describing the Princess Lida doctrine as dicta
How later courts described this case
- describing the Princess Lida doctrine as dicta
- 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."
- 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
- 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
Written by the judges who cited it.
The opinion
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
-------- ·~ ...
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DEBORAH A. CORTEZ
§
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STArE OF TEXAS
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