                                                                                 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'\


                                                                                                                                   <P
                                                                                                                                      Q
                                                                                                                                      ·,I')
                                                                                                                                         .,(\
                                                                                                                                                    .-('\



                                                                                                                        ~ •...,..         r,
                     DECEASED                                            §                          '
                                                                                            TRAVIS COUNTY,         TE~:~t                      ~             \<
                                                                                                                           ~(".·:~·                 ~
                                                        SMALL ESTATE AFFIDA VlT                                             -:-J}:. 'c_              ·;;,_
                                                                                                                               .r!)._'7- '1'           o'
                    STArE OF TEXAS                                       §                                                        ~
                    COUNTY OF TRAVIS                                    §
                            MA TEO CORTEZ ("Distributee") furnishes the following information to the Court:
                            I.      "DEBORAH A. CORTEZ ("Decedent") died intestate on December 9, 201 l in Austin,
                   Travis County, Texas, at the age of 54 years.
                           2.      "Decedent's domicile was in TRAVIS County, Texas, where the principal partofDecedent's
                   property at the time of her death was situated.
                           3.      "There is no petition for the appointment of a personal representative pending, nor has one
                   been granted, for the Decedent's Estate.
                           4.      "Decedent died more than thirty (30) days prior to the filing of this Small Estate Affidavit.
                           5.      "The total value of all of the known assets of the Decedent, as of the date of her death, not
                   including the homestead nor exempt property, does not exceed $50,000.00, and those nonexempt assets
                  exceed the known liabiJities ofthe Estate, exclusive ofliabilities secured by homestead and exempt property.
                           6.      "The only real property of the Estate of the Decedent is a homestead which is community
                  property and located at 2602 Douglas Street, Austin, Texas 78744. The Estate's interest in said homestead is

--
iiiiiiii
i iiiiii

=
                  valued at approximately$60,000.00, which is more particularly described as follows:
                                   Lot 7, Block B, Burleson Road Heights, a subdivision in Travis County,

-
iiiiiiiiiii
iiiiiiiii

-co
-"
                                   Texas, according to the map or flat thereof recorded in Volume 6, Page 52,
                                   Plate Records of Travis County, Texas.

==~
=...-
iiiiiiiiiiO
              0
                          7.       "Decedent's marital history was as follows: Married; surviving spouse; Mateo Cortez

~8                        8.       "Decedent did not have or adopt any children and did not take any children into decedent's
                  home or raise any children, except: None.
                          9.      "Decedent's mother was: Phyllis Dale Whited, whose date of death was 02/05/2011.
                          10.     "Decedent's father was: William Dorsey Short, whose date of death was O1/03/200 I.
                          11.     "Decedent had the following siblings: None.
                          12.     "Decedent did not apply for and receive Medicaid benefits on or after March 1, 2005
                          13.     "The names, addresses, relevant family history facts showing relationship ofeach Distributee
                  to the Decedent, and the share of the Estate to which each Distributee is entitled are as follows:


                                                                                                              Pue I of4
                            "Name: MATEO CORTEZ
                            Address:            2602 Douglas Street, Austin Texas 78741
                            Relationship:              husband
                            Status:                    Adult
                           Share of Estate: l 00% of community property real and personal of the homestead
                   located at 2602 Douglas St. Austin, Texas 78741 including the known assets of
                   Decedent's Estate as follows:
                           Description:         State Paying Agency: Texas Department of Insurance
                           Last payroll check and accrued vacation leave
                           Type: Community
                           Value: 100% of $683.39 wages and $89.43 accrued vacation leave totaling
                                      $772.82
                           Encumbrances: None
                                                   LIABILITIES
         "No claims are due and owing by the Estate of DEBORAH A. CORTEZ, Deceased.
         "Distributee states that the facts contained in this Affidavit are true and prays that this Affidavit be
 filed in the Small Estate Records; that the same be approved by. the Court; and the Clerk issue certified copies
 thereof in order to allow the Distributee to present the same to persons owing money to the Estate of
 DEBORAH A. CORTEZ, Deceased, or acting as registrar, fiduciary, or transfer agent of anyone having
 evidences of interest, indebtedness, property, or other right belonging to said Estate."




        SWORN TO and SUBSCRIBED BEFORE ME by MATEO CORTEZ, this                                ~I          day of
~ - 2012, to certify which witness my hand and seal of office, in the capacity therein stated.

(Seal) ~ ~ - - - - . . . .                             Sw~ :£:>---
                                                      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;<lm,...,.,,w,_.,....,.,.,... _


                                 '                   MATBO COJlTBz,nistrlb


        ~'l'                  UBSCRl~ED BEFORE ME by MATEO CORTfiZ, this                          ?-I         day of
              A~, to certify which witness my band and seeIor office, In the capaclly therein stated.
                                            ~J:B.,_..
                                                     Notary Public ht aud for
                                                     Travis County, Stato of Texas
                                                     My Conunlssfon Expires: '7/,.-f    I, S:::




                                                                                                  Pa•c2 of4
   STATE OF TEXAS                                    ti
                                                     §
   CQllN'fY OF TRAVIS                                §

          "I have no interest In the l!state of DBBORAH A. CORTEZ, Peceased, and am not related to
  Decedent under the lows of descent 1111d dfsb'lbullon of the Store of Texas. The facts contained In this
  Affidavit ace true."




 STATE OF TEXAS




                        µw.&.&••et11111e1UttJJf

                       SUSIE~l!ARRERA
                      My Comml,elon l;l<p!tea
                          Jul)' 24, 2016




 iBBNUlARRERA
 Attorney for MATEO CORTllZ
 State Bar No.: 01808450)
 ~06 W. Oltorf
 Austin, TeKas 78704
 Telephone: (S12) 445-2054
 Facsimile: (S12)445,498S
, f" .b-., ,. ,. e ro.. (l)s bebl, b.D.. ,oe)-
                                                                                       P..o3ot4
                                                      NO. C-l-PB-12000338

      ESTATE OF                                              §

      J>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.·al<e.nn rter~~tt'ol~ o the separate or comniunlty nntm·e of ,my
    prope1·ty.
    .                       .\.__)
             It ls~~ 1 DJ!.X_): • coua•Hbnt Ibo Affld11vlt ls l1ereby APPROVED AS SET
    O}"~~\m1 01thwltb be rec01·ded ht the 1·eco1·1ls of the County Clerk, nud tl,e

« : ~ ~ ~ · t s b .1111 l.ss. ue c~l'f.l.tl. ed copies lhel'e(lf to all pe1'S(IIIS entitled Chere~.
  ""'-"-!J          SlGNli:D tbls ~ d11y of Apl'II, 2012.




                        I1111111111111111 l\lll1111111111111111111111\\11111I\\\
                         000158053


                           -···· ···-----
                                                                            -                                '   . ,_, ·~·-~--




                                                                                                       ' '
·,
::


.,   1'o;the:H0Jiai'lible.Jiiiljt~ ofSiilll C1111rti                                          ,

             NOW t:OMaS Mill'l'.O Co!tl'.13~. 011~ ~'!ililil m~ Cl(~ Qr/gl11al .itii11v,r Md woill~ show
                                                    -
                          ,S, C'!!l!t~ ii/I~ lliril ~ )uls 1101 bi.'iilf :Jmt ·oil n((1_lco :Ill!        ~qulfll!l in     d1e 1./11/e~ 11,f CM/
               I
               'f-'          J'tocirdi,r,qf.11!~ l!lll~U.U! c,f<!lil!\lifiil$.iili1Lli!if~ll_.$tiffl{i\\l!l'!t bi111 l.n lbc. OrlgJ111l/Po/lJl{)n,
                          ~. C0/:19~ ijill!lil$ ~i«:ll and ·ctoq, .nil .a~d ~l.0&u!ar           llt~ 1ill~JqllM11 <if Ntritll{/P Oi'{glf!GI
                              Ji,it11p111l!l)dllempl\ili!.,ltlor JJt'111J1-t
               ''

                      'Wl/~f~ l)q}~_~dqlll M,1\TBO ®~Tliz pmys .llilitnftlir'l)olice. ~nd n he11ting tl)llt I'* CM¢ b,;
                      ~rsmissed_li$·_u,, him pafflonilJl.y!U)~(~~ipll cq)t, 4f~~l'I ~-1~lic.\lng;yif~1 lh~1!1iiotil'.f,




           '
           l
           I

       'l
    ·j '




'      '
    ..,.




      .,
      l
     'j
                                    ·· 1 l>lnify 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~<ii•lltd@1~ tbitt, h!~liM ·~uy~~iiili~ ls11ow1cc1~~ on~~ 10.rtns pfl4e. ·
                  tr\lS\$1nl\dcth~ ;$1Jllll\t1 :of !h(ij $Ult dµdng ihe.'l!Ui.ofDcliorali Cortez,
. ·::.
. i'       ·, l!, M.~/eo Cortez specially ile1iie~ 1\1at he had any ,h<lwle~ge ,that hi$. wife, De.~ot/111 Coitei•
                 iiod t(l,)' &1.h.er. pijf!y, \nclyUlf\l!' W~!l~ ,~tgq ~nk, Mt~d lo v'lofa(<! MY l~l;P!l(<lf q1l} Witt ·
                 !iii\~.(} tn.l}Jl)~jcoJ 11fi~li Slit!,
     ,3. Mateo Cortez speclallt.denieuhat M acted in concertwith Debo111h Cone;; Wells Farg<.l
         :Bank, Roliert Sohl~r .or /lll)'tfthet j)!11'$0n iil an)' c,pll,~ity ti! defr*'1d, eonspl(eor @in.ndt
         Jhen oftbe ,M~ets of the l{.11$S·ilie·1!!~Jectofthis ln\X®lt,
    ,4, Mateo Conez denies, that· he llad the Intent to misappropriate, convert or exerel~e !.l\!!,n
         bver any tunds oftlie trusts m~deJbe. siibJecfofthlsfaYislllt•

    •~. MRteo Cort~ 11s~~ tMt lillY ·.claim ·o.r ga~,e: l'.lf1ict1ot1 !Mt tile 1'lail1liff alleges a$ to
         l':i~bora.ll toit\lt 1~ prqp~ly In the pr9\>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
        &ltillJ~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<fl'\l~ C.Qrt~ ·aft~r th~ ~~atli pf l!m- !ii!i!lW
             ·{Phyll!s Shl!.i:t'di¥ !nl-'ebru111-y :.!/flU Arthi!~ 7 (AJ:(2,);
              ,.   \ -,    '.                    .       . .   .   .   .
                                                                       .
    b.      ,All q~artedy Income from the,tm~t woulcf. lre;payabl~ to Debotith Oottez /\rtlcle•<f
         (BJ I; IU!d


         (8)3,,

9. Ma!e(i Cortez. deillel eacli and .every, all and. singular the allega(ions of /be !"lalnli/r~
   fe!lllon llnd d,e!)lllnils $1(!~t pn!iifdte~tlfl!y II pr~po11atr,ance of the evidence,
                                                                         ·-


          ·1 c:erlify !.biit .on Nlatl:h 16, 2015 .a ttue lll)d wt(e.ct CQPY .i!f tlvs First Aii1end/!d
· ·· At~wtrwas ;S¢We.d via e:m;ii\ .arJfl/_Qr F11'<$intlle pn ~!l~~el QfRecorclor pat.tills ofae~grd.
   ,aslollo~~;

   Fatsh1dJe:1i1a 472 liW
   MiirkCiih\!t1 . . . ....
   BOOVV~fl tpl~ ~ti'.11~!   Sulte 100
  .A,1.1st!iilT/iX1!$ za~oi ... .
· m)jtR/!il(,'!,!h~rl,!e~!XJm,,.rom

  hwm1~21_0~1 €'01
  S,. ;i,;t~rkMut.tay
  'JJ(!ti!.Murray             .
 . t01)Q1 i~µn(on Pllicl!   S.ulte MQ.
  S\\ilcA:ntpl.ijo Texas 78216
                                                                 20/r;J#/22     /;'f; 2· ,-
                                                                                ' · · 2c
                                                        t,·\\..:.·; _ ,: ____: ·. : ....
                           CAUSE NO. C-1-PB-14-001564"' ,,'-,''J,r·, : •- ;,c, ··

 LINDA MURRAY, SUCCESSOR         §                   IN THE PROBATE COURT
 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,                §
     DEFENDANTS.                            §
                                            §
                                            §       NUMBER ONE
                                            §
MATEO CORTEZ, AS                            §
REPRESENTATIVE OF THE ESTATE                §
OF DEBORAH CORTEZ,                          §
     INTERVENOR                             §
                                            §
v.                                          §
                                            §
LINDA MURRAY, SUCCESSOR                     §
TRUSTEE ANO ON BEHALF OF THE                §
WILLIAM D. SHORT AND PHYLLIS D.             §
SHORT REVOCABLE LIVING TRUST                §
INCLUDING THE CREDIT SHELTER                §
TROST CREATED THEREIN                       §       TRAVIS COUNTY, TEXAS

                                  RULE 11 AGREEMENT

      NOW COMES, Linda L. Murray, in her capacity as Successor Trustee and

on behalf of the William D. Short and Phyllis D. Short Revocable Trust including

the Credit Shelter Trust created In the trust document, ("Murray"}, and Mateo

Cortez("Cortez"}, in the capacity as representative of the estate of Deborah

Cortez, deceased and enter into this Agreement pursuant to Rule 11, Texas

Rules of civil Procedure ("Rule 11) as follows:

                       r

                             EXHIBIT                  ~iin1~i1i1i~iiiti"11111111111111111111
                                                       000482711
                                 D
 There is pending an Application for Injunctive Relief filed by Cortez. In lieu of a

 contested h•taring, the parties agree that none of the assets of the William D.

 Short and Phyllis D. Short Revocable Trust including the Credit Shelter Trust will

 be distributed to   a beneficiary except as may be permitted by a final order by a
 court of competent jurisdiction.

 This Agreement is enforceable pursuant to Rule 11 as provided therein.



 Approved:


                                           Mark Cohen/SBN: 04508400
                                           Rose Cohen/SBN: 24031961
                                           805 West 10th Street, Suite 100
                                           Austin, Texas 78701
                                           (512) 474-4424      Telephone
                                           (512) 472-5444      Facsimile
                                           mark@cohenlegalservices.com
                                           rose@cohenlegals ices.com




                                           Shawn M. Brotherton
                                           State Bar No. 24064956
                                           shawn@brothertonlaw.com

                                          Steven J. Manderfeld
                                          State Bar No. 24057565
                                          steve@brothertonlaw.com

                                          John C.Long, N
                                          State Bar No. 12520500
                                          john@brothertonlaw.com
                                          Attorneys for Cortez



Rule 11                                 Page2
 Sean W. Hester
 State Bar No. 00784266
 sean@brothertonlaw.com

 Main Office:
 2340 FM 407, Suite 200
 Highland Village, TX 75077
 (972) 317-8700     Telephone
 (972) 317-0189     Facsimile
                                             ,,.,.~ ···:~-~·"'''
                                        'rt' .                 .
                                        -'              .,r .




                                  Mark Cohen




Rule 11                         Page3
                                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
 LICENSED IN TEXAS AND NOJlTH DAKOTA




                                                    June 15,2017


 Via E-Mail: rsfluharty@fntlawoffices.com

Robert S. Fluharty, Jr.
Fluharty & Townsend
417 Grand Park Drive, Suite 101
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 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.

       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 yours,




WJB/dj

cc:      All Parties (per attached Certificate of Service)
         Client




                                                      EXHIBIT
                                                             E
                                     CERTIFICATE OF SERVICE

         The undersigned certifies that a true and correct copy of the foregoing correspondence
has been served on this 15 th day of June, 2017, by U.S. First Class Mail to the below interested
parties:

               Robert S. Fluharty, Jr.                      Charlene Rae Flesher-Johnston
               417 Grand Park Drive                                  PO Box 793
                     Suite 101                                 Elizabeth, WV 26143
              Parkersburg, WV 26105
              Attorney For: 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                           Taropa, FL 33614

                Aaron C. Boone                                   James Berl Marks
     Bowles Rice McDavid Graff & Love LLP                    1093 S. Pleasant Hill Road
                  PO Box49                                     Belleville, WV 26133
         Parkersburg, WV 26102-0049
       Attorney For: Connie Lee Keith Barry                     Linda Lou Murray
                                                               197 Oakbrook Drive
               David A. DeJamett                             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 Box 279                                  Elizabeth, WV 26143
              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 Road
                 Joseph T. Santer                             Kernersville, NC 27284
                 Santer & Santer
                   POBox306                                  Sandra Kay Flesher Brown
             Parkersburg, WV 26102                             99 Woodridge Drive
    Guardian ad Litem For: Unknown beneficiaries             Mineral Wells, WV 26150

                 Betty Jo Marks                                Thomas Wayne Marks
            1834 S. Pleasant Hill Road                         749 S. Long Run Road
              Belleville, WV 26 I 33                           Belleville, WV 26133

                                                            Virginia Ann Roberts Villers
                                                             28649 Allesandria Circle
                                                             Bonita Sp · gs, FL 31435
                                                                           1


     1                           REPORTER'S RECORD
                              VOLUME 2 OF 3 VOLUMES
     2                TRIAL COURT CAUSE NO. C-1-PB-16-002348

     3   MATEO CORTEZ, AS REPRESENTATIVE*           IN THE PROBATE COURT
         OF THE ESTATE OF DEBORAH CORTEZ*
     4                                  *
         vs.                            *           NO. 1 OF
     5                                  *
         SANDRA FLESHER BROWN, CHARLOTTE*
     6   FLESHER ASH, CHARLENE FLESHER *
         JOHNSTON, CONNIE LOU KEITH     *
 7       BARRY, RANDALL WAYNE DAVIS,    *
         VIRGINIA VILLERS, CHARLES      *
 8       ROBERTS, LISA A. SMITH,        *
         PATRICIA CHAPMAN, BETTY J.     *
 9       MARKS WEBB, JAMES BERL MARKS,  *
         LINDA MURRAY, THOMAS WAYNE     *
10       MARKS AND DONALD LEMAN WHITED *            TRAVIS COUNTY, TEXAS
         **************************************************************
11
               MOTION TO MODIFY JUDGMENT TO INCLUDE SANCTIONS AWARD
12
         **************************************************************
13                              On the 30th day of January, 2017, the

14       following Motion to Modify Judgment to Include Sanctions Award

15       came on to be heard outside the presence of a jury, in the

16       above-entitled and numbered cause before the Honorable Guy

17       Herman, Judge Presiding, held in Austin, Travis County, Texas.

18                              Proceedings reported by Computerized

19       Stenotype Machine; Reporter's Record produced by

20       Computer-Assisted Transcription.

21

22                               MELISSA VOIGT
                            Official Court Reporter
23                       C.S.R. Certification No. 4886
                       Probate Court No. 1, Travis County
24                          1000 Guadalupe, Rm. 217
                              Austin, Texas 78701
25                               (512) 854-9258


                               MELISSA VOIGT, CSR
                                 (512) 854-9258             EXHIBIT
                                                               F
                                                                   2



 1                        A P P E A R A N C E S

 2
     ATTORNEYS FOR THIRD PARTY DEFENDANTS:
 3
       HOPPER MIKESKA, PLLC
 4     BY: MR. BRIANT. THOMPSON
       State Bar No. 00794947
 5     400 West 15th Street, Suite 408
       Austin, Texas 78701
 6     Phone:  (512) 615-6195

 7
     ATTORNEY FOR WILLIAM J. BROTHERTON, SEAN W. HESTER, AND THE
 8   BROTHERTON LAW FIRM:

 9     THE RUBACK LAW FIRM
       BY: MR. CHAD M. RUBACK
10     State Bar No. 900001244
       8117 Preston Road, Suite 300
11     Dallas, Texas 75225
       Phone: (214) 522-4243
12

13

14

15

16

17

18

19

20

21

22

23

24

25


                           MELISSA VOIGT, CSR
                             (512) 854-9258
                                                                              3



     1                                    VOLUME 1

     2         MOTION TO MODIFY JUDGMENT TO INCLUDE SANCTIONS AWARD

     3
         January 30, 2017
 4
                                                                PAGE   VOL.
 5       Presentation on Behalf of the Movant . . . . .           18     2

 6
         MOVANTS'
 7       WITNESSES                   Direct    Cross      Voir Dire    Vol.

 8       William Brotherton
           By Mr. Thompson               18                              2
 9         By Mr. Ruback                             48                  2

10       Sean Hester
           By Mr. Thompson               52                              2
11         By Mr. Ruback                             62                  2

12       Linda Murray
           By Mr. Boone                  64                              2
13         By Mr. Ruback                             96                  2

14       Brian Thompson
           By Mr. Thompson              101                              2
15         By Mr. Ruback                         103                     2

16       Aaron Boone
           By Mr. Boone                 106                              2
17         By Mr. Ruback                         109                     2

18                                                             PAGE    VOL.
         Recess.   .   . . .   . .                               111     2
19
         Reporter's Certificate.                                 112     2
20

21

22

23

24

25


                                     MELISSA VOIGT, CSR
                                       (512) 854-9258
                                                                                   4



     1                     ALPHABETICAL INDEX OF WITNESSES

     2                           Direct    Cross        Voir Dire         Vol.
     3   Aaron Boone
           By Mr. Boone             106                                    2
     4     By Mr. Ruback                     109                           2
 5       William Brotherton
           By Mr. Thompson           18                                    2
 6         By Mr. Ruback                      48                           2
 7       Sean Hester
           By Mr. Thompson           52                                    2
 8         By Mr. Ruback                      62                           2
 9       Linda Murray
           By Mr. Boone              64                                    2
10         By Mr. Ruback                      96                           2

11       Brian Thompson
           By Mr. Thompson          101                                    2
12         By Mr. Ruback                     103                           2

13                         EXHIBITS OFFERED BY THE MOVANT

14       EXHIBIT    DESCRIPTION                    OFFERED   ADMITTED     VOL.
          1         Second Amendment
15                  And Restatement
                    Of the William D.
16                  Short and Phyllis
                    D. Short Revocable
17                  Living Trust                        23           24        2
         2          Order Granting
18                  Motion for Partial
                    Summary Judgment                    44           44        2
19       3          The Heirs at Law
                    Of William Dorsey
20                  Short & Phyllis
                    Dale (Whited) Short                91            91        2
21       4          Photograph                        100           100        2
         5          Hopper Mikeska
22                  Attorney Fees                     102           102        2
         6          Bowles Rice
23                  Attorneys Fees                    108           109        2
         7          Bowles Rice
24                  Attorneys Fees                    108           109     2
         8          Bowles Rice
25                  Attorneys Fees                    108           109     2


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                                  5



     1                         P R O C E E D I N G S

     2                              January 30, 2017

     3

 4                    THE COURT:     I'm going to call Cause

 5       No. C-1-PB-16-002348, styled Mateo Cortez as Representative of

 6       the Estate of Deborah Cortez, plaintiff versus Sandra Flesher

 7       Brown, Charlotte Flesher Ash, Charlene Flesher Johnston,

 8       Connie Lou Keith Barry, Randall Wayne Davis, Virginia Villers,

 9       Charles Roberts, Lisa A. Smith, Patricia Chapman, Betty J.

10       Marks Webb, James Berl Marks, Linda Murray, Thomas Wayne Marks

11       and Donald Leman Whited as defendants.        And we're here on

12       Third Party Defendants' Motion to Modify Judgment to Include

13       Sanctions.   And -- anything else before the Court today?

14                    MR. THOMPSON:     I don't believe so, Your Honor.

15       Brian Thompson on behalf of the movants.        The one thing that I

16       would point out is that we filed a supplement to that motion.

17                    THE COURT:     I did see that.

18                    MR. THOMPSON:     Okay.

19                    THE COURT:    I'm aware of that.     So this is your

20       motion?

