUBACK: Yes. 19 THE COURT: Our witness will please come back up. 20 MR. THOMPSON: Judge, you had asked for case law. 21 Can I approach with one more case? 22 THE COURT: Yes. And if you'll give me your 23 packet there that he was using. Is there another copy of 24 that? 25 MR. THOMPSON: Absolutely. Give me one second. MELISSA VOIGT, CSR (512) 854-9258 30 1 Well, I say that. Are you 2 THE COURT: He took up his binder with the 3 pleadings. 4 MR. THOMPSON: Would you like his copy now? 5 THE COURT: Sure. 6 MR. THOMPSON: I think we'll be talking about the 7 same thing. 8 THE COURT: Right. 9 MR. THOMPSON: Just so you know, what that is is 10 the original petition and then there were four amended. So 11 five in all. 12 THE COURT: Right. I'm aware. 13 MR. THOMPSON: Okay. May I proceed, Your Honor? 14 THE COURT: Yes, sir. 15 Q. (By Mr. Thompson) Mr. Brotherton, before the 16 break I had given you a stack of pleadings that are the 17 Original Petition in Intervention and then the first, second, 18 third and fourth amended version of that document. Did you 19 have a chance to review those? 20 A. Primarily the Motion to Reconsider. 21 Q. Okay. My question before the break was whether 22 you would agree with me that this postponement provision claim 23 had been made in those five pleadings that I just named. Will 24 you agree with me to that now? Or do we need to go through 25 each and every one of these? MELISSA VOIGT, CSR (512) 854-9258 31 1 A. Probably need to go through each and every one. 2 Because here is the thing just to explain this, you know, 3 I've got six attorneys counting myself plus various other 4 attorneys that we use if -- if we need to -- to get special 5 legal counsel. And so in this case -- this is obviously a 6 pretty complex case, and I'm not going to sit here and try and 7 be able to go through every page, line-by-line of every copy 8 of the pleadings and be able to talk just absolutely clear on 9 everything, especially in light of the fact that I'd been 10 involved in some other substantial cases out of state. So 11 certainly I'll try to answer your question, but as far as 12 going through every pleading and talking about what 13 specifically in each pleading, we'll probably need to go 14 through each one. 15 Q. Okay. Well, will you agree with me that you 16 signed all five of those pleadings as the attorney of record 17 in this case for Mr. Cortez? 18 A. Well, again, I'd say that as the lead counsel I 19 have a number of people working for me and so yes 20 MR. THOMPSON: Objection, Your Honor, 21 nonresponsive. 22 THE COURT: Sustain the objection. 23 Q. (By Mr. Thompson) Sir, did you sign 2
4 A. Isaid yes. 25 Q. -- attorney of record -- I'm sorry? MELISSA VOIGT, CSR (512) 854-9258 32
1 A. Isaid yes. 2 Q. I didn't hear you say yes to that.
3 A. Idid. 4 Q. So I think we've established that it's in the 5 original petition. Can we agree to that?
6 A. Ibelieve so. 7 Q. The Original Petition in Intervention?
8 A. Ibelieve so. 9 Q. Do you have the First Amended Petition in 10 Intervention in front of you? 11 A. You know what, this -- this only starts on the 12 fourth. 13 MR. THOMPSON: Your Honor, I can -- if you don't 14 mind me standing beside him I can -- 15 THE COURT: You can do that. 16 Q. (By Mr. Thompson) Okay. So I'm going to approach 17 with the First Amended Petition in Intervention. The first 18 question I'm going to ask you is -- there is the title, First 19 Amended Petition in Intervention and Third Party Petition 20 filed on December 30th, 2015. My first question for you, sir, 21 is Melissa, can you hear me okay? On Page 8 is that your 22 signature? 2
3 A. It is. 24 Q. And there you're signing on behalf of several 25 lawyers but you're signing as the lawyer signing this MELISSA VOIGT, CSR (512) 854-9258 33 1 petition; is that right? 2 A. Right. 3 Q. Okay. If you look on Page 6, Section 2, there is 4 a statement I believe that is verbatim, identical to the 5 statement in the Original Petition in Intervention. Can you 6 read that No. 2 into the record, please, sir? 7 A. "That pursuant to the trust, Article 3, 8 Section D2, upon the death of Phyllis D. Short, Deborah Cortez 9 as a beneficiary under the trust was entitled to the balance 10 of her trust share including both principal and any accrued, 11 undistributed income because she was over the age of 35 years 12 at the tL.1e." 13 Q. Okay. So we agree 14 THE COURT: Now now, let me stop a second. 15 Would you look again? It's not Article 3, but is it not 16 Article 8? 17 THE WITNESS: I -- I can't quite read it. Let me 18 check. 19 THE COURT: You don't have your glasses on? 20 THE WITNESS: Well, it's blocked. All right. Now 21 I can see it. Article 8. Roman numeral eight. Correct. 22 Thank you, Judge. 23 Q. (By Mr. Thompson) So now would you agree with me 24 that we call the postponement provision claim is indeed in the 25 First Amended Petition? MELISSA VOIGT, CSR (512) 854-9258 34 1 A. Correct. 2 Q. Okay. So now I'm going to approach with the 3 Second Amended Petition. Same drill. On Page 12 is that 4 again your signature signing as Mr. Cortez' attorney of 5 record? 6 A. Correct. Correct. 7 Q. And if you will look at Page 8, this No. 2 8 paragraph here, I believe again is the same statement that you 9 just read into the record. Do you agree with me? 10 A. That is correct. 11 Q. Okay. So again, this postponement provision claim 12 appears in the Second Amended Petition in Intervention? 13 A. Correct. 14 Q. I'm going to approach with the Third Amended 15 Petition. And again, is that your signature on Page 26 -- 1
6 A. It is. 17 Q. as Mr. Cortez' attorney? 18 A. Right. 19 Q. Okay. This one may take me a second. It's a 20 little bigger. Again, I think in the Paragraph 2 on 21 Page 18 -- I'm sorry. My apology. If you read that -- you 22 don't have to read it into the record, but will you agree with 23 me that that's the same claim? 2
4 A. It is the same. 25 Q. Okay. So again, just to make sure that that MELISSA VOIGT, CSR (512) 854-9258 35 1 postponement provision claim also appears in the Third Amended 2 Petition? 3 A. Correct. 4 Q. Okay. When did this North Dakota case start being 5 your main focus at work that took you away from this case? 6 A. Late April. 7 Q. Late April of 2016? 8 A. '16. 9 Q. Okay. I'm going to approach with the Fourth 10 Amended Petition in Intervention, Page 25. Again, you're 11 signing on behalf of your client Mateo Cortez, correct? 12 A. Correct. 13 Q. And again, if you look at this Paragraph 2, is 14 that that same postponement -- 15 THE COURT: What page? 16 MR. THOMPSON: I'm sorry. Page 17, Your Honor. 17 Q. (By Mr. Thompson) Is that that same 18 postponement -- 19 A. Appears to be the same. 20 Q. And this doesn't have a file stamp on it, but I 21 want to point out the certificate of service on this document. 22 November 2nd, 2016. Do you see that? 23 A. Correct. 24 Q. And this is your signature here? 25 A. Yes. MELISSA VOIGT, CSR (512) 854-9258 36 1 Q. And although it doesn't have a file stamp, can we 2 assume that this was filed on or about November 2nd, 2016?
3 A. Ibelieve that's fair. 4 Q. Is it your practice to file things at the same 5 time or around the same time as the certificate of service 6 reflects? 7 A. Correct. 8 Q. Okay. And so November of 2016 was well after you 9 had become involved in this North Dakota case, correct? 10 A. Correct. 11 Q. And you're still signing pleadings as the attorney 12 of record on behalf of your client Mateo Cortez? 13 A. Well, I'm not up there full-time, but it's 14 certainly I've -- like any attorney you're involved in 15 other cases. And again, I've got a staff that did the 16 research and was preparing the documents and I reviewed them. 17 But certainly -- the reason I mentioned North Dakota is 18 because I haven't been able to live and breathe this case 19 probably as much as I would like. 20 Q. Okay. I should have done this earlier but I'm 21 just going to approach with 22 MR. THOMPSON: If you don't mind, Your Honor, may 23 I approach? 24 THE COURT: You may. 25 MR. THOMPSON: I'll give you a copy as well. MELISSA VOIGT, CSR (512) 854-9258 37 1 Q. (By Mr. Thompson) This is a copy of Chapter 10 of 2 the Civil Practices and Remedies Code which as I mentioned, 3 this is the authority we're relying on to seek sanctions. In 4 Section 10.001 it states that the signing of a pleading 5 constitutes a certificate by the signatory, that due to the 6 signatory's best knowledge, information and belief formed 7 after reasonable inquiry, and then No. 2, each claim in the 8 pleading is warranted by existing law, dot, dot, dot. I think 9 I've been through this provision at nauseam. Do you see that?
10 A. Ido. 11 Q. Okay. In signing these pleadings that we've just 12 been through, did you understand that you were certifying to 13 this Court that each claim in that pleading was warranted by 14 existing law or by non-frivolous argument to the extension, 15 modification or reversal of existing law? 16 A. Absolutely. And they were colorable claims and I 17 still believe that. 18 Q. Okay. Regardless of your involvement in the 19 North Dakota case you still believe that? 20 A. Correct. 21 Q. Okay. What reasonable inquiry did you do to 22 inform yourself of whether this postponement provision claim 23 met the standards of the Civil Practices and Remedies Code, 24 Chapter 10? 25 A. We did quite a bit of research, LexisNexis, talked MELISSA VOIGT, CSR (512) 854-9258 38 1 with attorneys in the firm, we conferenced on it, and then we 2 went and met with one of the premiere trust attorneys in the 3 state. 4 Q. And, I'm sorry, you said his name but can you say 5 it one more time? 6 A. Dick Kelsey. 7 Q. I'm sorry? 8 A. Dick Kelsey. 9 Q. Dick Kelsey. 10 Q. Is it K-e-1-s-e-y? 11 A. Correct. He's in Denton. I think he's board 12 certified in four or five areas. 13 Q. Okay. And I think you alluded to this, but am I 14 correct that it's -- it's your belief that the specific 15 language of Article 8, Section Dis what entitles Deborah 16 Cortez to recover under this postponement claim; is that 17 right? 18 A. That's my understanding, yes. 19 Q. Okay. And I've been through some language, but I 20 think before the break you had said there was some additional 21 language in this section that you thought entitled her to 22 distribution. And I want to ask you again, can you show me in 23 Exhibit 1 24 A. Well 25 Q. -- the language that you're relying on? MELISSA VOIGT, CSR (512) 854-9258 39 1 A. -- the fact is she was the only child, she was the 2 only beneficiary, she was the only heir at law. 3 Q. Okay. 4 A. The trust specifically references that the trust 5 was -- was written solely for the benefit of Deborah Cortez 6 for health, safety, welfare. 7 Q. Where does it say that last -- I want you to point 8 out in Exhibit 1 where this trust says it was written solely 9 for the benefit of Deborah Cortez.
10 A. I'm probably paraphrasing a little bit. 11 Q. Okay. Well, show me the provision that you 12 believe you're paraphrasing? 13 A. Well, take a second to look through the trust. 14 Q. Well, sir, I thought that's what we had taken a 15 break to do earlier? 16 A. Well, you asked me to look at the pleadings. 17 Q. And you don't do that either, sir. 18 A. Well, I did. 19 Q. So show me where in this trust document it says 20 that this trust is written exclusively for the benefit of 21 Deborah Cortez, or whatever you think you've paraphrased. 22 A. Well, you could start with Article 2, family, 23 children, "We have one child of our marriage, Deborah A. 24 Cortez, an adult." In 10, "Our primary concern during 25 Deborah's life is for her health, support, education, welfare MELISSA VOIGT, CSR (512) 854-9258 40 1 and best interest, and the trustee need not consider the 2 interest of any other beneficiaries in making distributions to 3 her or on her behalf for those purposes under this paragraph." 4 Q. Okay. Let me ask you about that. It says that 5 our primary concern during Deborah's life is for these things. 6 Doesn't that suggest that they had a different concern after 7 Deborah died? 8 A. Are you saying it's ambiguous? 9 Q. No, sir. I'm saying when this says "our primary 10 concern is this during Deborah's life," doesn't that suggest 11 that there may be another primary concern after Deborah dies? 12 A. Not necessarily. 13 Q. Anything else that you can find that supports your 14 statement that this trust was written solely for the benefit 15 of Deborah Cortez? 16 A. Yeah, the 10 part is the biggest part. 17 Q. The part about Deborah's life? 18 A. Right. 19 Q. And again, back to my original question, is there 20 any other language in that D portion, the postponement of 21 possession portion, that you believe supports this 22 postponement provision claim? 23 A. You're talking about in the trust? 24 Q. Well, sir, the claim cites in every single one of 25 the pleadings that we looked at, the claim cites Article 8, MELISSA VOIGT, CSR (512) 854-9258 41 1 Section D to support this claim. And I'm asking you, can you 2 point out what language you believe in Article 8, Section D 3 supports this claim? And that's on Page 5 of the trust. 4 A. Well, I mean, whatever we put in our pleadings 5 is -- is addresses that. I'm not going to sit here and try 6 and explain it all to you at this point because certainly 7 we've outlined in our pleadings, we've consulted with 8 necessary experts and we believe every claim we've made is 9 colorable. 10 Q. Was Mr. Kelsey going to testify in this case if it 11 had reached trial as an expert?
12 A. Ihadn't made that decision yet. 13 Q. He certainly was never designated as an expert, 14 was he? 15 A. Correct. 16 MR. THOMPSON: I'm going to approach if you don't 17 mind, Your Honor, with Exhibit 2? 18 THE COURT: You may approach. 19 Q. (By Mr. Thompson} Now, Mr. Brotherton, you've made 20 this same claim in a matter pending in a West Virginia court, 21 correct? 22 A. Well -- and that's not a simple yes or no 23 question. As you know this whole lawsuit here was brought 24 about by Ms. Murray filing suit against Mr. Cortez. We again, 25 doing our due diligence on this case and investigating and MELISSA VOIGT, CSR (512) 854-9258 42 1 doing everything we needed to do to determine that we had 2 claims that could be colorable on this, we filed our petition 3 in intervention. During the course of the litigation in this 4 case, after Judge Herman directed that we bring in all the 5 third party defendants and the churches that were addressed in 6 the trust, suit was filed by Ms. Murray in West Virginia. So 7 everything that was done in West Virginia was of course 8 similar to what we were doing here in addressing the same 9 claims. 10 MR. THOMPSON: I'm going to object to that as 11 nonresponsive, Judge. 12 THE COURT: Sustained. 13 Q. (By Mr. Thompson) Sir, did you allege in the 14 West Virginia case that under Article 8, Section D2 of the 15 trust, because Deborah was over the age of 35 when Phyllis 16 Short died then she inherited all the trust assets and Cortez 17 as her sole heir then inherited all the trust assets? 18 A. That's -- that's part of our claims, yes. 19 Q. In West Virginia? 20 A. Correct. 21 Q. Okay. So that's virtually identical to the 22 postponement claim we've been talking about here today? 23 A. Correct. 24 Q. Is that a yes? 25 A. That's the way I understand it, yes. MELISSA VOIGT, CSR (512) 854-9258 43 1 Q. Okay. And the Judge in the West Virginia case 2 issued a summary judgment against that claim, correct?
3 A. Ibelieve so, yes. 4 Q. Okay. And do you recall the date of that being 5 September 15th, 2016?
6 A. I-- I'm not sure. 7 Q. Okay. Exhibit 2 that I put in front of you is 8 actually a copy of that summary judgment, do you agree? Do 9 you agree with me that that's a copy of the summary judgment?
10 A. If you are representing that it is I have no 11 reason to doubt you. 12 MR. THOMPSON: Your Honor, I have a copy for you 13 if you'd like me to approach? 14 Q. (By Mr. Thompson) Well, if you look at the last 15 page of this document, Page 9, do you see that was entered on 16 September the 15th, 2016 and purports to be signed by Robert 17 A. Waters, Judge? 18 A. Correct. 19 Q. And is that the judge in the West Virginia case? 20 A. Correct. 21 MR. THOMPSON: Your Honor, we'd ask for admission 22 of Exhibit 2. And counsel may not know, but the Court does 23 have on file a certified copy of this with all the nuts and 24 bolts that goes into that from an earlier hearing. So we'd 25 ask that Exhibit 2 be admitted. MELISSA VOIGT, CSR (512) 854-9258 44 1 (Movant' s Exhibit No. 2 2 was offered into evidence.) 3 THE COURT: Any objection? 4 MR. RUBACK: No objection, Your Honor. 5 THE COURT: No. 2 is admitted. 6 (Movant's Exhibit No. 2 7 was admitted into evidence.) 8 Q. (By Mr. Thompson) All right. If you turn to 9 Page 8 of Exhibit 2, Paragraph 29. Do you see that 10 Judge Waters recites Mateo Cortez' claim saying that Mateo 11 Cortez argues that he is the sole beneficiary of the trust and 12 entitled to the distribution of all trust asseta because 13 Article 8, Section D2 of the trust states that when such 14 beneficiary reaches the age of 35 -- and then it goes through 15 that postponement provision. Do you see that? 1
6 A. Ido. 17 Q. Okay. And do you see in the middle of that 18 paragraph, starting with the plain language of Section D? Do 19 you see that?
20 A. Ido. 21 Q. Can you read that sentence into the record, 22 please? 23 A. "The plain language of Section D of the trust, 24 however, only applies if any beneficiary is under the age of 25 35 years at the time he or she becomes entitled to MELISSA VOIGT, CSR (512) 854-9258 45 1 distribution." 2 Q. And can you read the next sentence, please? 3 A. "Deborah was not entitled to distribution until 4 Ms. Short died, at which time Deborah was 54 years old and 5 thus none of the provisions of Section D applied to her 6 interest in the trust." 7 Q. And the next sentence? 8 A. "Rather the plain language of the trust shows that 9 Section B governed Deborah's interests." 10 Q. And one last time, the next sentence? 11 A. "Indeed, at the time the trust was executed 12 Deborah was 42 years old. This further demonstrates that 13 Section D was not intended to apply to the trust created for 14 Deborah, but instead to the alternate distribution to the 15 heirs at law, Mr. and Mrs. Short under Section C of the 16 trust." 17 Q. Okay. Were you aware of Judge Waters' order and 18 his findings in this Exhibit 2 on or about September 15th, 19 2016 when it was entered?
20 A. Iwas there at the hearing. I think I 21 subsequently saw the order. West Virginia has a little 22 different rules on how they produce an order. 23 Q. Okay. Well, but is it fair to say that you became 24 aware of the findings in this document somewhere around 25 September 15th, 2016? MELISSA VOIGT, CSR (512) 854-9258 46
1 A. Idon't know if it was September 15th, but 2 sometime probably after that. 3 Q. Okay. And you disagree with Judge Waters' 4 findings here, I assume? 5 A. That would be a fair assumption. 6 Q. Okay. I take it again you don't disagree with the 7 facts in here that Deborah was 54 at the time Ms. Short died 8 and she was 42 at the time the trust was executed? I think we 9 got your agreement on that earlier?
10 A. If -- if those were the correct dates then I'll -- 11 I'll assume that also. 12 Q. You don't have any reason to doubt that?
13 A. I-- if you're representing that's the case then I 14 have no reason to doubt it. 15 Q. Okay. Why did you continue to pursue these same 16 claims in this Court after they had already been rejected by 17 Judge Waters in West Virginia? 1
8 A. Ithink you're asking me to give my legal theories 19 on that. 20 Q. Okay. A. You know Q. Do you have one? 23 A. the fact is that the West Virginia case was 24 filed after this case was filed by Ms. Farley in our petition 25 in intervention and -- MELISSA VOIGT, CSR (512) 854-9258 47 1 Q. Let me just stop you there because I think I can 2 cut to the chase. What substantive disputes do you have with 3 regard to what Judge Waters found? I'm not talking about 4 procedure, but you said you disagreed with what he found in 5 this paragraph and I'd like to know what that disagreement is? 6 A. Well, certainly, again, it's our position and I 7 think you've conceded at least one of the points is that 8 Deborah Cortez is entitled to the trust proceeds. 9 Q. Well, I have certainly not conceded that and if 10 that's what you think I said then I retract that. I think 11 what I said is that I withdrew our sanctions motion on that 12 point because I think it is a colorable argument. I certainly 13 do not endorse your theory on that. I think we were still 14 entitled to summary judgment, absolutely. But if there has 15 been some confusion on that I want to set the record straight. 16 And all I did was withdraw our sanctions motion on that point. 17 I still think you were absolutely, totally wrong. 18 A. Well, certainly we have a difference of opinion 19 because 20 Q. Sure. And you and Judge Waters have a difference 21 of opinion, correct? 22 A. Right. 23 Q. And I want to know, again, what the basis is for 24 you disagreeing with Judge Waters' order here? 25 A. Because Deborah Cortez is entitled to the trust. MELISSA VOIGT, CSR (512) 854-9258 1 Q. Okay. 2 A. And I've already outlined the reasons why. 3 Q. Well, sir, you haven't. In fact, you told me you 4 can't outline it. You said it's in the pleadings. And, sir, 5 you are the one here that we're seeking sanctions against. 6 And I've been through the pleadings and what they say. Now I 7 need to hear what you say about it, sir. And so my question 8 one last time is can you show me any language in Article 8, 9 Section D of Exhibit 1 that supports your theory?
10 A. Ithink I've already said that. 11 MR. THOMPSON: Okay. I'll pass the witness, Your 12 Honor. 13 14 CROSS-EXAMINATION 15 BY MR. ROBACK: 16 Q. Mr. Brotherton, counsel asked you if you're 17 familiar with Rule 13. He read to you some parts of Rule 13. 18 He didn't read all of Rule 13. Does Rule 13 in fact state, 19 quote, "Courts shall presume that pleadings, motions and other 20 papers are filed in good faith," unquote? 21 A. That's correct. 22 Q. Counsel went over multiple filings in the case, 23 the Original Petition in Intervention, the first amended, the 24 second amended, the third amended and the fourth amended, went 25 over each of those and had you confirm that there was a, MELISSA VOIGT, CSR (512) 854-9258 49 1 quote, unquote, postponement claim made in each of those 2 filings. Is that your recollection? 3 A. Correct. 4 Q. And when was the first time counsel advised you or 5 anyone else advised you that counsel believed that that 6 statement, that that claim was sanctionable?
