                                                                                                          ACCEPTED
                                                                                                       03-17-00365-cv
                                                                                                            21650658
                                                                                            THIRD COURT OF APPEALS
                                                                                                      AUSTIN, TEXAS
                                                                                                     1/5/2018 4:48 PM
                                                                                                    JEFFREY D. KYLE
                         BROTHERTON LAW FIRM                                                                   CLERK

                             ATTORNEYS AND COUNSELORS AT LAW
                                     2340 FM 407, SUITE 200
                                                                                 RECEIVED IN
                                HIGHLAND VILLAGE, TEXAS 75077               3rd COURT OF APPEALS
                                   TELEPHONE : 972-317-8700                     AUSTIN, TEXAS
                                    FACSIMILE : 972-317-0189                1/5/2018 4:48:52 PM
SHAWN M. BROTHERTON                                                           JEFFREY D. KYLE
                                                                          shawn@brothertonlaw.com
                                                                                    Clerk

                                         January 5, 2018


Jeffrey D. Kyle, Clerk
Court of Appeals for the Third District of Texas
P.O. Box 12547
Austin, Texas 78711-2547

RE:    Court of Appeals Number:       03-17-00365-CV
       Trial Court Case Number:       C-1-PB-16-002348

Dear Mr. Kyle,

        In response to Appellees’ motion to dismiss his challenge to sanctions awarded in the
trial court below, Appellant Mateo Cortez has demonstrated to the Court that he has standing to
challenge the erroneous sanctions order because it has been and continues to be used to thwart
Appellant’s procedural and substantive rights across four courts. See Appellant’s Resp. to
Appellees’ Motion to Dismiss for Want of Jurisdiction (filed Dec. 13, 2017) at 4-9. In making
that showing, Appellant provided and asked the Court to take judicial notice of several filings in
the duplicative West Virginia proceeding initiated by Appellees. Id.

       Since Appellant filed that response in this Court, a new brief by Appellees was submitted
to the West Virginia Supreme Court, which we attach to this letter as Appendix A. In that brief,
Appellee Connie Barry argues that the Texas sanctions order demonstrates that all of Cortez’s
substantive claims were found frivolous (which is incorrect), and that the Texas sanctions order
supports affirmation of the West Virginia trial court’s adverse rulings against Cortez. App. A at
5-7, 13, 15, 17. Barry further argues that the issues decided in the sanctions order are res
judicata, despite the taking of this appeal, and are entitled to full faith and credit to defeat
Cortez’s procedural and substantive arguments in the West Virginia courts. App. A at 7.

        This subsequent filing by Appellees further supports Appellant’s position that he has
standing to challenge the sanctions order in this Court and further demonstrates that this issue is
inappropriate for summary dismissal before briefing. We respectfully ask the Court to take
judicial notice of this brief under Rule 201(b)(2). Please provide this letter and attachment to the
motion panel.
Jeffrey D. Kyle, Clerk
January 5, 2018
Page 2


         If you have any questions, please do not hesitate to contact me.

                                                  Respectfully,



                                                  Shawn M. Brotherton

SMB/dj

Attachment



                                  CERTIFICATE OF SERVICE

       On this 5th day of January, 2018, I hereby certify that a true and correct copy of the
foregoing response letter has been sent to all counsel of record pursuant to the Rules.

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
Attorney for Appellees
                                                  Attorneys for Third Party Defendants 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




                                               ________________________________________
                                               Shawn M. Brotherton
Appendix A
                         RECORD NO. 17-0662 & 17-0942

                                        INTHE
                SUPREME COURT OF APPEALS
                    OF WEST VIRGINIA
MATEO CORTEZ, individually and as representative of the Estate of Deborah Cortez,

Petitioner,
                                           vs.

LINDA LOU MURRAY, in her capacity as successor trustee of the William D. Short and
Phyllis D. Short Revocable Living Trust dated April 30, 1991,

and

CONNIE LOU KEITH BARRY; DONALD LEAMAN WHITED; MICHAEL RAY
WHITED; SHERRY LYNN WHITED SALSBURY; SHEILA PETTRY, TYWANNA
PETTRY, and AMANDA PETTRY, heirs of Teresa Anette Whited Pettrey; TERRY LEE
WHITED; BETTY JO MARKS; CHARLENE RAE FLESHER-JOHNSTON; 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,

Respondents.

        ON APPEAL FROM THE CIRCUIT COURT OF WIRT COUNTY
                    (CIVIL ACTION NO. l 5-C-28)


      BRIEF OF RESPONDENT CONNIE LOU KEITH BARRY
Aaron C. Boone, Esq. (WVSB # 9479)
J. Tyler Mayhew, Esq. (WVSB #11469)
BOWLES RICE LLP
Fifth Floor, United Square
501 Avery Street (Post Office Box 49)
Parkersburg, West Virginia 26102
Telephone: (304) 420-5501
Facsimile: (304) 420-5587
Email: aboone@bowlesrice.com

Counsel for Respondent Connie Lou Keith Barry
                             TABLE OF CONTENTS

I.     STATEMENT OF THE CASE                                                         1

            I.    The parties reach an agreement that the Trust assets may be
                  distributed "by a final order of a court of competent
                  jurisdiction."                                                     I

            2.    The Petitioner repeatedly attempts to block the Trustee from
                  obtaining "a final order of a court of competent jurisdiction"
                  directing the distribution of the Trust assets                    .4
            3.    The Texas court agrees that the Petitioner has no claim to the
                  Trust and sanctions the Petitioner' s Texas counsel for filing
                  frivolous claims                                                   5

            4.    The Petitioner files more vexatious pleadings in West
                  Virginia, and the Circuit Court finally denies the Petitioner's
                  motions and enters a final order declaring the proper
                  distribution of the Trust assets                                   6

II.    SUMMARY OF ARGUMENT                                                           7

III.   STATEMENT REGARDING ORAL ARGUMENT                                             9

IV.    ARGUMENT                                                                      9

       A.   THE PETITIONER IS NOT A BENEFICIARY OF THE TRUST,
            AND ms ARGUMENTS TO THE CONTRARY ARE
            FRIVOLOUS AND BARRED BY RES JUDICATA                                     9

            1.    The Circuit Court (and the Texas court) correctly determined
                  that the Petitioner has no interest in the Trust or remaining
                  Trust assets, which are to be distributed "One-half (1/2) to
                  the heirs at law of William D. Short" and "One-half (1/2) to
                  the heirs at law of Phyllis D. Short."                            10

            2.    The Petitioner's argument below that the Trust terminated
                  upon the death of Mrs. Short, and therefore should be
                  distributed to him as "the sole heir of the Estate of Deborah
                  Cortez," is frivolous                                             13

            3.    The Petitioner's new argument that "the Estate of Deborah
                  Cortez" is an "heir at law" of Mr. and Mrs. Short was waived
                  below and is frivolous. Dead people and their estates are not
                  heirs at law                                                      15


                                             1
     4.   The Petitioner's new argument that the Trust lapsed was
          waived below and is frivolous. The Trust instrument fully
          provides for the disposition of the Trust assets, and it would
          be both absurd and in violation of the rules of construction
          to interpret the Trust as ineffective for its intended purposes .
          .................................................................................................................... 17

     5.    The Petitioner's claims to the Trust are also barred by res
          judicata. On December 19, 2016, the Texas court ruled that
           the Petitioner, in both his personal and representative
           capacities, is not a beneficiary of the Trust. Under Texas
           law, that court's ruling is final despite the trucing of an
           appeal, and entitled to full faith and credit from this Court                                                     21

B.   THE TEXAS COURT IS NOT EXERCISING EXCLUSIVE
     WRISDICTION OVER THE TRUST.       THE TRUSTEE'S
     LAWSUIT IN TEXAS WAS AN IN PERSONAMTORT ACTION
     FOR DAMAGES, AND NOT AN ACTION TO ADMINISTER
     THE TRUST.    THE PETITIONER'S DEFENSE TO THE
     TRUSTEE'S TORT CLAIMS DID NOT CONVERT THE
     PROCEEDINGS IN TEXAS INTO A QUASI IN REM ACTION
     TO ADMINISTER THE TRUST                                                                                                 23

     1.   The Princess Lida principle is a narrow exception to the
          general rule permitting concurrent jurisdiction over parallel
          lawsuits. It only applies where both courts "must control the
          property" to grant the relief sought by the parties. It does not
          apply to tort suits for monetary damages, or to declaratory
          claims to adjudicate an individual's right to trust property                                                       24

          a.         The Trustee's tort action in Texas is an in personam
                     action only, and does not trigger the Princess Lida
                     principle. The relief sought by the Trustee in Texas
                     consisted of monetary damages only and did not
                     include matters regarding the Trust's administration.
                     The Trustee brought those claims in West Virginia,
                     where the Trust is administered and where the Trust
                     res is located                                                                                          26

          b.         The Petitioner's intervention claim in Texas did not
                     convert those proceedings into a quasi in rem action,
                     and did not trigger the Princess Lida principle. A
                     declaratory claim to adjudicate an individual's right
                     to trust property is not an in rem or quasi in rem
                     action                                                                                                 27




                                                  11
          2.   The cases cited by the Petitioner are distinguishable, and do
               not apply to the facts before this Court. Both cases involved
               parallel suits where the relief requested would have directly
               interfered with the administration of the trusts                28

     C.   THIS COURT PREVIOUSLY CONSIDERED AND REJECTED
          THE   PETITIONER'S   FORUM NON        CONVENIENS
          ARGUMENTS IN STATE EX REL. MA.TEOCORTEZv. WATERS,
          RECORD NO. 16-0428.    WEST VIRGINIA WAS AN
          APPROPRIATE   AND    CONVENIENT     FORUM    FOR
          ADJUDICATING CLAIMS RELATING TO A TRUST
          ADMINISTERED FROM THIS STATE                                         29

     D.   THIS COURT PREVIOUSLY CONSIDERED AND REJECTED
          THE PETITIONER'S COMITY ARGUMENTS IN STATE EX
          REL. MATEO CORTEZ v. WATERS, RECORD NO. 16-0428.
          WEST VIRGINIA DID NOT HAVE TO DEFER TO THE
          PROCEEDWGS IN TEXAS                                                  31

     E.   THE CIRCUIT COURT CORRECTLY DENIED THE
          PETITIONER'S REQUEST TO INTERVENE AS "THE ESTATE
          OF DEBORAH CORTEZ."                                                  .34

     F.   THE PETITIONER'S MISCELLANEOUS ARGUMENTS ARE
          FRIVOLOUS                                                            38

V.   CONCLUSION                                                                40




                                        iii
                              TABLE OF AUTHORITIES



Amstadt v. US. Brass Corp.,
      919 S.W.2d 644 (Tex. 1996)                                                      22

Barbiero v. Kaufman,
       No. 12-6869, 2013 WL 3939526 (E.D. Pa. July 30, 2013)                   25, 28, 29
Barr v. Resolution Trust Corp. ex rel. Sunbelt Federal Sav.,
        837 S.W.2d 627 (Tex. 1992)                                                    22
Berger v. Berger,
       177 W. Va. 58, 350 S.E.2d 685 (1986)                                           33
Cessac v. Stevens,
       127 So.3d 675, 680 (Fla. 1st DCA 2013)                                         15

Commonwealth Trust Co. ofPittsburgh v. Braclford,
     297 U.S. 613 (1936)                                                          26, 28
Florida Recycling Services, Inc. v. Greater Orlando Auto Auction, Inc.,
       898 So.2d 129 (Fla. 5th DCA 2005)                                              20
Haney v. Wilcheck,
      38 F. Supp. 345 (W.D. Va. 1941)                                                 26

Hemphill v. Aukamp,
      164 W. Va. 368, 264 S.E.2d 163 (1980)                                        11, 14
In re Gregory's Estate,
       70 So.2d 903 (Fla. 1954)                                           .-          20

In re Roulston 's Estate,
        142 So.2d 107 (Fla. 2d DCA 1962)                                              20

Kanawha Banking & Trust Co. v. Gilbert,
      131 W. Va. 88, 46 S.E.2d225 (1947)                                              ll

Kanawha County Public Library Bd v. Board ofEduc. Of County ofKanawha,
     231 W. Va. 386, 745 S.E.2d 424 (2013)                                            39

Kline v. Burke Const. Co.,
        260 U.S. 226 (1922)                                                           25

