Mateo Cortez, as Representative of the Estate of Deborah Cortez v. Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marks, Linda Murray

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

--- Notary Public in and for Travis County, State of Texas l, My Commission Expires: i/,..,.f S- Pa2e 2 of4 STATE OF TEXAS § § COUNTY OF TRAVIS § "1 have no interest in the Bstate of DEBORAH A. CORTEZ, Deceased, and am not related to Afftdav~ are true." h. Decedent under the laws of descent and distribution of the State of Texas. The facts contained in this ~ Sergio~~,.{-{ SWORN TO and SUBSCRIBED BEFORE ME by Sergio Madrigal, this 1!L_ day of fd>r1ta,q_ _ _ _, 2012, to certify which witness my hand and seal of office, in the capacity therein stated. 0 (Seal) -'4, Y1Vm.c1 ~ No Public i and for Travis County, State of TeXJ!SI J My Commission Expires: i:J(.J I '-l 20()- STATE OF TEXAS § § COUNTY OF TRAVIS § "I have no interest in the Estate of DEBORAH A. CORTEZ, Deceased, and am not related to Decedent under the laws of descent and distribution of the State of Texas. The facts contained in this Affidavit are true." ~Affiante) SWORN TO and SUBSCRIBED BEFORE ME by John Alvarez, this~ day o f @ ~ 2012, to certify which witness my hand and seal of office, in the capacity therein stated. (Seal) e SUSlEA.BAAREAA My Commts:slon E,cplle8 July 24, 2016 ~w~.5~ Notary Public in and for Travis County, State of Texas My Commission Expires: -,JJ.fff,"f> BENLBARRBRA Attorney for MATEO CORTEZ State Bar No.: 01808450] 606 W.Oltorf Austin, Texas 78704 Telephone: (512) 445-2054 Facsimile: (512) 445-4985 -'"' ~ L Ob , l "'.oe"- .. ,-,ero. (t).SLic LA l)cl,,t.. ~e:r- Pue3of4 EXlllBITB No. C-1-PB-14-001564 LINDA MURRAY, SUCCESSOR § IN THE PROBATE COURT NO. I TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLISS D. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN, § PLAINTIFF § ,_.. ..-(\ § ·:~- t;;:'.. ~ •..f\ V. § S?"\ '•? § ,·7 . ::, -,·., MATEO CORTEZ, ROBERT F. § :; :_; ."\ SCHLAGER AND WELLS FARGO § --0 \ -:;;. ,·'> BANK, NATIONAL ASSOCIATION, § OF ti' ~7. DEFENDANTS § § ;p;;: a . '- ***** § ,, § MATEO CORTEZ, AS REPRESENTATIVE§ OF THE ESTATE OF DEBORAH CORTEZ§ INTERVENOR § § V. § § LINDA MURRAY, SUCCESSOR § TRUSTEE AND ON BEHALF OF THE § WILLIAM D. SHORT AND PHYLLIS D. § SHORT REVOCABLE LIVING TRUST § INCLUDING THE CREDIT SHELTER § TRUST CREATED THEREIN § § TRAVIS COUNTY, TEXAS ORDER GRANTING THIRD PARTY DEFENDANTS' TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT On this day. the Court considered the Traditional and No Evidence Motion for Summary Judgment (the ··Motion") filed by Third Party Defendants. S,mdra Flesher Brown. Charlotte Flesher Ash. Charlene Flesher Johnston. Connie Lee Keith Barry. Randall Wayne Davis. Virginia Villers. Charles Roberts. Lisa A. Smilh. Patricia Chapman. Betty J. Marks Webb. James Berl Marks. Linda Murray. Thomas Wayne Marks. Donald Leman Whited. Michael Ray Whited. No. C-1-PB-14-001564 Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities. Having considered the Motion. the response. all admissible summary judgment evidence. the argumenls of counsel. and the other papers on file with the Court, the Court hereby GRANTS the Motion in its entirety. It is therefore. ORDERED, that Mateo Cortez's claims against Third Party Defendants in this lawsuit are dismissed in their entirety. In particular. the Court hereby dismisses any and all claims that Mateo Cortc7_ in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez. has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust {the '·Trusf'). other than his claim for undistributed income from the Trust during the file of Deborah Cortez. This judgment has no effect on Mateo Cortez's breach of fiduciary duty against Linda Murray. in her capacity as trustee of the Trust SIGNED this 19th day of December. 2016. .., Case 2:16~Qv-09951 Document 34-2 Filed 02/14/17 Page 1 of 2 PagelD #: 2107 EXHIBITC CAUSE NO. C-l-,.PB,.16-002348 MATEO CORT:E:Z, AS REPRESENTATIVE§ IN THE PROBATE COURTNO, l OF THE ESTATE OF DEBORAH CORTEZ§ Plaitttiff § § ~ § OF § SANDRA FLESHFJR BROWN, § CHARLOT'I'E FLISI$RASII, § CHARLENE FLESHERJOI{STON, § CONNIE BARRY, llA:NDALL WAYNE § DAVIS,.VIRGJNL\ VltL&a&. CHARLES § ROBERTS, LIS-" A. SMITB, PATRICIA § CHAPMAN,. BETn: J. MARKS. WEBB, § JAMES BERL MAJU(S, LINDA MURRAY, § 'THOMAS WAYNE MARKS, DONALD § LEMAN WBITE01 MIPHAE~ RAY § WHITED, TERRY LEE WHITED and .§ SHERRY LYNN'WtiITED SALSBURY § Dl!fendanta § TR.AVIS•COUNTY,TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion fQr Summary Judgm~nt (th~ ··Motion for Summary Ju(lgrnenf')filed by Third Party P~fendants, Sandra Flesher Brown. Charlotte Flesher A.sh, Charlene Flesher Johnston. Connie lee Keith Chapman1 Betty J. Marks Webb, James Berl ·Marks, Linda Murray, Thomas Wayne Marks. DQnald Leman Whj~ Michael Ray Whited, Terry Lee Whited and Sh.eey Lynn Whited Satsbury, an in their individua,l capacities (collectively "Third Party Defendants,.), in Cause Number C-J .;PB-14-001564. After considering the Motion for Summary Judgment, the response1 aU admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court. the Court GRANTED the Motion for Summary Jud3ment in itsentirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In partfouuu-, the Co:urt di~missed any and all claims that Mateo Ct.irte:i:, in 11.is inttlvidual l case 2:16-cv-09951 Document 34-2 Filed 02/14/17 Page 2 of 2 PagelD #: 2108 capacity or in hi.s capacity .is personal representative of the Estate or Dcbornh Cmtcz. had 10 uny us.sets ofThc \Villiam D. Short and Phyllis D. Short Revocable Living Trust (lhc ·Trust''). othcf thnn his claim tor undistributed irn:omc from the Trust d~1ring the life or Dcht>nth Cortez. Also on December l 9. 201 (1, the Court considered Third Party De fondant!>· Motion to Sever; Aficr considering the Motion to Scwr, the response, the arguments of counsel. and tlm other p.ipcrs on file with the Court. the Court GRANTED the Motion to Sever in it~ entirety nnd ORDERED tlmt Marco Corcz's claims against Third Party Dcfonchmts in this lawsuit be .severed in thcfr entirety and assjgned the new cause number C-l-PB-16-00234{{. On January 16. 2017. Third Party f)dcndanrs filed their l'vfotfon 10 Modify Judgment JO Include Sanctfon$ Award (the "Motion to l\.1lodify"), which extended the plenary power of the Coun to modify iis judgment. The Motion to i\fodify was heard by the Court at a hearing on .lanuury 3(). 2017. A flcr considering the Motion to Modify, the response, the mhnissiblc evidence prcscntcd at the hearing, the response, tht arguments of counsd, and the other papers on file wirh the Court. gnintcd the iVlotion to rvlodify in part and granted sanctions. The Comt sanctions nttorncy Williain .I. Brodwrton and the Brothcn<:111 Law Finn, Jointly and scvcrnlly. in the amount of $65.130.76, ntul ORDERS thul this amount be paid to the Third P.irly Dclcndants within 30 duys of the entry of this final judgment. This ac11cnded judgment finally disposes of nit claims anil partk:- und is fim1! and appe,ilabk. Sigli¢d this l 0th day of February. 20 l 7, 2 IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA Linda Murray, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, CIVIL ACTION NO: 15-C-28 vs. Honorable Robert A Waters, Judge Linda Lou Murray, et a/s., Defendants. CERTIFICATE OF SERVICE The undersigned, counsel of record for Plaintiff, Linda Murray in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust, in the above styled action, hereby certifies that on this 22nd day of June, 2017, he served the foregoing and hereto attached RESPONSE OF LINDA MURRARY, IN HER CAPACITYAS SUCCESSOR TRUSTEE OF THE WILLIAM D. SHORT AND PHYLLIS D. SHORT REVOCABLE LIVING TRUST, TO THE MOTION TO INTERVENE FILED BY THE ESTATE OF DEBORAH CORTEZ upon the Defendants, by United States Mail, First-Class postage prepaid, to the following counsel of record and other persons in envelopes addressed as follows: ames W. Marshall, 111, eslie L. Maze, Esquire aron C. Boone, squire ttorney at Law aitlyn N. McKitrick, AILEY & WYANT, PLLC 0 Box 279 avid A DeJarnett 00 Virginia Street, East - lizabeth, WV 26143 owles Rice, LLP uite 600, Post Office Box ounsel of record for the ifth Floor, United Square 710 ollowing Defendants: 10 Avery Street, PO Box 49 harleston, WV 25337-3710 herry Lynn Whited Salsbury arkersburg, WV 26101 ounsel of Record for the erry Lee Whited ounsel of Record for the efendant, Mateo Cortez ichael Ray Whited efendant, Connie Lou Keith onald Whited arry. state of Teresa Whited ettrey, deceased - Sheila ettrey, Tywanna Pettrey, and manda Pett Beneficiaries irginia Ann Villers oseph T. Santer, Esquire andall Wayne Davis 8649 Allesandria Circle anter and Santer 663 Brooksford Road onita Springs, FL 34135 0 Box 306 ennersville, NC 27284 arkersburg, WV 26102 uardian ad litem for nknown Defendants. harlotte Flesher Ash harles Bruce Roberts isa Ann Rader Smith 653 White Swan Drive 87 Wilson Fork 6 Franklin Street pt. 104 lizabeth, WV 26143 lizabeth, WV 26143 am a FL 33614 homas Wayne Marks ames Berl Marks etty Jo Marks 49 South Long Run Road 093 South Pleasant Hill 834 South Pleasant Hill elleville, WV 26133 oad oad elleville WV 26133 elleville WV 26133 andra Kay Brown agen Elizabeth Whited 9 Woodridge Drive 64 Joe Shore Drive ineral Wells WV 26150 avenswood WV 26143 harlene Flesher Johnston inda Lou Murray illiam J. Brotherton 7 Franklin Street 97 Oakbrook Drive rotherton Law Firm lizabeth, WV 26143 ineral Wells, WV 26150 340 FM 407, Suite 200 i hland Villa e TX 75077 Plaintiff Linda Murray By Couns , R'l--~'-,...F-t-fi · , J WV State Bar No. 1229 Fluharty & Townsend 417 Grand Park Drive, Suite 101 Parkersburg, WV 26105 304.422.544 G:\RSF\Civil\Short Family Trust, Linda Murray, Trustee 9360\WIRT COUNTY SUIT\Pleadings\Certificate of Service TTEE response to MTINTERVEN by EDC 06.21.17.wpd APPENDIX F IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA Linda Murray, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, vs. CIVIL ACTION NO. 15-C-28 HONORABLE ROBERT A WATERS, Judge Linda Lou Murray, et als, Defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came on for hearing this 27 111 day of June 2017 on the properly served motion for summary judgment and notice of hearing thereon filed by the Plaintiff, Linda Murray, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991. The plaintiff, Linda Murray, appeared in person and by her counsels Robert S. Fluharty Jr., and J. Nicholas Barth. The defendant Connie Lou Keith Barry, appeared in person and by her counsel Aaron A. Boone. The defendants Donald Lehman Whited, Michael Ray Whited, Sheri Lynn Whited Saulsberry, Sheila Patry, I want to Patry, Amanda Patry (all heirs of Theresa Annette Whited Patry), and Terry Lee Whited appeared by their counsel Leslie Maze. Joseph Santer, Guardian ad Litem for unknown defendants and the minor defendant was present throughout the hearing. The court reporter made a list of the parties who appeared pro se. Although Mateo Cortez was dismissed as a party to this civil action pursuant to the order of this Court entered September 15, 2016, counsel for Mr. Cortez were present at the hearing on this motion for summary judgment allowed to participate, and the Court considered the matters raised by them in their response to the motion for summary judgment served on the 21 st day of June, 2017. The Court has reviewed the pending motions and memoranda filed by all parties herein and being fully apprised of the parties respective positions in finding the motion ripe for decision the Court hereby makes the following findings of fact and conclusions of law. FILED Circuit Court 0atel,-30-1, CLERK7=J . . FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. This action was filed pursuant to the West Virginia Uniform Declaratory Judgment Act seeking an Order from the Court directing the distribution of assets from a Trust to the persons determined by the Court to be entitled to receive the same. 2. In its order dated the 15th day of September, 2016 this Court made Findings of Fact and Conclusions of Law. Those findings of fact and conclusions of law are hereby ratified and approved and confirmed and adopted herein as though set forth herein verbatim. 3. The court having denied the Motion to Intervene served by the Estate of Deborah Cortez on the 12th day of June, 2017 and the Motion to Dismiss served by Mateo Cortez on the 12th day of June, 2017, and the Motion to Alter or Amend, (denominated as Motion for Reconsideration in the certificate of service) served by Mateo Cortez on the 29 th day of September, 2016. 4. The Court concludes that there is no just reason for delay and expressly directs the entry of a judgment order setting forth the identity of the persons entitled to share in the William D. Short and Phyllis D. Short Revocable Living Trust, and the proportionate interest of the net Trust which each is entitled to receive. JUDGE ROBERT WATERS PREPARED BY: I hereby certify that the foregoing is atrue and correct copy of the original entry on file in my office ATTEST: Carol Frame 'it Clerk-Wirt Cou , VN G:\RSF\Civi_l\Short Family Trust, Linda Murray, Trustee 9360\WIRT COUNTY SUIT\version 2 Findings of Fact and Conclusions of Law 06.26.18.wpd ACCEPTED 03-17-00365-cv 21267080 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/13/2017 1:36 PM JEFFREY D. KYLE CLERK APPENDIX G IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. MEMORANDUM IN SUPPORT OF DEFENDANT CONNIE LOU KEITH BARRY'S MOTION FOR SANCTIONS Defendant Connie Lou Keith Barry ("Mrs. · Barry"), by counsel, submits the following memorandum of law in support of Defendant Connie Lou Keith Barry's Motion for Sanctions (the "Motion"), pursuant to this Court's equitable power to sanction bad faith, vexatious, wanton, or oppressive litigation conduct articulated in Syllabus Point 3, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986). I. INTRODUCTION Mateo Cortez, for years, never claimed that he or the Estate of Deborah Cortez were the sole beneficiaries to the Trust. However, as soon as Mateo Cortez and his counsel discovered that the Trust contained 5.2 Million in assets, they immediately concocted meritless arguments to suggest that he was the sole beneficiary to the Trust Assets. This forced Mrs. Barry to hire counsel to refute these claims. However, even after winning judgment against Mateo Cortez on September 15, 2016, Mrs. Barry had to expend tens of thousands of additional dollars in litigation costs solely to respond to further, frivolous filings that were submitted solely to: (a) delay this Court's consideration of the Trustee's motion for summary judgment, and (b) to drive up Mrs. Barry's litigation costs and deplete the Trust Assets. Accordingly, this Court should sanction Mateo Cortez and his counsel, and order them, jointly and severally, to pay any and all costs incurred on behalf of Mrs. Barry, at a minimum, since September 15, 2016. II. STANDARD OF REVIEW 1. "There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syl. Pt. 3, Sally- Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986). 