# Mateo Cortez, as Representative of the Estate of Deborah Cortez v. Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray > Texas Court of Appeals, 3rd District (Austin) · December 13, 2017 URL: https://www.frixlaw.com/law-library/cases/4230862 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** December 13, 2017 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4230862 ## How later opinions describe it (automated extraction) - describing the Princess Lida doctrine as dicta ## Opinion text ACCEPTED 03-17-00365-cv 21266118 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/13/2017 1:13 PM JEFFREY D. KYLE CLERK NO. 03-17-00365-CV FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 12/13/2017 1:13:06 PM JEFFREY D. KYLE Clerk MATEO CORTEZ, AS REPRESENTATIVE OF THE ESTATE OF DEBORAH CORTEZ, APPELLANT, V. SANDRA FLESHER BROWN; CHARLOTTE FLESHER ASH; CHARLENE FLESHER JOHNSTON; CONNIE LOU KEITH BARRY; RANDALL WAYNE DAVIS; VIRGINIA VILLERS; CHARLES ROBERTS; LISA A. SMITH; PATRICIA CHAPMAN; BETTY J. MARKS WEBB; JAMES BERL MARKS; LINDA MURRAY; THOMAS WAYNE MARKS; AND DONALD LEMAN WHITED, APPELLEES. Appeal from the Probate Court No. 1 of Travis County, Texas, Trial Court Cause No. C-1-PB-16-002348 APPENDIX TO APPELLANT’S RESPONSE TO APPELLEES’ MOTION TO DISMISS FOR WANT OF JURISDICTION Respectfully submitted, BROTHERTON LAW FIRM By: /s/ William J. Brotherton William J. Brotherton State Bar No. 00789989 Shawn M. Brotherton State Bar No. 24064956 BROTHERTON LAW FIRM 2340 FM 407, Suite 200 Highland Village, TX 75077 Phone: 972-317-8700 Fax: 972-317-0189 Susan S. Vance State Bar No. 24036562 susan@svancelaw.com SUSAN VANCE LAW PLLC 201 W. 5th Street, Suite 1100 Austin, Texas 78701 Phone: 512-736-7295 Fax: 866-523-5449 ATTORNEYS FOR APPELLANT I. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appendix to Appellant’s Response to Appellees’ Motion to Dismiss for Want of Jurisdiction was forwarded, on this 13th day of December, 2017, to the following: Amanda G. Taylor Craig Hopper Beck Redden LLP Brian T. Thompson 515 Congress Avenue, Suite 1900 Claire D. East Austin, TX 78701 400 W. 15th Street, Suite 408 Austin, TX 78701 Attorneys for Appellees: Linda Lou Marks Murray, individually; Charlene Rae Flesher Johnston; Charlotte Fae Flesher Ash; Sandra Kay Flesher Brown; Thomas Wayne Marks; James Berl Marks; Betty J. Webb; Patricia A. Chapman; Lisa A. Smith; Charles Bruce Roberts, Jr., Virginia Ann Roberts Villers; Randall Wayne Davis; Sherry Lynn Whited Salsbury; Terry Lee Whited; Michael Ray Whited; Donald Leaman Whited; and Connie Lou Keith Barry /s/ William J. Brotherton William J. Brotherton APPENDIX Tab Document A. June 26, 2017, Letter from Aaron C. Boone (filed in West Virginia case) B. February 14, 2017, Defendant Connie Lou Keith Barry’s Motion for Leave to File Surreply to Give Notice of Developments Relating to the Texas Litigation (filed in West Virginia case) C. June 23, 2017, Defendant Connie Lou Keith Barry’s Response in Opposition to Motion to Intervene and Request for Sanctions (filed in West Virginia case) D. June 23, 2017, Defendant Connie Lou Keith Barry’s Response in Opposition to Cortez’s Post-Judgment Motion to Dismiss (filed in West Virginia case) E. June 22, 2017, Response of Linda Murray, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, to the Motion to Intervene Filed by The Estate of Deborah Cortez F. June 27, 2017, Finding of Fact and Conclusions of Law (entered in West Virginia case) G. July 27, 2017, Memorandum in Support of Defendant Connie Lou Keith Barry’s Motion for Sanctions (filed in West Virginia case) H. September 19, 2017, Order Denying Defendant Mateo Cortez’s Motion to Alter of Amend (entered in West Virginia case) I. September 19, 2017, Order Denying Motion to Dismiss (entered in the West Virginia case) J. September 19, 2017, Order Denying Motion to Intervene (entered in the West Virginia case) K. June 9, 2017, Docketing Statement 2 APPENDIX A 600 Quarrier Street Charleston, W Charleston, West 25301 est Virginia 25301 tl Southpointe Town Center Southpointe 1800 Main 1800 Main Street, Street, Suite Suite 200 200 101 South Queen Street West Martinsburg, W est Virginia 25401 Bowles Riceur Bowles A Rice T T O R N E Y S /J\T ATTORNEYS \ T LJ\\V m\v' l.I.I* Canonsburg, Pennsylvania Canonsburg, 1217 Pennsylvania 15317 1217 Chapline Chapline Street 15317 Wheeling, West Wheeling, West Virginia 26003 Virginia 26003 7000 Hampton Center 501 Avery Street 501 Street Morgantown , W Morgantown, West est Virginia 26505 Parkersburg , West Virginia 26101 West 480 W est Jubal Early Drive, Drive, Suite 130 130 Parkersburg, 22601 Winchester, Virginia 22601 Post Office Post Office Box 49 Parkersburg, West Parkersburg, W est Virginia 26102 Virginia 26102 (304) 485-8500 (304) www.bowlesrice .com www.bowlesrice.com June 26, 2017 Aaron C. Aaron C. Boone Boone E-MailAddress: E-Mail Address: Telephone - (304) Telephone (304) 420~550l 420-550 I aboone@bowlesri ce.com aboone@bowlesrice.com Facsimile (304) 420-5587 Facsimile - (304) 420-5587 James W. Marshall, James W. Marshall, III III VIA VIA E-MAIL E-MAIL AND AND FAX FAX Michael W. Taylor Michael W. Taylor BAILEY BAILEY && WYANT, WYANT, PLLC 500 500 Virginia VirginiaStreet StreetEast, East, Suite Suite 600 600 Post Post Office Office BoxBox 3710 3 710 Charleston, Charleston, West Virginia Virginia 25337-3710 25337-3710 j1narshall@baileywvantcom jmarshal1 (ci),baileywyant.com William WilliamJ .J.B1'othe1'ton Brotherton Shawn Shawn M. Brotherton Brotherton BROTHERTON BROTHERTON LAW LAW FIRM 2340 FM 2340 FM407, 407, Suite Suite 200 200 Highland HighlandVillage, Village,Texas Texas75077 75077 william@b1'otlierto11law.com wil Iiam@brothertonlaw.com shaw1i@b1.othe1'tonlaw.com shawn@brotherton law.com Re: SANCTIONS Re: SANCTIONS NOTICE NOTICE Linda LindaMurray, Murray,as asSuccessor Trustee of Successor Trustee of the the William D. Short William D. Short and Phyllis D. and Phyllis D. Short Shott Revocable Living Trust Revocable Living Trust Dated Dated April April30, 30,1991 1991 v.v. Linda LindaLou Loul\/Iurray Murray etet al. al. Civil CivilAction ActionNo. No.15-C-28, l 5-C-28,Circuit CircuitCourt Cou1tot`Wirt of WirtCounty, County, West West Virginia Virginia Ladies &&Gentlemen: Ladies Gentlemen: The The purpose purpose of of this letter letter is is to to put put you you and and your client client on on notice notice that that my my client clientintends intends to to seek seek sanctions pursuanttotoRule sanctions pursuant Rule 11ll ofofthe theWest West Virginia VirginiaRules RulesofofCivil CivilProcedure, Procedure,ororpursuant pursuant to to the the Court's Court'sinherent inherent authority authorityto to sanction sanction bad bad faith litigation litigationconduct, conduct, unless unless your client client immediately immediately ceases and desists ceases and desistsfrom from continuing continuing to to pursue pursueclaims claims toto the the Wi William lliam D. D. Short Short and and Phyllis Phyllis D. D. Short Shott Revocable Revocable Living Living Trust TrustDated Dated April April30,30,1991, 1991,either eitherininhis hispersonal personal capacity capacity oror by by proxy proxythrough through "the "theEstate Estate of ofDeborah Deborah Cortez." Cortez." The The terms terms Qfofthe the Trust Trust instrument instrumentare are crystal crystalclear, clear,and andhave have been been ruled ruled upon uponas as aa matter matterof law by oflaw byboth both the the Circuit CircuitCourt CourtofofWirt WirtCounty, County,West WestVirginia Virginiaand andthe theProbate Probate Court Comt ofofTravis Travis It}' Bowles 13 Bowles Rice,,,. BAILEY BAILEY && WYANT, PLLC WYANT, PLLC BROTHERTON LAW FIRM BROTHERTON LAW FIRM June 26, 2017 2017 Page Page 2 County, County, Texas. Texas. TheTheplain plainlanguage language ofofthe the Trust Trust inst1u1nent makesnonoprovision instrument makes provisionfor foryour yourclient. client. Your client client has has no no claim claimto tothe the Trust, Trust,either eitherininhis hispersonal personal capacity capacity or oras as representative representative ofof "the Estate of Estate of Deborah Deborah Cortez." Cortez." YourYourclient's client'sclaims claimstotothethecontrary contrarylack lackany anybasis basis ininthe the Trust Trust instrument instrument or or support suppo1i under under the the law, law, and and have already been have already beensanctioned sanctionedininTexas. Texas. Unless Unless your your client client withdraws hishis frivolous frivolouspleadings, pleadings, iny myclient clientwill willseek seekthe thesame same sanctions West Virginia. sanctions in West Virginia. The The Circuit Circuit Court Court of ofWirt WirtCounty, County,West WestVirginia Virginiagranted grantedsuininary summaryjudgment judgmentagainst agai nst your yo ur client clientononSeptember September 15, 15, 2016. 2016 . TheThe Probate Probate Court of of Travis Travis County, Co unty, Texas Texas followed fo llowed suit suit on on December December 19, 19, 2016. 20 16. Both Bothcourts courts rejected rej ected your your client's client' s claims, claims, and and pursuant pursuant to the parties' Rule the parties' Rule l11l Agreement Agreement you you are are bound bound to abide abide by those rulings. Nonetheless, those rulings. you continue Nonetheless, you continue to to file file lrivolous frivolous pleadings pleadings in in West West Virginia, Virginia,with withthetheadmitted admittedpurpose purpose of ofobstructing obstructing the the Court's Court' s resolution resolution of ofthe the Trustee's Trustee' s motion motion for for summary summary judgment. Moreover, Moreover, itit is is clear clear that your client is is intentionally intentionally driving driving up up the the cost cost of' of this litigation litigationtotoretaliate retaliateagainst against the the Trustee andand the the Trust's Trust's rightful rightful beneficiaries. beneficiaries. The The course course of ofaction action you yo u are are pursuing in in West West Virginia Virginiahas hasalready alreadybeen been found fo und by by the the Texas Texas court court to to be be frivolous frivolous as as aa matter matter ofof law. law. Moreover, Moreover,there thereisissufficient sufficientevidence evidence to to make make aa compelling compellingcase case to to the the Court Court that that your your client's client'scontinued continued pursuit pursuitofofthis thismatter matterisisbeing being conducted conducted in in bad bad faith. faith. IfIfyour yourclient clientisisunwilling unwillingtotododothe theright rightthing thingand anddismiss dismisshishi sfrivolous frivolousclaims c laimstotothe the Trust, Trust, then then my m yclient clienthashasauthorized authorized meme to toaggressively aggressively pursue pursue sanctions against yo sanctions against youu for facilitating fac ilitating his hi s wrongful wrongfulconduct. conduct. This This matter matter is is set set for for hearing hearing tomorrow inin the the Circuit Circuit Court Court of ofWirt WirtCounty, County,West West Virginia. Virginia.I strongly I stronglyurge your urge your client clienttotoimmediately immediatelycease ceasehis hi sfrivolous frivo lousand andfutile futilepursuit pursuitofofthe the Trust, T rust, and and to to dismiss dismiss his his claims claims with withprejudice prejudice atat tomorrow's tomorrow' shearing. hearing. Sincerely, Sincerely, ~ - 6. C. /:Jo~ 60 Aaron c.C.BQOHQ A31`OI'l Boone AACB/ljp cB /ljp Enclosures E nclosures APPENDIX B Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 1 of 5 PageID #: 2099 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 2:16-cv-09951 JUDGE JOHNSTON LINDA LOU MURRAY, et al., Defendants. DEFENDANT CONNIE LOU KEITH BARRY’S MOTION FOR LEAVE TO FILE SURREPLY TO GIVE NOTICE OF DEVELOPMENTS RELATING TO THE TEXAS LITIGATION Defendant Connie Lou Keith Barry (“Mrs. Barry”), by counsel, pursuant to Rule 7.1(a)(7) of the Local Rules of Civil Procedure, files this motion requesting leave of this Court to submit a surreply to Defendant Connie Lou Keith Barry’s Motion to Remand & Motion for Attorney Fees and Costs (ECF No. 7) and to Defendant Connie Lou Keith Barry’s Response in Opposition to Defendant Mateo Cortez’s Motion to Dismiss (ECF No. 28). The purpose of the surreply would only be to provide this Court with supplemental authority from the Texas Litigation, to wit; the Order on Third Party Defendants’ Motion to Modify Judgment to Include Sanctions Award (“Order”) and Amended Final Judgment (“Amended Judgment”) entered on February 10, 2017 by the Travis County Probate Court No. 1 in Texas, under Cause No. C-1-PB-16-002348. (Attached as Exhibit 1 and Exhibit 2.) The attached Order granted the heirs-at-law’s motion that sanctions be assessed against William J. Brotherton and the Brotherton Law Firm for legal fees the heirs-at-law incurred in Texas Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 2 of 5 PageID #: 2100 defending against certain claims submitted by William J. Brotherton and the Brotherton Law Firm. The attached Amended Judgment orders William J. Brotherton and the Brotherton Law Firm, jointly and severally, to pay $65,130.76 in legal fees. The attached were entered only two (2) business days ago and were not available to Mrs. Barry at the time she filed Defendant Connie Lou Keith Barry’s Motion to Remand & Motion for Attorney Fees and Costs (ECF No. 7) or at the time she filed Defendant Connie Lou Keith Barry’s Response in Opposition to Defendant Mateo Cortez’s Motion to Dismiss (ECF No. 28). If the Court grants the instant motion for leave to