Knauer v. Barnett,
      360 So.2d 399 (Fla. 1978)                                                       39


                                               iv
Kuhns v. Bank One, Texas, NA.,
      No. 03-98-00177-CV, 1999 \VL 699813 (Tex. Ct. App. 1999)                         22

L.F. Dommerich & Co. v. Bress,
       280 F. Supp. 590, 600 (D.N.J. 1968)                                             26

Lewis v. Green,
       389 So.2d235 (Fla. 5th DCA 1980)                                                16

Mey v. Pep Boys - Manny, Moe & Jack,
       228 W. Va. 48, 717 S.E.2d 235 (2011)                                            15

Morris v. Morris,
       No. 15-1035, 2016 WL 6678988 (W. Va. Supreme Court, Nov. 14, 2016)              33

Ospina-Baraya v. Heiligers,
      909 So.2d 465 (Fla. 4th DCA 2005)                                                19

Painter v. Coleman,   ,
       211 W. Va. 451, 566 S.E.2d 588 (2002)                                           20

Painter v. Peavy,
       192 W. Va. 189, 451 S.E.2d 755 (1994)                                           15

Panama R. Co. v. Vasquez,
     271 U.S. 557 (1926)                                                               27

Pauley v. Bailey,
       171 W,. Va. 651, 301 S.E.2d 608 (1983)                                          36

Pennsylvania R. Co. v. Rogers,
       52 W. Va. 450, 44 S.E. 300 (1903)                                               34

Poweridge Unit Owners Ass 'n v. Highland Properties, Ltd,
      196 W. Va. 692, 474 S.E.2d 872 (1996)                                        38, 40
Princess Lida of Thurn & Taxis v. Thompson,
       305 U.S. 456 (1939)                                                  23, 25, 28, 32

Robinson v. Cabell Huntington Hosp., Inc.,
       201 W. Va. 455, 498 S.E.2d27 (1997)                                             34

Scurlock Oil Co. v. Smithwick,
       724 S.W.2d 1 (Tex. 1986)                                                        22

Shaffer v. Heitner,
        433 U.S. 186 (1977)                                                            27




                                                v
State ex rel. Airsquid Ventures, Inc. v. Hummel,
        236 W. Va. 142, 778 S.E.2d 591 (2015)                                      11

State ex rel. American Elec. Power Co., Inc. v. Nibert,
        237 W. Va. 14, 784 S.E.2d 713 (2016)                                       29

State ex rel. Ball v. Cummings,
        208 W. Va. 393, 540 S.E.2d 917 (1999)                                  35, 37
State ex rel. JC. ex rel. Michelle C. v. Mazzone,
        235 W. Va. 151, 772 S.E.2d 336 (2015)                                      30
State ex rel. Lynn v. Eddy,
        152 W. Va. 345, 163 S.E.2d 472 (1968)                                  21, 32
State ex rel. Mateo Cortezv. Waters,
        Record No. 16-0428 (W.Va. Supreme Court)                             8, 29, 31

State ex rel. North River Ins. Co. v. Cha.fin,
        233 W. Va. 289, 758 S.E.2d 109 (2014)                                      29

State ex rel. Small v. Clawges,
        231 W. Va. 301, 745 S.E.2d 192 (2013)                                      25

United Bank, Inc. v. Blosser,
       218 W. Va. 378, 624 S.E.2d 815 (2005)                                       23

Vigliani v. Bank ofAmerica, N.A.,
       189 So.3d 214 (Fla. 2d DCA 2016)                                            19

Watson v. St. Petersburg Bank & Trust Co.,
       146 So.2d 383 (Fla. 2d DCA 1962)                                            19

West Virginia Public Employees Ins. Bd. v. Blue Cross Hosp. Service, Inc.,
       180 W. Va. 177, 375 S.E.2d 809 (1988)                                       36

Whan v. Hope Natural Gas Co.,
      81 W. Va. 338, 94 S.E. 365 (1917)                                            34

Zaleski v. West Virginia Mut. Ins. Co.,
       224 W. Va. 544, 687 S.E.2d 123 (2009)                                   17, 31
Statutes

Fla. Stat.§ 736.l 106(2)                                                       16, 17

West Virginia Code§ 56-1-la                                                    29, 30

West Virginia Code§ 56-1-la(a)                                                     29


                                                   vi
West Virginia Code§ 56-6-10                                                   8, 31, 32, 33, 34

Other Authorities

Restatement (Third) of Property (Wills & Don. Trans.)§ 1.1 cmt. b (1999)                    15

Restatement (Third) of Property (Wills & Don. Trans.)§ 1.2 (1999)                           16

Restatement (Third) of Property (Wills & Don. Trans.)§ 1.2 at cmt. g (1999)                 17

Restatement (Third) of Property (Wills & Don. _Trans.) § 11.3 cmt. i (2003)                 20

Restatement (Third) of Trusts§ 94 (2012)                                                 8, 23

Tex. Civ. Prac. & Rem. Code Title 6, Chapter 134                                            26



West Virginia Rule of Civil Procedure 12(h)                                                 31

West Virginia Rule of Civil Procedure 12(h)(2)                                              34

West Virginia Rule of Civil Procedure 24                                            34, 35, 36

West Virginia Rule of Civil Procedure 24(a)(2)                                              35

West Virginia Rule of Civil Procedure 56                                                    38

West Virginia Rule of Civil Procedure 56(f)                                                 39

West Virginia Rule of Professional Conduct§ 1.7                                             37

Treatises

90 C.J.S. Trusts § 207                                                                      20

F. Cleckley, R. Davis, & L. Palmer, Litigation Handbook on West Virginia Rules
       of Civil Procedure at§ 12(h)(2)[2], pp. 418-19 (4th Ed. 2012)                        35




                                                 vii
                                   I.       STATEMENT OF THE CASE

        This case involves the final distribution of the assets of the "Second Amendment and

Restatement of the William D. Short and Phyllis D. Short Revocable Living Trust" (the "Trust").

William D. Short ("Mr. Short") and Phyllis D. Short ("Mrs. Short") are originally from West

Virginia, and their Trust is currently administered from West Virginia by Linda Murray (the

"Trustee"), who was Mrs. Short's niece and who is domiciled in West Virginia. The Trust assets

consist of West Virginia real estate (specifically oil and gas rights) and cash located in a Trust

account held by a West Virginia bank. Per the terms of the Trust instrument, Mr. and Mrs. Short

intended to provide for themselves during their lifetimes and for their daughter, Deborah Cortez,

during her lifetime following their deaths, 1 after which any remaining Trust assets are to be

distributed under Article VIII, Section C of the Trust as follows: "1. One-half (1/2) to the heirs at

law of William D. Short; and 2. One-half (1/2) to the heirs at law of Phyllis D. Short." App. at

113. The majority of the heirs at law of Mr. and Mrs. Short reside in West Virginia.

        1.         The parties reach an agreement that the Trust assets may be distributed "by
                   a final order of a court of competent jurisdiction."

        Deborah Cortez was the sole child of Mr. and Mrs. Short and lived in Texas with her

husband, Mateo Cortez (the "Petitioner"). On December 9, 2011, Deborah Cortez died, survived

by the Petitioner and no siblings or descendants. App. at 133. On February 23, 2012, the Petitioner

filed a Small Estate Affidavit, confirming that he was the sole heir of the Estate of Deborah Cortez,

and that the estate had less than $50,000 in assets. App. at 133-36. The Petitioner knew about the

Trust at the time he filed the small estate affidavit, and in fact provided the Trustee with a copy of

the Trust instrument the week before. App. 107.




        1
            It is undisputed that Mr. and Mrs. Short predeceased Deborah.
        Prior to her death, Deborah served as co-trustee of the Trust, along with the current Trustee.

App. at 113. After Deborah died, the Trustee discovered evidence that the Petitioner and Deborah

had been stealing money from the Trust by writing checks to themselves without the knowledge

or consent ofthe Trustee. App. at 84-85. Some of the checks bore the forged signature of Mrs.

Short. App at 84. In light of this discovery, on August 28, 2014, the Trustee filed a lawsuit against

the Petitioner in the Probate Court of Travis County, Texas, seeking monetary damages for civil

conspiracy, statutory violations of the Texas Theft Liability Act, and common law conversion.

App. at 81-91. The Trustee's complaint sought monetary damages only, and did not ask the Texas

court to decide any matter regarding the Trust's administration or management. App. at 90.

        On October 13, 2014, the Petitioner filed his answer to the Trustee's tort claims, but did

not allege that he or the Estate of Deborah Cortez were beneficiaries of the Trust or entitled to any

of the Trust assets. App. at 2614. The Petitioner also did not ask the Texas court to take any action

regarding the Trust's administration or management. Id. On March 16, 2015, the Petitioner filed

an amended answer to the Trustee's complaint; again, the Petitioner did not allege that he or the

Estate of Deborah Cortez had a claim to the Trust, or that the Texas court should take any action

regarding the Trust's administration or management. App. at 2617-20. At no point during this

time did the Petitioner claim an interest in the Trust or show interest in the Trust's administration.

        On June 19, 2015, the Petitioner's Texas counsel deposed the Trustee. App. at 2709-11.

This deposition was the first time that the Petitioner or his Texas counsel inquired about the value

of the Trust, which at that time contained approximately $5.2 million in assets. The Petitioner

immediately terminated the deposition, and within days he filed his "Original Petition in

Intervention," arguing (for the first time, ever) that Deborah Cortez was the sole beneficiary of the

Trust and therefore the Petitioner was entitled to all of the Trust Assets. App. at 92-97.




                                                  2
        On November 20, 2015, the Trustee filed her complaint in the Circuit Court of Wirt County,

West Virginia, asking the Circuit Court "enter 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." App. at 11-33. The Petitioner then sought a restraining order in Texas,

seeking to bar the Trustee from taking any further action in West Virginia to administer the Trust

or distribute its assets.

        At a hearing on December 18, 2016, the Texas court entered a temporary restraining order

preventing the Trustee from temporarily distributing the Trust assets, but refused to prohibit the

Trustee from moving forward in West Virginia:

                THE [TEXAS] COURT: I'm not going to prohibit them from
                proceeding, I'm not going order them to dismiss in West Virginia.
                You all can go to West Virginia and argue.

                [PETITIONER'S COUNSEL]: The problem is of course, Your
                Honor, is our guy has limited funds and --

                THE [TEXAS] COURT: But he's got good lawyers, so - who are
                looking at an opportunity if you're right of getting five million
                dollars.

App. at 1464.

        After the Texas court refused to enjoin the Trustee from prosecuting her claims in West

Virginia, the Petitioner feared that the Trustee might distribute Trust assets after the temporary

restraining order expired but before the court could rule on his intervention claim to the Trust.

Rather than waste additional time and money :fighting the Petitioner's request for a temporary

injunction, the Trustee and the Petitioner entered into the following agreement:

                There is now pending an Application for Injunctive Relief filed by
                Cortez. In lieu of a contested hearing, 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


                                                  3
                beneficiary except as may be permitted by a final order of a court
                of competent jurisdiction.

App. at 236 (emphasis added). Since entering into this agreement, the Petitioner has repeatedly

attempted to delay or obstruct these proceedings because the Petitioner knows that the Circuit

Court of Wirt County, West Virginia is the only court that has been asked to "enter an order

directing the distribution of the assets of the Trust to those persons determined ... to be entitled to

... the same in such proportions as may ... be proper."

        2.      The Petitioner repeatedly attempts to block the Trustee from obtaining "a
                final order of a court of competent jurisdiction" directing the distribution of
                the Trust assets.

        On December 28, 2015, the Petitioner moved to dismiss this action for forum non

conveniens, arguing that the case should be dismissed and litigated in Texas. App. at 60-74. The

Circuit Court denied the Petitioner's motion, finding that this action was properly filed in West

Virginia. App. at 462-71.

        On April 11, 2016, Respondent Barry filed a motion for partial summary judgment, seeking

a declaration that the Petitioner is not a legal beneficiary of the Trust and is not entitled to share in

the distribution of the Trust assets. App. at 530-34. However, on April 29, 2016, before the Circuit

Court could rule on Respondent Barry's motion, the Petitioner filed a petition for a writ of

prohibition, seeking to prohibit the Circuit Court from denying his motion to dismiss. App. at

1837-84. This Court and the Circuit Court both refused to stay further proceedings pending the

outcome of the Petitioner's writ petition. On June 14, 2016, this Court summarily refused the

Petitioner's petition for a writ of prohibition. App. at 1886-87.

