                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


                                                                                FILED
Mateo Cortez and the Estate of Deborah Cortez,                                May 31, 2018
Defendant Below and Movant Below, Petitioners,                                  released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
vs.)    No. 17-0662 and 17-0942 (Wirt County No. 15-C-28)                        OF 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 Below, Respondent


and 


Connie Lou Keith Barry, Donald Leaman Whited, Michael Ray Whited, Sherry 

Lynn Whited Salsbury, Sheila Pettry, Tywanna Pettry, Amanda Pettry, Heirs of 

Teresa Annette Whited Pettry, Terry Lee Whited, Betty Jo Marks, Charlene Rae 

Flesher-Johnston, Charles Bruce Roberts, Charlotte Rae Flesher-Ash, James Berl 

Marks, Linda Lou Murray, Lisa Ann Rader Smith, Magen Elizabeth Whited, 

Patricia Ann Marks Chapman, Randall Wayne Davis, Sandra Kay Flesher Brown, 

Thomas Wayne Marks, Virginia Ann Roberts Villers, 

Defendants Below, Respondents.


                            MEMORANDUM DECISION

        This is a dispute regarding the William D. Short and Phyllis D. Short Revocable
Living Trust Dated April 30, 1991 (the Short Trust or the Trust). Linda Murray (Murray)1
is the Successor Trustee of the Short Trust. In 2015, Murray sought a declaration from the
Circuit Court of Wirt County as to the proportionate interests of certain contingent
beneficiaries to the Short Trust, including Mateo Cortez. While Murray named Cortez as




        1
         Murray is represented by J. Nicholas Barth, Esq. and Robert S. Fluharty, Jr., Esq.
Petitioner Mateo Cortez is represented by Ancil G. Ramey, Esq. and Stacey L. Richards-
Minigh, Esq. Respondent Connie Lou Keith Barry is represented by Aaron C. Boone, Esq.,
David A. DeJarnett, Esq., and J. Tyler Mayhew, Esq. Respondents Donald Leaman
Whited, Michael Ray Whited, Sherry Lynn Whited Salsbury, Sheila Pettry, Tywanna
Pettry, Amanda Pettry, and Heirs of Teresa Annette Whited Pettry are represented by Leslie
L. Maze, Esq. Joseph T. Santer, Esq., was guardian ad litem for any unknown and/or minor
beneficiaries, below.

                                                1

a party to her suit, she contends that he does not have a claim to the proceeds of the Short
Trust.

       Cortez believes differently. He argues that he is entitled to all of the assets of the
Short Trust, either in his individual capacity or as sole heir of the estate of his deceased
wife, Deborah Cortez (née Short) (Mrs. Cortez), who was a co-trustee of the Short Trust.
Two courts—one in Texas and the circuit court—have so far held that Cortez has no right
to share in the proceeds of the Short Trust (either individually or as heir to Mrs. Cortez’s
estate) under the plain language of the Short Trust. Nevertheless, Cortez persists in his
claim to the assets of the Short Trust, valued at approximately $5,000,000 plus oil and gas
interests.

        We find the circuit court did not commit the various errors asserted by Cortez on
appeal to this Court. Consequently, we affirm the circuit court’s Order Denying Motion to
Dismiss and Order Denying Motion to Intervene. We also affirm, in part, the Order
Granting Motion for Partial Summary Judgment (Partial Summary Judgment Order) and
Order Denying Defendant Mateo Cortez’s Motion to Alter or Amend (Alter or Amend
Order) insofar as those orders adjudge that Cortez does not have an interest in the Short
Trust. However, for the reasons discussed below in Section III.B., we reverse, in part, the
Partial Summary Judgment Order and Alter or Amend Order insofar as those orders dismiss
Cortez as a defendant in Murray’s declaratory judgment action. Further, we remand this
case to the Circuit Court of Wirt County with directions, as set forth in detail in Section
III.B.