file surreply, then Mrs. Barry asks that, provided it so pleases the Court, this motion and the attached Order and Amended Judgment be accepted as said surreply, so that no further documents relating to the instant motion need be filed by Mrs. Barry. Submitted this 14th day of February, 2017. /s/ Aaron C. Boone Aaron C. Boone (WVSB #9479) Bowles Rice LLP Fifth Floor, United Square 501 Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 aboone@bowlesrice.com Counsel for Defendant Connie Lou Keith Barry 2 Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 3 of 5 PageID #: 2101 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 2:16-cv-09951 JUDGE JOHNSTON LINDA LOU MURRAY, Defendants. CERTIFICATE OF SERVICE I hereby certify that on February 14, 2017, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following CM/ECF participants: Andrew R. Herrick, Esquire James W. Marshall , III, Esquire H. F. Salsbery, Esquire J. Nicholas Barth, Esquire I hereby certify that I have mailed the document by United States Postal Service to the following non-CM/ECF participants: Robert S. Fluharty, Jr., Esquire Fluharty & Townsend 417 Grand Park Drive, Suite 101 Parkersburg, WV 26105 Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 4 of 5 PageID #: 2102 Leslie L. Maze, Esquire Post Office Box 279 Elizabeth, WV 26143 William J. Brotherton, Esquire Brotherton Law Firm 2340 FM 407, Suite 200 Highland Village, Texas 75077 Joseph T. Santer, Esquire Santer and Santer Post Office Box 306 Parkersburg, WV 26102 Linda Lou Murray 197 Oakbrook Drive Mineral Wells, WV 26150 Sandra Kay Flesher Brown 99 Woodridge Drive Mineral Wells, WV 26150 Charlene Rae Flesher Johnston 37 Franklin Street Elizabeth, WV 26143 Charlotte Fae Flesher Ash 8653 White Swan Drive #104 Tampa, FL 33614 Virginia Ann Roberts Villers 28649 Alessandria Circle Bonita Springs, FL 34135 Charles Bruce Roberts, Jr. 487 Wilson Fork Elizabeth, WV 26143 Lisa Ann Rader Smith 96 Franklin Street Elizabeth, WV 26143 Patricia Ann Marks Chapman 2670 Pettyville Road Parkersburg, WV 26101 2 Case 2:16-cv-09951 Document 34 Filed 02/14/17 Page 5 of 5 PageID #: 2103 James Berl Marks 1093 S. Pleasant Hill Road Belleville, WV 26133 Thomas Wayne Marks 749 S. Long Run Road Belleville, WV 26133 Betty J. Webb 280 Bethel Road Parkersburg, WV 26101 Randall Wayne Davis 1663 Brookford Road Kernersville, NC 27284 Magen Elizabeth Whited 164 Joe Shore Drive Ravenswood, WV 26164 /s/ Aaron C. Boone Aaron C. Boone 3 8755086.1 Case 2:16-cv-09951 Document 34-1 Filed 02/14/17 Page 1 of 3 PageID #: 2104 No. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § V. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETTY J. MARKS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS ORDER ON THIRD PARTY DEFENDANTS' MOTION TO MODIFY JUDGMENT TO INCLUDE SANCTIONS AWARD On this day, the Court considered the Motion To Modify Judgment to Include Sanctions Award and the Supplement to the Motion To Modify Judgment to Include Sanctions Award (collectively the "Motion"), each filed by Third Party Defendants Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury (collectively "Third Party Defendants"). Having considered the Motion, the response thereto, the admissible evidence, the other papers on file in this matter, and the arguments of counsel, the Court hereby GRANTS the Motion in part and makes the following findings and orders: The Court finds that attorney William J. Brotherton violated Texas Civil Practices and Remedies Code Chapter 10 in signing the Original Petition in Intervention, the First Amended 1 EXHIBIT 1 Case 2:16-cv-09951 Document 34-1 Filed 02/14/17 Page 2 of 3 PageID #: 2105 No. C-1-PB-16-002348 Petition in Intervention and Third Party Petition, Second Amended Petition in Intervention and Third Party Petition, the Third Amended Petition in Intervention and Third Party Petition, and the Fourth Petition in Intervention filed in this matter. In particular, the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code § 10.001 by signing these pleadings because each of them contained the claim that Deborah Cortez was entitled to all assets from The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust") upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The Court finds that the plain language of the Trust foreclosed such a claim and that this claim was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further finds that attorney William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable. By maintaining that legal position in his Fourth Petition in Intervention, he caused the Third Party Defendants to incur additional attorneys' fees in responding to attorney William J. Brotherton' s claim regarding postponement of the trust. The Court hereby sanctions William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $31,150.76 for fees incurred for work done by Brian Thompson and his associates at Hopper Mikeska, PLLC and $33,980.00 for fees incurred by Aaron Boone and his associate attorney at Bowles Rice, LLP, for a total of $65,130.76. The Court orders that this amount be paid to the Third Party Defendants within 30 days of the entry of this order. The Court finds that there is a direct relationship between the sanctions being imposed and Mr. Brotherton's sanctionable conduct, in that the aforesaid amount represents reasonable and necessary attorneys' fees expended by attorneys for the Third Part Defendants to defend against 2 Case 2:16-cv-09951 Document 34-1 Filed 02/14/17 Page 3 of 3 PageID #: 2106 No. C-1-PB-16-002348 the frivolous claims advanced by William J. Brotherton and the Brotherton Law Firm; that the sanctions are not excessive; and that these sanctions will appropriately deter other attorneys from signing pleadings containing claims that violate Texas Civil Practices and Remedies Code Chapter 10. The Court hereby modifies its judgment entered on December 19, 2016, to include this award of sanctions. Signed this 10th day of February, 2017. 3 Case 2:16-cv-09951 Document 34-2 Filed 02/14/17 Page 1 of 2 PageID #: 2107 CAUSE NO. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § V. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETTY J. MARKS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion for Summary Judgment") filed by Third Party Defendants, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (collectively "Third Party Defendants"), in Cause Number C-1-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the_ Motion for Summary Judgment in its entirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular, the Court dismissed any and all claims that Mateo Cortez, in his individual 1 EXHIBIT 2 Case 2:16-cv-09951 Document 34-2 Filed 02/14/17 Page 2 of 2 PageID #: 2108 capacity or in his capacity as personal representative of the Estate of Deborah Cortez, had to any assets of T he William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Co1tez. Also on December 19, 2016, the Court considered Third Party Defendants ' Motion to Sever. After considering the Motion to Sever, the response, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the Motion to Sever in its entirety and ORDERED that Mateo Corez's claims against Third Party Defendants in this lawsuit be severed in their entirety and assigned the new cause number C-1-PB-1 6-002348. On January 16, 20 17, Third Party Defendants filed their Motion to Modify Judgment to Include Sanctions Award (the " Motion to Modify"), which extended the plenary power of the Court to modify its judgment. The Motion to Modify was heard by the Court at a hearing on January 30, 2017. After considering the Motion to Modify, the response, the admissibl e evidence presented at the hearing, the response, the arguments of counsel, and the other papers on file with the Court, granted the Motion to Modify in pa11 and granted sanctions. T he Court sanctions attorney William J. Brotherton and the Brotherton Law Firm, jointl y and severally, in the amount of $65, 130.76, and ORDERS that this amount be paid to the Th ird Party Defendants within 30 days of the entry of thi s final judgment. Thi s amended judgment finall y disposes of all claims and parties and 1s final and appea lable. Signed this 10th day of February, 20 17. 2 APPENDIX C Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 2/23 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA · LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated ApriJ 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 Judge Waters LINDA LOU MURRAY, et al., Defendants. DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO MOTION TO INTERVENE AND REQUEST FOR SANCTIONS Defendant Connie Lou Keith Barry ("Mrs. Barry"), by counsel, responds in opposition to the motion to intervene filed by Mateo Cortez, "in his capacity as the Personal Representative of the Estate of Deborah Cortez." Mateo Cortez ("Cortez") 1 s latest set of filings are yet another frivolous attempt to obstruct the Trustee's administration of the William D. Short and Phyllis D. Short Revocable Living Trust dated April 30, 1991 (the ''Trust'~. and to drive up the costs of this litigation for the Trust's true beneficiaries. Cortez's motion should be denied. and his counsel should be sanctioned for knowingly filing frivolous papers with this Court. INTRODUCTION Cortez was the husband of Deborah Cortez (nee Short), and is her sole heir at law and the administrator of her estate. Cortez has been a party to this case since November 10, 2015 (the date of filing), but made zero effort to join "the Estate of Deborah Cortez'• as a party, or to suggest that it should be made a party, until after this Court granted summary judgment against , Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 3/23 him on September 15, 2016. 1 At all times, Cortez had actual knowledge of this case and sole control over "the Estate of Deborah Cortez" as its administrator, and was represented by the same lawyers who now seek to appear and re~litigate this case on behalf of "the Estate of Deborah Cortez." Indeed, both before this Court and the Texas court, Cortez argued prior to judgment that the entirety of the Trust belongs to him personally as the sole heir of his late wife. Now, nine months after this Court granted summary judgment against him1 and two weeks before the Court talces up the Trustee's motion to distribute the Trust to its rightful beneficiaries! Cortez attempts to reargue the same baseless claims that this Court and the Texas court both rejected. Of course, as this Court ruled in its September 15, 2016 order granting partial summary judgment, neither Cortez nor "the Estate of Deborah Cortez" have any interest in the Trust. By the plain language of the Trust instrument, Deborah Cortez only had an interest in the Trust during her life, and that interest extinguished upon her death. The Trust assets now belong to the heirs at law of William D. Short and Phyllis D. Short; Cortez and ''the Estate of Deborah Cortez" are not heirs at law of either settlor, and have zero interest in the Trust. Both this Court and the Texas court reached this conclusion as a matter of law. On December 19, 2016, the Texas court also granted summary judgment against Cortez on all of his claims, concluding as a matter of law that Cortez and "the Estate of Deborah Cortez)j have zero interest in the Trust: 1 Cortez moved to alter or amend the Court's judgment, arguing in part that the Court failed to join "the Estate of Deborah Cortez" as an indispensable party. Cortez failed to raise this defense prior to judgment, and thus waived it. See W.Va. R. Civ. P. l2(h)(2) (stating that defense offailure to join an indispensable party may only be made "in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits."). In any event, Cortez's interests and "the Estate of Deborah Corte:t's" interests are identical, so ''the Estate" was neither necessary nor indispensable to this case. 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 4/23 On this day, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion") filed by Third Party Defendants . . . Connie [Lou] Keith Barry ... all in their individual capacities. Having considered the Motion, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular, tlie Court liereby dismisses any and all claims that Mateo Cortez, in Ids indlvidugl cqpacitv or in his cgpacitv as l!,,r,rsonal representative ofthe Estate o[.Deborali Cortez. has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust,,), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray, in her capacity as trustee of the Trust. Exhibit A, Order Granting Third Party Defendants' Traditional and No Evidence Motion for Summary Judgment, Civil Action No. C-l·OB~14~1564 (Tex. Probate Ct. Dec. 19, 2016) (emphasis added). The Texas court subsequently amended its judgment to include sanctions against Cortez's lawyers, finding that Cortez's argument that "the Estate of Deborah Cortez', was entitled to the assets of the Trust was frivolous: The Court finds that attorney William J. Brotherton violated Texas Civil Practices and Remedies Code Chapter 10 in signing the Original Petition in Intervention [and subsequent pleadingsJ filed in this matter. In particular, the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code§ 10.001 by signing these pleadings because eac/1 of them contained the claim that Debora/, Cortez was entitled to all assets from [the Trust). 1hr Court finds that the plain language of tlie Trmt fQredg$_ed such a claim and that this claim was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further finds that William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable .... 