21                    MR. THOMPSON:     That is, Your Honor.

22                    THE COURT:    Go ahead and take the lead on it, sir.

23                    MR. THOMPSON:    Okay.    Again, Your Honor, Brian

24       Thompson on behalf of the third party defendants who are the

25       second group of folks which you just read into the record.          As


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                            6


     1   you've said we're here today on a motion for sanctions.     This

     2   is not a motion for sanctions against any of the parties

     3   involved, this is a motion for sanctions against two of the

     4   attorneys representing Mateo Cortez.

     5                I think the Court's pretty familiar with the

     6   background of this case so I won't go into it at length, but

 7       as you know this is a trust dispute regarding the proper

 8       interpretation of a trust document.    The matter is currently

 9       pending in two different jurisdictions.    There is this case

10       and as well there is a case up in West Virginia.

11                   I'm joined here today with my co-counsel Aaron

12       Boone who is West Virginia counsel for some similarly situated

13       individuals up in West Virginia.   He will be participating in

14       the hearing, he's been admitted pro hac vice by the Court

15       already.

16                   Your Honor, there were two main claims by Mateo

17       Cortez in this matter that effect my clients.   There is the

18       one argument that Deborah Cortez was her parents' sole heir at

19       law and therefore under the terms of the trust she inherited

20       everything upon the death of her mother Phyllis Short.    That

21       argument was what I think took up most of the Court's

22       attention and of course I think the lawyers' attention as well

23       in the motion for reconsideration which I think the Court has

24       in front of it by submission.

25                   After reviewing that allegation, after reviewing


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                             7


     1   some of the law on that we still feel like we are definitely

 2       right and entitled to summary judgment on that claim.       But I

 3       will tell you, I do think that that is a colorable claim and

 4       so we are not going to be asking for sanctions today with

 5       regard to that claim.     I am narrowing the scope of our

 6       sanctions motion today.

 7                    Where I will concentrate today on is what I call

 8       the postponement provision argument.    And this is the argument

 9       that under a particular section of the trust that I'm going to

10       go through at length today, that -- this provision applied to

11       beneficiaries who were under the age of 35 at the time they

12       became entitled to distribution under the trust.    And this

13       Court's familiar with those type of provisions.    It's usually

14       put in trusts because there is an assumption I guess on some

15       settlor's part that people under the age of 21, 35, 18,

16       whatever it is, should not get their distribution outright,

17       they may be too immature to be able to handle that kind of

18       money.   And that of course was the intent behind this

19       provision.

20                    We believe that there is no colorable argument

21       under Texas or Florida law, which are basically the same law

22       here, on this issue.    It is very clear and I think all the

23       parties agree that Ms. Cortez was well over the age of 35 not

24       only when she became entitled to distribution under the trust,

25       but even when this trust was actually executed.


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                         8


 1                Your Honor, we're proceeding today under Texas

 2   Rule of Civil Procedure 13 as well as Civil Practice and

 3   Remedies Code, Chapter 10.    As you know the triggering event

 4   for a sanction under both of those sections is the attorney's

 5   signing of a pleading that contains a sanctionable claim.     And

 6   under CPRC Chapter 10 each and every claim must meet the

 7   burden under that rule, and that burden is that each claim is

 8   warranted by existing law or by a non-frivolous argument for

 9   the extension and modification or reversal of existing law.

10                I'm going to again narrow the scope of this a

11   little bit and concentrate my efforts on Texas Civil Practice

12   and Remedies Code, Chapter 10.    I think most courts who have

13   interpreted Rule 13 and Chapter 10 say that they are certainly

14   compatible, but I think you have a better chance in this type

15   of situation under Chapter 10 so that's where I'm going to

16   concentrate my efforts.    And we assert that the attorneys

17   William Brotherton and Sean Hester should be sanctioned for

18   violation of Chapter 10.

19                We're going to offer their testimony today, Your

20   Honor.   We're also going to offer the testimony of Linda

21   Murray who is one of the folks that -- whose name you read

22   into the record earlier.    She's both the trustee of the trust

23   at issue as well as a defendant in this part of the case in

24   her individual capacity as a beneficiary.   We're offering her

25   testimony because unlike a lot of cases in civil litigation,


                            MELISSA VOIGT, CSR
                              (512) 854-9258
                                                                        9



 1   Judge, this case involves real people, and she's kind of the

 2   face of the real people that this case has effected.   And the

 3   Texas Supreme Court has said that those type of stories are

 4   relevant when you're trying to decide what sanctions to grant.

 5               In the Low v. Henry case, and that's 221 S.W.3d,

 6   609, it's a 2007 case out of the Supreme Court of Texas, the

 7   Court cited the American Bar Association's report on standards

 8   and guidelines for practice under Rule 11 of the Federal Rules

 9   of Civil Procedure.   And that is similar to our Rule 13.    And

10   in Footnote 5 of the Court's opinion the Court mentioned in SF

11   that one of the things the Court can rely on in deciding

12   whether to issue sanctions and how much sanctions to issue is,

13   quote, "The nature and extent of prejudice apart from out of

14   pocket expenses offered by the offended person as a result of

15   the misconduct."

16               And so, Your Honor, we're going to offer

17   Ms. Murray's testimony today under the auspices of that

18   footnote from the Texas Supreme Court because she's going to

19   tell the Court exactly how this conduct from Mateo Cortez'

20   attorneys has effected her personally.

21               And then finally we're going to wrap up with my

22   testimony and Mr. Boone's testimony on our attorneys fees.

23   Mr. Boone of course was -- has segregated his fees from this

24   Texas part of the case from -- from what he did in

25   West Virginia and we're only seeking the fees he's incurred


                            MELISSA VOIGT, CSR
                              (512) 854-9258
                                                                        10


 1   here in Texas.

 2                Before we get to the evidence, Your Honor, I want

 3   to mention a procedural issue that was raised in the response

 4   to our motion for sanctions which I think was filed late last

 5   week.   The respondents allege that my clients have somehow

 6   waived their right to seek sanctions because they didn't seek

 7   sanctions before the judgment was entered in this matter.

 8   They cite several cases in Footnote 10 of their response.

 9               What they do not tell the Court is that every

10   single one of those cases cited in Footnote 10 is a discovery

11   sanctions case.    This is not a discovery sanctions case.      This

12   is a case involving the substance of their pleadings under

13   Chapter 10, under Rule 13.    And as this Court well knows the

14   Court is free to modify its judgment post judgment to add an

15   award of sanctions.

16               We cited the Texas Supreme Court case on that in

17   our motion and that's the Lane Bank Equipment Company versus

18   Smith Southern Equipment, Inc. case.    That's 10, S.W. 3d, 308.

19   And that case --

20               THE COURT:    And you brought your cases with you?

21               MR. THOMPSON:    I did.   I have one copy of this

22   one, Your Honor.   Would you like me to approach with that?

23               THE COURT:    I would.

24               MR. THOMPSON:    Okay.

25               THE COURT:    Do you need to use it as you're making


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                           11



 1   your presentation?

 2                  MR. THOMPSON:     I don't.   I have another copy of

 3   it.   May I approach?

 4                  THE COURT:     Yes, sir.

 5                  MR. THOMPSON:     Your Honor, we cited this case in a

 6   footnote in our motion stating that the Court -- that once

 7   a -- that once a post -- a post judgment motion for sanctions

 8   is filed that extends the Court's plenary power past 30 days

 9   to decide that motion to essentially -- like a motion for new

10   trial procedurally.     And this is a 2007 case from the Supreme

11   Court that says that.       The Court did not make any issue about

12   waiver or anything like that.       And so, Your Honor, this

13   absolutely stands for the -- the purpose of what we're talking

14   about here which is a post judgment motion to modify the

15   judgment to include sanctions.

16                  It also makes commonsense that you can bring such

17   a motion, maybe not for discovery sanctions because discovery

18   sanctions should be resolved pretrial.        For example, if you

19   don't show up to your deposition the Court should order the

20   person to show up to their deposition.        That's how you remedy

21   a discovery sanction.       But this is based on the entirety of

22   the case, the entirety of Mr. Cortez' case and the underlying

23   substantive claims.     And the only way you're going to know the

24   full extent of the damages caused by that type of sanction is

25   after trial.    Otherwise you're never going to know the damage


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                       12


 1   that it caused.

 2                And again -- so that's what the Lane Bank case

 3   says.   The Lane Bank case says that, you know, post judgment

 4   motion for sanctions is in the -- is in the nature of a motion

 5   to modify and that extends the Court's plenary power.     If

 6   waiver was an issue in that case it would have made much sense

 7   for the Court to hold that.

 8                In addition, Your Honor, this Court regularly

 9   issues sanctions post judgment.   This Court, I believe the one

10   that still stands is this Court's biggest sanctions award ever

11   is the Pool versus Diana case that I was involved in which was

12   upheld on appeal by the Third Court of Appeals.   Petition was

13   denied at the Texas Supreme Court.   And in that case we moved

14   for summary judgment and obtained it against Joe Pool and his

15   clients.   And -- and then the Court a few weeks later issued a

16   post judgment motion for sanctions award.   Nothing about

17   waiver in that case either from the appellate decision.     And

18   that was a much larger award, I believe about $107,000.     And

19   in fact, if you remember the defendants in that case were

20   actually sanctioned on their appeal as well.

21                So I don't see anything in the -- in the appellate

22   case law that says that you waive on substantive sanctions

23   claims if you don't bring them before trial.   And again, it

24   just wouldn't make good sense for that to be the rule because

25   you don't know what the damages are going to be until trial is


                            MELISSA VOIGT, CSR
                              (512) 854-9258
                                                                              13


     1   completed.

 2                    And so, Your Honor, that being said, that's kind

 3       of the roadmap of where we're going.      That's the procedural

 4       issue.   I don't know if you want them to respond to the

 5       procedural issue now or if you want to just --

 6                    THE COURT:     I'll let them respond now.

 7                    MR. THOMPSON:     Okay.

 8                    THE COURT:     What is your response, Counselor?

 9                    MR. RUBACK:     Good afternoon, Your Honor.   My name

10       is Chad Ruback, I represent William Brotherton, Sean Hester

11       and the Brotherton Law Firm.      I'm not representing Mr. Cortez.

12       As this Court. correctly noted and counsel has confirmed,

13       Mr. Cortez doesn't have a fight in the -- doesn't have a dog

14       in the fight today, no one is seeking anything from -- he's

15       not seeking anything from anybody.

16                    My response procedurally is first off, the Supreme

17       Court's language, the Supreme Court's pronouncements in a case

18       that was about discovery indeed, didn't limit the Supreme

19       Court's holding to discovery.     The Supreme Court stated, and I

20       quote, "Waiver bars a trial court from awarding post trial

21       sanctions based on pretrial conduct of which a party was aware

22       before trial," end quote.

23                    Yes, admittedly it was a discovery case.      If the

24       Supreme Court wanted to limit its holding to discovery

25       matters, to discovery disputes it certainly could have done


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                               14


     1   so.   There was no limiting language in the Supreme Court's

 2       holding.

 3                    THE COURT:     Do you have a copy of that case for

 4       the Court?

 5                    MR. RUBACK:     I do not, Your Honor.   I believe that

 6       that's a case that both sides had cited.

 7                    THE COURT:     Right.   Okay.

 8                    MR. RUBACK:     I do not have a copy of it.

 9                    THE COURT:    We'll pull it up.

10                    MR. RUBACK:     Furthermore, Your Honor, as counsel

11       has argued, their motion for sanctions is regarding arguments

12       made from the beginning of the case, the totality of the

13       arguments made.    My clients didn't modify their arguments

14       substantively.     They might have refined them somewhat, but my

15       clients have made the same argument from day one in this case.

16                    Admittedly this Court did not agree with my

17       clients' arguments, admittedly this Court granted summary

18       judgment as -- as to the arguments my clients made apparently

19       finding those arguments ultimately not persuasive.         But just

20       because this Court has held that my clients' arguments weren't

21       persuasive, has held that my clients' arguments are wrong does

22       not indicate that my client did not have the right to make

23       those arguments.    Specifically based on counsel's argument

24       that this is not just one argument we're talking about today,

25       this was, you know, the whole conti~uum of arguments made


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                           15


     1   throughout the case.

 2                     If counsel believed that my client was making bad

 3       faith arguments from the initial filing in the case, from each

 4       hearing that this Court has heard in the case, why didn't

 5       counsel bring that to my client's attention?     Why didn't

 6       counsel bring that to the Court's attention?     Laches would bar

 7       the arguments they're making today.

 8                     What they are saying today is my clients made

 9       arguments that were sanctionable long, long ago, but, well,

10       we're going to wait months and months and months to allow my

11       clients to continue to make these arguments that are allegedly

12       sanctionable until after there is a final judgment in the

13       case, after the case is over.

14                     So even if this Court does not believe that it is

15       barred by the Supreme Court's Myer case, which waiver bars a

16       trial court from awarding post trial sanctions based on

17       pretrial conduct of which a party was aware before trial, even

18       if the Court does not find that case persuasive laches would

19       apply here.

20                     There were no brand new arguments made in the

21       case.   My clients have made the same arguments before this

22       Court every time they've been before this Court, every

23       pleading they filed in this case.     Admittedly refined a little

24       bit, but these are the same arguments.

25                     If this Court, who by anyone's estimation is


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                         16


 1   absolutely, positively an expert on trust law, on probate law,

 2   if this Court believed that my client was making sanctionable

 3   arguments as to what the law is from the start, presumably

 4   this Court would have notified my clients, well, guys, you're

 5   getting pretty close to sanctionable conduct here.      This Court

 6   did not do so.

 7               To the contrary in fact, even if this Court has

 8   ruled against my clients' arguments on their substance, this

 9   Court has on the record multiple times thanked my clients for

10   making good arguments.     This Court didn't warn my clients they

11   were on the verge of sanctionable conduct nor did opposing

12   counsel ever warn my clients, ever let the Court know that

13   opposing counsel believed my clients were on the verge of

14   sanctionable conduct.

15               So if my clients have made the same arguments in

16   multiple filings, in multiple hearings before this Court and

17   opposing counsel appears to have waited, let my clients make

18   the same argument again and again and again, laid behind the

19   log until after there is a final judgment in the case laches

20   would bar sanctions in this situation, Your Honor.

21               THE COURT:    Okay.   You want to get back now to

22   your --

23               MR. THOMPSON:    Well,   I want to point out first of

24   all that laches has never been pled.     So this is the first

25   time I've ever heard that argument about that.


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                             17


 1                  THE COURT:     So noted.

 2                  MR. THOMPSON:     And I have a copy of the Myer case

 3   if you'd like to see it.

 4                  THE COURT:     Okay.   Good.

 5                  MR. THOMPSON:     And I've highlighted where the

 6   Court says, you know, we -- in Rernmington Arms which is

 7   another case I have I can give you, Judge -- in Remmington

 8   Arms we explain the circumstances in which by failing to

 9   obtain a pretrial ruling on a discovery dispute a party waives

10   his or her claim for discovery abuse sanctions.         This whole

11   case is about discovery.       Remmington Arms case that is cited

12   there is all about discovery.         Every single one of the cases

13   cited in their footnote, Judge, are about discovery.        And

14   that's because they can't find a case regarding substantive

15   claims, that type of sanctions that supports their waiver

16   argument.     It would make absolutely no sense if that was the

17   law.

18                 THE COURT:     You may present you all's cases.     You

19   may continue on with your argument.

20                 MR. THOMPSON:     Your Honor, we'll call William

21   Brotherton.

22                 THE COURT:     How many witnesses are we going to

23   have here today?

24                 MR. THOMPSON:     I believe five.

25                 THE COURT:     Five?    All five witnesses please stand


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                    18


 1   and raise your right hands.

 2               (Witnesses sworn by the Court.}

 3               THE COURT:     You may proceed with your first

 4   witness.

 5               Mr. Brotherton, have a seat up here as close to

 6   the microphone as possible.

 7

 8                PRESENTATION ON BEHALF OF THE MOVANT

 9

10                         WILLIAM BROTHERTON,

11   was called as a witness by the Movant having been first duly

12   sworn, testified as follows:

13

14                            DIRECT EXAMINATION

15   BY MR. THOMPSON:

16        Q.     Mr. Brotherton, could you state your name, please?

17        A.     William James Brotherton.

18        Q.     And what do you do for a living, Mr. Brotherton?

19        A.     I'm an attorney.

20        Q.     How long have you been practicing law?

21        A.     Since 1994.

22        Q.     And am I right that you are currently the lead

23   attorney for Mateo Cortez in this matter?

24        A.     That's correct.

25        Q.     You weren't always though, correct?


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                       19


 1         A.    I think John Long was starting off, yes.

 2         Q.    How many times have you represented clients in

 3   disputes involving the interpretation of trust language?

 4        A.     Probably seven, eight times.

 5        Q.     Okay.     Have you ever been sanctioned?

 6        A.     No.

 7        Q.     Okay.     In the course of your practice have you

 8   become familiar with Texas case law and rules regarding the

 9   sanctioning of attorneys?

10        A.     I haven't had much practice with it.       I rarely

11   seek sanctions against any other attorneys.

12        Q.     Are you familiar with Rule 13 of the Texas Rules

13   of Civil Procedure?

14        A.     I am.

15        Q.     Are you familiar with Chapter 10 of the Civil

16   Practices and Remedies Code?

17        A.     I am.

18        Q.     And do you agree with me that under both of those

19   authorities the triggering event for sanctioning lawyers is

20   the signing of a pleading that is sanctionable?

21        A.     I believe that's correct.

22        Q.     Do you understand that under Civil Practices and

23   Remedies Code, Chapter 10 that when you sign a pleading you're

24   certifying to the Court that each claim in that pleading

25   was -- and I quote -- "Warranted by existing law or by a


                             MELISSA VOIGT, CSR
                               (512) 854-9258
                                                                               20


     1   non-frivolous argument for the extension, modification or

 2       reversal of existing law or the establishment of new law," end

 3       quote?

 4             A.      If you've read that correctly, I have no reason to

 5       deny that.

 6             Q.      Okay.   Would you like to see it?

 7            A.       No, that's fine.

 8            Q.       Okay.   So you don't have any reason to doubt that

 9       I read it accurately?

10            A.       If you're essentially reading it out as -- and

11       representing to the Court that that's what it is then I have

12       no reason to doubt that.

13            Q.       Okay.   And in looking at the pleadings in this

14       matter I didn't see that your client had made any argument for

15       the extension, modification or reversal of existing law or the

16       establishment of new law.     Is that fair?

17            A.       You know, I -- I couldn't say yes or no.

18            Q.       Okay.   It seems to me that most of the claims that

19       you brought      or all of the claims that you brought on behalf

20       of your client were based on Texas law as it exists now.        You

21       weren't saying that law should change, were you?

22            A.       Again -- and I've got to say over the last six

23       months I've spent most of my time in North Dakota so I haven't

24       been involved in this case in a little while.     So you may want

25       to talk with Mr. Hester about some of those technical issues.


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                         21


 1            Q.   Okay.   Well, you understand that you've signed

 2   every pleading except for one with regard to the claims made

 3   against my clients?

 4        A.       Correct.

 5            Q.   Whether you were in North Dakota or not?

 6        A.       Correct.

 7        Q.       And Mr. Hester signed one of them; is that right?

 8        A.       Correct.

 9        Q.       Okay.   And so I'm asking you, can you think of an

10   example where you were asking this Court to change the law or

11   to modify the law or any of those things in any of your

12   pleadings?

13        A.       I -- again, I wouldn't be able to say yes or no.

14   I don't believe so but I can't say definitively.

15        Q.       Okay.   Now, I'm going to hand you

16                 MR. THOMPSON:    May I approach the witness, Your

17   Honor?

18                 THE COURT:    You may.

19        Q.       (By Mr. Thompson)    I'm going to hand you a series

20   of documents.    We don't have to mark them as an exhibit

21   because they're pleadings.      But starting with the first

22   document, you see the title of that is Original Petition In

23   Intervention?

24        A.       Yes.

25        Q.       Okay.   Are you familiar with this document?


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                          22


     1         A.    I am.

     2         Q.    And if you turn to the next to last page which is

     3   Page 5, is that your signature?

     4         A.    Yes, it is.

     5         Q.    Okay.   And if you look at Page 3 of this original

     6   petition, petition in intervention, just below the middle of

 7       the page there is a No. 2.     And you state -- and this is of

 8       course under a heading that says "declaratory judgment."

 9       You're seeking a declaration that pursuant to the trust

10       Article 8, Section D2, upon the death of Phyllis Short,

11       Deborah Cortez as beneficiary under the trust was entitled to

12       the balance of her trust share including both principal and

13       any accrued and undistributed income because she was over the

14       age of 35 years at the time.    Do you see that statement?

15            A.     Yes.

16            Q.     Can you explain to the Court in your words what

17       you were alleging in that statement on behalf of your client?

18            A.     Well, the trust essentially stated -- and I can

19       give it to you in -- in the context of what I understand it to

20       say, and as you've stated, there is a question of the

21       interpretation as I think you testified, but the -- what we

22       believed was a colorable argument was that Ms. Cortez was

23       entitled to the contents of the trust once she reached

24       35 years of age once her parents died.

25            Q.     Okay.   And just to be sure, there is no question


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                          23


 1   that Ms. Cortez was over the age of 35 at the time Phyllis

 2   Short died, correct?

 3         A.       I believe that's correct,    yes.

 4         Q.      And it was Phyllis Short's death that then gave

 5   Deborah Cortez the ability to seek distributions under the

 6   trust?     I know we have a difference of opinion about what

 7   those distributions were, but that was the triggering event,

 8   correct?

 9        A.       That's my understanding, yes.

10                 MR. THOMPSON:    Okay.   May I approach, Your Honor?

11                 THE COURT:    You may, sir.

12        Q.        (By Mr. Thompson)   Mr. Brotherton,   I'm going to

13   give you as what I've marked as Exhibit No. 1.       There you go.

14   Are you familiar with the document I marked Exhibit l?

15        A.       I have seen it, yes.

16        Q.       And what is that document?

17        A.       It's one of the versions of the revokable living

18   trust, the Short -- William Short and Phyllis Short.

19        Q.       Okay.   And I think that -- is it fair to say that

20   this was the most recent version of that document?

21        A.       I believe that's correct.

22                 MR. THOMPSON:    Your Honor, we -- we offer

23   Exhibit 1.

24                 (Movant's Exhibit No. 1

25                 was offered into evidence.)


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                                 24


 1                    THE COURT:     Any objection?

 2                    MR. RUBACK:     No objection, Your Honor.

 3                    THE COURT:     No. 1 will be admitted.

 4                    (Movant's Exhibit No. 1

 5                    was admitted into evidence.)

 6           Q.       (By Mr. Thompson)     and, Mr. Brotherton, I may

 7   refer to this shorthand as "the trust" throughout today.               Is

 8   that         you'll understand

 9           A.       That's fine.

10           Q.       Okay.   If you turn to Page 5 of Exhibit 1, if you

11   look at Section D which I believe is Article 8, Section D,

12   postponement of possession.          Do you see that?

13           A.       I do.

14           Q.      Okay.    Is that the provision and everything under

15   it that you think supports the claim that we've been

16   discussing?

17           A.       I believe that's correct.

18           Q.      And if I recall that, I think you guys have called

19   it in the past the postponement provision claim?             Is that

20   fair?    You'll understand what I'm talking about when I say

21   that?

22           A.      I think so, yes.

23           Q.      Okay.    So do you see that this statement,

24   postponement of possession, it says, "If any beneficiary is

25   under the age of 35 years at the time he or she becomes


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                      25


 1   entitled to distribution, his or her share shall be maintained

 2   in a continuing trust which shall be administered as follows."

 3   Do you see that statement?

 4        A.     I do.

 5        Q.     And again, there is no question in this case that

 6   Deborah Cortez was not a beneficiary under the age of 35 years

 7   at the time she became entitled to distribution from the

 8   trust, correct?

