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

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'\
---
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, 179 W. Va. 48, 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
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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 $89.~· a. me ~ion hmve totaling
~
2
Bncnmb:~::~:: Nono .
''No claims are due and owing by the !Jft``a``l!AJJ
LIABmfi:JE~ \
"Dlstrlbutee states that tho facts •Of4"1ir1 tb~
RTJlZ, Deceased.
{l`` are true and prays that this Affidavit be
filed ln the Small Estate Records; tha.1tjtt}l''iii\_b)~fuved by.I (o0.9urt; and the Cle.r. k Issue certified copies
tltereof In order to allow tho Dl~r1;1(o Js>-e~.s~t ·tJio same to persons owing. money to the Estate of
DJlllOMAR A.COlllW, ~•,lJ;EIJORAH A, CORTEZ, §
J>ECEASED §
ORDER APPROVING SMALL ESTATE AFFIDAVIT
011 this tiny, tbe Co11rt considered f11e Affidavit of MRteo ~ D l ~ t of the
"bove eslate aud the Court finds thnt the Affidavit compll t . lb tii ; ~fu tii'inl provisions
qualifies under the provisions oftbe Probate Cod a,S:111(E\t11l 1111d that the
Dlstrlb11lee, Mateo Co1·tet Is entitled t o , , ~ , ~ / , of the decedent, to tho
l.ef.~.~,~.o~ttlmes.lend nnd exemp. t p1•ope1.·ty.
extent tl1e assets exce. eel lw.own llnb'fi.
Nothing he1•eln lransfe1'S 1111``1 ``~pl to tl1e l'enlfy thnt ls hon1este1ul1 nor
".ffec. Is lb.e dlsposlllon of pr{``.r n w.Ill .111· other tes.tamentary lnsfru. ment, nor does
t.lae Cou·r·t m.·allnify iliiit ori :Qctobct 3, 2014, ,4. we nn.d i:lil'llltt copy of lltis l'Jrigtnai Atisll'cr W{III
~,rv~ g/a!i1Jii$llo1fllW11rJ4q,•l~ilii i!o Co~ri$~l·ii£Rcwril <1r partI~ ofreci,rd 1JSf~lnws:
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~ll~# !~.e followl11g:
L Ma\e!i O>rte~ ,$iJ~llle proi:eedlngofbebt\~h Cortez lq Tra\lis Co~J\ty,.
.Texas.
·' 'li. Mateo Cortez Wdtild.cllll~ett tli~.t ij1e ®uses of.alltiQn,ralstd b)' Liridn Mu!'l'lly. a.re baucii•b)'
flmltRtions, Th9 clalmil".f''pf cpnyeuill!n Md CClllllPitl\CY are barred l!y the two year s~tilte
·11t limitations,
7. ·Mateo Cortez would ils$¢/t llil!t lhe all elailUS i!r cauies of action related to the eredit
<illJ~r ftus.t arc 'b'!1-ed.by 1Ylliycr anl//or mOil~atJ,;,.~. $peolflcqlly, bi:!lh LlntJa ll!Ui'!'!!}'
:Md Qeb,;,mh Coriflt siwted 8Mlpplieatlon :with Wells: Fa1·go related ,to the tru~l accqunt for
,creditshfiltertl'.llsl.011 or iiWutMay 23,'.lOOl, Thlis, biilh,i:Q.·lrirs,tiies knew (Jr C(11Jldl1aV11
•· · ·~wn tJl/'bu/ '(if!)' if1ii(,rf! ric/Nf!f t1Ulti.s (l~i:P'lint/1~111 1hP1 drr1e (k/ily 2J, zQQj), >'\ily
'(411,ure.lo actc3s· ~·~Q•.ln.1steeaHo lhe cl't!,dlt,shelter trus.land ille disbursements·ofihe,credlt
shelter tmst Wils aol11tei1tfooal a.Ct cit\ Uie,.p~l't ofLiM!i Mutta,r.
ii. :Mateo co~z; pi~oos 11$· ah pff$~t al\~ ¢t~dll the le!i\l~ ot t11e \¥Vbc~bt<> Liyi11g Tiust a))d ·
. Jts (~l',ln~;that'"(o,uld ofl'set.awmoriies distributed 10 Deborah Cortez.,or Mateo C!!rte;c
a,. $$,Q,Q,QO w•s 10 be d.l~ldll.llt~d. 10. Pi;P9 A. I'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. I think 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. I haven'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. I am.