3 , Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 5/23 Exhihit B, Order on Third Parr; Defendants' Motion to Modify Judgment to Include Sanctions Award, Civil Action No. C~l~OB-14-1564 (Tex. Probate Ct. Feb, 10, 2017) (emphasis added). The Texas court sanctioned Cortez's lawyers in the amount of $65,130.76 for driving up Mrs. Barrf s legal fees in Texas with his frivolous claims. Although Cortez seeks to "intervene" on behalf' 1ofthe Estate of Deborah Cortez," in reality he seeks to hide behind a nominal party to avoid this Court's judgment, and to reargue in West Virginia the same ridiculous and insupportable legal theories that led to sanctions against his lawyers in Texas. The Court should deny Cortez's motion (and all of his other frivolous claims for relief), and sanction his counsel for wasting the Court's time and the parties' resources. ARGUMENT A. CORTEZ'S ATTEMPT TO i 41NTERVENE ON BEHALF OF THE ESTATE OF DEBORAH CORTEZ" SHOULD BE DENIED. Cortez's motion to intervene is frivolous and should be denied. Rule 24 of the West Virginia Rules of Civil Procedure states: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this State confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. W.Va. R. Civ. P. 24. "West Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction whlch is the subject of the action; (3) disposition of the action may. as a practical matter. impair or impede the applicant's 4 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 6/23 ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties." Syl. Pt. 2, State ex rel. Ball v. Cummings. 208 W.Va. 393,540 S.E.2d 917 (1999). For obvious reasons, Cortez cannot meet a single one of these criteria. First, Cortez's motion is untimely. "While Rule 24 of the West Virginia Rules of Civil Procedure provides for the intervention of parties upon a timely application, the timeliness of any intervention is a matter of discretion with the trial court." Syl. Pt. 3, State ex rel. Ball v, Cummings, 208 W.Va. 393,540 S.E.2d 917 (1999). Cortez had actual notice of this suit in 2015, and knew or should have known at that time that he needed to "intervene on behalf of the Estate of Deborah Cortez" if he or his lawyers believed "the Estate" had an interest in this litigation. Instead, Cortez fought this case on other grounds, and specifically argued that he was personally entitled to the proceeds from the Trust. Cortez did not move to "intervene on behalf of the Estate" until nine months after this Court rejected his claim to the Trust and granted summary judgment against him. The Supreme Court of Appeals of West Virginia has upheld refusals to grant intervention where the movant had knowledge of a case but failed to move for intervention until after entry ofjudgment. See West Virginia Public Employees Ins. Bd. v. Blue Cross Hosp. Service, Inc .• 180 W.Va. 177, 375 S.E.2d 809 (1988) (motion to intervene untimely when filed three months after entry of dismissal order and movants knew or had reason to know of the pendency of the action prior to judgment); Pauley v. Bailey, 171 W.Va. 651, 301 S.E.2d 608 (1983) (permissive intervention) (motion to intervene untimely when filed almost one year after evidentiary hearings had closed and seven months after court's orders). This Court should similarly deny Cortez's motion as untimely. Next, "the Estate of Debot'ah Cortez" has absolutely no interest in the Trust. Under the second and third pro11gs of Rule 24(a)(2), the movant must demonstrate both "an interest 5 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 7/23 relating to the property ... which is the subject of the action" and that disposition of the action may "impair or impede the applicanf s ability to protect that intel'est." W.Va. R. Civ. P. 24. Mrs. Barry will not belabor points which have already been established by this Court and the Texas court as a 0 matter of law. The Estate of Deborah Cortez" has no interest in the Trust because the plain and unambiguous language of the Trust instrument affords no interest to Deborah Cortez upon her death. Deborah Cortez only possessed a life interest in the Trust income, which extinguished when she died. The disposition of this action will not impair the ability of"the Estate of Deborah Cortez" to protect its interest in the Trust because "the Estate of Deborah Cortez" has no interest to protect. This Court has already ruled on that issue and need not revisit it. Finally, "the Estate of Deborah Cortez" was adequately represented in this litigation by Cortez himself, who is the administi·ator and sole heir of the estate. As to adequacy of representation by existing parties, "generally courts compare the interests asserted by the proposed intervenor with the interests of the existing party. If the proposed intervenor's interest is not represented by the existing party, or the existing party's interests are adverse to those of the proposed intervenor, intervention should be granted.... [However], if the interests are identical, intervention should be denied unless there is a compelling showing as to why the existing representation is inadequate." State ex rel. Ball v. Cummings, 208 W.Va. 393,403, 540 S.E.2d 917, 927 (1999) (internal citations omitted). Cortez and "the Estate of Deborah Cortez" have identical interests in the Trust (zero) and identical interests in this litigation: they both seek to obtain the entirety of the Trust proceeds, either through direct distribution to Cortez personally or through distribution to ''the Estate of Deborah Cortez," which would then flow through to Cortez personally as its sole heir. Cortez and "the Estate's" ider1tity of interest is clear from the simple fact that Cortez controls every decision made by "the Estate of Deborah Cortez," and is the only 6 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 8/23 person that benefits from "the Estate." Indeeds Cortez and "the Estate of Deborah Cortez,, 9!! represented by the same ler,al counsel in this case, which would violate the West Virginia Rules of Professional Conduct if their interests were adverse in any way. See W.Va. R. Prof. Conduct § 1.7 (simultaneous representation of adverse parties in litigation is a non.waivable conflict of interest). "The Estate of Deborah Cortez" cannot deny that Cortez himself, as the administrator and sole heir, had every opportunity to represent its claimed interest in this litigation. B. THE COURT SHOULD SANCTION CORTEZ'S COUNSEL FOR ATTEMPTING TO OBSTRUCT THIS CASE WITH FRIVOLOUS FILINGS. Although Cortez ostensibly seeks to protect the interests of "the Estate of Deborah Cortez/' both this Court and the Texas court have already rejected Cortez's claim that the Trust should have terminated, passed to Deborah Cmtez, and ultimately inherited by Cortez personally as the sole beneficiary of "the Estate of Deborah Cortez." Exhibit A. In fact, the Texas court futther found in February of2017 that Cortez's claim was frivolous and sanctionable. Exliibit B. The truth is that Cortez only filed his most recent round of West Virginia motions to obstruct or delay the Court's upcoming hearing on the Trustee's motion for summary judgment. Cortez's filings are clearly frivolous, and his attorneys should be sanctioned in West Virginia for the same reasons they were sanctioned in Texas. HThere is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs/ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.'' Syl. Pt. 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48,365 S.E.2d 246 (1986). Parties whose interest in the legal process is to oppress or cheat othe1·s should be discouraged. Non-disputes should, of course, be filtered out of the legal process by the subjective decision of the litigants themselves or else by thefr attorneys. Where they are not, court§ and juries, which specialize in determining the question of 7 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 9/23 good faith, are capable of dytjnguishing good faith dis:eutes from nondisgutes and assessing an appropriate penalty in the form of an award of attornexs' fees. Nelson v. West Virginia Public Employees Ins. Bd., 171 W.Va. 445,454,300 S.E.2d 86, 95 (1982) (Neely, J., concurring)(emphasis added). "By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law .... " W.Va. R. Civ. P. 1l(b) (emphasis added). The Court may impose sanctions on its O'Wll initiative if it finds that a party violated Rule 1l(b). See W.Va. R. Civ. P. 1l(c)(l)(B). 2 The timing of Cortez's attempt to intervene as "the Estate of Deborah Cortez" was not a coincidence, and should not go unnoticed by this Court. Cortez filed his motion on June 12, 2017 -- two weeks before the Trustee intends to bring her motion for summary judgment on for a hearing. The Court's ruling on the Trustee's motion will determine as a matter of law the finaJ 2 Due to the fact that Cortez filed his motions within two weeks of the Court's hearing, Mrs. Barry is unable to provide the required twenty-one (21) day notice to file a Rule 11 sanctions motion in her own capacity before the Court's hearing. However, the Court may still take up the issue of sanctio11s .sua sponte under Rule l l(c)(l)(B), and always hqs equitable authority to sanction bad faith conduct mtder Sally-Mike Properties. Mrs. Barry fully intends to seek recovery of all her attorneys' fees and costs in this action as a result of Cortez's frivolous and vexatious conduct, which inc]udes not only filing frivolous claims to the Trust proceeds, but also improvidently removing the case to federal court to create additional delay, and filing additional frivolous motions to prevent the Court from reaching the merits of the Trustee's summary judgment motion. 8 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 10/23 distribution of the Trust to its rightful beneficiaries. The true purpose of Cortez's motion is obvious: Cortez hopes to delay or obstruct the Court's disposition of the Trustee's summary judgment motion by arguing that the Court must first rule on his new filings. Indeed, Cortez's lawyers made no effort to conceal the improper purpose of his filings. By letter dated June 15, 2017, Cortez's counsel specifically requested that the Trustee reschedule the upcoming hearing on her summary judgment motion in light of Cortez's new filings: I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. Exltlbit C, Letter dated June 15, 2017 from William J. Brotherton to Robert S. Fluharty, Jr. This Court and the Texas court have already rejected Cortez's position. His remedy under the law is to take an appeal of those decisions. Instead, Cortez continues to present frivolous filings, with the stated purpose of delaying this Court's consideration of the Trustee's summary judgment motion. Cortez's conduct smacks of bad faith, and the Court has inherent equitable authority under Sally- Mike Properties, and sua sponte authority under Rule ll(c)(l)(B), to sanction Cortez and his lawyers for their wrongful conduct. Accordingly, Mrs. Bany requests that the Court award Mrs. Barry and the Trustee all of their attorneys' fees and costs incurred in this action as a sanction against Cortez and his lawyers for their conduct in obstructing this case. 9 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 11/23 .._/4. .Q . b Aaron C. Boone (9479) 7) 6)U_ Bowles Rice LLP Fifth Floor, United Square 50 l Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 and David A. DeJamett (5190) J. Tyler Mayhew (11469) Bowles Rice LLP 105 West Burke Street Martinsburg. West Virginia 25401 (304) 264~4232 Facsimile (304) 264~3822 Counsel for Defend.ant Connie Lou Keith Barry 10 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 12/23 No. C-l-PB-14-001564 LINDA MURRAY1 SUCCESSOR § IN THE PROBATE COURT NO. 1 TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLISS 0. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN, § PLAINTIFF § § V, § § MATEO CORTEZ, ROBERT F. § SCHLAGER AND WELLS FARGO § BANK, NATIONAL ASSOCIATION, § OF DEFENDANTS § § ' """'*"' § § MATEO CORTEZ, AS REPRESENTATIVE§ OF THE EST ATE OF DEBORAH CORTEZ§ INTERVENOR § § V. § § LINDA MURRAY, SUCCESSOR § TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLLIS l>. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN § § TRAVIS COUNTY, TEXAS O@ER GRANTING THIRD PARTY DEFENDANTS' TUADITIONAL AND NO EVIDENCE MOTION FQR SUMMARY J!,ZDGMENT On this day. the Court considered the Tt'aditional and No Evidence Motion lb1· Summa1y Judgment (the ··Motion·') filed by Third Party Defe11dar1ts, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnslon, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villel's. Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty .J. Marks Webb, James Berl Marks. Linda Murray, Thomas Wayne Marks, Donald Leman Whited 1 Michael Ray Whited, EXHIBIT A Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 13/23 No. C-1-PB-14-001564 Terry Lee Whited and She11y Lynn Whited Salsbury, all in their individunl capacities. Having considered the Motion, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court. the Court hereby GRANTS the Motion in its entirety. [tis therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed i11 their entirety. ln pa11icular, the Com·t hereby dismisses any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal 1·epresentative of the Estate of Deborah Cortez, has to any assets of The WHliam D. Short and Phyllis D. Short Revocable Livit1g Trust (the "Trust'1), other than his claim for undistributed income from the Trust during the lite of Debol'ah Cortez. This judgment has no effect on Mateo Cortez's breach of fiducim-y duty against Linda Murray. in her capacity as trustee of the l"rust. SIGNED this l 9lh day of December, 2016. 