 9        A.     Rephrase your question?

10        Q.     You see that this statement here says -- the

11   qualifying language is that if any beneficiary is under the

12   age of 35 y2ars at the time he or she becomes entitled to

13   possession, then X, Y and Z.    Do you see that?

14        A.     Entitled to distribution?

15        Q.     Yes.

16        A.     "His or her share shall be maintained in a

17   continuous -- in a continuing trust which shall be

18   administered as follows."    Is that what you're referring to?

19        Q.     Do you see that statement?

20        A.     I do.
21        Q.     Okay.   And there is no dispute in this matter that

22   Deborah Cortez was over the age of 35 at the time she became

23   entitled to distribution, correct?

24        A.     I don't know if I can agree with that statement.

25   I'm not sure what you're asking me to agree with.


                            MELISSA VOIGT, CSR
                              (512) 854-9258
                                                                        26


 1           Q.    Okay.   Well, when was -- what was the

 2   triggering -- I thought we'd been through this, but what was

 3   the triggering event that entitled Deborah Cortez to a

 4   distribution under this trust?     Was it not her mother's death?

 5           A.    Correct.

 6           Q.    Okay.   And is there any dispute that at the time

 7   Phyllis Short died, Deborah Cortez' mother died, that Deborah

 8   was over the age of 35?

 9           A.    As I understand it, yes.

10           Q.    Okay.   In fact, she was over the age of 35 when

11   this document was executed, correct?

12           A.    Correct.   Well, I believe so.

13           Q.    Well, sir, I can actually point out in your

14   pleadings where you stated this?

15           A.    Okay.

16           Q.    So do you disagree with me or no?

17           A.    No.

18           Q.    Okay.   So if this provision, the qualifying

19   language of this provision is that you have to be under the

20   age of 35 in order for all of these things to apply to you,

21   how could you possibly think that this section applies to

22   Deborah Cortez and entitles her to the entirety of the trust?

23           A.   Well, there is -- there is a lot of language in

24   here.    I think we've used several arguments in this.   We've

25   consulted with a trust expert on this.     And so based on -- on


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                          27


 1   the language in this, it's our contention that Deborah Cortez

 2   was entitled to the trust proceeds.

 3          Q.     What trust expert did you consult with on this?

 4          A.     Dick Kelsey.

 5          Q.     Okay.    And Mr. Kelsey told you that your

 6   interpretation of this trust, this provision of this trust was

 7   correct?

 8          A.     That is correct.

 9          Q.     Okay.    So you said there is some particular

10   language in here that supports your argument.      Tell me what

11   that language is.

12          A.     Well,   there is -- there is certainly the

13   provisions in regards to if any assets of the trust remained

14   undistributed upon Deborah's death, or if she fails to survive

15   us,   the remainder of the trust estate shall be distributed as

16   follows.    And clearly Deborah Cortez was the beneficiary of

17   the Shorts and was an heir at law.

18          Q.     Okay.   Well, you understand that that -- that's

19   kind of one of the claims that you made, but in the

20   alternative you also made this claim about this 35 year-old

21   provision, correct?

22          A.     Well,   I think I -- like I say, I have been working

23   out of state quite a bit and I think i t would be helpful if I

24   had a copy of the -- of the claims that we've made because

25   you're asking me to recollect a very complex document.        So I


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                           28


     1   don't want to sit here and misstate --

 2             Q.    Okay.

 3             A.    -- what was in our pleadings.

 4             Q.    Okay.    Well, sir, you have all of your pleadings

 5       in front of you.    What I've given you is -- although we've

 6       just been over the original petition in intervention and --

 7       and in that section we went through this No. 2, which says

 8       "Pursuant to the trust, Article 8, Section D2, upon Phyllis

 9       Short's death Deborah Cortez inherited the balance because she

10       was over the age of 35."    I thought we agreed that that's

11       basically the claim that we're talking about?

12            A.     Okay.

13            Q.     Okay.    So let's set aside the heir at law issue.

14       As I told the Judge earlier I actually have been convinced now

15       that that is a colorable claim.    I'm not asking for sanctions

16       against you today because of that.   But I do want to

17       concentrate on this Article 8, Section D2 provision.     And I

18       thought you had said that in addition to the language that I

19       have read in -- into the record, that there is additional

20       language in here that you believe supports your position and I

21       would like to know what that language is.

22            A.     Well,   I need a few minutes to go through and look

23       through    look through the petition.

24            Q.     Okay.   And while you -- while you do that

25       before you do that, and I'll give you all the time in the


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                           29


 1   world, will you agree with me that this claim -- maybe in

 2   different words, but the gist of this claim has been in every

 3   petition that you've filed since that original petition?

 4           A.   I couldn't say yes or no.

 5           Q.   Okay.   Well, while you're looking through the

 6   trust document, look through those amended petitions that I

 7   have for you up there and then you can answer that question as

 8   well.

 9                MR. THOMPSON:     Your Honor?

10                THE COURT:     Yes.

11                MR. THOMPSON:     May I be excused just to get some

12   water very quickly while he's --

13                THE COURT:    You may be.     We'll take a five minute

14   recess.

15                MR. THOMPSON:     Thank you, Judge.

16                (Brief recess.)

17                THE COURT:    Are you ready now?

18                MR. RUBACK:     Yes.

19                THE COURT:    Our witness will please come back up.

20                MR. THOMPSON:     Judge, you had asked for case law.

21   Can I approach with one more case?

22                THE COURT:    Yes.     And if you'll give me your

23   packet there that he was using.        Is there another copy of

24   that?

25                MR. THOMPSON:     Absolutely.    Give me one second.


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                              30


 1   Well, I say that.      Are you

 2                  THE COURT:     He took up his binder with the

 3   pleadings.

 4                  MR. THOMPSON:     Would you like his copy now?

 5                  THE COURT:     Sure.

 6                  MR. THOMPSON:     I think we'll be talking about the

 7   same thing.

 8                  THE COURT:    Right.

 9                  MR. THOMPSON:     Just so you know, what that is is

10   the original petition and then there were four amended.            So

11   five in all.

12                  THE COURT:    Right.      I'm aware.

13                  MR. THOMPSON:     Okay.     May I proceed, Your Honor?

14                  THE COURT:    Yes, sir.

15        Q.        (By Mr. Thompson)      Mr. Brotherton, before the

16   break I had given you a stack of pleadings that are the

17   Original Petition in Intervention and then the first,          second,

18   third and fourth amended version of that document.           Did you

19   have a chance to review those?

20        A.        Primarily the Motion to Reconsider.

21        Q.        Okay.   My question before the break was whether

22   you would agree with me that this postponement provision claim

23   had been made in those five pleadings that I just named.           Will

24   you agree with me to that now?           Or do we need to go through

25   each and every one of these?


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                       31


 1         A.    Probably need to go through each and every one.

 2   Because here is the thing       just to explain this, you know,

 3   I've got six attorneys counting myself plus various other

 4   attorneys that we use if -- if we need to -- to get special

 5   legal counsel.   And so in this case -- this is obviously a

 6   pretty complex case, and I'm not going to sit here and try and

 7   be able to go through every page, line-by-line of every copy

 8   of the pleadings and be able to talk just absolutely clear on

 9   everything, especially in light of the fact that I'd been

10   involved in some other substantial cases out of state.      So

11   certainly I'll try to answer your question, but as far as

12   going through every pleading and talking about what

13   specifically in each pleading, we'll probably need to go

14   through each one.

15        Q.     Okay.   Well, will you agree with me that you

16   signed all five of those pleadings as the attorney of record

17   in this case for Mr. Cortez?

18        A.     Well, again,    I'd say that as the lead counsel I

19   have a number of people working for me and so yes

20               MR. THOMPSON:     Objection, Your Honor,

21   nonresponsive.

22               THE COURT:     Sustain the objection.

23        Q.     (By Mr. Thompson)     Sir, did you sign

24        A.     I said yes.

25        Q.     -- attorney of record -- I'm sorry?


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                         32


 1         A.     I said yes.

 2         Q.     I didn't hear you say yes to that.

 3         A.     I did.

 4         Q.     So I think we've established that it's in the

 5   original petition.    Can we agree to that?

 6         A.     I believe so.

 7         Q.     The Original Petition in Intervention?

 8        A.      I believe so.

 9        Q.      Do you have the First Amended Petition in

10   Intervention in front of you?

11        A.      You know what, this -- this only starts on the

12   fourth.

13                MR. THOMPSON:    Your Honor, I can -- if you don't

14   mind me standing beside him I can --

15                THE COURT:    You can do that.

16        Q.      (By Mr. Thompson)    Okay.   So I'm going to approach

17   with the First Amended Petition in Intervention.      The first

18   question I'm going to ask you is -- there is the title, First

19   Amended Petition in Intervention and Third Party Petition

20   filed on December 30th, 2015.     My first question for you, sir,

21   is    Melissa, can you hear me okay?      On Page 8 is that your

22   signature?

23        A.      It is.

24        Q.      And there you're signing on behalf of several

25   lawyers but you're signing as the lawyer signing this


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                             33


 1   petition; is that right?

 2            A.   Right.

 3            Q.   Okay.    If you look on Page 6, Section 2, there is

 4   a statement I believe that is verbatim, identical to the

 5   statement in the Original Petition in Intervention.          Can you

 6   read that No. 2 into the record, please, sir?

 7            A.   "That pursuant to the trust, Article 3,

 8   Section D2, upon the death of Phyllis D. Short, Deborah Cortez

 9   as a beneficiary under the trust was entitled to the balance

10   of her trust share including both principal and any accrued,

11   undistributed income because she was over the age of 35 years

12   at the tL.1e."

13         Q.      Okay.    So we agree

14                 THE COURT:     Now     now, let me stop a second.

15   Would you look again?      It's not Article 3, but is it not

16   Article 8?

17                 THE WITNESS:     I -- I can't quite read it.     Let me

18   check.

19                 THE COURT:     You don't have your glasses on?

20                 THE WITNESS:     Well, it's blocked.    All right.   Now

21   I can see it.    Article 8.    Roman numeral eight.     Correct.

22   Thank you, Judge.

23        Q.       (By Mr. Thompson)      So now would you agree with me

24   that we call the postponement provision claim is indeed in the

25   First Amended Petition?


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                        34


 1         A.     Correct.

 2         Q.     Okay.    So now I'm going to approach with the

 3   Second Amended Petition.     Same drill.     On Page 12 is that

 4   again your signature signing as Mr. Cortez' attorney of

 5   record?

 6        A.      Correct.    Correct.

 7        Q.      And if you will look at Page 8, this No. 2

 8   paragraph here,    I believe again is the same statement that you

 9   just read into the record.      Do you agree with me?

10        A.      That is correct.

11        Q.      Okay.    So again, this postponement provision claim

12   appears in the Second Amended Petition in Intervention?

13        A.      Correct.

14        Q.      I'm going to approach with the Third Amended

15   Petition.   And again, is that your signature on Page 26      --
16        A.      It is.

17        Q.           as Mr. Cortez' attorney?

18        A.      Right.

19        Q.      Okay.    This one may take me a second.    It's a

20   little bigger.    Again, I think in the Paragraph 2 on

21   Page 18 -- I'm sorry.    My apology.   If you read that -- you

22   don't have to read it into the record, but will you agree with

23   me that that's the same claim?

24        A.      It is the same.

25        Q.     Okay.     So again, just to make sure that that


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                              35


     1   postponement provision claim also appears in the Third Amended

 2       Petition?

 3             A.       Correct.

 4             Q.       Okay.   When did this North Dakota case start being

 5       your main focus at work that took you away from this case?

 6             A.       Late April.

 7             Q.       Late April of 2016?

 8            A.        '16.

 9            Q.        Okay.   I'm going to approach with the Fourth

10       Amended Petition in Intervention, Page 25.         Again, you're

11       signing on behalf of your client Mateo Cortez, correct?

12            A.        Correct.

13            Q.        And again, if you look at this Paragraph 2, is

14       that that same postponement      --
15                      THE COURT:    What page?

16                      MR. THOMPSON:    I'm sorry.    Page 17, Your Honor.

17            Q.        (By Mr. Thompson)      Is that that same

18       postponement    --
19            A.        Appears to be the same.

20            Q.        And this doesn't have a file stamp on it, but I

21       want to point out the certificate of service on this document.

22       November 2nd, 2016.       Do you see that?

23            A.        Correct.

24            Q.        And this is your signature here?

25            A.        Yes.


                                     MELISSA VOIGT, CSR
                                       (512) 854-9258
                                                                          36


 1         Q.       And although it doesn't have a file stamp, can we

 2   assume that this was filed on or about November 2nd, 2016?

 3         A.       I believe that's fair.

 4         Q.       Is it your practice to file things at the same

 5   time or around the same time as the certificate of service

 6   reflects?

 7        A.        Correct.

 8        Q.        Okay.   And so November of 2016 was well after you

 9   had become involved in this North Dakota case, correct?

10        A.        Correct.

11        Q.        And you're still signing pleadings as the attorney

12   of record on behalf of your client Mateo Cortez?

13        A.        Well, I'm not up there full-time, but it's

14   certainly       I've -- like any attorney you're involved in

15   other cases.     And again, I've got a staff that did the

16   research and was preparing the documents and I reviewed them.

17   But certainly -- the reason I mentioned North Dakota is

18   because I haven't been able to live and breathe this case

19   probably as much as I would like.

20        Q.        Okay.   I should have done this earlier but I'm

21   just going to approach with

22                  MR. THOMPSON:    If you don't mind, Your Honor, may

23   I approach?

24                  THE COURT:    You may.

25                  MR. THOMPSON:    I'll give you a copy as well.


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                         37


 1         Q.       (By Mr. Thompson)   This is a copy of Chapter 10 of

 2   the Civil Practices and Remedies Code which as I mentioned,

 3   this is the authority we're relying on to seek sanctions.      In

 4   Section 10.001 it states that the signing of a pleading

 5   constitutes a certificate by the signatory, that due to the

 6   signatory's best knowledge,    information and belief formed

 7   after reasonable inquiry, and then No. 2, each claim in the

 8   pleading is warranted by existing law, dot, dot, dot.      I think

 9   I've been through this provision at nauseam.     Do you see that?

10        A.       I do.

11        Q.       Okay.   In signing these pleadings that we've just

12   been through, did you understand that you were certifying to

13   this Court that each claim in that pleading was warranted by

14   existing law or by non-frivolous argument to the extension,

15   modification or reversal of existing law?

16        A.       Absolutely.   And they were colorable claims and I

17   still believe that.

18        Q.       Okay.   Regardless of your involvement in the

19   North Dakota case you still believe that?

20        A.       Correct.

21        Q.       Okay.   What reasonable inquiry did you do to

22   inform yourself of whether this postponement provision claim

23   met the standards of the Civil Practices and Remedies Code,

24   Chapter 10?

25        A.       We did quite a bit of research, LexisNexis, talked


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                            38


     1   with attorneys in the firm, we conferenced on it, and then we

     2   went and met with one of the premiere trust attorneys in the

 3       state.

 4                Q.   And, I'm sorry, you said his name but can you say

 5       it one more time?

 6                A.   Dick Kelsey.

 7                Q.   I'm sorry?

 8            A.       Dick Kelsey.

 9             Q.      Dick Kelsey.

10             Q.      Is it K-e-1-s-e-y?

11            A.       Correct.     He's in Denton.   I think he's board

12       certified in four or five areas.

13            Q.       Okay.   And I think you alluded to this, but am I

14       correct that it's -- it's your belief that the specific

15       language of Article 8, Section Dis what entitles Deborah

16       Cortez to recover under this postponement claim; is that

17       right?

18            A.       That's my understanding, yes.

19            Q.       Okay.   And I've been through some language, but I

20       think before the break you had said there was some additional

21       language in this section that you thought entitled her to

22       distribution.    And I want to ask you again, can you show me in

23       Exhibit 1

24            A.       Well

25            Q.       -- the language that you're relying on?


                                    MELISSA VOIGT, CSR
                                      (512) 854-9258
                                                                         39


     1         A.    -- the fact is she was the only child, she was the

 2       only beneficiary, she was the only heir at law.

 3             Q.    Okay.

 4             A.    The trust specifically references that the trust

 5       was -- was written solely for the benefit of Deborah Cortez

 6       for health, safety, welfare.

 7             Q.    Where does it say that last -- I want you to point

 8       out in Exhibit 1 where this trust says it was written solely

 9       for the benefit of Deborah Cortez.

10            A.     I'm probably paraphrasing a little bit.

11            Q.     Okay.    Well, show me the provision that you

12       believe you're paraphrasing?

13            A.     Well, take a second to look through the trust.

14            Q.     Well, sir, I thought that's what we had taken a

15       break to do earlier?

16            A.     Well, you asked me to look at the pleadings.

17            Q.     And you don't do that either, sir.

18            A.     Well, I did.

19            Q.     So show me where in this trust document it says

20       that this trust is written exclusively for the benefit of

21       Deborah Cortez, or whatever you think you've paraphrased.

22            A.     Well, you could start with Article 2, family,

23       children, "We have one child of our marriage, Deborah A.

24       Cortez, an adult."     In 10, "Our primary concern during

25       Deborah's life is for her health, support, education, welfare


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                       40


 1   and best interest, and the trustee need not consider the

 2   interest of any other beneficiaries in making distributions to

 3   her or on her behalf for those purposes under this paragraph."

 4        Q.     Okay.    Let me ask you about that.   It says that

 5   our primary concern during Deborah's life is for these things.

 6   Doesn't that suggest that they had a different concern after

 7   Deborah died?

 8        A.     Are you saying it's ambiguous?

 9        Q.     No,   sir.   I'm saying when this says "our primary

10   concern is this during Deborah's life," doesn't that suggest

11   that there may be another primary concern after Deborah dies?

12        A.     Not necessarily.

13        Q.     Anything else that you can find that supports your

14   statement that this trust was written solely for the benefit

15   of Deborah Cortez?

16        A.     Yeah, the 10 part is the biggest part.

17        Q.     The part about Deborah's life?

18        A.     Right.

19        Q.     And again, back to my original question, is there

20   any other language in that D portion,   the postponement of

21   possession portion, that you believe supports this

22   postponement provision claim?

23        A.     You're talking about in the trust?

24        Q.     Well, sir, the claim cites in every single one of

25   the pleadings that we looked at, the claim cites Article 8,


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                              41


     1   Section D to support this claim.       And I'm asking you, can you

 2       point out what language you believe in Article 8, Section D

 3       supports this claim?       And that's on Page 5 of the trust.

 4             A.      Well,   I mean, whatever we put in our pleadings

 5       is -- is      addresses that.     I'm not going to sit here and try

 6       and explain it all to you at this point because certainly

 7       we've outlined in our pleadings, we've consulted with

 8       necessary experts and we believe every claim we've made is

 9       colorable.

10             Q.      Was Mr. Kelsey going to testify in this case if it

11       had reached trial as an expert?

12            A.       I hadn't made that decision yet.

13            Q.       He certainly was never designated as an expert,

14       was he?

15            A.       Correct.

16                     MR. THOMPSON:     I'm going to approach if you don't

17       mind, Your Honor, with Exhibit 2?

18                     THE COURT:    You may approach.

19            Q.       (By Mr. Thompson} Now, Mr. Brotherton, you've made

20       this same claim in a matter pending in a West Virginia court,

21       correct?

22            A.       Well -- and that's not a simple yes or no

23       question.    As you know this whole lawsuit here was brought

24       about by Ms. Murray filing suit against Mr. Cortez.      We again,

25       doing our due diligence on this case and investigating and


                                    MELISSA VOIGT, CSR
                                      (512) 854-9258
                                                                         42


 1   doing everything we needed to do to determine that we had

 2   claims that could be colorable on this, we filed our petition

 3   in intervention.    During the course of the litigation in this

 4   case, after Judge Herman directed that we bring in all the

 5   third party defendants and the churches that were addressed in

 6   the trust, suit was filed by Ms. Murray in West Virginia.      So

 7   everything that was done in West Virginia was of course

 8   similar to what we were doing here in addressing the same

 9   claims.

10               MR. THOMPSON:     I'm going to object to that as

11   nonresponsive, Judge.

12               THE COURT:     Sustained.

13        Q.     (By Mr. Thompson)     Sir, did you allege in the

14   West Virginia case that under Article 8, Section D2 of the

15   trust, because Deborah was over the age of 35 when Phyllis

16   Short died then she inherited all the trust assets and Cortez

17   as her sole heir then inherited all the trust assets?

18        A.     That's -- that's part of our claims, yes.

19        Q.     In West Virginia?

20        A.     Correct.

21        Q.     Okay.   So that's virtually identical to the

22   postponement claim we've been talking about here today?

23        A.     Correct.

24        Q.     Is that a yes?

25        A.     That's the way I understand it, yes.


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                              43


     1         Q.        Okay.   And the Judge in the West Virginia case

     2   issued a summary judgment against that claim, correct?

 3             A.        I believe so, yes.

 4             Q.    Okay.       And do you recall the date of that being

 5       September 15th, 2016?

 6             A.        I -- I'm not sure.

 7             Q.    Okay.       Exhibit 2 that I put in front of you is

 8       actually a copy of that summary judgment, do you agree?        Do

 9       you agree with me that that's a copy of the summary judgment?

10             A.    If you are representing that it is I have no

11       reason to doubt you.

12                   MR. THOMPSON:      Your Honor, I have a copy for you

13       if you'd like me to approach?

14            Q.         (By Mr. Thompson)    Well, if you look at the last

15       page of this document, Page 9, do you see that was entered on

16       September the 15th, 2016 and purports to be signed by Robert

17       A. Waters, Judge?

18            A.     Correct.

19            Q.     And is that the judge in the West Virginia case?

20            A.     Correct.

21                   MR. THOMPSON:      Your Honor, we'd ask for admission

22       of Exhibit 2.     And counsel may not know, but the Court does

23       have on file a certified copy of this with all the nuts and

24       bolts that goes into that from an earlier hearing.       So we'd

25       ask that Exhibit 2 be admitted.


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                                 44


     1                   (Movant' s Exhibit No. 2

 2                   was offered into evidence.)

 3                   THE COURT:      Any objection?

 4                   MR. RUBACK:      No objection, Your Honor.

 5                   THE COURT:      No. 2 is admitted.

 6                   (Movant's Exhibit No. 2

 7                   was admitted into evidence.)

 8             Q.    (By Mr. Thompson)      All right.     If you turn to

 9       Page 8 of Exhibit 2, Paragraph 29.         Do you see that

10       Judge Waters recites Mateo Cortez' claim saying that Mateo

11       Cortez argues that he is the sole beneficiary of the trust and

12       entitled to the distribution of all trust asseta because

13       Article 8, Section D2 of the trust states that when such

14       beneficiary reaches the age of 35 -- and then it goes through

15       that postponement provision.      Do you see that?

16            A.     I do.

17            Q.     Okay.     And do you see in the middle of that

18       paragraph, starting with the plain language of Section D?          Do

19       you see that?

20            A.     I do.

21            Q.     Can you read that sentence into the record,

22       please?

23            A.     "The plain language of Section D of the trust,

24       however, only applies if any beneficiary is under the age of

25       35 years at the time he or she becomes entitled to


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                     45


 1   distribution."

 2         Q.    And can you read the next sentence, please?

 3         A.    "Deborah was not entitled to distribution until

 4   Ms. Short died, at which time Deborah was 54 years old and

 5   thus none of the provisions of Section D applied to her

 6   interest in the trust."

 7        Q.     And the next sentence?

 8        A.     "Rather the plain language of the trust shows that

 9   Section B governed Deborah's interests."

10        Q.     And one last time, the next sentence?

11        A.     "Indeed, at the time the trust was executed

12   Deborah was 42 years old.     This further demonstrates that

13   Section D was not intended to apply to the trust created for

14   Deborah, but instead to the alternate distribution to the

15   heirs at law, Mr. and Mrs. Short under Section C of the

16   trust."

17        Q.     Okay.   Were you aware of Judge Waters' order and

18   his findings in this Exhibit 2 on or about September 15th,

19   2016 when it was entered?