      Because this case does not present a new or substantial question of law, and for the
reasons set forth herein, we find that the issuance of a memorandum decision is appropriate
pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

                          I.     Facts and Procedural History

       Mrs. Cortez died childless and intestate in Texas in December 2011. Cortez is her
surviving spouse and sole heir. Following Mrs. Cortez’s death, Cortez filed a small estate
affidavit in Texas probate court, affirming that Mrs. Cortez’s assets (not including
homestead or exemptions) did not exceed $50,000 in value. It is undisputed that Cortez
was aware of the Short Trust when he filed the small estate affidavit.

       Prior to her death, Mrs. Cortez was the co-trustee, together with Murray, of the Short
Trust. Mrs. Cortez’s parents, William Short (Mr. Short) and Phyllis Short (Mrs. Short),
established the Short Trust in 1991 with the primary concern of providing for Mrs. Cortez’s
“health, support, education, welfare and best interests” during her lifetime. The value of
the Short Trust is more than $5 million. It is composed of bank accounts and oil and gas
interests, all located in West Virginia. The Trust owns no assets in Texas.



                                                 2

       Mr. Short died in 2002, and Mrs. Short died in February 2011. Following Mrs.
Cortez’s death in December 2011, Mrs. Short’s relative, Murray, became the sole trustee
of the Short Trust. Murray resides in West Virginia.

        In August 2014, Murray filed suit on behalf of the Short Trust in probate court in
Travis County, Texas (the Texas Probate Court). On the Trust’s behalf, she alleged claims
of conspiracy, fraud, conversion, theft, negligence, and breach of fiduciary duty against
Cortez, the Short Trust’s investment advisor, and a Texas bank that had held some assets
of the Short Trust. Murray sought money damages on the Trust’s behalf, punitive damages,
and attorneys’ fees.

        In June 2015, Cortez filed an Original Petition in Intervention (Petition) as
representative of his deceased wife’s estate in Murray’s suit pending before the Texas
Probate Court. In his Petition, Cortez asked the Texas Probate Court to declare that the
Short Trust terminated on Mrs. Short’s death; that Mrs. Cortez was the Shorts’ sole heir at
law; and that, because Mrs. Cortez was deceased, that the Trustee of the Short Trust was
to distribute all remaining Trust funds to Mrs. Cortez’s estate. Cortez named only Murray,
in her capacity as Successor Trustee, as a defendant. His Petition did not name or otherwise
allude to any other potential beneficiaries of the Trust.

       In November 2015, Murray filed a declaratory judgment action under West Virginia
Code § 55-13-1 (2016) in the Circuit Court of Wirt County concerning distribution of the
assets of the Trust. She named twenty defendants, including Cortez. The vast majority of
the defendants named by Murray lived in West Virginia. Cortez was the sole defendant
who resided in Texas. The defendants, except Cortez, answered Murray’s complaint in
December 2015 and January 2016. None of the defendants, except Cortez, objected to the
distribution of the Short Trust as alleged by Murray in her complaint.

       Approximately one month after Murray filed the West Virginia declaratory
judgment action, the Texas Probate Court issued a restraining order temporarily prohibiting
her from distributing the assets of the Trust. The Texas Probate Court, however, did not
order Murray to dismiss her declaratory judgment action.

       In December 2015, Cortez moved to dismiss the West Virginia action on the ground
of forum non conveniens (West Virginia Code § 56-1-1A (2012)). The circuit court denied
the motion by order entered March 21, 2016. Cortez then sought a writ of prohibition from
this Court on the same grounds, which we refused the following June.