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 14/23 No. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERSt CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETfY J. MARKS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS ORQER ON THIRD PARTY PIFENDANIS' MOTIQ~ TO MODIFY JUDGMENT TQ INCLUDE SANCTIQNS AWARD On this day, the Court considered the Motion To Modify Judgment to Include Sanctions Award and the Supplement to the Motion To Modify Judgment to Include Sanctions Award (collectively the "Motion•'), each filed by Third Party Defendants Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts. Lisa A. Smith, Patricia Chapman. Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury (collectively "Third Party Defendants 0 ). Having considered the Motion, the response thereto, the admissible evidence, the other papers on file in this matter, and the arguments of counsel, the Court hereby GRANTS the Motion in part and makes the following findings and orders: The Court finds that attorney William J. Brotherton violated Texas Civil Practices and Remedies Code Chapter 10 in signing the Original Petition in Intervention, the First Amended 1 EXHIBIT B Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 15/23 No, C-1-PB-16-002348 Petition in Intervention and Third Party Petition, Second Amended Petition in Intervention and Third Party Petition, the Third Amended Petition in Intervention and Third Party Petition, and the Fourth Petition in Intervention filed in this matter. In particular, the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code § I 0.001 by signing these pleadings because each of them contained the claim that Deborah Cortez was entitled to all assets from The William D. Short and Phyllis D. Short Revocable Living Trost (the "Trost") upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The Court finds that the plain language of the Trust foreclosed such a claim and that this claim was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further fmds that attorney William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable. By maintaining that legal position in his Fourth Petition in Intervention, he caused the Third Party Defendants to incur additional attorneys' fees in responding to attorney William J. Brotherton's claim regarding postponement of the trust. The Court hereby sanctions William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $31,150.76 for fees incutted for work done by Brian Thompson and his associates at Hopper Mikeska, PLLC and $33,980.00 for fees incurred by Aaron Boone and his associate attorney at Bowles Rice, LLP, for a total of $65,130.76. The Court orders that this amount be paid to the Third Party Defendants within 30 days of the entry of this order. The Court finds that there is a direct relationship between the sanctions being imposed and Mr. Brotherton•s sanctionable conduct, in that the aforesaid amount represents reasonable and necessary attorneys• fees expended by attorneys for the Third Part Defendants to defend against 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 16/23 No, C-1-PB-16-002348 the frivolous claims adva11ced by William J. Brotherton and the Brotherton Law Finn; that the sanctions are not excessive; and that these sa11ctio11s will appropriately deter other attorneys from signing pleadings containing claiins that violate Texas Civil Practices and Remedies Code Cbapter 10. The Court hereby modifies its judgment entered on December 19, 2016. to include this award of sanctions. Signed this 10th day ofFebn1ary. 2017. OUYHERMAN 3 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 17/23 CAUSE NO, C-1-PB-16--002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ·;o --0 (1"\ ROBERTS, LISA A. SMITH, PATRICIA § :s :-> CHAPMAN, BETTY J. MARKS WEBB, § J;: ~ JAMES BERL MARKS, LINDA MURRAY,§ THOMAS WAYNE MARKS, DONALD LEMAN WHITED, MICHAEL RAY § § - 0 WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUN1Y, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion for Summary Judgment") filed by Third Party Defendants. Sandra Flesher Brown. Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Ten-y Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (collectively ..Third Party Defendants"), in Cause Number C-l-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidence, the arguments of counsel; and the other papers on file with the Court, the Court GRANTED the_ Motion for Summary Judgment in its entirety and ORDERED. that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular, the Court dismissed any wid all claims that Mateo Cortez, in his individual 1 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 18/23 capacity or in his capacity as personal representative of the Estate of Deborah Cortez, had to any assets of The William D. Short and Phyllis 0. Short Revocable Living Trust (the "Trust''), other than his claim for undistributed income from the Tnist during the life of Deborah Cortez. Also on December 191 2016, the Com1 considered Third Party Defendants' Motion to Sever. After considering the Motion to Sever, the response, the arguments of counsel, and the other papers 011 fl.le with the Court, the Court GRANTED the Motion to Sever in its entirety and ORDERED that Mateo Corez's claims against Third Party Defemdants ii1 this lawsuit be severed in their entirety and assigned the new cause number C-l-PB-16-002348. On January 16, 20 I 7, Third Party Defendants filed their Motion to Modify Judgment to Include Sanctions Award (the "Motion to Modify")1 which extended the plenary power of the Court to modify its judgment. The Motion to Modify was beard by the Court at a hearing 011 January 30, 2017. After considering the Motion to Modify, the response, the admissible evidence presented at the hearing, the response, the arg1.1ments of counsel, and the other papers 011 file with the Court, granted the Motion to Modify in pait and granted sanctions. The Court sanctions attorney William J. Brotherton and the Brotherton Law Fim1.jointly and severally, in the amount of $65,130.76, and ORDERS that this amount be paid to the Third Party Defendants within 30 days of the entry of this final judgment. This amended judgment finally disposes of all claims and parties and is final and nppealable. Signed this 10th day of February, 2017, 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 19/23 BROTHERTON LAW FIRM ATTOR.Nli'.Y8 AND COUNSBLORS AT LAW 2340 FM 407, SUITE 200 HIGHLAND VILLA.GE, TEXAS 75077 TELBPHONB! 972-317-8700 FACSIMILE: 972-317-0189 WILLIAM J. BROTHERTON willlam@brothertonlaw.com LICRNSt.D IN TIXM ANP Noa.m l)AXQTA June 15, 2017 Via E-Mail: rsfluharty@fntlawgfflces.com Robert S. Fluharty, Jr. Fluharty & Townsend 417 Grand Park Drive, Suite 1O1 Parkersburg, WV 26105 RE: In the Circuit Court of Wirt County, West Virginia; Civil Action No. 15.C-28; Linda Murray. in Her' Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust v. Mateo Cortez et al. Dear Mr. Fluharty: I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27 th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. If this is something you wish to discuss, please do not hesitate to call. Otherwise, we will schedule our motions to be heard at the same time. Very truly yo1.1rs > WJB/dj ce: All Parties (per attached Certificate of Service) Client EXHIBIT C Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 20/23 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing correspondence has been served on this 15th day of June, 2017, by U.S. First Class Mail to the below interested parties: Robert S. Fluharty, Jr. Charlene Rae FlesherMJohnston 417 Grand Park Drive PO Box 793 Suite 101 Elizabeth, WV 26143 Parkersburg, WV 26105 Attorney Pot: Linda Murray Charles Bruce Roberts 487 Wilson Fork J. Nicholas Barth Elizabeth, WV 26143 Barth & Thompson PO Box 129 Charlotte Rae Flesher--Ash Charleston, WV 25321-0129 8653 White Swan Dr., #104 Attorney For: Linda Murray Tampa, FL 33614 Aaron C. Boone James Berl Marks Bowles Rice McDavid Graff & Love LLP 1093 S. Pleasant Hill Road POBox49 Belleville, WV 26133 Parkersburg, WV 26102-0049 Attorney For: Connie Lee Keith Barry Linda Lou Murray 197 Oakbrook Drive David A. DeJarnett Mineral Wells, WV 26150 Bowles Rice McDavid Graff & Love LLP PO Drawer 1419 Lisa Ann Rader Smith Martinsburg, WV 25402-1419 96 Franklin Street Attorney For: Connie Lee Keith Barry Elizabeth, WV 26143 Leslie L. Maze Magen Elizabeth Whited PO Box279 Elizabeth, WV 26 I43 Elizabeth, WV 26143 Attorney For: Donald Leaman Whited; Michael Ray Patricia Ann Marks Chapman Whited; Sherry Lynn Whited Salsbury; Sheila Pettry, 2670 Pettyville Road Tywanna Pettry, and Amanda Pettry, Heirs of Teresa Parkersburg, WV 26101 Annette Whited Pettrey; Terry Lee Whited Randall Wayne Davis 1663 Brooksford R.oad Joseph T. Santer Kernersville, NC 27284 Santer & Santer PO Box 306 Sandra Kay Flesher Brown Parkersburg, WV 26102 99 Woodridge Drive Ouardian ad Litem For: Unknown beneficiaries Mineral Wells, WV 26150 Betty Jo Mark& Thomas Wayne Marks 1834 S. Pleasant Hill Road 749 S. Long Run Road Belleville, WV 26133 Belleville, WV 26133 Virginia Ann Roberts Villers 28649 Allesandria Circle Bonita Sp · 1gs, FL 31435 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 21/23 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CML ACTION NO. 15-C~28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. CERTIFICATE OF SERVICE The undersigned, counsel for Defendant Connie Lou Keith Barry, hereby certifies that on the 23rd day of June 2017, he served the foregoing and hereto annexed DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO MOTION TO INTERVENE AND REQUEST FOR SANCTIONS upon counsel of record and pro se parties by the methods described below: Robert S. Fluharty, Jr., Esquire Fluharty & Townsend 417 Grand Park Drive, Suite 101 Parkersburg, WV 26105 VIA US Mail and Fax: 304-485-0560 J. Nicholas Barth, Esquire Barth & Thompson 202 Berkley Street Charleston, WV 26321 VIA US Mail and Fax: 304-342-6215 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 22/23 Leslie L. Maze, Esquire Post Office Box 279 Elizabeth, WV 26143 VIA US Mail and Fax: 304·275·3721 James W. Marshall. m. Esquire H. F. Salsbery, Esquire Michael W. Taylor, Esquire Bailey & Wyant, PLLC 500 Virginia Street East, Suite 600 Post Office Box 3710 Charleston. WV 25337-3710 VIA US Mail and Fax: 304~3 43~3133 William J. Brotherton, Esquire Shawn M. Brotherton, Esquire Brotherton Law Finn 2340 FM 407, Suite 200 Highland Village, Texas 75077 VIA US Mail and Fax: 972-3]7.0189 Joseph T. Santer, Esquire Santer and Santer Post Office Box 306 Parkersburg, WV 26102 VIA US Mail and Fax: 304-422-5599 Linda Lou Murray 197 Oakbrook Drive Mineral Wells, WV 26150 Sandra Kay Flesher Brown 99 Woodridge Drive Mineral Wells, WV 26150 Charlene Rae Flesher Johnston P.O. Box 793 Elizabeth, WV 26143 Charlotte Fae Flesher Ash 8653 White Swan Drive #104 Tampa, FL 33614 Virginia Ann Roberts Villers 28649 Alessandria Circle Bonita Springs1 FL 34135 2 Jun/23/2017 2:09:06 PM Bowles Rice 3044205587 23/23 Charles Bruce Roberts, Jr. 487 Wilson Fork Elizabeth, WV 26143 Lisa Ann Rader Smith Post Office Box 717 Elizabeth, WV 26143 Patricia Ann Marks Chapman 2670 Pettyville Road Parkersburg. WV 26101 James Berl Marks 1093 S. Pleasant Hill Road Belleville, WV 26133 Thomas Wayne Marks 749 S. Long Run Road Belleville, WV 26133 Betty J. Webb 280 Bethel Road Parkersburg, WV 261 O1 Randall Wayne Davis 1663 Brookford Road Kernersville, NC 27284 Magen Elizabeth Whited 164 Joe Shore Drive Ravenswood, WV 26164 Aaron C. Boone 3 APPENDIX D Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 2120 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her capacity as Successor Trustee of the Willi11m D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 1s..c-2s Judge Waters LINDA LOU MURRAY, et al., Defendants. DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO CORTEZ'S POST-JUDGMENT MOTION TO DISMISS Defendant Connie Lou Keith Barry ("Mrs. Barry"), by counsel, responds in opposition to Mateo Cortez's (''Cortez;,) po1t-iudgment motion to dismiss, in which Cortez again attempts to convince this Court to defer to proceedings in Texas. INTRODUCTION Cortez's duplicative and untimely motion should be denied. Although presented 11 as a motion to dismiss "for lack of jurisdiction'' or failure to state a claim," Cortez has simply repackaged the same forum non conveniens arguments that this Court and the Supreme Court of Appeals of West Virginia rejected last year. Indeed, the Texas court has specifically stated that it would not interfere with this Court•s jurisdiction: "THE COURT: I'm not going to prohibit them from proceeding, I'm not going to order them to dismiss in West Virginia. You all can go to West Virginia and argue." First, Cortez lacks standing to assert a Rule 12(b) Motion to Dismiss because judgment has already been entered against him. Second, notwithstanding his lack of standing, Cortez's motion is based on the false premise that Texas is now administering the Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 3/20 Trust. Lastly, given that the instant motion is frivolous, and filed solely to delay this Honorable Court's efforts, sanctions should be assessed against Cortez's counsel. ARGUMENT A. CORTEZ'S MOTION SHOULD BE DENIED BECAUSE POST-JUDGMENT MOTIONS TO ABSTAJN ARE NOT PERMITTED BY THE RULES OF CIV1L PROCEDURE. On September 15, 2016, this Court entered judgment against Cortez, dismissing any and all claims that Cortez has to the Trust. Order Granting Motion for Partial Summary Judgment, Wirt County Civil Action No. 15-C-28 (September 15, 2016). As discussed below, Cortez's motion to dismiss seeks to re-litigate his argument that this Court should decline jurisdiction in deference to parallel proceedi11gs in Tex.as. Cortez, however, has no legal right to ask this court to abstain post~judgment. W.Va. R. Civ. P. 12(h) (defenses other than lack of subject matter jurisdiction are waived unless raised prior to judgment). Moreover, Cortez's arguments are not only untenable, they are based on false and intentionally misleading premises. B. CORTEZ'S MOTION SHOULD BE DENIED BECAUSE THE TEXAS COURT IS NOT ACTIVELY ADMINISTERING THE TRUST. Cortez bases his motion on the Princess Lida doctrine, which is not a jurisdictional doctrine, but rather an abstention doctrine based on 75-year old dicta. See al- Abood ex rel. Al-Abood v. El-Shamari, 217 F.3d 225 (4th Cir. 2000) (citing cases holding that the Princess Lida doctrine is based on abstention and not lack of jurisdiction). See also Crawford v. Courtney, 451 F.2d 489, 491-92 (4th Cir. 1971) (describing the Princess Lida doctrine as dicta). Like forum non conveniens, abstention doctrines are not mandatory jurisdictional limitations on a court; they are discretionary doctrines; grounded in equitable concerns regarding comity between courts of concurrent jurisdiction. See Quackenbush v. 