2. "In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case." Sy!. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381,472 S.E.2d 827 (1996). 3. "Before imposing sanctions for filing frivolous pleadings and advancing frivolous arguments, a trial court must give the alleged contemnor notice and an opportunity to be heard on the questions of frivolousness, appropriate sanctions, and, if an award of attorney's fees is to be made, on the necessity and reasonableness of such fees. At the conclusion of such hearing, the trial court must make sufficient findings of fact and conclusions of law to enable the 2 appellate court to conduct a meaningful review." Sy!. Pt. 6, Czaja v. Czaja, 208 W.Va. 62, 537 S.E.2d 908 (2000). Ill. STATEMENT OF CONDUCT GIVING RISE TO SANCTIONS Background 4. This action involves the proper distribution of the assets of the "William D. Short and Phyllis D. Short Revocable Living Family Trust Dated April 30, 1991 ," as amended and restated by the "Second Amendment and Restatement of The William D. Short and Phyllis D. Short Revocable Living Trust" dated January 5, 2000 (collectively, the "Trust"). 5. On December 9, 2011, Deborah Cortez, the sole daughter of William D. Short and Phyllis D. Short died. 6. On February 23, 2012, Mateo Cortez, the widower of Deborah Cortez, filed a Small Estate Affidavit (Exl,ibit A - Small Estate Affidavit, Cause No. C-1-PB-12-338, Probate Court of Travis County, Texas), confirming that he was the sole heir to the Estate of Deborah Cortez, and confirming that the Estate of Deborah Cortez had less than $50,000 in assets. 7. On August 28, 2014, the Trustee, Linda Murray, filed an action in the Probate Court of Travis County, Texas, asserting, inter alia, that Mateo Cortez and/or Deborah Cortez had misappropriated certain trust assets during Deborah's lifetime. 8. On October 3, 2014, Mateo Cortez filed "Mateo Cortez's Original Answer" (Exliibit B - Mateo Cortez's Original Answer, Cause No. C-l-PB-14-1564, Probate 3 Court of Travis County, Texas) to the Trustee's action. In his Answer, Mateo Cortez did not claim that he or the Estate of Deborah Cortez was entitled to the entirety of the Trust Assets. 9. On March 16, 2015, Mateo Cortez filed "Mateo Cortez's First Amended Answer" (Exhibit C - Mateo Cortez's First Amended Answer, Cause No. C-l-PB-14-1564, Probate Court of Travis County, Texas) to the Trustee's action. In his Amended Answer, Mateo Cortez did not claim that he or the Estate of Deborah Cortez was entitled to the entirety of the Trust Assets. 1 10. On June 19, 2015, counsel for Mateo Cortez deposed the Trustee. During this deposition, the Trustee revealed, for the first time to Mateo Cortez and his counsel, that the Trust contained approximately 5.2 Million in assets. 11. On June 26, 2015, Mateo Cortez and his counsel (the Law Firm of William Brotherton) filed their Original Petition in Intervention 2, arguing (for the first time, ever) that Mateo Cortez and/or the Estate of Deborah Cortez were the sole beneficiaries to the Trust and were, therefore, entitled to the entirety of the Trust Assets. 1 Of note, "Mateo Cortez's Original Answer" and ".Mateo Cortez's First Amended Answer" were signed by Attorney John Clark Long IV of Dallas, Texas (Texas State Bar No. 12520500). The signature line for these two pleadings suggests that Mr. Long was not directly affiliated with the Brotherton Law Firm at this time because Mr. Long had a mailing address separate from the Brotherton Law Finn, and because Mr. Long's email address was john@johnlonglawyer.com. However. when Mateo Cortez flied his "Original Petition in Intervention," Mr. Long was directly affiliated with the Brotheron Law Finn because Mr. Long's name appeared directly underneath William Brotherton's name, because Mr. Long no longer had a separate mailing address, and because Mr. Long's email address was john@brothertonlawfrrm.com. 2 Mrs. Bany believes that most, if not all, of the pleadings referenced herein have previously been submitted to this Court. As such, unless otherwise indicated, they will not be attached as exhibits to this Motion. Notwithstanding, Mrs. Barry submits all prior pleadings in further support of her Motion for Sanctions as though they were specifically attached hereto. 4 12. On November 20, 2015, the Trustee filed her Complaint in the Circuit Court of Wirt County, West Virginia, asking this Honorable Court to determine who were the rightful beneficiaries to the Trust. 13. On September 15, 2016, this Court granted Mrs. Barry's motion for partial sununary judgment, and dismissed Mateo Cortez as a defendant in this case based upon the findings, conclusions, and rulings reflected therein. Among other findings, the Court concluded that the plain and unambiguous language of the Trust instrument provides that: (i) the net income of the Trust would be paid to Mr. and Mrs. Short during their lives; (ii) upon Mr. and Mrs. Short's death, the net income of the Trust would then be paid to their daughter, Deborah Cortez, during her life; and then, (iii) upon Deborah's death, any remaining Trust assets would be distributed to the "heirs of law" of Mr. and Mrs. Short, and not to Cortez. The Court also rejected Mateo Cortez's arguments that the Trust should have terminated upon the death of Mrs. Short and its assets distributed to Deborah during her life; and as a result the Trust assets should be treated as an asset of Deborah's estate, of which Cortez is the sole heir and beneficiary. Statement oftlie improper purposes underlvi11g Mateo Cortez's actions 14. Following this Court's entry of summary judgment against him on September 15, 2016, Mateo Cortez, in both his personal capacity and his capacity as the Personal Representative of the Estate of Deborah Cortez (collectively, "Mateo Cortez"), filed numerous additional pleadings that are improper under the rules of procedure, that assert obviously frivolous claims, and that were filed to obstruct further progression of this case and to drive up the parties' litigation costs. These pleadings were filed for the following improper purposes: 5 a. The primary improper purpose of Mateo Cortez's frivolous post- judgment filings was to delay this Court's consideration of the Trustee's motion for summary judgment, filed September 21, 2016, the resolution of which would trigger the parties' "Rule 11 Agreement" in Texas. (Exlzibit D - Rule 11 Agreement, Cause No. C- l-PB-14-1564, Probate Court of Travis County, Texas) The "Rule 11 Agreement" was executed by counsel for Mateo Cortez and the Trustee, and permits the Trustee to distribute assets of the Trust "as may be permitted by a final order by a court of competent jurisdiction." Point being, once Judge Waters ruled on the Trustee's motion for summary judgment, then the Trustee could distribute the Trust assets per the Rule 11 Agreement. b. The secondary improper purposes of Mateo Cortez's frivolous post-judgment filings were: (a) to drive up the litigation costs incurred by the Trustee and the true beneficiaries of the Trust; (b) to deplete the Trust assets available for distribution; and (c) to retaliate against individual beneficiaries (such as Mrs. Barry) for asserting their rightful interests in the Trust. Frivolous pleadings filed after Mrs. Barry obtained judgment against Mateo Cortez3 15. Mateo Cortez submitted the following frivolous filings after this Court granted judgment against him: :J To be clear, Mrs. Barry contends that, from the outset of litigation in West Virginia, Mateo Cortez and his counsel have proffered meritless arguments not founded in Jaw or fact. As such. this Court has every right, under Sally Mike Properties, to order Mateo Cortez and his counsel to pay all of Mrs. Barry's legal fees. However, this Motion for Sanctions will focus on why the pleadings filed after Mrs. Barry obtained judgment against Mateo Cortez are particularly egregious. 6 a. Motion to Amend or Alter: On September 29, 2016, Mateo Cortez filed a motion to alter or amend the Court's summary judgment order against him. Although the motion was procedurally proper, the grounds for relief were frivolous and simply sought to rehash the Court's rulings under baseless alternate legal theories. b. Notice of Removal, Motion to Dismiss: On October 21, 2016, Mateo Cortez filed a notice of removal of this case to the United States District Court for the Southern District of West Virginia, despite the fact that he was no longer a party to the case, there was no basis for invoking federal jurisdiction, and the time for removal had expired nearly a year earlier. Mateo Cortez filed for removal two (2) days after the Trustee noticed her summary judgment motion for a hearing, and did so to prevent the Court from holding that hearing and to delay the Court's disposition of his motion to alter or amend. Additionally, upon removing the case, Mateo Cortez attempted to collaterally attack this Court's rulings by filing a successive, post-judgment motion to dismiss in federal court. On April JO, 2017, the Federal Court rejected Mateo Cortez's argument, and remanded this matter back to the Circuit Court of Wirt County, West Virginia. c. Motion to Dismiss & Motion to Intervene: On June 12, 2017, Mateo Cortez filed (1) a second post-judgment motion to dismiss "in his personal capacity," and (2) a motion to intervene "in his capacity as personal representative of the Estate of Deborah Cortez," along with a proposed intervenor complaint seeking to re- argue his entitlement to the Trust under yet another baseless legal theory. By letter to counsel dated June 15, 2017, (Exhibit E - Brotherton June I 5, 2017 letter) counsel for Mateo Cortez conceded that the intent of these two motions was to delay this Court's resolution of the Trustee's motion for summary judgment: 7 (Mr. Brotherton): I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. E.xhibitE. Notice to Mateo Cortez and his counsel that their conduct was sanctionable I 6. As mentioned below, counsel for Mateo Cortez has, on occasion, argued that he should not be sanctioned because he was never given notice that his conduct was sanctionable. See infra. Accordingly, to demonstrate the efforts to avoid seeking the requested sanction in West Virginia, the following chronicles the various filings, letters, statements, and/or rulings placing Mateo Cortez and his counsel on notice that his claims have no merit and/or that continued litigation of his claims is oppressive, vexatious, and sanctionable: a. September 15, 2016: In this Court's Order granting Mrs. Barry's motion for partial summary judgment, this Court made clear that neither Mateo Cortez, nor the Estate of Deborah Cortez, are entitled to take under the Trust. b. November 7, 2016: In her November 7, 2016, Motion to Remand and Award of Attorneys Fees and Costs, Mrs. Barry made clear that Mateo Cortez removed this case to Federal Court solely to delay the proper administration of the Trust: Additionally, Defendant Cortez did not seek to remove this case until after the state court ruled that he is NOT entitled to a distribution from the Trust. Therefore, it is clear from the timing of this Notice of Removal that the purpose of removing to federal court was solely to obstruct the progression of the state court case, and to delay his obligation to appeal that court's judgment. 8 (See Document 8, Memorandum in support of Mrs. Barry's Motion to Remand, p. 2, not auached4) c. November 11, 2016: In her November 11, 2016, Motion to Remand and Award Attorney Fees and Costs, the Trustee made clear that Mateo Cortez removed this case to Federal Court solely to delay the proper administration of the Trust: In the case at bar there is no reason, other than delay or obstruction, for Cortez to have waited until October 21, 2016, to seek to remove this proceeding from the state court to federal court. (See Document 14, Memorandum in support of Plaintiffs Motion to Remand, p. 14, not attached) d. December 19, 2016: On December 19, 2016, the Texas court also granted summary judgment against Mateo Cortez, dismissing "any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the 'Trust'), other than his claim for undistributed income from the Trust during the life of Deborah Cortez." (See, Order Granting Third Party Defendants' Traditional and No Evidence Motion for Summary Judgment, Cause No. C- l-PB-14-1564, Probate Court of Travis County, Texas, Dec. 19, 2016, not attached). e. January 30, 2017: During a sanctions hearing before the Probate Court of Travis County, Texas, counsel for Mateo Cortez argued, incredulously, that they were never informed that their arguments qualified as bad faith: 4 Mrs. Barry believes the pleadings in Federal Court have been transmitted to the Circuit Clerk and the Court can consider the same as if they were attached hereto. Should the Court need courtesy copies of any pleading, Federal or other, please contact the office of Mrs. Barry's counsel. 