       On September 16, 2016, the Circuit Court entered an order granting Respondent Barry's

motion for partial summary judgment, finding that the Petitioner is not entitled to take under the

Trust and dismissing him from this action with prejudice. App. at 674-82. The Circuit Court



                                                   4
found that it was undisputed that "the Trust expresses the true intent of the settlors, Mr. and Mrs.

Short, in plain and unambiguous language," and that it was also undisputed "that Mateo Cortez

was not a surviving spouse of, nor a lineal or collateral descendant of, Mr. or Mrs. Short." App.

at 679-70. Applying the plain language of the Trust instrument, and after examining the document

as a whole, the Circuit Court concluded that Mr. and Mrs. Short did not intend to provide for the

Petitioner under the Trust and did not intend for him to share in the Trust assets. App. at 679-81.

       On September 21, 2016, given that the Circuit Court dismissed the Petitioner's competing

claim to the Trust, the Trustee filed her own motion for summary judgment, seeking a final order

declaring the distributive interests of the remaining parties. App. at 706-24. The Petitioner

subsequently filed a motion to alter or amend, which automatically stayed his obligation to appeal

the Circuit Court's summary judgment to this Court. App. at 728-43. The Trustee's motion for

summary judgment and the Petitioner's motion to alter or amend were noticed for hearing on

November 3, 2016. App. at 703 & 758.

       One week before the Circuit Court's hearing, on October 24, 2016, the Petitioner attempted

to remove this case to the United States District Court for the Southern District of West Virginia,

App. at 762-66, and filed a successive motion to dismiss in federal court. App. at 1271-74. The

Trustee and Respondent Barry promptly moved to remand the case, but the federal court did not

grant their motions to remand until six months later, on April 10, 2017. App. at 1980-93.

       3.      The Texas court agrees that the Petitioner has no claim to the Trust and
               sanctions the Petitioner's Texas counsel for filing frivolous claims.

       While the proceedings in West Virginia were being held up in federal court, the heirs at

law of Mr. and Mrs. Short filed a motion for partial summary judgment in Texas, asking that court




                                                 5
to also find that the Petitioner was not a beneficiary of the Trust.2                  App. at 1649-61.        On

December 19, 2016, the Texas court agreed and granted the heirs' motion, finding that the

Petitioner was not a beneficiary of the Trust and 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."

App. at 1957-58. Subsequently, on February 10, 2017, the Texas court amended its order and final

judgment to sanction the Petitioner's Texas lawyers for filing frivolous claims to the Trust. App.

at 1969-73. Specifically, the Texas court found that the Petitioner's lawyers should have known,

as of September 16, 2016 (the date of the Circuit Court's order in West Virginia), that his claims

to the Trust were untenable. App. at 1970.

         Thereafter, Respondent Barry sent a letter asking the Petitioner to discontinue his frivolous

pursuit of the Trust assets. App. at 2743-47. The Petitioner rejected this request on March 1, 2017,

suggesting that the West Virginia and Texas courts' orders were "riddled with errors and

inaccuracies." App. at 2748-49. The Petitioner later filed an appeal in Texas, diminishing any

hope that the Petitioner would honor the parties' agreement.

         4.      The Petitioner files more vexatious pleadings in West Virginia, and the Circuit
                 Court finally denies the Petitioner's motions and enters a final order declaring
                 the proper distribution of the Trust assets.

         Immediately after the federal court remanded this case to Wirt County, on April 20, 2017,

the Trustee re-noticed her previously-filed summary judgment motion, and Respondent Barry re-

noticed the Petitioner's motion to alter or amend. Both motions were noticed for hearing on

June 27, 2017. App. at 2027 & 2030. Two weeks before the hearing, the Petitioner filed yet more


        2
           The heirs at law made clear at the summary judgment hearing in Texas that they were not waiving their
right to proceed in West Virginia. Rather, the heirs made clear that they trusted the Texas court to reach the same
conclusion as the Circuit Court in West Virginia. The heirs hoped that the Petitioner would honor the Texas court's
ruling and save the parties significant additional time and expense.



                                                         6
motions, this time a motion to intervene "on behalf of the Estate of Deborah Cortez" and another

post-judgment motion to dismiss. App. at 2034-49 & 2145-64. The Petitioner noticed his motions

for June 27, 2017, App. at 2333, and then sent a letter requesting that the Trustee again "reschedule

the motion for summary judgment [until] after the court has ruled on our motions." App. at 2624.

The Trustee and Respondent Barry declined the Petitioner's request.

       At the hearing on June 27, 2017, the Circuit Court verbally denied all of the Petitioner's

motions and directed Respondent Barry to prepare proposed orders containing findings of fact and

conclusions oflaw in support of the court's rulings. The Circuit Court also granted the Trustee's

motion for summary judgment, and entered an order and judgment declaring the rightful

beneficiaries of the Trust and their respective distributive interests in the Trust assets.       On

September 19, 2017, the Circuit Court entered its "Order Denying Defendant Mateo Cortez's

Motion to Alter or Amend," "Order Denying Motion to Dismiss," and "Order Denying Motion to

Intervene." App. at 309-3137. The Petitioner appealed these three orders to this Court.

                             II.     SUl\iIMARYOF ARGUMENT

       The Circuit Court's orders and judgment should be affirmed. The Petitioner's claims to

the Trust are frivolous, and have already been rejected by two different courts:

1.     On September 15, 2016, the Circuit Court of West Virginia granted partial summary
       judgment in favor of Respondents, concluding that Mr. and Mrs. Short did not intend for
       Mateo Cortez or the Estate of Deborah Cortez to share in the Trust assets.

2.     On December 19, 2016, the Probate Court of Travis County, Texas granted summary
       judgment and 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." The Texas
       court also sanctioned the Petitioner's lawyers for asserting frivolous claims to the Trust.
       Under Texas law, that court's ruling is resjudicata despite the taking of an appeal, and is
       entitled to full faith and credit from this Court.

3.     These two courts, the Circuit Court of West Virginia and- the Texas court, correctly
       concluded that the Petitioner has no claim to the Trust. The plain and unambiguous
       language of the Trust instrument demonstrates that William D. Short and Phyllis D. Short


                                                 7
        intended to provide for themselves during their lifetimes, and for their daughter Deborah
        during her lifetime following their deaths, after which any remaining Trust assets are to be
        distributed to Respondent Barry and the other respondents as "the heirs at law of William
        D. Short and Phyllis D. Short." The Petitioner's arguments to the contrary are frivolous,
        and run contrary not only to the clear intent of the settlors but also basic tenets of
        construction applicable to wills and trusts.

        The Petitioner's other assignments of error are interposed solely to obstruct the Trustee's

efforts to make final distribution of the Trust assets to the Trust's rightful beneficiaries. As a

threshold matter, the Petitioner lacks standing to interfere with this lawsuit because he has no

beneficial interest in the Trust. Restatement (Third) of Trusts§ 94 (2012) ("A suit against a trustee

of a private trust to enjoin or redress a breach of trust or otherwise to enforce the trust may be

maintained only by a beneficiary or by a co-trustee, successor trustee, or other person acting on

behalf of one or more beneficiaries."). The Petitioner's arguments also fail on their merits:

I.     The Princess Lida principle does not bar the Trustee's suit in West Virginia. Princess Lida
       only applies in the narrow set of circumstances where two courts are attempting to exercise
       in rem or quasi in rem jurisdiction over the same property. The Trustee's lawsuit in Texas
       was a tort action for monetary damages, and the Petitioner's intervention claim in that suit
       was a declaratory action to adjudicate his "right to participate in the res or as to his quantum
       of his interest in it." The Princess Lida case explicitly states that these types of claims are
       in personam only, and did not trigger exclusive jurisdiction in the Texas court. The Texas
       court in fact agreed that this action should proceed in West Virginia: "THE [TEXAS]
       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."

2.     This Court rejected the Petitioner's forum non conveniens arguments in State ex rel. Mateo
       Cortez v. Waters, Record No. 16-0428. The Circuit Court did not abuse its discretion in
       affording great deference to the Trustee's choice of a West Virginia forum to hear claims
       involving a trust administered from West Virginia by a West Virginia Trustee, affecting
       fifteen (15) West Virginia residents, the corpus of which consists of West Virginia real
       estate and funds held in a West Virginia bank.

3.     The Petitioner never asked the Circuit Court to stay this case under W. Va. Code§ 56-6-
       10, and this Court rejected the Petitioner's comity arguments in State ex rel. Mateo Cortez
       v. Waters, Record No. 16-0428. West Virginia is the only forum that has been asked to
       decide how the Trust assets should be distributed among the Trust's rightful beneficiaries.

4.     The Circuit Court correctly denied the Petitioner's request to intervene as "the Estate of
       Deborah Cortez." The Petitioner's request to intervene as "the Estate of Deborah Cortez"
       was untimely, the estate has no interest in the Trust to protect, and the Petitioner adequately


                                                  8
       represented the estate's interests in this litigation. The real reason the Petitioner sought to
       intervene as "the Estate of Deborah Cortez" was to hide behind a nominal party to avoid
       the Circuit Court's judgment, and to reargue in West Virginia the same frivolous legal
       theories that led to sanctions against his lawyers in Texas.

5.     The Circuit Court properly granted summary judgment in favor of Respondent Barry.
       There is no formalistic requirement that prevented the Circuit Court from granting
       summary judgment if the record revealed no genuine issue of material fact and the movant
       demonstrated an entitlement to judgment as a matter of law. Respondent Barry made the
       proper showing for summary judgment against the Petitioner. Additionally, "a party may
       not simply assert in his brief that discovery was necessary and thereby overturn summary
       judgment." The Petitioner made no showing that discovery was necessary, and in fact
       admitted that the Trust instrument unambiguously expressed the intent of the settlers.

                 III.    STATEMENT REGARDING ORAL ARGUMENT

       Respondent Barry believes that oral argument is unnecessary because the appeal is

frivolous, the facts and legal arguments are adequately presented in the parties' briefs and the

record on appeal, and the decisional process would not be significantly aided by oral argument.

See W.Va. R. App. P. 18. The Trustee properly filed this action in West Virginia, the Circuit Court

correctly decided that the Petitioner has no interest in the Trust, and the Petitioner's assignments

of error are without merit under the controlling legal precedents. Respondent Barry therefore

requests that the Court dispense with oral argument and issue a memorandum decision affirming

the Circuit Court's orders and judgment. See W. Va. R. App. P. 21. However, in the event the

Petitioner is granted oral argument, Respondent Barry respectfully requests a similar opportunity

for oral argument to respond to any facts or arguments raised by the Petitioner before the Court.

                                       IV.     ARGUMENT

A.     THE PETITIONER IS NOT A BENEFICIARY OF THE TRUST, AND                                      ms
       ARGUMENTS TO THE CONTRARY ARE FRIVOLOUS AND BARRED BY RES
       JUDICATA.

        Irrespective of whether he acts individually or "as representative of the Estate of Deborah

Cortez," the Petitioner has no legitimate claim to his in-laws' Trust or its assets. The plain and

unambiguous language of the Trust instrument is crystal clear: Mr. and Mrs. Short intended to


                                                  9
provide for themselves during their lives and for their daughter Deborah during her life, after which

Mr. and Mrs. Short intended that any remaining Trust assets be distributed to their heirs at law.

App. at 109-22. It cannot be disputed - and the Petitioner conceded below - that the Petitioner is

not an heir at law of either Mr. or Mrs. Short. App. at 569. Accordingly, the Circuit Court in this

case and the probate court in Texas both concluded that the Petitioner is not a beneficiary of the

Trust and have both entered judgment against the Petitioner in his individual and representative

capacities. App. at 674-82, 1957-58. Nonetheless, the Petitioner continues to claim that he is the

sole beneficiary of the Trust, and has made every effort to obstruct the proceedings in both West

Virginia and Texas by continuously filing frivolous pleadings and motions. The plain and

unambiguous language of the Trust instrument demonstrates that the Petitioner has no interest in

the Trust, and that Mr. and Mrs. Short specifically intended to exclude him as, a beneficiary.