7 A. Idon't think I ever heard that -- 8 Q. So 9 A. until this motion to modify. 10 Q. So if I'm understanding correctly, you filed an 11 original petition, first amended, second amended, third 12 amended and fourth amended, and the very first time counsel 13 advised you that he believed your conduct was sanctionable was 14 not until after the final judgment in that case? Is this -- 15 is that correct? 16 A. That's correct. 17 Q. Interesting. Counsel also read to you from 18 Chapter 10 of the Civil Practices and Remedies Code, 19 specifically Section 10.001. I'd like to read a portion of i t 20 that he hasn't to have you confirm that's correct. To the 21 signatory's best knowledge, information, belief formed after 22 reasonable inquiry and so on, when you filed all the documents 23 at issue, did you make what you believed to be reasonable 24 inquiry? 25 A. Absolutely. MELISSA VOIGT, CSR (512) 854-9258 50 1 Q. Prior to filing those documents? 2 A. Absolutely. 3 Q. By doing so did your reasonable inquiry include 4 assigning associates to do research on these legal issues? 5 A. That's correct. 6 Q. Did your reasonable inquiry include consulting 7 with a trust and estates expert before filing these documents? 8 A. That's correct. 9 Q. And did you to the, quote, unquote, best 10 knowled~e, information, belief of yourself truly believe you 11 were acting in good faith at the time you filed these 12 documents? 13 A. Absolutely. 14 Q. You had an honest belief you were acting in good 15 faith at the time of the filing? 16 A. Yes. 17 Q. Did you intend to mislead this Court or counsel 18 with any of the filings in this case? 19 A. Absolutely not. 20 Q. To the extent that hypothetically you were wrong 21 on any claim you made, did you know at the time you made these 22 claims in the filings you were wrong? If hypothetically 23 I'm not saying you were wrong -- but if hypothetically you had 24 been wrong, would you have known at the time you filed these 25 claims? MELISSA VOIGT, CSR (512) 854-9258 51 1 A. No. 2 Q. Counsel also asked you to review the West Virginia 3 Judge's order granting a motion for personal personal 4 summary judgment against your client. Was that an 5 interlocutory order or a final order?
6 A. Interlocutory. 7 Q. And is it your understanding of the law that an 8 interlocutory order by a West Virginia judge is binding on 9 this Texas Court?
10 A. It is not. 11 Q. So you wouldn't have found anything at all wrong 12 making an argument inconsistent with a West Virginia Judge's 13 interlocutory order at the time you made your filing in this 14 case? 15 A. That's correct. 16 MR. RUBACK: I have no further questions, Your 17 Honor. 18 MR. THOMPSON: Nothing further. 19 THE COURT: You may be seated. 20 Next witness. 21 MR. THOMPSON: Sean Hester. 22 Your Honor, I'm going to approach because I was 23 just handed the exhibits, I need to hand them back. 24 MR. HESTER: May I borrow your glasses, William? 25 MR. BROTHERTON: Oh, you can. MELISSA VOIGT, CSR (512) 854-9258 52 1 MR. HESTER: You may not need them but I do. 2 MR. BROTHERTON: They are 1.25, the lowest -- 3 lowest range. 4 MR. THOMPSON: There was a file stamped copy of 5 the trust document but I'm not finding it. 6 THE COURT: It's probably with me. It is. 7 MR. THOMPSON: Okay. There you go. 8 MR. HESTER: Thank you. 9 10 SEAN HESTER, 11 was called as a witness by the Movant having been first duly 12 sworn, testified as follows: 13 14 DIRECT EXAMINATION 15 BY MR. THOMPSON: 16 Q. Mr. Hester, would you state your name for the 17 Court, please? 18 A. Sean Walker Hester. 19 Q. And what do you do for a living?
20 A. I'm an attorney. 21 Q. How long have you been practicing law? 22 A. Since 1993. 23 Q. And you're one of the attorneys for Mateo Cortez 24 in this matter; is that right? 25 A. That's correct. MELISSA VOIGT, CSR (512) 854-9258 53 1 Q. Okay. I'm going to try to get through this a 2 little more quickly so you don't have to wear those crooked 3 glasses for the next hour. No offense, Mr. Brotherton. 4 Are you familiar -- at least after today are you 5 familiar with Texas Rule of Civil Procedure 13 and Civil 6 Practices and Remedies Code, Chapter 10? 7 A. Yes, I'm generally familiar with them. 8 Q. Okay. And I actually have Chapter 10 up there in 9 front of you. It's not an exhibit but you may want to look at 10 it. And you understand that the triggering event for 11 potential sanctions under those rules is an attorney signing a 12 pleadi~g that is sanctionable? 13 A. That's what it says. 14 Q. Do you agree with me that you signed Intervenor's 15 Amended Motion to Consider Order Granting Third Party 16 Defendants' Traditional and No Evidence Motion for Summary 17 Judgment? 1
8 A. I-- yes, I'm sure I did. 19 Q. Okay. I can give you a copy just to help us 20 along. 21 MR. THOMPSON: May I approach, Judge? 22 THE COURT: You may. 23 THE WITNESS: The titles get so long, I'm -- but 24 I'm sure I did. Okay. 25 Q. (By Mr. Thompson) And this is a recently filed MELISSA VOIGT, CSR (512) 854-9258 54 1 pleading. It looks like it was actually filed in two 2 different cause numbers but I think it was most recently filed 3 on the 23rd of January; is that right? 4 A. Yeah, it probably got filed in the other cause 5 number since this case was severed. 6 Q. Sure.
7 A. Ithink there may have been some confusion. 8 Q. I think we're all kind of confused about it.
9 A. I-- yeah, i t is a little confusing. 10 Q. I won't belabor it, but are you familiar with what 11 I discussed with Mr. Brotherton is the postponement provision 12 claim?
13 A. Iam. 14 Q. And that's the claim of course that because 15 Deborah Cortez was over the age of 35 at the time Phyllis 16 Short died, that she's entitled to all the trust assets, 17 correct? 18 A. That's correct. 19 Q. Do you address that claim and ask the Court to 20 reconsider its summary judgment on that claim in this amended 21 motion to reconsider? 22 A. Yes. 23 Q. Okay. And just to be sure, if you go to Page 22 24 of this document, that is your signature there on Page 22; is 25 that right? MELISSA VOIGT, CSR (512) 854-9258 55
1 A. I'll get there but, yes, I'm sure it is. 2 Q. Sure. 3 A. Yes, it is. 4 Q. Okay. You understand that that claim was made 5 pursuant to the postponement provision in the trust which is I 6 believe marked as Exhibit 1 up there. And that's on Page 5, 7 that's Article 8, Section D?
8 A. Ido. 9 Q. And you understand when I say postponement 10 provision that's what I'm speaking of? 1
1 A. Ido. 12 Q. Okay. Can you tell me the language in Article 8, 13 Section D that you believe supports the postponement provision 14 claim?
15 A. Ican. Let me get to it. 16 Q. Uh-huh. 17 A. The -- well, first of all -- let's see. Okay. So 18 first of all it refers to any beneficiary. And clearly in my 19 mind Deborah Cortez was the only named beneficiary in this 20 in this case. So when I'm reading "postponement of 21 possession" it says "if any beneficiary," in my mind that has 22 to apply to Deborah Cortez. 23 Q. Okay. Let's talk about that. 24 A. Because she's -- because she's the only -- I mean, 25 until she died she's the only beneficiary. MELISSA VOIGT, CSR (512) 854-9258 56 1 Q. Okay. You're talking about right there at the 2 front end it says if any beneficiary is under the age of 3 35 years, dot, dot, dot? 4 A. At the time he or she becomes entitled to 5 distribution, that's correct. 6 Q. Okay. That's the "any beneficiary" language 7 you're referring to? 8 A. Correct. 9 Q. Okay. Do you not agree with me that this 10 provision did not apply to Deborah Cortez because as has been 11 admitted by your co-counsel she was over the age of 35 at the 12 time she became entitled to distribution?
13 A. Idon't agree. 14 Q. Okay. And why not? 15 A. Because to me this postponement of possession 16 would apply if she was under 35. I think clearly if Deborah 17 was under the age of 35 she would have had postponement of 18 possession. So the way it applies to me is if she's over 19 35 then she would have been entitled to full distribution of 20 the assets because there would not be a postponement of 21 possession. 22 Q. Okay. 23 A. And that's what I've always argued. 24 Q. And does that stem from under Section 2, 25 termination, the statement that "When such beneficiary reaches MELISSA VOIGT, CSR (512) 854-9258 57 1 the age of 35 years the balance of his or her trust share, 2 including both principal and any accrued or undistributed 3 income shall be distributed to that beneficiary?" Is that 4 where that thinking comes from?
5 A. I'm sorry, tell me which provision you just read. 6 Q. If you go down to termination, No. 2? 7 A. Okay. 8 Q. And then on the third line? I believe this is the 9 provision that you believe supports your theory? 10 A. Right. 11 Q. "When such beneficiary reaches the age of 35 years 12 his or her trust share shall be distributed to the 13 beneficiary." Do you see that? 14 A. Yes. 15 Q. Okay. Is that the provision that you think 16 supports your theory? 17 A. Well, I think I wouldn't read it as -- 18 separately, but I think read as a whole in my opinion it -- it 19 does support the -- the theory. 20 Q. Okay. Do you not agree with me that when the 21 trust says "when such beneficiary reaches the age of 35" it's 22 talking about the beneficiaries that were under the age of 23 35 at the time they were entitled to their distribution? 2
4 A. Iwould assume it was talking about any 25 beneficiary because that's what's named. MELISSA VOIGT, CSR (512) 854-9258 58 1 Q. Well, why would the document say "such 2 beneficiary" if it was talking about any beneficiary? Doesn't 3 "such" qualify a beneficiary? 4 A. To me it says "if any beneficiary," and then you 5 read that and i t says "when such beneficiary." 6 Q. But, sir, i t doesn't say "if any beneficiary." It 7 says "if any beneficiary is under the age of 35 years," 8 correct? 9 A. Right. Right. 10 Q. And under your theory we would totally throw that 11 phrasing out the window because it doesn't matter if they're 12 under or over age 35?
13 A. It does matter because -- 14 Q. Okay. Why does it matter? 15 A. Because if Deborah was under 35 she would have 16 been subject to the postponement. 17 Q. Yes, she would. But she's not subject to i t 18 because she was over the age of 35, correct? 19 A. Which means there is no postponement. That's what 20 we've always argued. 21 Q. Okay. And this is what Dick Kelsey told you was 22 the correct interpretation of the trust? 23 A. Absolutely. 24 Q. Okay.
25 A. Imean, I'm -- I'm not -- I understand that people MELISSA VOIGT, CSR (512) 854-9258 59 1 have said we're wrong, but I still completely believe that 2 that's what the plain language says. 3 Q. Again, like Mr. Brotherton you were part of the 4 team that raised this same argument in West Virginia, correct? 5 Were you involved in the West Virginia litigation? 6 A. No. 7 Q. You haven't done any research or --
8 A. Idid some research. We had West Virginia 9 counsel. 10 Q. Okay. 1
1 A. Ibelieve Mr. Brotherton may have been up there, 12 but 13 Q. Have you been to West Virginia for this case? 14 A. No. 15 Q. Has Mr. Brotherton? 1
6 A. Ithink he said he had. 17 Q. Okay. 1
8 A. I'm sure -- he did. He said he had. 19 Q. So are you familiar with the order that's marked 20 Exhibit 2? 21 A. Yes. I'm familiar it exists. 22 Q. And again, to cut to the chase on Exhibit 2, 23 Page 8, Paragraph 29, are you familiar with the fact that 24 Judge Waters rejected this claim in the West Virginia matter? 25 A. Yes, I am, but there is a -- there is a caveat to MELISSA VOIGT, CSR (512) 854-9258 60 1 that. But, yes, to answer your question. 2 Q. I understand there is some dispute about the 3 capacity issues related to the West Virginia case. I 4 understand that you only represent Mateo Cortez in his 5 individual capacity in West Virginia. But on the substance, 6 the substance of the postponement provision claim that we've 7 referred to today, that's what Judge Waters is talking about 8 in Paragraph 29, correct? 9 A. Okay. 10 Q. Do you agree with me? And take your time to 11 review it.
12 A. Imean, the first sentence says, "The Court 13 rejects Mateo Cortez' argument that he is the sole beneficiary 14 of the trust." I really don't believe we've ever argued that. 15 I think we've always argued that the estate of Deborah Cortez 16 was the sole beneficiary of the trust. 17 Q. Okay. Well, even if that is so the Judge goes on 18 to talk about his claim, Mateo Cortez in whatever capacity, is 19 that because Article 8, Section D2 of the trust states 20 that and then it reads in the 35 year provision. Do you 21 see that? 22 A. Again, it says, "Mateo Cortez argues that he is 23 the sole beneficiary of the trust." I just -- if that was 24 argued in West Virginia that's not something we argued in 25 Texas. And I understand where the -- where some of the MELISSA VOIGT, CSR (512) 854-9258 61 1 confusion came with -- with the summary judgment as to whether 2 or not we were saying Mateo Cortez was a beneficiary or the 3 estate of Deborah Cortez, but I -- 4 Q. Well, it came from the fact that you waited a year 5 and a half to get your ducks in a row about the personal 6 representative issue, correct? 7 A. Well, it -- it's my understanding that we've never 8 made a claim that Mateo Cortez was the beneficiary of the 9 trust. 10 Q. Okay. So Judge Waters just got that one wrong in 11 Exhibit 2?
12 A. Isaid that's my understanding. 13 Q. Okay. Regardless of the capacity issue
14 A. Iwasn't involved in the West Virginia so I don't 15 know what what Judge Waters had in front of him, I don't 16 know what he ruled. 17 Q. Okay. But whatever he had in front of him he 18 certainly says later on that the plain language of Section D 19 of the trust only applies if any beneficiary is under the age 20 of 35 at the time he or she becomes entitled to distribution 21 and that Deborah could not have been entitled to distribution 22 under that section because she was 45 years old when Ms. Short 23 died?
24 A. 42. Or -- 25 Q. I'm sorry. 54 years old. MELISSA VOIGT, CSR (512) 854-9258 62
1 A. 54. Okay. Sorry. 2 Q. Is that right? 3 A. Yeah. 4 Q. Okay. And you don't dispute that she was that age 5 at the time that Ms. Short died? 6 A. Correct. 7 MR. THOMPSON: Pass the witness. 8 9 CROSS-EXAMINATION 10 BY MR. RUBACK: 11 Q. Mr. Hester, is every pleading you filed -- I'm 12 sorry. Mr. Hester, is the one pleading you signed in this 13 case, the only pleading you signed in this case, is it based 14 on your honest interpretation of the law and of the trust 15 documents? 16 A. Yes, sir. 17 Q. Did you ever intend to mislead the Court with 18 anything in the one filing you signed? 19 A. No. 20 Q. Did you rely upon research performed by yourself 21 and by associates at your law firm in filing that document 22 that you filed? 23 A. Absolutely. 24 Q. Did you rely upon the trust expert in Denton 25 County in making the representations you made to the Court in MELISSA VOIGT, CSR (512) 854-9258 63 1 the one filing that you filed? 2 A. Yes. 3 Q. We've talked quite a bit about an interlocutory 4 order signed by a West Virginia judge in a related matter. Do 5 you believe that an interlocutory order signed by a 6 West Virginia judge should be binding on this Texas Court? 7 A. No. 8 MR. RUBACK: I have nothing further, Your Honor. 9 THE COURT: Anything further? 10 MR. THOMPSON: No more questions. 11 THE COURT: You may be seated. 12 Your next witness? 13 MR. BOONE: Your Honor, we're going to call -- 14 THE WITNESS: Do you want me to leave the -- 15 MR. THOMPSON: Sure. Certainly the exhibits. 16 THE COURT: I'd like to see Exhibit 2 or the trust 17 agreement that -- if you got it. 18 THE WITNESS: Yes, Your Honor. 19 MR. THOMPSON: We're going to call Linda Murray. 20 Mr. Boone is going to do the direct if that's all right. 21 THE COURT: Okay. That's fine. 22 MR. BOONE: Linda Murray. 23 THE COURT: Ms. Murray, if you'll have a seat up 24 here as close to the microphone as possible. 25 You may proceed. MELISSA VOIGT, CSR (512) 854-9258 64 1 MR. BOONE: Thank you, Judge. 2 3 LINDA MURRAY, 4 was called as a witness by the Movant having been first duly 5 sworn, testified as follows: 6 7 DIRECT EXAMINATION 8 BY MR. BOONE: 9 Q. Ms. Murray, would you state your name for the 10 record, please? 11 A. Yes, Linda Murray. 12 Q. And, Ms. Murray, where do you li,e? 13 A. Mineral Wells, West Virginia. 14 Q. I see. And you flew her for this hearing; is that 15 correct? 16 A. Yes. 17 Q. And traveling with you is your husband? 18 A. Yes. 19 Q. What's his name? 20 A. Danny. 21 Q. Now, Ms. Murray, are you retired? 22 A. Yes. 23 Q. From what profession have you retired? 24 A. Banking. 25 Q. Banking? MELISSA VOIGT, CSR (512) 854-9258 65 1 A. Uh-huh. 2 Q. How many years did you serve in the banking 3 industry?
4 A. 39years. 5 Q. Okay. With what bank for the most -- 6 A. For the most part was Branch Banking & Trust. 7 Q. BB&T? 8 A. Yes. 9 Q. I understand you've also served as your church 10 treasurer for a number of years, correct? 11 A. Yes, 18 years. 12 Q. So you like numbers, do you? 13 A. Yes. 14 Q. Who are William and Phyllis Short? 15 A. They were my aunt and uncle. 16 Q. So you were their niece, correct? 17 A. Yes. 18 Q. And did 19 MR. BOONE: Judge, I'm going to approach the 20 witness. 21 THE COURT: You may. 22 Q. (By Mr. Boone) Did William and -- first off, did 23 William have a nickname? 24 A. Dorsey. 25 Q. Dorsey. All right. MELISSA VOIGT, CSR (512) 854-9258 66 1 A. Yes. 2 Q. So forgive me if I refer to him as Dorsey or 3 William. But did they have a child? 4 A. Yes, they had Deborah. 5 Q. Okay. And was Deborah adopted? 6 A. Yes. 7 Q. In what state did they adopt her? 8 A. West Virginia. 9 Q. Now, you are trustee for the William and Phyllis 10 Short Trust, correct? 11 A. Yes, I am. 12 Q. All rig·ht. Now, if it's okay I'll refer to that 13 document by the phrase "the trust" today. Is that fair? 14 A. Yes. 15 Q. All right. And -- but at times you wear two hats, 16 correct? 17 A. Yes. 18 Q. And why is that? 19 A. Because I'm the trustee of that -- of the trust 20 and 21 Q. You're also an heir at law, a potential heir? 22 A. Yes. 23 Q. You're also a potential heir, correct? 24 A. Yes, I am. 25 Q. Okay. Got you. Now, could you tell the Judge MELISSA VOIGT, CSR (512) 854-9258 67 1 when Phyllis and Dorsey first started talking to you about 2 possibly serving as a trustee? 3 A. Yes. They came to me -- well, we were in 4 California. My husband was in the service. He was drafted 5 during the Vietnam war. And they came from Parkersburg, 6 West Virginia to Fort Ord, California to visit us. And while 7 they were out there they talked to me then that they were 8 thing about doing -- that -- the trust. 9 Q. Was it often that ·you had visitors out to 10 California? 11 A. No. 12 Q. Was it a special time for you? 13 A. Yes, it was very special and we were very, very 14 happy to see them. 15 Q. Got you. Now, to your knowledge did they have a 16 trust at that -- do you know if they had a trust at that time? 17 A. No, I don't think they did but it's not -- I don't 18 know that knowledge. They didn't share that with me if they 19 did. 20 Q. Sure. And did they mention to you the amount, the 21 size of the trust in the 1970s? 22 A. No. 23 Q. All right. Now, let's fast forward to let's say 24 the 1980s. Did they have a special occasion where they talked 25 to you further about the trust? MELISSA VOIGT, CSR (512) 854-9258 68 1 A. Yes. They come out to my house and visited me. 2 Q. Okay. 3 A. And they gave me a video to watch to see how a 4 trust works and also asked me if I would be willing to serve 5 as a co-trustee with Debbie if something happened to her and 6 William. 7 Q. Okay. 8 A. And if she was the last to go it was supposed to 9 be me that served on the trust as a co-trustee. 10 Q. Now, were they aware that you were in the banking 11 industry? 12 A. Yes. Yes, they come -- they were a customer of 13 mine a lot. 14 Q. Proud of you for that? 15 A. Pardon me? 16 Q. Were they proud of you for that? 17 A. Oh, yes. They always told me how proud they were 18 for what I did with my education and working with the bank. 19 And I enjoyed it. I loved banking. 20 Q. Ma'am, I want to fast forward to January 5th, 21 2000. That's when William passed away, correct? 22 A. Yes. 23 Q. Now, was there a memorial service for Dorsey in 24 West Virginia? 25 A. Yes. MELISSA VOIGT, CSR (512) 854-9258 69 1 Q. Okay. Now, what if anything or any meetings 2 happened around the time of this memorial service -- 3 A. Uh-huh. 4 Q. -- as it relates to the trust? 5 A. Yes. I spoke with -- with Phyllis and Debbie at 6 that time at their hotel and we talked about the trust and she 7 wanted me to serve as the co-trustee. 8 Q. In addition to asking you to serve as the 9 co-trustee did Phyllis, Aunt Phyllis talk about the goal, the 10 purpose of the trust? 11 A. That she wanted it -- that once -- if Debbie -- 12 she wanted Debbie to be able to live comfortably. 13 Q. Okay. 14 A. And after Debbie's death then it was to be divided 15 between the Whites -- the Whited and the Short families. 16 Q. All right. So after William passed away did at 17 some point you become a co-trustee? 18 A. Yes, I did. 19 Q. All right. Now, you were co-trustee with who 20 else? 21 A. With Deborah. 22 Q. All right. Now, who is Bob Schlager (phonetic)? 23 A. Robert Schlager was the manager of the trust. 24 Q. He's a financial manager? 25 A. Financial, yes. MELISSA VOIGT, CSR (512) 854-9258 70 1 Q. Okay. And what if anything would he do or send 2 you as co-trustee? 3 A. He would send me documents at different times. 4 Sometimes Phyllis would call and tell me they were sending 5 them and sometimes he called. I'd sign them and send them 6 back. 7 Q. But you were relying for the most part on what he 8 was sending you? 9 A. Absolutely. I -- they trusted him, I trust them 10 and I trusted him. 11 Q. You're in West Virginia at the time? 12 A. Yes, I am. 13 Q. And Mr. Schlager was in Georgia? 14 A. Yes. 15 Q. Deborah was in Texas? 16 A. Yes. 17 Q. Okay. 18 A. Mr. Schlager was in Florida. 19 Q. Florida. Forgive me. Phyllis, was she also in 20 Florida too? 21 A. She was in Florida when they prepared the trust 22 and everything but then they moved to Texas because they were 23 getting older. 24 Q. Okay. All right. So it's my understanding that 25 in the span of 10, 11 months, all in one year both your MELISSA VOIGT, CSR (512) 854-9258 71 1 Aunt Phyllis and Deborah died. That was in 2011, correct? 2 A. Yes. 3 Q. All right. Now, Deborah was married to a 4 gentleman, correct? 5 A. Yes. 6 Q. What was his name? 7 A. Mateo Cortez. 8 Q. Mateo Cortez? 9 A. Yes. 10 Q. What if anything did Mateo say to you on or around 11 his wife's death as it relates to funds or monies? 12 A. He called me the morning that Debbie had passed 13 away and he said and he -- and I thought it was so strange 14 and I said it to my husband. He said, "We were getting 15 $15,000 a month and now that money is going to be yours." 16 Q. So Deborah and Mateo were getting $15,000 a month? 17 A. Yes. 18 Q. Okay. And what was your reaction -- what did you 19 think he meant by "you're getting it now?"
