                                                                                       ACCEPTED
                                                                                    03-17-00365-cv
                                                                                         21279823
                                                                         THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                                12/13/2017 5:30 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 5:30:45 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


                APPELLANT’S MOTION FOR LEAVE
                 TO AMEND NOTICE OF APPEAL



Pursuant to Texas Rule of Appellate Procedure 25.1(g), Appellant Mateo

Cortez, as Representative of the Estate of Deborah Cortez, files this motion

for leave to amend notice of appeal and in support thereof respectfully shows

the Court as follows.

      Appellant Mateo Cortez is the representative of the estate of his

deceased wife, Deborah, the only child of decedents William and Phyllis Short
(who were the settlors of the trust made the subject of this litigation).

Appellees, who were third-party defendants below, are more distant relative

of the Shorts asserting claims as alternate beneficiaries.

      On December 19, 2016, the probate court granted partial summary

judgment in favor of Appellees on certain of Cortez’s requests for declaratory

judgment regarding the meaning and effect of specific provisions of the trust

(Article VIII, Paragraphs C and D). 3CR2177-83. Over Cortez’s objections,

the probate court severed the partial summary judgment to finalize it for

appeal. Id. On February 9, 2017, Cortez filed his initial notice of appeal to

this Court, challenging the probate court’s partial summary judgment and

severance orders. 3CR2352-54.

      On February 10, 2017, nearly two months after rendering partial

summary judgment, the probate court granted sanctions against Cortez’s

attorneys, William Brotherton and the Brotherton Law Firm, finding that

Cortez’s urged interpretation of Paragraph D was frivolous and amending its

severed summary judgment to include the sanctions award. On March 13,

2017, Cortez early filed an amended notice of appeal specifically to include

the sanctions order.       Cortez then timely filed a motion for new

trial/reconsideration of the probate court’s sanctions order on March 14, 2017,

extending the deadline for notice of appeal to May 11, 2017. 3CR2671-88.

                                       2
On May 25, 2017, Cortez filed a second amended notice of appeal to detail

additional challenged orders of the probate court, again specifically including

the sanctions order embedded in the court’s amended severed judgment.

3CR2668-70. The sanctions award is specifically noted on the amended

docketing statement filed by Cortez on June 19, 2017. See Response at App.

B.

      Cortez filed his opening brief in this Court on October 16, 2017,

including a challenge to the trial court’s sanctions award. Appellees’ response

is due on January 16, 2018 (two 30-day extensions having been granted).

      Through inadvertence and mistake, the notice of appeal does not

expressly name William Brotherton and the Brotherton law firm as appellants.

Pursuant to Tex. R. App. 25.1(b) and (g), Appellant respectfully moves the

Court for leave to amend the second amended notice of appeal by adding the

following bolded text to the second amended notice of appeal:

      Plaintiff Mateo Cortez, Individually and as Representative of the
      Estate of Deborah Cortez (herein together, “Cortez”) and
      attorneys William Brotherton and the Brotherton Law Firm
      desire to appeal all the orders made by this Court in this matter…

The proposed third amended notice of appeal including this language is

attached at Appendix A.

      Appellant Mateo Cortez believes that he has standing to challenge the

sanctions order, as detailed in his response to Appellees’ Motion to Dismiss,
                                      3
filed contemporaneously with this motion and attached at Appendix B

(appendices excluded). Appellant seeks leave to make this amendment only

to technically correct the notice and ensure review of the sanctions order on

the merits.

      No party will be prejudiced by permitting this amendment to

Appellant’s perfecting documents. Appellees will not be unfairly surprised.

The intent to appeal the sanctions order has been made plain in all post-

amended judgment filings filed by Brotherton. Appellees did not complain of

the sanctions challenge in their earlier post-brief motion filed nearly a month

ago. Appellees have at least one additional month to prepare their responsive

brief and have fully briefed their position on this issue in two trial courts. See

Response, App. B.

      Permitting this amendment is also consistent with the rules and the

policy underlying them. The liberal provisions for amending a notice of

appeal are in keeping with the Texas Supreme Court’s guidance that a party

should be allowed to amend its perfecting documents if that party makes a

bona fide attempt to invoke the jurisdiction of the appellate court. See, e.g.

Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989);

Woods Explor. & Prod. Co. v. Arkla Eq. Co., 528 S.W.2d 568, 570 (Tex.

1975). If an “appellant timely files a document in a bona fide attempt to

                                        4
invoke the appellate court’s jurisdiction, the court of appeals, on appellant’s

motion, must allow the appellant an opportunity to amend or refile the

instrument required … to perfect the appeal” even if “the appellant filed the

wrong instrument” in a misguided attempt to perfect an appeal. Grand Prairie

Sch. Dist. v. Southern Parts, 813 S.W.2d 499, 500 (Tex. 1991) (per curiam);

see also Sweed v. Nye, 323 S.W.3d 873, 874–875 (Tex. 2010). These

pronouncements reflect the sound policy that “decisions of the court of

appeals [should] turn on substance rather than procedural technicality.”

Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex. 1994) (per curiam); see

also Verburgt v. Dorner, 959 S.W.2d 615, 616–617 (Tex. 1997) (“appellate

courts should not dismiss an appeal for a procedural defect whenever any

arguable interpretation of the Rules of Appellate Procedure would preserve

the appeal”).

                            CONCLUSION AND PRAYER

      Appellant respectfully asks this Court to grant leave to amend the

second amended notice of appeal to correct the defect or omission, if any, by

adding William J. Brotherton and the Brotherton Law Firm to the list of

appealing parties and to allow Brotherton to join the brief submitted by

Appellant Cortez.




                                      5
                                   Respectfully submitted,

                                   BROTHERTON LAW FIRM



                                   By:_/s/ Susan S. Vance________
                                     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

               CERTIFICATE OF CONFERENCE

     I hereby certify that, on December 13, 2017, I attempted to
communicate with Amanda Taylor, counsel for Appellees. We assume
Appellees oppose the relief sought in this motion.


                                   _/s/ Susan S. Vance________
                                   Susan S. Vance




                               6
                    CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
APPELLANT’S MOTION FOR LEAVE TO AMEND NOTICE OF APPEAL
was forwarded, on this 13st 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




                                         ____________________________
                                         William J. Brotherton




                                   7
                           APPENDIX



Tab   Document

A.    Appellant’s Third Amended Notice of Appeal

B.    Appellant’s Response to Appellees’ Motion to Dismiss for Want of
      Jurisdiction (without Appendix)
Appendix A
                                 CAUSE NO. C-1-PB-16-002348

MATEO CORTEZ,                               §                   IN THE PROBATE COURT
AS REPRESENTATIVE OF THE                    §
ESTATE OF DEBORAH CORTEZ,                   §
     Plaintiff,                             §
                                            §
v.                                          §                                           NO. 1
                                            §
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,                        §
      Defendants.                           §                   TRAVIS COUNTY, TEXAS


                         THIRD AMENDED NOTICE OF APPEAL


TO THE HONORABLE JUDGE OF SAID COURT:

       1.      Plaintiff Mateo Cortez, Individually and as Representative of the Estate of

Deborah Cortez (herein together, “Cortez”), William Brotherton, and the Brotherton Law Firm

desire to appeal all the orders made by this Court in this matter, including but not limited to, the

Order Denying Intervenor’s Special Exceptions to Third Party Defendants’ Traditional and No

Evidence Motion for Summary Judgment, the Order Granting Third Party Defendants’

Traditional and No Evidence Motion for Summary Judgment, and the Order on Third Party

Defendants’ Motion to Sever—all of which were signed on December 19, 2016 in Cause No. C-

1-PB-14-001564 and subsequently severed into Cause No. C-1-PB-16-002348—as well as the

_____________________________________________________________________________________________
THIRD AMENDED NOTICE OF APPEAL – Page 1
amendment to the final judgment as it is reflected in the Court’s Order on Third Party

Defendants’ Motion to Modify Judgment to Include Sanctions Award and its Amended Final

Judgment, signed on February 10, 2017 in Cause No. C-1-PB-16-002348.

       2.     Cortez, William Brotherton, and the Brotherton Law Firm appeal such orders to

the Third Court of Appeals in Austin, Travis County, Texas.