20        A.     I was there at the hearing.      I think I

21   subsequently saw the order.    West Virginia has a little

22   different rules on how they produce an order.

23        Q.     Okay.   Well, but is it fair to say that you became

24   aware of the findings in this document somewhere around

25   September 15th, 2016?


                             MELISSA VOIGT, CSR
                               (512) 854-9258
                                                                         46


     1         A.    I don't know if it was September 15th, but

 2       sometime probably after that.

 3             Q.    Okay.   And you disagree with Judge Waters'

 4       findings here, I assume?

 5             A.    That would be a fair assumption.

 6             Q.    Okay.   I take it again you don't disagree with the

 7       facts in here that Deborah was 54 at the time Ms. Short died

 8       and she was 42 at the time the trust was executed?     I think we

 9       got your agreement on that earlier?

10            A.     If -- if those were the correct dates then I'll --

11       I'll assume that also.

12            Q.     You don't have any reason to doubt that?

13            A.     I -- if you're representing that's the case then I

14       have no reason to doubt it.

15            Q.     Okay.   Why did you continue to pursue these same

16       claims in this Court after they had already been rejected by

17       Judge Waters in West Virginia?

18            A.     I think you're asking me to give my legal theories

19       on that.

20            Q.     Okay.

              A.     You know

              Q.     Do you have one?

23            A.        the fact is that the West Virginia case was

24       filed after this case was filed by Ms. Farley in our petition

25       in intervention and --


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                       47


 1         Q.    Let me just stop you there because I think I can

 2   cut to the chase.    What substantive disputes do you have with

 3   regard to what Judge Waters found?    I'm not talking about

 4   procedure, but you said you disagreed with what he found in

 5   this paragraph and I'd like to know what that disagreement is?

 6        A.     Well, certainly, again, it's our position and I

 7   think you've conceded at least one of the points is that

 8   Deborah Cortez is entitled to the trust proceeds.

 9        Q.     Well, I have certainly not conceded that and if

10   that's what you think I said then I retract that.    I think

11   what I said is that I withdrew our sanctions motion on that

12   point because I think it is a colorable argument.    I certainly

13   do not endorse your theory on that.    I think we were still

14   entitled to summary judgment, absolutely.    But if there has

15   been some confusion on that I want to set the record straight.

16   And all I did was withdraw our sanctions motion on that point.

17   I still think you were absolutely, totally wrong.

18        A.     Well, certainly we have a difference of opinion

19   because

20        Q.     Sure.    And you and Judge Waters have a difference

21   of opinion, correct?

22        A.     Right.

23        Q.     And I want to know, again, what the basis is for

24   you disagreeing with Judge Waters' order here?

25        A.     Because Deborah Cortez is entitled to the trust.


                             MELISSA VOIGT, CSR
                               (512) 854-9258
     1            Q.   Okay.

     2            A.   And I've already outlined the reasons why.

     3            Q.   Well, sir,    you haven't.     In fact,   you told me you

 4       can't outline it.     You said it's in the pleadings.        And,    sir,

 5       you are the one here that we're seeking sanctions against.

 6       And I've been through the pleadings and what they say.              Now I

 7       need to hear what you say about it, sir.          And so my question

 8       one last time is can you show me any language in Article 8,

 9       Section D of Exhibit 1 that supports your theory?

10            A.       I think I've already said that.

11                     MR. THOMPSON:     Okay.     I'll pass the witness, Your

12       Honor.

13

14                                  CROSS-EXAMINATION

15       BY MR. ROBACK:

16            Q.       Mr. Brotherton, counsel asked you if you're

17       familiar with Rule 13.      He read to you some parts of Rule 13.

18       He didn't read all of Rule 13.          Does Rule 13 in fact state,

19       quote, "Courts shall presume that pleadings, motions and other

20       papers are filed in good faith," unquote?

21            A.       That's correct.

22            Q.       Counsel went over multiple filings in the case,

23       the Original Petition in Intervention, the first amended, the

24       second amended, the third amended and the fourth amended, went

25       over each of those and had you confirm that there was a,


                                    MELISSA VOIGT, CSR
                                      (512) 854-9258
                                                                       49


 1   quote, unquote, postponement claim made in each of those

 2   filings.   Is that your recollection?

 3         A.    Correct.

 4         Q.    And when was the first time counsel advised you or

 5   anyone else advised you that counsel believed that that

 6   statement, that that claim was sanctionable?

 7         A.    I don't think I ever heard that --

 8         Q.    So

 9        A.          until this motion to modify.

10         Q.    So if I'm understanding correctly, you filed an

11   original petition, first amended, second amended, third

12   amended and fourth amended, and the very first time counsel

13   advised you that he believed your conduct was sanctionable was

14   not until after the final judgment in that case?     Is this --

15   is that correct?

16        A.     That's correct.

17        Q.     Interesting.    Counsel also read to you from

18   Chapter 10 of the Civil Practices and Remedies Code,

19   specifically Section 10.001.     I'd like to read a portion of i t

20   that he hasn't to have you confirm that's correct.     To the

21   signatory's best knowledge,    information, belief formed after

22   reasonable inquiry and so on, when you filed all the documents

23   at issue, did you make what you believed to be reasonable

24   inquiry?

25        A.     Absolutely.


                            MELISSA VOIGT, CSR
                              (512) 854-9258
                                                                          50


     1         Q.      Prior to filing those documents?

     2         A.      Absolutely.

     3         Q.      By doing so did your reasonable inquiry include

 4       assigning associates to do research on these legal issues?

 5             A.      That's correct.

 6             Q.      Did your reasonable inquiry include consulting

 7       with a trust and estates expert before filing these documents?

 8             A.      That's correct.

 9             Q.     And did you to the, quote, unquote, best

10       knowled~e,   information, belief of yourself truly believe you

11       were acting in good faith at the time you filed these

12       documents?

13            A.      Absolutely.

14            Q.      You had an honest belief you were acting in good

15       faith at the time of the filing?

16            A.      Yes.

17            Q.      Did you intend to mislead this Court or counsel

18       with any of the filings in this case?

19            A.      Absolutely not.

20            Q.      To the extent that hypothetically you were wrong

21       on any claim you made, did you know at the time you made these

22       claims in the filings you were wrong?   If hypothetically

23       I'm not saying you were wrong -- but if hypothetically you had

24       been wrong, would you have known at the time you filed these

25       claims?


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                         51


 1            A.   No.

 2            Q.   Counsel also asked you to review the West Virginia

 3   Judge's order granting a motion for personal            personal

 4   summary judgment against your client.          Was that an

 5   interlocutory order or a final order?

 6            A.   Interlocutory.

 7            Q.   And is it your understanding of the law that an

 8   interlocutory order by a West Virginia judge is binding on

 9   this Texas Court?

10            A.   It is not.

11            Q.   So you wouldn't have found anything at all wrong

12   making an argument inconsistent with a West Virginia Judge's

13   interlocutory order at the time you made your filing in this

14   case?

15           A.    That's correct.

16                 MR. RUBACK:     I have no further questions, Your

17   Honor.

18                 MR. THOMPSON:     Nothing further.

19                 THE COURT:    You may be seated.

20                 Next witness.

21                 MR. THOMPSON:     Sean Hester.

22                 Your Honor, I'm going to approach because I was

23   just handed the exhibits, I need to hand them back.

24                 MR. HESTER:     May I borrow your glasses, William?

25                 MR. BROTHERTON:     Oh, you can.


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                          52


     1               MR. HESTER:     You may not need them but I do.

     2               MR. BROTHERTON:     They are 1.25, the lowest --

     3   lowest range.

 4                   MR. THOMPSON:     There was a file stamped copy of

 5       the trust document but I'm not finding it.

 6                   THE COURT:     It's probably with me.     It is.

 7                   MR. THOMPSON:     Okay.   There you go.

 8                   MR. HESTER:     Thank you.

 9

10                                   SEAN HESTER,

11       was called as a witness by the Movant having been first duly

12       sworn, testified as follows:

13

14                                DIRECT EXAMINATION

15       BY MR. THOMPSON:

16            Q.     Mr. Hester, would you state your name for the

17       Court, please?

18            A.     Sean Walker Hester.

19            Q.     And what do you do for a living?

20            A.     I'm an attorney.

21            Q.     How long have you been practicing law?

22            A.     Since 1993.

23            Q.     And you're one of the attorneys for Mateo Cortez

24       in this matter; is that right?

25            A.     That's correct.


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                                53


     1            Q.   Okay.     I'm going to try to get through this a

 2       little more quickly so you don't have to wear those crooked

 3       glasses for the next hour.          No offense, Mr. Brotherton.

 4                     Are you familiar -- at least after today are you

 5       familiar with Texas Rule of Civil Procedure 13 and Civil

 6       Practices and Remedies Code, Chapter 10?

 7                A.   Yes, I'm generally familiar with them.

 8                Q.   Okay.     And I actually have Chapter 10 up there in

 9       front of you.     It's not an exhibit but you may want to look at

10       it.   And you understand that the triggering event for

11       potential sanctions under those rules is an attorney signing a

12       pleadi~g that is sanctionable?

13             A.      That's what it says.

14                Q.   Do you agree with me that you signed Intervenor's

15       Amended Motion to Consider Order Granting Third Party

16       Defendants' Traditional and No Evidence Motion for Summary

17       Judgment?

18             A.      I -- yes,       I'm sure I did.

19             Q.      Okay.     I can give you a copy just to help us

20       along.

21                     MR. THOMPSON:       May I approach, Judge?

22                     THE COURT:       You may.

23                     THE WITNESS:        The titles get so long, I'm -- but

24       I'm sure I did.       Okay.

25             Q.      (By Mr. Thompson)        And this is a recently filed


                                       MELISSA VOIGT, CSR
                                         (512) 854-9258
                                                                         54


 1   pleading.     It looks like it was actually filed in two

 2   different cause numbers but I think it was most recently filed

 3   on the 23rd of January; is that right?

 4         A.      Yeah, it probably got filed in the other cause

 5   number since this case was severed.

 6         Q.      Sure.

 7         A.      I think there may have been some confusion.

 8         Q.      I think we're all kind of confused about it.

 9        A.       I   --   yeah, i t is a little confusing.

10         Q.      I won't belabor it, but are you familiar with what

11   I discussed with Mr. Brotherton is the postponement provision

12   claim?

13        A.       I am.

14        Q.       And that's the claim of course that because

15   Deborah Cortez was over the age of 35 at the time Phyllis

16   Short died,   that she's entitled to all the trust assets,

17   correct?

18        A.       That's correct.

19        Q.       Do you address that claim and ask the Court to

20   reconsider its summary judgment on that claim in this amended

21   motion to reconsider?

22        A.       Yes.

23        Q.       Okay.     And just to be sure, if you go to Page 22

24   of this document, that is your signature there on Page 22; is

25   that right?


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                             55


 1            A.     I'll get there but, yes,     I'm sure it is.

 2            Q.   Sure.

 3            A.   Yes, it is.

 4            Q.   Okay.     You understand that that claim was made

 5   pursuant to the postponement provision in the trust which is I

 6   believe marked as Exhibit 1 up there.         And that's on Page 5,

 7   that's Article 8, Section D?

 8        A.       I do.

 9        Q.       And you understand when I say postponement

10   provision that's what I'm speaking of?

11        A.       I do.

12        Q.       Okay.     Can you tell me the language in Article 8,

13   Section D that you believe supports the postponement provision

14   claim?

15        A.       I can.     Let me get to it.

16        Q.       Uh-huh.

17        A.       The -- well, first of all -- let's see.          Okay.   So

18   first of all it refers to any beneficiary.         And clearly in my

19   mind Deborah Cortez was the only named beneficiary in this

20   in this case.     So when I'm reading "postponement of

21   possession" it says "if any beneficiary," in my mind that has

22   to apply to Deborah Cortez.

23        Q.       Okay.     Let's talk about that.

24        A.       Because she's -- because she's the only -- I mean,

25   until she died she's the only beneficiary.


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                           56


     1         Q.      Okay.   You're talking about right there at the

 2       front end it says if any beneficiary is under the age of

 3       35 years, dot, dot, dot?

 4             A.      At the time he or she becomes entitled to

 5       distribution, that's correct.

 6             Q.      Okay.   That's the "any beneficiary" language

 7       you're referring to?

 8            A.       Correct.

 9             Q.      Okay.   Do you not agree with me that this

10       provision did not apply to Deborah Cortez because as has been

11       admitted by your co-counsel she was over the age of 35 at the

12       time she became entitled to distribution?

13            A.       I don't agree.

14            Q.       Okay.   And why not?

15            A.       Because to me this postponement of possession

16       would apply if she was under 35.     I think clearly if Deborah

17       was under the age of 35 she would have had postponement of

18       possession.    So the way it applies to me is if she's over

19       35 then she would have been entitled to full distribution of

20       the assets because there would not be a postponement of

21       possession.

22            Q.       Okay.

23            A.       And that's what I've always argued.

24            Q.       And does that stem from under Section 2,

25       termination, the statement that "When such beneficiary reaches


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                          57


     1   the age of 35 years the balance of his or her trust share,

     2   including both principal and any accrued or undistributed

     3   income shall be distributed to that beneficiary?"      Is that

 4       where that thinking comes from?

 5             A.    I'm sorry, tell me which provision you just read.

 6             Q.    If you go down to termination, No. 2?

 7            A.     Okay.

 8            Q.     And then on the third line?      I believe this is the

 9       provision that you believe supports your theory?

10            A.     Right.

11            Q.     "When such beneficiary reaches the age of 35 years

12       his or her trust share shall be distributed to the

13       beneficiary."   Do you see that?

14            A.     Yes.

15            Q.     Okay.    Is that the provision that you think

16       supports your theory?

17            A.     Well, I think      I wouldn't read it as --

18       separately, but I think read as a whole in my opinion it -- it

19       does support the -- the theory.

20            Q.     Okay.    Do you not agree with me that when the

21       trust says "when such beneficiary reaches the age of 35" it's

22       talking about the beneficiaries that were under the age of

23       35 at the time they were entitled to their distribution?

24            A.     I would assume it was talking about any

25       beneficiary because that's what's named.


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                        58


 1         Q.    Well, why would the document say "such

 2   beneficiary" if it was talking about any beneficiary?      Doesn't

 3   "such" qualify a beneficiary?

 4        A.     To me it says "if any beneficiary," and then you

 5   read that and i t says "when such beneficiary."

 6         Q.    But, sir, i t doesn't say "if any beneficiary."       It

 7   says "if any beneficiary is under the age of 35 years,"

 8   correct?

 9        A.     Right.     Right.

10        Q.     And under your theory we would totally throw that

11   phrasing out the window because it doesn't matter if they're

12   under or over age 35?

13        A.     It does matter because --

14        Q.     Okay.     Why does it matter?

15        A.     Because if Deborah was under 35 she would have

16   been subject to the postponement.

17        Q.     Yes, she would.     But she's not subject to i t

18   because she was over the age of 35, correct?

19        A.     Which means there is no postponement.     That's what

20   we've always argued.

21        Q.     Okay.     And this is what Dick Kelsey told you was

22   the correct interpretation of the trust?

23        A.     Absolutely.

24        Q.     Okay.

25        A.     I mean,    I'm -- I'm not -- I understand that people


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                      59


 1   have said we're wrong, but I still completely believe that

 2   that's what the plain language says.

 3         Q.     Again, like Mr. Brotherton you were part of the

 4   team that raised this same argument in West Virginia, correct?

 5   Were you involved in the West Virginia litigation?

 6         A.     No.

 7         Q.     You haven't done any research or   --
 8         A.     I did some research.    We had West Virginia

 9   counsel.

10         Q.     Okay.

11         A.     I believe Mr. Brotherton may have been up there,

12   but

13         Q.     Have you been to West Virginia for this case?

14         A.     No.

15         Q.     Has Mr. Brotherton?

16         A.     I think he said he had.

17         Q.     Okay.

18         A.     I'm sure -- he did.    He said he had.

19         Q.     So are you familiar with the order that's marked

20   Exhibit 2?

21         A.     Yes.    I'm familiar it exists.

22         Q.     And again, to cut to the chase on Exhibit 2,

23   Page 8, Paragraph 29, are you familiar with the fact that

24   Judge Waters rejected this claim in the West Virginia matter?

25         A.     Yes, I am, but there is a -- there is a caveat to


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                                    60


     1   that.         But, yes, to answer your question.

 2                Q.        I understand there is some dispute about the

 3       capacity issues related to the West Virginia case.           I
 4       understand that you only represent Mateo Cortez in his

 5       individual capacity in West Virginia.           But on the substance,

 6       the substance of the postponement provision claim that we've

 7       referred to today, that's what Judge Waters is talking about

 8       in Paragraph 29, correct?

 9                A.       Okay.

10                Q.       Do you agree with me?    And take your time to

11       review it.

12                A.       I mean, the first sentence says, "The Court

13       rejects Mateo Cortez' argument that he is the sole beneficiary

14       of the trust."        I really don't believe we've ever argued that.

15       I think we've always argued that the estate of Deborah Cortez

16       was the sole beneficiary of the trust.

17                Q.       Okay.   Well, even if that is so the Judge goes on

18       to talk about his claim, Mateo Cortez in whatever capacity,               is

19       that          because Article 8, Section D2 of the trust states

20       that          and then it reads in the 35 year provision.        Do you

21       see that?

22               A.        Again, it says,   "Mateo Cortez argues that he is

23       the sole beneficiary of the trust."         I   just -- if that was

24       argued in West Virginia that's not something we argued in

25       Texas.        And I understand where the -- where some of the


                                      MELISSA VOIGT, CSR
                                        (512) 854-9258
                                                                              61


     1   confusion came with -- with the summary judgment as to whether

 2       or not we were saying Mateo Cortez was a beneficiary or the

 3       estate of Deborah Cortez, but I --

 4                Q.   Well, it came from the fact that you waited a year

 5       and a half to get your ducks in a row about the personal

 6       representative issue, correct?

 7               A.    Well, it -- it's my understanding that we've never

 8       made a claim that Mateo Cortez was the beneficiary of the

 9       trust.

10               Q.    Okay.     So Judge Waters just got that one wrong in

11       Exhibit 2?

12               A.    I said that's my understanding.

13               Q.    Okay.     Regardless of the capacity issue

14               A.    I wasn't involved in the West Virginia so I don't

15       know what      what Judge Waters had in front of him,      I don't

16       know what he ruled.

17               Q.    Okay.     But whatever he had in front of him he

18       certainly says later on that the plain language of Section D

19       of the trust only applies if any beneficiary is under the age

20       of 35 at the time he or she becomes entitled to distribution

21       and that Deborah could not have been entitled to distribution

22       under that section because she was 45 years old when Ms. Short

23       died?

24               A.    42.     Or --

25               Q.    I'm sorry.       54 years old.


                                       MELISSA VOIGT, CSR
                                         (512) 854-9258
                                                                               62


     1            A.       54.     Okay.    Sorry.

     2            Q.       Is that right?

     3            A.       Yeah.

 4                Q.       Okay.     And you don't dispute that she was that age

 5       at the time that Ms. Short died?

 6                A.       Correct.

 7                         MR. THOMPSON:       Pass the witness.

 8

 9                                         CROSS-EXAMINATION

10       BY MR. RUBACK:

11            Q.           Mr. Hester, is every pleading you filed -- I'm

12       sorry.        Mr. Hester,    is the one pleading you signed in this

13       case, the only pleading you signed in this case, is it based

14       on your honest interpretation of the law and of the trust

15       documents?

16            A.           Yes, sir.

17            Q.           Did you ever intend to mislead the Court with

18       anything in the one filing you signed?

19            A.           No.

20            Q.           Did you rely upon research performed by yourself

21       and by associates at your law firm in filing that document

22       that you filed?

23            A.          Absolutely.

24            Q.           Did you rely upon the trust expert in Denton

25       County in making the representations you made to the Court in


                                       MELISSA VOIGT, CSR
                                         (512) 854-9258
                                                                        63


 1   the one filing that you filed?

 2         A.    Yes.

 3         Q.    We've talked quite a bit about an interlocutory

 4   order signed by a West Virginia judge in a related matter.        Do

 5   you believe that an interlocutory order signed by a

 6   West Virginia judge should be binding on this Texas Court?

 7        A.     No.

 8               MR. RUBACK:     I have nothing further, Your Honor.

 9               THE COURT:     Anything further?

10               MR. THOMPSON:     No more questions.

11               THE COURT:     You may be seated.

12               Your next witness?

13               MR. BOONE:     Your Honor, we're going to call --

14               THE WITNESS:     Do you want me to leave the --

15               MR. THOMPSON:     Sure.   Certainly the exhibits.

16               THE COURT:     I'd like to see Exhibit 2 or the trust

17   agreement that -- if you got it.

18               THE WITNESS:     Yes, Your Honor.

19               MR. THOMPSON:     We're going to call Linda Murray.

20   Mr. Boone is going to do the direct if that's all right.

21               THE COURT:     Okay.   That's fine.

22               MR. BOONE:     Linda Murray.

23               THE COURT:     Ms. Murray, if you'll have a seat up

24   here as close to the microphone as possible.

25               You may proceed.


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                         64


     1               MR. BOONE:     Thank you, Judge.

     2

     3                               LINDA MURRAY,

 4       was called as a witness by the Movant having been first duly

 5       sworn, testified as follows:

 6

 7                                DIRECT EXAMINATION

 8       BY MR. BOONE:

 9            Q.     Ms. Murray, would you state your name for the

10       record, please?

11            A.     Yes, Linda Murray.

12            Q.     And, Ms. Murray, where do you li,e?

13            A.     Mineral Wells, West Virginia.

14            Q.     I see.     And you flew her for this hearing; is that

15       correct?

16            A.     Yes.

17            Q.     And traveling with you is your husband?

18            A.     Yes.

19            Q.     What's his name?

20            A.     Danny.

21            Q.     Now, Ms. Murray, are you retired?

22            A.     Yes.

23            Q.     From what profession have you retired?

24            A.     Banking.

25            Q.    Banking?


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                        65


 1         A.    Uh-huh.

 2         Q.    How many years did you serve in the banking

 3   industry?

 4        A.     39 years.

 5         Q.    Okay.     With what bank for the most --

 6        A.     For the most part was Branch Banking & Trust.

 7        Q.     BB&T?

 8        A.     Yes.

 9        Q.     I understand you've also served as your church

10   treasurer for a number of years, correct?

11        A.     Yes, 18 years.

12        Q.     So you like numbers, do you?

13        A.     Yes.

14        Q.     Who are William and Phyllis Short?

15        A.     They were my aunt and uncle.

16        Q.     So you were their niece, correct?

17        A.     Yes.

18        Q.     And did

19               MR. BOONE:     Judge, I'm going to approach the

20   witness.

21               THE COURT:     You may.

22        Q.     (By Mr. Boone)     Did William and -- first off, did

23   William have a nickname?

24        A.     Dorsey.

25        Q.     Dorsey.     All right.


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                       66


 1         A.     Yes.

 2         Q.     So forgive me if I refer to him as Dorsey or

 3   William.   But did they have a child?

 4         A.     Yes, they had Deborah.

 5         Q.     Okay.   And was Deborah adopted?

 6         A.     Yes.

 7         Q.     In what state did they adopt her?

 8         A.    West Virginia.

 9         Q.    Now, you are trustee for the William and Phyllis

10   Short Trust, correct?

11         A.    Yes, I am.

12         Q.    All rig·ht.    Now, if it's okay I'll refer to that

13   document by the phrase "the trust" today.       Is that fair?

14         A.    Yes.

15         Q.    All right.     And -- but at times you wear two hats,

16   correct?

17         A.    Yes.

18         Q.    And why is that?

19         A.    Because I'm the trustee of that -- of the trust

20   and

21         Q.    You're also an heir at law, a potential heir?

22         A.    Yes.

23         Q.    You're also a potential heir, correct?

24         A.    Yes, I am.

25         Q.    Okay.    Got you.   Now, could you tell the Judge


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                           67


 1   when Phyllis and Dorsey first started talking to you about

 2   possibly serving as a trustee?