        In April 2016, Connie Lou Keith Barry (Barry), a defendant in Murray’s declaratory
judgment action, filed a motion for partial summary judgment to obtain a determination
that Cortez was not a legal beneficiary of the Short Trust. The circuit court granted Barry’s
motion by order entered September 15, 2016 and dismissed Cortez from the case. Eleven
days later, Murray filed a motion for summary judgment seeking a final order from the
circuit court naming the Shorts’ heirs and enumerating the proportional share of the Short
                                                 3

Trust to which each individual heir was entitled. On September 29, 2016, Cortez filed a
motion to alter or amend the circuit court’s Partial Summary Judgment Order. Less than
one month later, while that motion was still pending, Cortez removed the case to the
Southern District of West Virginia. In April 2017, the Southern District of West Virginia
remanded the case back to the circuit court due to Cortez’s untimely removal under 28
U.S.C. § 1446(b)(1).2

      While Murray’s declaratory judgment action was pending in federal court, the Texas
Probate Court dismissed Cortez’s Petition. In pertinent part, the Texas Probate Court’s
December 2016 judgment and dismissal order states:

                [T]he 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 . . . other than his claim for undistributed income
                from the Trust during the life of Deborah Cortez.

Cortez is currently appealing that decision to the Third Court of Appeals, Texas (Appeal
No. 03-17-00365). He submitted his reply brief in April 2018.

        Following remand of Murray’s declaratory judgment action to the circuit court,
Cortez moved to intervene on behalf of Mrs. Cortez’s estate and to dismiss Murray’s action
because she had not named Mrs. Cortez’s estate as a party. During a June 2017 hearing,
the circuit court denied Cortez’s pending motions (Motion to Intervene; Motion to Dismiss;
and Motion to Alter or Amend). Then, on June 30, 2017, the circuit court entered two
orders, entitled Findings of Fact and Conclusions of Law and Final Judgment Order,
memorializing its earlier rulings in June. In those orders, the circuit court named the
Shorts’ heirs; enumerated the proportional share of the Short Trust to which each individual
heir is entitled; and authorized Murray to distribute the Trust assets, accordingly.

       By order dated September 19, 2017, the circuit court voided its June 30, 2017
Findings of Fact and Conclusions of Law. It did not void the Final Judgment Order, which
named the Shorts’ heirs, detailed the Shorts’ heirs’ shares of the Short Trust, and authorized
Murray to distribute the Trust assets. It then entered the following three orders: Alter or
Amend Order; Order Denying Motion to Dismiss; and Order Denying Motion to Intervene.
Cortez now appeals from those three orders, in addition to the Partial Summary Judgment
Order.




       2
           Murray v. Murray, Civil No. 2:16-09951, 2017 WL 1351407, *5 (April 10, 2017).

                                                   4

                                 II.     Standard of Review

             Cortez’s various assignments of error invoke different standards of review.
We identify each standard of review in conjunction with the corresponding assignment of
error.

                                       III.   Discussion

A.     Subject Matter Jurisdiction, Comity, and Forum Non Conveniens

        In his first three assignments of error, Cortez argues that the circuit court should
have deferred to the first-filed litigation in Texas, or lacked jurisdiction to consider
Murray’s declaratory judgment action at all. For the following reasons, we find that the
circuit court did not err by permitting Murray’s declaratory judgment action to proceed
here in West Virginia.

       1.       Subject Matter Jurisdiction

       Cortez invokes the Princess Lida doctrine to argue that the circuit court erroneously
exercised jurisdiction over Murray’s declaratory judgment action because the Texas
Probate Court was already exercising in rem, or quasi in rem, jurisdiction over the Short
Trust. The Fourth Circuit Court of Appeals has explained:

                        According to the Princess Lida doctrine, a federal court
                may not exercise jurisdiction when granting the relief sought
                would require the court to control a particular property or res
                over which another court already has jurisdiction. . . . In order
                for the Princess Lida doctrine to apply, the two courts must be
                exercising jurisdiction over the same res. . . . Therefore, the
                doctrine applies only to in rem or quasi in rem cases.[3]

Regardless, “where the judgment sought is strictly in personam, both the state court and
the federal court, having concurrent jurisdiction, may proceed with the litigation at least
until judgment is obtained in one of them which may be set up as res judicata in the other.”4




       3
         Al-Abood ex rel. Al-Abood v. El-Shamari, 217 F.3d 225, 231 (4th Cir. 2000)
(cleaned up) (citing Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466
(1939)).
       4
           Princess Lida, 305 U.S. at 466.