9 (Mr. Ruback) If counsel believed that my client was making bad faith arguments from the initial filing in the case, from each hearing that this Court has heard in the case, why didn't counsel bring that to my client's attention? Why didn't counsel bring that to the Court's attention? Laches would bar the arguments they're making today. (Exhibit F - Transcript of January 30, 2017 Hearing, Cause No. C-1-PB-16-2348, Probate Court of Travis County, Texas, p. I 55). However, during this hearing, the undersigned made clear that counsel for Mateo Cortez knew or should have known as early as February of 2016 that Mateo Cortez's claims were sanctionable: (Mr. Ruback) Q: Mr. Boone, when did you first advise my clients that you believe their conduct was sanctionable? (Mr. Boone) A: I think when we had a hearing - I think it was back in February or March [of2016] there was a room full of heirs at law in West Virginia, and there was Judge Waters, there was myself, there was several other attorneys. And I - I believe the discussion about the claims raised by Mateo Cortez, the discussion how they were without any merit at all should have given notice to the Brotherton Law Firm that these claims should not have been continued. (Exhibit F, p. I 09) f. February 10, 2017: On February IO, 2017, the Texas court awarded sanctions against Cortez's lawyers, finding that arguments advanced by Cortez in Texas were frivolous. (Exhibit G - Order on Third Party Defendants' Motion to Modify Judgment to Include Sanctions Award, Cause No. C-I-PB-16-2348, Probate Court of Travis County, Texas). The Texas court sanctioned Cortez's lawyers in the amount of $65,130.76 for driving up Mrs. Barry's legal fees in Texas with frivolous claims. 5 The entire transcript is attached as an exhibit to this Motion. Mrs. Bany asks thjs Court to take judicial notice of this transcript, and to accept and consider same in support of this Motion. 10 g. February 23, 2017: On February 23, 2017, the undersigned sent a letter to William J. Brotherton, with carbon copy to James W. Marshall, III, H. F. Salsbery, and Andrew R. Herrick of the law finn of Bailey and Wyant, demanding "that Mateo Cortez and/or the Estate of Deborah Cortez immediately withdraw any and all claims to the Trust Assets," and explaining that if counsel for Mateo Cortez failed to immediately withdraw their claims to the Trust Assets, then the undersigned "will take appropriate action to: (a) seek additional sanctions against your firm and (b) seek sanctions against Mr. Mateo Cortez personally." (Exhibit H - Boone February 23, 2017 letter) On March 1, 2017, William Brotherton rejected the undersigned's February 23, 2017, demand, suggesting that the orders from Judge Waters and Judge Hennan are "riddled with <>rrors and inaccuracies." (Exhibit I-Brotherton March I, 2017 letter). h. April 11, 2017: On April 11, 2017, the United States District Court for the Southern District of West Virginia remanded this matter back to the Circuit Court of Wirt County, West Virginia, thereby rejecting the arguments proffered by Mateo Cortez to justify removal. (See Document 36, Memorandum Opinion and Order, not attached) i. May 10, 2017: On May 10, 2017, the parties conducted mediation in Houston Texas. The matter did not resolve. j. June 26, 2017: By letter dated June 26, 2017, the undersigned again warned Mateo Cortez's attorneys that their litigation tactics were frivolous and taken in bad faith, and further warned that Mrs. Barry would seek sanctions against them if they refused to cease their obstruction of this case. (Exhibit J - Boone June 26, 2017 II letter) Mateo Cortez and his attorneys have nonetheless refused to withdraw their frivolous claims. IV. ARGUMENT To recover reasonable attorneys' fees and costs as a sanction, the prevailing litigant must show that the losing party "acted in bad faith, vexatiously, wantonly or for oppressive reasons." See Sy!. Pt. 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986). In order to determine whether the losing party's conduct rises to such a level, the Court must evaluate "(!) the seriousness of the misconduct; (2) the impact the conduct had in the case and in the administration of justice; (3) whether there are mitigating circumstances; and (4) whether the conduct was an isolated occurrence or was a pattern of wrongdoing." Pritt v. Suzuki Motor Co., Ltd, 204 W.Va. 388, 397, 513 S.E.2d 161, 170 (1998) (citing Sy!. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381,472 S.E.2d 827 (1996)). A. The Seriousness of the Misconduct I. Mateo Cortez And His Attorneys Began Their Vicious Assault On The Rightful Heirs Only After Discovering That The Trust Contained Over Five Million Dollars In Assets. From the outset, it is important to review the facts and circumstances surrounding the genesis of Mateo Cortez's frivolous arguments. In 2012, Mateo Cortez filed a Small Estate Affidavit, for the Estate of Deborah Cortez, confirming that the Estate had less than $50,000. (Exhibit A). In 2014, when Mateo Cortez responded to allegations that he misappropriated certain Trust Assets, he never claimed that he or the Estate of Deborah Cortez were the sole beneficiaries to the Trust. In fact, Mateo Cortez and his counsel did not discover the sizeable nature of the Trust until the deposition of the Trustee on June 19, 2015. 12 During a hearing before the Probate Court, the Trustee testified regarding her experience during this June 19, 2015, deposition. 6 The Trustee testified that, during her deposition, it became clear Mateo Cortez and his counsel did not know the amount of the Trust prior to this deposition and that, upon learning the amount of the Trust, Mateo Cortez and his counsel became instantly enamored of the sizeable nature of the Trust. Q. (By Mr. Boone) Who was -- who was taking the deposition? A. Brotherton. Q. The Brotherton Law Firm? Someone from the Brotherton Law Firm? A. Yes, it was. Q. And Mateo Cortez was there? A. Yes. Q. All right. A. He was with them. Q. Okay. So when they asked you how much was in the trust did you know the answer? A. Yes, I did. Q. And did you tell them the answer? A. Yes, I did. Q. What was your answer? A. 5.2 million dollars. Q. What if any reaction did yon observe at that time? 6 As noted above, on February JO, 2017 1 the Honorable Guy Herman, Judge of the Probate Court of Travis County, Texas, sanctioned William Brotherton and the Brotherton Law Firm for filing frivolous claims, and ordered them to pay $65,130.76 within 30 days to Mrs. Bany. In advance of this sanctions award, Judge Herman conducted an evidentiary hearing on January 30, 2017. At this evidentiary hearing, the Trustee testified regarding her efforts in Texas to recoup monies that were misappropriated by Mateo Cortez, including her experience sitting for her deposition on June 19, 2015. 13 A. You could see eyes rolling. Q.Howso? A. Just so you could -- you could just see that they knew there was a lot of money. And then shortly after we had a break. Q. Shortly after that question there was a break? A. Yes. Q. And what do you mean by "a break?" A. 15 minute break. Q. Counsel left and -- A. Counsel left, we -- yes. Q. And do you recall if there were many questions after the break concluded? A. No, there wasn't. Q. And that deposition occurred on June 19th, 2015, correct? A. That is correct. Q. Now, did Mateo through his counsel make any claims after that deposition that were new and different? Did they file any papers or pleadings or anything after that deposition? A. Oh, yes. They filed -- they filed saying that that money belonged to Mateo Cortez and all -- and it was all of it. He -- Matt said all of the money belonged to him. (Exhibit F, pp. 85-86)( emphasis added). As such, in light of Mateo Cortez's filings in 2012 and 2014, and in light of the June 19, 2015, deposition, it is clear that Mateo Cortez had no any idea regarding the sizeable nature of the Trust. In fact, it wasn't until seven (7) days after the June 19, 2015, deposition, did Mateo Cortez first allege that he and/or the Estate of Deborah Cortez were entitled to the entirety of the Trust Assets; on that date, June 26, 2015, William Brotherton filed Mateo Cortez's 14 "Original Petition in Intervention," claiming that Mateo Cortez is the sole heir to the Trust Assets. Point being, it was only after learning that the Trust Assets contained 5.2 Million did Mateo Cortez and his Legal Team begin to embark with their "no holds bar" quest to strip the rightful beneficiaries of their rights to the Trust Assets. Without question, the timing of their actions reveal that Mateo Cortez and his counsel have been motivated solely by greed, and not by any legitimate claim to the Trust Assets. 2. Mateo Cortez And His Attorneys Filed Their Claims Without Any Justification In Fact Or Law. The inability of Mateo Cortez's counsel to articulate any reasonable justification for claiming Mateo Cortez is sole heir to the Trust Assets further demonstrates the seriousness of the misconduct. At the January 30, 2017, hearing before the Probate Court, Texas Counsel for the heirs-at-Jaw, Brian Thompson, examined Mr. Brotherton under oath, and asked Mr. Brotherton to explain why Mateo Cortez is entitled to take under the "Postponement Section" of the Trust. (Exhibit F, pp. 37 - 48). As the record demonstrates, Mr. Brotherton could not sufficiently explain the basis for his claim. First, Mr. Brotherton rationalized his inability to fully explain the basis for Iris initial pleading with being preoccupied by a matter in North Dakota. Q. (Mr. Thompson) Okay. It seems to me that most of the claims that you brought -- or all of the claims that you brought on behalf of your client were based on Texas Jaw as it exists now. You weren't saying that law should change, were you? A. (Mr. Brotherton) Again -- and I've got to say over the last six months I've spent most of my time in North Dakota so I haven't been involved in this case in a little while. So you may want to talk with Mr. Hester about some of those technical issues. 15 (Exhibit F, p. 20). Further, when pressed for a simple explanation as to why the Estate of Deborah Cortez is entitled to take under the Postponement Provision (Section D), Mr. Brotherton could not provide an explanation: Q. And again, back to my original question, is there any other language in that D portion, the postponement of possession portion, that you believe supports this postponement provision claim? A. You're talking about in the trust? Q. Well, sir, the claim cites in every single one of the pleadings that we looked at, the claim cites Article 8 Section D to support this claim. And I'm asking you, can you point out what language you believe in Article 8, Section D supports this claim? And that's on Page 5 of the trust. A. Well, I mean, whatever we put in our pleadings is -- is -- addresses that. I'm not going to sit here and try and explain it all to you at this point because certainly we've outlined in our pleadings, we've consulted with necessary experts and we believe every claim we've made is colorable. Q. Was Mr. Kelsey going to testify in this case if it had reached trial as an expert? A. I hadn't made that decision yet. Q. He certainly was never designated as an expert, was he? A. Correct. (Exhibit F, pp. 40-41). In sum, Mr. Brotherton could not justify his argument that Mateo Cortez, pursuant to the Postponement provision, was entitled to the Trust Assets. As such, Judge Herman agreed that Mr. Brotherton's conduct was sanctionable, and ordered Mr. Brotherton to pay $65,130.76 to Mrs. Barry for her legal fees in Texas. (To date, Mr. Brotherton refuses to pay this sanctions 16 award.) Mr. Brotheron testified that the arguments proffered in Texas were "virtually identical" to the arguments proffered in West Virginia. (Exhibit F, p. 42). As such, just as Judge Herman awarded sanctions against the Brotherton Law Firm for fees and costs expended by Mrs. Barry in Texas, so should this Honorable Court similarly award sanctions for fees and costs expended by Mrs. Barry in West Virginia. 3. Mateo Cortez And His Attorneys Deliberately Filed Frivolous Pleadings With The Improper Purpose Of Obstructing The Progression Of This Case And Driving Up The Parties' Litigation Costs. Each time the Trustee would notice her motion for summary judgment for a hearing, Mateo Cortez would initiate a new filing to delay this Court's consideration of the Trustee's motion. First, when the Trustee filed a notice on September 21, 2016, setting her Motion for Summary Judgment for hearing on November 3, 2016, Mateo Cortez removed this case to Federal Court on October 21, 2016. Later (after remand), when the Trustee again filed a notice on April 20, 2017, setting her motion for hearing on June 27, 2017, counsel for Mateo Cortez filed a Motion to Dismiss and Motion to Intervene. Incredulously, a letter from William Brotherton confirms that the sole intent of these two motions was to delay consideration of Trustee's motion for summary judgment. I called your office yesterday to confer regarding whether or not you and your clients wished to consider scheduling our motion to intervene and motion to dismiss for the 27th and reschedule the motion for summary judgment after the court has ruled on our motions. That would appear to be the best process for judicial economy. ExhibitE The reason why Mateo Cortez has repeatedly attempted to derail consideration of the Trustee's Motion for Summary Judgment is because once the Court grants the Trustee's 17 motion for summary judgment, then the assets may be distributed. Pursuant to a Rule 11 Agreement executed by counsel for Mateo Cortez and counsel for Trustee, the Trustee may distribute assets of the Trust "as may be pennitted by a final order by a court of competent jurisdiction." Exhibit D. Mateo Cortez has attempted to obstruct the proceedings in this Court precisely because the declaratory relief requested by the Trustee (i.e., "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same") would trigger the Rule 11 Agreement. Additionally, Mateo Cortez has also filed these pleadings to drive up the costs of this litigation, in a plan to deplete the Trust assets and to cause financial hann to the individual Trust beneficiaries. In West Virginia alone, the rightful beneficiaries of the Trust have been forced to defend against multiple motions, an extraordinary writ petition, and an improvident post-judgment case removal, to the tune of tens of thousands of dollars in legal fees and nearly two years of delay. Each of Mateo Cortez's litigation tactics have been rejected by the court(s) that have considered them, yet the Trustee and the true beneficiaries of the Trust have nonetheless suffered real financial hann in defending against them. B. The Conduct of Mateo Cortez and His Counsel has Impacted the Financial, Physical and Emotional Wellbeing of the Parties. I. Mrs. Barry Has Expended Over Tens of Thousand Dollars Fighting Meritless Litigation. The impact of Mateo Cortez's misconduct was the abuse of the legal system through the attempted prosecution of a series of baseless claims: Although there is an undeniable interest in the maintenance of unrestricted access to the judicial system, unfounded claims or defenses asserted for vexatious, wanton, or oppressive purposes 18 place an unconscionable burden upon precious judicial resources already stretched to their limits in an increasingly litigious society. In reality to the extent that these claims or defenses increase delay or divert attention from valid claims or defenses asserted in good faith, they serve to deny the very access to the judicial system they would claim as justification for their immunity from sanction. Daily Gazette Co. v. Canady, 175 W.Va. 249,252,332 S.E.2d 262,265 (1985). Mateo Cortez's misconduct also had a profound impact on Mrs. Barry, who has incurred tens of thousands of dollars in legal fees defending against baseless claims that never should have been pursued. 