 3          A.     Yes.     They came to me -- well, we were in

 4   California.    My husband was in the service.       He was drafted

 5   during the Vietnam war.       And they came from Parkersburg,

 6   West Virginia to Fort Ord, California to visit us.        And while

 7   they were out there they talked to me then that they were

 8   thing about doing -- that -- the trust.

 9          Q.     Was it often that ·you had visitors out to

10   California?

11          A.     No.

12          Q.     Was it a special time for you?

13          A.     Yes, it was very special and we were very, very

14   happy to see them.

15          Q.     Got you.     Now, to your knowledge did they have a

16   trust at that -- do you know if they had a trust at that time?

17          A.     No,    I don't think they did but it's not -- I don't

18   know that knowledge.       They didn't share that with me if they

19   did.

20          Q.     Sure.    And did they mention to you the amount, the

21   size of the trust in the 1970s?

22          A.     No.

23          Q.     All right.     Now,   let's fast forward to let's say

24   the 1980s.    Did they have a special occasion where they talked

25   to you further about the trust?


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                              68


     1           A.    Yes.    They come out to my house and visited me.

     2           Q.    Okay.

 3               A.    And they gave me a video to watch to see how a

 4       trust works and also asked me if I would be willing to serve

 5       as a co-trustee with Debbie if something happened to her and

 6       William.

 7               Q.    Okay.

 8               A.    And if she was the last to go it was supposed to

 9       be me that served on the trust as a co-trustee.

10               Q.    Now, were they aware that you were in the banking

11       industry?

12               A.    Yes.    Yes, they come -- they were a customer of

13       mine a lot.

14               Q.    Proud of you for that?

15               A.    Pardon me?

16               Q.    Were they proud of you for that?

17               A.    Oh, yes.     They always told me how proud they were

18       for what I did with my education and working with the bank.

19       And I enjoyed it.     I loved banking.

20               Q.    Ma'am, I want to fast forward to January 5th,

21       2000.    That's when William passed away, correct?

22               A.    Yes.

23               Q.    Now, was there a memorial service for Dorsey in

24       West Virginia?

25               A.    Yes.


                                    MELISSA VOIGT, CSR
                                      (512) 854-9258
                                                                           69


     1           Q.   Okay.     Now, what if anything or any meetings

 2       happened around the time of this memorial service --

 3               A.   Uh-huh.

 4               Q.   -- as it relates to the trust?

 5               A.   Yes.    I spoke with -- with Phyllis and Debbie at

 6       that time at their hotel and we talked about the trust and she

 7       wanted me to serve as the co-trustee.

 8               Q.   In addition to asking you to serve as the

 9       co-trustee did Phyllis, Aunt Phyllis talk about the goal, the

10       purpose of the trust?

11               A.   That she wanted it -- that once -- if Debbie --

12       she wanted Debbie to be able to live comfortably.

13               Q.   Okay.

14               A.   And after Debbie's death then it was to be divided

15       between the Whites -- the Whited and the Short families.

16               Q.   All right.     So after William passed away did at

17       some point you become a co-trustee?

18               A.   Yes, I did.

19               Q.   All right.    Now, you were co-trustee with who

20       else?

21               A.   With Deborah.

22               Q.   All right.    Now, who is Bob Schlager (phonetic)?

23               A.   Robert Schlager was the manager of the trust.

24               Q.   He's a financial manager?

25               A.   Financial, yes.


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                                 70


     1           Q.     Okay.     And what if anything would he do or send

     2   you as co-trustee?

 3               A.     He would send me documents at different times.

 4       Sometimes Phyllis would call and tell me they were sending

 5       them and sometimes he called.           I'd sign them and send them

 6       back.

 7               Q.     But you were relying for the most part on what he

 8       was sending you?

 9               A.     Absolutely.        I -- they trusted him, I trust them

10       and I trusted him.

11               Q.     You're in West Virginia at the time?

12               A.     Yes,    I am.

13               Q.     And Mr. Schlager was in Georgia?

14               A.     Yes.

15               Q.     Deborah was in Texas?

16               A.     Yes.

17               Q.     Okay.

18               A.     Mr. Schlager was in Florida.

19               Q.     Florida.        Forgive me.   Phyllis, was she also in

20       Florida too?

21               A.     She was in Florida when they prepared the trust

22       and everything but then they moved to Texas because they were

23       getting older.

24               Q.     Okay.    All right.      So it's my understanding that

25       in the span of 10, 11 months, all in one year both your


                                        MELISSA VOIGT, CSR
                                          (512) 854-9258
                                                                            71



     1   Aunt Phyllis and Deborah died.     That was in 2011, correct?

 2             A.    Yes.

 3             Q.    All right.     Now, Deborah was married to a

 4       gentleman, correct?

 5            A.     Yes.

 6            Q.     What was his name?

 7            A.     Mateo Cortez.

 8            Q.     Mateo Cortez?

 9            A.     Yes.

10            Q.     What if anything did Mateo say to you on or around

11       his wife's death as it relates to funds or monies?

12            A.     He called me the morning that Debbie had passed

13       away and he said       and he -- and I thought it was so strange

14       and I said it to my husband.     He said, "We were getting

15       $15,000 a month and now that money is going to be yours."

16            Q.     So Deborah and Mateo were getting $15,000 a month?

17            A.     Yes.

18            Q.     Okay.     And what was your reaction -- what did you

19       think he meant by "you're getting it now?"

20            A.     I said,    "No, I will not be getting that money, it

21       belongs to the trust."

22            Q.     But he was acknowledging that funds that were once

23       going to his -- him were now going to the trust?

24            A.     To -- yes.

25            Q.     All right.     At the time that Deborah died did you


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                         72


 1   know how much money was in the trust?

 2         A.     I had no idea.

 3         Q.     How did you get your first copy of the trust

 4   document?

 5         A.     Finally after asking and asking and asking I

 6   received a copy on February the 17th of 2012 that Mateo sent

 7   to me and said he found it in the condo.

 8         Q.     So Mateo gave you your first copy of the trust?

 9        A.      Yes.

10         Q.     Now, at that point did you know all of the

11   accounts and annuities and life insurance policies and

12   everything involved with the trust?

13        A.      No, I had no idea.

14        Q.      All right.     Could you just kind of share with us

15   how you got your arms around everything involved here?

16                THE COURT:     Counselor, may I ask some questions?

17                MR. BOONE:     Yes.

18                THE COURT:     Counselors?    Because you've got me

19   confused.   William Short died when?

20                THE WITNESS:     He died January the 5th of 2002.

21                THE COURT:     Okay.    And then I think I heard you

22   say that you met with Phyllis, Debbie?

23                THE WITNESS:     Yes.

24                THE COURT:     Debbie Cortez?

25                THE WITNESS:     Yes.


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                              73


     1               THE COURT:     And yourself met, and there was a

 2       discussion about you and Debbie being the co-trustees?

 3                   THE WITNESS:     Yes.

 4                   THE COURT:     And then you subsequently testified --

 5       or then you said that during some period of time you would get

 6       documents from Mr. Schlager?

 7                   THE WITNESS:     Yes, I would.

 8                   THE COURT:     And as co-trustee you were signing

 9       them, correct?

10                   THE WITNESS:     Yes.

11                   THE COURT:     Now, at that time, from the date of

12       mister -- or shortly after Mr. Short's death until Phyllis

13       died, were you and Debbie the co-trustees of the trust?

14                   THE WITNESS:     Yes, we were.

15                   THE COURT:     Was there some documentation saying

16       that?

17                   THE WITNESS:     Yes.    There was a transfer form --

18       I'm not exactly correct of what it was, but it was

19       transferring the ownership and Aunt Phyl transferred it to me

20       and Debbie on March -- March 31st of 2003.

21                   THE COURT:     Okay.    So you -- when Debbie died you

22       had this phone call saying that we've been getting $15,000.

23       Were you directing the $15,000 or how did that money -- how

24       were they getting -- or Debbie getting $15,000?

25                   THE WITNESS:     She was -- the $15,000 was corning


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                        74


 1   out of the trust to Debbie that Robert Schlager set up to go

 2   to her.

 3               MR. THOMPSON:     She was entitled to income under

 4               THE WITNESS:     Yeah, she was entitled to that

 5   income.

 6               MR. THOMPSON:     During her life, after Phyllis'

 7   death.

 8               THE WITNESS:     Also --

 9               THE COURT:     No, but I'm talking about before

10   Phyllis' death?

11               MR. THOMPSON:     I don't know the answer to that

12   th8n.

13               THE WITNESS:     No, she never got that kind of money

14   before Phyllis' death.     Not 15,000 a month.

15               THE COURT:     Okay.   Because, I mean, you said --

16   let me go back and look at this.       You said that he called

17   you

18               THE WITNESS:     On December the 9th of 2011.

19               THE COURT:     Right after --

20               THE WITNESS:     Debbie died.

21               THE COURT:     Debbie died.     And he said, "We've been

22   getting $15,000."

23               THE WITNESS:     Uh-huh.   Each month.

24               THE COURT:     And I'm just trying to say who was

25   directing that?     Because I don't read the trust to say that.


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                                   75


     1                 THE WITNESS:     Because Debbie acted on her -- by

 2       herself after Phyllis died.

 3                     THE COURT:     No, before Phyllis -- okay.       So -- is

 4       it your -- okay.    And you believe that -- you were a

 5       co-trustee?

 6                     THE WITNESS:     Yes.

 7                     THE COURT:     But you weren't authorizing any

 8       payments?

 9                     THE WITNESS:     No.

10                     THE COURT:     That between the date of Phyllis'

11       death and the date of Debbie's death, which was a period of

12       11 months

13                     THE WITNESS:     Uh-huh.

14                     THE COURT:     -- at least according to Mateo he was

15       receiving $15,000 a month for those 10 or 11 months?

16                     THE WITNESS:     No, they didn't get it that -- that

17       quickly.    Let me think.

18                     THE COURT:     But were you directing that payment as

19       co-trustee?

20                     THE WITNESS:     No.

21                     THE COURT:     Who do you think was directing that?

22                     THE WITNESS:     Debbie set it up with the investors

23       through Bob Schlager.

24                     THE COURT:     Okay.    So she as a co-trustee

25       contacted Mr. Schlager?


                                    MELISSA VOIGT, CSR
                                      (512) 854-9258
                                                                           76


 1                THE WITNESS:     And she set up these accounts with

 2   the money that was in the trust.        She operated on her behalf.

 3   I never did anything except sign some blank documents which I

 4   knew nothing about.     I called Bob to say -- I called Bob

 5   Schlager and asked him what -- I said, "Why am I signing these

 6   blank documents?"     And there was a stack like this.

 7   (Indicating.)   And he said, "Do I have to get a plane and come

 8   clear up the -- West Virginia to go over each and every one of

 9   these documents?"     And I told him, I said, "I've worked in

10   banking all my life and I was always told never to let anyone

11   sign a document in blank."      But he was very, very rude and --

12                THE COURT:     Okay.    So you -- well, you may have

13   signed a blank document

14                THE WITNESS:     Yes, I --

15                THE COURT:     -- but you're telling me you didn't

16   authorize any $15,000 a month payment?

17                THE WITNESS:     Well, no, I did not but I signed the

18   document .

19                THE COURT:     Right.   You signed these blank

20   documents but you didn't really know --

21                THE WITNESS:     What was being done.

22                THE COURT:     -- these payments were being done

23   until Mateo called you.     And then he says you're going to be

24   receiving these payments forward?

25                THE WITNESS:     That is correct.


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                          77


 1                 THE COURT:     Okay.

 2           Q.     (By Mr. Boone)     Now, what conclusions did you --

 3   let's go back to that $15,000 payment that Mateo said would be

 4   coming to you as the trustee?

 5           A.    Uh-huh.

 6           Q.    What conclusions did you draw as to what Mateo

 7   felt or thought about his entitlement to the trust at that

 8   point?

 9           A.    Well, he thought that the money was going to come

10   to me because he thought I was the trust (sic) at that time

11   and I was going to get all those          that money.    We gave

12   Debbie -- because I was supposed to give Debbie 50,000, which

13   I didn't know, I didn't have a copy of the trust so I had no

14   idea.    And -- and Debbie did an automatic draft from one of

15   the investments to her own checking account for the $50,000

16   for the first year, and then would have been supposed to give

17   her $25,000 for the second year.       But she didn't live to get

18   the second.    But I did not know that

19                 THE COURT:     Well, let me stop you.     You got a copy

20   of this trust agreement when?

21                 THE WITNESS:      February the 17th of 2016 from Mateo

22   Cortez because I couldn't get anything from Bob Schlager.

23                 THE COURT:     Okay.   Do you have that instrument

24   down there?

25                 THE WITNESS:     With me now?


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                            78


 1                 MR. BOONE:     It would be Exhibit 2.

 2                 THE WITNESS:     Yes, I do.

 3                 THE COURT:     Okay.     Look at the provision about

 4   what happens when Phyllis dies.

 5                 MR. BOONE:     Is that Article 7, disposition after

 6   death of second spouse?

 7                 THE COURT:     Yes.

 8        Q.       (By Mr. Boone)        That's on Page 4 of 14,

 9   Ms. Murray.

10        A.       Okay.   Disposition after the death of second

11   spouse.    Debbie was -- well, we were          the trustee -- I mean,

12   the two co-trustees were supposed to            "On the death of the

13   second spouse the trust shall be administered as follows;

14   payment of expenses and taxes.         The trustee shall make

15   provision out of the second spouse's separate share for the

16   payments of the type described in Paragraph B of Article 5 if

17   any required in connection with the estate of the second

18   spouse."

19                 "Special testamentary power of appointment.        The

20   trustee shall distribute such portion of the assets of the

21   credit sheltered trust of the first spouse to die to such

22   charitable institutions and to such persons who are

23   descendants or the spouses of descendants of the first spouse

24   to die as the second spouse may appoint by his or her will

25   provided such will makes specific reference to this power of


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                            79


 1   appointment and is duly admitted to probate.          In default of

 2   the exercise of such power of appointment the remainder of the

 3   trust estate shall be administered as described in Article 8

 4   below."

 5               THE COURT:     Okay.     Continue.   Well, one question.

 6   Do you know whether or not those charities got whatever they

 7   were entitled to?

 8               THE WITNESS:     Yes.

 9               THE COURT:     Okay.     Now let's go down to the next

10   section.

11               THE WITNESS:     Cash distribution -- cash

12   distributions.   I can't talk.

13               THE COURT:     Distribution.

14               THE WITNESS:     Excuse me.     Okay.    "Cash

15   distribution to Deborah.     If our daughter Deborah A. Cortez is

16   living and legally competent the trustee shall distribute to

17   her the sum of $50,000 as soon as practicable after the death

18   of the second one of us to die.        If Deborah is not there -- if

19   Deborah is not then living or is not legally competent then

20   this gift shall lapse and the remainder of the trust estate

21   shall be administered as provided below."

22               "Continuing trust for Deborah.          If our daughter

23   Deborah A. Cortez is living on the date of the death of the

24   second one of us to die, then the remainder trust estate shall

25   be administered as follows:        Number one, income commencing as


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                              80


     1   of that date and during Deborah's life, the trustee shall

 2       distribute to her or on her behalf if she becomes

 3       incapacitated all of the net income of the trust at least

 4       quarterly or at more frequent intervals at Deborah's request.

 5       The term 'income' shall not include capital gains whether

 6       short term or long term from the sale of assets of the trust."

 7                     THE COURT:     Okay.     Let me look at that for a

 8       minute.    I'm going to ask you a question.        So you were the

 9       co-trustee upon Phyllis' death?

10                     THE WITNESS:     Yes.

11                     THE COURT:     Were you involved in making the

12       $50,000 distribution?

13                    THE WITNESS:      No, I was not.

14                    THE COURT:      You didn't have a copy of this trust,

15       did you?

16                    THE WITNESS:      No.

17                    THE COURT:      Then after that $50,000 distribution

18       there was to be a second payment which would have been one

19       year from the date of death of the second of us -- of one

20       the second one of us to die.          So if Phyllis -- what's the date

21       of Phyllis' death?

22                    THE WITNESS:      Phyllis' death was January the 5th

23       of 2011.

24                    THE COURT:      Okay.    So as soon as practicable

25       $50,000 was payable?


                                    MELISSA VOIGT, CSR
                                      (512) 854-9258
                                                                                  81


     1               THE WITNESS:     Right.

 2                   THE COURT:     Then -- then there would be some

 3       income during the period quarterly or more frequently at

 4       Deborah's request.   Were you involved in any of that?

 5                   THE WITNESS:     No, I was not.

 6                   THE COURT:     Then there is to be another payment,

 7       principal, of 25,000 one year after Deborah's death?

 8                   THE WITNESS:     Right.

 9                   THE COURT:     And that obviously never came to

10       fruition so that would have never been made.           But there would

11       have been some income during that time.           Now, when you say you

12       signed these documents in blank, was that after Phyllis'

13       death?

14                   THE WITNESS:     That was after Phyllis' death.

15                   THE COURT:     And -- but you -- there wasn't numbers

16       iike here is the 50,000, here is income?

17                   THE WITNESS:     They were completely blank.

18                   THE COURT:     Okay.     Thank you.

19                   THE WITNESS:     Okay.

20                   THE COURT:     But you didn't act as the trustee

21       even though you may have been the trustee you didn't have the

22       agreement to know what you were to do?

23                   THE WITNESS:     No, I had no idea about anything.

24                   THE COURT:     Okay.     You may proceed.

25                   MR. BOONE:     Thank you.


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                                   82


     1            Q.        (By Mr. Boone)      Ms. Murray, did you take greater

     2   control over the trust once you became the sole trustee?

     3            A.       Yes,    I did.

 4                Q.       Tell the Judge about that.

 5                A.       I had to -- once I was receiving statements and

 6       stuff in the mail I contacted these companies -- well, first

 7       of all, we contacted a bank local.              And with their help and

 8       everything else going on I was able to get all of the money

 9       transferred.        But when I talked to Bob Schlager to ask him to

10       send me a copy of the trust, which I did not get, he said that

11       he had some papers that he wanted me to fill out.             This was

12       shortly after Debbie died.

13                Q.       Okay.    And what did you --

14                A.       I mean, not Debbie, Phyllis.

15                Q.       What did you say in response to Bob's request to

16       sign some more papers?

17               A.        Pardon me?       I'm sorry.

18               Q.        What did you say to Bob when he asked you to sign

19       those papers?

20               A.        I told him that I did not like signing papers

21       blank.        But he told me he was trying to get it set up as soon

22       as possible for Debbie to be able to start getting some money

23       to live on.

24               Q.        Okay.    I'm talking now about after Deborah passed

25       away?


                                        MELISSA VOIGT, CSR
                                          (512) 854-9258
                                                                        83


 1         A.       Okay.

 2         Q.       Okay?   What if any changes did you make to how you

 3   handled your responsibilities as trustee after you became the

 4   sole trustee?     How did you go about gathering all the

 5   information to determine what was out there?

 6        A.        We -- we had    the first trip to Texas down here,

 7   we went through the condo.     And then it was 22 boxes shipped

 8   to my house.

 9        Q.        Okay.

10        A.        And I went through all of those boxes to find the

11   investments and anything -- we found bank statements and

12   copies of checks and stuff.     There was so much -- and other

13   material, quite a bit of other material in it also.      But the

14   main portion we found a lot of investments in those boxes to

15   be able to

16        Q.        So those 22 boxes represented William and Phyllis'

17   records over the years?

18        A.        All over the years.   Right.   Because they had

19   everything in there, letters, their whole life was in there.

20        Q.        Did you get records from Wells Fargo?

21        A.        Well, we got records from Wells Fargo but we had

22   to argue and fight to be able to get those.      It took us

23   forever and ever to get them.

24        Q.        Now, at some point after gathering all this

25   information, these records and documents, did you have


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                         84


 1   concerns that there were funds missing that should have been

 2   part of the trust?

 3        A.     Yes,    I did, because when I talked to Bob Schlager

 4   on the phone he told me there was approximately four million

 5   dollars in the account.

 6        Q.     Okay.     And --

 7        A.     And so when I started through all of that stuff i t

 8   didn't come up to no four million dollars.

 9        Q.     Okay.     Now, at some point with the assistance of

10   counsel did you file a -- excuse me.       Did you feel as though

11   anyone in particular might be responsible for those missing

12   funds?

13        A.     Yes,    I felt like they were -- I hate to talk about

14   them, but I felt like Debbie and Matt were taking those funds

15   out of the account.

16        Q.     Now, did you file any civil actions in Texas?

17        A.     Yes.

18        Q.     All right.       Linda, I don't want to get into the

19   merits of that lawsuit,      the misappropriation lawsuit today.

20   But I do want to draw your attention to one deposition.       Do

21   you remember taking a deposition in that case?

22        A.     Yes,    I do.

23        Q.     Okay.     Just describe to the Judge how that

24   deposition generally went?

25        A.     I thought it was going really good until they come


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                                85


 1   to the point, they asked me how much money was in the trust.

 2   And I didn't feel like it was any of their business because

 3   the money didn't belong to them.            But I told them, it was

 4   5.2 million.

 5                     THE COURT:      Well, you need to stop.   I don't know

 6   who the   11
                    they" is and the "themn is.

 7                     THE WITNESS:      Okay.

 8        Q.           (By Mr. Boone)      Who was -- who was taking the

 9   deposition?

10        A.          Brotherton.

11        Q.           The Brotherton Law Firm?      Someone from the

12   Brotherton Law Firm?

13        A.          Yes, it was.

14        Q.          And Mateo Cortez was there?

15        A.          Yes.

16        Q.          All right.

17        A.          He was with them.

18        Q.          Okay.     So when they asked you how much was in the

19   trust did you know the answer?

20        A.          Yes, I did.

21        Q.          And did you tell them the answer?

22        A.          Yes,    I did.

23        Q.          What was your answer?

24        A.          5.2 million dollars.

25        Q.          What if any reaction did you observe at that time?


                                    MELISSA VOIGT, CSR
                                      (512) 854-9258
                                                                                 86


     1            A.       You could see eyes rolling.

 2                Q.       How so?

 3                A.       Just so you could -- you could just see that they

 4       knew there was a lot of money.          And then shortly after we had

 5       a break.

 6                Q.       Shortly after that question there was a break?

 7                A.       Yes.

 8                Q.       And what do you mean by "a break?"

 9                A.       A 15 minute break.

10                Q.       Counsel left and

11                A.       Counsel left, we      yes.

12                Q.       And do you recall if there were many questions

13       after the break concluded?

14                A.       No, there wasn't.

15                Q.       And that deposition occurred on June 19th, 2015,

16       correct?

17                A.       That is correct.

18                Q.       Now, did Mateo through his counsel make any claims

19       after that deposition that were new and different?          Did they

20       file any papers or pleadings or anything after that

21       deposition?

22            A.           Oh, yes.   They filed -- they filed saying that

23       that money belonged to Mateo Cortez and all -- and it was all

24       of it.        He -- Matt said all of the money belonged to him.

25            Q.           And how did you      how did you feel when Mateo


                                      MELISSA VOIGT, CSR
                                        (512) 854-9258
                                                                              87


 1   argued that he was entitled to all of the trust?

 2        A.     I knew it wasn't supposed to be that way because I

 3   knew what Phyllis had told me at the hotel that day.             And I

 4   know when me and -- when -- when Dorsey and Phyllis met with

 5   me

 6        Q.     Right?

 7        A.     -- they had told me what their wishes were and

 8   they told me that if -- if Phyllis died first it would go

 9   to -- I'm sorry.     You have to excuse me.       I have

10        Q.     That's okay.        You're doing just fine.    The

11   question before you I think was how did you feel after Mateo

12   argued that he was entitled to the trust?