                                                   5

       Following a de novo review, we find that the circuit court did not err by exercising
jurisdiction over Murray’s declaratory judgment action.5 The Texas Probate Court
exercised in personam jurisdiction as to both Murray’s original suit and Cortez’s Petition.
Murray pursued tort claims (conspiracy, fraud, conversion, theft, negligence, and breach
of fiduciary duty) in the Texas Probate Court against non-trustees. There is a difference
under the Princess Lida doctrine “between an action to obtain money from a specific,
limited fund, and an action that seeks damages against third parties for misdeeds potentially
related to the fund.”6 Murray’s claims before the Texas court were “strictly for money
damages, and [do] not involve any particular property or res.”7 Therefore, her initial suit
did not invoke the in rem or quasi in rem jurisdiction of the Texas Probate Court.

          As to Cortez’s Petition before the Texas Probate Court, Cortez “does not ask the
[Texas Probate Court] to seize the [Trust] funds as part of [his] action, but rather asks the
court to determine [his] rights to the funds. It is well settled that such actions are properly
classed as in personam.”8 Similarly, “the principle . . . that the court first assuming
jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of
the other” does not apply to cases in which “the plaintiff seeks merely an adjudication of
his right of his interest as a basis of a claim against a fund in the possession of a state court
. . . .”9

        We also note that a Texas commentator has described a quasi in rem proceeding
under that state’s law as necessarily requiring the res—the thing or property at issue
between the parties—to “be within the court’s control so that the judgment may act directly
on it.”10 Here, it is undisputed that the Short Trust property (two bank accounts and oil and
gas interests) is located in West Virginia. Thus, because the Short Trust property is not
within the Texas Probate Court’s control because it is not located within Texas, the

       5
         We review de novo the circuit court’s exercise of subject matter jurisdiction. See
State ex rel. Orlofske v. City of Wheeling, 212 W. Va. 538, 542, 575 S.E.2d 148, 152 (2002).
       6
           Madanes v. Madanes, 981 F. Supp. 241, 262 (S.D.N.Y. 1997).
       7
           Al-Abood, 217 F.3d at 232.
       8
         Hanover Ins. Co. v. Fremont Bank, 68 F. Supp. 3d 1085, 1110 (N.D.Cal. 2014)
(citing Princess Lida, 305 U.S. at 466; Commonwealth Trust Co. of Pittsburgh v. Bradford,
297 U.S. 613, 619 (1936) (“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.”)).
       9
           Princess Lida, 305 U.S. at 466.
       10
            See R. McDonald & E. Carlson, Texas Civil Practice § 4:8 (Dec. 2017 Update).

                                                   6

proceeding before the Texas Probate Court is in personam. That Cortez petitioned the
Texas Probate Court to order the distribution of the Short Trust assets to him does not
transform the Texas proceeding into a quasi in rem action.11

        In sum, because Murray’s original complaint and Cortez’s Petition before the Texas
Probate Court are in personam actions, the Princess Lida doctrine did not bar the circuit
court from exercising subject matter jurisdiction over Murray’s later-filed declaratory
judgment action. As contemplated in Princess Lida, jurisdiction over the issue of Cortez’s
interest is concurrent in Texas and West Virginia, and the matters may proceed “at least
until judgment is obtained in one of them which may be set up as res judicata in the other.”12

       2.       Comity

        Cortez also argues that the circuit court should have dismissed Murray’s West
Virginia declaratory judgment action because, among other, factual reasons, “Murray
initiated this litigation over the administration of the Trust in Texas and the compulsory
cause of action addressing distribution of the assets was previously filed in the Texas
court.” He argues that in similar circumstances, namely our prior decisions in Morris v.
Estate of Morris13 and Berger v. Berger,14 this Court reversed a circuit court’s denial of a
motion to dismiss based on comity. 15 Alternatively, he argues the circuit court should have
stayed Murray’s case pursuant to West Virginia Code § 56-6-10 (2012).16