         1.       The Circuit Court (and the Texas court) correctly determined that the
                  Petitioner has no interest in the Trust or remaining Trust assets, which are to
                  be distributed "One-half (1/2) to the heirs at law of William D. Short" and
                  "One-half (1/2) to the heirs at law of Phyllis D. Short."

         The Circuit Court correctly determined that Mr. and Mrs. Short intended that the remaining

Trust assets be distributed to Respondent Barry and the other relatives of Mr. and Mrs. Short, and

not to the Petitioner. "The polestar of trust interpretation is the settlor' s intent. If the trust language

is unambiguous, the settlers' intent as expressed in the trust controls and the court cannot resort to

extrinsic evidence. In determining the settlers' intent, the court should not 'resort to isolated words

and phrases'; instead, the court should construe 'the instrument as a whole,' taking into account

the general dispositional scheme.'' Roberts v. Sarros, 920 So.2d 193, 195 (Fla. 2d DCA 2006)

(internal citations omitted).3 It is undisputed that the "Second Amendment and Restatement of the


         3
           The Petitioner argues on appeal that the Trust should be interpreted under Florida law. Pet'r Br. at 33-35.
The Circuit Court declined to address which state's substantive law applied, finding that its conclusion was the same
regardless of the choice of law. App. at 680. West Virginia's rules of trust interpretation are the same as Florida's,


                                                         10
William D. Short and Phyllis D. Short Revocable Living Trust dated April 30, 1991" is the

controlling Trust instrument, and that the document expresses the true intent of the settlors in plain

and unambiguous language. App. at 109-22, 569. Accordingly, the settlers' intent was solely a

question oflaw to be decided from the terms of the Trust instrument.

          Article V of the Trust instrument governed how the Trust was to be administered during

the lives of the settlors. App. at 110. The Trust assets were divided and managed as two separate

shares, one for the benefit of Mr. Short and the other for Mrs. Short. Id. Upon Mr. Short's death

(the first settlor to die), under Article VI his share of the Trust was used to pay expenses and taxes

on his estate, a portion (up to the maximum estate tax deduction) was added to Mrs. Short's share

of the Trust, and the remainder was administered as a credit shelter trust for the benefit of Mrs.

Short during her life. App. at 110-11. Upon Mrs. Short's death, under Article VII her share of the

Trust was used to pay expenses and taxes on her estate; although Article VII, Section B permitted

Mrs. Short to make testamentary dispositions of Mr. Short's credit shelter trust, no such

dispositions were included in her will. App. at 112, 1681-85. The remainder of Mr. Short's credit

shelter trust and Mrs. Short's share of the Trust were then consolidated and administered "as if it

were a single trust" under Article VIII. App. at 112.

          Article VIII contains a series of instructions for the trustee to administer the Trust after the

death of both settlors. Section A, entitled "Specific Distributions," contains just that- a series of


so there was no conflict for the Circuit Court to resolve. Cf Syl. Pts. 1 & 2, Hemphill v. Aukamp, 164 W. Va. 368,
264 S.E.2d 163 (1980) ("The paramount principle in construing or giving effect to a trust is that the intention of the
settlor prevails, unless it is contrary to some positive rule of law or principle of public policy" and "In ascertaining the
intent of the settlor, the entire trust document should be considered."); Syl. Pt. 3, Kanawha Banking & Trust Co. v.
Gilbert, 131 W. Va. 88, 46 S.E.2d 225 (1947) ("When a written contract is clear and unambiguous its meaning and
legal effect must be determined solely from its contents and it will be given full force and effect according to its plain
terms and provisions. Extrinsic evidence of the parties to such contract, or of other persons, as to its meaning and
effect will not be considered."). Nonetheless, in addressing the Petitioner's arguments to this Court, Respondent Barry
will likewise refer to Florida substantive law and West Virginia procedure. See Syl., in part, State ex rel. Airsquid
Ventures, Inc. v. Hummel, 236 W. Va. 142, 778 S.E.2d 591 (2015) ("The procedural laws of this state necessarily
apply to matters that are brought in the courts of West Virginia.").



                                                            11
"specific distributions of cash" to three churches and to Deborah Cortez, if she was living and

legally competent. App. at 112. Because Deborah survived Mrs. Short, the remaining Trust assets

were then administered under Section B, as a "Continuing Trust for Deborah" during Deborah's

lifetime. App. at 112-13. All three subsections of Section B make clear that the continuing trust

for Deborah existed only "during Deborah's life." Id. Upon Deborah's death, the remaining Trust

assets were to be distributed under Section C as follows: "1. One-half (1/2) to the heirs at law of

William D. Short; and 2. One-half (l/2) to the heirs at law of Phyllis D. Short." App. at 113.

        As detailed above, the plain and unambiguous language of the Trust instrument states that

Mr. and Mrs. Short intended to provide for themselves during their lifetimes, and for their daughter

Deborah during her lifetime following their deaths, after which any remaining Trust assets were

to be distributed under Article VIII, Section C of the Trust as follows: "L One-half (1/2) to the

heirs at law of William D. Short; and 2. One-half (1/2) to the heirs at law of Phyllis D. Short."

App. at 113. The Petitioner conceded below that he is not an heir at law of either Mr. or Mrs.

Short. App. at 569. Moreover, it is black-letter law that [s]pouses of the decedent's blood or

adopted relatives, such as daughters-in-law and sons-in-law, are relatives by affinity.          The

intestacy statutes, including the UPC, 'exclude them from inheriting." Restatement (Third) of

Property (Wills & Don. Trans.) § 2.4 cmt. g (1999) ( emphasis added). The Circuit Court therefore

correctly found (as did the Texas court) that the Petitioner is not a beneficiary of the Trust and is

not entitled to share in the Trust assets. App. at 681-82.

        The Circuit Court's finding is further supported by other information evident from the face

of the Trust instrument. First, the Trust never mentions the Petitioner as a beneficiary. Cf App.

at 109-22. In fact, the only individuals, other than the settlors, that are named as beneficiaries of

the Trust are "Deborah A. Cortez," "the heirs at law of William D. Short," and "the heirs at law of




                                                 12
Phyllis D. Short." App. at 112-13. Second, the settlors knew their daughter Deborah was married

to the Petitioner because she is referred to throughout the Trust instrument by her married name,

"Deborah A. Cortez." App. at 109, 112-13. If the settlors intended for the Petitioner to possess

any interest in the Trust, then they would have named him as a beneficiary, named "the heirs at

law of Deborah A. Cortez" as a beneficiary, or otherwise provided for a distribution scheme in

which he would talce an interest in the Trust upon final distribution. The settlors' obvious

knowledge that the Petitioner was Deborah's husband, coupled with their conscious decision to

omit him as either a direct or contingent beneficiary of the Trust, is clear and incontrovertible proof

that the Petitioner has no interest in the Trust and was never intended to have an interest in the

Trust. The Circuit Court (and the Texas court) therefore correctly granted summary judgment

against the Petitioner, and its decision should be affirmed.

        2.      The Petitioner's argument below that the Trust terminated upon the death of
                Mrs. Short, and therefore should be distributed to him as "the sole heir of the
                Estate of Deborah Cortez," is frivolous.

       Prior to the Circuit Court entering judgment against him, the Petitioner presented only one

theory to support his claim to the Trust assets. The Petitioner claimed that he is the sole beneficiary

of the Trust due to the language in Article VIII, Section D, which applies "[ijf any beneficiary is

under the age of thirty-five (35) years at the time he or she becomes entitled to distribution .... "

App. at 113, 569-70. The Petitioner specifically relied on the language of Article VIII, Section

D .2, which states that, "when such beneficiary reaches the age of thirty-five (3 5) years, the balance

of his or her trust share, including both principal and any accrued and undistributed income, shall

be distributed to that beneficiary." App. at 113, 570. According to the Petitioner, because Deborah

was over the age of 3 5 when Mrs. Short died, "the Trust terminated by its own terms" under Article

VIII, Section D.2, all of the Trust assets should have "vested" in Deborah during her life, and the




                                                  13
Petitioner therefore inherited the entirety of the Trust assets as "the sole heir of the Estate of

Deborah Cortez." App. at 570-71.

        The Circuit Court was required to ascertain the settlors' intent from the Trust instrument as

a whole, and not through a strained reading of "isolated words and phrases." Roberts v. Sarros,

920 So.2d 193, 195 (Fla. 2d DCA 2006).4 The plain language of Article VIII, Section D only

applies if "any beneficiary is under the age of thirty-five (35) years at the time he or she becomes

entitled to distribution." App. at 113. At the time the Trust instrument was executed, Deborah

was already 43 years old. Compare App. at 119 (stating that the Trust was executed on January 5,

2000) to App. at 175 (stating that Deborah Cortez died on December 9, 2011 at the age of 54).

Further, Deborah was not "entitled to distribution" until Mrs. Short died, at which time Deborah

was 54 years old. App. at 175.

        In order to accept the Petitioner's reading of the Trust, the Circuit Court would have been

required to find that the settlors did not know the age of their own daughter, and would also have

been required to read Article VIII, Sections A-C out of the Trust instrument. Indeed, if the settlers

intended for the Trust to terminate and its assets distributed to Deborah Cortez upon their deaths,

the Trust instrument would have simply said so, instead of creating a "Continuing Trust for

Deborah'' during her lifetime. It is clear that Section D was not intended to apply to the trust

created for Deborah, but instead to the alternate distribution to the "heirs at law" of Mr. and Mrs.

Short if any of those heirs happened to be under the age of 35 at the time of distribution. The

Petitioner's reading of the Trust was plainly absurd and would have vitiated the settlers' intent.




         4
            Cf Syl. Pt. 2, Hemphillv. Aukamp, 164 W. Va. 368, 264 S.E.2d 163 (1980) ("In ascertaining the intent of
the settlor, the entire trust document should be considered").



                                                        14
          3.       The Petitioner's new argument that "the Estate of Deborah Cortez" is an "heir
                   at law" of Mr. and Mrs. Short was waived below and is frivolous. Dead people
                   and their estates are not heirs at law.

         The Petitioner now claims that "the Estate of Deborah Cortez" is a beneficiary of the Trust

because, under Florida intestacy law, Mrs. Short was the heir at law of Mr. Short when he died,

and Deborah Cortez was the heir at law of Mrs. Short when she died. Pet'r Br. at 33-35. The

Petitioner first raised this interpretation of the Trust through a post-judgment Rule 59(e) motion,

App. at 733-34, and therefore waived it below. See East Sussex Children Services v. Morris, No.

3:12-CV-141, 2013 WL 704660, at *3 (N.D.W. Va. Feb. 27, 2013) ("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."). 5 The Petitioner's argument is also nonsense, and intentionally misleading.

         According to the Petitioner's logic, "Deborah Cortez would have been entitled to the entire

estate under Florida's intestate succession statute and, therefore, she is the sole heir, and her right

vested on the date of Phyllis Short's death." Pet'r Br. at 34. That sounds legitimate, except for

the fact that the Trust assets were not part of "the estate" of Phyllis Short when she died, and did

not "vest" in anyone except in accordance with the terms of the Trust instrument. Cessac v.

Stevens, 127 So.3d 675, 680 (Fla. 1st DCA 2013) (rejecting argument that trust assets were part of

the decedent's estate, and holding that property held in trust must pass as directed in the trust

instrument).6 See also Restatement (Third) of Property (Wills & Don. Trans.)§ 1.1 cmt. b (1999)


         5
           "Because the West Virginia Rules of Civil Procedure are practically identical to the Federal Rules, we give
substantial weight to federal cases ... in determining the meaning and scope of our rules." Painter v. PeClV)I, 192
W. Va. 189, 192 n.6, 451 S.E.2d 755, 758 n.6 {1994) (citations omitted). CJ Meyv. 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 ten that the only difference between the West Virginia and federal rule is the time period to file
a motion.).
           Mr. and Mrs. Short also died testate, so their estates did not pass by intestacy but instead poured back into
         6

the Trust for administration. App. at 1676-85.



                                                          15
(explaining that property held in trust is not part of a decedent's probated estate). Under Florida

trust law, "[a] person's right to share in the distribution of the corpus of the trust depends on his

surviving until the trust terminates, and being within the class of persons described by the testator

as persons eligible to take the corpus." Lewis v. Green, 389 So.2d 235, 243 (Fla. 5th DCA 1980).