2. The Trustee Has Suffered Emotionally And Physically. During the January 30, 2017, hearing, the Trustee testified that the frivolous litigation has adversely affected the Trustee's relationship with her family, and adversely impacted her emotional and physical health. Firstly, the litigation has adversely affected the Trustee's relationship with her family. Once Mateo Cortez argued that he was entitled to the entirety of the Trust Assets, the Trustee was forced to institute proceedings in West Virginia to detem1ine the rightful heirs. Once the Trustee filed the Complaint in West Virginia, and served notice to her family members, her family members became unhappy with her. (Exhibit F, pp. 91-92). The Trustee testified that the ongoing litigation has caused a strain with her sister and brother. (Exliibit F, pp. 91-92). Secondly, the litigation has adversely affected the Trustee's physical and emotional health. The litigation has caused the Trustee to gain significant weight (Exhibit F, p. 95) and has required her to take anti-anxiety medication (Exhibit F, p. 95). 19 In sum, the conduct of Mateo Cortez and his counsel, in prosecuting his baseless claim, has adversely impacted the emotional and physical well-being of the Trustee, Linda Murray. C. There are No Mitigating Circumstances to Excuse the Misconduct There are no mitigating circumstances that can justify Mateo Cortez's misconduct. Every court to consider Mateo Cortez's claims to the Trust has rejected them. Moreover, on February 10, 2017, the Texas court sanctioned Mateo Cortez for the amount of Mrs. Barry's accrued attorneys' fees and costs in Texas, finding that his claims in Texas (and which he has sought to litigate here) were frivolous and were not warranted by existing law; by the extension, modification, or reversal of existing law; or by the establishment of new law. Despite one court already finding his litigation tactics frivolous as a matter of law, Mateo Cortez has continued to pursue those claims in this Court. D. The Conduct of Mateo Cortez and His Counsel has Permeated the Entirety of Litigation. Mateo Cortez's misconduct was not an isolated occurrence, but has been a repeated pattern of misconduct not only before this Court but also in the litigation in Texas. Mateo Cortez has repeatedly attempted to distort the status of this case and the Texas case, the plain language of the Trust instrument, and the laws applicable to the Trust. He has abused the rules of procedure in West Virginia and in Texas in an effort to either convince a court to agree with his distorted and frivolous view of the Tmst instrument, or to obstruct the lawful administration of the Trust. As a result, the Trustee, Mrs. Barry, and others have expended an incredible amount of time, effort, and money in defending the plain language of the Tmst (and the clear intent of the settlers) against a never-ending succession of bogus filings, filings 20 submitted by a party that doesn't even have an interest in the Trust assets. Moreover, Mateo Cortez has continued to file frivolous pleadings in West Virginia and in Texas even after being specifically put on notice that his litigation conduct is being conducted in bad faith, and even after having been sanctioned in Texas. V. CONCLUSION From the outset of this case, Mateo Cortez and his attorneys have wrongfully and unnecessarily forced Mrs. Barry and others to expend over tens of thousands of dollars in legal fees, over the course of nearly two years, defending against obviously frivolous claims. The sole purpose of this improper conduct is clear: to obstruct the administration of justice, to deplete the assets of a Trust to which he has zero claim, and to retaliate against the true beneficiaries of the Trust for defending their interests. Although Mrs. Barry, as well as others, are arguably entitled under Sally Mike Properties for all their attorney fees expended in the case, Mrs. Barry is choosing to focus her motion for sanctions on the conduct of Mateo Cortez and his counsel after this Court entered judgment against Mateo Cortez on September 15, 2016. The reason why Mrs. Barry is focusing on the conduct after September 15, 2016, is because prior to September 15, 2016, Mateo Cortez was responding to a Complaint filed in West Virginia that: (a) sought to determine who were the rightful beneficiaries under the Trust, and (b) specifically named Mateo Cortez as one of the individuals laying claim to the Trust. Point being, it is not surprising Mateo Cortez, under those circumstances, would respond to this Complaint and lob arguments (however tenuous) in response to the Trustee's Complaint. However, once this Court entered its well-reasoned decision on September 15, 2016, denying Mateo Cortez's claims, Mateo Cortez and his counsel 21 were unequivocally placed on notice that their claims had zero merit, and that any further improper behavior to frustrate the lawful administration of the Trust would not go unpunished. From September 15, 2016, forward, Mateo Cortez and his counsel engaged in improper conduct intended solely to delay the proper administration of the Trust; to waste the time and resources of Connie Barry, the Trustee and others; and to deplete the Trust Assets. From September 15, 2016, forward, despite repeated warnings, Mateo Cortez and his counsel engaged in willful, vexatious, and malicious litigation, entitling Mrs. Barry to an award of attorney fees. See Sy!. Pt. 3, Sally-Mike Properties v. Yokum, I 79 W.Va. 48, 365 S.E.2d 246 (1986). Accordingly, for the reasons set forth above, Defendant Connie Lou Keith Barry requests that the Court grant the following relief: a. That the Court enter the attached proposed Order Setting Show Cause Hearing on Issue of Sanctions, setting this matter for a hearing to show cause as to why sanctions, in the form of paying, at a minimum, all of Mrs. Barry's reasonable attorneys' fees and costs incurred in this lawsuit from September 15, 2016, forward, should not issue against: (I) Mateo Cortez, in his personal capacity and his capacity as the personal representative of the Estate of Deborah Cortez; (2) attorneys James W. Marshall, III, H.F. Salsbery, Michael W. Taylor, William J. Brotherton (pro hac vice), and Shawn M. Brotherton (pro hac vice); or (3) both, jointly and severally; b. That at the conclusion of said hearing, the Court enter an order granting Connie Lou Keith Barry's motion for sanctions and permit Mrs. Barry to submit additional papers in support of her reasonable attorneys' fees and costs; and c. For such further relief as the Court deems proper. 22 c_fi.c. 60~ Aaron C. Boone (9479) Bowles Rice LLP Fifth Floor, United Square 501 Avery Street, Post Office Box 49 Parkersburg, West Virginia 26102 (304) 420-5501 Facsimile (304) 420-5587 and David A. DeJarnett (5190) J. Tyler Mayhew (11469) Bowles Rice LLP 105 West Burke Street Martinsburg, West Virginia 25401 (304) 264-4232 Facsimile (304) 264-3822 Counsel for Defendant Connie Lou Keith Barry 23 9109087.2 C·l·PB-12-00O2,oq CRttsoNo. _ _ _ _ _ _ __ ·.~.... ~ \~- IN THE ESTA'fE OF § lNTHEPROJJATECOURT '?-, \:) § -:>. 0 -!A •i\ DEBORAH A, CORTEZ § NO, _ _,__ 'Y.''''d>O ~ £,"f,. ~ ·tl § iJ' ~ \?. ..,, ~ DECEASED § ' TRAVISCOUNTY,TEXf3'-;}i ~ 1~ ¼ <;!: ·f~ ..,, ~ SMALL ESTATE AFFIDAYlT '?-...,~'C! •;.,, . '.1'~~ "" cP S'l'A,:E OF TEXAS § COU.NTY OF TRAVIS § ('-...,. MA'fEO CORTEZ ("Dlstribulee") furnishes the following informatio~~~~ I. "DEBORAH A. CORTEZ ("Decedent") died lntes1A~Dec~~6~.ai 1n Auslin, Travis County, Texas, ol tho age of 54 years. ~-~ 2, "Decedent's domlollo was In TMVIS Coun , • · xas, whor ~p~oipal 11art ofDeoedonl's property at the lime of her den th was situRted. 3, been granted, for tlto l:>ecedent's Estate. 4. ''Decedent died more that I i{tf(-l!))~ prlo p he filing oflhis Small Estate Affidavit. S. "The total volue of al i,oy11okrib~~ts of the Decedent, as oftltc date of her doath, not including the homestead 11or CKo t ~~does ~xceed $SO,OOO,OO, and those nonexempt assets exceed !he known liabilities~~la~::~:lve ofliabilities secured by homeslead n11d exempt property. 6. "Ti1e 0~1 Jfrlllnlll···pprop~~ of~1~tato of the Decedent Is o homestead which ls communlt.Y pro11erty ond locnted ... at 60 Dougla$ t~ot, A11sti11, Texas 78744..The Bstnte's interest in snid lto111estead Js vahted al a11proxl~y} 0, O,Q,_q_g.,,".!llh Is more pa11lcufarfy described as follows: --~~:s;B,-Buf(eson Road Heights, 11 subdivisio11 In Travis Count)', (-;Ql!ns.abcor 1g lo tho mnp or tint Ihereofrecorded In Volume 6, Page S2, '-"-.izi";li~ecof s ofTravls Count.Y, Texas, •·~~ent's 1narilol history was as follows: Married; surviving spouse; Mutco Cortez ' ecedent did. not have 01· adopt any children and did not tako a11y children lntQ decedo1it's 1 ~ 1y children, except: None. 9, "Decedent's 111other was: Pl1yllis Dale Whited, whose date of death was 02/0S/2011. I0. ''Decedent's fa.th er was: William Dorsey Short, whose date of death was O1/03/2001. 11. "Decedent hod tho following siblings: None. 12. "Decedent did not qpply for Rnd receive Medicaid benefits 011 or after March I, 2005 I3. "The nnmes, 11ddresses, relevant family history facts showing relallonsltip ofeacltDistributee to !he Decedent, nnd the share of the Estele lo whlclt each Oistrlbutee Is entltled are as follows: [ EXHIBIT A ] P•••I oU "Name: MATEO CORTEZ Address: 2602 Douglas Street, Austin Texas 78741 Relationship: husband l!tatns: Adult Share ofEstato: 100% of com1mml1y 1,roporty real and persol181 of the llomestesd located at 2602 Douglas St. Austin, Texas 7874 t Including the known nssets of Decedent's Estate as follows: La.st payroll cl1eck and nccrued vacation leave ~ . 'fype: Com111nnlty ~V,r-..7 Value: 100% or $683.39 wages and $89.~· a. me ~ion hmve totaling ~ 2 Bncnmb:~::~:: Nono . ''No claims are due and owing by the !Jft~~a~~l!AJJ LIABmfi:JE~ \ "Dlstrlbutee states that tho facts •Of4"1ir1 tb~ RTJlZ, Deceased. {l~~ are true and prays that this Affidavit be filed ln the Small Estate Records; tha.1tjtt}l''iii\_b)~fuved by.I (o0.9urt; and the Cle.r. k Issue certified copies tltereof In order to allow tho Dl~r1;1(o Js>-e~.s~t ·tJio same to persons owing. money to the Estate of DJlllOMAR A.COlllW, ~•,lJ;EIJORAH A, CORTEZ, § J>ECEASED § ORDER APPROVING SMALL ESTATE AFFIDAVIT 011 this tiny, tbe Co11rt considered f11e Affidavit of MRteo ~ D l ~ t of the "bove eslate aud the Court finds thnt the Affidavit compll t . lb tii ; ~fu tii'inl provisions qualifies under the provisions oftbe Probate Cod a,S:111(E\t11l 1111d that the Dlstrlb11lee, Mateo Co1·tet Is entitled t o , , ~ , ~ / , of the decedent, to tho l.ef.~.~,~.o~ttlmes.lend nnd exemp. t p1•ope1.·ty. extent tl1e assets exce. eel lw.own llnb'fi. Nothing he1•eln lransfe1'S 1111~~1 ~~~pl to tl1e l'enlfy thnt ls hon1este1ul1 nor ".ffec. Is lb.e dlsposlllon of pr{~~.r n w.Ill .111· other tes.tamentary lnsfru. ment, nor does t.lae Cou·r·t m.·allnify iliiit ori :Qctobct 3, 2014, ,4. we nn.d i:lil'llltt copy of lltis l'Jrigtnai Atisll'cr W{III ~,rv~ g/a!i1Jii$llo1fllW11rJ4q,•l~ilii i!o Co~ri$~l·ii£Rcwril <1r partI~ ofreci,rd 1JSf~lnws: M*r Collonsum ~44l F4°fnilli ··· (Ol)Vt>&'d/)lt,$1~1 Suit~ 100 i'lidtilf, ·t~iill'7~'lQl iuar!<@si!!WJIPRi1!!.loosef:com j ' • I . ,, ;I '' j ' ' J '• :. ·,'{ '' I ,l J,, ' . ,l ' . !~ . . - Flied: 3/1512015!!:,12;30:~ Dana .b'eBeiiuv9lr travi.~Q,iJ!y 01~.tk C,1'PB,14-0Q166;1 Mil'nii;a ~ln,90 lN THE'PR0.8A.1'E COUllT lllUMREll. Ill . nel'eililrutl~ .MADQ . - ·- CORTEi1s .. FIRST ,...... .... , :AMEmiED:ANSW!B ,......... - ,.. _. ;.. ,.... tto tl1e)lonomble Jlld/(e.•ofSald Cour.:t.: .''NQW com:es MNtil:g (l91\1'll'A, q~~ w9µljl (ale tl!i~.\!i(St Alllel)p~d Ao~w~r an.d. WQ~ld ~ll~# !~.e followl11g: L Ma\e!i O>rte~ ,$iJ~llle proi:eedlngofbebt\~h Cortez lq Tra\lis Co~J\ty,. .Texas. ·' 'li. Mateo Cortez Wdtild.cllll~ett tli~.t ij1e ®uses of.alltiQn,ralstd b)' Liridn Mu!'l'lly. a.re baucii•b)' flmltRtions, Th9 clalmil".f''pf cpnyeuill!n Md CClllllPitl\CY are barred l!y the two year s~tilte ·11t limitations, 7. ·Mateo Cortez would ils$¢/t llil!t lhe all elailUS i!r cauies of action related to the eredit <illJ~r ftus.t arc 'b'!1-ed.by 1Ylliycr anl//or mOil~atJ,;,.~. $peolflcqlly, bi:!lh LlntJa ll!Ui'!'!!}' :Md Qeb,;,mh Coriflt siwted 8Mlpplieatlon :with Wells: Fa1·go related ,to the tru~l accqunt for ,creditshfiltertl'.llsl.011 or iiWutMay 23,'.lOOl, Thlis, biilh,i:Q.