       11
         See id. at § 4:6 (“An action in personam is a proceeding to enforce personal rights
and obligations brought against the person and based on jurisdiction of the person, although
it may involve his right to, or the exercise of ownership of, specific property, or seek to
compel the person to control or dispose of it in accordance with the mandate of the court.”).
       12
            Princess Lida, 305 U.S. at 466.
       13
            No. 15-1035, 2016 WL 6678988 (W. Va. Nov. 14, 2016).
       14
            177 W. Va. 58, 60, 350 S.E.2d 685, 687 (1986).
       15
         Cortez raised this argument before the circuit court in his June 13, 2017 Motion
to Dismiss.
       16
            Section 56-6-10 states:

                       Whenever it shall be made to appear to any court, or to
                the judge thereof in vacation, that a stay of proceedings in a
                case therein pending should be had until the decision of some
                other action, suit or proceeding in the same or another court,
                such court or judge shall make an order staying proceedings
                                                 7

       Our prior decisions in Morris and Berger did not require the circuit court to dismiss
Murray’s declaratory judgment action.17 In Morris, this Court refused to probate a will
that had already been probated in New Jersey. In Berger, we refused to permit a circuit
court to hear divorce proceedings when one spouse had already started divorce proceedings
in North Carolina. Those cases are dissimilar to this case because, here, the same parties
do not pursue identical claims in concurrent jurisdictions. While the question of Cortez’s
interest in the Short Trust was present in both proceedings, Murray asked the circuit court
for relief (namely, declarations regarding the distribution of Short Trust assets among
numerous beneficiaries; her authority to administer proceeds of Mr. Short’s mesothelioma
settlement; and her compensation for rendering services to the Short Trust) that she did not
seek from the Texas Probate Court. And, Murray’s request to the circuit court for a
declaration as to the ownership of the Short Trust did not duplicate Cortez’s Petition in the
Texas Probate Court because she sought an adjudication of the rights of numerous other
potential beneficiaries. As the circuit court observed, Cortez’s and Murray’s claims for
declaratory relief are fundamentally different because Cortez never “request[ed] that the
Texas court determine the proper beneficiaries of the [Short] Trust in the event his amended
declaratory claim fails.”

       Turning to Cortez’s argument regarding a stay under West Virginia Code § 56-6­
10, Barry argues that Cortez did not ask the circuit court to stay this matter pursuant to §
56-6-10, and so has waived this argument on appeal. Cortez replies that this waiver
argument is “baseless,” but provides no evidence that he sought a stay pursuant to § 56-6­
10 from the circuit court. Cortez’s Motion to Dismiss (or Alternatively to Stay) and
Memorandum of Law in Support Thereof of December 28, 2015, sought a stay pursuant to
§ 56-6-1a, but not § 56-6-10. His Motion to Dismiss and Memorandum of Law in Support
Thereof of June 12, 2017, did not request a stay. Finally, while Cortez’s Motion to Stay
Proceedings of May 5, 2016, does reference § 56-6-10, it does so in the context of
requesting a stay of proceedings pending resolution of Cortez’s petition for a writ of
prohibition from this Court, and not in the context of seeking a stay of this case, generally.
“As we have stated, judges are not like pigs, hunting for truffles buried in briefs, and the



              therein, upon such terms as may be prescribed in the order. But
              no application for such stay shall be entertained in vacation
              until reasonable notice thereof has been served upon the
              opposite party.
       17
         We review the circuit court’s ruling on Cortez’s motion to dismiss de novo. See
Ewing v. Bd. of Educ. of Cnty. of Summers, 202 W. Va. 228, 235, 503 S.E.2d 541, 548
(1998) (“Therefore, we hold that when a party, as part of an appeal from a final judgment,
assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition
of the motion to dismiss will be reviewed de novo.”).

                                                   8

same observation may be made with respect to appendix records.”18 Therefore, because
Cortez has failed to provide proper support from the appendix record for his contention
that Barry’s waiver argument is “baseless,” we find that Cortez has waived this argument
on appeal. For those reasons, and in the specific circumstances of this case, we find that
the circuit court did not err on comity grounds.