See also Fla. Stat. § 736.1106(2) ("A future interest under the terms of a trust is contingent upon

the beneficiary surviving the distribution date."). As already discussed above, the Trust did not

terminate or "vest" in Deborah Cortez upon the death of Mrs. Short. Rather, the remaining Trust

assets were administered under Article VIII, Section Bas a continuing trust for Deborah "during

Deborah's life." App. at 112-13. "[U]pon Deborah's death," her interest in the Trust extinguished,

and the remaining Trust assets are to be distributed under Section C to the heirs at law of Mr. and

Mrs. Short then living at the time of Deborah's death.

        Implicit in the Petitioner's argument is the bizarre idea that "the Estate of Deborah Cortez"

is somehow an "heir at law" of Mr. or Mrs. Short. It is axiomatic that a dead person's estate is not

an "heir at law" of a decedent. See Restatement (Third) of Property (Wills & Don. Trans.) § 1.2

(1999) ("An individual who fails to survive the decedent cannot take as an heir or a devisee."),

See also Lewis v. Green, 389 So.2d 235, 243 (Fla. 5th DCA 1980) ("A person's right to share in

the distribution of the corpus of the trust depends on his surviving until the trust terminates, and

being within the class of persons described by the testator as persons eligible to take the corpus.").

A decedent's "heirs at law" are his or her living descendants on the date their right to distribution

vests. This is a basic and elementary concept of descent and distribution, and it is explicitly built

into the Florida trust code:

                A future interest under the terms of a trust is contingent upon the
                beneficiary surviving the distribution date. Unless a contrary intent
                appears in the trust instrument, if a beneficiary of a future interest
                under the terms of a trust fails to survive the distribution date, and



                                                  16
                   the deceased beneficiary leaves surviving descendants, a substitute
                   gift is created in the beneficiary's surviving descendants. They take
                   per stirpes the property to which the beneficiary would have been
                   entitled if the beneficiary had survived the distribution date.

Fla. Stat. § 736.1106(2). The only exception is when a will or trust directly makes a disposition

to an "estate" or "executor" of a deceased person. Restatement (Third) of Property (Wills & Don.

Trans.) § 1.2 at cmt. g (1999) ("Although an individual who fails to survive the decedent cannot

take as a devisee, a devise to the 'estate' or to the 'executor' of a deceased person is valid.''). The

Trust instrument obviously makes no provision for "the Estate of Deborah Cortez" or its executor.

Cf App. at 109-22. Indeed, the Trust only provides for Deborah "during her life." App. at 112-

13. The settlers obviously intended that "the heirs at law of William D. Short" and "the heirs at

law of Phyllis D. Short" be determined as of the date of Deborah's death, when the Trust

terminated and any remaining assets distributed.

         4.       The Petitioner's new argument that the Trust lapsed was waived below and is
                  frivolous. The Trust instrument fully provides for the disposition of the Trust
                  assets, and it would be both absurd and in violation of the rules of construction
                  to interpret the Trust as ineffective for its intended purposes.

         Alternatively, the Petitioner now wants to argue that the Trust lapsed and that Mrs. Short

failed to dispose of her estate through her will, and therefore the Trust assets should have passed

by intestacy to Deborah Cortez when Mrs. Short died. Pet'r Br. at 30-33. In other words, the

Petitioner is now asking this Court to find, as a matter of law, that Mr. and Mrs. Short created a

detailed estate planning scheme that was ineffective to actually accomplish their expressed intent.

The Petitioner failed to raise this argument below and therefore waived it.7 See Zaleski v. West

Virginia Mut. Ins.     c«. 224 W. Va.       544, 550, 687 S.E.2d 123, 129 (2009) ("This Court has long


         7
           Nine months after the Circuit Court granted summary judgment against him, the Petitioner attempted to
intervene "on behalf of the Estate of Deborah Cortez" to raise this new theory interpreting the Trust. The Circuit
Court correctly declined to allow ''the Estate" to intervene. The Circuit Court's reasoning is discussed in more detail
in Section V, subsection F, below.



                                                          17
held that theories raised for the first time on appeal are not considered.").        The Petitioner's

argument is also frivolous because it would not only vitiate the clear intent of the settlors as

expressed in the Trust instrument, but also violate basic tenets of will and trust construction.

        The Petitioner points to a single sentence in Article VIII, Section A of the Trust that he

claims invalidates the remaining provisions of the Trust instrument. Article VIII, Section A sets

forth a list of "specific distributions of cash," including a one-time distribution to Deborah Cortez:

                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.

App. at 112. The Petitioner argues that the second sentence of this paragraph dictates that "none

of the successive administrative steps [under Article VIII] are to be taken unless Deborah was

either deceased or incompetent at the time of her second parent's death." Pet'r Br. at 32. Because

Deborah was living and competent when Mrs. Short died, the Petitioner asks this Court to ignore

the remainder of Article VIII and find that "the Trust fails to dispose of the entire estate." Pet'r

Br. at 33. The Petitioner also asks this Court to find that Mrs. Short's will "fails to dispose of the

entire estate of Phyllis Short" because it devises her residuary estate back to a lapsed Trust. Pet'r

Br. at 33. The Petitioner therefore asks this Court to invalidate Mrs. Shorts' entire estate plan, and

find that the Trust assets passed through intestacy to Deborah Short upon Mrs. Short's death, and

ultimately to him as "the sole heir of the Estate of Deborah Cortez."

        The Petitioner's argument is absurd, and twists an isolated phrase from one sentence of the

Trust instrument in a way that defeats the clear intent and entire estate plan of the settlors:

                To determine the settlors' intent, the court should construe the
                instrument as a whole, taking into account the general dispositional
                scheme. It should not resort to isolated words and phrases. This is


                                                  18
                  true whether the court is interpreting the entire trust or only a
                  specific clause.

Vigliani v. Bank ofAmerica, NA., 189 So.3d 214, 219 (Fla. 2d DCA 2016) (internal citations and

quotations omitted) (emphasis added). "Furthermore, a court must construe a [trust instrument] in

a manner that accords with reason and probability; and avoid an absurd construction." Ospina-

Baraya v. Heiligers, 909 So.2d 465, 472 (Fla. 4th DCA 2005).8 By its terms, the second sentence

of Article VIII, Section A.2 of the Trust instrument pertains solely to whether the "specific

distribution of cash" to Deborah under that paragraph lapses, and was not a "condition" to

administering the Trust under the remaining sections. Rather, as stated in Section B, the only

"condition" for administering the Trust as a "Continuing Trust for Deborah" was that she be "living

on the date of the death of the second one of us to die." App. at 112. Similarly, as stated in Section

C, the only "condition" for the "Alternate Distribution" to the heirs at law of Mr. and Mrs. Short

was that "assets of the trust remain undistributed upon Deborah's death, or if she fails to survive

us." App. at 113. The overall distributional scheme of the Trust is obvious: under Article VIII,

after the trustee makes certain "specified distributions of cash" under Section A, if Deborah

survived the settlors then the Trust assets were to be administered under Section B as a "Continuing

Trust for Deborah" during her life, and upon her death any remaining assets were to be distributed

under Section C to Respondent Barry and others as the heirs at law of Mr. and Mrs. Short.

         The Petitioner's argument is also in direct conflict with other language in the Trust

instmment. "If the provisions of a contract are unambiguous, courts may not violate the clear

meaning of the words in order to create an ambiguity, and certainly may not rewrite the contract."

Florida Recycling Services, Inc. v. Greater Orlando Auto Auction, Inc., 898 So.2d 129, 131



         8
          "The general rules of construction of written instruments apply to the construction of trust instruments."
Watson v. St. Petersburg Bank & Trust Co., 146 So.2d 383, 385 (Fla. 2d DCA 1962).



                                                         19
(Fla. 5th DCA 2005). The Petitioner claims that Article VIII, Sections B-D do not apply "unless

Deborah was either deceased or incompetent," Pet'r Br. at 32, but Section B.1 states that the trustee

"shall distribute to her, or on her behalf if she becomes incapacitated," the net income of the

continuing trust established under that section.             App. at 112 (emphasis added).            Similarly,

Section B.2 gave Deborah the annual right to "withdraw up to $25,000.00 of the principal of the

trust," which she would be unable to        do if she was incompetent. Id In other words, Section B

was not dependent on Deborah's competency- the settlers intended to create a "Continuing Trust

for Deborah" under that section so long as she was "living on the date of the death of the second

one of us to die." Reading the Trust instrument as the Petitioner suggests would require the Court

to create an ambiguity in the document, which is impermissible.

         Finally, the Petitioner's argument also violates basic tenets of construction. "It is initially

presumed that a testator intended to dispose of his entire estate." In re Roulston 's Estate, 142

So.2d 107, 110 (Fla. 2d DCA 1962).9 "Intestacies are not favored in construing wills. If the terms

of a will are such as to permit two constructions, one of which results in intestacy and the other of

which leads to a valid testamentary disposition, the construction is preferred which will prevent

intestacy." In re Gregory's Estate, 70 So.2d 903, 907 (Fla. 1954).10 The same constructional

preference applies to trust instruments. See 90 C.J.S. Trusts § 207 ("[T]he rules of construction

used with respect to wills apply to the construction of trust agreements."). Cf Restatement (Third)

of Property (Wills & Don. Trans.)§ 11.3 cmt. i (2003) ("All other things being equal, most donors

would want their donative documents to be as effective as possible."). The Petitioner is not only



        9
           Cf Syl. Pt. 5, Painter v. Coleman, 211 W. Va. 451, 566 S.E.2d 588 (2002) ("Where a will is made it is
presumed that the testator intended to dispose of his whole estate, and such presumption should prevail unless the
contrary shall plainly appear.").
          10
             Syl. Pt. 3, Painter v. Coleman, 211 W. Va. 451, 566 S.E.2d 588 (2002) ("The law favors testacy over
intestacy.").



                                                       20
asking this Court to adopt a construction of the Trust instrument that "fails to dispose of the entire

[Trust] estate," he is also asking the Court to adopt a construction of Mrs. Short's will that "fails

to dispose of the entire estate of Phyllis Short." Pet'r Br. at 33. Again, it is the duty of this Court

to uphold a construction of both instruments that avoids an absurd result. Clearly, the settlors did

not intend to execute a Trust and wills that "fail to dispose of their entire estate."

        5.      The Petitioner's claims to the Trust are also barred by res judicsts. On
                December 19, 2016, the Texas court ruled that the Petitioner, in both his
                personal and representative capacities, is not a beneficiary of the Trust. Under
                Texas law, that court's ruling is final despite the taking of an appeal, and
                entitled to full faith and credit from this Court.

        In any event, at this point the Petitioner's various misinterpretations of the Trust are

irrelevant. Not only has the Circuit Court already declared that the Petitioner has absolutely no

interest in the Trust, but the Texas probate court has done so as well. On December 19, 2016, the

Texas court also granted summary judgment against the Petitioner, concluding as a matter of law

that Mateo Cortez and "the Estate of Deborah Cortez" have zero interest in the Trust, and

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")." App. at 1957-58. Although a trial

court decision in West Virginia is not resJudie ata until appellate proceedings have been exhausted,

the same is not true in Texas. Under Texas law, the Texas probate court's decree is final and

binding, entitled to full faith and credit from this Court, and constitutes res judicata barring the

Petitioner's claims to the Trust and this appeal.

        "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." Syl. Pt. 3; State ex rel. Lynn v. Eddy, 152 W. Va. 345, 163 S.E.2d

472 (1968). In Texas:


                                                    21
                  res judicata precludes relitigation of claims that have been finally
                 adjudicated, or that arise out of the same subject matter and that
                 could have been litigated in the prior action. It requires proof of the
                 following elements: (1) a prior final judgment on the merits by a
                 court of competent jurisdiction; (2) identity of parties or those in
                 privity with them; and (3) a second action based on the same claims
                 as were raised or could have been raised in the first action.

Amstadt v. US. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996) (internal citations omitted). "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," Scurlock Oil Co. v. Smithwick,

724 S.W.2d 1, 6 (Tex. 1986).11 Pursuant to Scurlock, a Texas probate court's judgment declaring

the beneficiaries of a trust is res judicata even if an appeal is taken. See Kuhns v. Bank One, Texas,

NA., No. 03-98-00177-CV, 1999 WL 699813, at *3 (Tex. Ct. App. 1999) (not designated for

publication) ("Although the probate court's declaratory judgment was subject to a de nova review

on appeal, that review did not constitute a trial de nova. The probate court's judgment was final

for res judicata purposes .... ").