20 A. Isaid, "No, I will not be getting that money, it 21 belongs to the trust." 22 Q. But he was acknowledging that funds that were once 23 going to his -- him were now going to the trust? 24 A. To -- yes. 25 Q. All right. At the time that Deborah died did you MELISSA VOIGT, CSR (512) 854-9258 72 1 know how much money was in the trust?
2 A. Ihad no idea. 3 Q. How did you get your first copy of the trust 4 document? 5 A. Finally after asking and asking and asking I 6 received a copy on February the 17th of 2012 that Mateo sent 7 to me and said he found it in the condo. 8 Q. So Mateo gave you your first copy of the trust? 9 A. Yes. 10 Q. Now, at that point did you know all of the 11 accounts and annuities and life insurance policies and 12 everything involved with the trust? 13 A. No, I had no idea. 14 Q. All right. Could you just kind of share with us 15 how you got your arms around everything involved here? 16 THE COURT: Counselor, may I ask some questions? 17 MR. BOONE: Yes. 18 THE COURT: Counselors? Because you've got me 19 confused. William Short died when? 20 THE WITNESS: He died January the 5th of 2002. 21 THE COURT: Okay. And then I think I heard you 22 say that you met with Phyllis, Debbie? 23 THE WITNESS: Yes. 24 THE COURT: Debbie Cortez? 25 THE WITNESS: Yes. MELISSA VOIGT, CSR (512) 854-9258 73 1 THE COURT: And yourself met, and there was a 2 discussion about you and Debbie being the co-trustees? 3 THE WITNESS: Yes. 4 THE COURT: And then you subsequently testified -- 5 or then you said that during some period of time you would get 6 documents from Mr. Schlager? 7 THE WITNESS: Yes, I would. 8 THE COURT: And as co-trustee you were signing 9 them, correct? 10 THE WITNESS: Yes. 11 THE COURT: Now, at that time, from the date of 12 mister -- or shortly after Mr. Short's death until Phyllis 13 died, were you and Debbie the co-trustees of the trust? 14 THE WITNESS: Yes, we were. 15 THE COURT: Was there some documentation saying 16 that? 17 THE WITNESS: Yes. There was a transfer form -- 18 I'm not exactly correct of what it was, but it was 19 transferring the ownership and Aunt Phyl transferred it to me 20 and Debbie on March -- March 31st of 2003. 21 THE COURT: Okay. So you -- when Debbie died you 22 had this phone call saying that we've been getting $15,000. 23 Were you directing the $15,000 or how did that money -- how 24 were they getting -- or Debbie getting $15,000? 25 THE WITNESS: She was -- the $15,000 was corning MELISSA VOIGT, CSR (512) 854-9258 74 1 out of the trust to Debbie that Robert Schlager set up to go 2 to her. 3 MR. THOMPSON: She was entitled to income under 4 THE WITNESS: Yeah, she was entitled to that 5 income. 6 MR. THOMPSON: During her life, after Phyllis' 7 death. 8 THE WITNESS: Also -- 9 THE COURT: No, but I'm talking about before 10 Phyllis' death? 11 MR. THOMPSON: I don't know the answer to that 12 th8n. 13 THE WITNESS: No, she never got that kind of money 14 before Phyllis' death. Not 15,000 a month. 15 THE COURT: Okay. Because, I mean, you said -- 16 let me go back and look at this. You said that he called 17 you 18 THE WITNESS: On December the 9th of 2011. 19 THE COURT: Right after -- 20 THE WITNESS: Debbie died. 21 THE COURT: Debbie died. And he said, "We've been 22 getting $15,000." 23 THE WITNESS: Uh-huh. Each month. 24 THE COURT: And I'm just trying to say who was 25 directing that? Because I don't read the trust to say that. MELISSA VOIGT, CSR (512) 854-9258 75 1 THE WITNESS: Because Debbie acted on her -- by 2 herself after Phyllis died. 3 THE COURT: No, before Phyllis -- okay. So -- is 4 it your -- okay. And you believe that -- you were a 5 co-trustee? 6 THE WITNESS: Yes. 7 THE COURT: But you weren't authorizing any 8 payments? 9 THE WITNESS: No. 10 THE COURT: That between the date of Phyllis' 11 death and the date of Debbie's death, which was a period of 12 11 months 13 THE WITNESS: Uh-huh. 14 THE COURT: -- at least according to Mateo he was 15 receiving $15,000 a month for those 10 or 11 months? 16 THE WITNESS: No, they didn't get it that -- that 17 quickly. Let me think. 18 THE COURT: But were you directing that payment as 19 co-trustee? 20 THE WITNESS: No. 21 THE COURT: Who do you think was directing that? 22 THE WITNESS: Debbie set it up with the investors 23 through Bob Schlager. 24 THE COURT: Okay. So she as a co-trustee 25 contacted Mr. Schlager? MELISSA VOIGT, CSR (512) 854-9258 76 1 THE WITNESS: And she set up these accounts with 2 the money that was in the trust. She operated on her behalf. 3 I never did anything except sign some blank documents which I 4 knew nothing about. I called Bob to say -- I called Bob 5 Schlager and asked him what -- I said, "Why am I signing these 6 blank documents?" And there was a stack like this. 7 (Indicating.) And he said, "Do I have to get a plane and come 8 clear up the -- West Virginia to go over each and every one of 9 these documents?" And I told him, I said, "I've worked in 10 banking all my life and I was always told never to let anyone 11 sign a document in blank." But he was very, very rude and -- 12 THE COURT: Okay. So you -- well, you may have 13 signed a blank document 14 THE WITNESS: Yes, I -- 15 THE COURT: -- but you're telling me you didn't 16 authorize any $15,000 a month payment? 17 THE WITNESS: Well, no, I did not but I signed the 18 document . 19 THE COURT: Right. You signed these blank 20 documents but you didn't really know -- 21 THE WITNESS: What was being done. 22 THE COURT: -- these payments were being done 23 until Mateo called you. And then he says you're going to be 24 receiving these payments forward? 25 THE WITNESS: That is correct. MELISSA VOIGT, CSR (512) 854-9258 77 1 THE COURT: Okay. 2 Q. (By Mr. Boone) Now, what conclusions did you -- 3 let's go back to that $15,000 payment that Mateo said would be 4 coming to you as the trustee? 5 A. Uh-huh. 6 Q. What conclusions did you draw as to what Mateo 7 felt or thought about his entitlement to the trust at that 8 point? 9 A. Well, he thought that the money was going to come 10 to me because he thought I was the trust (sic) at that time 11 and I was going to get all those that money. We gave 12 Debbie -- because I was supposed to give Debbie 50,000, which 13 I didn't know, I didn't have a copy of the trust so I had no 14 idea. And -- and Debbie did an automatic draft from one of 15 the investments to her own checking account for the $50,000 16 for the first year, and then would have been supposed to give 17 her $25,000 for the second year. But she didn't live to get 18 the second. But I did not know that 19 THE COURT: Well, let me stop you. You got a copy 20 of this trust agreement when? 21 THE WITNESS: February the 17th of 2016 from Mateo 22 Cortez because I couldn't get anything from Bob Schlager. 23 THE COURT: Okay. Do you have that instrument 24 down there? 25 THE WITNESS: With me now? MELISSA VOIGT, CSR (512) 854-9258 78 1 MR. BOONE: It would be Exhibit 2. 2 THE WITNESS: Yes, I do. 3 THE COURT: Okay. Look at the provision about 4 what happens when Phyllis dies. 5 MR. BOONE: Is that Article 7, disposition after 6 death of second spouse? 7 THE COURT: Yes. 8 Q. (By Mr. Boone) That's on Page 4 of 14, 9 Ms. Murray. 10 A. Okay. Disposition after the death of second 11 spouse. Debbie was -- well, we were the trustee -- I mean, 12 the two co-trustees were supposed to "On the death of the 13 second spouse the trust shall be administered as follows; 14 payment of expenses and taxes. The trustee shall make 15 provision out of the second spouse's separate share for the 16 payments of the type described in Paragraph B of Article 5 if 17 any required in connection with the estate of the second 18 spouse." 19 "Special testamentary power of appointment. The 20 trustee shall distribute such portion of the assets of the 21 credit sheltered trust of the first spouse to die to such 22 charitable institutions and to such persons who are 23 descendants or the spouses of descendants of the first spouse 24 to die as the second spouse may appoint by his or her will 25 provided such will makes specific reference to this power of MELISSA VOIGT, CSR (512) 854-9258 79 1 appointment and is duly admitted to probate. In default of 2 the exercise of such power of appointment the remainder of the 3 trust estate shall be administered as described in Article 8 4 below." 5 THE COURT: Okay. Continue. Well, one question. 6 Do you know whether or not those charities got whatever they 7 were entitled to? 8 THE WITNESS: Yes. 9 THE COURT: Okay. Now let's go down to the next 10 section. 11 THE WITNESS: Cash distribution -- cash 12 distributions. I can't talk. 13 THE COURT: Distribution. 14 THE WITNESS: Excuse me. Okay. "Cash 15 distribution to Deborah. If our daughter Deborah A. Cortez is 16 living and legally competent the trustee shall distribute to 17 her the sum of $50,000 as soon as practicable after the death 18 of the second one of us to die. If Deborah is not there -- if 19 Deborah is not then living or is not legally competent then 20 this gift shall lapse and the remainder of the trust estate 21 shall be administered as provided below." 22 "Continuing trust for Deborah. If our daughter 23 Deborah A. Cortez is living on the date of the death of the 24 second one of us to die, then the remainder trust estate shall 25 be administered as follows: Number one, income commencing as MELISSA VOIGT, CSR (512) 854-9258 80 1 of that date and during Deborah's life, the trustee shall 2 distribute to her or on her behalf if she becomes 3 incapacitated all of the net income of the trust at least 4 quarterly or at more frequent intervals at Deborah's request. 5 The term 'income' shall not include capital gains whether 6 short term or long term from the sale of assets of the trust." 7 THE COURT: Okay. Let me look at that for a 8 minute. I'm going to ask you a question. So you were the 9 co-trustee upon Phyllis' death? 10 THE WITNESS: Yes. 11 THE COURT: Were you involved in making the 12 $50,000 distribution? 13 THE WITNESS: No, I was not. 14 THE COURT: You didn't have a copy of this trust, 15 did you? 16 THE WITNESS: No. 17 THE COURT: Then after that $50,000 distribution 18 there was to be a second payment which would have been one 19 year from the date of death of the second of us -- of one 20 the second one of us to die. So if Phyllis -- what's the date 21 of Phyllis' death? 22 THE WITNESS: Phyllis' death was January the 5th 23 of 2011. 24 THE COURT: Okay. So as soon as practicable 25 $50,000 was payable? MELISSA VOIGT, CSR (512) 854-9258 81 1 THE WITNESS: Right. 2 THE COURT: Then -- then there would be some 3 income during the period quarterly or more frequently at 4 Deborah's request. Were you involved in any of that? 5 THE WITNESS: No, I was not. 6 THE COURT: Then there is to be another payment, 7 principal, of 25,000 one year after Deborah's death? 8 THE WITNESS: Right. 9 THE COURT: And that obviously never came to 10 fruition so that would have never been made. But there would 11 have been some income during that time. Now, when you say you 12 signed these documents in blank, was that after Phyllis' 13 death? 14 THE WITNESS: That was after Phyllis' death. 15 THE COURT: And -- but you -- there wasn't numbers 16 iike here is the 50,000, here is income? 17 THE WITNESS: They were completely blank. 18 THE COURT: Okay. Thank you. 19 THE WITNESS: Okay. 20 THE COURT: But you didn't act as the trustee 21 even though you may have been the trustee you didn't have the 22 agreement to know what you were to do? 23 THE WITNESS: No, I had no idea about anything. 24 THE COURT: Okay. You may proceed. 25 MR. BOONE: Thank you. MELISSA VOIGT, CSR (512) 854-9258 82 1 Q. (By Mr. Boone) Ms. Murray, did you take greater 2 control over the trust once you became the sole trustee? 3 A. Yes, I did. 4 Q. Tell the Judge about that.
5 A. Ihad to -- once I was receiving statements and 6 stuff in the mail I contacted these companies -- well, first 7 of all, we contacted a bank local. And with their help and 8 everything else going on I was able to get all of the money 9 transferred. But when I talked to Bob Schlager to ask him to 10 send me a copy of the trust, which I did not get, he said that 11 he had some papers that he wanted me to fill out. This was 12 shortly after Debbie died. 13 Q. Okay. And what did you --
14 A. Imean, not Debbie, Phyllis. 15 Q. What did you say in response to Bob's request to 16 sign some more papers? 17 A. Pardon me? I'm sorry. 18 Q. What did you say to Bob when he asked you to sign 19 those papers?
20 A. Itold him that I did not like signing papers 21 blank. But he told me he was trying to get it set up as soon 22 as possible for Debbie to be able to start getting some money 23 to live on. 24 Q. Okay. I'm talking now about after Deborah passed 25 away? MELISSA VOIGT, CSR (512) 854-9258 83 1 A. Okay. 2 Q. Okay? What if any changes did you make to how you 3 handled your responsibilities as trustee after you became the 4 sole trustee? How did you go about gathering all the 5 information to determine what was out there? 6 A. We -- we had the first trip to Texas down here, 7 we went through the condo. And then it was 22 boxes shipped 8 to my house. 9 Q. Okay. 10 A. And I went through all of those boxes to find the 11 investments and anything -- we found bank statements and 12 copies of checks and stuff. There was so much -- and other 13 material, quite a bit of other material in it also. But the 14 main portion we found a lot of investments in those boxes to 15 be able to 16 Q. So those 22 boxes represented William and Phyllis' 17 records over the years? 18 A. All over the years. Right. Because they had 19 everything in there, letters, their whole life was in there. 20 Q. Did you get records from Wells Fargo? 21 A. Well, we got records from Wells Fargo but we had 22 to argue and fight to be able to get those. It took us 23 forever and ever to get them. 24 Q. Now, at some point after gathering all this 25 information, these records and documents, did you have MELISSA VOIGT, CSR (512) 854-9258 84 1 concerns that there were funds missing that should have been 2 part of the trust? 3 A. Yes, I did, because when I talked to Bob Schlager 4 on the phone he told me there was approximately four million 5 dollars in the account. 6 Q. Okay. And -- 7 A. And so when I started through all of that stuff i t 8 didn't come up to no four million dollars. 9 Q. Okay. Now, at some point with the assistance of 10 counsel did you file a -- excuse me. Did you feel as though 11 anyone in particular might be responsible for those missing 12 funds? 13 A. Yes, I felt like they were -- I hate to talk about 14 them, but I felt like Debbie and Matt were taking those funds 15 out of the account. 16 Q. Now, did you file any civil actions in Texas? 17 A. Yes. 18 Q. All right. Linda, I don't want to get into the 19 merits of that lawsuit, the misappropriation lawsuit today. 20 But I do want to draw your attention to one deposition. Do 21 you remember taking a deposition in that case? 22 A. Yes, I do. 23 Q. Okay. Just describe to the Judge how that 24 deposition generally went?
25 A. Ithought it was going really good until they come MELISSA VOIGT, CSR (512) 854-9258 85 1 to the point, they asked me how much money was in the trust. 2 And I didn't feel like it was any of their business because 3 the money didn't belong to them. But I told them, it was 4 5.2 million. 5 THE COURT: Well, you need to stop. I don't know 6 who the 11 they" is and the "themn is. 7 THE WITNESS: Okay. 8 Q. (By Mr. Boone) Who was -- who was taking the 9 deposition? 10 A. Brotherton. 11 Q. The Brotherton Law Firm? Someone from the 12 Brotherton Law Firm? 13 A. Yes, it was. 14 Q. And Mateo Cortez was there? 15 A. Yes. 16 Q. All right. 17 A. He was with them. 18 Q. Okay. So when they asked you how much was in the 19 trust did you know the answer? 20 A. Yes, I did. 21 Q. And did you tell them the answer? 22 A. Yes, I did. 23 Q. What was your answer?
24 A. 5.2 million dollars. 25 Q. What if any reaction did you observe at that time? MELISSA VOIGT, CSR (512) 854-9258 86 1 A. You could see eyes rolling. 2 Q. How so? 3 A. Just so you could -- you could just see that they 4 knew there was a lot of money. And then shortly after we had 5 a break. 6 Q. Shortly after that question there was a break? 7 A. Yes. 8 Q. And what do you mean by "a break?" 9 A. A 15 minute break. 10 Q. Counsel left and 11 A. Counsel left, we yes. 12 Q. And do you recall if there were many questions 13 after the break concluded? 14 A. No, there wasn't. 15 Q. And that deposition occurred on June 19th, 2015, 16 correct? 17 A. That is correct. 18 Q. Now, did Mateo through his counsel make any claims 19 after that deposition that were new and different? Did they 20 file any papers or pleadings or anything after that 21 deposition? 22 A. Oh, yes. They filed -- they filed saying that 23 that money belonged to Mateo Cortez and all -- and it was all 24 of it. He -- Matt said all of the money belonged to him. 25 Q. And how did you how did you feel when Mateo MELISSA VOIGT, CSR (512) 854-9258 87 1 argued that he was entitled to all of the trust?
2 A. Iknew it wasn't supposed to be that way because I 3 knew what Phyllis had told me at the hotel that day. And I 4 know when me and -- when -- when Dorsey and Phyllis met with 5 me 6 Q. Right? 7 A. -- they had told me what their wishes were and 8 they told me that if -- if Phyllis died first it would go 9 to -- I'm sorry. You have to excuse me. I have 10 Q. That's okay. You're doing just fine. The 11 question before you I think was how did you feel after Mateo 12 argued that he was entitled to the trust?