                                               Respectfully submitted,

                                               BROTHERTON LAW FIRM


                                               By: ____________________________
                                                  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 PLAINTIFF




_____________________________________________________________________________________________
THIRD AMENDED NOTICE OF APPEAL – Page 2
                               CERTIFICATE OF SERVICE

      This is to certify that, pursuant to the Texas Rules of Civil Procedure, a true and correct
copy of the foregoing Third Amended Notice of Appeal was forwarded, on this 13th day of
December, 2017, to the following:

Mark Cohen                                      Craig Hopper
Rose Cohen                                      Brian T. Thompson
The Law Offices of Mark Cohen                   Claire D. East
805 West 10th Street, Suite 100                 400 W. 15th Street, Suite 408
Austin, Texas 78701                             Austin, TX 78701

Attorneys for Plaintiff /Third Party Defendant Attorneys for Third Party Defendants Linda
Linda Murray in her capacity of Successor Lou Marks Murray, individually; Charlene
Trustee                                        Rae Flesher Johnston; Charlotte Fae Flesher
                                               Ash; Sandra Kay Flesher Brown; Thomas
Aaron C. Boone                                 Wayne Marks; James Berl Marks; Betty J.
David A. DeJarnett                             Webb; Patricia A. Chapman; Lisa A. Smith;
Bowles Rice LLP                                Charles Bruce Roberts, Jr., Virginia Ann
501 Avery Street, P.O. Box 49                  Roberts Villers; Randall Wayne Davis;
Parkersburg, WV 26102-0049                     Sherry Lynn Whited Salsbury; Terry Lee
                                               Whited; Michael Ray Whited; Donald
Attorneys for Connie Lee Keith Barry           Leaman Whited; and Connie Lou Keith Barry

Sheila D. Pettry                                Magen Elizabeth Whited
Amanda Pettry                                   164 Joe Short Drive, No. 164
Tywanna Annette Pettry                          Ravenswood, WV 26164
384 E. 260th St.
Euclid, OH 44132

Ruby Mae Hite Pierce, as Next Friend of
Charles Gregory Whited
1604 Park Street
Parkersburg, WV 26101


                                                    ____________________________________
                                                    William J. Brotherton




_____________________________________________________________________________________________
THIRD AMENDED NOTICE OF APPEAL – Page 3
Appendix B
                                                                                    ACCEPTED
                                                                                 03-17-00365-cv
                                                                                      21265641
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                            12/13/2017 12:56 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                           NO. 03-17-00365-CV


                 IN THE THIRD COURT OF APPEALS
                          AUSTIN, TEXAS


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


     APPELLANT’S RESPONSE TO APPELLEES’ MOTION TO
           DISMISS FOR WANT OF JURISDICTION



      Appellant Mateo Cortez, as Representative of the Estate of Deborah

Cortez, files this response to Appellees’ Motion to Dismiss for Want of

Jurisdiction, respectfully showing the Court as follows:




                                      1
       Appellees claim that, under a line of cases decided by this Court, the

Court lacks jurisdiction over Appellant’s challenge to the trial court’s

sanctions order and ask the Court to summarily dismiss that challenge.

Because this case is distinguishable from the cited cases on multiple planes,

dismissal is inappropriate. Appellees’ motion to dismiss should be denied.

I. The impropriety of the trial court’s severance order is a threshold issue
that this Court must determine.

       Appellant Mateo Cortez is the representative of the estate of his

deceased wife, Deborah, the only child of decedents William and Phyllis Short

(who were the settlors of the trust made the subject of this litigation). As

Cortez has shown the Court, trustee Linda Murray, having invoked the

exclusive jurisdiction of the Texas probate court and insisted on a standstill

that precluded the Estate from proceeding until the joinder of all the

alternative claimed beneficiaries (more distant relatives of the Shorts,

including Murray), then improperly filed a separate suit for the trust assets in

a West Virginia court on behalf of these relatives.1 Appellant Br. at 6-8. With

the Estate’s hands tied and to her own benefit, Murray, as trustee, successfully

shut the Estate out of the second-filed West Virginia suit, obtained summary



1
  The relatives, Third-Party Defendants in the Texas probate court below, have relabeled
themselves “the Heirs” in their multiple motions to this Court.
                                           2
judgment for the relatives there, and then—on the back of that ruling—

Murray, as another claimant to the Trust, gained partial summary judgment

against the Estate on its claims to the trust (those asserted under trust Article

VIII, Paragraphs C and D) in the Texas suit. 3CR 2177-2178. Over the

Estate’s objections, the probate court granted severance of that partial

summary judgment. 3CR 2181-2183.