13        A.     I was really -- I was just sick.          Because I knew

14   that it did not belong to him.

15        Q.     Now, once you realized that there was now a

16   dispute as to who was entitled to the       --   the trust assets, did

17   you file any action in West Virginia?

18        A.     No.

19        Q.     File any legal action in West Virginia?

20        A.     No,    I did not.

21        Q.     Are you sure you didn't file a lawsuit in

22   West Virginia?

23        A.     About the -- about Matt wanting all of the money

24   or

25        Q.     Yeah.    Okay.      So --


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                         88


 1         A.      I'm confused.     I'm sorry.

 2         Q.      That's okay.

 3                 MR. BOONE:     Judge, may I approach the witness?

 4                 THE COURT:     You may.

 5         Q.      (By Mr. Boone)     Linda, I'm going to show you a

 6   document that's been filed

 7        A.       Oh, yeah.

 8        Q.       Okay.   Do you recognize this document?

 9        A.       Yes, I do.

10        Q.       All right.     Is your recollection refreshed as to

11   what this document is?

12        A.       This was our first filing for the -- for the --

13   how the trust was supposed to be set up.        I mean, how the

14   trust was set up and how it was -- all the heirs and

15   everything.    And it took us hours to get all of this

16   information together of all the heirs and everything to be

17   able to file this document.

18        Q.       I got you.     So why did you file -- so this

19   document is asking the Court to determine who is entitled to

20   what under the trust?

21        A.       To the -- the heirs.

22        Q.       The heirs.    Okay.   And why did you file in

23   West Virginia?

24        A.       Because the trust said that it's supposed to be

25   into the state where most of the people -- the majority of the


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                              89


     1   people lived.

 2             Q.    All right.

 3             A.    Of the heirs.

 4                   THE COURT:     I'm going to ask another question.    So

 5       you said there was 5.2 million dollars.       Is that lawsuit here

 6       in the State of Texas when you're taking this deposition?

 7                   THE WITNESS:     The deposition was here in the State

 8       of Texas.

 9                   THE COURT:     I mean, there is a lawsuit here other

10       than this lawsuit?

11                   THE WITNESS:     No.

12                   MR. BOONE:     Judge, well, this account has been

13       severed from the misappropriation lawsuit which was the

14       genesis of this action.     There was a complaint filed by the

15       trustee against Bob Schlager, Mateo Cortez essentially seeking

16       some assets that --

17                   THE COURT:     That's another lawsuit?

18                   MR. THOMPSON:     You want me to address this?

19                   MR. BOONE:     Yeah, why don't you --

20                   MR. THOMPSON:     Your Honor, it was all the same

21       lawsuit.

22                   THE COURT:     Right.

23                   MR. THOMPSON:     So Ms. Murray as trustee filed

24       first against Mr. Cortez and some others about

25       misappropriation.     Then Mr. Cortez counterclaimed and then


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                                90


 1   brought our clients in as third party defendants on the issues

 2   we're talking about here today.

 3                    THE COURT:     Okay.

 4                    MR. THOMPSON:     The Court granted summary judgment

 5   on those claims and we have severed those out.

 6                    THE COURT:     Right.

 7                    MR. THOMPSON:     And so when you say "in this

 8   matter 11   --




 9                    THE COURT:     Well, okay.

10                    MR. THOMPSON:           it's kind of halfway.

11                    THE COURT:     Okay.     My question to you then is this

12   i..isappropriation claim you have, how much is that fo'-·?

13                    THE WITNESS:     $80,000.

14                    THE COURT:     80,000.     Okay.     Thank you.

15                    THE WITNESS:     Okay.     You're welcome.

16                    MR. BOONE:     Okay.     May I approach?

17                    THE COURT:     Yes.

18          Q.        (By Mr. Boone)        I'm going to hand to you what I've

19   marked as Exhibit 3.          Linda, do you recognize this?

20         A.         Oh,   yes.

21         Q.         What is this?

22         A.         This is the heirs at law for the William Dorsey

23   Short and Phyllis Dale Whited Short.                And it is all of the

24   members -- it is them listed plus all of their children and

25   all of the heirs as they go in order.


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                                91


     1            Q.   All right.      So this information was pulled from

 2       the complaint that you filed in West Virginia, correct?

 3                A.   Yes.

 4                     MR. BOONE:      All right.   Judge, move for admission

 5       of Exhibit 3.

 6                     (Movant's Exhibit No. 3

 7                     was offered into evidence.)

 8                     THE COURT:      Any objection?

 9                     MR. RUBACK:      No objection, Your Honor.

10                     THE COURT:      No. 3 is admitted.

11                     (Movant's Exhibit No. 3

12                     was admitted into evidence.)

13            Q.       (By Mr. Boone)      Now, Linda, the -- when you filed

14       as trustee the lawsuit in West Virginia, how did your family

15       react?

16            A.       My family was not very happy with me.

17            Q.       Why weren't they very happy with you, Linda?

18            A.       They thought I was asking for too much money for

19       commission.     They didn't think I should have any commission.

20       They thought I should just do it, and I was double dipping

21       taking heirship money and then taking commission also.

22            Q.       Are you talking about the hours you noted in your

23       complaint?

24            A.       Yes.   Yes.

25            Q.       Let's talk about your immediate family.      Who is


                                     MELISSA VOIGT, CSR
                                       (512) 854-9258
                                                                          92


 1   Thomas Wayne Marks?

 2           A.    He is my youngest brother.

 3           Q.    Okay.     And how were you -- how is your

 4   relationship with Thomas?

 5           A.    Thomas now is good.

 6           Q.    Okay.     What about your sister?

 7           A.    My sister Betty is good.     My sister Patty

 8           Q.    Tell the Judge what happened with Patty?

 9           A.    She was upset when she got the letter about the

10   trust and everything from my attorney Robert Fluharty

11   (phonetic).    And when she got that she asked -- she called me

12   wondering why I didn't ask her to help me with all of this

13   because they've all -- all of them has noticed my health going

14   down.

15           Q.    Okay.     I want to talk about your health in a

16   second.

17           A.    Okay.

18           Q.    But I want to ask one more question about another

19   family member and that's your brother --

20           A.    Jim.

21           Q.    Jim.     How has your relationship with Jim been

22   effected because of this lawsuit?

23           A.    It's better than it was but once this -- the

24   lawsuit happened         we talked at least every other day or

25   every two days.       He never talked to me at all, he didn't want


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                             93


  1   nothing to do with me because he said I was double dipping and

 2    when this is all over and done with he said I might receive a

 3    dollar,

 4          Q.    And when you say "this lawsuit" you're talking

 5    about the lawsuit to resolve this issue as to who is entitled

 6    to the trust proceeds, Mr. Mateo Cortez or the others,

 7    correct?

 8         A.     Yes.

 9         Q.     All right.        Ma'am, after you filed the lawsuit in

10    West Virginia did Mr. Mateo's efforts in Texas stop?

11         A.     No.    No.

12         Q.     No, he did not.        Did you ha·Ie to hire a lawyer to

13    help out in Texas?

14         A.     Yes, we did.

15         Q.     And when I say "we" we're talking about the heirs

16    at law?

17         A.     Yes.

18         Q.     And to your understanding were the heirs at law

19    served with a copy of the complaint in West Virginia?

20         A.     Yes, they were.

21         Q,     All right.       So you've got a lot of family listed

22·   on that sheet, correct?

23         A.     Yes.     Yes.

24         Q.     How did you manage -- or how did the heirs at law

25    manage to congress and decide how to respond to the


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                           94


 1   allegations?     Did they have to meet on a regular basis?

 2          A.      Yes.     We had to    well, we don't meet but we do

 3   conference calls and stuff on a regular basis.

 4          Q.      And there have been meetings in person, correct?

 5          A.      Right.

 6          Q.      All right.     Who is the lawyer in Texas that's been

 7   hired to defend the heirs at law?

 8          A.      Brian Thompson.

 9          Q.      All right.     And Connie Barry also had me continue

10   to help as well?

11          A.      Yes.     Uh-huh.

12          Q.    Now, at some point did Judge Waters in

13   West Virginia agree that Mateo was not entitled to take into

14   the trust?

15          A.    Yes, he did.

16          Q.    And how did you feel after Judge Waters ruled that

17   way?

18          A.      I thought,    oh, maybe it's going to be over soon

19   and I can have some time for myself.

20          Q.    Okay.      But was it over?

21          A.    No.

22          Q.    All right.       Did Mateo drop his case in Texas?

23          A.    No.

24          Q.    So I want to talk with you as to why you're asking

25   for sanctions, okay?        How has this effected your health?


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                         95


 1         A.       Well, I just -- I can't get around anymore at all.

 2   It's just been so much strain on me.        My doctors have all been

 3   concerned about me.      I have had -- two of them at least have

 4   said they have never ever seen me in this kind of shape.

 5         Q.       Before this claim by Mateo Cortez did you exercise

 6   on a somewhat regular basis?

 7         A.       Oh, yeah, I walked five miles every morning and

 8   I -- outside and -- and I walked two miles every evening on a

 9   treadmill.

10                  MR. BOONE:     Judge, may I approach?

11                  THE COURT:    You may.

12        Q.        (By Mr. Boone)     Linda, could you take a look at

13   this photograph, please?

14        A.        Yes.

15        Q.        Who is in this photograph?

16        A.        My husband and myself.

17        Q.        And, Ms. Murray, approximately when was this

18   photograph taken?

19        A.        It was taken in May, four years -- going to be

20   four years.

21        Q.        Okay.   Since Mateo Cortez asserting its claim,

22   have you gained quite a bit of weight?

23        A.        Yes.

24        Q.        Have you had to increase medications for

25   antianxiety?


                                 MELISSA VOIGT, CSR
                                   (512) 854-9258
                                                                          96



 1         A.    And depression.

 2         Q.    Okay.

 3         A.    It has put me into such a depression I -- they've

 4   increased so much medicine on me a lot of times I           I just

 5   get so confused.     And it's hurt my memory because of it all.

 6   And I do the best I can because I promised Uncle Dorsey and

 7   Aunt Phyl that I would do this.      And the doctors even told me

 8   that I needed to get away from it.      But I can't because I

 9   promised them.     They come to see me in California when he was

10   in the service.     They were so good to me.   They had us out.

11   And I was so close to Aunt Phyl and Dorsey and Debbie.        We

12   spent a lot of weekends together at their house.      And I

13   promised them I'd do it and I'm going to do it.

14               MR. BOONE:     Okay.   Thank you, Ms. Murray.

15               I pass the witness.

16               THE COURT:     Any questions?

17               MR. RUBACK:     Yes, Your Honor.

18

19                             CROSS-EXAMINATION

20   BY MR. RUBACK:

21        Q.     Ms. Murray, we've gotten a little far afield as to

22   whether or not my clients Mr. Brotherton and Mr. Hester have

23   violated Texas Civil Practice and Remedies

24               MR. THOMPSON:     Your Honor, I'm going to object to

25   the sidebar and the -- construing her testimony.


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                           97


 1               THE COURT:     That's proceed onward, please.      I want

 2   to get this done by the end of the afternoon.

 3               MR. RUBACK:     Thank you.

 4          Q.    (By Mr. Ruback)     Ma'am, do you have any personal

 5   knowledge of Mr. Brotherton's or Mr. Hester's intent at the

 6   time they made the legal arguments they made?

 7               MR. THOMPSON:      Objection, relevance.    This intent

 8   thing is not a factor under the CPRC 10, Judge.

 9               THE COURT:     Overrule the objection.

10          Q.   (By Mr. Ruback)      Do you have any knowledge of

11   their intent at the time they filed their pleadings?

12          A.   Did I have any knowledge of what?        I don't

13   understand the question.

14          Q.   Of -- do you have any knowledge of whether or not

15   they had good intent or bad intent in making certain legal

16   arguments they made in this case?

17          A.   I just thought they were way off.        I'm sorry.   I

18   just

19          Q.   Absolutely.     But -- but did you know what they

20   were thinking at the time?

21               MR. THOMPSON:      Objection, asked and answered.

22               THE COURT:     Let's move along.

23               MR. RUBACK:     Thank you, Your Honor.

24          Q.   (By Mr. Ruback)      Do you know whether my clients

25   performed any research before filing the documents they filed?


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                        98


 1          A.      I do not know what they did.

 2          Q.      Do you know if they consulted with any trust

 3   experts before filing the filings that they did?

 4          A.      No, I did not.

 5          Q.      Okay.   You said that at your deposition it was

 6   taken by the Brotherton Law Firm.      Wasn't your deposition in

 7   fact taken by prior counsel with a gentleman named John Long?

 8          A.      He was with the -- he was with the -- he is with

 9   him.

10          Q.      Was he with them at the time he took your

11   deposition or was he a sole practitioner?

12          A.      I have no idea.

13          Q.      So you don't know whether your deposition, the one

14   at issue that you talked at length about was taken by the

15   Brotherton Law Firm or not?

16          A.      No, I don't remember when he went with the

17   Brotherton Law Firm.      I just know he was with the Brotherton

18   Law Firm.   When I got the copy of the -- of the deposition

19   myself I seen that it was signed by John Long.

20          Q.      Okay.   So it was taken by John Long, not by

21   Mr. Hester or Mr. Brotherton?

22          A.      I -- to be honest I couldn't tell you what the man

23   looked like.

24          Q.      I understand completely, ma'am.   So you don't know

25   for sure who took your deposition, whether it was the


                               MELISSA VOIGT, CTSR
                                 (512) 854-9258
                                                                             99


     1   Brotherton Law Firm or not?

 2             A.     No.

 3                    MR. RUBACK:     That is all, pass the witness, Your

 4       Honor.

 5                    THE COURT:     Anything further?

 6                    MR. BOONE:     Judge, just a point of order.    I would

 7       ask the Court to take judicial notice that's appropriate, that

 8       among the names signed and featured under the signature of

 9       Mr. Brotherton on the -- the Original Petition in Intervention

10       is Mr. John C. Long, IV,     the gentleman

11                    THE COURT:     So noted.

12                    MR. BOONE:     Right.   But William Brotherton, of

13       course, signed this document.

14                    MR. RUBACK:     Just out of curiosity, I'm brand new

15       to the case, do we have anything showing who took the

16       deposition, whether it was associated with -- at the time they

17       took the deposition?

18                   MR. BOONE:     Yeah.     I can get you a copy of the

19       transcript at some point, but as you'll see in the transcript,

20       the copies that I have, the select documents, you'll see by

21       Mr. Long.   "I'm not asking $2,000, okay."

22                   MR. RUBACK:     So it was definitely Mr. Long --

23                   MR. BOONE:     Mr. Long --

24                   MR. RUBACK:     And we don't know whether he was

25       associated with the Brotherton firm at that time because we


                                   MELISSA VOIGT, CSR
                                     (512) 854-9258
                                                                          100


 1   don't have those pages with us today?

 2               MR. BOONE:     I don't know.

 3               MR. RUBACK:     No problem.     Thank you, sir.

 4               THE COURT:     You may be seated.

 5               MR. BOONE:    Thank you, Ms. Murray.      You can come

 6   down.

 7               THE COURT:    Do you have another witness?

 8               MR. BOONE:    Judge, if I could move for the

 9   admission of the Exhibit 4, please?

10               (Movant's Exhibit No. 4

11               was offered into evidence.)

12               MR. RUBACK:     No objection, Your Honor.

13               THE COURT:    No. 4 is admitted.

14               (Movant's Exhibit No. 4

15               was admitted into evidence.)

16               THE COURT:    Mr. Thompson,     your next witness?

17               MR. THOMPSON:     It's going to be me, Your Honor.

18               THE COURT:    Okay.   You questioning yourself?

19               MR. THOMPSON:     I'm just going to read it into the

20   record if that's okay.

21               THE COURT:    Okay.   Uh-huh.

22               MR. THOMPSON:     Do you mind if I do it from here?

23               THE COURT:    I don't mind.

24

25


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                       101


 1                              BRIAN THOMPSON,

 2   was called as a witness by the Movant having been first duly

 3   sworn, testified as follows:

 4

 5                            DIRECT EXAMINATION

 6   BY MR. THOMPSON:

 7                  Judge, my name is Brian Thompson as the Court is

 8   aware by now I'm sure.     I'm the attorney of record for the

 9   third party defendants in this matter who are the movants in

10   this motion.     I was licensed by the Supreme Court of Texas to

11   practice law in the State of Texas in November of 2005 after

12   completing my studies at the University of Texas School of

13   Law.   Since that time I've practiced civil litigation in

14   Travis County first with the law firm of McGinnis Lochridge       &

15   Kilgore where I was a partner, now at the law firm of Hopper

16   Mikeska which as this Court well knows is a law firm

17   specializing in estate planning, administration, probate and

18   trust litigation.

19                  In my practice I've become familiar with customary

20   rates for attorneys who practice in this area in Travis County

21   and I believe that my rate charged in this matter falls within

22   the range of reasonable fees.     My billable rate in this matter

23   was set at $300 an hour except for all time after January 1st

24   of this year has been charged at a rate of $325 per hour.

25                  Your Honor, I would offer into evidence as


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                                102


     1   Exhibit 5 a copy of my bills in this matter.

     2                (Movant's Exhibit No. 5

 3                   was offered into evidence.)

 4                   THE COURT:     Any objection?

 5                   MR. RUBACK:     No objection, Your Honor.

 6                   THE COURT:     No. 5 will be admitted.

 7                    (Movant's Exhibit No. 5

 8                   was admitted into evidence.)

 9                   MR. THOMPSON:     Okay.

10                   THE COURT:     You may continue.

11                   MR. THOMPSON:     Thank you, Judge.

12                   As is set out in Exhibit 5 there is descriptions

13       for all of the legal services that I have done in this case on

14       behalf of my clients which I believe were reasonable and

15       necessary in defending against the claims made by Mateo Cortez

16       in this matter that implicated my clients.        In particular

17       these fees were necessary in defending against Mateo Cortez'

18       claim regarding the postponement provision.        And because this

19       claim was inextricably intertwined with the other claim made

20       by Cortez against my clients I have not been able to segregate

21       the -- the fees between the two claims.        All of the time that

22       I spent on one was spent on the other.

23                   In addition, Mr. Boone is going to testify with

24       regard to his fees.   I have reviewed those fees as well.         He

25       will talk about those more in depth.     His rate is lower than


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                        103


 1   mine so I think it's also within the scope of reasonable fees

 2   in Travis County in this area.     In addition I'll point out

 3   that based on my review of Mr. Boone's fees he has segregated

 4   out all of the time that he has spent with regard to the Texas

 5   piece of the litigation versus the West Virginia piece.

 6                Your Honor, my fees in this matter through

 7   Thursday of last week, which is January the 26th, were

 8   $49,800.   I believe I've spent an additional ten hours in

 9   preparing for this hearing which would be an additional $3,250

10   for a total of $53,000 -- $53,050.

11                I will point out, because I do think it's

12   important, that I incurred $18,650.04 before September

13   the 15th, 2016 which was the date of Judge Waters' order out

14   of West Virginia.   Thereafter I have incurred $34,399.96.        So

15   if the Court puts some impetus on that West Virginia order

16   that would be the amount we ask for.        But we're actually

17   asking for the full $53,050 at this time.

18               THE COURT:     Any questions?

19               MR. RUBACK:     Yes.

20

21                             CROSS-EXAMINATION

22   BY MR. RUBACK:

23        Q.     Mr. Thompson, we keep hearing about Judge Waters'

24   order, the interlocutory in West Virginia.       Do you believe

25   that that order should be binding, that interlocutory order


                              MELISSA VOIGT, CSR
                                (512) 854-9258
                                                                           104


     1   from West Virginia should be binding in this Court?

 2                   MR. THOMPSON:     I'm going to object to the

 3       relevance of that question as to my fees.

 4                   THE COURT:     I'm going to overrule the objection.

 5                   MR. THOMPSON:     No, in fact I actually stated that

 6       in a pleading in this matter.     I stated that it is not binding

 7       on this Court.    But I do think it is important to have shown

 8       your clients' notice that that claim had already been decided

 9       by another court in what I believe to be a very well reasoned

10       opinion that cited not only the Texas and West Virginia law

11       but also Florida law.    Under three different states' laws

12       Judge Waters found that that claim had no merit and dismissed

13       it.

14             Q.    (By Mr. Ruback)     You mentioned the word "notice"

15       in your last sentence, sir.     When did you first provide my

16       clients' notice that you believed their conduct was

17       sanctionable?    Was it right after their first alleged

18       sanctionable conduct, their second, third, fourth,    fifth or

19       not until after the final judgment in this case?

20             A.    I believe that I've called this claim throughout

21       my pleadings "absurd."    That's a word that I've used

22       frequently in this case regarding your clients' allegations.

23       However, the first time I think that I stated that these were

24       sanctionable under CPRC 10 and Rule 13 was upon the filing of

25       my motion to modify judgment to include sanctions award which


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                        105


 1   was filed on January the 16th, 2017.

 2        Q.      Okay.   So am my correct in understanding you

 3   didn't bring the sanctionable nature of this conduct, alleged

 4   sanctionable nature of this conduct to their attention after

 5   any of these pleadings until there was a final judgment in

 6   this case?

 7        A.      I would -- I'm going to parse your statement.     I

 8   mean, a final judgment, I think it -- I will agree with you

 9   that it was not until after the summary judgment in this case.

10   Whether that judgment was final or not I think somewhat relies

11   on the outcome of this proceeding so --

12        Q.      Okay.   Fair enough.    What you're saying is -- if

13   I'm understanding you is you did not bring alleged

14   sanctionable conduct to the attention of this Court or to my

15   clients after any of these many documents were filed prior to

16   the summary judgment having been signed by this Court?

17        A.      I will agree with that statement.

18                MR. RUBACK:     Thank you, sir.

19                No more questions, Your Honor.

20                THE COURT:    Anything further?

21                Next witness?

22                MR. THOMPSON:     Call Aaron Boone, Your Honor.

23                THE COURT:    You can testify from there.

24                MR. BOONE:    I'll do it.

25                THE COURT:    Okay.


                               MELISSA VOIGT, CSR
                                 (512) 854-9258
                                                                          106


     1                               AARON BOONE,

 2       was called as a witness by the Movant having been first duly

 3       sworn, testified as follows:

 4

 5                                DIRECT EXAMINATION

 6       BY MR. BOONE:

 7                   Afternoon, Judge.     First off, thank you for the

 8       courtesy of allowing me to appear before this Court.     My name

 9       is Aaron Boone.   I'm with the law firm of Bowls Rice, LLP.

10       Our main office is in Charleston, West Virginia.     My office is

11       in Parkersburg, West Virginia.     I graduated William Mary

12       undergrad law school at West Virginia University.     Been

13       practicing since 2004.

14                   I was contacted by a partner in my office who is

15       an estate attorney, and he had been contacted by an estate

16       lawyer in Florida for Connie Barry.     Connie Barry is one of

17       the heirs at law that has been -- that had been identified in

18       the complaint filed by the trustee in West Virginia.

19                   My office was hired to defend Connie Barry's

20       interests in West Virginia.     In doing so it became apparent

21       that we needed to reach out to counsel in west -- in Texas,

22       Austin, Texas in order to address the claims that Mateo Cortez

23       had raised, including claims that he should have jurisdiction

24       over the heirs at law, etcetera.

25                   So my time has been spent not only defending the


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                           107


     1   efforts in West Virginia, the efforts of Mateo to convince the

 2       West Virginia Court that he's entitled, but it's also been to

 3       assist counsel here in Texas with defending the needs of the

 4       heirs at law.

 5                      Connie Barry is my only client but her interests

 6       are aligned with the other heirs at law, therefore the work

 7       I've done has been I think beneficial to all of them.     I'm the

 8       one that facilitated the meetings, the agreements and just

 9       kind of helped keep the wheels greased, you could say.

10                      In preparation of today's motion for sanctions I

11       have gone through all of my bills.     I have -- I have pulled

12       out any entry that was clearly related to West Virginia.