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 4/20 Allstate Ins. Co., S17 U.S. 706, 722 (1996) (abstention and forum non conveniens doctrines proceed from the same premise that in rare circumstances, courts can relinquish their jurisdiction in favor of another forum). The premise of Cortez's instant motion, and the premise of Cortez's earlier and unsuccessful forum non conveniens motion, are identical. Cortez argues that a Texas court is exercising concurrent jurisdiction over the parties• dispute, therefore this West Virginia Court should "step aside''. Cortez filed a "Petition in Intervention" in Texas on behalf of "the Estate of Deborah Cortez," in which he sought a declaratory judgment regarding the distribution of the Trust assets. 1 Cortez, however, intentionally omitted from his motion to dismiss that: (1) no other party asked the Texas court to decide how the Trust should be distributed or to assume control over the Trusti and, more importantly, (2) the Texas court dismissed all of Cortez's claims in their entirety. The fact that no party other than Cortez asked the Texas court to administer the Trust is critical because, on December 19, 2016, the Texas court granted summary judgment against Cortez on all of the claims alleged in his "Petition in Intervention," concluding as a matter of law that Co1tez and 0 the Estate of Deborah Cortez" have zero interest in the Trust: On this day, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the ''Motion'•) filed by Third Party Defendants ... Connie [Lou) Keith Ban·y ... all in their individual capacities. Having considered the Motion, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore, ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular, the C9urt herebJ?, dismisses any and all 1 Corte2: filed his "Petition in Intervention° to establish a defense against the Trustee's tort claims against him for stealing from the Trust. Cortez has since pointed to his "Petition in Intervention" a.s the reason for why this case should be dismissed and litigated in Texas. 3 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 5/20 claims tl,at Mateo Corte;, in liis indi}!idual cagqcitv or in Ms capacity as personal representative of the Estate o( Debora/, Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the "Trust,'), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray, in her capacity as trustee of the Trust. Exhibit A, Order Granting Third Party Defendants' Traditional and No Evidence Motion for Summary Judgment, Civil Action No. C-1-0B-14-1564 (Tex. Probate Ct. Dec. 191 2016). Mol'eover, the Texas court subsequently amended its judgment to include sanctions against Cortez's lawyers, finding that Cortez's claims were :frivolous and were not warranted by existing law; the extension, modification, or reversal of existing law; or the establishment of new law. Exhibit B, Order on Third Party Defendants' Motion to Modify Judgment to Include Sanctions Awardi Civil Action No. C-1-0B-14-1564 (Tex. Probate Ct. Feb. 10, 2017). Pertinent to this motion, the Texas court found that sanctions were appropriate because "attorney William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable." Exhibit B. The date referenced in the Texas court's sanction order is the day after this Cburt granted summary judgment against Cortez, which proves that the Texas court agrees that the Trustee's claims were properly brought in West Virginia. Otherwise, the Texas court obviously would not have deferred to the findings in this Court's September 15~ 2016 order granting summary judgment. In sum, Cortez claims that the Princess Ltda doctrine applies and deprives this Court of jurisdiction. Again, there is no claim before a Texas court to administer the Trust. Even if Cortez's "Petition in Intervention" did implicate the Princess Lida doctrine, his claims have been dismissed in their entirety, which undel' Texas law is final for collateral estoppel 4 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 6/20 purposes irrespective of his right to appeal. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex. 1986) (judgment is final for purposes of issue and claim preclusion despite taking of appeal). 2 Although Cortez claims that the Texas court has taken a number of steps to administer the Trust, none of his claims are true. Neither the Trustee, nor any of the rightful beneficiaries of the Trust, have asked the Texas court to detennine how the Trust should be distributed. That claim is only pending here in West Virginia, and the Texas court has stated that it won't inte1fere with this Court's adjudication of the issues before it: "THE COURT: I'm not going to prohibit them from proceeding, I'm not going to order them to dismiss in West Virginia. You all can go to West Virginia and argue." Exhibit C, Transcript Excerpt, Application for Temporary Restraining Order and Injunctive Relief, at p. 25, Civil Action No. C-1-OB-14-1564 (Tex. Probate Ct. Dec. 18, 2015). Accordingly, the Court should reject Cortez's arguments, and reject his attempt to further delay and obstruct the Trustee's efforts to distribute the Trust to its rightful beneficiaries. C. CORTEZ AND HIS LAWYERS SHouio BE SANCTIONED FOR FILING FRIVOLOUS PAPERS TO OBSTRUCT OR DELAY THIS CASE. For the same reasons stated in Defendant Connie Lou Keith Barry's Response in Opposition to Motion to Intervene and Request for Sanctions, Cortez and his lawyers should be sanctioned for the filing of their Motion to Dismiss, which is frivolous and filed for the sole purpose of delaying further action in this Court. DATED this 23ro day of June 2017. 2 The Texas court's order granting summary judgment against Cortez meets the remaining elements of collateral estoppel. The elements of collateral estoppel are that: "(1) the facts sought to be litigated in the first action were fully and fairly Jitigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action." Eagle Properties, Ltd v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990). 5 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 7/20 ~.t,b~ Aaron C. Boone (94 79) Bowles Rice LLP Fifth Floor, United Square 501 Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 and David A. DeJarnett (5190) J. Tyler Mayhew (11469) Bowles Rice LLP 105 West Burke Street Martinsburg, West Virginia 25401 (304) 264-4232 Facsimile (304) 264-3822 Counsel for Defendant Connie Lou Keith Barry 6 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 8/20 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. CERTIFICATE OF SERVICE The undersigned, counsel for Defendant Connie Lou Keith Barry, hereby certifies that on the 23 rd day of June 2017, he served the foregoing and hereto annexed DEFENDANT CONNIE LOU KEITH BARRY'S RESPONSE IN OPPOSITION TO CORTEZ'S POST- JUDGMENT MOTION TO DISMISS upon counsel of record and pro se parties by the methods described below: Robert S. Fluharty, Jr., Esquire Fluharty & Townsend 41 7 Grand Park Drive, Suite 101 Parkersburg, WV 26105 VIA US Mail and Fax: 304-485-0560 J. Nicholas Barth, Esquire Barth & Thompson 202 Berkley Street Charleston, WV 26321 VIA US Mail and Fax: 304~342-6215 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 9/20 Leslie L. Maze. Esquire Post Office Box 279 Elizabeth, WV 26143 VIA US Mail and Fax: 304..275-3721 James W. Marshall, III, Esquire H. F. Salsbery, Esquire Michael W. Taylor, Esquire Bailey & Wyant, PLLC 500 Virginia Street East, Suite 600 Post Office Box 3710 Charleston, WV 25337-3710 VIA US Mail and Fax: 304-343-3133 William J. Brotherton, Esquire Shawn M. Brotherton, Esquire Brotherton Law Firm 2340 FM 407, Suite 200 Highland Village, Texas 75077 VIA US Mail and Fax: 972-317-0189 Joseph T. Santer, Esquire Santer and Santer Post Office Box 306 Parkersburg, WV 26102 VIA US Mail and Fax: 304-422-5599 Linda Lou Murray 197 Oakbrook Drive Mineral Wells, WV 26150 Sandra Kay Flesher Brown 99 Woodridge Drive Mineral Wells. WV 26150 Charlene Rae Flesher Johnston P.O. Box 793 Elizabeth, WV 26143 Charlotte Fae Flesher Ash 8653 White Swan Drive #104 Tampa, FL 33614 Virginia Ann Roberts Villers 28649 Alessandria Circle Bonita Springs, FL 34135 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 10/20 Charles Bruce Roberts, Jr. 487 Wilson Fork Elizabeth, WV 26143 Lisa Ann Rader Smith Post Office Box 717 Elizabeth, WV 26143 Patricia Ann Marks Chapman 2670 Pettyville Road Parkersburg. WV 26101 James Berl Marks 1093 S. Pleasant Hill Road Belleville, WV 26133 Thomas Wayne Marks 749 S. Long Run Road Belleville, WV 26133 Betty J. Webb 280 Bethel Road Parkersburg, WV 26101 Randall Wayne Davis 1663 Brookford Road Kernersville, NC 27284 Magen Elizabeth Whited 164 Joe Shore Drive Ravenswood, WV 26164 Aaron C. Boone 3 9054566.1 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 11/20 LINDA Ml!URAV 1 SUCCESSOR § IN THE PROBATE COURT NO, J TRUSTEEANDONBEHALFOPTHE § WILLIAM D. SHORT AND PHYLISS 0. § SHORT REVOCABLE LIVlNG TRUST § INCLUDING THE CREDIT SHELTElt § TRUST CREATEJ) THEREJN1 § · .PLAINTIFF § § V. § § MATEO CORTEZ ROBERT F. § SCHLAGER AND WELLS FARGO § DANK, NATIONAL ASSOCIATION, § OF DEFENDANTS § § § § MATI~O CORTEZ, AS REPRESENTATIVE§ OF THE ESTATE OF DEBORAH CORTEZ§ INTERVENOR § § V. § § J.,JNDA MURRAY, SUCCESSOR § TRUSTEEANDONBEHALFOFTHE § WILLIAM D. SHORT AND 'PHYLLIS D. ~ SHORT REVOCABLE LIVING TRUST § INCLl/DING THE CREDIT SHELTER § TRUST CREATED THERElN § § TRAVIS COUNTY, TEXAS ORDER GRANTING THIRD PARTY DEFENDANTS' TRADITIONAL AND NO EYIDENCJk MOTION FOR SUMMARY JUDGMENT, On 1his day. the Court considered the Traditional and No Evidence Motion for Smn1nary .ludgmc11l (1he ··Motion'·) tiled by Third Pt'lrtY Defendm1ts, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie L.ee Keith Ban-y, Randall Wayne Davis, Virginh\ Villers, Charles Robe11s~ Lisa A. Smith. Pntticiti Chapman, Betty .I. Mfltks Webb, fomcs Berl Marks. Linda Mmray. Thomas Wayne Marks. Donald Lem~m Whited, Michl1e! Ray Whited, EXHIBIT . A Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 12/20 No, C-l~PR-14~001564 Tcn-y Lee Whited and Sherry Lynn Whiled Salsbury, nll in their individual capacities. Mnving considered the Motion, the response. all admissible st1111mai·y judgment evidence, the arguments of counsel. and the other papers on tile with the Court. the Co~ll'l hereby GRANTS the Motion in its entirety. It is the1·efore, ORDERED> that Maleo Cortez's claims against Third Party Defendants in this lawsuit a.re dismissed in their enlirety. In parlicular, the Court hereby dismisses nny and al! claims that Mateo Cortez. in his individual cnpacit)' or in his capacity ns personal representative or the Estate or Deboruh Cortez, has to tmy m1sets of The William D. Short ~ind Phyllis D. Short Revocable Living Trust (the :.Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach or fiduciary duty against Linda Murray. in her capacity tis trustee of the: TrusL SIGNED this 19th day ofDecember, 2016. 