15 Q. Are you familiar with Chapter 10 of the Civil
16 Practices and Remedies Code?
17 A. I am.
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?
21 A. I believe 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?
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1 A. I am.
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
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1 that Ms. Cortez was over the age of 35 at the time Phyllis
2 Short died, correct?
3 A. I believe 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. I have 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?
21 A. I believe 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.)
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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. I do.
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. I believe 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. I think 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
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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. I do.
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. I do.
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?
24 A. I don't know if I can agree with that statement.
25 I'm not sure what you're asking me to agree with.
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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
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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
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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
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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. I couldn'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.
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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?
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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
24 A. I said yes.
25 Q. -- attorney of record -- I'm sorry?
MELISSA VOIGT, CSR
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1 A. I said yes.
2 Q. I didn't hear you say yes to that.
3 A. I did.
4 Q. So I think we've established that it's in the
5 original petition. Can we agree to that?
6 A. I believe so.
7 Q. The Original Petition in Intervention?
8 A. I believe 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?
23 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
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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?
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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 --
16 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?
24 A. It is the same.
25 Q. Okay. So again, just to make sure that that
MELISSA VOIGT, CSR
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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.
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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. I believe 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
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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. I do.
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
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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?
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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
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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,
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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. I hadn'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
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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.
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1 Q. Okay. And the Judge in the West Virginia case
2 issued a summary judgment against that claim, correct?
3 A. I believe 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
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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?
16 A. I do.
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. I do.
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
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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. I was 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?
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1 A. I don'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?
18 A. I think 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 --
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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
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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. I think 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,
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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. I don'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
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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?
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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
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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.
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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?
18 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
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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. I think 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. I am.
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
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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. I do.
9 Q. And you understand when I say postponement
10 provision that's what I'm speaking of?
11 A. I do.
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. I can. 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
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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. I don'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
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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?
24 A. I would assume it was talking about any
25 beneficiary because that's what's named.
MELISSA VOIGT, CSR
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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. I mean, I'm -- I'm not -- I understand that people
MELISSA VOIGT, CSR
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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. I did some research. We had West Virginia
9 counsel.
10 Q. Okay.
11 A. I believe 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?
16 A. I think he said he had.
17 Q. Okay.
18 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
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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. I mean, 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
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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. I said that's my understanding.
13 Q. Okay. Regardless of the capacity issue
14 A. I wasn'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
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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
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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
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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
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1 A. Uh-huh.
2 Q. How many years did you serve in the banking
3 industry?
4 A. 39 years.
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
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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
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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?
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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.
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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.
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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
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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. I said, "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
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1 know how much money was in the trust?
2 A. I had 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.
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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
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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.
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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?
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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.
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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?
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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
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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
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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?
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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.
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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. I had 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. I mean, 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. I told 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?
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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
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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. I thought it was going really good until they come
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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?
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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
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1 argued that he was entitled to all of the trust?
2 A. I knew 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. I was 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 --
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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
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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
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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.
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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
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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?
23 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
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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
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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?
18 A. I thought, 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?
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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?
19 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?
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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.
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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. I just 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?
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1 A. I do 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. I have 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
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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
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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
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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
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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
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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
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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. I believe 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
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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. I would -- 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. I will 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.
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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
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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
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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.
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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?
16 A. I think 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
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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.
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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.)
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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. If the account Is In more than one name, see the Instructions for Una 1 and the chert on page 4 for I Employer ldsntifloatfon munber
guidelines on whose number to enter.
4 5 -4468973
Certffication
Under penalties of perjury, I certify that:
1. The number shown on this form Is my correct taxpayer Identification number (or I am waltlng for a number to be Issued to me); and
2. I am not subject to backup wlthholdlng because: (a) I am exempt from backup withholding, or {bl I have not been notified by the Internal Revenue
Service {IRS) that I am subject ta backup withholding as a result of a failure to report all Interest or dividends, or (c) the IRS hes notified me that I am
no longer subject to backup withholding; and
3. I am a U.S. citizen or other U.S. person (defined below); and
4. The FATCA code(s) entered on this form (ff anY} Indicating that I am exempt from FATCA reporting Is correct,
Certification insbucUona. 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
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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):
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• 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
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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
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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
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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.
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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