       3.     Forum Non Conveniens

        Cortez next contends that the circuit court erred by not dismissing Murray’s suit
under West Virginia Code § 56-1-1a (Forum non conveniens) (2016). Cortez raised this
argument several times below.19 Cortez also pursued a writ from this Court to prohibit the
circuit court from proceeding with Murray’s case on forum non conveniens grounds, which
we refused.

        Although Cortez is entitled to appeal this issue, there is no reason to depart from our
earlier decision refusing Cortez’s writ.20 The circuit court’s Order Denying Mateo Cortez’s
12(b) Motion to Dismiss (or alternatively to Stay) addresses each of the eight factors
enumerated in West Virginia Code § 56-1-1a. Given the facts that (1) Murray, the
Successor Trustee, resides in West Virginia; (2) the Short Trust corpus is located in West
Virginia; and (3) the majority of contingent beneficiaries of the Short Trust are West
Virginia residents, we cannot say that the circuit court abused its discretion by refusing to
find that forum non conveniens requires dismissal of the instant proceeding.

       In his Motion to Alter or Amend, Cortez argued that the circuit court should have
reversed its prior decision regarding the suitability of West Virginia as a forum because,
on September 28, 2016, the Texas Probate Court ruled that it had jurisdiction over all the
necessary parties, including Mrs. Cortez’s estate. However, less than three months later,

       18
         Multiplex, Inc. v. Town of Clay, 231 W. Va. 728, 731 n.1, 749 S.E.2d 621, 624
n.1 (2013) (cleaned up). Moreover, assuming Cortez had sought a general stay, below,
pursuant to West Virginia Code § 56-6-10, the circuit court did not abuse its discretion in
permitting this case to proceed for the reasons discussed in relation to Cortez’s general
comity argument. See Dunfee v. Childs, 59 W. Va. 225, 233, 53 S.E. 209, 212 (1906)
(decision to stay under § 56-6-10 rests in sound discretion of trial court).
       19
          Cortez first argued forum non conveniens in his December 28, 2015 motion to
dismiss, and then, again in his motion to alter or amend of September 29, 2016.
       20
          We have repeatedly held that “a writ of prohibition is an appropriate remedy to
resolve the issue of where venue for a civil action lies, because the issue of venue has the
potential of placing a litigant at an unwarranted disadvantage in a pending action and relief
by appeal would be inadequate.” State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 645,
713 S.E.2d 356, 360 (2011) (internal citations and quotations omitted).

                                                  9

the Texas Probate Court ruled that Cortez (individually and as representative of Mrs.
Cortez’s estate) did not have an interest in the Short Trust and dismissed all of Cortez’s
claims against the contingent beneficiaries. But, the Texas Probate Court did not determine
either the identity of the Shorts’ heirs or their proportional interests in the Trust. Those
issues, along with Murray’s plea for a declaration as to her authority as Trustee and for
compensation, remained pending before the circuit court in Murray’s declaratory judgment
action. In light of these unique procedural circumstances, we find that the circuit court did
not err in denying that portion of Cortez’s Motion to Alter or Amend contesting venue here
in West Virginia.

B.     The Circuit Court’s Partial Summary Judgment Order and Alter or Amend Order

        The circuit court granted Barry’s motion for partial summary judgment against
Cortez on September 15, 2016, finding that he did not have an interest in the Short Trust,
individually or as Cortez’s sole heir, and dismissing Cortez from Murray’s suit. Cortez
then filed a Motion to Alter or Amend that judgment on September 29, 2016, which the
circuit court denied by order dated September 19, 2017. Cortez challenges both rulings on
appeal to this Court.21

      Barry responds that Cortez’s arguments to reverse the circuit court’s grant of partial
summary judgment are moot because this Court must give full faith and credit to the Texas
Probate Court’s December 2016 Order and Judgment (Texas Order and Judgment), in
which it 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, has to any assets of The William D. Short and
                Phyllis D. Short Revocable Living Trust . . . other than his
                claim for undistributed income from the Trust during the life
                of Deborah Cortez.