13       Okay?     To the extent there was an entry that was me talking

14       about the West Virginia status and the Texas status I would

15       just half that time, okay?

16                      And so what I have for the Court's review are two

17       statements.     The first -- the first statement is for activity

18       beginning at the inception of my assistance which was on or

19       about December 23rd, 2015, close to the time when that

20       West Virginia action was filed, through January 27th of 2017.

21       Those fees totaled $45,706.99.    As counsel mentioned my rate

22       is 275.    I believe that is reasonable for my services knowing

23       West Virginia but also to the extent they've been helpful here

24       in this Court as well.

25                      I have also prepared a statement for essentially


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                        108


 1   the time that we spent working this case in Texas, even after

 2   Judge Waters entered very detailed findings of fact explaining

 3   why Mateo should not be entitled to take under the trust.

 4   Certainly at that point there was a very well reasoned

 5   decision explaining why Mateo really should stop his claims.

 6   And so I prepared a statement showing my fees from that moment

 7   to January 27th, 2017 and that amount is $33,915.74.

 8                 I had estimated my time since Friday through today

 9   including the travel.       And that estimate, Judge, is $8,494.34.

10   I'll mark that as Exhibit 8.

11                 May I approach, Judge?

12                 THE COURT:     Y0u may, sir.

13                 MR. BOONE:     Judge, Mr. Thompson did a tally for

14   you so I'll do the same.       If this Court is inclined to

15   award -- award all the time from inception including the

16   estimated time for this motion for sanctions, that comes up to

17   $54,201.33.    Should the Court look instead to the time spent

18   after the motion for summary judgment was vindicated in

19   West Virginia that amount is $42,410.08.

20                 Judge, at this time unless there is a question

21   about those exhibits I'd move for those admissions.

22                 (Movant's Exhibit Nos. 6, 7 and 8

23                 were offered into evidence.)

24                 THE COURT:    Any objection to 6, 7 and 8?

25                 MR. ROBACK:    No objections, Your Honor.


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                           109


     1               THE COURT:     6,   7 and 8 are admitted.

 2                    (Movant's Exhibit Nos. 6, 7 and 8

 3                   were admitted into evidence.)

 4                   THE COURT:     And the last number you read out was

 5       42,000 or 43,000 -- that is a combination of 7 and 8?

 6                   MR. BOONE:     Yes, sir.

 7                   THE COURT:     Thank you.

 8                   Anything further?

 9                   MR. BOONE:     No, thank you, Judge.

10                   THE COURT:     Your witness.

11

12                                CROSS-EXAMINATION

13       BY MR. RUBACK:

14            Q.     Mr. Boone, when did you first advise my clients

15       that you believed their conduct was sanctionable?

16            A.     I think when we had a hearing -- I think it was

17       back in February or March there was a room full of heirs at

18       law in West Virginia, and there was Judge Waters, there was

19       myself, there was several other attorneys.      And I -- I believe

20       the discussion about the claims raised by Mateo Cortez, the

21       discussion how they were without any merit at all should have

22       given notice to the Brotherton Law Firm that these claims

23       should not have been continued.

24            Q.     So you did tell them you believed their claims had

25       no merit, but did you tell them you believed that they were


                                  MELISSA VOIGT, CSR
                                    (512) 854-9258
                                                                        110


 1   sanctionable or violated Rule 13 or violated Chapter 10?

 2          A.     No, sir.

 3            Q.   And did you make clear to them that your arguments

 4   in the West Virginia courtroom applied equally to all their

 5   filings in this Texas case?

 6          A.     I'm sorry.    Repeat that?

 7          Q.     You indicated that in a West Virginia courtroom

 8   you told them that their arguments that they'd been making

 9   when you were in the West Virginia courtroom were meritless.

10   Did you make very clear to them you felt the same way about

11   the arguments they were making in their filings in this Texas

12   Court?

13          A.     Not specifically.

14                 MR. RUBACK:     Thank you.   No further questions,

15   sir.

16                 THE COURT:    Do you rest?

17                 MR. BOONE:    We rest.

18                 MR. THOMPSON:     We rest, Your Honor.

19                 THE COURT:    Anything further, Counselor?

20                 MR. RUBACK:     No, Your Honor.

21                 THE COURT:    Do you rest?

22                 MR. ROBACK:     No, Your Honor.

23                 THE COURT:    Okay.   The Court is going to take this

24   matter under advisement but I am denying the motion for

25   rehearing my previous ruling.       And that is being signed today.


                                MELISSA VOIGT, CSR
                                  (512) 854-9258
                                                                    111



 1   I'll take this matter and I'm going look at these cases and I

 2   want to consider the matter and I'll have an answer in short

 3   order.   Okay?   Thank you all very much.

 4                (Hearing concluded.)

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                             MELISSA VOIGT, CSR
                               (512) 854-9258
                                                                        112


 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$ _ _ _ _ _ _ _ _ __

16   and was paid by _ _ _ _ _ _ _ _ _ _ _ __

17                WITNESS MY OFFICIAL HAND this the               day

18   of - - - - - - - ' 2017.

19

20

21                               MELISSA VOIGT, CSR #4886
                                 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:  12/18


                            MELISSA VOIGT, CSR
                              (512) 854-9258
                                     No. C-1-PB-16-002348

MATEO CORTEZ, AS REPRESENTATIVE§                            IN THE PROBATE COURT NO. 1
OF mE 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                     §                         TRAVISCOUNTY,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 IO in signing the Original Petition in Intervention, the First Amended

                                                I
                                                              EXHIBIT
                                                                  G
                                       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
                                     No. C-1-PB-16-002348


the frivolous claims advanced by William J. Brotherton and the Brotherton Law Finn; 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
                                 CAUSE NO. C-1-PB-16-002348

MATEO CORTEZ, AS REPRESENTATIVE§                              IN THE PROBATE COURT NO. 1
OF fflE E!STATE OF DEBORAH CORTEZ§
     Plaintiff                                    §
                                                  §
v.                                                §           OF
                                                  §
SANDRA FLESHER BROWN,                             §
CHARLOTTE FLESHER ASH,                            §
CHARLENE FLESHER JOHSTON,                         §
CONNIE BARRY, RANDALL WAYNE                       §
                                                                                                       ;O
DAVIS, VIRGINIA VILLERS, CHARLES                  §                                                    tn
                                                                                               ~
ROBERTS, LISA A. SMITH, PATRICIA
CHAPMAN, BETTY J. MARKS WEBB,
                                                  §
                                                  §                                             Sf:    s
                                                                                                       ~
JAMES BERL MARKS, LINDA MURRAY,
THOMAS WAYNE MARKS, DONALD
LEMAN WHITED, MICHAEL RAY
                                                  §
                                                  §
                                                  §
                                                                                                -
                                                                                                c::>



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.id<l 1M I.I.SJ
                5 Address (number. street. tmd apt. or suite no.)
       "'·g                                                                                                                 Requester's name end cO:dress (oplionat)
        C.            P.O. Box 1186
       "'•      6 City, state, end ZIP c:ado
                      Charleston, West Virginia
       t'll                                                                 25325-1386
                7 Ust ac:counl numbor{s) here {opuonel)

    .                    Taxpayer Identification Number (TIN)
 Enler your TIN In the app_roprlate box. The TIN provided must match the name given on line 1 to avoid                             I Social security number                                               I
 backup withholding. For 1ndlvlduals, this Is generally your social securlly number {$$NJ. However, for a
 resident alien, sole proprietor, or disregarded en11ty, see 1he Part I Instructions on page 3. For other
 enlilles, II ls your employer ldentlffcatlcn number (EtN). If you do not have a number, see How to get a
 TIN on page 3.
                                                                                                                                   DJJ-rn-mJJ
                                                                                                                                   or
 Note. If the account is in more than one name. sea the Instructions for line 1 and the chart on page 4 for
 guidelines on whose number to enter.
                                                                                                                                     55             0394
                         Certification
 Under penalties of perjury, I certify that:
 1. The number shown on this form Is my correct taxpayer Jdenllffcation number (or I am waiting for a number to be Issued to me); and
 2, I am nol subject lo backup wllhholdlng because: (a) I am exempt from backup wlthhold!ng, or {b) I have not been nollfied by the Internal Revenue
    Service {IRS) that I am subjecl to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has nollfled me that I am
    no longer subject to backup wilhholdlng; 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 (If any) Indicating Iha! I am exempt from FATCA reporting Is correct.
Certlflcatlon Instructions. You musl cross out Item 2 above ff you have been nolif[ed by lhe IRS thal you are currently subject to beckup wllhholdlng
because you have failed to report all ln1eresl and dividends on your tax return, For real estate transactions, Item 2 does not apply. For mortgage
lnleresl paid, acquislllon or abandonment of secured property, cancellatlon of debt, contributions to an individual retirement arrangement (IRA), and
generally, paymenls other than interest and dividends, you are not required to sign the certification, bu! you must provide your correct TIN. See the
Instructions on page 3.
Sign                Signature of                                                                                                     1/3/2017
Here                u.s. person •                                                                                     Datet,-

General Instructions                                                                             • Form 1098 (home 111cr1gaga lntoro:il), 1098-E (student loan Interest), 1098·T
                                                                                                 (luitlon)
Secllon rolcrances aro to the lnlernal Revenue Code unless otherwise no1ed.                      • Form 1099-0 (canceled dubij
Future developmonta. ln!ormatlan abaul dave!apmenl11 affecl!ng Form W-9 {such                    • Form 1099-A (acqul~ltlon or abanelommmt ol secured property)
B9 leglslnllan ellllCtad 11fter wo roloe,e Ill Is al www.irs.gov/fwS.
                                                                                                   Use Form w.g only II you ore a U.S. person (inclut!lng a ros!denl allen), 10
Purpose of Form                                                                                  provide YOLlr COIT&ct TIN,
 An lndivfdual or entity (Form W-9 roquesler) who ls required to file an Information               /(you da not re tum Form W•9 to the roquoster with a TIN, yau might be subject
 return wllh Jhe IRS must obtain your correct lexpuyer !denllilcallon number (TtN)               lo backup wlfhhofding. Stie Whar is backup wllhholding? on pago 2.
which may bo your social aocurity number jSSN), !ndivldual taxpayer ldenUlfcatlan                  By signing the lilled•out fonn, yoLJ:
number {ITIN), adoplion ta>1p11yor 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,

                                              ~- <!.             ;3o~
                                                       Aaron C. Boone

ACB/ljp
Enclosures
                                 LfND,4 ~ Y, i
                                as Successor Trustee o
                               flJJd Phy/Jis D. Short](
                               Dated ,\prjJ 30, 1991,

                                             Piai11titr,




                                         Defe11dants.




                                      The Undersil?lled,


               COJVNJIE Lou ]Q;l]'lf B4RRy,.




             SVppOlf[' Op
           S4Nc-r,0Ns
          States lvJaiJ Pas•~-
                       '
                                      ~-of=-.------===-
                                  DfEFTEJVD,tJVT
                                              . . ----· ..,
                           «1.ge Prepaid, addressecf
                                                           --~-------=============·---·--·
                                                                               ·----~-   .
        Robert S F]LJb
       417 G
                  &
       Fluharty 1: arty, Jr., EsqUire
                      DWJ:isend
             rand Park D · s .
      Parkersburg, Wv ;;; UJte lOJ
     J. Nicholas B,...,~   D
                                 05
                                 •
    Barth & .,,_ 0 - "', ,:,squire
             ' " 11lpson
   202 Berkley    Street
   Charleston, Wv
                      26321
 Lesfie L lvJ,,~e ,, .
p         · ...,, , .esquire
  Ost Office Box: 279
Elizabeth, Wv
                 26143
               IN THE CIRCUJT 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 27th day of July 2017, he served the foregoing and hereto annexed DEFENDANT

CONNIE LOU KEITH BARRY'S MOTION FOR SANCTIONS and MEMORANDUM IN

SUPPORT OF DEFENDANT CONNIE LOU KEITH BARRY'S MOTION FOR

SANCTIONS upon counsel of record and pro se parties by depositing the same in the United

States Mail, postage prepaid, addressed to:


Robert S. Fluharty, Jr., Esquire
Fluharty & Townsend
417 Grand Park Drive, Suite IO I
Parkersburg, WV 26105

J. Nicholas Barth, Esquire
Barth & Thompson
202 Berkley Street
Charleston, WV 26321

Leslie L. Maze, Esquire
Post Office Box 279
Elizabeth, WV 26143
 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

William J. Brotherton, Esquire
Shawn M. 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
Post Office 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

Charles Bruce Roberts, Jr.
487 Wilson Fork
Elizabeth, WV 26143

Lisa Ann Rader Smith
Post Office Box 717
Elizabeth, WV 26143



                                       2
 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
I 64 Joe Shore Drive
Ravenswood, WV 26164




                                  Aaron C. Boone




                              3
9105878.1
               IN THE CIRCUIT COURT OF WIRT COlJNTY, 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 SETTING SHOW CAUSE HEARING ON ISSUE OF SANCTIONS

               ON A PREVIOUS DAY came Defendant Connie Lou Keith Barry ("Mrs.

Barry"), by counsel, upon Defendant Connie Lou Keith Berry's Motion for Sanctions 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).

               The Court has reviewed Mrs. Barry's Motion and FINDS that the Motion is in

proper form and presents a genuine issue as to whether Mateo Cortez, individually and in his

capacity as the Personal Representative of the Estate of Deborah Cortez (collectively, "Cortez"),

or his counsel, should be sanctioned for prosecuting frivolous claims for improper, abusive, or

harassing purposes.

              Accordingly, the Court ORDERS Mateo Cortez; and his counsel, attorneys James

W. Marshall, III, H.F. Salsbery, Michael W. Taylor, William J. Brotherton (pro hac vice), and
,_




      Shawn M. Brotherton (pro hac vice) to appear and show good cause as to why sanctions should

      not issue and to be heard on the issue of appropriate sanctions to be imposed.

                     The Court FURTHER ORDERS that this matter be set down for hearing on the

      _     day of _______ 201_, at the hour of _ _ _.m. at the Wood County Judicial

      Building, #2 Government Square, Parkersburg, West Virgirria to take testimony and hear

      argument upon the issues identified in Mrs. Barry's Motion, following which the Court shall rule

      by separate Order.

                    The Clerk is directed to enter this Order as of the date set forth below and send

     attested copies to counsel of record.

                    ENTER this __ day of _ _ _ _ _ _ _ 2017.




                                                          Robert A. Waters, Judge


     Prepared and submitted by:



     .__A...e.&o~
     Aaron C. Boone (9479)
     Counsel for Defendant Conrrie Lou Keith Barry




                                                     2
     9105880.1
APPENDIX H
                  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 DEFENDANT MATEO CORTEZ'S
                              MOTION TO ALTER OR AMEND

                  On June 27, 2017, this Court conducted a hearing on Mateo Coretz's Motion to

  Alter or Amend (the "Motion to Alter"). After considering the Motion to Alter, the response of

  Defendant Connie Barry, the response of the Trustee, the arguments of counsel, and the record,

  this Court hereby DENIES the Motion to Alter for the reasons stated on the record and more fully

  below.


                                         Procedural Posture

                  1.      On April 11, 2016, Defendant Connie Lou Keith Barry ("Defendant

  Barry"), by her counsel, filed a Motion for Partial Summary Judgment ("Motion for Partial

  Summary Judgment").


                  2.     On September 15, 2016, this Court entered its Order Granting Motion.for

  Partial Summary .Judgment ("Order"), concluding that Defendant Mateo Cortez ("Defendant

  Cortez" or "Mateo Cortez") is not a legal beneficiary of the "William D. Short and Phyllis D. Short

  Revocable Living Family Trust Dated April 30, 1991," as amended and restated by the "Second
   FlLED
Circuit Court
Date   f~/9·/ 1
   CLERK   C;r
Amendment and Restatement of The William D. Short and Phyllis D. Short Revocable Living

Trust" dated January 5, 2000 (collectively, the "Trust"), and, as a matter of law, is not entitled to

any portion of said Trust and is not entitled to share in the distribution of any of the Trust assets.


                3.     On September 29, 2016, Mateo Cortez filed his Motion to Alter, asking the

court to reconsider its decision to enter judgment against Mateo Cortez.


               4.      On October 19, 2016, Defendant Barry filed her Notice of Hearing, setting

the Motion to .Alter for a hearing before this Court on November 3, 2016.


               5.      On October 21, 2016, Mateo Cortez filed his Notice of Removal, removing

this case to the United States District Court for the Southern District of West Virginia ("Federal

Court").


               6.      On April 10, 2017, the Federal Court entered its order remanding this case

to the Circuit Court of Wirt County, West Virginia.


               7.      On April 27, 2017, Defendant Barry filed her Notice of Hearing, setting the

Motion to Alter for a hearing before this Court on June 27, 2017.


               8.      On June 22, 2017, Trustee Linda Murray filed her Response in opposition

to Mateo Cortez's Motion to Alter.


               9.      On June 27, 2017, this Court convened to consider arguments relating to the

Motion to Alter.




                                                  2
                                   Findings of Fact & Conclusions of Law

                    10.     "Under Rule 59(e), the reconsideration of a judgment after its entry is an

 extraordinary remedy which should be used sparingly." Mey v. Pep Boys-Manny, Moe & Jack,

 228 W.Va. 48, 717 S.E.2d 235 (2011).


                   11.      "[B]ecause of the narrow purposes for which they are intended, Rule 59(e)

 motions typically are denied." Woodrum v. Thomas Mem. Hosp. Found., 186 F.R.D. 350, 351

 (S.D.W.Va. 1999) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice &

 Procedure§ 2810.1 (2d ed. 1995)). 1


                   12.      "[M]ere disagreement does not support a Rule 59(e) motion."                        Doe v.

Kanawha County Bd. of Educ., No. 05-C-355, 2008 WL 5520095 (W.Va. Cir. Ct. Mar. 3, 2008).

"A Rule 59( e) motion is not intended to allow for reargument of the very issues that the court has

previously decided ... nor may they be used to argue a case under a novel legal theory that the

party had the ability to address in the first instance." East Sussex Children Services v. Morris, No.

3:12-CV-141, 2013 WL 704660, at *3 (N.D.W.Va. Feb. 27, 2013).


                   13.      "A motion under Rule 59(e) of the West Virginia Rules o,/Civil Procedure

should be granted where: (1) there is an intervening change in controlling law; (2) new evidence

not previously available comes to light; (3) it becomes necessary to remedy a clear error of law or




         1 "Because the West Virginia Rules of Civil Procedure arc practically identical to the Federal Rules, we give

substantial weight to federal cases ... in determining the meaning and scope of our rules." Painter v. Peavy, 192
W.Va. 189, 192 n. 6,451 S.E.2d 755,758 n. 6 (1994) (citations omitted). (J,' Mey v. Pep Boys-Manny, Moe &Jack,
228 W.Va. 48, 57, 717 S.E.2d 235,244 (2011) (citing federal cases as to the meaning and scope of Rule 59(e), and
observing in footnote JO that the only difference between the West Virginia and federal rule is the time period to file
a motion).


                                                          3
,,



     (4) to prevent obvious injustice." Syl. Point 2. Mey v. Pep Boys-Manny, Moe & Jack, 228 W. Va.

     48, 50, 717 S.E.2d 235,237 (2011).


                                    First Prong under Rule 59(e)
                         Mateo Cortez Identifies No Intervening Change in Law

                   14.    As it relates to the first prong under Rule 59(e), "intervening change in

 controlling law", Defendant Cortez identifies no intervening change in controlling law in either

 his Motion to Alter filed on September 29, 2016, or his oral arguments presented on June 27, 2017.

 As such, this Court CONCLUDES that it cannot alter or modify the subject Order based upon any

 alleged intervening change in law.


                                   Second Prong under Rule 59(e)
                               Mateo Cortez Identifies No New Evidence

                   15.    As it relates to the second prong under Rule 59(e), "new evidence",

Defendant Cortez identifies no new evidence in either his Motion to Alter or his oral arguments;

as such, this Court CONCLUDES that it cannot alter or modify the subject Order based upon this

provision under Rule 59(e).


                                    Third Prong under Rule 59(e)
           Mateo Cortez Fails to Demonstrate this Court Committed Any Clear Error of Law

                  16.    As it relates to the third prong under Rule 59(e), "clear error oflaw", Mateo

Cortez proffers several arguments to suggest that this Court committed clear error. First, Mateo

Cortez argues that this Court improperly refused to dismiss and/or abstain from adjudicating the

Complaint. Second, Mateo Cortez argues this Court incorrectly concluded that Mateo Cortez

and/or the Estate of Deborah Cortez is not a beneficiary under the Trust.




                                                  4
              17.     As it relates to the first alleged "clear error", namely refusal to dismiss

and/or abstain, this Court CONCLUDES that this argument fails for several reasons:


                      a.      First, the issue of whether this Court must abstain and/or defer to

              Texas has been fully vetted by both this Court and the Supreme Court of Appeals

              of West Virginia. Nothing presented by Mateo Cortez has persuaded this Court to

              veer from its earlier determination (and/or from the Supreme Court of Appeals of

              West Virginia's ruling), that the Circuit Court of Wirt County is permitted to

              address the issues presented in the Complaint, including, but not limited to, the

              critical issue of who does and does not qualify as a beneficiary under the Trust.


                      b.      Second, in further support of Mateo Cortez's argument that this

              Court has committed clear error in refusing to defer to Texas, Mateo Cortez argues

              that circumstances have changed, ameliorating in favor of Texas now serving as the

              sole arbiter.


                              1.    Specifically, Mateo Cortez argues that, when this Court

                      decided on March 16, 2016, to retain sole jurisdiction over this Complaint,

                      this Court did so because Texas did not have jurisdiction over the numerous

                      individuals identified in the Complaint. Mateo Cortez further argues that,

                      subsequent to this Court's March 16, 2016, Order denying Mateo's Motion

                      to Dismiss per Rule 12(b), and subsequent to this Court's September 15,

                      2016 Order granting Connie Barry's Motion for Partial Summary Judgment,

                      the Probate Court of Travis County, Texas, acquired jurisdiction over the

                      heirs-at-law; as such, Mateo Cortez reasons, this Court should rescind its



                                               5
prior order granting summary judgment in favor of Connie Barry, dismiss

and/or stay this action, and let the Probate Court of Travis County, Texas,

handle this case.


         11.    However, this Court notes that, although the Probate Court

of Travis County, Texas, did, for a period of time, obtain jurisdiction over

many of the individuals identified in the Complaint, the Probate Court's

plenary power in that action has now expired, meaning it no longer has

jurisdiction over said individuals.


        111.   Regardless, the decision of this Court to retain jurisdiction

was never solely predicated on whether the Probate County Court of Travis

County, Texas, had jurisdiction over all the individuals identified the

Complaint. Rather, this Court retained jurisdiction due to multiple factors

that weighed in favor of retaining jurisdiction and that continue to weigh in

favor of maintaining jurisdiction; those factors include, but are not limited

to:


               a)      West Virginia has jurisdiction over the real property

        interests contained in the Trust.


               b)      While it might be less convenient for Defendant

        Cortez to proceed in West Virginia, it does not work a substantial

        injustice to him to require him to adjudicate the distribution of the

        Trust Assets where the majority of the potential beneficiaries reside




                          6
                 and where the Trust is actually administered, as required by the

                 Trust instruments themselves.


                        c)      The fact that the Trustee filed a tort action in Texas

                 to stop misappropriation of the Trust Assets does not mean that the

                 Trustee specifically availed herself of a Texas forum for any aspect

                 of the Trust's administration.