13 A. Iwas really -- I was just sick. Because I knew 14 that it did not belong to him. 15 Q. Now, once you realized that there was now a 16 dispute as to who was entitled to the -- the trust assets, did 17 you file any action in West Virginia? 18 A. No. 19 Q. File any legal action in West Virginia? 20 A. No, I did not. 21 Q. Are you sure you didn't file a lawsuit in 22 West Virginia? 23 A. About the -- about Matt wanting all of the money 24 or 25 Q. Yeah. Okay. So -- MELISSA VOIGT, CSR (512) 854-9258 88
1 A. I'm confused. I'm sorry. 2 Q. That's okay. 3 MR. BOONE: Judge, may I approach the witness? 4 THE COURT: You may. 5 Q. (By Mr. Boone) Linda, I'm going to show you a 6 document that's been filed 7 A. Oh, yeah. 8 Q. Okay. Do you recognize this document? 9 A. Yes, I do. 10 Q. All right. Is your recollection refreshed as to 11 what this document is? 12 A. This was our first filing for the -- for the -- 13 how the trust was supposed to be set up. I mean, how the 14 trust was set up and how it was -- all the heirs and 15 everything. And it took us hours to get all of this 16 information together of all the heirs and everything to be 17 able to file this document. 18 Q. I got you. So why did you file -- so this 19 document is asking the Court to determine who is entitled to 20 what under the trust? 21 A. To the -- the heirs. 22 Q. The heirs. Okay. And why did you file in 23 West Virginia? 24 A. Because the trust said that it's supposed to be 25 into the state where most of the people -- the majority of the MELISSA VOIGT, CSR (512) 854-9258 89 1 people lived. 2 Q. All right. 3 A. Of the heirs. 4 THE COURT: I'm going to ask another question. So 5 you said there was 5.2 million dollars. Is that lawsuit here 6 in the State of Texas when you're taking this deposition? 7 THE WITNESS: The deposition was here in the State 8 of Texas. 9 THE COURT: I mean, there is a lawsuit here other 10 than this lawsuit? 11 THE WITNESS: No. 12 MR. BOONE: Judge, well, this account has been 13 severed from the misappropriation lawsuit which was the 14 genesis of this action. There was a complaint filed by the 15 trustee against Bob Schlager, Mateo Cortez essentially seeking 16 some assets that -- 17 THE COURT: That's another lawsuit? 18 MR. THOMPSON: You want me to address this? 19 MR. BOONE: Yeah, why don't you -- 20 MR. THOMPSON: Your Honor, it was all the same 21 lawsuit. 22 THE COURT: Right. 23 MR. THOMPSON: So Ms. Murray as trustee filed 24 first against Mr. Cortez and some others about 25 misappropriation. Then Mr. Cortez counterclaimed and then MELISSA VOIGT, CSR (512) 854-9258 90 1 brought our clients in as third party defendants on the issues 2 we're talking about here today. 3 THE COURT: Okay. 4 MR. THOMPSON: The Court granted summary judgment 5 on those claims and we have severed those out. 6 THE COURT: Right. 7 MR. THOMPSON: And so when you say "in this 8 matter 11 -- 9 THE COURT: Well, okay. 10 MR. THOMPSON: it's kind of halfway. 11 THE COURT: Okay. My question to you then is this 12 i..isappropriation claim you have, how much is that fo'-·? 13 THE WITNESS: $80,000. 14 THE COURT: 80,000. Okay. Thank you. 15 THE WITNESS: Okay. You're welcome. 16 MR. BOONE: Okay. May I approach? 17 THE COURT: Yes. 18 Q. (By Mr. Boone) I'm going to hand to you what I've 19 marked as Exhibit 3. Linda, do you recognize this? 20 A. Oh, yes. 21 Q. What is this? 22 A. This is the heirs at law for the William Dorsey 23 Short and Phyllis Dale Whited Short. And it is all of the 24 members -- it is them listed plus all of their children and 25 all of the heirs as they go in order. MELISSA VOIGT, CSR (512) 854-9258 91 1 Q. All right. So this information was pulled from 2 the complaint that you filed in West Virginia, correct? 3 A. Yes. 4 MR. BOONE: All right. Judge, move for admission 5 of Exhibit 3. 6 (Movant's Exhibit No. 3 7 was offered into evidence.) 8 THE COURT: Any objection? 9 MR. RUBACK: No objection, Your Honor. 10 THE COURT: No. 3 is admitted. 11 (Movant's Exhibit No. 3 12 was admitted into evidence.) 13 Q. (By Mr. Boone) Now, Linda, the -- when you filed 14 as trustee the lawsuit in West Virginia, how did your family 15 react? 16 A. My family was not very happy with me. 17 Q. Why weren't they very happy with you, Linda? 18 A. They thought I was asking for too much money for 19 commission. They didn't think I should have any commission. 20 They thought I should just do it, and I was double dipping 21 taking heirship money and then taking commission also. 22 Q. Are you talking about the hours you noted in your 23 complaint? 24 A. Yes. Yes. 25 Q. Let's talk about your immediate family. Who is MELISSA VOIGT, CSR (512) 854-9258 92 1 Thomas Wayne Marks? 2 A. He is my youngest brother. 3 Q. Okay. And how were you -- how is your 4 relationship with Thomas? 5 A. Thomas now is good. 6 Q. Okay. What about your sister? 7 A. My sister Betty is good. My sister Patty 8 Q. Tell the Judge what happened with Patty? 9 A. She was upset when she got the letter about the 10 trust and everything from my attorney Robert Fluharty 11 (phonetic). And when she got that she asked -- she called me 12 wondering why I didn't ask her to help me with all of this 13 because they've all -- all of them has noticed my health going 14 down. 15 Q. Okay. I want to talk about your health in a 16 second. 17 A. Okay. 18 Q. But I want to ask one more question about another 19 family member and that's your brother -- 20 A. Jim. 21 Q. Jim. How has your relationship with Jim been 22 effected because of this lawsuit? 2
3 A. It's better than it was but once this -- the 24 lawsuit happened we talked at least every other day or 25 every two days. He never talked to me at all, he didn't want MELISSA VOIGT, CSR (512) 854-9258 93 1 nothing to do with me because he said I was double dipping and 2 when this is all over and done with he said I might receive a 3 dollar, 4 Q. And when you say "this lawsuit" you're talking 5 about the lawsuit to resolve this issue as to who is entitled 6 to the trust proceeds, Mr. Mateo Cortez or the others, 7 correct? 8 A. Yes. 9 Q. All right. Ma'am, after you filed the lawsuit in 10 West Virginia did Mr. Mateo's efforts in Texas stop? 11 A. No. No. 12 Q. No, he did not. Did you ha·Ie to hire a lawyer to 13 help out in Texas? 14 A. Yes, we did. 15 Q. And when I say "we" we're talking about the heirs 16 at law? 17 A. Yes. 18 Q. And to your understanding were the heirs at law 19 served with a copy of the complaint in West Virginia? 20 A. Yes, they were. 21 Q, All right. So you've got a lot of family listed 22· on that sheet, correct? 23 A. Yes. Yes. 24 Q. How did you manage -- or how did the heirs at law 25 manage to congress and decide how to respond to the MELISSA VOIGT, CSR (512) 854-9258 94 1 allegations? Did they have to meet on a regular basis? 2 A. Yes. We had to well, we don't meet but we do 3 conference calls and stuff on a regular basis. 4 Q. And there have been meetings in person, correct? 5 A. Right. 6 Q. All right. Who is the lawyer in Texas that's been 7 hired to defend the heirs at law? 8 A. Brian Thompson. 9 Q. All right. And Connie Barry also had me continue 10 to help as well? 11 A. Yes. Uh-huh. 12 Q. Now, at some point did Judge Waters in 13 West Virginia agree that Mateo was not entitled to take into 14 the trust? 15 A. Yes, he did. 16 Q. And how did you feel after Judge Waters ruled that 17 way? 1
8 A. Ithought, oh, maybe it's going to be over soon 19 and I can have some time for myself. 20 Q. Okay. But was it over? 21 A. No. 22 Q. All right. Did Mateo drop his case in Texas? 23 A. No. 24 Q. So I want to talk with you as to why you're asking 25 for sanctions, okay? How has this effected your health? MELISSA VOIGT, CSR (512) 854-9258 95 1 A. Well, I just -- I can't get around anymore at all. 2 It's just been so much strain on me. My doctors have all been 3 concerned about me. I have had -- two of them at least have 4 said they have never ever seen me in this kind of shape. 5 Q. Before this claim by Mateo Cortez did you exercise 6 on a somewhat regular basis? 7 A. Oh, yeah, I walked five miles every morning and 8 I -- outside and -- and I walked two miles every evening on a 9 treadmill. 10 MR. BOONE: Judge, may I approach? 11 THE COURT: You may. 12 Q. (By Mr. Boone) Linda, could you take a look at 13 this photograph, please? 14 A. Yes. 15 Q. Who is in this photograph? 16 A. My husband and myself. 17 Q. And, Ms. Murray, approximately when was this 18 photograph taken? 1
9 A. It was taken in May, four years -- going to be 20 four years. 21 Q. Okay. Since Mateo Cortez asserting its claim, 22 have you gained quite a bit of weight? 23 A. Yes. 24 Q. Have you had to increase medications for 25 antianxiety? MELISSA VOIGT, CSR (512) 854-9258 96 1 A. And depression. 2 Q. Okay.
3 A. It has put me into such a depression I -- they've 4 increased so much medicine on me a lot of times I I just 5 get so confused. And it's hurt my memory because of it all. 6 And I do the best I can because I promised Uncle Dorsey and 7 Aunt Phyl that I would do this. And the doctors even told me 8 that I needed to get away from it. But I can't because I 9 promised them. They come to see me in California when he was 10 in the service. They were so good to me. They had us out. 11 And I was so close to Aunt Phyl and Dorsey and Debbie. We 12 spent a lot of weekends together at their house. And I 13 promised them I'd do it and I'm going to do it. 14 MR. BOONE: Okay. Thank you, Ms. Murray. 15 I pass the witness. 16 THE COURT: Any questions? 17 MR. RUBACK: Yes, Your Honor. 18 19 CROSS-EXAMINATION 20 BY MR. RUBACK: 21 Q. Ms. Murray, we've gotten a little far afield as to 22 whether or not my clients Mr. Brotherton and Mr. Hester have 23 violated Texas Civil Practice and Remedies 24 MR. THOMPSON: Your Honor, I'm going to object to 25 the sidebar and the -- construing her testimony. MELISSA VOIGT, CSR (512) 854-9258 97 1 THE COURT: That's proceed onward, please. I want 2 to get this done by the end of the afternoon. 3 MR. RUBACK: Thank you. 4 Q. (By Mr. Ruback) Ma'am, do you have any personal 5 knowledge of Mr. Brotherton's or Mr. Hester's intent at the 6 time they made the legal arguments they made? 7 MR. THOMPSON: Objection, relevance. This intent 8 thing is not a factor under the CPRC 10, Judge. 9 THE COURT: Overrule the objection. 10 Q. (By Mr. Ruback) Do you have any knowledge of 11 their intent at the time they filed their pleadings? 12 A. Did I have any knowledge of what? I don't 13 understand the question. 14 Q. Of -- do you have any knowledge of whether or not 15 they had good intent or bad intent in making certain legal 16 arguments they made in this case?
17 A. Ijust thought they were way off. I'm sorry. I 18 just 19 Q. Absolutely. But -- but did you know what they 20 were thinking at the time? 21 MR. THOMPSON: Objection, asked and answered. 22 THE COURT: Let's move along. 23 MR. RUBACK: Thank you, Your Honor. 24 Q. (By Mr. Ruback) Do you know whether my clients 25 performed any research before filing the documents they filed? MELISSA VOIGT, CSR (512) 854-9258 98
1 A. Ido not know what they did. 2 Q. Do you know if they consulted with any trust 3 experts before filing the filings that they did? 4 A. No, I did not. 5 Q. Okay. You said that at your deposition it was 6 taken by the Brotherton Law Firm. Wasn't your deposition in 7 fact taken by prior counsel with a gentleman named John Long? 8 A. He was with the -- he was with the -- he is with 9 him. 10 Q. Was he with them at the time he took your 11 deposition or was he a sole practitioner?
12 A. Ihave no idea. 13 Q. So you don't know whether your deposition, the one 14 at issue that you talked at length about was taken by the 15 Brotherton Law Firm or not? 16 A. No, I don't remember when he went with the 17 Brotherton Law Firm. I just know he was with the Brotherton 18 Law Firm. When I got the copy of the -- of the deposition 19 myself I seen that it was signed by John Long. 20 Q. Okay. So it was taken by John Long, not by 21 Mr. Hester or Mr. Brotherton?
22 A. I-- to be honest I couldn't tell you what the man 23 looked like. 24 Q. I understand completely, ma'am. So you don't know 25 for sure who took your deposition, whether it was the MELISSA VOIGT, CTSR (512) 854-9258 99 1 Brotherton Law Firm or not? 2 A. No. 3 MR. RUBACK: That is all, pass the witness, Your 4 Honor. 5 THE COURT: Anything further? 6 MR. BOONE: Judge, just a point of order. I would 7 ask the Court to take judicial notice that's appropriate, that 8 among the names signed and featured under the signature of 9 Mr. Brotherton on the -- the Original Petition in Intervention 10 is Mr. John C. Long, IV, the gentleman 11 THE COURT: So noted. 12 MR. BOONE: Right. But William Brotherton, of 13 course, signed this document. 14 MR. RUBACK: Just out of curiosity, I'm brand new 15 to the case, do we have anything showing who took the 16 deposition, whether it was associated with -- at the time they 17 took the deposition? 18 MR. BOONE: Yeah. I can get you a copy of the 19 transcript at some point, but as you'll see in the transcript, 20 the copies that I have, the select documents, you'll see by 21 Mr. Long. "I'm not asking $2,000, okay." 22 MR. RUBACK: So it was definitely Mr. Long -- 23 MR. BOONE: Mr. Long -- 24 MR. RUBACK: And we don't know whether he was 25 associated with the Brotherton firm at that time because we MELISSA VOIGT, CSR (512) 854-9258 100 1 don't have those pages with us today? 2 MR. BOONE: I don't know. 3 MR. RUBACK: No problem. Thank you, sir. 4 THE COURT: You may be seated. 5 MR. BOONE: Thank you, Ms. Murray. You can come 6 down. 7 THE COURT: Do you have another witness? 8 MR. BOONE: Judge, if I could move for the 9 admission of the Exhibit 4, please? 10 (Movant's Exhibit No. 4 11 was offered into evidence.) 12 MR. RUBACK: No objection, Your Honor. 13 THE COURT: No. 4 is admitted. 14 (Movant's Exhibit No. 4 15 was admitted into evidence.) 16 THE COURT: Mr. Thompson, your next witness? 17 MR. THOMPSON: It's going to be me, Your Honor. 18 THE COURT: Okay. You questioning yourself? 19 MR. THOMPSON: I'm just going to read it into the 20 record if that's okay. 21 THE COURT: Okay. Uh-huh. 22 MR. THOMPSON: Do you mind if I do it from here? 23 THE COURT: I don't mind. 24 25 MELISSA VOIGT, CSR (512) 854-9258 101 1 BRIAN THOMPSON, 2 was called as a witness by the Movant having been first duly 3 sworn, testified as follows: 4 5 DIRECT EXAMINATION 6 BY MR. THOMPSON: 7 Judge, my name is Brian Thompson as the Court is 8 aware by now I'm sure. I'm the attorney of record for the 9 third party defendants in this matter who are the movants in 10 this motion. I was licensed by the Supreme Court of Texas to 11 practice law in the State of Texas in November of 2005 after 12 completing my studies at the University of Texas School of 13 Law. Since that time I've practiced civil litigation in 14 Travis County first with the law firm of McGinnis Lochridge & 15 Kilgore where I was a partner, now at the law firm of Hopper 16 Mikeska which as this Court well knows is a law firm 17 specializing in estate planning, administration, probate and 18 trust litigation. 19 In my practice I've become familiar with customary 20 rates for attorneys who practice in this area in Travis County 21 and I believe that my rate charged in this matter falls within 22 the range of reasonable fees. My billable rate in this matter 23 was set at $300 an hour except for all time after January 1st 24 of this year has been charged at a rate of $325 per hour. 25 Your Honor, I would offer into evidence as MELISSA VOIGT, CSR (512) 854-9258 102 1 Exhibit 5 a copy of my bills in this matter. 2 (Movant's Exhibit No. 5 3 was offered into evidence.) 4 THE COURT: Any objection? 5 MR. RUBACK: No objection, Your Honor. 6 THE COURT: No. 5 will be admitted. 7 (Movant's Exhibit No. 5 8 was admitted into evidence.) 9 MR. THOMPSON: Okay. 10 THE COURT: You may continue. 11 MR. THOMPSON: Thank you, Judge. 12 As is set out in Exhibit 5 there is descriptions 13 for all of the legal services that I have done in this case on 14 behalf of my clients which I believe were reasonable and 15 necessary in defending against the claims made by Mateo Cortez 16 in this matter that implicated my clients. In particular 17 these fees were necessary in defending against Mateo Cortez' 18 claim regarding the postponement provision. And because this 19 claim was inextricably intertwined with the other claim made 20 by Cortez against my clients I have not been able to segregate 21 the -- the fees between the two claims. All of the time that 22 I spent on one was spent on the other. 23 In addition, Mr. Boone is going to testify with 24 regard to his fees. I have reviewed those fees as well. He 25 will talk about those more in depth. His rate is lower than MELISSA VOIGT, CSR (512) 854-9258 103 1 mine so I think it's also within the scope of reasonable fees 2 in Travis County in this area. In addition I'll point out 3 that based on my review of Mr. Boone's fees he has segregated 4 out all of the time that he has spent with regard to the Texas 5 piece of the litigation versus the West Virginia piece. 6 Your Honor, my fees in this matter through 7 Thursday of last week, which is January the 26th, were 8 $49,800. I believe I've spent an additional ten hours in 9 preparing for this hearing which would be an additional $3,250 10 for a total of $53,000 -- $53,050. 11 I will point out, because I do think it's 12 important, that I incurred $18,650.04 before September 13 the 15th, 2016 which was the date of Judge Waters' order out 14 of West Virginia. Thereafter I have incurred $34,399.96. So 15 if the Court puts some impetus on that West Virginia order 16 that would be the amount we ask for. But we're actually 17 asking for the full $53,050 at this time. 18 THE COURT: Any questions? 19 MR. RUBACK: Yes. 20 21 CROSS-EXAMINATION 22 BY MR. RUBACK: 23 Q. Mr. Thompson, we keep hearing about Judge Waters' 24 order, the interlocutory in West Virginia. Do you believe 25 that that order should be binding, that interlocutory order MELISSA VOIGT, CSR (512) 854-9258 104 1 from West Virginia should be binding in this Court? 2 MR. THOMPSON: I'm going to object to the 3 relevance of that question as to my fees. 4 THE COURT: I'm going to overrule the objection. 5 MR. THOMPSON: No, in fact I actually stated that 6 in a pleading in this matter. I stated that it is not binding 7 on this Court. But I do think it is important to have shown 8 your clients' notice that that claim had already been decided 9 by another court in what I believe to be a very well reasoned 10 opinion that cited not only the Texas and West Virginia law 11 but also Florida law. Under three different states' laws 12 Judge Waters found that that claim had no merit and dismissed 13 it. 14 Q. (By Mr. Ruback) You mentioned the word "notice" 15 in your last sentence, sir. When did you first provide my 16 clients' notice that you believed their conduct was 17 sanctionable? Was it right after their first alleged 18 sanctionable conduct, their second, third, fourth, fifth or 19 not until after the final judgment in this case?
20 A. Ibelieve that I've called this claim throughout 21 my pleadings "absurd." That's a word that I've used 22 frequently in this case regarding your clients' allegations. 23 However, the first time I think that I stated that these were 24 sanctionable under CPRC 10 and Rule 13 was upon the filing of 25 my motion to modify judgment to include sanctions award which MELISSA VOIGT, CSR (512) 854-9258 105 1 was filed on January the 16th, 2017. 2 Q. Okay. So am my correct in understanding you 3 didn't bring the sanctionable nature of this conduct, alleged 4 sanctionable nature of this conduct to their attention after 5 any of these pleadings until there was a final judgment in 6 this case?
7 A. Iwould -- I'm going to parse your statement. I 8 mean, a final judgment, I think it -- I will agree with you 9 that it was not until after the summary judgment in this case. 10 Whether that judgment was final or not I think somewhat relies 11 on the outcome of this proceeding so -- 12 Q. Okay. Fair enough. What you're saying is -- if 13 I'm understanding you is you did not bring alleged 14 sanctionable conduct to the attention of this Court or to my 15 clients after any of these many documents were filed prior to 16 the summary judgment having been signed by this Court?
17 A. Iwill agree with that statement. 18 MR. RUBACK: Thank you, sir. 19 No more questions, Your Honor. 20 THE COURT: Anything further? 21 Next witness? 22 MR. THOMPSON: Call Aaron Boone, Your Honor. 23 THE COURT: You can testify from there. 24 MR. BOONE: I'll do it. 25 THE COURT: Okay. MELISSA VOIGT, CSR (512) 854-9258 106 1 AARON BOONE, 2 was called as a witness by the Movant having been first duly 3 sworn, testified as follows: 4 5 DIRECT EXAMINATION 6 BY MR. BOONE: 7 Afternoon, Judge. First off, thank you for the 8 courtesy of allowing me to appear before this Court. My name 9 is Aaron Boone. I'm with the law firm of Bowls Rice, LLP. 10 Our main office is in Charleston, West Virginia. My office is 11 in Parkersburg, West Virginia. I graduated William Mary 12 undergrad law school at West Virginia University. Been 13 practicing since 2004. 14 I was contacted by a partner in my office who is 15 an estate attorney, and he had been contacted by an estate 16 lawyer in Florida for Connie Barry. Connie Barry is one of 17 the heirs at law that has been -- that had been identified in 18 the complaint filed by the trustee in West Virginia. 19 My office was hired to defend Connie Barry's 20 interests in West Virginia. In doing so it became apparent 21 that we needed to reach out to counsel in west -- in Texas, 22 Austin, Texas in order to address the claims that Mateo Cortez 23 had raised, including claims that he should have jurisdiction 24 over the heirs at law, etcetera. 25 So my time has been spent not only defending the MELISSA VOIGT, CSR (512) 854-9258 107 1 efforts in West Virginia, the efforts of Mateo to convince the 2 West Virginia Court that he's entitled, but it's also been to 3 assist counsel here in Texas with defending the needs of the 4 heirs at law. 5 Connie Barry is my only client but her interests 6 are aligned with the other heirs at law, therefore the work 7 I've done has been I think beneficial to all of them. I'm the 8 one that facilitated the meetings, the agreements and just 9 kind of helped keep the wheels greased, you could say. 10 In preparation of today's motion for sanctions I 11 have gone through all of my bills. I have -- I have pulled 12 out any entry that was clearly related to West Virginia. 13 Okay? To the extent there was an entry that was me talking 14 about the West Virginia status and the Texas status I would 15 just half that time, okay? 16 And so what I have for the Court's review are two 17 statements. The first -- the first statement is for activity 18 beginning at the inception of my assistance which was on or 19 about December 23rd, 2015, close to the time when that 20 West Virginia action was filed, through January 27th of 2017. 21 Those fees totaled $45,706.99. As counsel mentioned my rate 22 is 275. I believe that is reasonable for my services knowing 23 West Virginia but also to the extent they've been helpful here 24 in this Court as well. 25 I have also prepared a statement for essentially MELISSA VOIGT, CSR (512) 854-9258 108 1 the time that we spent working this case in Texas, even after 2 Judge Waters entered very detailed findings of fact explaining 3 why Mateo should not be entitled to take under the trust. 4 Certainly at that point there was a very well reasoned 5 decision explaining why Mateo really should stop his claims. 6 And so I prepared a statement showing my fees from that moment 7 to January 27th, 2017 and that amount is $33,915.74. 8 I had estimated my time since Friday through today 9 including the travel. And that estimate, Judge, is $8,494.34. 10 I'll mark that as Exhibit 8. 11 May I approach, Judge? 12 THE COURT: Y0u may, sir. 13 MR. BOONE: Judge, Mr. Thompson did a tally for 14 you so I'll do the same. If this Court is inclined to 15 award -- award all the time from inception including the 16 estimated time for this motion for sanctions, that comes up to 17 $54,201.33. Should the Court look instead to the time spent 18 after the motion for summary judgment was vindicated in 19 West Virginia that amount is $42,410.08. 20 Judge, at this time unless there is a question 21 about those exhibits I'd move for those admissions. 22 (Movant's Exhibit Nos. 6, 7 and 8 23 were offered into evidence.) 24 THE COURT: Any objection to 6, 7 and 8? 25 MR. ROBACK: No objections, Your Honor. MELISSA VOIGT, CSR (512) 854-9258 109 1 THE COURT: 6, 7 and 8 are admitted. 2 (Movant's Exhibit Nos. 6, 7 and 8 3 were admitted into evidence.) 4 THE COURT: And the last number you read out was 5 42,000 or 43,000 -- that is a combination of 7 and 8? 6 MR. BOONE: Yes, sir. 7 THE COURT: Thank you. 8 Anything further? 9 MR. BOONE: No, thank you, Judge. 10 THE COURT: Your witness. 11 12 CROSS-EXAMINATION 13 BY MR. RUBACK: 14 Q. Mr. Boone, when did you first advise my clients 15 that you believed their conduct was sanctionable? 1
6 A. Ithink when we had a hearing -- I think it was 17 back in February or March there was a room full of heirs at 18 law in West Virginia, and there was Judge Waters, there was 19 myself, there was several other attorneys. And I -- I believe 20 the discussion about the claims raised by Mateo Cortez, the 21 discussion how they were without any merit at all should have 22 given notice to the Brotherton Law Firm that these claims 23 should not have been continued. 24 Q. So you did tell them you believed their claims had 25 no merit, but did you tell them you believed that they were MELISSA VOIGT, CSR (512) 854-9258 110 1 sanctionable or violated Rule 13 or violated Chapter 10? 2 A. No, sir. 3 Q. And did you make clear to them that your arguments 4 in the West Virginia courtroom applied equally to all their 5 filings in this Texas case?