         This Court must give full faith and credit to the Texas probate court's December 19, 2016

order and judgment. First, the Texas court entered a final judgment on the merits of the Petitioner's

claims, 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." App. at 1957-58.

Although the Petitioner appealed that decision, the fact of an appeal does not affect the finality of

the decision for purposes of res judicata. Second, the Petitioner cannot dispute he was a party to




        11
           Res judicata is the generic term for the related concepts of issue and claim preclusion. See Barr v,
Resolution Trust Corp. ex rel. Sunbelt Federal Sav., 837 S.W.2d 627, 628 (Tex. 1992).



                                                      22
the Texas case: the Trustee sued the Petitioner in his individual capacity, App. at 81, and he filed

his intervention claims in his capacity "as Representative of the Estate of Deborah Cortez." App.

at 92. Third, the Petitioner cannot deny that the Texas court's judgment was based on the same

claims he raised or could have raised here because the court granted judgment on his intervention

claim that he was entitled to the Trust assets. The Texas court's December 19, 2016 order and

judgment satisfies all of the elements of res judicata under Texas law, and therefore must be given

full faith and credit by this Court. Accordingly, the Petitioner's claims before this Court are barred

by res judicata, and this Court should affirm the Circuit Court's judgment and dismiss this appeal.

B.      THE TEXAS COURT IS NOT EXERCISING EXCLUSIVE JURISDICTION
        OVER THE TRUST. THE TRUSTEE'S LAWSUIT IN TEXAS WAS AN IN
        PERSONAM TORT ACTION FOR DAMAGES, AND NOT AN ACTION TO
        ADMINISTER THE TRUST.   THE PETITIONER'S DEFENSE TO THE
        TRUSTEE'S TORT CLAIMS DID NOT CONVERT THE PROCEEDINGS IN
        TEXAS INTO A QUASIINREMACTION TO ADMINlSTER THE TRUST.

        The Petitioner primarily argues that the Circuit Court lacked subject matter jurisdiction

under Princess Lida of Thurn & Taxis v. Thompson, which applies to parallel in rem or quasi in

rem proceedings where two courts are attempting to exercise control over the same property. 305

U.S. 456, 466 (1939). Pet'r Br. at 12-19. The Petitioner lacks standing to object to the Trustee's

decision to file suit in West Virginia because he clearly has no interest in the Trust or these

proceedings. Restatement (Third) of Trusts § 94 (2012) ("A suit against a trustee of a private trust

to enjoin or redress a breach of trust or otherwise to enforce the trust may be maintained only by a

beneficiary or by a co-trustee, successor trustee, or other person acting on behalf of one or more

beneficiaries."). CJ United Bank, Inc. v. Blosser, 218 W. Va. 378, 382-83, 624 S.E.2d 815, 819-

20 (2005) (plaintiffs, who were not "blood relatives" of settlors as specified in the trust, were not

beneficiaries and lacked standing to challenge administration of a charitable trust). Nevertheless,

the Petitioner's argument that Princess Lida stripped the Circuit Court ofjurisdiction misstates the



                                                 23
law and mischaracterizes the facts. The Petitioner's claim that the Texas court is "administering

the Trust" is false, as is his argument that his declaratory claims in Texas were quasi in rem.

         The Trustee initiated the proceedings in Texas to recover monetary damages from the

Petitioner for stealing from the Trust, alleging the torts of conspiracy, conversion, and theft. App.

at 81-91. In attempt to avoid liability on the Trustee's tort claims, the Petitioner subsequently filed

a defensive intervention claim asking the Texas court to declare that all of the Trnst assets belonged

to Deborah Cortez and should be distributed to her estate. App. at 92-96. The Princess Lida case

makes clear that both the Trustee's tort claims and the Petitioner's declaratory claims are in

personam actions only, and do not require control of the Trust property to grant either parties'

requested relief. Indeed, the Texas court agreed that the Trustee's action could proceed in West

Virginia: "THE [TEXAS] 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." App. at

1464. The Circuit Court and the Texas court both properly determined that West Virginia has

jurisdiction to adjudicate the Trustee's claims.

        1.      The Princess Lida principle is a narrow exception to the general rule
                permitting concurrent jurisdiction over parallel lawsuits. It only applies
                where both courts "must control the property" to grant the relief sought by
                the parties. It does not apply to tort suits for monetary damages, or to
                declaratory claims to adjudicate an individual's right to trust property.

        The general and longstanding rule of concurrent jurisdiction is that parallel lawsuits filed

in two different courts may proceed until one court enters a judgment that may be set up as res

judicata in the other:

                a controversy is not a thing, and a controversy over a mere question
                of personal liability does not involve the possession or control of a
                thing, and an action brought to enforce such a liability does not tend
                to impair or defeat the jurisdiction of the court in which a prior
                action for the same cause is pending. Each court is free to proceed
                in its own way and in its own time, without reference to the
                proceedings in the other.


                                                   24
Kline v. Burke Const. Co., 260 U.S. 226, 230 (1922). See also State ex rel. Small v. Clawges, 231

W. Va. 301, 308, 745 S.E.2d 192, 200 (2013) (citing Kline) ("Where the judgment sought is strictly

in personam ... both a state court and a federal court having concurrent jurisdiction may proceed

with litigation, at least until judgment is obtained in one court which may be set up as res

adjudicata in the other."). In Princess Lida of Thurn & Taxis v. Thompson, the Court articulated

a limited exception to concurrent jurisdiction where "two suits are in rem, or quasi in rem, so that

the court, or its officer, has possession or must have control of the property which is the subject of

the litigation in order to proceed with the cause and grant the relief sought." 305 U.S. 456, 466

(1939). The Court went on to state that this exception applies "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." Id. Seizing on this language, the Petitioner

now argues that the Texas court is "administering the Trust" and therefore has exclusive

jurisdiction over the Trustee's claims in West Virginia.

        "Of course, not every action that somehow relates to or implicates a trust qualifies as a

quasi in rem administration action." Barbiero v. Kaufman, No. 12-6869, 2013 WL 3939526, at

*9 (E.D.Pa. July 30, 2013). See also Princess Lida, 305 U.S. at 46�-66 (the fact that two courts

"would be required to cover the same ground" is "not conclusive of ... jurisdiction"). Princess

Lida only applies in the narrow set of circumstances where a court "must have control of the

property ... in order to proceed with the cause and grant the relief sought." Id at 466. By its

terms, Princess Lida does not apply "where the judgment sought is strictly in personam" Id at

466. A tort claim for money damages is the classic example of an in personam action, and is not

subject to Princess Lida even if the tort "relates to or implicates a trust":

                It is well settled that actions in personam, as for damages arising out
                of a tort, growing out of the same transaction and involving the same



                                                  25
                  parties, may be brought in both a state and a federal court, without
                  either ousting the jurisdiction of the other.

Haney v. Wilcheck, 38 F. Supp. 345, 356 (W.D. Va. 1941). Princess Lida also does not apply

"wherein the plaintiff seeks merely an adjudication of his right ... to participate in the res or as to

the quantum of his interest in it." Id. at 466-67. "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). "The primary distinction in this area of the law is weeding

out claims that seek only to adjudicate an individual's right to trust property or tort suits against a

trustee in his or her individual capacity. Such suits are in personam and do not trigger application

of the Princess Lida principle." Barbiero, 2013 WL 3939526, at *9 (internal citations omitted).

                  a.      The Trustee's tort action in Texas is an in personam action only, and does
                          not trigger the Princess Lida principle. The relief sought by the Trustee
                          in Texas consisted of monetary damages only and did not include matters
                          regarding the Trust's administration. The Trustee brought those claims
                          in West Virginia, where the Trust is administered and where the Trust res
                          is located.

         The Petitioner claims that "the Trustee ... filed suit first in Travis County, Texas, alleging

... improper administration of the Trust and seeking to recover alleged assets of the Trust from

Mr. Cortez." Pet'r Br. at 16. This is plainly a mischaracterization of the Trustee's lawsuit in

Texas. The Trustee obviously did not sue herself for "improper administration of the Trust." The

Trustee sued the Petitioner (who was never a Trustee and never administered the Trust) in tort for

stealing from the Trust assets, seeking monetary damages for conspiracy, statutory violations of

the Texas Theft Liability Act, 12 and common law conversion. App. at 81-91. These are clearly in

personam tort claims. L.F. Dommerich & Co. v. Bress, 280 F. Supp. 590, 600 (D.N.J. 1968)


         12
          The Texas Theft Liability Act creates a cause of action for damages against a person who commits theft.
See generally Tex. Civ. Prac. & Rem. Code Title 6, Chapter 134.



                                                       26
("Clearly, the litigation in this Court is in personam in that it seeks a money judgment of damages

against the named defendants, personally, for an alleged tort of conversion."). Cf Panama R. Co.

v. Vasquez, 271 U.S. 557, 561 (1926) ("an action in personam to recover damages for tort is one

of the most familiar of the common-law remedies"). Indeed, the reason the Trustee filed suit in

Texas was to obtain in personam jurisdiction over the Petitioner. Cf Shaffer v. Heitner, 433 U.S.

186, 197 (1977) ("If a court's jurisdiction is based on its authority over the defendant's person, the

action and judgment are denominated 'in personam' and can impose a personal obligation on the

defendant in favor of the plaintiff.").

        Moreover, the Trustee sought as relief a "judgment: 1. Against Mateo Cortez ... in the

amount of the [un]authorized payments ... 2. Against Mateo Cortez, for actual and additional

damage under the Theft Liability Act ... 3. Against Mateo Cortez ... for exemplary damages,"

and an award of attorneys' fees and court costs. App. at 90. The Trustee did not ask the Texas

court to make any determination regarding "forms of trust administration and management," such

as "the ownership, control and administration" of the Trust or "the powers, duties and liabilities"

of the Trustee. Barbiero, 2013 '\,\1L 3939526, at *9-10. Rather, the Trustee brought those claims

in West Virginia, where the Trust was being administered and where the res of the Trust is located.

Although the Trustee's claims in Texas related to the Trust, they were clearly tort claims against

the Petitioner personally, and did not affect the actual administration of the Trust.

                b.     The Petitioner's intervention claim in Texas did not convert those
                       proceedings into a quasi in rem action, and did not trigger the Princess
                       Lida principle. A declaratory claim to adjudicate an individual's right to
                       trust property is not an in rem or quasi in rem action.

        The Petitioner argues that his intervention claim in Texas nonetheless created quasi in rem

jurisdiction. Pet'r Br. at 16-19. The Petitioner admits that this claim "specifically asserted in a

Texas court [the Estate of Deborah Cortez's} 'right to participate in the res or as to [its] quantum



                                                  27
of [its] interest in it," but then falsely asserts that this "obviously indicates that the Texas litigation

involved the res of the Trust." Pet'r Br. 18. By its explicit terms, Princess Lida does not applv

"wherein the plaintiff seeks merely an adjudication of his right ... to participate in the res or as to

the quantum of his interest in it." 305 U.S. at 466-67. "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. ofPittsburgh v.

Bradford, 297   U.S. 613, 619 (1936). Cf Princess Lida, 305 U.S. at 466-67 (citing Bradford).
Again, although the Petitioner's intervention claim in Texas related to the Trust, it was an in

personam declaratory claim "to adjudicate an individual's right to trust property" that did not

"trigger application of the Princess Lida principle." Barbiero, 2013 WL 3939526, at *9.

        2.      The cases cited by the Petitioner are distinguishable, and do not apply to the
                facts before this Court. Both cases involved parallel suits where the relief
                requested would have directly interfered with the administration of the trusts.

        The Petitioner cites two cases that invoked the Princess Lida principle, neither of which

support dismissal ofthis action. See Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456,

(1939); Barbiero v. Kaufman, 580 Fed. Appx. 107 (3d Cir. 2014). Both cases applied Princess

Lida because the parties sought to have two different courts grant relief that directly affected "the

ownership, control and administration" of a trust, or "the powers, duties and liabilities" of a trustee.

In Princess Lida, the plaintiffs originally sued in Pennsylvania state court when the trustee

repudiated the trust agreement, and sought as relief performance of the agreement, an accounting

of the trustee's actions, and removal of the trustee. 305 U.S. at 458. The plaintiffs' subsequent

action in federal court also sought removal of the substitute trustees and an accounting. Id at 459.