                        d)      Plaintiff Linda Murray is a resident of West Virginia,

                 and administers the Trust from West Virginia. The situs of the

                 Trust is located in West Virginia.


                       e)      The fact that the Estates of William and Phyllis Short

                 were probated in Texas, or that the Estate of Deborah Cortez is

                located in Texas, is entirely irrelevant because the Trust is not part

                of any of those Estates.


        c.     Finally, although not dispositive, another reason to support this

Court's conclusion that no "clear error" has been made with respect to its decision

to retain jurisdiction, this Court recognizes that its distinguished peer in Texas, the

Hon. Guy Herman, Judge, chose not to preclude, interrupt, or even object to West

Virginia handling this case. At a December 18, 2015, hearing in the Probate Court

of Travis County, Texas, which occurred over a month after the Trustee initiated

this action on November 20, 2015, the following verbal exchange occurred between

Judge Herman and Counsel:




                                  7
               THE COURT: I'm not going to prohibit them from proceeding, I'm
               not going order (sic) them to dismiss in West Virginia. You all can
               go to West Virginia and argue.

               MR. BROTHERTON: The problem is of course, Your Honor, is
               our guy has limited funds and -

               THE COURT: But he's got good lawyers, so - who are looking at
               an opportunity if you're right of getting five million dollars.

               MR. COHEN: Yeah.

               THE COURT: I'm sure that you can ---

               MR. COHEN: Should have signed a contingent fee.

               THE COURT: --- make your way to West Virginia.

(Exhibit C to Defendant's Response, Transcript of hearing of December 17, 2015, the Honorable
Guy Herman, Judge, Travis County Probate Court, Travis County, Texas, Trial Court Cause No.
C-1-PB-14-001564.)

               18.    As it relates to the second alleged "clear error", namely that this Court

incorrectly concluded that neither Mateo Cortez nor the Estate of Deborah Cortez are beneficiaries

of the Trust, this Court CONCLUDES that this argument fails for several reasons:


                      a.      At the outset, it is important to note that Mateo Cortez has proffered

               multiple theories (at different stages in this case) in support of his singular claim

              that he, as the sole heir to the Estate of his deceased-spouse Deborah Cortez, is the

              sole beneficiary of the assets of the Trust.


                               I.     First Theory:   In his May 9, 2016, Response to Connie

                      Barry's Motion for Summary Judgment, Mateo Cortez argues that the

                      "Postponement of Possession," "Termination" paragraph under Article

                      VIII, Section D, Subsection 2 supports his claim.




                                                8
                               ll.    Second Theory:      In his September 29, 2016, Motion to

                      Amend or Alter, he argues that the "Alternate Distribution" paragraph under

                      Article VIII, Section C supports his claim.


                               m.     Third Theory:     During the June 27, 2017, hearing, he

                      indicated he intends to argue (before the Probate Court of Travis County,

                      Texas) that the "Specific Distribution," "Cash Distribution to Deborah"

                      paragraph under Article VIII, Section A, Subsection 2 supports his claim.


                      b.      Furthermore, it is important to note that no one disputes that the

              subject Trust is the legitimate, applicable, and controlling document expressing the

              settlors' intent with respect to the Trust Assets. Additionally, there is no dispute

              that, at all times pertinent, the Trust has been known to Mateo Cortez and his

              counsel. Finally, there is no dispute that the Trust is unambiguous:


              Defendant Barry is correct in that Mr. Cortez is not an heir at law
              and correct in that the Trust expresses the true intent of the parties
              and unambiguous language. Defendant Barry is incorrect, however,
              in deducing what the meaning of the plain and unambiguous
              language is.

(Defendant Mateo Cortez's Response to Defendant Connie Lou Keith Barry's Motion for Partial
Summary Judgment, p. 7.)

              As such, this Court sees no reason why Mateo Cortez could not have proffered any

              and all theories to support his singular claim prior to entry of this Court's decision

              to grant partial summary judgment in favor of Connie Barry and against Mateo

              Cortez on September 15~ 2016.




                                                9
       a.       Notwithstanding, this Court CONCLUDES that no theory expressed

by Mateo Cortez could support his singular claim that he, as the sole heir to the

Estate of his deceased-spouse Deborah Cortez, is the sole beneficiary of the assets

of the Trust:


                1.     As it relates to Mateo Cortez's first theory, this Court has

       already explained why the "Postponement of Possession," "Termination"

       provision of the Trust does not support Mateo Cortez's claim. (Order

       Granting Partial Summary Judgment, p. 8). In his Motion to Amend or

       Alter, Mateo Cortez proffers no argument as to why this Court's decision

       regarding the Postponement Provision qualifies as clear error.


                11.   As it relates to Mateo Cortez's second theory, this Court

       adopts the rationale espoused in the response of Connie Barry, namely that

       the determination of who qualifies as an "heir-at-law", within the "Alternate

       Distribution" paragraph under Article VIII, Section C, inherently includes

       only those then-living at the time of the Deborah Cortez's death.

       Accordingly, neither Mateo Cortez, nor the Estate of Deborah Cortez

       qualify, as an heir-at-law within the "Alternate Distribution" paragraph

       under Article VIII, Section C. To conclude otherwise would render the

       Trust nonsensical and would run contrary to the clear intent of the settlors.

       Moreover, Mateo Cortez admitted in his response to the motion for

       summary judgment that he was not an heir at law of either settlor.




                                10
                                      111.    Additionally, although not dispositive, this Court recognizes

                            that not only has it concluded that neither Mateo Cortez nor the Estate of

                            Deborah Cortez are beneficiaries under the trust, but the Texas Court has

                            also concluded that neither Cortez nor the Estate of Deborah Cortez are

                            beneficiaries:


                   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 Cortez, in his individual capacity or in his capacity as
                   personal representative ofthe Estate ofDeborah 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.

(Exhibit B, Order Granting Third Party Defendants' Traditional and No Evidence Motion for
Summary Judgment, Civil Action No. C-1-OB-14-1564 (Tex. Probate Ct. Dec. 19, 2016)
(emphasis added). 2

                                     1v.     Finally, as it relates to Mateo Cortez's third theory, this

                           Court finds that regardless of whatever new and/or novel theory Mateo

                           Cortez would seek to proffer, this Court has already determined, and today

                           reaffirms, its conclusion that the Trust is unambiguous and clearly expresses

                           the intent of the settlers that, upon the death of Deborah Short, the Trustee

                           should distribute 1/2 of the remaining Trust Assets to the then-living heirs

                           of William D. Short and 1/2 to then-living heirs of Phyllis D. Short.




         2 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.


                                                         11
                                Fourth Prong under Rule 59(e)
                             Mateo Cortez fails to demonstrate that
       "Manifest Injustice" would occur if this Court denies his Motion to Amend or Alter

                19.    Lastly, in his motion, Mateo Cortez suggests that manifest injustice would

occur in denying his Motion to Amend, in part, because the Estate of Deborah Cortez is not a party

to the lawsuit. Mateo Cortez failed to present this argument prior to judgment and therefore waived

it. See W.Va. R. Civ. P. 12(h) (defenses other than lack of subject matter jurisdiction are waived

unless raised prior to judgment). The Court also notes its prior rulings that the Estate of Deborah

Cortez has no interest in the Trust or the Trust assets, and therefore is neither necessary nor

indispensable to this action.


               20.     Moreover, this 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



                                                 12
                 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 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).


                21.     Accordingly, this Court CONCLUDES that manifest injustice would NOT

occur by denying the Motion to Amend because (as Mateo Cortez argues), the Estate of Deborah

Cortez is not a party to this action.


                                               Ruling

                For the reasons set forth above, and as stated more fully upon the record, this Court

DENIES the motion to amend or alter filed by Mateo 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.


                                                 13
                   This Court ORDERS the Clerk to forward certified copies of this Order to all

 counsel of record and pro se parties.


                                                              ENTER        Ir11~l / ~   2,-CI 1   7

                                                               /Jjj_[Jk
                                                              Robert A. Waters, Judge


 PREPARED BY:



.IJ ,C .(!:)ot;rvJ-
Aaron C. Boone (94 79)
Counsel for Defendant Connie Lou Keith Barry


APPROVED FOR ENTRY:



lZ S f k,1.. ko--A +-, '--'1 A C.. e,..-n-.   [per email authorization 7/l 7/17]
Robert S. Fluharty, Jr. (1220)
J. Nicholas Barth (255)
Counsel for Plaintiff



)__ L   II 6l :J::::   fo '1   --A C ~         [per email authorization 7/14/1 7]
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



~ JJa"'-+i-< b ':, J t 6
-u.-___;::=------·     .
                         ~ [per
                            . email. authonzat1on
                                           . . 7/15/17]
Joseph T. Santer (3252)
Guardian ad !item for unknown defendants




                                                        14
Shawn M. Brotherton, admitted pro hac vice
Michael W. Taylor (11715)
James W. Marshall, III (10677)
Counsel for Mateo Cortez




                                             15
9072845, I
APPENDIX I
                lN THE CIRCUIT COURT OF WJRT 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. l 5-C-28
                                                             JUDGE WATERS
LINDA LOU MURRAY, et al.,

                Defendants.


                              ORDER DENYING MOTION TO DISMISS

                On June 27, 2017, this Court conducted a hearing on Defendant Mateo Cortez's

Motion to Dismiss (the "Motion"). After considering the Motion, the response of defendant

Connie Barry, 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 filed Defendant Mateo Cortez's

Motion to Dismiss and Memorandum of Law in Support Thereof (the "Motion"), requesting that

the Court dismiss this action pursuant to Rule 12(6) of the West Virginia Rules of Civil Procedure.

Mateo Cortez argues that this action should be dismissed because lhere is a previously-filed action

pending in Texas on the same subject matter between the same parties, and as a result the Texas

court has exclusive jurisdiction.


                2.      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,

   FILED
Circuit Court
Date   Q-/tl-17
     CLERK   if_
2017, Defendant Connie Lou Keith Barry ("Barry"), liled u 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

               3.      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").


               4.     This Court recognizes that, prior to instituting this action in Wirt County,

West Virginia, the Trustee asserted a claim in Texas.


                      a.      On August 28, 2014, the Trustee filed an action against Mateo

              Cortez in the Probate Court of Travis County, Texas, alleging that Mateo Cortez

              conspired to misappropriate funds from the Trust.


                      b.      On June 30, 2015, Mateo Cortez filed a petition in intervention

              within the Trustee's misappropriation action in Texas, seeking a declaratory

              judgment that Deborah Cortez was entitled to all of the Trust assets during her life,

              and an order directing the Trustee to distribute the remaining Trust assets to the

              Estate of Deborah Cortez.




                                                2
                          c.     On November 16, 2015, the Trustee filed a motion for summary

                judgment in Texas, arguing that Mateo Cortez filed his petition in intervention

                solely to avoid liability on the Trustee's misappropriation claim.


                5.        On November 20, 2015, the Trustee filed this action in the Circuit Court of

 Wirt County, West Virginia, 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." The Trustee joined and served numerous defendants, including Mateo Cortez. 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 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."


               6.      On December 18, 2015, the Texas court held a hearing on a temporary

restraining order and request for injunctive relief filed by Mateo Cortez. As part of his request for

relief, Mateo Cortez sought an order from the Texas court enjoining the Trustee from proceeding

any further in West Virginia and requiring her to dismiss this action. The Texas court refused to

interfere with the Trustee's claims in this court: "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."


               7.      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.



                                                  3
                        a.      In his motion, Mateo Cortez stated that he was seeking to administer

                the Estate of Deborah Cortez in Texas, and stated that "Mr. Cotiez 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."


                       b.      As an exhibit to his motion, Mateo Cortez attached a copy of his

                pleading in Texas, which did not request that the court determine the proper

               beneficiaries of the Trust in the event his declaratory claim failed.


               8.      On March 16, 2016, this Court denied Mateo Cortez's motion to dismiss.

On June 14, 2016, the Supreme Court of Appeals of West Virginia refused Mateo Cortez's petition

for an extraordinary writ prohibiting this Court from enforcing its order.


               9.      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.


               10.     On December 19, 2016, the Texas court also granted summary judgment

against Mateo Cortez on his declaratory claims to 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 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



                                                 4
                    particular, the Court hereby dismisses 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. This judgment has no effect
                    on Mateo Cortez's breach of fiduciary duty against Linda Murray,
                    in her capacity as trustee of the Trust.

                    11.      On June 12, 2017, Mateo Cortez filed this Motion, and attached as exhibits

multiple filings from Texas.


                             a.       Mateo Cortez argues that the Texas filings attached to his Motion

                   demonstrate that the Trust is being actively administered in Texas and that the

                   claims pending before this Court are being litigated concurrently in Texas.


                             b.       With the exception of Mateo Cortez's intervention pleadings, all of

                   the attached filings from Texas relate to the administration of the Estates of William

                   D. Short and Phyllis D. Short, which are legally distinct from the Trust. The

                   remaining pleadings relate to Mateo Cortez's petition in intervention, which was

                   dismissed by the Texas court on December 19, 2016. 1


                            c.        None of the filings attached to Mateo Cortez's Motion seek relief

                   that is the same or similar to the relief sought in this action, to-wit: "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


          1
            Mateo Cortez also attached a pleading entitled Fifth Amended Petition in Intervention and Fourth Amended
Third Party Petition, which was filed in Texas on May 25, 2017. As with his original intervention pleading, Mateo
Cortez's fifth amended intervention pleading seeks a declaratory judgment that Deborah Cortez was entitled to all of
the Trust assets during her life, and an order directing the Trustee to distribute the remaining Trust assets to the Estate
of Deborah Cortez. Mateo Cortez's fifth amended intervention pleading does not request that the Texas court
determine the proper beneficiaries of the Trust in the event his amended declaratory claim fails.



                                                            5
                  determined by this Court to be proper and in conformity with the intent of the

                  settlors of the Trust." None of the other parties to the Texas action have requested

                  that the Texas court determine the proper beneficiaries of the Trust or the proper

                  distribution of the Trust assets. There is no claim of the Trustee pending in the

                 Texas court that is duplicative of the Trustee's claim in this action.


                                         Conclusions of Law

                 12.     "Every defense, in law or in fact, to a claim for relief in any pleading ...

shall be asserted in the responsive pleading thereto if one is required, except that the following

defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the

subject matter ... (6) failure to state a claim upon which relief can be granted .... A motion making

any of these defenses shall be made before pleading if a further pleading is permitted." W.Va. R.

Civ. P. 12(b).


                 13.    "A defense of failure to state a claim upon which relief can be granted ...

may 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." W.Va. R. Civ. P. 12(h)(2).


                 14.    "Whenever it appears by suggestion of the parties or otherwise that the court

lacks jurisdiction over the subject matter, the court shall dismiss the action." W.Va. R. Civ. P.

12(h)(3). "Lack of jurisdiction may be raised in any appropriate manner, and at any time during

the pendency of the suit or action." McKinleyv. Queen, 125 W.Va. 619, 25 S.E.2d 763, 766 (1943)

(internal citations omitted).


                 15.    "This Court has previously determined that when there is litigation on the

same subject between the same parties pending in another state, our courts should not consider the


                                                  6
 matter until the proceedings in the other state are resolved." Morris v. Estate of Morris, No. 15-

 1035, 2016 WL 6678988, at *5 (W.Va. Supreme Court, Nov. 14, 2016) (memorandum decision)

 (citing Berger v. Berger, 177 W.Va. 58,350 S.E.2d 685 (1986)). See also Berger, 177 W.Va. at

 60 (trial court erred by refusing to dismiss divorce action "where there was then pending a

proceeding on exactly the same subject between the same parties in North Carolina.").


                 16.     "[T]he principle applicable to both federal and state courts that the court

first assuming jurisdiction over property may maintain and exercise that jurisdiction to the

exclusion of the other, is not restricted to cases where property has been actually seized under

judicial process before a second suit is instituted, but applies as well where suits are brought to

marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature where, to give

effect to its jurisdiction, the court must control the property." Princess Lida of Thurn & Taxis v.

Thompson, 305 U.S. 456,466 (1939).


                 17.     The principle announced in Princess Lida of Thurn & Taxis does not apply

to suits "instituted in order to determine the validity of claims against the estate or claimants'

interests therein. Such proceedings are not in rem; they seek only to establish rights; judgments

therein do not deal with the property and other distribution; they adjudicate questions which

precede distribution." Commonwealth Trust Co. of Pittsburgh v. Bradford, 297 U.S. 613, 619

(1936). Cf Princess Lida of Thurn & Taxis, 305 U.S. at 466-67 (citing Bradford) (exclusive

jurisdiction principle has no application to a case seeking to determine "the right of any person to

participate in the res or as to his quantum of his interest in it.").


                18.     "Where the judgment sought is strictly in personam, both a state court and

a federal court having concurrent jurisdiction may proceed with the litigation, at least until



                                                    7
judgment is obtained in one court which may be set up as res adjudicala in the other." State ex

rel. Small v. Clawges, 231 W.Va. 301, 308, 745 S.E.2d 192, 199 (2013).


                 19.     Mateo Cortez filed this Motion to dismiss post-judgment. To the extent he

seeks to dismiss this case on any basis other than lack of subject matter jurisdiction, Mateo Cortez's

Motion is procedurally improper and therefore denied. See W.Va. R. Civ. P. 12(h) (defenses other

than lack of subject matter jurisdiction are waived unless raised prior to judgment). The Court

will therefore construe Mateo Cortez's Motion as challenging the Court's subject matter

jurisdiction.


                20.     The Court finds that the principles announced in Berger and Princess Lida

of Thurn & Taxis do not apply to this action and do not deprive this Court of subject matter

jurisdiction over the Trustee's claims.


                        a.      First, the Trustee's claims in this action are not identical to the

                claims filed in Texas. The Trustee filed this action seeking "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." In

                contrast, Mateo Cortez filed his intervention claims in Texas to obtain a declaration

                that Deborah Cortez was entitled to all of the Trust assets during her life, and an

                order directing the Trustee to distribute the remaining Trust assets to the Estate of

                Deborah Cortez. Mateo Cortez did not request that the Texas court determine the

                proper beneficiaries of the Trust in the event his declaratory claim failed.




                                                  8
                         b.      Second, Mateo Cortez's intervention claims in Texas are in

                 personam only, and do not affect this Court's jurisdiction. Mateo Cortez filed his

                 intervention claims in Texas to establish the Estate of Deborah Cortez's "right to

                 participate in the res or as to [its] quantum of [its] interest in it," which falls under

                 the rule set forth in Bradford and not the rule set forth in Princess Lida of Thurn &

                 Taxis. The Texas court appears to be in agreement with this Court's conclusion,

                 given its refusal to enjoin the Trustee from proceeding further with this action.

                 Accordingly, even if the claims before this Court were identical to the claims filed

                 in Texas, concurrent jurisdiction over those claims is proper until a judgment from

                 one court operates as resjudicata in the other.


                 21.     Additionally, even assuming that Mateo Cortez's intervention claims in

Texas did implicate Princess Lida of Thurn & Taxis, his claims have been dismissed in their

entirety by the Texas court. None of the other parties to the Texas proceedings have asked the

Texas court to determine 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 interfere with this Court's adjudication

of that issue.


                                                Ruling

                 For the reasons set forth above, and as stated more fully upon the record, this Court

DENIES the motion to dismiss filed by Mateo 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




                                                   9
  '     w




  Representative of the Estate of Deborah Cortez, and his attorneys. The Court's ruling in this Order

  docs 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.




                                                         Robert A. Waters, Judge

 PREPARED BY:
                                                                                   I hereby certify that the toreqoing
                                                                                    is a trJe and cormci copy oi t~e
                                                                                   or,;::la:      on fiie in my office
                                                                                          ATTEST Carol Fraa1e
                                                                                        /it
                                                                                     C Clerk-Wi:t Count,,. WV
 Aaron C. Boone (WVSB #94 79)
 Counsel for Defendant Connie Lou Keith Barry


APPROVED FOR ENTRY:



'\<. ~. F' (v..~/ ½       t>~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'<ft.        -f,1 A ·(1 · IS· [per email authorization 7/ 15/ 17]
Jo ·ph T. Santer (3252)
Guardian ad litem for unknown defendants




Shawn M. Brotherton, admitted pro hac vice
Michael W. Taylor (11715)
James W. Marshall, III (10677)
Counsel for Mateo Cortez and Estate of Deborah Cortez




                                                 14
9090664,1
APPENDIX K
                                                                                                                                                  ACCEPTED
                                                                                                                                               03-17-00365-cv
                                                                                                                                                    17540220
                                                                                                                                   THIRD COURT OF APPEALS
                                                                                                                                              AUSTIN, TEXAS
Appellate Docket Nwnber:   03-17-00365-CV                                                                                                 6/9/2017 4:35:21 PM
                                                                                                                                            JEFFREY D. KYLE
Appellate Case Style:   Mateo Cortez, as Representative of the Estate of Deborah Cortez                                                                CLERK

                        Vs.
                         Sandra Flesher Brown et al.
Companion Case No(s) :        C-1-PB-16-002348



Amended/corrected statement:                       DOCKETING STATEMENT (Civil)
                                              Appellate Court:
                                       (to be filed in the court of appeals upon perfection of appeal under TRAP 32)



D
X   Person*   D   Organization (choose one)                               D
                                                                          X       Lead Attorney
Organization:                                                             First Name:          Susan
First Name: Mateo                                                         Middle Name:         S.
Middle Name:                                                              Last Name:           Vance
Last Name: Cortez                                                         Suffix:
Suffix:                                                                   Law Finn Name:        Susan Vance Law, PLLC
Pro Se:   0                                                               Address 1:     201 West 5th Street
                                                                          Address 2:     Suite 1100
* As Representative of the Estate of Deborah Cortez                       City:     Austin
                                                                          State:      Texas                       Zip+4:   78701-0060
                                                                          Telephone:512-736-7295                       ext.
                                                                          Fax: 866-523-5449
                                                                          Email: susan@svancelaw.com
                                                                          SBN:     24036562


X
D   Persons   D Organization (choose one)                                 D
                                                                          X       Lead Attorney

                    Sandra Flesher Brown                                  First Name:          Amanda
First Name:         Charlotte Flesher Ash                                 Middle Name:         G.
Middle Name:        Charlene Flesher Johnston                             Last Name:           Taylor
                    Connie Lou Keith Barry
Last Name:                                                                Suffix:
                    Randall Wayne Davis
Suffix:             Virginia Villers                                      Law Finn Name:     Beck Redden, LLP
Prose:    0         Charles Roberts                                       Address 1:     515 Congress Avenue
                    Lisa A. Smith                                                        Suite 1900
                                                                          Address 2:
                    Patricia Chapman
                    Betty J. Marks Webb                                   City:     Austin
                    James Berl Marks                                      State:       Texas                      Zip+4:      78701-3526
                    Linda Murray                                          Telephone: 512-708-8100
                    Thomas Wayne Marks                                                                  ext.
                                                                          Fax: 512-708-1002
                    Donald Leman Whited
                                                                          Email: ataylor@beckredden.com
                                                                          SBN:      24045921
                                                                 Page 1 of 9
 Nature of Case (Subject matter or type ofcase):    Estate proceedings and administration
 Date order or judgment signed:     2/10/2017                    Type of judgment: Motion to Sever, Summary Judgment, and
                                                                                   Motion to Modify Judgment to Include
 Date notice of appeal filed in trial court: 1/9/2017; 3/13/2017; 5/25/2017
                                                                                   Award of Sanctions
If mailed to the trial court clerk, also give the date mailed:

                                                X No
Interlocutory appeal of appealable order: D Yes D
If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):


Accelerated appeal (See TRAP 28):                                                                                       X
                                                                                                                  D Yes 0No


                                                                                                                                                                                                                                                             ·.... ---· ... -·
Parental Termination or Child Protection? (See TRAP 28.4):                                                                                                           X
                                                                                                                                                                DYes 0No

Permissive? (See TRAP 28.3):                                                                                             X
                                                                                                                    0Yes CNo
If yo1, ploMo ,pccify                                            •-ry or other basis for such status:
;·;_: :r.·:-'{,.-·: ·: '.';, . ,;,. :-,~.,.';'_-:,_-):·/-·,·.·_:: -·:;-,_,._:·.<';j·,~>-··:·:'·::.'   · - · ~:_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