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 13/20 No. C-l·PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ PlaintljJ § § ~ § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOBSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A. SMITH, PATRICIA § CHAPMAN, BETTY J. MARl{S WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEK WHITED and § SHERRY LYNN WHITED SALSBURY § Defendanta § TRAVIS COUNTY, TEXAS ORDER QN THIRD Pt\BTY PEFENDANIS' MOTION TO MODIFY JJJPGMl~T TO INCLUDE SANCTIONS AWARD On this day, the Court considered the Motion To Modify Judgment to Include Sanctions Award and the Supplement to the Motion To Modify Judgment to Include Sanctions Award (collectively the "Motion"), each filed by Third Party Defendants Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston1 Connie Lou Keith Barryt Randatl Wayne Davia, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks. Donald Leman Whited, Michael Ray Whited1 Terry Lee Whited and Sheny Lynn Whited Salsbury (collectively "Third Party Defendants''). Having considered the Motion, the response thereto, the admissible evidence, the other papers on flle in this matter, and the arguments of counsel; the Court hereby GRANTS the Motion in part and makes the following findings and orders: The Court finds that attorney William J, Brotherton violated Texas Civil Practices and Remedies Code Chapter l O in signing the Original Petition in Intervention, the FJrst Amended 1 EXHIBIT . B Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 14/20 No. 0·1-PB-16.002348 Petition in Intervention and Third Party Petition, Second Amended Petition in Intervention and Third Party Petition, the Third Amended Petition in Intervention and Third Party Petition, and the Fourth Petition in Intervention filed in this matter. In particular) the Court finds that Mr. Brotherton violated Texas Civil Practices and Remedies Code § 10.001 by signing these pleadings because each of them contained the claim that Doborah Cortez was entitled to all assets ftom The William D. Short and Phyllis D. Short Revc,cable Living Trust {the 0 Trust") upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The Court finds that the plain language of the Trust foreclosed such a claim and that this claim was not warranted by existing law or by a non•mvolous argument for the extension, modification, or reversal of existing law or the establishment of new law. The Court further finds that attomoy William J. Brotherton should have known that as of September 16, 2016, his legal position regarding postponement of the trust was untenable. By maintaining that legal position in his Fourth Petition in Intervention, he caused the Third Party Defendants to incur additional attorneys' fees in responding to attorney William J. Brotherton's claim regarding postponement of the trust. The Court hereby sanctions William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $31,150.76 for fees incurred for work done by Brian Thompson and his associates at Hopper Mikeska, PLLC and $33,980.00 for fees incurred by Aaron Boone and his associate attorney at Bowles Rice, LLP, for a total of $65,130.76. The Court orders that this amount be paid to the Third Party Defendants within 30 days of the entry of this order. The Court finds that there is a direct relationship between the sanctions being imposed and Mr. Brotherton 's sanctionable conduct, in that the aforesaid amount represents reasonable and necessary attorneys• fees expended by attorneys for the Third Part Defendants to defend against 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 15/20 the ft·ivolous claim5 advanced by William J. Brotherton and the Brotherton Law Firm; that the sanctions are not excessive; and that these sanctions will appropriately deter other attorneys from .signing pleadings containing claims that violate Texas Civll Practices end Re111edics Code Chapter 10. The Court hereby modifies its judgment entered on December 19, 2016, to inch.1de this award of sanctions. Sig11ed thi.s 10th day ofFebruary1 2017. 3 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 16/20 CAUSE NO. C-1-PB-16-002348 MATEO CORTEZ, AS REPRESENTATIVE§ IN THE PROBATE COURT NO. 1 OF THE ESTATE OF DEBORAH CORTEZ§ Plaintiff § § v. § OF § SANDRA FLESHER BROWN, § CHARLOTTE FLESHER ASH, § CHARLENE FLESHER JOHSTON, § CONNIE BARRY, RANDALL WAYNE § DAVIS, VIRGINIA VILLERS, CHARLES § ROBERTS, LISA A, SMITH, PATRICIA § CHAPMAN, BETTY J. MAR.KS WEBB, § JAMES BERL MARKS, LINDA MURRAY, § THOMAS WAYNE MARKS, DONALD. § LEMAN WHITED, MICHAEL RAY § WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the ..Motion for Summary Judgment'') filed by Third Party Defendants, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis. Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whi1ed, Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (colJectively 0 Third Party Defendants•,, in Cause Number C-1-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidencet the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the. Motion for Summary Judgment in its entirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular; the Court dismissed any and all claims that Mateo Cortez, in his individual 1 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 17/20 capacity or irt his capacity as personal rcprcsentutive of the Estate of Debornh Co11cz 1 had to any misets of The William D. Shott and Phyllis D. Short Revocable Living Trust (the "Trust"), other tlmn his clnim for undistributed income from the Trnst during the life of Debornh Cortez. Also on December 19, 2016, the Court considered Third Party Defendants' Motion to Sever, After considering the Motion to Sever, the response, the tl!'guments of cmmsel, and the other papers on flle with the Court, the Cou,t GRANTED the Motion ro Sevot· In its entirety and ORDERED that Mateo Corez's claims against Tbircl Party Defendants in this lawsllit be severed in their entirety and assignee! the now CilUSC number C" I~PB" 16"002348. On January 16, 2017, Third Parly Defendants filed their Motion to Modify ,Judgment to Include Sunctio11s Award (the .. Motion to Modify"), which extended the plenary powei- of the Court to modify its judgment. The Motion to Modify was heard by the Court at fl heal'ing on January 30, 2017. After considering the Motion to Modify, the response, the admissible evidence presented at the hoaring, the response, rhe urguments of counsel, and the othor papers on file with the Court, grnnted the Motion to Modify in part and granted S'1nctions. The Coul't sanctions altomey William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $65,130.76 1 and ORDERS that this amount be paid to the Third Party Defendttnts within 30 days of the entry of this final judgment. This amended judgment finally disposes of all ctnin1s and parties and 1s final and nppcalable. Signed this 10th dny of Feb1·uary. 2017. 2 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 18/20 1 l REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES 2 TRIAL COURT CAUSE NO. C-1-PB-14-001564 3 LINDA MURRAY, SUCCESSOR * IN THE PROBATE COURT TRUSTEE AND ON BEHALF OF THE * 4 WILLIAM D. SHORT AND PHYLLIS * D. SHORT REVOCABLE LIVING TRUST* 5 INCLUDING THE CREDIT SHELTER * TRUST CREATED THEREIN * 6 l?LAINTIFF * * 7 vs, * * 8 MATEO CORTEZ, ROBERT F. * SCHLAGER AND WELLS FARGO BANK, * 9 NATIONAL ASSOCIATION, * DEFENDANTS * 10 * ***** * NO. 1 OF 11 * MATEO CORTEZ, AS REPRESENTATIVE* 12 OF THE ESTATE OF DEBORAH * CORTEZ, INTERVENOR * 13 * vs. * 14 * LINDA MURRAY, SUCCESSOR TRUSTEE* 15 AND ON BEHALF OF THE WILLIAM D.* SHORT AND PHYLLIS D. SHORT * 16 REVOCABLE LIVING TRUST * INCLODING THE CREDIT SHELTER * 17 TRUST CREATED THEREIN, * RESPONDENT IN THE INTERVENTION* TRAVIS COONTY, TEXAS 18 ************************************************************** 19 APPLICATION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF 20 ************************************************************** 21 On the 18th day of December, 2015, the following 22 Application for Temporary Restraining Order and Injunctive 23 Relief came on to be heard outside the presence of a jury, in 24 the above-entitled and numbered cause before the Honorable Guy 25 Herman, Judge Presiding, held in Austin, Travis County, Texas. ,.. MELISSA VOIGT, CSR (512) 854-9258 EXHIBIT C Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 19/20 25 1 MR. BROTHERTON: It was a quick show. 2 THE COURT: I know, Be's fast, he's speedy 3 sometimes. 4 MR. HESTER: He showed it to the wrong person. 5 THE COURT: I'm not going to prohibit them from 6 proceeding, I'm not going order them to dismiss in West 7 Virginia. You all can go to West Virginia and argue. 8 MR. BROTHERTON: The problem is of course, Your 9 Honor, is our guy has limited funds and -- 10 THE COURT: But he's got good lawyers, so -- who 11 are looking at an opportunity if you•re right of getting five 12 million dollars. 13 MR. COHEN: Yeah. 14 THE COURT: X'm sure that you can -- 15 MR. COHEN: Should have signed a contingent fee. 16 THE COURT: -~ make your way to West Virginia. 17 MR. BROTHERTON: Well, I certainly -- well, we can 18 come back. What about the setting, the injunction? 19 THE COURT: Because this is just a TRO time so -- 20 MR. COHEN: Yeah. 21 THE COURT: Be 14 days from now. 22 MR. BROTHERTON: Okay. So just get with your 23 clerk to get set a date. 24 THE COURT: Well, yes. Let's see. I don't know 25 when that would be. MELISSA VOIGT, CSR (512) 854-9258 Jun/23/2017 2:54:24 PM Bowles Rice 3044205587 20/20 29 1 THE STATE OF TEXAS 2 COUNTY OF TRAVIS 3 I, MELISSA VOIGT, Official Court Reporter in and 4 for the Probate Court No. 1 of Travis County, State of Texas, 5 do hereby certify that the above and foregoing contains a true 6 and correct transcription of all portions of evidence and 7 other proceedings requested in writing by counsel for the 8 parties to be included in this volume of the Reporter's 9 Record, in the above-styled and numbered cause, all of which 10 occurred in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of 12 the proceedings truly and correctly reflects the exhibits, if 13 any, offered by the respective parties. 14 I further certify that the total cost for the 15 preparation of this Reporter's Record is $130.50 and was paid 16 by Rose Cohen. 17 WITNESS MY OFFICIAL HAND this the 17th day of 18 March, 2016. 19 20 /s/ Melissa Voiqt 21 MELISSA VOIGT, CSR i4886 Official Court Reporter 22 Probate Court No. 1 Travis County, Texas 23 1000 Guadalupe, Room 217 Austin, Texas 78701 24 (512) 854-9258 C.S.R. Certification No. 4886 25 Expires: 12/16 MELISSA VOIGT, CSR (512) 854-9258 APPENDIX E IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, Plaintiff, vs. CIVIL ACTION NO. 15-C-28 HONORABLE ROBERT A. WATERS,Judge LINDA LOU MURRAY, et als, Defendants. RESPONSE OF LINDA MURRAY, IN HER CAPACITY AS SUCCESSOR TRUSTEE OF THE WILLIAM D. SHORT AND PHYLLIS D. SHORT REVOCABLE LIVING TRUST, TO THE MOTION TO INTERVENE FILED BY THE ESTATE OF DEBORAH CORTEZ Comes now Linda Murray, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, and files her Response to the Estate of Deborah Cortez' Motion to Intervene. The Movant has filed a Motion to Intervene in the case at bar relying upon Rule 24(a)(2) of the West Virginia Rules of Procedure. Rule 24(a)(2) provides: (a) Intervention of Right- Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the adjudication of the action may as a practicable matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. The timeliness of an application to intervene is a matter of discretion with the trial court. Syllabus Point 10, Pioneer Co. v. Hutchinson, 220 S.E.2d. 894 (1975), overruled on other 1 grounds; Syllabus Point, West Virginia Public Employees Insurance Board v. Blue Cross Hospital Service, Inc., 180 W.Va. 178 (1988). In the West Virginia Public Employees Insurance Board case, the West Virginia Supreme Court of Appeals applied the same standard for review of the timeliness of a motion to intervene as applied in Federal Court Review of such decisions. "The same standard has been applied in federal review of such decisions. In NAACP v. State ofNew York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed. 2d. 648 (1973), the party moving to intervene filed its motion just four days after the entry of the summary judgment order, yet the United States Supreme Court affirmed the trial judge's denial intervention. The court enumerated the criteria for reviewing a trial judge's discretionary decision to deny motion to intervene. Three areas were considered by the court: whether the underlying action had progressed to a point that intervention would substantially affect the parties to the original action; whether unusual circumstances exist which establish that the interest the movant alleges was inadequately protected; and whether the movant knew or should have known of the pendency of the action." NAACP, 413 U.S. at 366-69, 93 S.Ct. at 2602-04, 37 L.Ed. 2d. at 662-64, West Virginia Public Employees Insurance Board, supra, at pg. 814. Based upon review and analysis of the areas to be considered by this Court in ruling upon the pending motion, the motion should be denied for the following reasons: I. The Estate of Deborah Cortez bas no standing to Intervene in this civil action. It is axiomatic that the "Estate of Deborah Cortez" is not a proper party to this action, has no right to intervene and properly not named as a party. Estates are not natural or artificial persons, and they lack legal capacity to sue or to be sued, an action against an estate must be brought against an administrator or executor as a representative of the estate. 31 Am.Jur.2d, Executors and Administrators.