·lrirs,tiies knew (Jr C(11Jldl1aV11 •· · ·~wn tJl/'bu/ '(if!)' if1ii(,rf! ric/Nf!f t1Ulti.s (l~i:P'lint/1~111 1hP1 drr1e (k/ily 2J, zQQj), >'\ily '(411,ure.lo actc3s· ~·~Q•.ln.1steeaHo lhe cl't!,dlt,shelter trus.land ille disbursements·ofihe,credlt shelter tmst Wils aol11tei1tfooal a.Ct cit\ Uie,.p~l't ofLiM!i Mutta,r. ii. :Mateo co~z; pi~oos 11$· ah pff$~t al\~ ¢t~dll the le!i\l~ ot t11e \¥Vbc~bt<> Liyi11g Tiust a))d · . Jts (~l',ln~;that'\"(o,uld ofl'set.awmoriies distributed 10 Deborah Cortez.,or Mateo C!!rte;c a,. $$,Q,Q,QO w•s 10 be d.l~ldll.llt~d. 10. Pi;P WHITED, TERRY LEE WHITED and § SHERRY LYNN WHITED SALSBURY § Defendants § TRAVIS COUNTY, TEXAS AMENDED FINAL JUDGMENT On December 19, 2016, the Court considered the Traditional and No Evidence Motion for Summary Judgment (the "Motion for Summary Judgment") filed by Third Party Defendants, Sandra Flesher Brown, Charlotte Flesher Ash, Charlene Flesher Johnston, Connie Lee Keith Barry, Randall Wayne Davis, Virginia Villers, Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J. Marks Webb, James Berl Marl<:s, Linda Murray, Thomas Wayne Marks, Donald Leman Whited, Michael Ray Whited, Terry Lee Whited and Sherry Lynn Whited Salsbury, all in their individual capacities (collectively "Third Party Defendants"), in Cause Number C-I-PB-14-001564. After considering the Motion for Summary Judgment, the response, all admissible summary judgment evidence, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the Motion for Summary Judgment in its entirety and ORDERED, that Mateo Cortez's claims against Third Party Defendants be dismissed in their entirety. In particular, the Court dismissed any and all claims that Mateo Cortez, in his individual 1 capacity or in his capacity as personal representative of the Estate of Deborah Cortez, had to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the ..Trust"), other than his claim for undistributed income from the Trust during the life of Deborah Cortez. Also on December 19, 2016, the Court considered Third Party Defendants' Motion to Sever. After considering the Motion to Sever, the response, the arguments of counsel, and the other papers on file with the Court, the Court GRANTED the Motion to Sever in its entirety and ORDERED that Mateo Corez's claims against Third Party Defendants in this lawsuit be severed in their entirety and assigned the new cause number C-1-PB-16-002348. On January 16, 2017, Third Party Defendants filed their Motion to Modify Judgment to Include Sanctions Award (the "Motion to Modify"), which extended the plenary power of the Court to modify its judgment. The Motion to Modify was hearJ by the Court at a hearing on January 30, 2017. After considering the Motion to Modify, the response, the admissible evidence presented at the hearing, the response, the arguments of counsel, and the other papers on file with the Court, granted the Motion to Modify in part and granted sanctions. The Court sanctions attorney William J. Brotherton and the Brotherton Law Firm, jointly and severally, in the amount of $65,130.76, and ORDERS that this amount be paid to the Third Party Defendants within 30 days of the entry of this final judgn1ent. This amended judgment finally disposes of all claims and parties and is final and appealable. Signed this 10th day of February, 2017. BLE JUDGE PRESIDING 2 600 Quarrier Street Charleston, West Virginia 25301 tl' Southpointe Town Center 1800 Main Street. Suite 200 101 South Queen Street Martinsburg, West Virginia 25401 Bowles Rice,," ATTORNEYS AT LAW Canonsburg, Pennsylvania 15317 1217 Chapline Street Wheeling, West Virginia 26003 7000 Hampton Center 501 Avery Street Morgantown, West Virginia 26505 Parkersburg, West Virginia 26101 480 West Jubal Early Drive. Suite 130 Winchester, Virginia 22601 Post Office Box 49 Parkersburg, West Virginia 26102 (304) 485-8500 www .bowlesrice.com February 23, 2017 Aaron C. Boone E-Mail Addres~: Telephone - (304) 420-550 I aboone@bowh:sric~.com Facsimile- (304) 420-5587 William J. Brothe11on, Esquire VIA EMAIL & U. S. MAIL Brotherton Law Firm 2340 FM 407, Suite 200 william@brothertonlaw.com Highland Village, Texas 75077 Re: Linda Murray v Linda Lou Murray, et al. Civil Action No. 2:16-cv-09951 US District Court, Southern District of West Virginia Linda Mtmay v. Mateo Cortez, et al. No. C-1-PB-14-001564 Probate Court of Travis County, Texas Mateo Cortez v. Sandra Flesher Brown, et al. No. C-!-PB-16-002348 Probate Court of Travis County, Texas Dear Counsel: On February 10, 2017, Judge Guy Herman orde,·ed you and your firm to pay $65,130.76 in legal fees, finding that the claims you filed against my client were frivolous and/or unwarranted. This decision comes on the heels of Judge Herman's January 30, 2017, refusal to reconsider his December 19, 2016, order granting judgment as a matter of law against your client, and follows Judge Robert A. Waters's September 9, 2015, order concluding that neither Mateo Cortez nor the Estate of Deborah Cortez is entitled to share in the trust: Because Deborah was over the age of 35 when Mrs. Short died, Cortez believes that the Trust should have immediately terminated and the entirety of the Trust assets distributed to Deborah, which Cortez would have then inherited from Deborah upon her death. . .. The Court cannot, and does not, accept Mateo Cmtez's reading of the Trust, which would nullify the provisions of Article VIII, Sections A- C. EXHIBIT H 41\ Bowles Rice,,. William J. Brotherton, Esquire February 23,2017 Page 2 (Order, 09-09-2015, Circuit Court of Wood County). In sum, cornts in both Texas and West Virginia have now entered orders finding that neither the Estate of Deborah Cortez nor your client, Mateo Cortez, qualify as an heir-at-law entitled to take in the trust assets ("Trust Assets"). Nevertheless, despite these losses, your client continues to pursue civil litigation before the United States District Court for the Southern District of West Virginia, in Charleston, West Virginia, and an appeal before the Third Court of Appeals, in Austin, Texas. Undoubtedly, further litigation will cost my client, and the other heirs-at-law, significant legal fees. The purpose of this letter to demand that Mateo Cortez and/or the Estate of Deborah Cortez immediately withdraw any and all claims to the Trust Assets. As you may recall, at the January 30, 2017, hearing, your counsel argued, unsuccessfully, that sanctions should not be awru·ded against you, in part, because I never explicitly warned you that I would file a motion for sru1ctions if you continued to pursue ·such claims. Although I (and apparently Judge Herman) disagree that a warning is necessary, I wish to now make clear that if you and/or your client, Mateo Cortez (either personally or as representative of tile Estate of Deborah Cortez) do not immediately withdraw any and all claims to the Trust Assets, then I will take appropriate action to: (a) seek additional sanctions against your firm and (b) seek sanctions against Mr. Mateo Cortez personally. 1 1 recognize that Mateo Cortez ru1d the Trust have pending claims against one another, including claims relating to proceeds from an asbestos settlement ("Asbestos Claims"). Nevertheless, there is no reason for Mr. Cortez, while resolving the Asbestos Claims, to continue to pursue the meritless claim that he and/or the Estate of Deborah Cortez is entitled to the Trust Assets. Accordingly, I demand that yo1.1 immediately enter appropriate orders dismissing such claims in the United States District Court for the Southern District of West Virginia and in the Third Court of Appeals, in Austin, Texas, If you would like for me to prepru·e proposed dismissal orders, then I would be happy to do so. Finally, as you know, Judge Herman ordered you to pay the total sum of $65,130.76 within thirty (30) days of his February 10, 201 7, order. Kindly submit $31,150.76 to I-lopper 1 Please remember that my client's Motion for Attorney Fees and Costs is pending before the United States District Court of the Southern District of West Virginia, (Document No. 7). Additionally, please note that Rule 45 of the Texas Rules of Appellate Procedure states: Rule 45: Damages for Frivolous Appeals in Civil Cases: If the court of appeals detennines that an appeal is frivolous, it may--on motion of any party or on its own initiative, after notice and a reasonable opportunity for response--award each prevailing party just damages. ln detennining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in tl1e court of appeals Tex. R. App. P. 45 f]\ Bowles Rice,,, William J. Brotherton, Esquire February 23,2017 Page 3 Mikeska, PLLC, and $33,980.000 to the Law Fim1 of Bowles Rice LLP, and Attorney Brian Thompson and I will ensure that these funds are used to appropriately reimburse the heirs at law for legal fees expended. Enclosed, please find a W-9 for the Law Firm oft-lopper & Mikeska, PLLC, and a W-9 for the Law Firm of Bowles Rice, LLP. I trust you will immediately review this letter, in its entirety, with your client, Mateo Cortez. Sincerely, Aaron C. Boone ACB/ljp Enclosures cc: Sean W. Hester, Esquire sean@brothertonlaw.com James W. Marshall, III, Esquire jmarsha1l@baileywyant.com H. F. Salsbery, Esquire tsalsbery@baileywyant.com Andrew R. Herrick, Esquire aherrick@baileywyant.com Chad M. Ruback, Esquire chad@appeal.pro Robe1t S. Fluharty, Jr., Esquire rsfluharty@fntlawoffices.com J. Nicholas Barth, Esquire nbarth@barth-thompson.com Leslie L. Maze, Esquire lesliemaze@gmail.com Joseph T. Santer, Esquire jts-atty@suddenlink.net 8774751.1 Focm W•9 {Rev. December 2014) Request for Taxpayer Glve Form to the requester. Do not Department of the T,sasury Identification Number and Certification send to Ille IRS. lnl!!rn.o.l Aev1111U11: Servi11& 1 Name (aa ah own Qn your Income tax return) Name ia required on thla line· do not lea.vs Ihle nne blank ' Hopper Mlkeskaf PLLC oi 2 Business neme/dJsregarded entity name, if different from above • ~ ~ C. 3 Check appropriate: bcic for federal tax classificallcn; check only one oftlle following seven bD.11.es: 4 Eicemptlons {coclea apply only to 5 D !ndlViduaVaole proprialgror D C Corporation D S Corporatlr;in D Partnerahlp D Trust/estate certain entiUes, not tndMdua1s; sea Instructions an page 3): 8. ~ .,,g single-member LlC Exempt payee code (H any) ~ Umiled !labililycompany, Enter the tax clasaiflcation (C=C corporation, S=S r;:arporation, P•partnership),. p ---- 6 2 ~ ti! Note. For a single-member LLC !hat Ill dlstegarded, do not cllack LLC; check the apprcprfale box In t11e U n ~ r lite tax clasaification cf the alngle--member owner. EJcemptlon from FATCA reporting code(lf any) ·c .S D Other (see instructloos) ~ ~bKA!lntf~NIMH""'U.SJ .. u S Address (number, rtreet, and 8))1. or suite no.) 15 Requester's name· and address (optional) .,8. 400 West 15th Street, SuRe 408 e City, state.and ZIP code • Jj Austin, TX 78701 7 List account number(s) here /optione1) .. Taxpayer Identification Number-rtlN) Enter your TIN In the appropriate box. The TIN provided must match the name glven on line 1 to avoid backup w!thholdlng. For Individuals, this ls generally your soc!al security number (SSN). However, for a resident allen, sole proprietor, or disregarded entity, see the Part I Instructions on page 3. For other entities, it is ycur employer Identification number (EIN). If you do not have a number, see How to get a [IJJ - DJ I I I I I I Social BEICUritynumber - I TIN on page 3. ,o;;'=========---- Note. If the account Is In more than one name, see the Instructions for Una 1 and the chert on page 4 for I Employer ldsntifloatfon munber guidelines on whose number to enter. 4 5 -4468973 Certffication Under penalties of perjury, I certify that: 1. The number shown on this form Is my correct taxpayer Identification number (or I am waltlng for a number to be Issued to me); and 2. I am not subject to backup wlthholdlng because: (a) I am exempt from backup withholding, or {bl I have not been notified by the Internal Revenue Service {IRS) that I am subject ta backup withholding as a result of a failure to report all Interest or dividends, or (c) the IRS hes notified me that I am no longer subject to backup withholding; and 3. I am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (ff anY} Indicating that I am exempt from FATCA reporting Is correct, Certification insbucUona. You must cross out Item 2 above If you have been notified by the IRS that you are currently subject to backup wtthholdlng because you have failed to report ell Interest and dlvrdends on your tax retum, For real estate transactions, Item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, c:ancellatlon of debt, contributions to an lndMdual retirement anangement (IRA), and generally, payments other than Interest and dividends, you are not raC1Uired to sign the certification, but you must provide your correct TIN. See the instructions on page 3. Sign Here 11 ·r. / s;s..,,.