Similarly, in Barbiero, the plaintiff-trustee filed suit in Illinois state court, requesting permission

to deviate from the unanimity provision in the trust instrument, which the trustee contended

prevented him from obtaining a loan needed to maintain the trust corpus. 580 Fed.Appx. at 109.


                                                    28
A beneficiary of the trust subsequently sued in Pennsylvania, seeking removal of the trnstee. Id.

As stated by the Barbiero court, both Princess Lida and Barbiero presented competing lawsuits

that "intimately affect[ed] the administration of the trust itself." 580 Fed. Appx. at 112. The

Trustee and the Petitioner's claims in Texas are clearly distinguishable, do not "intimately affect

the administration of the trust itself," and do not affect this Court's jurisdiction.

C.      TIDS COURT PREVIOUSLY CONSIDERED AND REJECTEO THE
        PETITIONER'S FORUMNON CONVENIENSARGUMENTS IN STATE EXREL.
        MATEO CORTEZ v. WATERS, RECORD NO. 16-0428. WEST VIRGINIA WAS
        AN APPROPRIATE AND CONVENIENT FORUM FOR ADJUDICATING
        CLAIMS RELATING TO A TRUST ADMINISTERED FROM THIS STATE.

        The Petitioner next argues that the Circuit Court erred by not dismissing this case under

West Virginia's forum non conveniens statute, W. Va. Code§ 56-1-la. Pet'r Br. at 19-29. "A

circuit court's decision to deny a motion to dismiss based upon forum non conveniens will not be

reversed unless the circuit court has abused its discretion." Syl. Pt. 1, State ex rel. American Elec.

Power Co., Inc. v. Nibert, 237 W. Va. 14, 784 S.E.2d 713 (2016). The Petitioner previously sought

a writ of prohibition when the Circuit Court declined to dismiss this case forforum non conveniens.

See State ex rel. Cortez v. Waters, Record No. 16-0428. See also App. at 1837-82. This Court

denied the Petitioner's request for a writ, and the Petitioner's renewed argument on appeal presents

no reason for this Court to depart from its previous determination that the Circuit Court did not

abuse its discretion. See App. at 638-39. Indeed, the Petitioner's brief largely repeats the same

material :from his petition for a writ of prohibition. Compare Pet'r Br. at 19-29 to App. at 1858 &

1862-82 (arguing the same points and cases).

        "The plaintiff's choice of a forum is entitled to great deference." W. Va. Code § 56-1-

la(a). "A party seeking dismissal on grounds offorum non conveniens ordinarily bears a heavy

burden in opposing the plaintiff's chosen forum." State ex rel. North River Ins. Co. v. Chafin, 233

W. Va. 289, 294, 758 S.E.2d 109, 114 (2014). "[T]he defendant may overcome this preference by


                                                   29
demonstrating that the forum has only a slight nexus to the subject matter of the suit and that

another available forum exists which would enable the case to be tried substantially more

inexpensively and expeditiously." State ex rel. JC. ex rel. Michelle C. v. Mazzone, 235 W. Va.

151, 160, 772 S.E.2d 336, 345 (2015).

        The· Circuit Court previously entered a detailed order denying the Petitioner's motion to

dismiss after addressing each of the eight factors set forth in W. Va. Code§ 56-1-la, which this

Court elected not to disturb and Respondent Barry will not repeat. App. at 462-72, 63 8-39. In his

motion to alter or amend, the Petitioner asked the Circuit Court to reconsider its decision because

the Texas court ruled on September 28, 2016 that it had personal jurisdiction over the other

defendants to this action. App. at 731. The Texas court's ruling was issued after the Circuit Court

entered summary judgment against the Petitioner, and was therefore irrelevant to whether the

Circuit Court should have dismissed this case prior to judgment. Nonetheless, as part of denying

the Petitioner's motion to alter or amend, the Circuit Court again addressed its reasoning for

refusing to dismiss this case for forum non conveniens, listing multiple factors that weighed in

favor of this litigation proceeding in West Virginia despite the Texas court's ruling. App. at 2919-

22. In short, the Petitioner argues that this West Virginia action, involving the administration of a

trust by a West Virginia Trustee, affecting fifteen (15) West Virginia residents, the corpus of which

includes West Virginia real estate and money held in a West Virginia bank, should be dismissed

and litigated in Texas, despite the fact that the Petitioner is the only party with any connection to

Texas, and despite the fact that the Circuit Court and the Texas court have ruled that the Petitioner

has no actual interest in the Trust or the distribution of the Trust assets. The Circuit Court correctly

rejected the Petitioner's argument, and its decision should be affirmed.




                                                  30
D.        TIDS COURT PREVIOUSLY CONSIDERED AND REJECTED THE
          PETITIONER'S COMITY ARGUMENTS IN STATE EX REL. MATEO CORTEZ
          v. WATERS, RECOR]) NO. 16-0428. WEST VIRGINIA DID NOT HAVE TO
          DEFER TO THE PROCEEDINGS IN TEXAS.

          The Petitioner next argues that the Circuit Court erred by not staying this case under W. Va.

Code§ 56-6-10 due to "principles of comity." Pet'r Br. at 8-12. The Petitioner did not ask the

Circuit Court to stay this action under W. Va. Code § 56-6-10 and therefore waived that argument

below.13 See W. Va. R. Civ. P. 12(h) (defenses other than lack of subject matter jurisdiction are

waived unless raised prior to judgment). See also Zaleski v. West Virginia Mut. Ins. Co., 224

W. Va. 544, 550, 687 S.E.2d 123, 129 (2009) ("This Court has long held that theories raised for

the first time on appeal are not considered.").

          As to whether the Circuit Court should have dismissed this action under "principles of

comity," the Petitioner has simply repackaged the same forum non conveniens argument that he

made in his petition for a writ of prohibition, which this Court declined. See App. at 1844 {listing

the first question presented as whether "the general principles of comity between the states provide

the basis upon which a dismissal or stay can be issued pursuant to the doctrine of forum non

conveniens"). Compare Pet'r Br. at 8-11 to App. at 1858:-62 (arguing the same points and cases).

See also App. at 638-39. The Circuit Court correctly decided that it was not required to defer to

the proceedings in Texas: "it is settled that 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 maybe set up as res judicata in the other."




         13
           The Petitioner did ask the Circuit Court to enter a stay "until such time as the Supreme Court of Appeals
of West Virginia bas had an opportunity to consider Mateo Cortez's Petition for Writ of Prohibition and rule on the
same." App. at 5 5 5- 70. The Petitionernever actually moved the Circuit Court to stay this action generally in deference
to the Texas case.



                                                           31
Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466 (1939). This Court has applied

the above rule to concurrent actions in different states:

               A judgment rendered in an action in a court of one state may be
               availed of as a bar to an action involving the same cause of action
               pending in a court of another state which was instituted before the
               institution of the action in which the judgment was recovered; and
               regardless of which action was first instituted the first final judgment
               rendered in one of such courts becomes conclusive in the other as
               res judicata.

Syl. Pt. 6, State ex rel. Lynn v. Eddy, 152 W. Va. 345, 163 S.E.2d 472 (1968). Thus, while W. Va.

Code § 56-6-10 does permit a trial court to stay proceedings upon proper request (which did not

occur here), the courts of this state are not automatically required to stay or dismiss an action due

to a concurrent suit in another court. The Texas court agreed, and declined to interfere with the

proceedings in West Virginia: "THE [TEXAS] 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." App. at 1464.

        The premise of the Petitioner's argument to this Court on appeal, and his earlier and

unsuccessful forum non conveniens argument in his petition for a writ of prohibition, are identical.

The Petitioner points to his declaratory claim in Texas as proof that Texas is "administering the

Trust" and therefore has exclusive jurisdiction over the issues in West Virginia. The Petitioner

ignores the fact that his declaratory claim was not a claim to administer the Trust, and did not

create exclusive jurisdiction in Texas. See Princess Lida of Thurn & Taxis v. Thompson, 305 U.S.

456, 466M67 (exclusive jurisdiction has no application to claims seeking to determine "the right of

any person to participate in the res or as to his quantum of his interest in it."). The Petitioner

further ignores the fact that (1) the Trustee's claims in Texas were tort claims seeking in personam

damages against the Petitioner; (2) the Trustee did not ask the Texas court to decide how the Trust

should be administered or distributed, the scope of her obligations as Trustee, or to otherwise


                                                 32
assume control over the Trust; and (3) no other party asked the Texas court to decide how the Trust

should be administered or distributed, the scope of the Trustee's obligations as Trustee, or to

otherwise assume control over the Trust. Additionally, as the Circuit Court noted, the Trustee's

claims in West Virginia are not identical to the claims filed in Texas and would not be resolved by

that court's decision. App. at 3120. The Texas court dismissed the Petitioner's claim to the Trust

in its entirety, and there is no live claim in Texas to decide how the Trust assets should be

distributed among the heirs at law of Mr. and Mrs. Short. That claim is only pending here in West

Virginia.

        The Petitioner cites Berger v. Berger and Morris v. Morris in support of his argument. In

Berger the Court reversed the trial court's refusal to grant a motion to stay a divorce action under

W.Va. Code § 56-6-10 because there was a pending divorce between the same parties in North

Carolina. 177 W. Va. 58, 350 S.E.2d 685 (1986). "Where the judgment or decree in another suit

will be decisive, and a stay of proceedings is essential to justice, it will be ordered in conformity

with section 6 of chapter 136 of the Code [nowW.Va.Code 56-6-10]." Syl. Pt. 1, Berger v. Berger,

177 W.Va. 58, 350 S.E.2d 685 (1986). Berger is irrelevant to this case because the Petitioner

failed to make a motion to stay under W.Va. Code § 56-6-10, and as noted above the Texas action

is not identical to and will not be decisive of the claims in West Virginia. Irrespective of the

outcome in Texas, the West Virginia court must still decide how the Trustee should distribute the

Trust assets to the remaining parties. Moreover, the Texas court has already entered an adverse

judgment against the Petitioner, so there is no reason to enter a stay to await that court's decision.

        In Morris, the Court affirmed dismissal for lack of personal jurisdiction over the

defendants, which is also irrelevant to this case. No. 15-1035, 2016 WL 6678988 (W. Va. Supreme

Court, Nov. 14, 2016) (memorandum decision). Although the Morris opinion states that the case




                                                 33
should have also been dismissed because the same claims were being litigated in New Jersey, that

language is dicta and relies on Berger, which again turned on W. Va. Code§ 56-6-10 (which the

Petitioner failed to invoke below). Id at * 5 .14 Accordingly. "principles of comity" did not require

the Circuit Court to dismiss or stay this action.

E.       THE CIRCUIT COURT CORRECTLY DENIED THE PETITIONER'S �QUEST
         TO INTERVENE AS "THE ESTATE OF DEBORAH CORTEZ."

         The Petitioner next argues that the Circuit Court erred by "denying the Estate of Deborah

Cortez's motion to intervene where it was adjudicating the rights of the Estate without affording

it due process." Pet'r Br. at 35. The Petitioner failed to even cite West Virginia Rule of Civil

Procedure 24 ("Intervention") in his brief, let alone argue how the Circuit Court committed error

under that rule. The Petitioner also failed to explain what due process right "the Estate of Deborah

Cortez" possessed in the Trust; clearly it has none, as Article VIII, Section B of the Trust

instrument only afforded an interest in the Trust to Deborah Cortez "during Deborah's life," which

extinguished on her death. App. at 112.

         The Petitioner claims that "the Estate of Deborah Cortez" was an indispensable party under

Rule 19. Pet'r Br. at 35-40. If the Petitioner is now arguing that the Circuit Court should have

dismissed this case for failure to join an indispensable party, the Petitioner waived that argument

below. ("A defense of ... failure to join a party indispensable under Rule 19 ... may be made in

any pleading permitted Qr 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). "A Rule 12(h)(2) defense raised in a post-

trial motion is not at the trial on the merits, within the meaning of the rule .... The clear thrust of


         14
            The Petitioner and the Morris opinion also cite Whan v. Hope Natural Gas Co., which was an action for
attachment and garnishment. 81 W. Va. 338, 94 S.E. 365 (1917). Garnishment and attachment are quasi in rem
proceedings that trigger exclusive jurisdiction. See Pennsylvania R. Co. v. Rogers, 52 W. Va. 450, 44 S.E. 300, 302
(1903) (stating that garnishment and attachment are in the nature ofa proceeding in rem). See also Robinson v. Cabell
Huntington Hosp., Inc., 201 W. Va. 455, 463, 498 S.E.2d 27, 35 (1997)(same). The Whan caseis thus also irrelevant.