       That Cortez is currently appealing the Texas Order and Judgment should not, Barry
argues, prevent this Court from treating the Texas order as res judicata because under Texas
law, “[a] judgment is final for the purposes of issue and claim preclusion despite the taking
of an appeal unless what is called an appeal actually consists of a trial de novo.”22 Based

       21
          We review the circuit court’s grant of partial summary judgment de novo. See
Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Therefore, we also
review de novo Cortez’s appeal from the motion to alter or amend that judgment. See Syl.
Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).
       22
            Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986) (internal quotation
omitted).

                                                  10 

on the preclusive effects of the Texas Order and Judgment, Barry urges us to conclude that
res judicata bars Cortez’s claims before this Court, and so to affirm the circuit court’s
Partial Summary Judgment Order and dismiss Cortez’s appeal.

        We agree with Barry’s argument because we conclude that the Texas Order and
Judgment is, under the Texas law cited above, a final judgment on the merits to which this
Court must defer.23 Under Texas law,24 a prior final judgment on the merits will preclude
further litigation of an issue in subsequent proceedings where: “(1) the facts sought to be
litigated in the second action were fully and fairly litigated in the first 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.”25

        Applied here, those factors easily show that Cortez is collaterally estopped from
attacking the Texas Order and Judgment in this Court.26 Cortez himself raised the issue of
his interest in the Short Trust before the Texas Probate Court; he cannot say that he was
denied a fair opportunity to litigate it in that court. Certainly, the fact of his interest, or
lack thereof, in the Short Trust was essential to the Texas Order and Judgment. And, there

       23
          See Princess Lida, 305 U.S. at 466 (observing that some parallel matters may
proceed “at least until judgment is obtained in one of them which may be set up as res
judicata in the other”). Because we conclude that we must defer to the Texas Order and
Judgment, we do not address Cortez’s procedural arguments regarding the circuit court’s
Partial Summary Judgment Order.
       24
           See Jordache Ent., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 204 W.
Va. 465, 476, 513 S.E.2d 692, 703 (1998) (applying New York law of res judicata to
determine preclusive effect of prior New York order on proceeding in circuit court); Syl.
Pt. 3, State ex rel. Lynn v. Eddy, 152 W. Va. 345, 163 S.E.2d 472 (1968) (“By virtue of the
full faith and credit clause of the Constitution of the United States, a judgment of a court
of another state has the same force and effect in this State as it has in the state in which it
was pronounced.”).
       25
            Sysco Food Serv., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).
       26
          The Texas Order and Judgment post-dated the circuit court’s order granting Barry
partial summary judgment as to Cortez’s interest in the Short Trust by approximately two
months. The circuit court’s order granting partial summary judgment was not, however, a
final order for purposes of res judicata because it was subject to Cortez’s motion to alter or
amend, and, now, to appeal. See Jordache Ent., Inc., 204 W. Va. at 476, 513 S.E.2d at 703
(recognizing that this Court has intimated that a West Virginia judgment pending appeal is
not final for res judicata and collateral estoppel purposes). Thus, the Texas Order and
Judgment, which is a final order for purposes of res judicata under Texas law, was the first,
final order regarding Cortez’s interest (or lack thereof) in the Short Trust.

                                                   11 

is no doubt that Cortez and Murray were cast as adversaries before the Texas Probate Court.
Thus, the Texas Probate Court’s judgment that Cortez does not have an interest in the Short
Trust, either individually or in his capacity as representative of the Estate of Deborah
Cortez, has preclusive effect under Texas law, and so must be respected by this Court.
Accordingly, we affirm-in-part the circuit court’s Partial Summary Judgment Order and
Alter or Amend Order based on the preclusive effect of the Texas Order and Judgment.