      More than four (4) months after the West Virginia ruling, a month after

the Texas court’s partial summary judgment and severance, and a week after

the Estate noticed its appeal, the relatives (Third-Party Defendants below,

Appellees here) sought sanctions against the Estate’s counsel for advocating

in Texas the Paragraph D argument the West Virginia court had rejected. The

Texas probate court awarded sanctions nearly entirely based on the West

Virginia ruling, then tacked that sanctions ruling onto the wrongly severed

summary judgment. 3CR2663-2667.

      As the Estate has demonstrated, the Texas trial court’s severance of

intertwined issues and parties was improper making the partial summary

judgment against the Estate interlocutory. Appellant’s Br. at 15-18. Until that

threshold issue is considered, this Court’s jurisdiction is limited to

determining the propriety of the severance. Dalisa, Inc. v. Bradford, 81

S.W.3d 876, 880 (Tex. App.— Austin 2002, pet. granted) appeal dism’d 03-
                                  3
03-00230-CV, 2003 WL 21940024 (Tex. App.—Austin Aug. 14, 2003, no

pet.) (mem. op.). Complete review will establish the quagmire created by

allowing severance in this artificially truncated case.

      If the trial court’s severance was improper, which it was, then none of

its rulings, including the sanctions order, are ripe for appeal. Any defect in

the notice of appeal regarding matters other than the severance order is moot.

Because the Court must address this threshold question only after full briefing

and argument, if any, summary dismissal of the sanctions issue is

inappropriate.

II. Cortez has standing to challenge the sanctions order.
       The gravamen of standing is remediable harm.          The controversy

underlying the probate court’s sanctions order is whether certain legal

positions regarding the subject trust are frivolous and untenable, a question

this Court is asked to address. As Appellant has demonstrated, the frivolous-

filing sanctions in this case were sought for the purpose of—and continue to

be used for—aggressively quelling the Estate’s advancement of good faith

legal interpretations of the Trust and attempting to drive a wedge between

Estate representative Mateo Cortez, a person of limited means, and his chosen

counsel. Appellant’s Br. at 39-40. Because of the procedural morass created

by Appellees’ cross-country gamesmanship, the error in the probate court’s
                                       4
sanctions order has profoundly prejudiced Cortez’s interests across four courts

in two states. None of the cases cited by Appellees have involved such

injurious effects on a party as a result of attorney sanctions.

      Having invoked the exclusive jurisdiction of the Texas probate court

and gained a standstill of the Estate’s prosecution of its claims to the Trust,

Linda Murray and the other Appellee third-party defendants who stand to

personally gain from defeating the Estate then (1) filed a duplicative action in

West Virginia; (2) successfully shut the Estate out of the West Virginia action

and obtained a partial summary judgment against Mateo Cortez, individually,

but purporting to implicate and bind the Estate; (3) rushed to obtain a partial

summary judgment and severance against the Estate in Texas to get a quick

final order; (4) used the interlocutory West Virginia order to gain sanctions

against the Estate’s attorneys in Texas (after the severed final order in the

Texas trial court was rendered and appealed); and (5) used the Texas sanctions

order against the Estate’s attorneys to seek West Virginia sanctions against

the Estate, Cortez, and his attorneys (again asking for sanctions after there was

a final order in the West Virginia trial court). Appellant’s Br. at 8-12, 37-38;

App. C and E.

      In addition to actively leveraging interlocutory rulings in the dual

proceedings, at every turn, Appellees have brandished the Texas sanctions
                                    5
order (which wrongly found frivolous interpretation of only one aspect of the

Trust, Paragraph VIII, D) as a threat to Cortez unless he drops all his claims

and appeals in all courts in all capacities, including claims that were not

subject to either the Texas or West Virginia court’s summary judgments and

sanctions orders.