• of /I,. u.s.pen,on~10~d7,~ A . • oat,~ (,-2"'[-Z.O(~ General Instructions • Fom, 1098 (home mortgage lnlerest), 1098-E {student loan lntarest), 1098-T (tuition) Secllon references are to the Internal Flevet1ue Code unless otherwise noted. • Form 1099-0 (canceled debt) Future deveropmt1nta, lnf0ffi'latian abaut devalopmenta affecting Form W-9 (such • Fotm 1089-A (acquisition or abandonment of aecured property) as Jegrslation enacted after we release it) le at www.lrs.gov/lw9. Use Form W-8 only If you are a U.S. person Qncludlng a f88idant alien), to Purpose of Form pro11ide your correct TIN. An individual or entity {Farm W-S rwqueeter) who Is ~ufred to file an Information IfYoll do not rvtum Fonn W-9 to tho req1.1eslltr wM a 11N, YDU might be ,ubjac:t return with the IRS must obtain your correct taxpayer 1dentlfication number ITIN) lo backup wfthholdfng. See What Is ba.clrup withholding'! on page 2. which may be your &0clal i.ec:urity number (SSN), individual tupayer lden1lflcation By signing the Hlled-out form, you: number{mN), adoption taxpayer lderrtilication number (A.TIN), DI' employer 1dent1hcallon number (EIN), to report on an Information rat1JJ11 lhe amount paid 10 1. Certify that the TIN you are giving Is cotm:t (or you are waiting far a number you, or other amount reportable on an lnfcrrnatlon nrtum. E,camp!es of Information to be issued), returns include, but arii not limited to, the folfowlng: 2. Certlft/ that you are not subject to backup wHhholdlng, or • Form 1099·1NT (interest earned or paid) 3. C!alm exemption from backup withholding If you ara a U.S. exempt payee. If • Forni 1099-DIV (d111ldends, including those from stocks or m1.11ua1 funds) applicable, you are also certifying 1hat as a 1,1.S. pen10n, your allocable share of any partnership Income from a U.S. traeia or bUslnus Is no1 aubjactt0 the • Form 1099-MlSC (vanous types of Income, prizes, awards. or gross proceeds) wiU,holdlng tax on foreign partners' share of effectively connected Income, and - Form 1099-B (stack Dr mutual fund sales and certain olher ltansactlcms by 4. Certify that FATCA code(s) entered an thla form ~I any) Indicating that you are ::irokersJ ei<.empt from the FATCA reporting, Is correct. See What ls FATCA ,aporlfng? on • Form 1099-S {prOGBede from real ostatetranaactlons) page 2 for further ln!orms:tlon. • Form 1099·K (merchant card and th!fd party network transactions} Cat. No. 10231X Fann W-9 (Rev, 12-2014) Form W-9 (Rev. December 2014) Request for Taxpayer Give Form to the requester. Do not Department of the T,oasury Identification Number and Certification send to the IRS. fnlemal Revenue Swvfc11 1 Nnme (as shown on ycur Income lox return). Name ia required on this line; do not leave this nne blank. Bowles Rice, LLP 2 81111\ness name/disregarded ontily name, If dflferent from above "'•8, C. 3 Check approprla\e box tor l&aeral !ax classllicauon; check only one of the foltowl[:!feven boxus: 4 Exemptions [codes apply only to C 0 D lndivlduaVsole proprietor or D C Corporation O S Corparation Parlnl!rship D Tr11sVestato certain 1:mtltfes, not lndNiduaJ9; see in&tructlons on page 3): J] • 1l ~!nglo-m11mber LLC 0 Limited liabllity company. Elllor lho la)I. classlllcallon (C.,C corporation, S:S ccrporatlcn, p,.partnershlp} ~ Exempt payee code (rf any) ExempUan lrom FATCA reporting ---- 0 2 Nate. For a single-member LLC thal Is disregarded, do nol check LLC; check the approprinte box Jn thu l i n ~ r lhe tax Glassl!icallon ot lhe 11ingle·member owner, 1! • code Of any) ;f ~ D Other {soo lns1ruc1ian11)"' (l,ppg,,~ "'•""""""""'"'J.lill'M<><111.id1p11yor ldentlllcallon number (ATIN), or employer ldentillcot!on numbor (EIN), to reporl on an lnlarmatlon re tum the amaunt paid to 1, CertUy Ihat Iha TJN you ero giving Is correct (or you are walling lor a number 10 be lssuodJ, you, ar other arnount repartablo on en inlorm11tlon re1urn. Eltllmplea ol lnformallon re1ums Include, but ere nol limited to, tho loltowlng: 2. Cenlfy that you aro not subJocl lo backup wlthholdlng, or • form 1099-lNT (Interest earned ar paid) 3. Clelm exemptlor, from bBCkLJp Wllhho!cllng 11 you are a U.S. exempt payee. II • Form 1099-0IV (divldonds, Including lhoee from stocks ar mutual fonds} applicable, you ere also certifying Iha! as a U.S. person, yoLJr allocable share ol any partnership lncame from u U.S. trade or business Is not subject to the • Form togs.MISC (various types of Income, prlzea, awards, ar gross proceeds) wlthhofdlng lax on loralgn partners' shure al effectively connecled Income, and • Form 1099-B (slack er mutual lund &ales end certain olher transactions by 4. Ce1tlfy that FATCA eode(S) entered on !his lorm {ii any) Indicating that you are brokers) exempt from the FATCA reporting, Is carrocl. See Whar is FATCA reporting? on • Farm 1099-S (proceeds lro111 real eslale transactions) page 2 lor r11r1her lnformuUan. • Form 1099-K (merctnm! card and third party nelwork transac1fons) Cat. Na. l0231X BROTHERTON LAW FIRM ATTORNEYS AND COUNSELORS AT LAW 2340 FM 407, SUITE 200 HIGHLAND VILLAGE, TEXAS 75077 TELEPHONE: 972-317-8700 FACSIMILE: 972-317-0189 WILLIAM]. BROTHERTON william@brothertonlaw.com March I, 2017 Via E-mail to aboone@bowlesrice.com Aaron C. Boone Bowles Rice L.L.P. United Square, Fifth Floor 501 Avery Street Parkersburg, WV 26101 RE: Cause No. C-1-PB-14-001564; Linda Murray, Successor Trustee and on Behalf of the William D. Short and Phyllis D. Short Revocable Living Trust including the Credit Shelter Trust Created Therein v. Mateo Cortez and Wells Fargo Bank, NA. Civil Action No. 2:16-cv-09951; Linda Murray v. Linda Lou Murray, et al. Cause No. C-l-PB-16-002348; Cortez v. Brown et al. Dear Mr. Boone: We are in receipt of your letter dated February 23, 2017, in which your clients make the demand that our client withdraws all of his claims to the Trust or your client will file additional sanctions. We now respond to such demand. First, the orders that your clients reference are not final orders. We completely disagree with both orders as both orders are riddled with errors and inaccuracies. We stand firm that the plain and clear language of the Trust entitled Deborah Cortez to receive all funds of the Trust during her lifetime; therefore, a claim from the Estate was filed. Until recently, there seemed to be some confusion regarding your clients' understanding of our claims, which is reflected in both summary judgment motions and orders in the two Courts. We do not believe either of the summary judgments will stand on appeal. Second, our client will not simply waive the right to an appeal on such erroneous rulings. We will be taking the appropriate steps to proceed with correcting the errors in the trial court; however, we are prepared to appeal if the trial court refuses to correct the errors. Since you, your clients, and Mr. Thompson have made this personal, you have left us with no choice but to appeal the excessive and baseless sanctions order. We clearly met our burden EXHIBIT I Aaron C. Boone March 1, 2017 Page 2 regarding the sanctions, but it has been made clear by Mr. Thompson that he uses sanctions as a tactic in litigation and has been allowed to do so in the Travis County Courts. We believe that this tactic is a threat to all lawyers who practice in good faith in Texas and that it is a serious violation of public policy. It will absolutely be appealed. Third, your letter seems to indicate that you want us to enter orders dismissing claims in the United States District Court for the Southern District of West Virginia as well. We have no claims in West Virginia. A review of the Court's record would clearly demonstrate that Linda Murray filed that suit - just as she initiated the Texas litigation. However, if you would like to do a joint dismissal in West Virginia and adhere to the Texas Courts' jurisdiction, we would be happy to consider such. Please feel free to draft the agreed dismissal for our review. Lastly, as stated above, we will be proceeding forward. At such time that the orders become final, we will be superseding the judgment during the appeal. WJB/ab cc: Brian Thompson (via email: bthompson@hoppermikeska.com) James W. Marshall, III (via email: jmarshal@baileywyant.com) H.F. Salsbery (via email: tsalsbery@baileywyant.com) Andrew R. Herrick (via email: aherrick@baileywyant.com) Chad M. Ruback (via email: chad@appeal.pro) Robert S. Fluharty (via email: rsfluharty@fntlawoffices.com) J. Nicholas Barth (via email: nbarth@barth-thompson.com) Leslie L. Maze (via email: lesliemaze@gmail.com) Joseph T. Santer (via email: jts-atty@suddenlink.net) Hamp Skelton (via email: hskelton@skeltonwoody.com) Mark Cohen (via email: mark@cohenlegalservices.com) Rose Cohen (via email: rose@cohenlegalservices.com) Client 600 Quarrier Street Charleston, West Virginia 25301 101 South Queen Street Martinsburg, West Virginia 25401 ., Bowles Riceu, Southpointe Town Center 1800 Main Street, Suite 200 Canonsburg, Pennsylvania 15317 1217 Chapline Street ATTORNEYS AT LAW Wheeling, West Virginia 26003 7000 Hampton Center 501 Avery Street Morgantown, West Virginia 26505 Parkersburg, West Virginia 26101 480 West Jubal Early Drive, Suite 130 Winchester, Virginia 22601 Post Office Box 49 Parkersburg, West Virginia 26102 (304) 485-8500 www.bowlesrice.com June 26, 2017 Aaron C. Boone E-Mail Address: Telephone-(304) 420-5501 aboone/a)bowlesrice,cqm Facsimile -(304) 420-5587 James W. Marshall, llI VIA E-MAIL AND FAX Michael W. Taylor BAILEY& WYANT,PLLC 500 Virginia Street East, Suite 600 Post Office Box 3710 Charleston, West Virginia 25337-3710 jmarshall@baileywyant.com William J. Brotherton Shawn M. Brotherton BROTHERTON LAW FIRM 2340 FM 407, Suite 200 Highland Village, Texas 75077 william@brothertonlaw.com shawn@brothertonlaw.com Re: SANCTIONS NOTICE Linda Mun-ay, as Successor Trustee of the William D. Short and Phyllis D. Sh01i Revocable Living Trust Dated April 30, 1991 v. Linda Lou Mun-ay et al. Civil Action No. 15-C-28, Circuit Court of Wirt County, West Virginia Ladies & Gentlemen: The purpose of this letter is to put you and your client on notice that my client intends to seek sanctions pursuant to Rule 11 of the West Virginia Rules of Civil Procedure, or pursuant to the Court's inherent authority to sanction bad faith litigation conduct, unless your client immediately ceases and desists from continuing to pursue claims to the William D. Sh011 and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, either in his personal capacity or by proxy through "the Estate of Deborah Cortez." The tenns of the Trust instrument are crystal clear, and have been ruled upon as a matter oflaw by both the Circuit Court of Wirt County, West Virginia and the Probate Court of Travis EXHIBIT J tJ' Bowles Rice,,. BAILEY & WYANT, PLLC BROTHERTON LAW FIRM June 26, 2017 Page2 County, Texas. The plain language of the Trust instrnment makes no provision for your client. Your client has no claim to the Trust, either in his personal capacity or as representative of "the Estate of Deborah Coitez." Your client's claims to the contrary lack any basis in the Trust instrument or support under the law, and have already been sanctioned in Texas. Unless your client withdraws his frivolous pleadings, my client will seek the same sanctions in West Virginia. The Circuit Court of Wirt County, West Virginia granted summary judgment against your client on September 15, 2016. The Probate Court of Travis County, Texas followed suit on December I 9, 2016. Both courts rejected your client's claims, and pursuant lo the patties' Rule 11 Agreement you are bound to abide by those rulings. Nonetheless, you continue to file :frivolous pleadings in West Virginia, with the admitted purpose of obstructing the Court's resolution of the Trustee's motion for summary judgment. Moreover, it is clear that your client is intentionally driving up the cost of this litigation to retaliate against the Trnstee and the Trust's rightful beneficiaries. The course of action you are pursuing in West Virginia has already been found by the Texas court to be frivolous as a matter of law. Moreover, there is sufficient evidence to make a compelling case to the Court that your client's continued pursuit of this matter is being conducted in bad faith. If your client is unwilling to do the right thing and dismiss his frivolous claims to the Trust, then my client has authorized me to aggressively pursue sanctions against you for facilitating his wrongful conduct. This matter is set for heai-ing tomorrow in the Circuit Court of Wirt County, West Virginia. I strongly urge your client to immediately cease his frivolous and futile pursuit of the Trust, and to dismiss his claims with prejudice at tomo1Tow' s hearing. Sincerely, ~- ~A-tb [per email authorization 7/l 7/17] Robert S. Fluharty, Jr. (1220) J. Nicholas Barth (255) Counsel for Plaintiff J..... k ~ 6~ _A c · b · [per email authorization 7/14/17] Leslie L. Maze (8072) Counsel for Defendants Donald Leaman Whited, Michael Ray Whited, Sheila Pettrey, Tywanna Pettrey, Amanda Pettrey, Terry Lee Whited, and Sherry Lynn Whited Salsbury ~_j S ~ - b,- A-z f, [per email authorization 7/ 15/ I 7] foeph T. Santer (3252) Guardian ad litem for unknown defendants 10 ' " . Shawn M. Brotherton, admitted pro hac vice Michael W. Taylor (11715) James W. Marshall, III (10677) Counsel for Mateo Cortez 11 9091503.1 APPENDIX J f ' IN THE CIRCUIT COURT OF WIRT COUNTY, WEST VIRGINIA LINDA MURRAY, in Her Capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff, v. CIVIL ACTION NO. 15-C-28 JUDGE WATERS LINDA LOU MURRAY, et al., Defendants. ORDER DENYING MOTION TO INTERVENE On June 27, 2017, this Court conducted a hearing on The Estate of Deborah Cortez's Motion to Intervene (the "Motion"). After considering the Motion, the response of defendant Connie Barry ("Response"), the response of the Trustee, the arguments of counsel, and the record, this Court hereby DENIES the Motion for the reasons stated on the record and more fully below. Procedural Posture 1. On June 12, 2017 Defendant Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, filed The Estate of Deborah Cortez's Motion to Intervene and Memorandum of Law in Support Thereof(the "Motion"), requesting that the Court pennit the Estate of Deborah Cortez to intervene pursuant to Rule 24 of the West Virginia Rules of Civil Procedure. 2. Mateo Cortez attached to the Motion u proposed intervenor cumplaiul entitled The Estate o.f Deborah Cortez's Complaint Requesting Declarato,y Relief, in which FILED Circuit Court Date C?-!tJ:lj CLERK~. Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, seeks a declaratory judgment that all of the assets of the "William D. Short and Phyllis D. Short Revocable Living Family Trust Dated April 30, 1991," as amended and restated by the "Second Amendment and Restatement of The William D. Short and Phyllis D. Short Revocable Living Trust" dated January 5, 2000 (collectively, the "Trust"), should have been inherited by Deborah Cortez following the death of Phyllis D. Short, as the sole heir and beneficiary of Phyllis's estate. The proposed intervenor complaint further requests an order directing that all the assets of the Trust be distributed to the Estate of Deborah Cortez. 