6 A. I'm sorry. Repeat that? 7 Q. You indicated that in a West Virginia courtroom 8 you told them that their arguments that they'd been making 9 when you were in the West Virginia courtroom were meritless. 10 Did you make very clear to them you felt the same way about 11 the arguments they were making in their filings in this Texas 12 Court? 13 A. Not specifically. 14 MR. RUBACK: Thank you. No further questions, 15 sir. 16 THE COURT: Do you rest? 17 MR. BOONE: We rest. 18 MR. THOMPSON: We rest, Your Honor. 19 THE COURT: Anything further, Counselor? 20 MR. RUBACK: No, Your Honor. 21 THE COURT: Do you rest? 22 MR. ROBACK: No, Your Honor. 23 THE COURT: Okay. The Court is going to take this 24 matter under advisement but I am denying the motion for 25 rehearing my previous ruling. And that is being signed today. MELISSA VOIGT, CSR (512) 854-9258 111 1 I'll take this matter and I'm going look at these cases and I 2 want to consider the matter and I'll have an answer in short 3 order. Okay? Thank you all very much. 4 (Hearing concluded.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MELISSA VOIGT, CSR (512) 854-9258 112 1 THE STATE OF TEXAS 2 COUNTY OF TRAVIS 3 I, MELISSA VOIGT, Official Court Reporter in and 4 for the Probate Court No. 1 of Travis County, State of Texas, 5 do hereby certify that the above and foregoing contains a true 6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the 8 parties to be included in this volume of the Reporter's 9 Record, in the above-styled and numbered cause, all of which 10 occurred in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of 12 the proceedings truly and correctly reflects the exhibits, if 13 any, offered by the respective parties. 14 I further certify that the total cost for the 15 preparation of this Reporter's Record is$ _ _ _ _ _ _ _ _ __ 16 and was paid by _ _ _ _ _ _ _ _ _ _ _ __ 17 WITNESS MY OFFICIAL HAND this the day 18 of - - - - - - - ' 2017. 19 20 21 MELISSA VOIGT, CSR #4886 Official Court Reporter 22 Probate Court No. 1 Travis County, Texas 23 1000 Guadalupe, Room 217 Austin, Texas 78701 24 (512) 854-9258 C.S.R. Certification No. 4886 25 Expires: 12/18 MELISSA VOIGT, CSR (512) 854-9258 No. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF mE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETTY J. MARKS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVISCOUNTY,TEXAS ORDER ON THIRD PARTY DEFENDANTS' MOTION TO MODIFY JUDGMENT TO INCLUDE SANCTIONS AWARD On this day, the Court considered the Motion To Modify Judgment to Include Sanctions Award and the Supplement to the Motion To Modify Judgment to Include Sanctions Award (collectively the "Motion"), each filed by Third Party Defendants Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury (collectively "Third Party Defendants"). Having considered the Motion, the response thereto, the admissible evidence, the other papers on file in this matter, and the arguments of counsel, the Court hereby GRANTS the Motion in part and makes the following findings and orders: The Court finds that attorney William J. Brotherton violated Texas Civil Practices and Remedies Code Chapter IO in signing the Original Petition in Intervention, the First Amended I EXHIBIT G No. C-1-PB-16-002348 Petition in Intervention and Third Party Petition, Second Amended Petition in Intervention and Third Party Petition, the Third Amended Petition in Intervention and Third Party Petition, and the Fourth Petition in Intervention filed in this matter. In particular, the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code § 10.001 by signing these pleadings because each of them contained the claim that Deborah Cortez was entitled to all assets from The William D. Short and Phyllis D. Short Revocable Living Trust (the ''Trust") upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The Court finds that the plain language of the Trust foreclosed such a claim and that this claim was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further finds that attorney William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable. By maintaining that legal position in his Fourth Petition in Intervention, he caused the Third Party Defendants to incur additional attorneys' fees in responding to attorney William J. Brotherton's claim regarding postponement of the trust. The Court hereby sanctions William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $31,150.76 for fees incurred for work done by Brian Thompson and his associates at Hopper Mikeska, PLLC and $33,980.00 for fees incurred by Aaron Boone and his associate attorney at Bowles Rice, LLP, for a total of$65,130.76. The Court orders that this amount be paid to the Third Party Defendants within 30 days of the entry of this order. The Court finds that there is a direct relationship between the sanctions being imposed and Mr. Brotherton's sanctionable conduct, in that the aforesaid amount represents reasonable and necessary attorneys' fees expended by attorneys for the Third Part Defendants to defend against 2 No. C-1-PB-16-002348 the frivolous claims advanced by William J. Brotherton and the Brotherton Law Finn; that the sanctions are not excessive; and that these sanctions will appropriately deter other attorneys from signing pleadings containing claims that violate Texas Civil Practices and Remedies Code Chapter 10. The Court hereby modifies its judgment entered on December 19, 2016, to include this award of sanctions. Signed this 10th day of February, 2017. 3 CAUSE NO. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF fflE E!STATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § ;O DAVIS, VIRGINIA VILLERS, CHARLES § tn ~ ROBERTS, LISA A. SMITH, PATRICIA CHAPMAN, BETTY J. MARKS WEBB, § § Sf: s ~ JAMES BERL MARKS, LINDA MURRAY, THOMAS WAYNE MARKS, DONALD LEMAN WHITED, MICHAEL RAY § § § - c::> WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion for Summary Judgment") filed by Third Party Defendants, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marl<:s, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (collectively "Third Party Defendants"), in Cause Number C-I-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the Motion for Summary Judgment in its entirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular, the Court dismissed any and all claims that Mateo Cortez, in his individual 1 capacity or in his capacity as personal representative of the Estate of Deborah Cortez, had to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the ..Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. Also on December 19, 2016, the Court considered Third Party Defendants' Motion to Sever. After considering the Motion to Sever, the response, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the Motion to Sever in its entirety and ORDERED that Mateo Corez's claims against Third Party Defendants in this lawsuit be severed in their entirety and assigned the new cause number C-1-PB-16-002348. On January 16, 2017, Third Party Defendants filed their Motion to Modify Judgment to Include Sanctions Award (the "Motion to Modify"), which extended the plenary power of the Court to modify its judgment. The Motion to Modify was hearJ by the Court at a hearing on January 30, 2017. After considering the Motion to Modify, the response, the admissible evidence presented at the hearing, the response, the arguments of counsel, and the other papers on file with the Court, granted the Motion to Modify in part and granted sanctions. The Court sanctions attorney William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $65,130.76, and ORDERS that this amount be paid to the Third Party Defendants within 30 days of the entry of this final judgn1ent. This amended judgment finally disposes of all claims and parties and is final and appealable. Signed this 10th day of February, 2017. BLE JUDGE PRESIDING 2 600 Quarrier Street Charleston, West Virginia 25301 tl' Southpointe Town Center 1800 Main Street. Suite 200 101 South Queen Street Martinsburg, West Virginia 25401 Bowles Rice,," ATTORNEYS AT LAW Canonsburg, Pennsylvania 15317 1217 Chapline Street Wheeling, West Virginia 26003 7000 Hampton Center 501 Avery Street Morgantown, West Virginia 26505 Parkersburg, West Virginia 26101 480 West Jubal Early Drive. Suite 130 Winchester, Virginia 22601 Post Office Box 49 Parkersburg, West Virginia 26102 (304) 485-8500 www .bowlesrice.com February 23, 2017 Aaron C. Boone E-Mail Addres~: Telephone - (304) 420-550 I aboone@bowh:sric~.com Facsimile- (304) 420-5587 William J. Brothe11on, Esquire VIA EMAIL & U. S. MAIL Brotherton Law Firm 2340 FM 407, Suite 200 william@brothertonlaw.com Highland Village, Texas 75077 Re: Linda Murray v Linda Lou Murray, et al. Civil Action No. 2:16-cv-09951 US District Court, Southern District of West Virginia Linda Mtmay v. Mateo Cortez, et al. No. C-1-PB-14-001564 Probate Court of Travis County, Texas Mateo Cortez v. Sandra Flesher Brown, et al. No. C-!-PB-16-002348 Probate Court of Travis County, Texas Dear Counsel: On February 10, 2017, Judge Guy Herman orde,·ed you and your firm to pay $65,130.76 in legal fees, finding that the claims you filed against my client were frivolous and/or unwarranted. This decision comes on the heels of Judge Herman's January 30, 2017, refusal to reconsider his December 19, 2016, order granting judgment as a matter of law against your client, and follows Judge Robert A. Waters's September 9, 2015, order concluding that neither Mateo Cortez nor the Estate of Deborah Cortez is entitled to share in the trust: Because Deborah was over the age of 35 when Mrs. Short died, Cortez believes that the Trust should have immediately terminated and the entirety of the Trust assets distributed to Deborah, which Cortez would have then inherited from Deborah upon her death. . .. The Court cannot, and does not, accept Mateo Cmtez's reading of the Trust, which would nullify the provisions of Article VIII, Sections A- C. EXHIBIT H 41\ Bowles Rice,,. William J. Brotherton, Esquire February 23,2017 Page 2 (Order, 09-09-2015, Circuit Court of Wood County). In sum, cornts in both Texas and West Virginia have now entered orders finding that neither the Estate of Deborah Cortez nor your client, Mateo Cortez, qualify as an heir-at-law entitled to take in the trust assets ("Trust Assets"). Nevertheless, despite these losses, your client continues to pursue civil litigation before the United States District Court for the Southern District of West Virginia, in Charleston, West Virginia, and an appeal before the Third Court of Appeals, in Austin, Texas. Undoubtedly, further litigation will cost my client, and the other heirs-at-law, significant legal fees. The purpose of this letter to demand that Mateo Cortez and/or the Estate of Deborah Cortez immediately withdraw any and all claims to the Trust Assets. As you may recall, at the January 30, 2017, hearing, your counsel argued, unsuccessfully, that sanctions should not be awru·ded against you, in part, because I never explicitly warned you that I would file a motion for sru1ctions if you continued to pursue ·such claims. Although I (and apparently Judge Herman) disagree that a warning is necessary, I wish to now make clear that if you and/or your client, Mateo Cortez (either personally or as representative of tile Estate of Deborah Cortez) do not immediately withdraw any and all claims to the Trust Assets, then I will take appropriate action to: (a) seek additional sanctions against your firm and (b) seek sanctions against Mr. Mateo Cortez personally. 1 1 recognize that Mateo Cortez ru1d the Trust have pending claims against one another, including claims relating to proceeds from an asbestos settlement ("Asbestos Claims"). Nevertheless, there is no reason for Mr. Cortez, while resolving the Asbestos Claims, to continue to pursue the meritless claim that he and/or the Estate of Deborah Cortez is entitled to the Trust Assets. Accordingly, I demand that yo1.1 immediately enter appropriate orders dismissing such claims in the United States District Court for the Southern District of West Virginia and in the Third Court of Appeals, in Austin, Texas, If you would like for me to prepru·e proposed dismissal orders, then I would be happy to do so. Finally, as you know, Judge Herman ordered you to pay the total sum of $65,130.76 within thirty (30) days of his February 10, 201 7, order. Kindly submit $31,150.76 to I-lopper 1 Please remember that my client's Motion for Attorney Fees and Costs is pending before the United States District Court of the Southern District of West Virginia, (Document No. 7). Additionally, please note that Rule 45 of the Texas Rules of Appellate Procedure states: Rule 45: Damages for Frivolous Appeals in Civil Cases: If the court of appeals detennines that an appeal is frivolous, it may--on motion of any party or on its own initiative, after notice and a reasonable opportunity for response--award each prevailing party just damages. ln detennining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in tl1e court of appeals Tex. R. App. P. 45 f]\ Bowles Rice,,, William J. Brotherton, Esquire February 23,2017 Page 3 Mikeska, PLLC, and $33,980.000 to the Law Fim1 of Bowles Rice LLP, and Attorney Brian Thompson and I will ensure that these funds are used to appropriately reimburse the heirs at law for legal fees expended. Enclosed, please find a W-9 for the Law Firm oft-lopper & Mikeska, PLLC, and a W-9 for the Law Firm of Bowles Rice, LLP. I trust you will immediately review this letter, in its entirety, with your client, Mateo Cortez. Sincerely, Aaron C. Boone ACB/ljp Enclosures cc: Sean W. Hester, Esquire sean@brothertonlaw.com James W. Marshall, III, Esquire jmarsha1l@baileywyant.com H. F. Salsbery, Esquire tsalsbery@baileywyant.com Andrew R. Herrick, Esquire aherrick@baileywyant.com Chad M. Ruback, Esquire chad@appeal.pro Robe1t S. Fluharty, Jr., Esquire rsfluharty@fntlawoffices.com J. Nicholas Barth, Esquire nbarth@barth-thompson.com Leslie L. Maze, Esquire lesliemaze@gmail.com Joseph T. Santer, Esquire jts-atty@suddenlink.net 8774751.1 Focm W•9 {Rev. December 2014) Request for Taxpayer Glve Form to the requester. Do not Department of the T,sasury Identification Number and Certification send to Ille IRS. lnl!!rn.o.l Aev1111U11: Servi11& 1 Name (aa ah own Qn your Income tax return) Name ia required on thla line· do not lea.vs Ihle nne blank ' Hopper Mlkeskaf PLLC oi 2 Business neme/dJsregarded entity name, if different from above • ~ ~ C. 3 Check appropriate: bcic for federal tax classificallcn; check only one oftlle following seven bD.11.es: 4 Eicemptlons {coclea apply only to 5 D !ndlViduaVaole proprialgror D C Corporation D S Corporatlr;in D Partnerahlp D Trust/estate certain entiUes, not tndMdua1s; sea Instructions an page 3): 8. ~ .,,g single-member LlC Exempt payee code (H any) ~ Umiled !labililycompany, Enter the tax clasaiflcation (C=C corporation, S=S r;:arporation, P•partnership),. p ---- 6 2 ~ ti! Note. For a single-member LLC !hat Ill dlstegarded, do not cllack LLC; check the apprcprfale box In t11e U n ~ r lite tax clasaification cf the alngle--member owner. EJcemptlon from FATCA reporting code(lf any) ·c .S D Other (see instructloos) ~ ~bKA!lntf~NIMH"'U.SJ .. u S Address (number, rtreet, and 8))1. or suite no.) 15 Requester's name· and address (optional) .,8. 400 West 15th Street, SuRe 408 e City, state.and ZIP code • Jj Austin, TX 78701 7 List account number(s) here /optione1) .. Taxpayer Identification Number-rtlN) Enter your TIN In the appropriate box. The TIN provided must match the name glven on line 1 to avoid backup w!thholdlng. For Individuals, this ls generally your soc!al security number (SSN). However, for a resident allen, sole proprietor, or disregarded entity, see the Part I Instructions on page 3. For other entities, it is ycur employer Identification number (EIN). If you do not have a number, see How to get a [IJJ - DJ I I I I I I Social BEICUritynumber - I TIN on page 3. ,o;;'=========---- Note. 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You must cross out Item 2 above If you have been notified by the IRS that you are currently subject to backup wtthholdlng because you have failed to report ell Interest and dlvrdends on your tax retum, For real estate transactions, Item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, c:ancellatlon of debt, contributions to an lndMdual retirement anangement (IRA), and generally, payments other than Interest and dividends, you are not raC1Uired to sign the certification, but you must provide your correct TIN. See the instructions on page 3. Sign Here 11 ·r. / s;s..,,.• of /I,. u.s.pen,on~10~d7,~ A . • oat,~ (,-2"'[-Z.O(~ General Instructions • Fom, 1098 (home mortgage lnlerest), 1098-E {student loan lntarest), 1098-T (tuition) Secllon references are to the Internal Flevet1ue Code unless otherwise noted. • Form 1099-0 (canceled debt) Future deveropmt1nta, lnf0ffi'latian abaut devalopmenta affecting Form W-9 (such • Fotm 1089-A (acquisition or abandonment of aecured property) as Jegrslation enacted after we release it) le at www.lrs.gov/lw9. Use Form W-8 only If you are a U.S. person Qncludlng a f88idant alien), to Purpose of Form pro11ide your correct TIN. An individual or entity {Farm W-S rwqueeter) who Is ~ufred to file an Information IfYoll do not rvtum Fonn W-9 to tho req1.1eslltr wM a 11N, YDU might be ,ubjac:t return with the IRS must obtain your correct taxpayer 1dentlfication number ITIN) lo backup wfthholdfng. See What Is ba.clrup withholding'! on page 2. which may be your &0clal i.ec:urity number (SSN), individual tupayer lden1lflcation By signing the Hlled-out form, you: number{mN), adoption taxpayer lderrtilication number (A.TIN), DI' employer 1dent1hcallon number (EIN), to report on an Information rat1JJ11 lhe amount paid 10 1. Certify that the TIN you are giving Is cotm:t (or you are waiting far a number you, or other amount reportable on an lnfcrrnatlon nrtum. E,camp!es of Information to be issued), returns include, but arii not limited to, the folfowlng: 2. Certlft/ that you are not subject to backup wHhholdlng, or • Form 1099·1NT (interest earned or paid) 3. C!alm exemption from backup withholding If you ara a U.S. exempt payee. If • Forni 1099-DIV (d111ldends, including those from stocks or m1.11ua1 funds) applicable, you are also certifying 1hat as a 1,1.S. pen10n, your allocable share of any partnership Income from a U.S. traeia or bUslnus Is no1 aubjactt0 the • Form 1099-MlSC (vanous types of Income, prizes, awards. or gross proceeds) wiU,holdlng tax on foreign partners' share of effectively connected Income, and - Form 1099-B (stack Dr mutual fund sales and certain olher ltansactlcms by 4. Certify that FATCA code(s) entered an thla form ~I any) Indicating that you are ::irokersJ ei<.empt from the FATCA reporting, Is correct. See What ls FATCA ,aporlfng? on • Form 1099-S {prOGBede from real ostatetranaactlons) page 2 for further ln!orms:tlon. • Form 1099·K (merchant card and th!fd party network transactions} Cat. No. 10231X Fann W-9 (Rev, 12-2014) Form W-9 (Rev. December 2014) Request for Taxpayer Give Form to the requester. Do not Department of the T,oasury Identification Number and Certification send to the IRS. fnlemal Revenue Swvfc11 1 Nnme (as shown on ycur Income lox return). Name ia required on this line; do not leave this nne blank. Bowles Rice, LLP 2 81111\ness name/disregarded ontily name, If dflferent from above "'•8, C. 3 Check approprla\e box tor l&aeral !ax classllicauon; check only one of the foltowl[:!feven boxus: 4 Exemptions [codes apply only to C 0 D lndivlduaVsole proprietor or D C Corporation O S Corparation Parlnl!rship D Tr11sVestato certain 1:mtltfes, not lndNiduaJ9; see in&tructlons on page 3): J] • 1l ~!nglo-m11mber LLC 0 Limited liabllity company. Elllor lho la)I. classlllcallon (C.,C corporation, S:S ccrporatlcn, p,.partnershlp} ~ Exempt payee code (rf any) ExempUan lrom FATCA reporting ---- 0 2 Nate. For a single-member LLC thal Is disregarded, do nol check LLC; check the approprinte box Jn thu l i n ~ r lhe tax Glassl!icallon ot lhe 11ingle·member owner, 1! • code Of any) ;f ~ D Other {soo lns1ruc1ian11)"' (l,ppg,,~ "'•""""'"'J.lill'M<><111.id1p11yor ldentlllcallon number (ATIN), or employer ldentillcot!on numbor (EIN), to reporl on an lnlarmatlon re tum the amaunt paid to 1, CertUy Ihat Iha TJN you ero giving Is correct (or you are walling lor a number 10 be lssuodJ, you, ar other arnount repartablo on en inlorm11tlon re1urn. Eltllmplea ol lnformallon re1ums Include, but ere nol limited to, tho loltowlng: 2. Cenlfy that you aro not subJocl lo backup wlthholdlng, or • form 1099-lNT (Interest earned ar paid) 3. Clelm exemptlor, from bBCkLJp Wllhho!cllng 11 you are a U.S. exempt payee. II • Form 1099-0IV (divldonds, Including lhoee from stocks ar mutual fonds} applicable, you ere also certifying Iha! as a U.S. person, yoLJr allocable share ol any partnership lncame from u U.S. trade or business Is not subject to the • Form togs.MISC (various types of Income, prlzea, awards, ar gross proceeds) wlthhofdlng lax on loralgn partners' shure al effectively connecled Income, and • Form 1099-B (slack er mutual lund &ales end certain olher transactions by 4. Ce1tlfy that FATCA eode(S) entered on !his lorm {ii any) Indicating that you are brokers) exempt from the FATCA reporting, Is carrocl. See Whar is FATCA reporting? on • Farm 1099-S (proceeds lro111 real eslale transactions) page 2 lor r11r1her lnformuUan. • Form 1099-K (merctnm! card and third party nelwork transac1fons) Cat. Na. l0231X BROTHERTON LAW FIRM ATTORNEYS AND COUNSELORS AT LAW 2340 FM 407, SUITE 200 HIGHLAND VILLAGE, TEXAS 75077 TELEPHONE: 972-317-8700 FACSIMILE: 972-317-0189 WILLIAM]. BROTHERTON william@brothertonlaw.com March I, 2017 Via E-mail to aboone@bowlesrice.com Aaron C. Boone Bowles Rice L.L.P. United Square, Fifth Floor 501 Avery Street Parkersburg, WV 26101 RE: Cause No. C-1-PB-14-001564; Linda Murray, Successor Trustee and on Behalf of the William D. Short and Phyllis D. Short Revocable Living Trust including the Credit Shelter Trust Created Therein v. Mateo Cortez and Wells Fargo Bank, NA. Civil Action No. 2:16-cv-09951; Linda Murray v. Linda Lou Murray, et al. Cause No. C-l-PB-16-002348; Cortez v. Brown et al. Dear Mr. Boone: We are in receipt of your letter dated February 23, 2017, in which your clients make the demand that our client withdraws all of his claims to the Trust or your client will file additional sanctions. We now respond to such demand. First, the orders that your clients reference are not final orders. We completely disagree with both orders as both orders are riddled with errors and inaccuracies. We stand firm that the plain and clear language of the Trust entitled Deborah Cortez to receive all funds of the Trust during her lifetime; therefore, a claim from the Estate was filed. Until recently, there seemed to be some confusion regarding your clients' understanding of our claims, which is reflected in both summary judgment motions and orders in the two Courts. We do not believe either of the summary judgments will stand on appeal. Second, our client will not simply waive the right to an appeal on such erroneous rulings. We will be taking the appropriate steps to proceed with correcting the errors in the trial court; however, we are prepared to appeal if the trial court refuses to correct the errors. Since you, your clients, and Mr. Thompson have made this personal, you have left us with no choice but to appeal the excessive and baseless sanctions order. We clearly met our burden EXHIBIT I Aaron C. Boone March 1, 2017 Page 2 regarding the sanctions, but it has been made clear by Mr. Thompson that he uses sanctions as a tactic in litigation and has been allowed to do so in the Travis County Courts. We believe that this tactic is a threat to all lawyers who practice in good faith in Texas and that it is a serious violation of public policy. It will absolutely be appealed. Third, your letter seems to indicate that you want us to enter orders dismissing claims in the United States District Court for the