       As only some examples of this ongoing aggressive and offensive use of

the probate court’s erroneous sanctions order, the following filings and

communications are in the records of the Texas and West Virginia courts:2

       1. Letter from opposing counsel stating to Cortez, “on February 10,
          2017, Judge Guy Herman [found] that the claims you filed against
          my client were frivolous and/or unwarranted…The purpose of this
          letter [sic] to demand that Mateo Cortez and/or the Estate of
          Deborah Cortez immediately withdraw any and all claims to the
          Trust Assets…I wish to now make clear that if you and/or your
          client, Mateo Cortez (either personally or as representative of the
          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” 3CR 2798-2800;

       2. Letter from opposing counsel stating to Cortez, “[t]he 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…If [Cortez] is
          unwilling to do the right thing and dismiss his frivolous claims to


2
  This Court may take judicial notice of the court records in the West Virginia proceeding
and Appellant respectfully asks that it do so. See TEX. R. EVID. 201(b)(2); Freedom
Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012); WorldPeace v. Comm’n
for Lawyer Discipline, 183 S.W. 3d 451, 489 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied)).
                                            6
   the Trust, then my client has authorized me to aggressively pursue
   sanctions against [Cortez]” App. A at p. 2;

3. 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 litigation to sway the court against Cortez stating,
   “purpose of the surreply would only be to provide this Court with
   supplemental authority from the Texas litigation, to wit; the
   [Sanctions order]” App. B at p. 1;

4. Connie Lou Keith Barry’s Response in Opposition to Motion to
   Intervene and Request for Sanctions filed in West Virginia litigation
   using the sanction order to defeat Cortez’s motions, arguing that
   Cortez is rearguing “the same ridiculous and insupportable legal
   theories that led to sanctions against his lawyers in Texas” and
   seeking, on this basis, to dismiss all of Cortez’s motions before the
   court and “all of his other frivolous claims for relief” and sanction
   his attorneys. App. C at p. 4;

5. Connie Lou Keith Barry’s Response in Opposition to Cortez’s Post-
   Judgment Motion to Dismiss filed in West Virginia litigation citing
   extensively language of the Texas trial court’s sanctions order then
   asking that for the same reasons stated in her Response in
   Opposition to Motion to Intervene and Request for Sanctions. App.
   D at p. 5;

6. Linda Murray’s, in her capacity as the trustee, Response to the
   Motion to Intervene filed by the Estate of Deborah Cortez using the
   sanction order to support the denying the Estate’s intervention into
   the West Virginia case, which was successful. App. E at pp. 5-6.

7. Based upon the pleadings of Linda Murray and Connie Barry, the
   West Virginia Court denied all of Mateo Cortez’s and the Estate of
   Deborah Cortez’s motions on June 27, 2017. App. F at p. 2.

8. Memorandum in Support of Defendant Connie Lou Keith Barry’s
   Motion for Sanctions filed in West Virginia against Cortez
   individually and in his capacity as personal representative of the

                                7
           Estate of Deborah Cortez relying heavily not only upon the
           sanctions order itself, but upon the transcripts from the sanctions
           hearing. App. G. Specifically, Barry requests that the trial court
           follow the Texas trial court’s lead of awarding sanctions and do the
           same in West Virginia (against Mateo Cortez, individually and as
           representative of the Estate and all of his attorneys). App. G. at pp.
           17 and 22; and

       9. Barry’s sanctions motion has survived a final judgment under Sally-
          Mike. App. G, Paragraph 11. Each of the combined final orders
          state explicitly that the trial court’s final orders do not address, moot,
          or otherwise dispose of the sanction motion. See Ruling in: App.
          H at p. 13; App. I at pp. 9-10; and App. J at pp. 13.

       The West Virginia case in now before the West Virginia Supreme

Court, see Appellant’s Br. at 11. But unless the Estate is able to challenge and

overturn the Texas trial court’s sanctions order, West Virginia law, under

Sally-Mike, leaves Cortez at ongoing risk of personal, representative, and

attorney sanctions based on the Texas trial court’s erroneous finding that the

Estate’s Paragraph D claim is frivolous and untenable as the trial court in West

Virginia has deferred his ruling on the sanctions.