                                                        34
the rule is that its enumerated defenses may be raised at any time before a disposition on the merits

but not after." F. Cleckley, R. Davis, & L. Palmer, Litigation Handbook on West Virginia Rules

of Civil Procedure at§ 12(h)(2)[2], pp. 418-19 (4th Ed. 2012). The Petitioner admits that he did

not move to dismiss for failure to join an indispensable party until "it was raised on September 29,

2016" as part of his motion to alter or amend. Pet'r Br. at 38. See also App. at 728-43.

        As to intervention under Rule 24, "the Estate of Deborah Cortez" moved to intervene

pursuant to West Virginia Rule of Civil Procedure 24(a)(2), which states:

                (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. "West Virginia Rule of Civil Procedure 24(a)(2) allows intervention ofright

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 Circuit Court correctly determined that "the Estate of Deborah

Cortez" could not meet any of the criteria for intervention.

        First, the Petitioner's motion to intervene was 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). This Court has upheld refusals to



                                                  35
grant intervention where the movant had 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 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). As reflected by the docket

sheet, the Petitioner had actual notice of this suit as early as December 4, 2015. App. at 1. The

Petitioner 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 a legitimate interest in

the Trust. Instead, the Petitioner fought this case on other grounds, and specifically argued that he

was personally entitled to the Trust assets as "the sole heir of the Estate of Deborah Cortez." App.

at 570-71. The Petitioner did not move intervene "on behalf of the Estate of Deborah Cortez" until

June 13, 2017 - eighteen (18) months after receiving notice ofthis suit, and nine (9) months after

the Circuit Court rejected his claim to the Trust and granted summary judgment against him. App.

at   6. The Circuit Court did not abuse its discretion in finding that the Petitioner's motion was
untimely given his actual knowledge and his significant delay in seeking to intervene.

         Second, "the Estate of Deborah Cortez" has absolutely no interest in the Trust. Under the

second and third prongs of Rule 24( a)(2), the movant must demonstrate both      "an interest relating
to the property ... which is the subject of the action" and that disposition of the action may "impair

or impede the applicant's ability to protect that interest." W. Va. R. Civ. P. 24. The reasons why

"the Estate of Deborah Cortez" has no interest in the Trust are thoroughly set forth in Section V,

subsection A of this brief. Deborah Cortez only possessed a life interest in the Trust income, which




                                                 36
extinguished when she died. The Circuit Court's disposition of this case did not impair the ability

of "the Estate of Deborah Cortez" to protect its interest in the Trust because "the Estate of Deborah

Cortez" had no interest to protect.

        Third, "the Estate of Deborah Cortez" was adequately represented in this litigation by the

Petitioner, who is the administrator 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). The Petitioner and "the Estate of Deborah Cortez" have identical interests in the Trust

(zero) and identical interests in this litigation: they both seek distribution of the entirety of the

Trust assets to "the Estate of Deborah Cortez," which would then flow through to the Petitioner

personally as its sole heir. This identity of interest is clear from the simple fact that the Petitioner

controls "the Estate of Deborah Cortez," and is the only person interested in a favorable judgment

for the Estate. Indeed, the Petitioner and "the Estate of Deborah Cortez" are represented by the

same legal 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 the Petitioner, as the administrator and sole heir

of the Estate, had every opportunity to represent its claimed interest in this litigation. The real

reason the Petitioner sought to "intervene" on behalf "of the Estate of Deborah Cortez" was to hide




                                                  37
behind a nominal party to avoid the Circuit 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.

F.       THE PETITIONER'S MISCELLANEOUS ARGUMENTS ARE FRIVOLOUS.

         Finally, the Petitioner argues that the Circuit Court erred by granting summary judgment

against him because Respondent Barry "sought no relief against Mr. Cortez upon which summary

judgment could be predicated" and "judgment was issued without any discovery in the West

Virginia action as to the true intent of the settlors of the Trust." Pet'r Br. at 29-30. Both arguments

are without merit. The Circuit Court correctly determined that summary judgment was appropriate

to resolve the Petitioner and the Respondents' competing claims to the Trust. The Circuit Court

also correctly determined that discovery was unnecessary to determine the settlors' intent, which

the parties (including the Petitioner) agreed was unambiguously expressed in the Trust instrument.

         The Petitioner cites no legal authority supporting his argument that Respondent Barry
                                                                                                               -
could not seek partial summary judgment.15 There is no formalistic requirement preventing a court

from granting summary judgment when "the record reveals no genuine issue of material fact and

the movant demonstrates an entitlement to judgment as a matter oflaw." Poweridge Unit Owners

Ass 'n v. Highland Properties, Ltd., 196 W. Va. 692, 698, 474 S.E.2d 872, 878 (1996) (citing

W. Va. R. Civ. P. 56). The Trustee filed this action, seeking an "order directing the distribution

of the assets of the Trust to those persons determined ... to be entitled to receive the same." App.

at 32.    The Petitioner alleges that "he is entitled to the trust proceeds," to the exclusion of

Respondent Barry and all other parties in this case. See App. at 520. The Circuit Court correctly




         15
              This Court generally declines to consider arguments that are not supported by legal authority.


                                                            38
determined that the Petitioner and Respondent Barry's interests are antagonistic and could be

resolved through partial summary judgment. 16

         As to the Petitioner's argument that discovery was necessary to determine the settlors'

intent, "[a] party may not simply assert in its brief that discovery was necessary and thereby

overturn summary judgment." Kanawha County Public Library Bd: v. Board ofEduc. Of County

of Kanawha, 231 W. Va. 386, 400, 745 S.E.2d 424, 438 (2013). Discovery was unnecessary

because the Petitioner conceded below that "the Trust expresses the true intent of the parties in

plain and unambiguous language." App. at 569. Under Florida law, "unless the trust instrument

is ambiguous the intent of the settlor must be ascertained from that which lies within the four

corners of the instrument itself, and no extrinsic evidence of the settlor's intent is admissible."

Knauer v. Barnett, 360 So.2d 399, 405 (Fla. 1978). Moreover, the Petitioner failed to show - or

even argue - the minimum requirements for requesting further discovery to oppose summary

judgment.'? See W. Va. R. Civ. P. 56(f) ("Should it appear from the affidavits of a party opposing

the motion that the party cannot for reason stated present by affidavit facts essential to justify the

party's opposition, the court ... may order a continuance to permit ... discovery to be had .... ").

Even for an informal Rule 56(f) motion, "at a minimum" the Petitioner was required to:

                  (1) articulate some plausible basis for the party's belief that
                  specified "discoverable" material facts likely exist which have not
                  yet become accessible to the party; (2) demonstrate some realistic
                  prospect that the material facts can be obtained within a reasonable
                  additional time period; (3) demonstrate that the material facts will,
                  if obtained, suffice to engender an issue both genuine and material;


         16
            The Petitioner recognized that the Circuit Court could also grant summary judgment in his favor if
warranted, and actually submitted to the court a proposed Order Granting Summary Judgment in Favor ofDefendant
Cortez. App. at 666- 71.
         17
            Ironically, the Petitioner argues in another section of his brief that "[e]xtensive discovery was exchanged
[in Texas] regarding ... Linda Murray's knowledge of the Trust, her activities with respect to the Trust, and her claims
under the Trust." Pet'r Br. at 24. Assuming this is true, the Petitioner fails to explain why he did not oppose summary
judgment in West Virginia by submitting affidavits based on the "extensive discovery" taken in_Texas.


                                                          39
               and (4) demonstrate good cause for failure to have conducted the
               discovery earlier.

Syl. Pt. 1, in part, Powderidge Unit Owners Ass'n v. Highland Properties, Ltd., 196 W. Va. 692,

474 S.E.2d 872 (1996). The Petitioner made no effort to make this showing. The Petitioner

admitted that the Trust plainly and unambiguously expressed the settlers' intent, and failed to

"articulate some plausible basis" for the Circuit Court to find that discovery would "engender an

issue both genuine and material" regarding their intent. Instead, the Petitioner asserted that "the

Trust is unambiguous, but it should not be construed in the manner [] Barry has suggested," and

went on to argue that he should "receive the Trust assets because he is the sole heir of the Estate

of Deborah Cortez." App. at 571, 666-71.

                                     V.      CONCLUSION

       The Petitioner's claims lack merit. The Trustee's claims were properly filed in West

Virginia, and correctly decided by the Circuit Court. Respondent Barry therefore requests that the

Court dispense with oral argument and enter a memorandum decision affirming the Circuit Court's

orders and judgment.

                                             Res ectfully submitted,

                                                                (l �                                                      ()
                                             ----''-l,,t.....:....;;::........::=-----=-c.........,,��------'"-,..-4-��-L...!�
                                                                                                                                 \J{so 6)-GJ� z_
                                             Aaron C. Boone (WVSB #94�9
                                             J. Tyler Mayhew (WVSB #114
                                             BOWLES RICE LLP
                                              Fifth Floor, United Square
                                              501 Avery Street, Post Office Box 49
                                              Parkersburg, West Virginia 26102
                                              Telephone (304) 420-5501
                                              Facsimile (304) 420-5587
                                              aboone@bowlesrice.com

                                              Counsel for Respondent Connie Lou Keith Barry




                                                 40
                                CERTIFICATE OF SERVICE

               I hereby certify that a true and correct copy of the foregoing Brief of Respondent
Connie Lou Keith Barry was served via first class U.S. Mail, postage prepaid, upon the below
named counsel and pro se parties on the date indicated:

 Ancil G. Ramey, Esquire                            Robert S. Fluharty, Jr., Esquire
 Steptoe & Johnson PLLC                             Fluharty & Townsend
 825 Third Avenue, Suite 400                        417 Grand Park Drive, Suite 101
 Huntington, West Virginia 25701                    Parkersburg, West Virginia 26105

 J. Nicholas Barth, Esquire                         Leslie L. Maze, Esquire
 Barth & Thompson                                   Post Office Box 279
 202 Berkley Street                                 Elizabeth, West Virginia 26143
 Charleston, West Virginia 26321

James W. Marshall, III, Esquire                     William J. Brotherton, Esquire
H. F. Salsbery, Esquire                             Brotherton Law Firm
Bailey & Wyant, PLLC                                2340 FM 407, Suite 200
500 Virginia Street East, Suite 600                 Highland Village, Texas 75077
Post Office Box 3710
Charleston, West Virginia 25337-3710

Joseph T. Santer, Esquire                           Linda Lou Murray
Santer and Santer                                   197 Oakbrook Drive
Post Office Box 306                                 Mineral Wells, West Virginia 26150
Parkersburg, West Virginia 26102

Sandra Kay Flesher Brown                            Charlene Rae Flesher-Johnston
99 Woodridge Drive                                  Post Office Box 793
Mineral Wells, West Virginia 26150                  Elizabeth, West Virginia 26143

Charlotte Fae Flesher-Ash                           Virginia Ann Roberts Villers
8653 White Swan Drive #104                          28649 Alessandria Circle
Tampa, Florida 33614                                Bonita Springs, Florida 34135

Charles Bruce Roberts, Jr.                          Lisa Ann Rader Smith
487 Wilson Fork                                     96 Franklin Street
Elizabeth, West Virginia 26143                      Elizabeth, West Virginia 26143

Patricia Ann Marks Chapman                          James Berl Marks
2670 Pettyville Road                                1093 South Pleasant Hill Road
Parkersburg, West Virginia 26101                    Belleville, West Virginia 26133




                                               41
,.




       Thomas Wayne Marks                                     Betty J. Webb
       749 South Long Run Road                                1834 South Pleasant Hill Road
       Belleville, West Virginia 26133                        Belleville, West Virginia 26133

       Randall Wayne Davis                                    Magen Elizabeth Whited
       1663 Brooksford Road                                   164 Joe Shore Drive
       Kernersville, North Carolina 27284                     Ravenswood, West Virginia 26164


                 Dated this 15th day of December 2017.




                                                         42
     9578380.l