§ 1141 (2016) The Estate of Deborah Cortez is non sui juris, as such it lacks the legal capacity to intervene in this action. This principle is clearly recognized in 2 the proposed intervenor hails. It is well settled that "an 'Estate' is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party." Gavishev. Spence, 129 S.W.Jd 701, 704n.l (Tex. App. 2004). Defendant's estate was not a legal entity and could not be sued as such. Henson v. Estate ofCrow, 734 S. W.2d 648, Supreme Court of Texas (1987). Price v. Estate ofAnderson, 522 S.W.2d 690,691 (Tex. 1975). II. The Motion Is Untimely This case was initially filed on November 20, 2015, nearly 19 months prior to the filing of the intervenor's motion. In the original Complaint filed in this action, Mateo Cortez, now the Personal Representative of the Estate of Deborah Cortez, was named as an individual defendant. Paragraph 13 of the Complaint stated: "13. Mateo Cortez, the surviving spouse of Deborah Ann (Short) Cortez, claims that as the surviving spouse of Deborah Ann (Short) Cortez he is entitled to the Trust proceeds. His claim is without legal merit, nevertheless, in order that he may appear and protect his interest, if any, he is named as a defendant herein." Mateo Cortez was not named as a defendant in his capacity as Personal Representative of the Estate of Deborah Cortez in the Complaint for the reason that at the time filing of the Complaint there was no on-going administration of the Estate of Deborah Cortez. Over three and one-half years prior to the filing of the Complaint, on February 21, 2012, two and one-half months after the death of Deborah Cortez, the movant, Mateo Cortez filed a Small Estate Affidavit in the Probate Court of Travis County, Texas. A copy of the Affidavit is attached hereto, marked as Exhibit A and made part hereof. In his Affidavit, Mateo Cortez swore that the 3 total value of all known assets of the decedent, as of the date of her death, not including the homestead and exempt property, does not exceed $50,000.00. The Affidavit stated that there was no petition for appointment of a personal representative pending, nor had one been granted. In the civil action sub judice, the defendant Mateo Cortez has repeatedly claimed that: (I) he was married to Deborah Cortez; (2) Deborah Cortez died intestate and without issue; and (3) he is the sole heir at law of Deborah Cortez. Mateo Cortez is the individual who had a right to open the estate of Deborah Cortez, V. T. C.A., Estate Code §304.00 I. He failed to do that with the result that he was the only person who could be served with the legal process intended to notify the heirs of Deborah Cortez of this litigation. The interests of Mr. Cortez are identical to the interest of"the estate of Deborah Cortez". Mr. Cortez should not be heard to complain about what he caused by willfully misrepresenting to the Texas Probate Court the extent of the assets of Deborah Cortez. The movant has been aware of the pendency of this action since its initial filing. Mateo Cortez did not become appointed as the Personal Representative of the Estate of Deborah Cortez until well after the filing of the Complaint. The movant has no justification, other than malicious interference, for the delay in filing the Motion to Intervene as the Personal Representative of the Estate of Deborah Cortez. III. The Estate of Deborah Cortez has no interest in the Property which is subiect of this action. The Estate of Deborah Cortez has no interest in the property which is the subject of this action. This has been specifically found by the Travis County Probate Court. In a parallel case filed in the State of Texas, styled Mateo Cortez, as Representative of the Estate of Deborah 4 Cortez, Plaintiff, vs. Sandra Fleshman Brown, et al., Travis County Probate Court No. l, Cause No. C-l-PB-16-002348, Judge Guy Hannon on February 10, 2017, entered an Amended Final Judgment ordering that the claim of Mateo Cortez as Personal Representative of the Estate of Deborah Cortez be dismissed in its entirety. The Judgment Order states in pertinent part: "In particular, the court dismissed any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez, (emphasis added) had to any assets of the William D. Short and Phyllis D. Short Revocable Living Trust (the Trust), other than his claim for undistributed income from the Trust during the life of Deborah Cortez." In its Amended and Final Judgment, the Texas Probate Court imposed sanctions upon the attorney for Mateo Cortez, William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amountof$65,130.76. The defendants in the Texas litigation had previously filed a Motion to Modify Judgment to include the sanctions award. The Court in its Order granting the Motion found that William J. Brotherton violated Texas Civil Procedure Remedies Code Chapter 10 in signing the original Petition in Intervention, the First Amended Petition in Intervention and the Third Party Petition, Second Amended Petition in Intervention and the Third Party Petition, the Third Amended Petition in Intervention and the Third Party Petition and the Fourth Petition in Intervention filed in this matter. In particular, the Court found that "Mr. Brotherton violated Texas Civil Procedure and Practices Remedies Code § l 0.001 by signing these pleadings because each of them contained the claim that Deborah Cortez was entitled to all the assets from the William D. Short and Phyllis D. Short Revocable Living Trust (the Trust) upon the death of Phyllis Short because Deborah was over the age of 35 when Ms. Short died. The court finds that the plain language of the Trust foreclose such claim and that this claim does not warrant 5 by existing law or by a non-frivolous argument for the extension, modification, or reversing of existing law or the establishment of new law." Copies of the Amended Final Judgment entered in the Travis County Probate Court litigation on February I0, 2017, and the Order on Third Party Defendant's Motion to Modify Judgment and Include Sanction Award dated February 10, 2017, are attached hereto, marked as Exhibits A and B, and made part hereof. IV. The Movant's interest in the proceeding bas been adequately represented by the original defendant, Mateo Cortez. Mateo Cortez was originally named as a defendant in this proceeding and has heretofore been dismissed from this action by this Court. By Order entered by this Court on September 15, 2016, the Court found that "Mateo Cortez is not a beneficiary of the Trust and is not entitled to share in the distribution of Trust assets." The Movant's claimed interest in the property set out in his Motion to Intervene is identical to the claim made by Mateo Cortez in his individual capacity. Mateo Cortez is the sole beneficiary of the Estate of Deborah Cortez. The claim now being advanced by Mateo Cortez in his capacity as the Personal Representative of the Estate of Deborah Cortez is identical in all respects to the claim made by Mateo Cortez in his individual capacity. With both claims, Mateo Cortez is ultimately seeking an Order from the Court that he is entitled to distribution of all the assets of the Short Trust The Court has already fully considered his claim as to Mateo Cortez in his individual capacity and found it to be without any merit whatsoever and dismissed Mateo Cortez as a party to this action. Now, Mateo Cortez, wearing a different hat, is simply attempting to re~litigate his dismissal. The Motion is frivolous and is filed in violation of Rule 11 of the West 6 Virginia Rules of Civil Procedure. V. Intervention will unduly delay or prejudice the adjudication of the rights of the remaining parties to this action. The controversy giving rise to this proceeding has been the subject of extensive litigation in this Court, the Travis County Probate Court in the State of Texas, the United States District Court for the Southern District of West Virginia, and the West Virginia Supreme Court of Appeals at considerable time and expense to the parties. All aspects of this case have been reviewed in detail by the various Courts. In each instance of court review, the Movant has been rendered an adverse ruling. The Motion before the Court is simply another effort by the Movant, Mateo Cortez, and his sanctioned counsel, William J. Brotherton, to delay the ultimate conclusion of this case, all to the prejudice of the real parties in interest. VI. Conclusion For all the above-stated reasons, Linda Murray, in her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, respectfully prays that the Court deny the Motion to Intervene filed by the Estate of Deborah Cortez. LINDA MURRAY BY COUNSEL 7 l~~ .· ..1·· WV State Baf#l~9 417 Grand r•Dri:Voe, Suite 101 Parltersbllr~ WV 2Ki10.S 304/424~5449. Couns.el for Linda .Mtmr.ay 8 Cause No. C-1-PB-12-00O~ EXHIBIT A -------- ·~ ... ~ \~: IN THE ESTATE OF § IN THE PROBATE COURT ~ \~ ~ DEBORAH A. CORTEZ § § § NO._____ t ,r ~~"{- (P c;.. 0 ~ ~ A'\ --- Notary Public in and for Travis County, State of Texas l, My Commission Expires: i/,..,.f S- Pa2e 2 of4 STATE OF TEXAS § § COUNTY OF TRAVIS § "1 have no interest in the Bstate of DEBORAH A. CORTEZ, Deceased, and am not related to Afftdav~ are true." h. Decedent under the laws of descent and distribution of the State of Texas. The facts contained in this ~ Sergio~~,.{-{ SWORN TO and SUBSCRIBED BEFORE ME by Sergio Madrigal, this 1!L_ day of fd>r1ta,q_ _ _ _, 2012, to certify which witness my hand and seal of office, in the capacity therein stated. 0 (Seal) -'4, Y1Vm.c1 ~ No Public i and for Travis County, State of TeXJ!SI J My Commission Expires: i:J(.J I '-l 20()- STATE OF TEXAS § § COUNTY OF TRAVIS § "I have no interest in the Estate of DEBORAH A. CORTEZ, Deceased, and am not related to Decedent under the laws of descent and distribution of the State of Texas. The facts contained in this Affidavit are true." ~Affiante) SWORN TO and SUBSCRIBED BEFORE ME by John Alvarez, this~ day o f @ ~ 2012, to certify which witness my hand and seal of office, in the capacity therein stated. (Seal) e SUSlEA.BAAREAA My Commts:slon E,cplle8 July 24, 2016 ~w~.5~ Notary Public in and for Travis County, State of Texas My Commission Expires: -,JJ.fff,"f> BENLBARRBRA Attorney for MATEO CORTEZ State Bar No.: 01808450] 606 W.Oltorf Austin, Texas 78704 Telephone: (512) 445-2054 Facsimile: (512) 445-4985 -'"' ~ L Ob , l "'.oe"- .. ,-,ero. (t).SLic LA l)cl,,t.. ~e:r- Pue3of4 EXlllBITB No. C-1-PB-14-001564 LINDA MURRAY, SUCCESSOR § IN THE PROBATE COURT NO. I TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLISS D. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN, § PLAINTIFF § ,_.. ..-(\ § ·:~- t;;:'.. ~ •..f\ V. § S?"\ '•? § ,·7 . ::, -,·., MATEO CORTEZ, ROBERT F. § :; :_; ."\ SCHLAGER AND WELLS FARGO § --0 \ -:;;. ,·'> BANK, NATIONAL ASSOCIATION, § OF ti' ~7. DEFENDANTS § § ;p;;: a . '- ***** § ,, § MATEO CORTEZ, AS REPRESENTATIVE§ OF THE ESTATE OF DEBORAH CORTEZ§ INTERVENOR § § V. § § LINDA MURRAY, SUCCESSOR § TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLLIS D. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN § § TRAVIS COUNTY, TEXAS ORDER GRANTING THIRD PARTY DEFENDANTS' TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT On this day. the Court considered the Traditional and No Evidence Motion for Summary Judgment (the ··Motion") filed by Third Party Defendants. S,mdra Flesher Brown. Charlotte Flesher Ash. Charlene Flesher Johnston. Connie Lee Keith Barry. Randall Wayne Davis. Virginia Villers. Charles Roberts. Lisa A. Smilh. Patricia Chapman. Betty J. Marks Webb. James Berl Marks. Linda Murray. Thomas Wayne Marks. Donald Leman Whited. Michael Ray Whited. No. C-1-PB-14-001564 Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities. Having considered the Motion. the response. all admissible summary judgment evidence. the argumenls of counsel. and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore. ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular. the Court hereby dismisses any and all claims that Mateo Cortc7_ in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez. has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust {the '·Trusf'). other than his claim for undistributed income from the Trust during the file of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray. in her capacity as trustee of the Trust SIGNED this 19th day of December. 2016. .., Case 2:16~Qv-09951 Document 34-2 Filed 02/14/17 Page 1 of 2 PagelD #: 2107 EXHIBITC CAUSE NO. C-l-,.PB,.16-002348 MATEO CORT:E:Z, AS REPRESENTATIVE§ IN THE PROBATE COURTNO, l OF THE ESTATE OF DEBORAH CORTEZ§ Plaitttiff § § ~ § OF § SANDRA FLESHFJR BROWN, § CHARLOT'I'E FLISI$RASII, § CHARLENE FLESHERJOI{STON, § CONNIE BARRY, llA:NDALL WAYNE § DAVIS,.VIRGJNL\ VltL&a&. CHARLES § ROBERTS, LIS-" A. SMITB, PATRICIA § CHAPMAN,. BETn: J. MARKS. WEBB, § JAMES BERL MAJU(S, LINDA MURRAY, § 'THOMAS WAYNE MARKS, DONALD § LEMAN WBITE01 MIPHAE~ RAY § WHITED, TERRY LEE WHITED and .§ SHERRY LYNN'WtiITED SALSBURY § Dl!fendanta § TR.AVIS•COUNTY,TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion fQr Summary Judgm~nt (th~ ··Motion for Summary Ju(lgrnenf')filed by Third Party P~fendants, Sandra Flesher Brown. Charlotte Flesher A.sh, Charlene Flesher Johnston. Connie lee Keith Chapman1 Betty J. Marks Webb, James Berl ·Marks, Linda Murray, Thomas Wayne Marks. DQnald Leman Whj~ Michael Ray Whited, Terry Lee Whited and Sh.eey Lynn Whited Satsbury, an in their individua,l capacities (collectively "Third Party Defendants,.), in Cause Number C-J .;PB-14-001564. After considering the Motion for Summary Judgment, the response1 aU admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court. the Court GRANTED the Motion for Summary Jud3ment in itsentirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In partfouuu-, the Co:urt di~missed any and all claims that Mateo Ct.irte:i:, in 11.is inttlvidual l case 2:16-cv-09951 Document 34-2 Filed 02/14/17 Page 2 of 2 PagelD #: 2108 capacity or in hi.s capacity .is personal representative of the Estate or Dcbornh Cmtcz. had 10 uny us.sets ofThc \Villiam D. Short and Phyllis D. Short Revocable Living Trust (lhc ·Trust''). othcf thnn his claim tor undistributed irn:omc from the Trust d~1ring the life or Dcht>nth Cortez. Also on December l 9. 201 (1, the Court considered Third Party De fondant!