       Although it may, in some instances, be the case that sanctions against a

party’s attorney implicates only the attorney’s interests,3 the injurious effects

of the probate court’s sanctions order here seriously impact Appellant’s


3
 White v. Tex. Dep't of Family & Protective Servs., No. 03-08-00411-CV, 2008 Tex. App.
LEXIS 9508 (Tex. App.—Austin Feb. 22, 2012, no pet.) (finding no jurisdiction over
party’s appeal of district court order denying recovery of appointed attorney’s fees, which
appellant equated to sanctions).
                                            8
important procedural and substantive due process rights and cannot be

divorced from the monetary harm to his attorneys. Because Cortez has a

sufficient relationship with the sanctions challenge to have a justiciable

interest in the outcome and because his interests are gravely prejudiced by the

error in the probate court’s judgment, he has standing to appeal the sanctions

order. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005);

Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). Thus, even if

the Court’s jurisdiction were not initially limited by the severance challenge,

see Sec. I, supra, because Appellant has alleged and demonstrated unique

harm that further distinguishes this case from the Court’s prior opinions, full

review and analysis is warranted and summary dismissal is inappropriate.

There is no prejudice to Appellees in requiring them to brief and argue this

issue—they have done so on multiple occasions in the lower courts of two

states.

III. Even if Cortez lacked standing, his second notice of appeal
sufficiently invoked this Court's jurisdiction to permit correction to
include Brotherton
          Even if this Court’s jurisdiction were not initially limited by the

severance challenge (Sec. I) and even if the sanctions order did not so

injuriously implicate Appellant’s interests (Sec. II), Appellant believes that


                                       9
his second notice of appeal is, at worst, curably defective and sufficient to

imbue this Court with jurisdiction over the sanctions challenge.

      Texas Rule of Appellate Procedure 25.1(b) states that:

      The filing of a notice of appeal by any party invokes the appellate
      court’s jurisdiction over all parties to the trial court’s judgment
      or order appealed from. Any party’s failure to take any other step
      required by these rules, including the failure of another party to
      perfect an appeal under (c), does not deprive the appellate court
      of jurisdiction but is ground only for the appellate court to act
      appropriately, including dismissing the appeal.

Subsection 25.1(g) permits amendment of a notice of appeal in order to correct

a defect or an omission even after the opening brief has been filed. TEX R.

APP. P. 25.1(g). The liberal provisions for amending a notice of appeal are in

keeping with the Texas Supreme Court’s decisions that a party should be

allowed to amend its perfecting documents if that party makes a bona fide

attempt to invoke the jurisdiction of the appellate court. Walker v. Blue Water

Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989); Woods Explor. &

Prod. Co. v. Arkla Eq. Co., 528 S.W.2d 568, 570 (Tex. 1975).

      If an “appellant timely files a document in a bona fide attempt to invoke

the appellate court’s jurisdiction, the court of appeals, on appellant’s motion,

must allow the appellant an opportunity to amend or refile the instrument

required … to perfect the appeal” even if “the appellant filed the wrong

instrument” in a misguided attempt to perfect an appeal. Grand Prairie Sch.
                                    10
Dist. v. Southern Parts, 813 S.W.2d 499, 500 (Tex. 1991)(per curiam); Sweed

v. Nye, 323 S.W.3d 873, 874–875 (Tex. 2010)(“this Court has consistently

held that a timely filed document, even if defective, invokes the court of

appeals’ jurisdiction”). The rule allowing a bona fide attempt to invoke

jurisdiction is based on the principle that “the decisions of the court of appeals

[should] turn on substance rather than procedural technicality” Blankenship v.

Robins, 878 S.W.2d 138, 139 (Tex. 1994)(per curiam); Verburgt v. Dorner,

959 S.W.2d 615, 616–617 (Tex. 1997)(“appellate courts should not dismiss

an appeal for a procedural defect whenever any arguable interpretation of the

Rules of Appellate Procedure would preserve the appeal”).

      The Fourteenth Court of Appeals recently addressed a circumstance

where the trial court sanctioned an attorney, but not the attorney’s client. St.

Mina Auto Sales, Inc. v. Al-Muasher, 481 S.W.3d 661 (Tex. App.—Houston

[1st Dist.] 2015, pet. denied). The notice of appeal named only the client.