       The preclusive effect of the Texas Order and Judgment also reaches to Cortez’s fifth
assignment of error, challenging the circuit court’s denial of his motion to intervene on
behalf of the Estate of Deborah Cortez and companion motion to dismiss based on
Murray’s alleged failure to join the Estate of Deborah Cortez in her declaratory judgment
suit. As noted above, the Texas Probate Court concluded that Cortez did not have an
interest in the Short Trust, in his individual capacity or as representative of the Estate of
Deborah Cortez. Therefore, Cortez was collaterally estopped from arguing that the Estate
of Deborah Cortez had an interest in the Short Trust, and therefore had a right to intervene
in the matter before the circuit court, and from arguing that the Estate of Deborah Cortez
was an indispensable party in Murray’s declaratory judgment suit.27

        We do not agree with Barry, however, that the way forward is simply to affirm the
circuit court’s Partial Summary Judgment Order and Alter or Amend Order and dismiss
Cortez’s appeal. Logically, because the circuit court has already determined the interests
of the contingent beneficiaries, an affirmance here will lead directly to the distribution of
the remaining assets of the Short Trust. While this Court doubts that any Texas appellate
court will find that Cortez has an interest in the Short Trust, Cortez’s pending appeal creates
that possibility. Should a Texas appellate court find that Cortez has an interest in the Short
Trust and reverse the Texas Order and Judgment, the Trustee will be subject to conflicting
orders. Even worse, the Trustee will likely have already distributed the Trust assets to the
contingent beneficiaries pursuant to the circuit court’s Final Judgment Order. Additional
litigation would likely then ensue to align the West Virginia and Texas outcomes and
recover the Trust assets.

       We are not alone in foreseeing this danger. As a leading procedural treatise has
explained:

                The major problem is that a second judgment based upon the
                preclusive effects of the first judgment should not stand if the
                first judgment is reversed. In some cases, litigants and the
                courts have collaborated so ineptly that the second judgment
                has become conclusive even though it rested solely on a
                judgment that was later reversed. This result should always be


       27
            See Sysco Food Serv., Inc., 890 S.W.2d at 801.

                                                  12 

              avoided, whether by delaying further proceedings in the second
              action pending conclusion of the appeal in the first action, by a
              protective appeal in the second action that is held open pending
              determination of the appeal in the first action, or by direct
              action to vacate the second judgment. It may prove desirable
              to include an express provision for reopening in the second
              judgment.[28]

        Therefore, while we affirm the circuit court’s grant of partial summary judgment to
Barry on the issue of Cortez’s interest in the Short Trust, we nevertheless reverse its
dismissal of Cortez from this case and remand the matter back to the Circuit Court of Wirt
County with directions to enter an order prohibiting Murray from distributing proceeds
from the Short Trust and staying this matter until Cortez has either exhausted the Texas
appellate process or the Texas Order and Judgment is otherwise rendered non-appealable.29
At such time, the circuit court may then dismiss Cortez, lift the stay, and order Murray to
proceed with the distribution of the Trust assets as set forth in the circuit court’s Final
Judgment Order of June 30, 2016. If, on appeal, the Texas Order and Judgment is reversed,
then Cortez may file an appropriate motion with this Court to reopen his appeal of the
circuit court’s grant of partial summary judgment in light of the reversal of the Texas Order
and Judgment.

      On remand, the circuit court may require the parties to update the circuit court at
appropriate intervals as to the status of Cortez’s appeal of the Texas Order and Judgment.




       28
         18A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 4433 (2d. ed.
April 2018 Update) (internal notes omitted).
       29
          We recognize that this disposition necessarily delays the distribution of the assets
of the Short Trust to the contingent beneficiaries. However, as we explain above, there is
a possibility that a Texas appellate court may reverse the Texas Order and Judgment, which
is a final judgment on the issue of Cortez’s interest in the Trust to which this Court must
defer. Ultimately, by this disposition, we seek to prevent conflicting Texas and West
Virginia judgments, a possibility that would likely entail lengthy, costly litigation that
would further inconvenience the parties.

                                                 13 

                    Affirmed, in part; Reversed, in part; and Remanded with directions.


ISSUED: May 31, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry, II
Justice Elizabeth D. Walker




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