3. On June 22, 2017, Plaintiff Linda Murray, in her capacity as Successor Trustee of the Trust (the "Trustee"), filed a response in opposition to the Motion. On June 23, 2017, Defendant Connie Lou Keith Barry ("Barry"), filed a response in opposition to the Motion and a request for sanctions. On June 27, 2017, the Court conducted a hearing on the Motion and other matters. The Court has reviewed the Motion, supporting memorandum and exhibits, the Trustee and Barry's responses and supporting exhibits, the Trust instrument, and entertained the arguments of the parties. The Court has also reviewed the entire record in this matter as part of its consideration of this Motion and the other matters pending before it. Findings of Fact & Conclusions of Law 4. On November 20, 2015, the Trustee filed this action to obtain "an order directing the distribution of the assets of the Trust to those persons determined by this Court to be entitled to receive the same in such proportions as may be determined by this Court to be proper and in conformity with the intent of the settlors of the Trust." (Complaint, p. 22). The Trustee joined and served Mateo Cortez as a defendant because he "claims that as the surviving spouse of Deborah Ann (Short) Cortez he is entitled to the trnst proceeds." (Complaint, ir 13). 2 The docket sheet for this matter indicates that Mateo Cortez was served with process on December 4, 2015. 5. At all times relevant to this action, Mateo Cortez was the sole heir and beneficiary of the Estate of Deborah Cortez, and had sole authority to act on its behalf. In both this action and the proceedings in Texas, Mateo Cortez's personal counsel also represents him in his capacity as the Personal Representative of the Estate of Deborah Cortez. 6. On December 28, 2015, Mateo Cortez filed a Rule 12(b) motion to dismiss this action pursuant to the doctrine of forum non conveniens, arguing that this action should be dismissed because the Trustee's claims were currently being litigated in Texas. 1 In his motion, Mateo Cortez stated that he was seeking to administer the Estate of Deborah Cortez in Texas, and stated that "Mr. Cortez filed an Original Petition in Intervention that seeks a declaratory judgment regarding the distribution of the Trust to Mateo Cortez, the sole heir of the Estate of his late wife, Deborah Cortez." However, Mateo Cortez did not argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action, did not seek to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, and did not attempt to join the Estate of Deborah Cortez as a party. On March 16, 2016, this Court denied Mateo Cortez's motion to dismiss. 7. On April 8, 2016, Mateo Cortez filed his answer in this matter. In his answer to paragraph 13 of the Trustee's complaint, Mateo Cortez admitted "that he is the surviving spouse and sole heir of Deborah Ann Cortez and that, as a surviving spouse and sole heir of Deborah Ann Cortez, that he is entitled to the trust proceeds." Mateo Cortez further 1 The Trustee and Barry dispute Mateo Cortez's characterization of the claims before the Texas court. 3 stated in his answer to paragraph 13 of the Trustee's complaint that the Texas court "has jurisdiction to declare that the Estate of Deborah Cortez is entitled to all of the assets of the trust." Mateo Cortez raised as his tenth defense to the Trustee's complaint that "[t]he Plaintiff has failed to join necessary and indispensable parties and thus this Complaint should be dismissed." However, Mateo Cortez did not allege that the Estate of Deborah Cortez was a necessary or indispensable party to this action, did not seek to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, and did not attempt to join the Estate of Deborah Cortez as a party. 8. On April 11, 2016, Defendant Barry filed a motion for partial summary judgment that Mateo Cortez is not entitled to share in the distribution of any assets of the Trust. Barry argued that the Trust instrument is unambiguous and that, pursuant to the terms of the Trust instrument, any remaining assets of the Trust are to be distributed to the heirs at law of William D. Short and Phyllis D. Short now that Deborah Cortez is deceased. 9. On May 9, 2016, Mateo Cortez filed a response to Barry's motion for partial summary judgment. In his response, Mateo Cortez stated that he "intends to conduct discovery to prove that as a surviving spouse of Deborah Cortez, he is entitled to the trust proceeds," and further argued he "is entitled to receive trust assets because he is the sole heir of the Estate of Deborah Cortez, the Shorts' only child." However, Mateo Cortez did not argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action, did not seek to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, and did not attempt to join the Estate of Deborah Cortez as a party. 4 10. On May 13, 2016, the Court conducted a hearing on Barry's motion for partial summary judgment and took the matter under advisement. 11. On April 29, 2016, Mateo Cortez filed a petition for a writ of prohibition with the Supreme Court of Appeals of West Virginia, seeking to prohibit execution of this Court's order denying his motion to dismiss. 2 In his petition, Mateo Cortez asserted that "[u]nder Texas law, a sole heir may bring an action on behalf of the deceased's estate," and devoted several pages of his brief to discussing actions he had taken in Texas on behalf of the Estate of Deborah Cortez to adjudicate its interest in the Trust. The petition further asserted that "Mateo Cortez, as Representative of the Estate of Deborah Cortez, subsequently filed an Original Petition in Intervention [in Texas] seeking declaratory judgment on the distribution of the Trust assets to the Estate of Deborah Cortez," and that "the original Plaintiff/Petitioner in this matter is the Estate of Deborah Cortez which filed its Original Petition in Intervention five (5) months prior to filing the duplicative litigation in West Virginia." However, Mateo Cortez did not argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action, or that this action should be dismissed for failure to join the Estate of Deborah Cortez as an indispensable party. On June 14, 2016, the Supreme Court of Appeals of West Virginia refused Mateo Cortez's petition. 12. On September 15, 2016, this Court granted Defendant Barry's motion for partial summary judgment, and dismissed Mateo Cortez as a defendant in this case based upon the findings, conclusions, and rulings reflected therein. 2 Per the requirements of the Appellate Rules of Procedure, this Court received a copy of Mateo Cortez's petition, as reflected on the certificate of service. 5 13. At no time prior to this Court's September 15, 2016, order granting Defendant Barry's motion for partial summary judgment did Mateo Cortez: (1) argue that the Estate of Deborah Cortez was a necessary or indispensable party to this action; (2) file a motion to dismiss this action for failure to join the Estate of Deborah Cortez as an indispensable party, or otherwise argue that this action should be dismissed for failure to join the Estate of Deborah Cortez as an indispensable party; or (3) attempt to join the Estate of Deborah Cortez as a party, or intervene as a party on behalf of the Estate of Deborah Cortez. 14. On September 29, 2016, Mateo Cortez filed a motion to alter or amend this Court's order granting Defendant Barry's motion for partial summary judgment, arguing that the Court should vacate its order and dismiss this case with prejudice. Among other grounds for granting his motion to alter or amend, Mateo Cortez argued for the first time that the Estate of Deborah Cortez is an indispensable party to this action. 15. On December 19, 2016, the Probate Court of Travis County, Texas granted summary judgment against Mateo Cortez, dismissing "any and all claims that Mateo Cortez, in his individual capacity or in his capacity as personal representative of the Estate of Deborah Cortez, has to any assets of The William D. Short and Phyllis D. Short Revocable Living Trust (the 'Trust'), other than his claim for undistributed income from the Trust during the life of Deborah Cortez." The Texas court subsequently amended its judgment to include monetary sanctions against Mateo Cortez's attorneys, finding that the arguments which Mateo Cortez advanced in Texas were frivolous and were not warranted by existing law; the extension, modification, or reversal of existing law; or the establishment of new law. The Texas court sanctioned Mateo Cortez's attorneys in the amount of $65,130.76 for driving up Defendant Barry's legal fees in Texas with frivolous claims. 6 Conclusions of Law 16. Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, seeks to intervene in this action as a matter of right, pursuant to Rule 24( a)(2) of the West Virginia Rules of Civil Procedure. The rule states in pertinent part: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. W.Va. R. Civ. P. 24. 17. "West Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction which is the subject of the action; (3) disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties." Syl. Pt. 2, State ex rel. Ball v. Cummings, 208 W.Va. 393, 540 S.E.2d 917 (1999). The Court finds that the movant cannot meet any of the above criteria. First Prong under Rule 24(a)(2) Motion is Not Timely 18. First, the Court finds that the Motion is untimely. a. "While Rule 24 of the West Virginia Rules of Civil Procedure provides for the intervention of parties upon a timely application, the timeliness of 7 any intervention is a matter of discretion with the trial court." Syl. Pt. 3, State ex rel. Ball v. Cummings, 208 W.Va. 393, 540 S.E.2d 917 (1999). b. The Supreme Court of Appeals of West Virginia has upheld refusals to grant intervention where the applicant had actual knowledge of a case but failed to move for intervention until after entry of judgment. See West Virginia Public Employees Ins. Bd. v. Blue Cross Hosp. Service, Inc., 180 W. Va. 177, 375 S.E.2d 809 (1988) (motion to intervene untimely when filed three months after entry of dismissal order and applicants knew or had reason to know of the pendency of the action prior to judgment); Pauley v. Bailey, 171 W.Va. 651, 301 S.E.2d 608 (1983) (permissive intervention) (motion to intervene untimely when filed almost one year after evidentiary hearings had closed and seven months after entry of trial court's orders). c. It is undisputed that, at all times relevant to this action, Mateo Cortez was the sole heir and beneficiary of the Estate of Deborah Cortez, and had sole authority to act on its behalf. d. It is also undisputed that Mateo Cortez had actual notice of this action as of December 4, 2015, but did not attempt to intervene on behalf of the Estate of Deborah Cortez, or argue that the Estate of Deborah Cortez was an indispensable party to this action, until after this Court granted summary judgment against him and dismissed him as a defendant. 8 e. It is also undisputed that Mateo Cortez did not actually attempt to intervene in this matter on behalf of the Estate of Deborah Cortez until June 12, 201 7 - nine (9) months after entry of judgment against Mateo Cortez. Second Prong under Rule 24(a)(2) Applicant Does Not Have an Interest 19. Second, the Court finds that the applicant does not have an interest in the property which is the subject of this action. a. This action seeks to determine the proper distribution of the Trust assets which remained after the death of Deborah Cortez. The applicant is Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez, so the question is whether the Estate of Deborah Cortez has an interest in the undistributed assets of the Trust. b. However, as this Court and the Probate Court of Travis County, Texas have already ruled, Mateo Cortez and the Estate of Deborah Cortez do not have an interest in the assets of the Trust. c. This Court has already ruled that Deborah Cortez's interest in the Trust was governed by Article VIII, Section B of the Trust instrument, which states that if Deborah "is living on the date of the death of the second one of us to die," then "during Deborah's life" she was entitled to an annual distribution of $25,000.00 of the Trust principal, and a quarterly distribution of the net Trust income. Article VIII, Section C of the Trust instrument sets forth how the remaining Trust assets are to be distributed upon Deborah's death, which is one- 9 half to the heirs at law of William D. Short and one-half to the heirs at law of Phyllis D. Short. Accordingly, the Estate of Deborah Cortez has no interest in the assets of the Trust because the plain and unambiguous language of the Trust instrument afforded no interest to Deborah upon her death. d. Despite the fact that the Motion is not timely and despite the fact the applicant does not have an interest in the subject property, the proposed intervenor complaint nonetheless alleges that the Estate of Deborah Cortez has an interest in the Trust because Article VIII, Section A, Paragraph 2 of the Trust instrument invalidated the remaining provisions of Article VIII. This Court disagrees. 