Approximately two and a half months later, after the deadline to file a motion

for new trial had passed but before the appellant’s brief was due, the attorney

amended the notice of appeal to add himself. Id. at 666.

      The Houston Court of Appeals concluded that, pursuant to Rule 25.1(b),

because one of the parties to the trial court’s judgment filed a notice of appeal,

the appellate court had jurisdiction over all the parties to the judgment.
                                    11
Accordingly, the court had jurisdiction over the attorney’s appeal, and could,

within its discretion, hear the attorney’s appeal. Id. at 666 (“Any party’s

failure to take any other step required by these rules, including the failure of

another party to perfect an appeal…does not deprive the appellate court of

jurisdiction but is grounds only for the appellate court to act appropriately,

including dismissing the appeal.”). The court of appeals concluded that the

rule eliminates any jurisdictional bar to the consideration of a late-filed notice

in which at least one of the parties has appealed the trial court’s order or

judgment. Id.

        Here, the probate court’s eleventh-hour sanctions ruling was not a

stand-alone order, but rather was embedded in the probate court’s amended

judgment. 3CR2663-67. In addition, Mateo Cortez, as representative of the

Estate of Deborah Cortez, Cortez’ counsel, William Brotherton and the

Brotherton Law Firm, are parties to the appealed amended order and

judgment. One of those parties, Cortez, filed a second amended notice of

appeal specifically to include the sanctions order. 3CR2668-70 and App. K at

p. 4.

        Under Rule 25.1, this Court thus has jurisdiction to exercise its

discretion to allow correction of the second amended notice of appeal to

expressly include William J. Brotherton and the Brotherton Law Firm. The
                                    12
criteria justifying such leave are present—Brotherton timely made a bona fide

attempt to invoke the Court’s appellate jurisdiction over the sanctions order,

and Appellees can demonstrate no surprise or prejudice by allowing the issue

to be determined on the merits, rather than a technicality. Appellant formally

seeks the Court’s leave to file a corrected notice via motion for leave filed

contemporaneously with this response.

       We recognize and respect that this Court has reached a different result

than the St. Mina opinion by concluding in Sluder v. Ogden, No. 03-10-00280-

CV, 2011 WL 4424294 (Tex. App.—Austin 2011, pet. denied) that a

sanctioned attorney must file a separate notice of appeal to invoke appellate

jurisdiction. We also acknowledge that the Court has applied this holding in

subsequent similar cases.4 Because the Texas Supreme Court has expressly

refrained from ruling on this specific issue5 and because the circumstances of

this case are unique, we urge the Court to apply Rule 25.1 to find jurisdiction

over the sanctions issue. In any event, given the complexities of this case,

summary dismissal is inappropriate.


4
   Berger v. Flores, No. 03-12-00415-CV, 2015 WL 3654555 (Tex. App. —Austin, June
12, 2015, no pet.); White v. Tex. Dep’t of Family & Protective Servs., No. 03-11-00394-
CV, 2012 WL 593529 (Tex. App.—Austin Feb. 22, 2012, no pet.); Bahar v. Baumann, No.
03-09-00691-CV, 2011 WL 4424294 (Tex. App.—Austin Sept. 23, 2011, pet. denied).
5
  Braden v. Downey, 811 S.W.2d 922, 928 n.6 (Tex. 1991) (“We express no opinion on the
question whether, in order to seek review of sanctions by appeal, an attorney must perfect
a separate appeal apart from that perfected by his client.”).
                                           13
                      CONCLUSION AND PRAYER

      The procedural posture and unique circumstances of this case

distinguish it from the authorities relied on by Appellees. Because the

severance challenge initially limits the Court’s jurisdiction, because Cortez

has alleged and demonstrated harm requiring at least the Court’s

comprehensive standing analysis, and because Cortez’s second notice of

appeal sufficiently invoked the Court’s jurisdiction over the sanctions issue to

permit correction to include Brotherton, Appellees’ motion to summarily

dismiss Appellant’s sanctions challenge should be denied. At most, the

motion should be carried with this appeal to permit complete review and

development of the appellate record to allow proper presentation to the Texas

Supreme Court on further appeal, if any.




                                      14
     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




15
                   I.     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing 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




                                      16
