                                                                                      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

                                                                 FILED IN
                                                          3rd COURT OF APPEALS
                 IN THE THIRD COURT OF           APPEALS      AUSTIN, TEXAS
                          AUSTIN, TEXAS                  12/13/2017 12:56:51 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 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