Southern District of West Virginia as well. We have no claims in West Virginia. A review of the Court's record would clearly demonstrate that Linda Murray filed that suit - just as she initiated the Texas litigation. However, if you would like to do a joint dismissal in West Virginia and adhere to the Texas Courts' jurisdiction, we would be happy to consider such. Please feel free to draft the agreed dismissal for our review. Lastly, as stated above, we will be proceeding forward. At such time that the orders become final, we will be superseding the judgment during the appeal. WJB/ab cc: Brian Thompson (via email: bthompson@hoppermikeska.com) James W. Marshall, III (via email: jmarshal@baileywyant.com) H.F. Salsbery (via email: tsalsbery@baileywyant.com) Andrew R. Herrick (via email: aherrick@baileywyant.com) Chad M. Ruback (via email: chad@appeal.pro) Robert S. Fluharty (via email: rsfluharty@fntlawoffices.com) J. Nicholas Barth (via email: nbarth@barth-thompson.com) Leslie L. Maze (via email: lesliemaze@gmail.com) Joseph T. Santer (via email: jts-atty@suddenlink.net) Hamp Skelton (via email: hskelton@skeltonwoody.com) Mark Cohen (via email: mark@cohenlegalservices.com) Rose Cohen (via email: rose@cohenlegalservices.com) Client 600 Quarrier Street Charleston, West Virginia 25301 101 South Queen Street Martinsburg, West Virginia 25401 ., Bowles Riceu, Southpointe Town Center 1800 Main Street, Suite 200 Canonsburg, Pennsylvania 15317 1217 Chapline Street ATTORNEYS AT LAW Wheeling, West Virginia 26003 7000 Hampton Center 501 Avery Street Morgantown, West Virginia 26505 Parkersburg, West Virginia 26101 480 West Jubal Early Drive, Suite 130 Winchester, Virginia 22601 Post Office Box 49 Parkersburg, West Virginia 26102 (304) 485-8500 www.bowlesrice.com June 26, 2017 Aaron C. Boone E-Mail Address: Telephone-(304) 420-5501 aboone/a)bowlesrice,cqm Facsimile -(304) 420-5587 James W. Marshall, llI VIA E-MAIL AND FAX Michael W. Taylor BAILEY& WYANT,PLLC 500 Virginia Street East, Suite 600 Post Office Box 3710 Charleston, West Virginia 25337-3710 jmarshall@baileywyant.com William J. Brotherton Shawn M. Brotherton BROTHERTON LAW FIRM 2340 FM 407, Suite 200 Highland Village, Texas 75077 william@brothertonlaw.com shawn@brothertonlaw.com Re: SANCTIONS NOTICE Linda Mun-ay, as Successor Trustee of the William D. Short and Phyllis D. Sh01i Revocable Living Trust Dated April 30, 1991 v. Linda Lou Mun-ay et al. Civil Action No. 15-C-28, Circuit Court of Wirt County, West Virginia Ladies & Gentlemen: The purpose of this letter is to put you and your client on notice that my client intends to seek sanctions pursuant to Rule 11 of the West Virginia Rules of Civil Procedure, or pursuant to the Court's inherent authority to sanction bad faith litigation conduct, unless your client immediately ceases and desists from continuing to pursue claims to the William D. Sh011 and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, either in his personal capacity or by proxy through "the Estate of Deborah Cortez." The tenns of the Trust instrument are crystal clear, and have been ruled upon as a matter oflaw by both the Circuit Court of Wirt County, West Virginia and the Probate Court of Travis EXHIBIT J tJ' Bowles Rice,,. BAILEY & WYANT, PLLC BROTHERTON LAW FIRM June 26, 2017 Page2 County, Texas. The plain language of the Trust instrnment makes no provision for your client. Your client has no claim to the Trust, either in his personal capacity or as representative of "the Estate of Deborah Coitez." Your client's claims to the contrary lack any basis in the Trust instrument or support under the law, and have already been sanctioned in Texas. Unless your client withdraws his frivolous pleadings, my client will seek the same sanctions in West Virginia. The Circuit Court of Wirt County, West Virginia granted summary judgment against your client on September 15, 2016. The Probate Court of Travis County, Texas followed suit on December I 9, 2016. Both courts rejected your client's claims, and pursuant lo the patties' Rule 11 Agreement you are bound to abide by those rulings. Nonetheless, you continue to file :frivolous pleadings in West Virginia, with the admitted purpose of obstructing the Court's resolution of the Trustee's motion for summary judgment. Moreover, it is clear that your client is intentionally driving up the cost of this litigation to retaliate against the Trnstee and the Trust's rightful beneficiaries. The course of action you are pursuing in West Virginia has already been found by the Texas court to be frivolous as a matter of law. Moreover, there is sufficient evidence to make a compelling case to the Court that your client's continued pursuit of this matter is being conducted in bad faith. If your client is unwilling to do the right thing and dismiss his frivolous claims to the Trust, then my client has authorized me to aggressively pursue sanctions against you for facilitating his wrongful conduct. This matter is set for heai-ing tomorrow in the Circuit Court of Wirt County, West Virginia. I strongly urge your client to immediately cease his frivolous and futile pursuit of the Trust, and to dismiss his claims with prejudice at tomo1Tow' s hearing. Sincerely, ~- 365 S.E.2d 246 (1986). The Court has reviewed Mrs. Barry's Motion and FINDS that the Motion is in proper form and presents a genuine issue as to whether Mateo Cortez, individually and in his capacity as the Personal Representative of the Estate of Deborah Cortez (collectively, "Cortez"), or his counsel, should be sanctioned for prosecuting frivolous claims for improper, abusive, or harassing purposes. Accordingly, the Court ORDERS Mateo Cortez; and his counsel, attorneys James W. Marshall, III, H.F. Salsbery, Michael W. Taylor, William J. Brotherton (pro hac vice), and ,_ Shawn M. Brotherton (pro hac vice) to appear and show good cause as to why sanctions should not issue and to be heard on the issue of appropriate sanctions to be imposed. The Court FURTHER ORDERS that this matter be set down for hearing on the _ day of _______ 201_, at the hour of _ _ _.m. at the Wood County Judicial Building, #2 Government Square, Parkersburg, West Virgirria to take testimony and hear argument upon the issues identified in Mrs. Barry's Motion, following which the Court shall rule by separate Order. The Clerk is directed to enter this Order as of the date set forth below and send attested copies to counsel of record. ENTER this __ day of _ _ _ _ _ _ _ 2017. Robert A. Waters, Judge Prepared and submitted by: .__A...e.&o~ Aaron C. Boone (9479) Counsel for Defendant Conrrie Lou Keith Barry 2 9105880.1 APPENDIX H IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, V. CIVIL ACTION NO. 15-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. ORDER DENYING DEFENDANT MATEO CORTEZ'S MOTION TO ALTER OR AMEND On June 27, 2017, this Court conducted a hearing on Mateo Coretz's Motion to Alter or Amend (the "Motion to Alter"). After considering the Motion to Alter, the response of Defendant Connie Barry, the response of the Trustee, the arguments of counsel, and the record, this Court hereby DENIES the Motion to Alter for the reasons stated on the record and more fully below. Procedural Posture 1. On April 11, 2016, Defendant Connie Lou Keith Barry ("Defendant Barry"), by her counsel, filed a Motion for Partial Summary Judgment ("Motion for Partial Summary Judgment"). 2. On September 15, 2016, this Court entered its Order Granting Motion.for Partial Summary .Judgment ("Order"), concluding that Defendant Mateo Cortez ("Defendant Cortez" or "Mateo Cortez") is not a legal beneficiary of the "William D. Short and Phyllis D. Short Revocable Living Family Trust Dated April 30, 1991," as amended and restated by the "Second FlLED Circuit Court Date f~/9·/ 1 CLERK C;r Amendment and Restatement of The William D. Short and Phyllis D. Short Revocable Living Trust" dated January 5, 2000 (collectively, the "Trust"), and, as a matter of law, is not entitled to any portion of said Trust and is not entitled to share in the distribution of any of the Trust assets. 3. On September 29, 2016, Mateo Cortez filed his Motion to Alter, asking the court to reconsider its decision to enter judgment against Mateo Cortez. 4. On October 19, 2016, Defendant Barry filed her Notice of Hearing, setting the Motion to .Alter for a hearing before this Court on November 3, 2016. 5. On October 21, 2016, Mateo Cortez filed his Notice of Removal, removing this case to the United States District Court for the Southern District of West Virginia ("Federal Court"). 6. On April 10, 2017, the Federal Court entered its order remanding this case to the Circuit Court of Wirt County, West Virginia. 7. On April 27, 2017, Defendant Barry filed her Notice of Hearing, setting the Motion to Alter for a hearing before this Court on June 27, 2017. 8. On June 22, 2017, Trustee Linda Murray filed her Response in opposition to Mateo Cortez's Motion to Alter. 9. On June 27, 2017, this Court convened to consider arguments relating to the Motion to Alter. 2 Findings of Fact & Conclusions of Law 10. "Under Rule 59(e), the reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." Mey v. Pep Boys-Manny, Moe & Jack, 228 W.Va. 48,717 S.E.2d 235(2011). 11. "[B]ecause of the narrow purposes for which they are intended, Rule 59(e) motions typically are denied." Woodrum v. Thomas Mem. Hosp. Found.,
186 F.R.D. 350, 351 (S.D.W.Va. 1999) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure§ 2810.1 (2d ed. 1995)). 1 12. "[M]ere disagreement does not support a Rule 59(e) motion." Doe v. Kanawha County Bd. of Educ., No. 05-C-355,
2008 WL 5520095(W.Va. Cir. Ct. Mar. 3, 2008). "A Rule 59( e) motion is not intended to allow for reargument of the very issues that the court has previously decided ... nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance." East Sussex Children Services v. Morris, No. 3:12-CV-141,
2013 WL 704660, at *3 (N.D.W.Va. Feb. 27, 2013). 13. "A motion under Rule 59(e) of the West Virginia Rules o,/Civil Procedure should be granted where: (1) there is an intervening change in controlling law; (2) new evidence not previously available comes to light; (3) it becomes necessary to remedy a clear error of law or 1 "Because the West Virginia Rules of Civil Procedure arc practically identical to the Federal Rules, we give substantial weight to federal cases ... in determining the meaning and scope of our rules." Painter v. Peavy, 192 W.Va. 189, 192 n. 6,451 S.E.2d 755,758 n. 6 (1994) (citations omitted). (J,' Mey v. Pep Boys-Manny, Moe &Jack, 228 W.Va. 48, 57,
717 S.E.2d 235,244 (2011) (citing federal cases as to the meaning and scope of Rule 59(e), and observing in footnote JO that the only difference between the West Virginia and federal rule is the time period to file a motion). 3 ,, (4) to prevent obvious injustice." Syl. Point 2. Mey v. Pep Boys-Manny, Moe & Jack,
228 W. Va. 48, 50,
717 S.E.2d 235,237 (2011). First Prong under Rule 59(e) Mateo Cortez Identifies No Intervening Change in Law 14. As it relates to the first prong under Rule 59(e), "intervening change in controlling law", Defendant Cortez identifies no intervening change in controlling law in either his Motion to Alter filed on September 29, 2016, or his oral arguments presented on June 27, 2017. As such, this Court CONCLUDES that it cannot alter or modify the subject Order based upon any alleged intervening change in law. Second Prong under Rule 59(e) Mateo Cortez Identifies No New Evidence 15. As it relates to the second prong under Rule 59(e), "new evidence", Defendant Cortez identifies no new evidence in either his Motion to Alter or his oral arguments; as such, this Court CONCLUDES that it cannot alter or modify the subject Order based upon this provision under Rule 59(e). Third Prong under Rule 59(e) Mateo Cortez Fails to Demonstrate this Court Committed Any Clear Error of Law 16. As it relates to the third prong under Rule 59(e), "clear error oflaw", Mateo Cortez proffers several arguments to suggest that this Court committed clear error. First, Mateo Cortez argues that this Court improperly refused to dismiss and/or abstain from adjudicating the Complaint. Second, Mateo Cortez argues this Court incorrectly concluded that Mateo Cortez and/or the Estate of Deborah Cortez is not a beneficiary under the Trust. 4 17. As it relates to the first alleged "clear error", namely refusal to dismiss and/or abstain, this Court CONCLUDES that this argument fails for several reasons: a. First, the issue of whether this Court must abstain and/or defer to Texas has been fully vetted by both this Court and the Supreme Court of Appeals of West Virginia. Nothing presented by Mateo Cortez has persuaded this Court to veer from its earlier determination (and/or from the Supreme Court of Appeals of West Virginia's ruling), that the Circuit Court of Wirt County is permitted to address the issues presented in the Complaint, including, but not limited to, the critical issue of who does and does not qualify as a beneficiary under the Trust. b. Second, in further support of Mateo Cortez's argument that this Court has committed clear error in refusing to defer to Texas, Mateo Cortez argues that circumstances have changed, ameliorating in favor of Texas now serving as the sole arbiter. 1. Specifically, Mateo Cortez argues that, when this Court decided on March 16, 2016, to retain sole jurisdiction over this Complaint, this Court did so because Texas did not have jurisdiction over the numerous individuals identified in the Complaint. Mateo Cortez further argues that, subsequent to this Court's March 16, 2016, Order denying Mateo's Motion to Dismiss per Rule 12(b), and subsequent to this Court's September 15, 2016 Order granting Connie Barry's Motion for Partial Summary Judgment, the Probate Court of Travis County, Texas, acquired jurisdiction over the heirs-at-law; as such, Mateo Cortez reasons, this Court should rescind its 5 prior order granting summary judgment in favor of Connie Barry, dismiss and/or stay this action, and let the Probate Court of Travis County, Texas, handle this case. 11. However, this Court notes that, although the Probate Court of Travis County, Texas, did, for a period of time, obtain jurisdiction over many of the individuals identified in the Complaint, the Probate Court's plenary power in that action has now expired, meaning it no longer has jurisdiction over said individuals. 111. Regardless, the decision of this Court to retain jurisdiction was never solely predicated on whether the Probate County Court of Travis County, Texas, had jurisdiction over all the individuals identified the Complaint. Rather, this Court retained jurisdiction due to multiple factors that weighed in favor of retaining jurisdiction and that continue to weigh in favor of maintaining jurisdiction; those factors include, but are not limited to: a) West Virginia has jurisdiction over the real property interests contained in the Trust. b) While it might be less convenient for Defendant Cortez to proceed in West Virginia, it does not work a substantial injustice to him to require him to adjudicate the distribution of the Trust Assets where the majority of the potential beneficiaries reside 6 and where the Trust is actually administered, as required by the Trust instruments themselves. c) The fact that the Trustee filed a tort action in Texas to stop misappropriation of the Trust Assets does not mean that the Trustee specifically availed herself of a Texas forum for any aspect of the Trust's administration. d) Plaintiff Linda Murray is a resident of West Virginia, and administers the Trust from West Virginia. The situs of the Trust is located in West Virginia. e) The fact that the Estates of William and Phyllis Short were probated in Texas, or that the Estate of Deborah Cortez is located in Texas, is entirely irrelevant because the Trust is not part of any of those Estates. c. Finally, although not dispositive, another reason to support this Court's conclusion that no "clear error" has been made with respect to its decision to retain jurisdiction, this Court recognizes that its distinguished peer in Texas, the Hon. Guy Herman, Judge, chose not to preclude, interrupt, or even object to West Virginia handling this case. At a December 18, 2015, hearing in the Probate Court of Travis County, Texas, which occurred over a month after the Trustee initiated this action on November 20, 2015, the following verbal exchange occurred between Judge Herman and Counsel: 7 THE COURT: I'm not going to prohibit them from proceeding, I'm not going order (sic) them to dismiss in West Virginia. You all can go to West Virginia and argue. MR. BROTHERTON: The problem is of course, Your Honor, is our guy has limited funds and - THE COURT: But he's got good lawyers, so - who are looking at an opportunity if you're right of getting five million dollars. MR. COHEN: Yeah. THE COURT: I'm sure that you can --- MR. COHEN: Should have signed a contingent fee. THE COURT: --- make your way to West Virginia. (Exhibit C to Defendant's Response, Transcript of hearing of December 17, 2015, the Honorable Guy Herman, Judge, Travis County Probate Court, Travis County, Texas, Trial Court Cause No. C-1-PB-14-001564.) 18. As it relates to the second alleged "clear error", namely that this Court incorrectly concluded that neither Mateo Cortez nor the Estate of Deborah Cortez are beneficiaries of the Trust, this Court CONCLUDES that this argument fails for several reasons: a. At the outset, it is important to note that Mateo Cortez has proffered multiple theories (at different stages in this case) in support of his singular claim that he, as the sole heir to the Estate of his deceased-spouse Deborah Cortez, is the sole beneficiary of the assets of the Trust. I. First Theory: In his May 9, 2016, Response to Connie Barry's Motion for Summary Judgment, Mateo Cortez argues that the "Postponement of Possession," "Termination" paragraph under Article VIII, Section D, Subsection 2 supports his claim. 8 ll. Second Theory: In his September 29, 2016, Motion to Amend or Alter, he argues that the "Alternate Distribution" paragraph under Article VIII, Section C supports his claim. m. Third Theory: During the June 27, 2017, hearing, he indicated he intends to argue (before the Probate Court of Travis County, Texas) that the "Specific Distribution," "Cash Distribution to Deborah" paragraph under Article VIII, Section A, Subsection 2 supports his claim. b. Furthermore, it is important to note that no one disputes that the subject Trust is the legitimate, applicable, and controlling document expressing the settlors' intent with respect to the Trust Assets. Additionally, there is no dispute that, at all times pertinent, the Trust has been known to Mateo Cortez and his counsel. Finally, there is no dispute that the Trust is unambiguous: Defendant Barry is correct in that Mr. Cortez is not an heir at law and correct in that the Trust expresses the true intent of the parties and unambiguous language. Defendant Barry is incorrect, however, in deducing what the meaning of the plain and unambiguous language is. (Defendant Mateo Cortez's Response to Defendant Connie Lou Keith Barry's Motion for Partial Summary Judgment, p. 7.) As such, this Court sees no reason why Mateo Cortez could not have proffered any and all theories to support his singular claim prior to entry of this Court's decision to grant partial summary judgment in favor of Connie Barry and against Mateo Cortez on September 15~ 2016. 9 a. Notwithstanding, this Court CONCLUDES that no theory expressed by Mateo Cortez could support his singular claim that he, as the sole heir to the Estate of his deceased-spouse Deborah Cortez, is the sole beneficiary of the assets of the Trust: 1. As it relates to Mateo Cortez's first theory, this Court has already explained why the "Postponement of Possession," "Termination" provision of the Trust does not support Mateo Cortez's claim. (Order Granting Partial Summary Judgment, p. 8). In his Motion to Amend or Alter, Mateo Cortez proffers no argument as to why this Court's decision regarding the Postponement Provision qualifies as clear error. 11. As it relates to Mateo Cortez's second theory, this Court adopts the rationale espoused in the response of Connie Barry, namely that the determination of who qualifies as an "heir-at-law", within the "Alternate Distribution" paragraph under Article VIII, Section C, inherently includes only those then-living at the time of the Deborah Cortez's death. Accordingly, neither Mateo Cortez, nor the Estate of Deborah Cortez qualify, as an heir-at-law within the "Alternate Distribution" paragraph under Article VIII, Section C. To conclude otherwise would render the Trust nonsensical and would run contrary to the clear intent of the settlors. Moreover, Mateo Cortez admitted in his response to the motion for summary judgment that he was not an heir at law of either settlor. 10 111. Additionally, although not dispositive, this Court recognizes that not only has it concluded that neither Mateo Cortez nor the Estate of Deborah Cortez are beneficiaries under the trust, but the Texas Court has also concluded that neither Cortez nor the Estate of Deborah Cortez are beneficiaries: It is therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular, the Court hereby dismisses any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative ofthe Estate ofDeborah Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. (Exhibit B, Order Granting Third Party Defendants' Traditional and No Evidence Motion for Summary Judgment, Civil Action No. C-1-OB-14-1564 (Tex. Probate Ct. Dec. 19, 2016) (emphasis added). 2 1v. Finally, as it relates to Mateo Cortez's third theory, this Court finds that regardless of whatever new and/or novel theory Mateo Cortez would seek to proffer, this Court has already determined, and today reaffirms, its conclusion that the Trust is unambiguous and clearly expresses the intent of the settlers that, upon the death of Deborah Short, the Trustee should distribute 1/2 of the remaining Trust Assets to the then-living heirs of William D. Short and 1/2 to then-living heirs of Phyllis D. Short. 2 The Texas court subsequently amended its judgment to include monetary sanctions against Mateo Cortez's attorneys, finding that the arguments which Mateo Cortez advanced in Texas were frivolous and were not warranted by existing law; the extension, modification, or reversal of existing law; or the establishment of new law. The Texas court sanctioned Mateo Cortez's attorneys in the amount of $65,130.76 for driving up Defendant Barry's legal fees in Texas with frivolous claims. 11 Fourth Prong under Rule 59(e) Mateo Cortez fails to demonstrate that "Manifest Injustice" would occur if this Court denies his Motion to Amend or Alter 19. Lastly, in his motion, Mateo Cortez suggests that manifest injustice would occur in denying his Motion to Amend, in part, because the Estate of Deborah Cortez is not a party to the lawsuit. Mateo Cortez failed to present this argument prior to judgment and therefore waived it. See W.Va. R. Civ. P. 12(h) (defenses other than lack of subject matter jurisdiction are waived unless raised prior to judgment). The Court also notes its prior rulings that the Estate of Deborah Cortez has no interest in the Trust or the Trust assets, and therefore is neither necessary nor indispensable to this action. 20. Moreover, this Court finds that the applicant was adequately represented by Mateo Cortez, who is the administrator and sole heir of the Estate of Deborah Cortez. a. As to adequacy of representation by existing parties, "generally courts compare the interests asserted by the proposed intervenor with the interests of the existing party. If the proposed intervenor's interest is not represented by the existing party, or the existing party's interests are adverse to those of the proposed intervenor, intervention should be granted .... [However], if the interests are identical, intervention should be denied unless there is a compelling showing as to why the existing representation is inadequate." State ex rel. Ball v. Cummings, 208 W.Va. 393,403,