>· Motion to Sever; Aficr considering the Motion to Scwr, the response, the arguments of counsel. and tlm other p.ipcrs on file with the Court. the Court GRANTED the Motion to Sever in it~ entirety nnd ORDERED tlmt Marco Corcz's claims against Third Party Dcfonchmts in this lawsuit be .severed in thcfr entirety and assjgned the new cause number C-l-PB-16-00234{{. On January 16. 2017. Third Party f)dcndanrs filed their l'vfotfon 10 Modify Judgment JO Include Sanctfon$ Award (the "Motion to l\.1lodify"), which extended the plenary power of the Coun to modify iis judgment. The Motion to i\fodify was heard by the Court at a hearing on .lanuury 3(). 2017. A flcr considering the Motion to Modify, the response, the mhnissiblc evidence prcscntcd at the hearing, the response, tht arguments of counsd, and the other papers on file wirh the Court. gnintcd the iVlotion to rvlodify in part and granted sanctions. The Comt sanctions nttorncy Williain .I. Brodwrton and the Brothcnrrors and inaccuracies." (Exhibit I-Brotherton March I, 2017 letter). h. April 11, 2017: On April 11, 2017, the United States District Court for the Southern District of West Virginia remanded this matter back to the Circuit Court of Wirt County, West Virginia, thereby rejecting the arguments proffered by Mateo Cortez to justify removal. (See Document 36, Memorandum Opinion and Order, not attached) i. May 10, 2017: On May 10, 2017, the parties conducted mediation in Houston Texas. The matter did not resolve. j. June 26, 2017: By letter dated June 26, 2017, the undersigned again warned Mateo Cortez's attorneys that their litigation tactics were frivolous and taken in bad faith, and further warned that Mrs. Barry would seek sanctions against them if they refused to cease their obstruction of this case. (Exhibit J - Boone June 26, 2017 II letter) Mateo Cortez and his attorneys have nonetheless refused to withdraw their frivolous claims. IV. ARGUMENT To recover reasonable attorneys' fees and costs as a sanction, the prevailing litigant must show that the losing party "acted in bad faith, vexatiously, wantonly or for oppressive reasons." See Sy!. Pt. 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986). In order to determine whether the losing party's conduct rises to such a level, the Court must evaluate "(!) the seriousness of the misconduct; (2) the impact the conduct had in the case and in the administration of justice; (3) whether there are mitigating circumstances; and (4) whether the conduct was an isolated occurrence or was a pattern of wrongdoing." Pritt v. Suzuki Motor Co., Ltd, 204 W.Va. 388, 397, 513 S.E.2d 161, 170 (1998) (citing Sy!. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381,472 S.E.2d 827 (1996)). A. The Seriousness of the Misconduct I. Mateo Cortez And His Attorneys Began Their Vicious Assault On The Rightful Heirs Only After Discovering That The Trust Contained Over Five Million Dollars In Assets. From the outset, it is important to review the facts and circumstances surrounding the genesis of Mateo Cortez's frivolous arguments. In 2012, Mateo Cortez filed a Small Estate Affidavit, for the Estate of Deborah Cortez, confirming that the Estate had less than $50,000. (Exhibit A). In 2014, when Mateo Cortez responded to allegations that he misappropriated certain Trust Assets, he never claimed that he or the Estate of Deborah Cortez were the sole beneficiaries to the Trust. In fact, Mateo Cortez and his counsel did not discover the sizeable nature of the Trust until the deposition of the Trustee on June 19, 2015. 12 During a hearing before the Probate Court, the Trustee testified regarding her experience during this June 19, 2015, deposition. 6 The Trustee testified that, during her deposition, it became clear Mateo Cortez and his counsel did not know the amount of the Trust prior to this deposition and that, upon learning the amount of the Trust, Mateo Cortez and his counsel became instantly enamored of the sizeable nature of the Trust. Q. (By Mr. Boone) Who was -- who was taking the deposition? A. Brotherton. Q. The Brotherton Law Firm? Someone from the Brotherton Law Firm? A. Yes, it was. Q. And Mateo Cortez was there? A. Yes. Q. All right. A. He was with them. Q. Okay. So when they asked you how much was in the trust did you know the answer? A. Yes, I did. Q. And did you tell them the answer? A. Yes, I did. Q. What was your answer? A. 5.2 million dollars. Q. What if any reaction did yon observe at that time? 6 As noted above, on February JO, 2017 1 the Honorable Guy Herman, Judge of the Probate Court of Travis County, Texas, sanctioned William Brotherton and the Brotherton Law Firm for filing frivolous claims, and ordered them to pay $65,130.76 within 30 days to Mrs. Bany. In advance of this sanctions award, Judge Herman conducted an evidentiary hearing on January 30, 2017. At this evidentiary hearing, the Trustee testified regarding her efforts in Texas to recoup monies that were misappropriated by Mateo Cortez, including her experience sitting for her deposition on June 19, 2015. 13 A. You could see eyes rolling. Q.Howso? A. Just so you could -- you could just see that they knew there was a lot of money. And then shortly after we had a break. Q. Shortly after that question there was a break? A. Yes. Q. And what do you mean by "a break?" A. 15 minute break. Q. Counsel left and -- A. Counsel left, we -- yes. Q. And do you recall if there were many questions after the break concluded? A. No, there wasn't. Q. And that deposition occurred on June 19th, 2015, correct? A. That is correct. Q. Now, did Mateo through his counsel make any claims after that deposition that were new and different? Did they file any papers or pleadings or anything after that deposition? A. Oh, yes. They filed -- they filed saying that that money belonged to Mateo Cortez and all -- and it was all of it. He -- Matt said all of the money belonged to him. (Exhibit F, pp. 85-86)( emphasis added). As such, in light of Mateo Cortez's filings in 2012 and 2014, and in light of the June 19, 2015, deposition, it is clear that Mateo Cortez had no any idea regarding the sizeable nature of the Trust. In fact, it wasn't until seven (7) days after the June 19, 2015, deposition, did Mateo Cortez first allege that he and/or the Estate of Deborah Cortez were entitled to the entirety of the Trust Assets; on that date, June 26, 2015, William Brotherton filed Mateo Cortez's 14 "Original Petition in Intervention," claiming that Mateo Cortez is the sole heir to the Trust Assets. Point being, it was only after learning that the Trust Assets contained 5.2 Million did Mateo Cortez and his Legal Team begin to embark with their "no holds bar" quest to strip the rightful beneficiaries of their rights to the Trust Assets. Without question, the timing of their actions reveal that Mateo Cortez and his counsel have been motivated solely by greed, and not by any legitimate claim to the Trust Assets. 2. Mateo Cortez And His Attorneys Filed Their Claims Without Any Justification In Fact Or Law. The inability of Mateo Cortez's counsel to articulate any reasonable justification for claiming Mateo Cortez is sole heir to the Trust Assets further demonstrates the seriousness of the misconduct. At the January 30, 2017, hearing before the Probate Court, Texas Counsel for the heirs-at-Jaw, Brian Thompson, examined Mr. Brotherton under oath, and asked Mr. Brotherton to explain why Mateo Cortez is entitled to take under the "Postponement Section" of the Trust. (Exhibit F, pp. 37 - 48). As the record demonstrates, Mr. Brotherton could not sufficiently explain the basis for his claim. First, Mr. Brotherton rationalized his inability to fully explain the basis for Iris initial pleading with being preoccupied by a matter in North Dakota. Q. (Mr. Thompson) Okay. It seems to me that most of the claims that you brought -- or all of the claims that you brought on behalf of your client were based on Texas Jaw as it exists now. You weren't saying that law should change, were you? A. (Mr. Brotherton) Again -- and I've got to say over the last six months I've spent most of my time in North Dakota so I haven't been involved in this case in a little while. So you may want to talk with Mr. Hester about some of those technical issues. 15 (Exhibit F, p. 20). Further, when pressed for a simple explanation as to why the Estate of Deborah Cortez is entitled to take under the Postponement Provision (Section D), Mr. Brotherton could not provide an explanation: Q. And again, back to my original question, is there any other language in that D portion, the postponement of possession portion, that you believe supports this postponement provision claim? A. You're talking about in the trust? Q. Well, sir, the claim cites in every single one of the pleadings that we looked at, the claim cites Article 8 Section D to support this claim. And I'm asking you, can you point out what language you believe in Article 8, Section D supports this claim? And that's on Page 5 of the trust. A. Well, I mean, whatever we put in our pleadings is -- is -- addresses that. I'm not going to sit here and try and explain it all to you at this point because certainly we've outlined in our pleadings, we've consulted with necessary experts and we believe every claim we've made is colorable. Q. Was Mr. Kelsey going to testify in this case if it had reached trial as an expert? A. I hadn't made that decision yet. Q. He certainly was never designated as an expert, was he? A. Correct. (Exhibit F, pp. 40-41). In sum, Mr. Brotherton could not justify his argument that Mateo Cortez, pursuant to the Postponement provision, was entitled to the Trust Assets. As such, Judge Herman agreed that Mr. Brotherton's conduct was sanctionable, and ordered Mr. Brotherton to pay $65,130.76 to Mrs. Barry for her legal fees in Texas. (To date, Mr. Brotherton refuses to pay this sanctions 16 award.) Mr. Brotheron testified that the arguments proffered in Texas were "virtually identical" to the arguments proffered in West Virginia. (Exhibit F, p. 42). As such, just as Judge Herman awarded sanctions against the Brotherton Law Firm for fees and costs expended by Mrs. Barry in Texas, so should this Honorable Court similarly award sanctions for fees and costs expended by Mrs. Barry in West Virginia. 3. Mateo Cortez And His Attorneys Deliberately Filed Frivolous Pleadings With The Improper Purpose Of Obstructing The Progression Of This Case And Driving Up The Parties' Litigation Costs. Each time the Trustee would notice her motion for summary judgment for a hearing, Mateo Cortez would initiate a new filing to delay this Court's consideration of the Trustee's motion. First, when the Trustee filed a notice on September 21, 2016, setting her Motion for Summary Judgment for hearing on November 3, 2016, Mateo Cortez removed this case to Federal Court on October 21, 2016. Later (after remand), when the Trustee again filed a notice on April 20, 2017, setting her motion for hearing on June 27, 2017, counsel for Mateo Cortez filed a Motion to Dismiss and Motion to Intervene. Incredulously, a letter from William Brotherton confirms that the sole intent of these two motions was to delay consideration of Trustee's motion for summary judgment. I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. ExhibitE The reason why Mateo Cortez has repeatedly attempted to derail consideration of the Trustee's Motion for Summary Judgment is because once the Court grants the Trustee's 17 motion for summary judgment, then the assets may be distributed. Pursuant to a Rule 11 Agreement executed by counsel for Mateo Cortez and counsel for Trustee, the Trustee may distribute assets of the Trust "as may be pennitted by a final order by a court of competent jurisdiction." Exhibit D. Mateo Cortez has attempted to obstruct the proceedings in this Court precisely because the declaratory relief requested by the Trustee (i.e., "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same") would trigger the Rule 11 Agreement. Additionally, Mateo Cortez has also filed these pleadings to drive up the costs of this litigation, in a plan to deplete the Trust assets and to cause financial hann to the individual Trust beneficiaries. In West Virginia alone, the rightful beneficiaries of the Trust have been forced to defend against multiple motions, an extraordinary writ petition, and an improvident post-judgment case removal, to the tune of tens of thousands of dollars in legal fees and nearly two years of delay. Each of Mateo Cortez's litigation tactics have been rejected by the court(s) that have considered them, yet the Trustee and the true beneficiaries of the Trust have nonetheless suffered real financial hann in defending against them. B. The Conduct of Mateo Cortez and His Counsel has Impacted the Financial, Physical and Emotional Wellbeing of the Parties. I. Mrs. Barry Has Expended Over Tens of Thousand Dollars Fighting Meritless Litigation. The impact of Mateo Cortez's misconduct was the abuse of the legal system through the attempted prosecution of a series of baseless claims: Although there is an undeniable interest in the maintenance of unrestricted access to the judicial system, unfounded claims or defenses asserted for vexatious, wanton, or oppressive purposes 18 place an unconscionable burden upon precious judicial resources already stretched to their limits in an increasingly litigious society. In reality to the extent that these claims or defenses increase delay or divert attention from valid claims [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4230862. Public record. Not legal advice.