1. Article VIII, Section A sets forth a senes of one-time distributions of cash, including a distribution to Deborah Cortez under the following condition: 2. Cash Distribution to Deborah. If our daughter, DEBORAH A. CORTEZ, is living and legally competent, the trustee shall distribute to her the sum of fifty thousand dollars $50,000.00 as soon as practicable after the death of the second one of us to die. If Deborah is not then living or is not legally competent, then this gift shall lapse, and the remainder of the trust estate shall be administered as provided below. The applicant alleges that the second sentence of this provision dictates that the remainder of the Trust assets are only to be administered under the subsequent sections of Article VIII if "Deborah is not then living or is not legally competent." The applicant therefore alleges that "the Trust is ineffective for the disposition of the Trust assets at the time of Phyllis D. 10 Short's death since Deborah Cortez was alive and competent," that the remainder of the Trust therefore lapsed, and that all of the assets of the Trust passed by intestacy through the Estate of Phyllis D. Short to Deborah Cortez as her sole heir. 11. The Court, however, rejects this argument as frivolous and contravened by the plain language of the Trust instrument. By its terms, the second sentence of Article VIII, Section A, Paragraph 2 of the Trust instrument pertains solely to whether the cash distribution to Deborah under that paragraph lapses; and does not govern the "Continuing Trust for Deborah" established under Article VIII, Section B "[i]f our daughter, Deborah A. Cortez, is living on the date of the death of the second one of us to die." It is undisputed that Deborah was alive when Phyllis D. Short died; the Court must give effect to the intent of the settlors in creating the Trust, and will not read the Trust instrument as "ineffective for the disposition of the Trust assets" when the plain language of the Trust does in fact provide for the disposition of the Trust assets. Third Prong under Rule 24(a)(2) Disposition of the Action Does Not Impair Applicant's Ability to Protect Interest 20. Third, the Court finds that its disposition of this action has not impaired or impeded the applicant's ability to protect its interest in the property which is the subject of this action. This Court and the Texas court have already ruled that Mateo Cortez and the Estate of Deborah Cortez do not have an interest in the undistributed assets of the Trust. Pursuant to Article VIII, Section B of the Trust instrument, Deborah Cortez only possessed a life interest in 11 the assets of the Trust, and that interest extinguished when she died; and the Trust instrument makes no provision for Mateo Cortez at all, despite the fact that the settlors clearly knew that Mateo Cortez and Deborah were married. Fourth Prong under Rule 24(a)(2) Applicant Adequately Represented 21. Fourth, the Court finds that the applicant was adequately represented by Mateo Cortez, who is the administrator and sole heir of the Estate of Deborah Cortez. a. As to adequacy of representation by existing parties, "generally courts compare the interests asserted by the proposed intervenor with the interests of the existing party. If the proposed intervenor's interest is not represented by the existing party, or the existing party's interests are adverse to those of the proposed intervenor, intervention should be granted .... [However], if the interests are identical, intervention should be denied unless there is a compelling showing as to why the existing representation is inadequate." State ex rel. Ball v. Cummings, 208 W.Va. 393, 403, 540 S.E.2d 917, 927 (1999) (internal citations omitted). b. Mateo Cortez, in both his personal capacity and in his capacity as the Personal Representative of the Estate of Deborah Cortez, have identical interests in this action: both seek an order directing that all the assets of the Trust be distributed to Mateo Cortez, either through direct distribution to Mateo Cortez personally or indirectly through distribution to the Estate of Deborah Cortez, which then flows through to Mateo Cortez personally as its sole heir. This identity of interest is clear from the undisputed fact that Mateo Cortez controls 12 every decision made on behalf of the Estate of Deborah Cortez, and is the only heir and beneficiary of the estate. c. Additionally, Mateo Cortez's attorneys represent him in both his individual capacity and in his capacity as the Personal Representative of the Estate of Deborah Cortez, which would violate the West Virginia Rules of Professional Conduct if their interests were adverse in any way. See W.Va. R. Prof. Conduct § 1. 7 (simultaneous representation of adverse parties in litigation is a non-waivable conflict of interest). Ruling For the reasons set forth above, and as stated more fully upon the record, this Court DENIES the Motion to Intervene filed by Mateo Cortez, in his capacity as the Personal Representative of the Estate of Deborah Cortez. The Court notes that Defendant Connie Lou Keith Barry has filed a motion for sanctions against Mateo Cortez, in either his personal capacity or in his capacity as the Personal Representative of the Estate of Deborah Cortez, and his attorneys. The Court's ruling in this Order does not address, moot, or otherwise resolve that motion. This Court ORDERS the Clerk to forward certified copies of this Order to all counsel of record and pro se parties. 13 PREPARED BY: Aaron C. Boone (WVSB #9479) Counsel for Defendant Connie Lou Keith Barry APPROVED FOR ENTRY: Rs . Flv.-~ k>-, A<:. B [per email authorization 7/1 7/1 7] Robert S. Fluharty, Jr. (1220) J. Nicholas Barth (255) Counsel for Plaintiff /--._. L, fY1~ by .A ,C. 6 · [per email authorization 7/14/17] Leslie L. Maze (8072) Counsel for Defendants Donald Leaman Whited, Michael Ray Whited, Sheila Pettrey, Tywanna Pettrey, Amanda Pettrey, Terry Lee Whited, and Sherry Lynn Whited Salsbury ~ JYµ.y'-··:·:'·::.' · - · ~:_J'.{"~J:/~fl):_:~:i;_.-._,_, ·.--:.·,' \: _- ;:.,_'.- '· .-:--'2--::.:.-~~:;:-;~:~-·------ ·-:;.. ,... '"' ·.-., ~·~ - - ·:·· -;~ -- _________ .____ _ Agreed? (See TRAP 28.2): X 0Yes 0No Appeal should receive precedence, preference, or priority under statute or rule: X 0Yes 0No If yeo, plo..o 1pocify 1totutory or other basis for such status: !'.<,·: :>·::-<~: :-:·:_·_.,- -<'-·:_ -~- ::,,,_·:~<(?·;,_,g:. 3_:"> _:,. ;(, -; "c_·,p ,:, .: , :>·)d:-~!:;;3Jj2.;: ··t-· '.)'!: ;;t,;: .:- .:;,;; ·,: :,~~·~~,'.: :<: Does this caseinvolveanarnountuuder$100,000? X D Yes 0No X Yes 0No Judgment or order disposes of all parties and issues: D due to severance Appealfromfinaljudgment: X Yes 0No D Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? X No D Yes D Motion for New Trial: X 0Yes D No If yes, date filed: 01/19/2017; 3/14/2017 Motion to Modify Judgment: X 0Yes 0No If yes, date filed: 01/16/2017; granted on 2/10/2017 Request for Findings of Fact 0Yes 0No If yes, date filed: and Conclusions of Law: oYes 0No If yes, date filed: Motion to Reinstate: 0Yes 0No If yes, date filed: Motion under TRCP 306a: Other: Motion for Reconsideration; filed 1/19/2017 and 3/14/2017 incorporated into Motion for New Trial If other, please specify: Was Statement of Inability to Pay Court Costs filed in the trial court? X 0Yes 0No If yes, date filed: Was a Motion Challenging the Statement filed in the trial court? X 0Yes 0No If yes, date filed: Was there any hearing on appellant's ability to afford court costs? X No 0Yes D Hearing date: Did trial court sign an order under Texas Rule of Civil Procedure 145? X 0Yes 0No Date of order: If yes, trial court finding: D Challenge Sustained D Overruled Page 2 of 9 Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? X 0Yes 0No If yes, please attach a copy of the petition. Date bankruptcy filed: Bankruptcy Case Number: Probate Court No. 1 Clerk's Record: Travis County Clerk County: Travis County Trial Court Clerk: X County D District D Trial Court Docket Number (Cause No.): C-1-PB-16-002348 Was clerk's record requested? 0Yes X 0No If yes, date requested: Trial Judge (who tried or disposed ofcase): If no, date it will be requested: 6/12/2017 First Name: Guy Were payment arrangements made with clerk? Middle Name: arrangements will be made 0Yes 0No 0Indigeut Last Name: Herman 6/12/2017 (Note: No request required under TRAP 34.S(a),(b)) Suffix: Address I: 1000 Guadalupe Address 2: Room 217 City: Austin State: Texas Zip+4: 78701-2328 Telephone: 512-854-9258 ext. Fax: 512-854-4418 Email: Reporter's or Recorder's Record: Is there a reporter1s record? X 0Yes D No Was reporter's record requested? X 0Yes 0No Was there a reporter's record electronically recorded? D Yes D No If yes, date requested: If no, date it will be requested: 6/12/2017 Were payment arrangements made with the court reporter/court recorder? DYes D No 0Indigent Will arrange payment on 6/12/2017 Page 3 of 9 X Court Reporter D D Court Recorder D Official D Substitute First Name: Melissa Middle Name: Last Name: Voigt Suffix: Address 1: 1000 Guadalupe Address 2: City: Austin State: Texas Zip+4: 78701-2328 Telephone: 512-854-4418 ext. Fax: Email: melissa.voigt@traviscountytx.gov . AddRep91:\er • Supersedeas bond filed:OYes D X No If yes, date filed: Will file: X Yes D No D Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? D Yes D X No If yes, briefly state the basis for your request: Should this appeal be referred to mediation? OYes X ONo If no, please specify: Mediated post-judgment now on appeal Has the case been through an ADR procedure? DY X es D No If yes, who was the mediator? Alice Oliver-Parrott What type of ADR procedure? mediation At what stage did the case go through ADR? X Post-Trial D Pre-Trial D D Other Ifother, please specify: Type of case? Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Improper summary judgment, improper award of sanctions, and improper severeance How was the case disposed of? Through summary judgment and severance from remaining claims Summary of relief granted, including amount of money judgment, and if any, damages awarded. If money judgment, what was the amount? Actual damages: Punitive (or similar) damages: Sanctions award against attorneys only for $65,130.76 Page 4 of 9 Attorney's fees (trial): none Attorney's fees (appellate): none Other: If other, please specify: Will you challenge this Court's jurisdiction? 0Yes X No D Does judgment have language that one or more parties "take nothing"? D Yes X No D Does judgment have a Mother Hubbard clause? 0Yes D X No Other basis for finality? "disposes of all claims and parties and is final and appealable" as to severed case Rate the complexity of the case (use I for least and 5 for most complex): D 1 D2 D 3D4 D5 Please make my answer to the preceding questions known to other parties in this case. 0Yes D No Can the parties agree on an appellate mediator? D Yes D No If yes, please give name, address, telephone, fax and email address: Naroe Address Telephone Fax Email Languages other than English in which the mediator should be proficient: Naroe of person filing out mediation section of docketing statement: List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style. Docket Number: 03-17-00044-CV Trial Court: Travis Count Probate No. 1 C-1-PB-16-002348 Style: Mateo Cortez, as Representative of the Estate of Deborah Cortez Vs. Sandra Flesher Brown et al. Page 5 of 9 The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court. The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? D Yes D X No Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? 0Yes 0No Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program. If you have not previously filed an Statement of Inability to Pay Court Costs and attached a file-stamped copy of that Statement, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? D Yes D No These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml. Are you willing to disclose your financial circumstances to the Pro Bono Committee? D Yes D No If yes, please attach an Statement of Inability to Pay Court Costs completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of a Statement under oath as to your financial circumstances. Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary). Signature of counsel (or pro se party) Date: 6/9/2017 Printed Name: William J. Brotherton, Attorney for Appellant State Bar No.: 00789989 Electronic Signature; (Optional) Page6 o· 9 The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on Signature of counsel (or pro se party) Electronic Signature: (Optional) William J. Brotherton, Attorney for Appellant State Bar No.: 00789989 Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state: (1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney Please enter the following for each person served: Please see attached Certificate of Service. Date Served: Manner Served: First Name: Middle Name: LastName: Suffix: Law Firm Name: Address 1: Address 2: City: State Texas Zip+4: Telephone: ext. Fax: Email: If Attorney, Representing Party's Name: Page 7 o1 9 X D Person * D Organization (choose one) D Additional Counsel: Lead Attorney First Name: William First Name: Mateo Middle Name: J. Middle Name: Last Name: Brotherton Last Name: Cortez Suffix: Suffix: Law Firm Name: Brotherton Law Firm Pro Se: 0 Address 1: 2340 FM 407 Address 2: Suite 200 * As Personal Representative of the City: Highland Village Estate of Deborah Cortez State: Texas Zip+4: 75077-3070 Telephone: 972-317-8700 ext. Fax: 972-317-0189 Email: william@brothertonlaw.com SBN: 00789989 D X Person s D Organization (choose one) D Additional Counsel: Lead Attorney First Name: Brian First Name: Sandra Flesher Brown Middle Name: T. Charlotte Flesher Ash Middle Name: Charlene Flesher Johnston Last Name: Thompson Last Name: Connie Lou Keith Barry Suffix: Suffix: Randall Wayne Davis Law Firm Name: Hopper Mikeska, PLLC Virginia Villers Pro Se: 0 Charles Roberts Address 1: 400 West 15th Street Lisa A. Smith Address 2: Suite 408 Patricia Chapman Betty J. Marks Webb City: Austin James Berl Marks State: Texas 78701-1654 Zip+4: Linda Murray Telephone: 512-615-6195 ext. Thomas Wayne Marks Fax: 512-615-6194 Donald Leman Whited Email: bthompson@hoppermikeska.com SBN: 24051425 Page 8 of 9 Service via Filetime.com E-Filing/E-Service on: Amanda G. Taylor Rose Cohen State Bar No. 24045921 State Bar No. 24031961 ataylor@beckredden.com rose@cohenlegalservices.com Beck & Redden, LLP Mark Cohen 515 Congress Avenue, Suite 1750 State Bar No. 24031961 Austin, TX 78701-3526 mark@cohenlegalservices.com 512-708-1000 The Law Offices of Mark Cohen 512-708-1002 fax 805 W. 10th Street, Suite 100 Austin, Texas 78701-2029 Brian T. Thompson 512-474-4424 State Bar No. 24051425 512-472-5444 fax bthompson@hoppermikeska.com Hopper Mikeska, PLLC Attorneys for Linda Murray in her capacity 400 W. 15th Street, Suite 408 as Successor Trustee Austin, TX 78701-1654 512-615-6195 Aaron C. Boone 512-615-6194 fax WV Bar No., 9479 aboone@bowlesrice.com Attorneys for Appellees Bowles Rice LLP Sandra Flesher Brown 501 Avery Street, P.O. Box 49 Charlotte Flesher Ash Parkersburg, WV 26102-0049 Charlene Flesher Johnston 304-420-5501 Connie Lou Keith Barry 304-420-5587 fax Randall Wayne Davis Virginia Villers Attorney for Connie Lee Keith Barry Charles Roberts Lisa A. Smith Patricia Chapman Betty J. Marks Webb James Berl Marks Linda Murray Thomas Wayne Marks Donald Leman Whited Page 9 of 9