540 S.E.2d 917, 927 (1999) (internal citations omitted). b. Mateo Cortez, in both his personal capacity and in his capacity as the Personal Representative of the Estate of Deborah Cortez, have identical interests in this action: both seek an order directing that all the assets of the Trust 12 be distributed to Mateo Cortez, either through direct distribution to Mateo Cortez personally or indirectly through distribution to the Estate of Deborah Cortez, which then flows through to Mateo Cortez personally as its sole heir. This identity of interest is clear from the undisputed fact that Mateo Cortez controls every decision made on behalf of the Estate of Deborah Cortez, and is the only heir and beneficiary of the estate. c. Additionally, Mateo Cortez's attorneys represent him in both his individual capacity and in his capacity as the Personal Representative of the Estate of Deborah Cortez, which would violate the West Virginia Rules of Professional Conduct if their interests were adverse in any way. See W.Va. R. Prof. Conduct§ 1.7 (simultaneous representation of adverse parties in litigation is a non-waivable conflict of interest). 21. Accordingly, this Court CONCLUDES that manifest injustice would NOT occur by denying the Motion to Amend because (as Mateo Cortez argues), the Estate of Deborah Cortez is not a party to this action. Ruling For the reasons set forth above, and as stated more fully upon the record, this Court DENIES the motion to amend or alter filed by Mateo Cortez. The Court notes that Defendant Connie Lou Keith Barry has filed a motion for sanctions against Mateo Cortez, in either his personal capacity or in his capacity as the Personal Representative of the Estate of Deborah Cortez, and his attorneys. The Court's ruling in this Order does not address, moot, or otherwise resolve that motion. 13 This Court ORDERS the Clerk to forward certified copies of this Order to all counsel of record and pro se parties. ENTER Ir11~l / ~ 2,-CI 1 7 /Jjj_[Jk Robert A. Waters, Judge PREPARED BY: .IJ ,C .(!:)ot;rvJ- Aaron C. Boone (94 79) Counsel for Defendant Connie Lou Keith Barry APPROVED FOR ENTRY: lZ S f k,1.. ko--A +-, '--'1 A C.. e,..-n-. [per email authorization 7/l 7/17] Robert S. Fluharty, Jr. (1220) J. Nicholas Barth (255) Counsel for Plaintiff )__ L II 6l :J:::: fo '1 --A C ~ [per email authorization 7/14/1 7] Leslie L. Maze (8072) Counsel for Defendants Donald Leaman Whited, Michael Ray Whited, Sheila Pettrey, Tywanna Pettrey, Amanda Pettrey, Terry Lee Whited, and Sherry Lynn Whited Salsbury ~ JJa"'-+i-< b ':, J t 6 -u.-___;::=------· . ~ [per . email. authonzat1on . . 7/15/17] Joseph T. Santer (3252) Guardian ad !item for unknown defendants 14 Shawn M. Brotherton, admitted pro hac vice Michael W. Taylor (11715) James W. Marshall, III (10677) Counsel for Mateo Cortez 15 9072845, I APPENDIX I lN THE CIRCUIT COURT OF WJRT COUNTY, WEST VIRGINIA LINDA MURRAY, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff: v. CIVIL ACTION NO. l 5-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. ORDER DENYING MOTION TO DISMISS On June 27, 2017, this Court conducted a hearing on Defendant Mateo Cortez's Motion to Dismiss (the "Motion"). After considering the Motion, the response of defendant Connie Barry, the response of the Trustee, the arguments of counsel, and the record, this Court hereby DENIES the Motion for the reasons stated on the record and more fully below. Procedural Posture 1. On June 12, 2017, Defendant Mateo Cortez filed Defendant Mateo Cortez's Motion to Dismiss and Memorandum of Law in Support Thereof (the "Motion"), requesting that the Court dismiss this action pursuant to Rule 12(6) of the West Virginia Rules of Civil Procedure. Mateo Cortez argues that this action should be dismissed because lhere is a previously-filed action pending in Texas on the same subject matter between the same parties, and as a result the Texas court has exclusive jurisdiction. 2. On June 22, 2017, Plaintiff Linda Murray, in her capacity as Successor Trustee of the Trust (the "Trustee"), filed a response in opposition to the Motion. On June 23, FILED Circuit Court Date Q-/tl-17 CLERK if_ 2017, Defendant Connie Lou Keith Barry ("Barry"), liled u response in opposition to the Motion and a request for sanctions. On June 27, 2017, the Court conducted a hearing on the Motion and other matters. The Court has reviewed the Motion, supporting memorandum and exhibits, the Trustee and Barry's responses and supporting exhibits, the Trust instrument, and entertained the arguments of the parties. The Court has also reviewed the entire record in this matter as part of its consideration of this Motion and the other matters pending before it. Findings of Fact & Conclusions of Law 3. This action involves the proper distribution of the assets of the "William D. Short and Phyllis D. Short Revocable Living Family Trust Dated April 30, 1991," as amended and restated by the "Second Amendment and Restatement of The William D. Short and Phyllis D. Short Revocable Living Trust" dated January 5, 2000 (collectively, the "Trust"). 4. This Court recognizes that, prior to instituting this action in Wirt County, West Virginia, the Trustee asserted a claim in Texas. a. On August 28, 2014, the Trustee filed an action against Mateo Cortez in the Probate Court of Travis County, Texas, alleging that Mateo Cortez conspired to misappropriate funds from the Trust. b. On June 30, 2015, Mateo Cortez filed a petition in intervention within the Trustee's misappropriation action in Texas, seeking a declaratory judgment that Deborah Cortez was entitled to all of the Trust assets during her life, and an order directing the Trustee to distribute the remaining Trust assets to the Estate of Deborah Cortez. 2 c. On November 16, 2015, the Trustee filed a motion for summary judgment in Texas, arguing that Mateo Cortez filed his petition in intervention solely to avoid liability on the Trustee's misappropriation claim. 5. On November 20, 2015, the Trustee filed this action in the Circuit Court of Wirt County, West Virginia, to obtain "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same in such proportions as may be determined by this Court to be proper and in conformity with the intent of the settlors of the Trust." The Trustee joined and served numerous defendants, including Mateo Cortez. The Trustee joined and served Mateo Cortez as a defendant because he "claims that as the surviving spouse of Deborah Ann (Short) Cortez he is entitled to the trust proceeds. His claim is without legal merit; nevertheless, in order that he may appear and protect his interest, if any, he is named as a defendant herein." 6. On December 18, 2015, the Texas court held a hearing on a temporary restraining order and request for injunctive relief filed by Mateo Cortez. As part of his request for relief, Mateo Cortez sought an order from the Texas court enjoining the Trustee from proceeding any further in West Virginia and requiring her to dismiss this action. The Texas court refused to interfere with the Trustee's claims in this court: "THE COURT: I'm not going to prohibit them from proceeding, I'm not going to order them to dismiss in West Virginia. You all can go to West Virginia and argue." 7. On December 28, 2015 Mateo Cortez filed a Rule 12(b) motion to dismiss this action pursuant to the doctrine of forum non conveniens, arguing that this action should be dismissed because the Trustee's claims were currently being litigated in Texas. 3 a. In his motion, Mateo Cortez stated that he was seeking to administer the Estate of Deborah Cortez in Texas, and stated that "Mr. Cotiez filed an Original Petition in intervention that seeks a declaratory judgment regarding the distribution of the Trust to Mateo Cortez, the sole heir of the Estate of his late wife, Deborah Cortez." b. As an exhibit to his motion, Mateo Cortez attached a copy of his pleading in Texas, which did not request that the court determine the proper beneficiaries of the Trust in the event his declaratory claim failed. 8. On March 16, 2016, this Court denied Mateo Cortez's motion to dismiss. On June 14, 2016, the Supreme Court of Appeals of West Virginia refused Mateo Cortez's petition for an extraordinary writ prohibiting this Court from enforcing its order. 9. On September 15, 2016, this Court granted Defendant Barry's motion for partial summary judgment, and dismissed Mateo Cortez as a defendant in this case based upon the findings, conclusions, and rulings reflected therein. 10. On December 19, 2016, the Texas court also granted summary judgment against Mateo Cortez on his declaratory claims to the Trust: On this day, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion") filed by Third Party Defendants ... Connie [Lou] Keith Barry ... all in their individual capacities. Having considered the Motion, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In 4 particular, the Court hereby dismisses any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray, in her capacity as trustee of the Trust. 11. On June 12, 2017, Mateo Cortez filed this Motion, and attached as exhibits multiple filings from Texas. a. Mateo Cortez argues that the Texas filings attached to his Motion demonstrate that the Trust is being actively administered in Texas and that the claims pending before this Court are being litigated concurrently in Texas. b. With the exception of Mateo Cortez's intervention pleadings, all of the attached filings from Texas relate to the administration of the Estates of William D. Short and Phyllis D. Short, which are legally distinct from the Trust. The remaining pleadings relate to Mateo Cortez's petition in intervention, which was dismissed by the Texas court on December 19, 2016. 1 c. None of the filings attached to Mateo Cortez's Motion seek relief that is the same or similar to the relief sought in this action, to-wit: "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same in such proportions as may be 1 Mateo Cortez also attached a pleading entitled Fifth Amended Petition in Intervention and Fourth Amended Third Party Petition, which was filed in Texas on May 25, 2017. As with his original intervention pleading, Mateo Cortez's fifth amended intervention pleading seeks a declaratory judgment that Deborah Cortez was entitled to all of the Trust assets during her life, and an order directing the Trustee to distribute the remaining Trust assets to the Estate of Deborah Cortez. Mateo Cortez's fifth amended intervention pleading does not request that the Texas court determine the proper beneficiaries of the Trust in the event his amended declaratory claim fails. 5 determined by this Court to be proper and in conformity with the intent of the settlors of the Trust." None of the other parties to the Texas action have requested that the Texas court determine the proper beneficiaries of the Trust or the proper distribution of the Trust assets. There is no claim of the Trustee pending in the Texas court that is duplicative of the Trustee's claim in this action. Conclusions of Law 12. "Every defense, in law or in fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter ... (6) failure to state a claim upon which relief can be granted .... A motion making any of these defenses shall be made before pleading if a further pleading is permitted." W.Va. R. Civ. P. 12(b). 13. "A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits." W.Va. R. Civ. P. 12(h)(2). 14. "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action." W.Va. R. Civ. P. 12(h)(3). "Lack of jurisdiction may be raised in any appropriate manner, and at any time during the pendency of the suit or action." McKinleyv. Queen, 125 W.Va. 619,25 S.E.2d 763, 766 (1943) (internal citations omitted). 15. "This Court has previously determined that when there is litigation on the same subject between the same parties pending in another state, our courts should not consider the 6 matter until the proceedings in the other state are resolved." Morris v. Estate of Morris, No. 15- 1035,
2016 WL 6678988, at *5 (W.Va. Supreme Court, Nov. 14, 2016) (memorandum decision) (citing Berger v. Berger, 177 W.Va. 58,350 S.E.2d 685 (1986)). See also Berger, 177 W.Va. at 60 (trial court erred by refusing to dismiss divorce action "where there was then pending a proceeding on exactly the same subject between the same parties in North Carolina."). 16. "[T]he principle applicable to both federal and state courts that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, is not restricted to cases where property has been actually seized under judicial process before a second suit is instituted, but applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature where, to give effect to its jurisdiction, the court must control the property." Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456,466 (1939). 17. The principle announced in Princess Lida of Thurn & Taxis does not apply to suits "instituted in order to determine the validity of claims against the estate or claimants' interests therein. Such proceedings are not in rem; they seek only to establish rights; judgments therein do not deal with the property and other distribution; they adjudicate questions which precede distribution." Commonwealth Trust Co. of Pittsburgh v. Bradford,
297 U.S. 613, 619 (1936). Cf Princess Lida of Thurn &
Taxis, 305 U.S. at 466-67(citing Bradford) (exclusive jurisdiction principle has no application to a case seeking to determine "the right of any person to participate in the res or as to his quantum of his interest in it."). 18. "Where the judgment sought is strictly in personam, both a state court and a federal court having concurrent jurisdiction may proceed with the litigation, at least until 7 judgment is obtained in one court which may be set up as res adjudicala in the other." State ex rel. Small v. Clawges, 231 W.Va. 301, 308,
745 S.E.2d 192, 199 (2013). 19. Mateo Cortez filed this Motion to dismiss post-judgment. To the extent he seeks to dismiss this case on any basis other than lack of subject matter jurisdiction, Mateo Cortez's Motion is procedurally improper and therefore denied. See W.Va. R. Civ. P. 12(h) (defenses other than lack of subject matter jurisdiction are waived unless raised prior to judgment). The Court will therefore construe Mateo Cortez's Motion as challenging the Court's subject matter jurisdiction. 20. The Court finds that the principles announced in Berger and Princess Lida of Thurn & Taxis do not apply to this action and do not deprive this Court of subject matter jurisdiction over the Trustee's claims. a. First, the Trustee's claims in this action are not identical to the claims filed in Texas. The Trustee filed this action seeking "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same in such proportions as may be determined by this Court to be proper and in conformity with the intent of the settlors of the Trust." In contrast, Mateo Cortez filed his intervention claims in Texas to obtain a declaration that Deborah Cortez was entitled to all of the Trust assets during her life, and an order directing the Trustee to distribute the remaining Trust assets to the Estate of Deborah Cortez. Mateo Cortez did not request that the Texas court determine the proper beneficiaries of the Trust in the event his declaratory claim failed. 8 b. Second, Mateo Cortez's intervention claims in Texas are in personam only, and do not affect this Court's jurisdiction. Mateo Cortez filed his intervention claims in Texas to establish the Estate of Deborah Cortez's "right to participate in the res or as to [its] quantum of [its] interest in it," which falls under the rule set forth in Bradford and not the rule set forth in Princess Lida of Thurn & Taxis. The Texas court appears to be in agreement with this Court's conclusion, given its refusal to enjoin the Trustee from proceeding further with this action. Accordingly, even if the claims before this Court were identical to the claims filed in Texas, concurrent jurisdiction over those claims is proper until a judgment from one court operates as resjudicata in the other. 21. Additionally, even assuming that Mateo Cortez's intervention claims in Texas did implicate Princess Lida of Thurn & Taxis, his claims have been dismissed in their entirety by the Texas court. None of the other parties to the Texas proceedings have asked the Texas court to determine how the Trust should be distributed. That claim is only pending here in West Virginia, and the Texas court has stated that it won't interfere with this Court's adjudication of that issue. Ruling For the reasons set forth above, and as stated more fully upon the record, this Court DENIES the motion to dismiss filed by Mateo Cortez. The Court notes that Defendant Connie Lou Keith Barry has filed a motion for sanctions against Mateo Cortez, in either his personal capacity or in his capacity as the Personal 9 ' w Representative of the Estate of Deborah Cortez, and his attorneys. The Court's ruling in this Order docs not address, moot, or otherwise resolve that motion. This Court ORDERS the Clerk to forward certified copies of this Order to all counsel of record and pro se parties. Robert A. Waters, Judge PREPARED BY: I hereby certify that the toreqoing is a trJe and cormci copy oi t~e or,;::la: on fiie in my office ATTEST Carol Fraa1e /it C Clerk-Wi:t Count,,. WV Aaron C. Boone (WVSB #94 79) Counsel for Defendant Connie Lou Keith Barry APPROVED FOR ENTRY: '\<. ~. F' (v..~/ ½ t>~A-tb [per email authorization 7/l 7/17] Robert S. Fluharty, Jr. (1220) J. Nicholas Barth (255) Counsel for Plaintiff J..... k ~ 6~ _A c · b · [per email authorization 7/14/17] Leslie L. Maze (8072) Counsel for Defendants Donald Leaman Whited, Michael Ray Whited, Sheila Pettrey, Tywanna Pettrey, Amanda Pettrey, Terry Lee Whited, and Sherry Lynn Whited Salsbury ~_j S ~ - b,- A-z f, [per email authorization 7/ 15/ I 7] foeph T. Santer (3252) Guardian ad litem for unknown defendants 10 ' " . Shawn M. Brotherton, admitted pro hac vice Michael W. Taylor (11715) James W. Marshall, III (10677) Counsel for Mateo Cortez 11 9091503.1 APPENDIX J f ' IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. ORDER DENYING MOTION TO INTERVENE On June 27, 2017, this Court conducted a hearing on The Estate of Deborah Cortez's Motion to Intervene (the "Motion"). After considering the Motion, the response of defendant Connie Barry ("Response"), the response of the Trustee, the arguments of counsel, and the record, this Court hereby DENIES the Motion for the reasons stated on the record and more fully below. Procedural Posture 1. On June 12, 2017 Defendant Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, filed The Estate of Deborah Cortez's Motion to Intervene and Memorandum of Law in Support Thereof(the "Motion"), requesting that the Court pennit the Estate of Deborah Cortez to intervene pursuant to Rule 24 of the West Virginia Rules of Civil Procedure. 2. Mateo Cortez attached to the Motion u proposed intervenor cumplaiul entitled The Estate o.f Deborah Cortez's Complaint Requesting Declarato,y Relief, in which FILED Circuit Court Date C?-!tJ:lj CLERK~. Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, seeks a declaratory judgment that all of the assets of the "William D. Short and Phyllis D. Short Revocable Living Family Trust Dated April 30, 1991," as amended and restated by the "Second Amendment and Restatement of The William D. Short and Phyllis D. Short Revocable Living Trust" dated January 5, 2000 (collectively, the "Trust"), should have been inherited by Deborah Cortez following the death of Phyllis D. Short, as the sole heir and beneficiary of Phyllis's estate. The proposed intervenor complaint further requests an order directing that all the assets of the Trust be distributed to the Estate of Deborah Cortez. 3. On June 22, 2017, Plaintiff Linda Murray, in her capacity as Successor Trustee of the Trust (the "Trustee"), filed a response in opposition to the Motion. On June 23, 2017, Defendant Connie Lou Keith Barry ("Barry"), filed a response in opposition to the Motion and a request for sanctions. On June 27, 2017, the Court conducted a hearing on the Motion and other matters. The Court has reviewed the Motion, supporting memorandum and exhibits, the Trustee and Barry's responses and supporting exhibits, the Trust instrument, and entertained the arguments of the parties. The Court has also reviewed the entire record in this matter as part of its consideration of this Motion and the other matters pending before it. Findings of Fact & Conclusions of Law 4. On November 20, 2015, the Trustee filed this action to obtain "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same in such proportions as may be determined by this Court to be proper and in conformity with the intent of the settlors of the Trust." (Complaint, p. 22). The Trustee joined and served Mateo Cortez as a defendant because he "claims that as the surviving spouse of Deborah Ann (Short) Cortez he is entitled to the trnst proceeds." (Complaint, ir 13). 2 The docket sheet for this matter indicates that Mateo Cortez was served with process on December 4, 2015. 5. At all times relevant to this action, Mateo Cortez was the sole heir and beneficiary of the Estate of Deborah Cortez, and had sole authority to act on its behalf. In both this action and the proceedings in Texas, Mateo Cortez's personal counsel also represents him in his capacity as the Personal Representative of the Estate of Deborah Cortez. 6. On December 28, 2015, Mateo Cortez filed a Rule 12(b) motion to dismiss this action pursuant to the doctrine of forum non conveniens, arguing that this action should be dismissed because the Trustee's claims were currently being litigated in Texas. 1 In his motion, Mateo Cortez stated that he was seeking to administer the Estate of Deborah Cortez in Texas, and stated that "Mr. Cortez filed an Original Petition in Intervention that seeks a declaratory judgment regarding the distribution of the Trust to Mateo Cortez, the sole heir of the Estate of his late wife, Deborah Cortez." However, Mateo Cortez did not argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action, did not seek to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, and did not attempt to join the Estate of Deborah Cortez as a party. On March 16, 2016, this Court denied Mateo Cortez's motion to dismiss. 7. On April 8, 2016, Mateo Cortez filed his answer in this matter. In his answer to paragraph 13 of the Trustee's complaint, Mateo Cortez admitted "that he is the surviving spouse and sole heir of Deborah Ann Cortez and that, as a surviving spouse and sole heir of Deborah Ann Cortez, that he is entitled to the trust proceeds." Mateo Cortez further 1 The Trustee and Barry dispute Mateo Cortez's characterization of the claims before the Texas court. 3 stated in his answer to paragraph 13 of the Trustee's complaint that the Texas court "has jurisdiction to declare that the Estate of Deborah Cortez is entitled to all of the assets of the trust." Mateo Cortez raised as his tenth defense to the Trustee's complaint that "[t]he Plaintiff has failed to join necessary and indispensable parties and thus this Complaint should be dismissed." However, Mateo Cortez did not allege that the Estate of Deborah Cortez was a necessary or indispensable party to this action, did not seek to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, and did not attempt to join the Estate of Deborah Cortez as a party. 8. On April 11, 2016, Defendant Barry filed a motion for partial summary judgment that Mateo Cortez is not entitled to share in the distribution of any assets of the Trust. Barry argued that the Trust instrument is unambiguous and that, pursuant to the terms of the Trust instrument, any remaining assets of the Trust are to be distributed to the heirs at law of William D. Short and Phyllis D. Short now that Deborah Cortez is deceased. 9. On May 9, 2016, Mateo Cortez filed a response to Barry's motion for partial summary judgment. In his response, Mateo Cortez stated that he "intends to conduct discovery to prove that as a surviving spouse of Deborah Cortez, he is entitled to the trust proceeds," and further argued he "is entitled to receive trust assets because he is the sole heir of the Estate of Deborah Cortez, the Shorts' only child." However, Mateo Cortez did not argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action, did not seek to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, and did not attempt to join the Estate of Deborah Cortez as a party. 4 10. On May 13, 2016, the Court conducted a hearing on Barry's motion for partial summary judgment and took the matter under advisement. 11. On April 29, 2016, Mateo Cortez filed a petition for a writ of prohibition with the Supreme Court of Appeals of West Virginia, seeking to prohibit execution of this Court's order denying his motion to dismiss. 2 In his petition, Mateo Cortez asserted that "[u]nder Texas law, a sole heir may bring an action on behalf of the deceased's estate," and devoted several pages of his brief to discussing actions he had taken in Texas on behalf of the Estate of Deborah Cortez to adjudicate its interest in the Trust. The petition further asserted that "Mateo Cortez, as Representative of the Estate of Deborah Cortez, subsequently filed an Original Petition in Intervention [in Texas] seeking declaratory judgment on the distribution of the Trust assets to the Estate of Deborah Cortez," and that "the original Plaintiff/Petitioner in this matter is the Estate of Deborah Cortez which filed its Original Petition in Intervention five (5) months prior to filing the duplicative litigation in West Virginia." However, Mateo Cortez did not argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action, or that this action should be dismissed for failure to join the Estate of Deborah Cortez as an indispensable party. On June 14, 2016, the Supreme Court of Appeals of West Virginia refused Mateo Cortez's petition. 12. On September 15, 2016, this Court granted Defendant Barry's motion for partial summary judgment, and dismissed Mateo Cortez as a defendant in this case based upon the findings, conclusions, and rulings reflected therein. 2 Per the requirements of the Appellate Rules of Procedure, this Court received a copy of Mateo Cortez's petition, as reflected on the certificate of service. 5 13. At no time prior to this Court's September 15, 2016, order granting Defendant Barry's motion for partial summary judgment did Mateo Cortez: (1) argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action; (2) file a motion to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, or otherwise argue that this action should be dismissed for failure to join the Estate of Deborah Cortez as an indispensable party; or (3) attempt to join the Estate of Deborah Cortez as a party, or intervene as a party on behalf of the Estate of Deborah Cortez. 14. On September 29, 2016, Mateo Cortez filed a motion to alter or amend this Court's order granting Defendant Barry's motion for partial summary judgment, arguing that the Court should vacate its order and dismiss this case with prejudice. Among other grounds for granting his motion to alter or amend, Mateo Cortez argued for the first time that the Estate of Deborah Cortez is an indispensable party to this action. 15. On December 19, 2016, the Probate Court of Travis County, Texas granted summary judgment against Mateo Cortez, dismissing "any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the 'Trust'), other than his claim for undistributed income from the Trust during the life of Deborah Cortez." The Texas court subsequently amended its judgment to include monetary sanctions against Mateo Cortez's attorneys, finding that the arguments which Mateo Cortez advanced in Texas were frivolous and were not warranted by existing law; the extension, modification, or reversal of existing law; or the establishment of new law. The Texas court sanctioned Mateo Cortez's attorneys in the amount of $65,130.76 for driving up Defendant Barry's legal fees in Texas with frivolous claims. 6 Conclusions of Law 16. Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, seeks to intervene in this action as a matter of right, pursuant to Rule 24( a)(2) of the West Virginia Rules of Civil Procedure. The rule states in pertinent part: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. W.Va. R. Civ. P. 24. 17. "West Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction which is the subject of the action; (3) disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties." Syl. Pt. 2, State ex rel. Ball v. Cummings, 208 W.Va. 393,540 S.E.2d 917(1999). The Court finds that the movant cannot meet any of the above criteria. First Prong under Rule 24(a)(2) Motion is Not Timely 18. First, the Court finds that the Motion is untimely. a. "While Rule 24 of the West Virginia Rules of Civil Procedure provides for the intervention of parties upon a timely application, the timeliness of 7 any intervention is a matter of discretion with the trial court." Syl. Pt. 3, State ex rel. Ball v. Cummings, 208 W.Va. 393,
540 S.E.2d 917(1999). b. The Supreme Court of Appeals of West Virginia has upheld refusals to grant intervention where the applicant had actual knowledge of a case but failed to move for intervention until after entry of judgment. See West Virginia Public Employees Ins. Bd. v. Blue Cross Hosp. Service, Inc.,
180 W. Va. 177,
375 S.E.2d 809(1988) (motion to intervene untimely when filed three months after entry of dismissal order and applicants knew or had reason to know of the pendency of the action prior to judgment); Pauley v. Bailey, 171 W.Va. 651,
301 S.E.2d 608(1983) (permissive intervention) (motion to intervene untimely when filed almost one year after evidentiary hearings had closed and seven months after entry of trial court's orders). c. It is undisputed that, at all times relevant to this action, Mateo Cortez was the sole heir and beneficiary of the Estate of Deborah Cortez, and had sole authority to act on its behalf. d. It is also undisputed that Mateo Cortez had actual notice of this action as of December 4, 2015, but did not attempt to intervene on behalf of the Estate of Deborah Cortez, or argue that the Estate of Deborah Cortez was an indispensable party to this action, until after this Court granted summary judgment against him and dismissed him as a defendant. 8 e. It is also undisputed that Mateo Cortez did not actually attempt to intervene in this matter on behalf of the Estate of Deborah Cortez until June 12, 201 7 - nine (9) months after entry of judgment against Mateo Cortez. Second Prong under Rule 24(a)(2) Applicant Does Not Have an Interest 19. Second, the Court finds that the applicant does not have an interest in the property which is the subject of this action. a. This action seeks to determine the proper distribution of the Trust assets which remained after the death of Deborah Cortez. The applicant is Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, so the question is whether the Estate of Deborah Cortez has an interest in the undistributed assets of the Trust. b. However, as this Court and the Probate Court of Travis County, Texas have already ruled, Mateo Cortez and the Estate of Deborah Cortez do not have an interest in the assets of the Trust. c. This Court has already ruled that Deborah Cortez's interest in the Trust was governed by Article VIII, Section B of the Trust instrument, which states that if Deborah "is living on the date of the death of the second one of us to die," then "during Deborah's life" she was entitled to an annual distribution of $25,000.00 of the Trust principal, and a quarterly distribution of the net Trust income. Article VIII, Section C of the Trust instrument sets forth how the remaining Trust assets are to be distributed upon Deborah's death, which is one- 9 half to the heirs at law of William D. Short and one-half to the heirs at law of Phyllis D. Short. Accordingly, the Estate of Deborah Cortez has no interest in the assets of the Trust because the plain and unambiguous language of the Trust instrument afforded no interest to Deborah upon her death. d. Despite the fact that the Motion is not timely and despite the fact the applicant does not have an interest in the subject property, the proposed intervenor complaint nonetheless alleges that the Estate of Deborah Cortez has an interest in the Trust because Article VIII, Section A, Paragraph 2 of the Trust instrument invalidated the remaining provisions of Article VIII. This Court disagrees. 1. Article VIII, Section A sets forth a senes of one-time distributions of cash, including a distribution to Deborah Cortez under the following condition: 2. Cash Distribution to Deborah. If our daughter, DEBORAH A. CORTEZ, is living and legally competent, the trustee shall distribute to her the sum of fifty thousand dollars $50,000.00 as soon as practicable after the death of the second one of us to die. If Deborah is not then living or is not legally competent, then this gift shall lapse, and the remainder of the trust estate shall be administered as provided below. The applicant alleges that the second sentence of this provision dictates that the remainder of the Trust assets are only to be administered under the subsequent sections of Article VIII if "Deborah is not then living or is not legally competent." The applicant therefore alleges that "the Trust is ineffective for the disposition of the Trust assets at the time of Phyllis D. 10 Short's death since Deborah Cortez was alive and competent," that the remainder of the Trust therefore lapsed, and that all of the assets of the Trust passed by intestacy through the Estate of Phyllis D. Short to Deborah Cortez as her sole heir. 11. The Court, however, rejects this argument as frivolous and contravened by the plain language of the Trust instrument. By its terms, the second sentence of Article VIII, Section A, Paragraph 2 of the Trust instrument pertains solely to whether the cash distribution to Deborah under that paragraph lapses; and does not govern the "Continuing Trust for Deborah" established under Article VIII, Section B "[i]f our daughter, Deborah A. Cortez, is living on the date of the death of the second one of us to die." It is undisputed that Deborah was alive when Phyllis D. Short died; the Court must give effect to the intent of the settlors in creating the Trust, and will not read the Trust instrument as "ineffective for the disposition of the Trust assets" when the plain language of the Trust does in fact provide for the disposition of the Trust assets. Third Prong under Rule 24(a)(2) Disposition of the Action Does Not Impair Applicant's Ability to Protect Interest 20. Third, the Court finds that its disposition of this action has not impaired or impeded the applicant's ability to protect its interest in the property which is the subject of this action. This Court and the Texas court have already ruled that Mateo Cortez and the Estate of Deborah Cortez do not have an interest in the undistributed assets of the Trust. Pursuant to Article VIII, Section B of the Trust instrument, Deborah Cortez only possessed a life interest in 11 the assets of the Trust, and that interest extinguished when she died; and the Trust instrument makes no provision for Mateo Cortez at all, despite the fact that the settlors clearly knew that Mateo Cortez and Deborah were married. Fourth Prong under Rule 24(a)(2) Applicant Adequately Represented 21. Fourth, the Court finds that the applicant was adequately represented by Mateo Cortez, who is the administrator and sole heir of the Estate of Deborah Cortez. a. As to adequacy of representation by existing parties, "generally courts compare the interests asserted by the proposed intervenor with the interests of the existing party. If the proposed intervenor's interest is not represented by the existing party, or the existing party's interests are adverse to those of the proposed intervenor, intervention should be granted .... [However], if the interests are identical, intervention should be denied unless there is a compelling showing as to why the existing representation is inadequate." State ex rel. Ball v. Cummings, 208 W.Va. 393, 403,
540 S.E.2d 917, 927 (1999) (internal citations omitted). b. Mateo Cortez, in both his personal capacity and in his capacity as the Personal Representative of the Estate of Deborah Cortez, have identical interests in this action: both seek an order directing that all the assets of the Trust be distributed to Mateo Cortez, either through direct distribution to Mateo Cortez personally or indirectly through distribution to the Estate of Deborah Cortez, which then flows through to Mateo Cortez personally as its sole heir. This identity of interest is clear from the undisputed fact that Mateo Cortez controls 12 every decision made on behalf of the Estate of Deborah Cortez, and is the only heir and beneficiary of the estate. c. Additionally, Mateo Cortez's attorneys represent him in both his individual capacity and in his capacity as the Personal Representative of the Estate of Deborah Cortez, which would violate the West Virginia Rules of Professional Conduct if their interests were adverse in any way. See W.Va. R. Prof. Conduct § 1. 7 (simultaneous representation of adverse parties in litigation is a non-waivable conflict of interest). Ruling For the reasons set forth above, and as stated more fully upon the record, this Court DENIES the Motion to Intervene filed by Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez. The Court notes that Defendant Connie Lou Keith Barry has filed a motion for sanctions against Mateo Cortez, in either his personal capacity or in his capacity as the Personal Representative of the Estate of Deborah Cortez, and his attorneys. The Court's ruling in this Order does not address, moot, or otherwise resolve that motion. This Court ORDERS the Clerk to forward certified copies of this Order to all counsel of record and pro se parties. 13 PREPARED BY: Aaron C. Boone (WVSB #9479) Counsel for Defendant Connie Lou Keith Barry APPROVED FOR ENTRY: Rs . Flv.-~ k>-, A<:. B [per email authorization 7/1 7/1 7] Robert S. Fluharty, Jr. (1220) J. Nicholas Barth (255) Counsel for Plaintiff /--._. L, fY1~ by .A ,C. 6 · [per email authorization 7/14/17] Leslie L. Maze (8072) Counsel for Defendants Donald Leaman Whited, Michael Ray Whited, Sheila Pettrey, Tywanna Pettrey, Amanda Pettrey, Terry Lee Whited, and Sherry Lynn Whited Salsbury ~ JYµ.y'
-··:·:'·::.' · - · ~:_J'.{"~J:/~fl):_:~:i;_.-._,_, ·.--:.·,' \: _- ;:.,_'.- '· .-:--'2--::.:.-``:;:-;~:~-·------ ·-:;.. ,... '"' ·.-., ~·~ - - ·:·· -;~ -- _________ .____ _ Agreed? (See TRAP 28.2): X 0Yes 0No Appeal should receive precedence, preference, or priority under statute or rule: X 0Yes 0No If yeo, plo..o 1pocify 1totutory or other basis for such status: !'.<,·: :>·::-<~: :-:·:_·_.,- -<'-·:_ -~- ::,,,_·:~<(?·;,_,g:. 3_:"> _:,. ;(, -; "c_·,p ,:, .: , :>·)d:-~!:;;3Jj2.;: ··t-· '.)'!: ;;t,;: .:- .:;,;; ·,: :,``·``,'.: :<: Does this caseinvolveanarnountuuder$100,000? X D Yes 0No X Yes 0No Judgment or order disposes of all parties and issues: D due to severance Appealfromfinaljudgment: X Yes 0No D Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? X No D Yes D Motion for New Trial: X 0Yes D No If yes, date filed: 01/19/2017; 3/14/2017 Motion to Modify Judgment: X 0Yes 0No If yes, date filed: 01/16/2017; granted on 2/10/2017 Request for Findings of Fact 0Yes 0No If yes, date filed: and Conclusions of Law: oYes 0No If yes, date filed: Motion to Reinstate: 0Yes 0No If yes, date filed: Motion under TRCP 306a: Other: Motion for Reconsideration; filed 1/19/2017 and 3/14/2017 incorporated into Motion for New Trial If other, please specify: Was Statement of Inability to Pay Court Costs filed in the trial court? X 0Yes 0No If yes, date filed: Was a Motion Challenging the Statement filed in the trial court? X 0Yes 0No If yes, date filed: Was there any hearing on appellant's ability to afford court costs? X No 0Yes D Hearing date: Did trial court sign an order under Texas Rule of Civil Procedure 145? X 0Yes 0No Date of order: If yes, trial court finding: D Challenge Sustained D Overruled Page 2 of 9 Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? X 0Yes 0No If yes, please attach a copy of the petition. Date bankruptcy filed: Bankruptcy Case Number: Probate Court No. 1 Clerk's Record: Travis County Clerk County: Travis County Trial Court Clerk: X County D District D Trial Court Docket Number (Cause No.): C-1-PB-16-002348 Was clerk's record requested? 0Yes X 0No If yes, date requested: Trial Judge (who tried or disposed ofcase): If no, date it will be requested: 6/12/2017 First Name: Guy Were payment arrangements made with clerk? Middle Name: arrangements will be made 0Yes 0No 0Indigeut Last Name: Herman 6/12/2017 (Note: No request required under TRAP 34.S(a),(b)) Suffix: Address I: 1000 Guadalupe Address 2: Room 217 City: Austin State: Texas Zip+4: 78701-2328 Telephone: 512-854-9258 ext. Fax: 512-854-4418 Email: Reporter's or Recorder's Record: Is there a reporter1s record? X 0Yes D No Was reporter's record requested? X 0Yes 0No Was there a reporter's record electronically recorded? D Yes D No If yes, date requested: If no, date it will be requested: 6/12/2017 Were payment arrangements made with the court reporter/court recorder? DYes D No 0Indigent Will arrange payment on 6/12/2017 Page 3 of 9 X Court Reporter D D Court Recorder D Official D Substitute First Name: Melissa Middle Name: Last Name: Voigt Suffix: Address 1: 1000 Guadalupe Address 2: City: Austin State: Texas Zip+4: 78701-2328 Telephone: 512-854-4418 ext. Fax: Email: melissa.voigt@traviscountytx.gov . AddRep91:\er • Supersedeas bond filed:OYes D X No If yes, date filed: Will file: X Yes D No D Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? D Yes D X No If yes, briefly state the basis for your request: Should this appeal be referred to mediation? OYes X ONo If no, please specify: Mediated post-judgment now on appeal Has the case been through an ADR procedure? DY X es D No If yes, who was the mediator? Alice Oliver-Parrott What type of ADR procedure? mediation At what stage did the case go through ADR? X Post-Trial D Pre-Trial D D Other Ifother, please specify: Type of case? Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Improper summary judgment, improper award of sanctions, and improper severeance How was the case disposed of? Through summary judgment and severance from remaining claims Summary of relief granted, including amount of money judgment, and if any, damages awarded. If money judgment, what was the amount? Actual damages: Punitive (or similar) damages: Sanctions award against attorneys only for $65,130.76 Page 4 of 9 Attorney's fees (trial): none Attorney's fees (appellate): none Other: If other, please specify: Will you challenge this Court's jurisdiction? 0Yes X No D Does judgment have language that one or more parties "take nothing"? D Yes X No D Does judgment have a Mother Hubbard clause? 0Yes D X No Other basis for finality? "disposes of all claims and parties and is final and appealable" as to severed case Rate the complexity of the case (use I for least and 5 for most complex): D 1 D2 D 3D4 D5 Please make my answer to the preceding questions known to other parties in this case. 0Yes D No Can the parties agree on an appellate mediator? D Yes D No If yes, please give name, address, telephone, fax and email address: Naroe Address Telephone Fax Email Languages other than English in which the mediator should be proficient: Naroe of person filing out mediation section of docketing statement: List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style. Docket Number: 03-17-00044-CV Trial Court: Travis Count Probate No. 1 C-1-PB-16-002348 Style: Mateo Cortez, as Representative of the Estate of Deborah Cortez Vs. Sandra Flesher Brown et al. Page 5 of 9 The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court. The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? D Yes D X No Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? 0Yes 0No Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program. If you have not previously filed an Statement of Inability to Pay Court Costs and attached a file-stamped copy of that Statement, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? D Yes D No These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml. Are you willing to disclose your financial circumstances to the Pro Bono Committee? D Yes D No If yes, please attach an Statement of Inability to Pay Court Costs completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of a Statement under oath as to your financial circumstances. Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary). Signature of counsel (or pro se party) Date: 6/9/2017 Printed Name: William J. Brotherton, Attorney for Appellant State Bar No.: 00789989 Electronic Signature; (Optional) Page6 o· 9 The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on Signature of counsel (or pro se party) Electronic Signature: (Optional) William J. Brotherton, Attorney for Appellant State Bar No.: 00789989 Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state: (1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney Please enter the following for each person served: Please see attached Certificate of Service. Date Served: Manner Served: First Name: Middle Name: LastName: Suffix: Law Firm Name: Address 1: Address 2: City: State Texas Zip+4: Telephone: ext. Fax: Email: If Attorney, Representing Party's Name: Page 7 o1 9 X D Person * D Organization (choose one) D Additional Counsel: Lead Attorney First Name: William First Name: Mateo Middle Name: J. Middle Name: Last Name: Brotherton Last Name: Cortez Suffix: Suffix: Law Firm Name: Brotherton Law Firm Pro Se: 0 Address 1: 2340 FM 407 Address 2: Suite 200 * As Personal Representative of the City: Highland Village Estate of Deborah Cortez State: Texas Zip+4: 75077-3070 Telephone: 972-317-8700 ext. Fax: 972-317-0189 Email: william@brothertonlaw.com SBN: 00789989 D X Person s D Organization (choose one) D Additional Counsel: Lead Attorney First Name: Brian First Name: Sandra Flesher Brown Middle Name: T. Charlotte Flesher Ash Middle Name: Charlene Flesher Johnston Last Name: Thompson Last Name: Connie Lou Keith Barry Suffix: Suffix: Randall Wayne Davis Law Firm Name: Hopper Mikeska, PLLC Virginia Villers Pro Se: 0 Charles Roberts Address 1: 400 West 15th Street Lisa A. Smith Address 2: Suite 408 Patricia Chapman Betty J. Marks Webb City: Austin James Berl Marks State: Texas 78701-1654 Zip+4: Linda Murray Telephone: 512-615-6195 ext. Thomas Wayne Marks Fax: 512-615-6194 Donald Leman Whited Email: bthompson@hoppermikeska.com SBN: 24051425 Page 8 of 9 Service via Filetime.com E-Filing/E-Service on: Amanda G. Taylor Rose Cohen State Bar No. 24045921 State Bar No. 24031961 ataylor@beckredden.com rose@cohenlegalservices.com Beck & Redden, LLP Mark Cohen 515 Congress Avenue, Suite 1750 State Bar No. 24031961 Austin, TX 78701-3526 mark@cohenlegalservices.com 512-708-1000 The Law Offices of Mark Cohen 512-708-1002 fax 805 W. 10th Street, Suite 100 Austin, Texas 78701-2029 Brian T. Thompson 512-474-4424 State Bar No. 24051425 512-472-5444 fax bthompson@hoppermikeska.com Hopper Mikeska, PLLC Attorneys for Linda Murray in her capacity 400 W. 15th Street, Suite 408 as Successor Trustee Austin, TX 78701-1654 512-615-6195 Aaron C. Boone 512-615-6194 fax WV Bar No., 9479 aboone@bowlesrice.com Attorneys for Appellees Bowles Rice LLP Sandra Flesher Brown 501 Avery Street, P.O. Box 49 Charlotte Flesher Ash Parkersburg, WV 26102-0049 Charlene Flesher Johnston 304-420-5501 Connie Lou Keith Barry 304-420-5587 fax Randall Wayne Davis Virginia Villers Attorney for Connie Lee Keith Barry Charles Roberts Lisa A. Smith Patricia Chapman Betty J. Marks Webb James Berl Marks Linda Murray Thomas Wayne Marks Donald Leman Whited Page 9 of 9
Document Info
Docket Number： 03-17-00365-CV
Filed Date： 12/13/2017
Precedential Status： Precedential
Modified Date： 4/17/2021