Mateo Cortez and the Estate of Deborah Cortez, Defendant Below and Movant Below, Petitioners,
Linda Murray, in her capacity as Successor Trustee of the William D. Short and Phyllis D. Short Revocable Living Trust Dated April 30, 1991, Plaintiff Below, Respondent and Connie Lou Keith Barry, Donald Leaman Whited, Michael Ray Whited, Sherry Lynn Whited Salsbury, Sheila Pettry, Tywanna Pettry, Amanda Pettry, Heirs of Teresa Annette Whited Pettry, Terry Lee Whited, Betty Jo Marks, Charlene Rae Flesher-Johnston, Charles Bruce Roberts, Charlotte Rae Flesher-Ash, James Berl Marks, Linda Lou Murray, Lisa Ann Rader Smith, Magen Elizabeth Whited, Patricia Ann Marks Chapman, Randall Wayne Davis, Sandra Kay Flesher Brown, Thomas Wayne Marks, Virginia Ann Roberts Villers, Defendants Below, Respondents.
County No. 15-C-28
a dispute regarding the William D. Short and Phyllis D. Short
Revocable Living Trust Dated April 30, 1991 (the Short Trust
or the Trust). Linda Murray (Murray)is the Successor Trustee of
the Short Trust. In 2015, Murray sought a declaration from
the Circuit Court of Wirt County as to the proportionate
interests of certain contingent beneficiaries to the Short
Trust, including Mateo Cortez. While Murray named Cortez as a
party to her suit, she contends that he does not have a claim
to the proceeds of the Short Trust.
believes differently. He argues that he is entitled to all of
the assets of the Short Trust, either in his individual
capacity or as sole heir of the estate of his deceased wife,
Deborah Cortez (née Short) (Mrs. Cortez), who was a
co-trustee of the Short Trust. Two courts-one in Texas and
the circuit court-have so far held that Cortez has no right
to share in the proceeds of the Short Trust (either
individually or as heir to Mrs. Cortez's estate) under
the plain language of the Short Trust. Nevertheless, Cortez
persists in his claim to the assets of the Short Trust,
valued at approximately $5, 000, 000 plus oil and gas
the circuit court did not commit the various errors asserted
by Cortez on appeal to this Court. Consequently, we affirm
the circuit court's Order Denying Motion to Dismiss and
Order Denying Motion to Intervene. We also affirm, in part,
the Order Granting Motion for Partial Summary Judgment
(Partial Summary Judgment Order) and Order Denying Defendant
Mateo Cortez's Motion to Alter or Amend (Alter or Amend
Order) insofar as those orders adjudge that Cortez does not
have an interest in the Short Trust. However, for the reasons
discussed below in Section III.B., we reverse, in part, the
Partial Summary Judgment Order and Alter or Amend Order
insofar as those orders dismiss Cortez as a defendant in
Murray's declaratory judgment action. Further, we remand
this case to the Circuit Court of Wirt County with
directions, as set forth in detail in Section III.B.
this case does not present a new or substantial question of
law, and for the reasons set forth herein, we find that the
issuance of a memorandum decision is appropriate pursuant to
Rule 21 of the West Virginia Rules of Appellate Procedure.
Facts and Procedural History
Cortez died childless and intestate in Texas in December
2011. Cortez is her surviving spouse and sole heir. Following
Mrs. Cortez's death, Cortez filed a small estate
affidavit in Texas probate court, affirming that Mrs.
Cortez's assets (not including homestead or exemptions)
did not exceed $50, 000 in value. It is undisputed that
Cortez was aware of the Short Trust when he filed the small
to her death, Mrs. Cortez was the co-trustee, together with
Murray, of the Short Trust. Mrs. Cortez's parents,
William Short (Mr. Short) and Phyllis Short (Mrs. Short),
established the Short Trust in 1991 with the primary concern
of providing for Mrs. Cortez's "health, support,
education, welfare and best interests" during her
lifetime. The value of the Short Trust is more than $5
million. It is composed of bank accounts and oil and gas
interests, all located in West Virginia. The Trust owns no
assets in Texas.
Short died in 2002, and Mrs. Short died in February 2011.
Following Mrs. Cortez's death in December 2011, Mrs.
Short's relative, Murray, became the sole trustee of the
Short Trust. Murray resides in West Virginia.
August 2014, Murray filed suit on behalf of the Short Trust
in probate court in Travis County, Texas (the Texas Probate
Court). On the Trust's behalf, she alleged claims of
conspiracy, fraud, conversion, theft, negligence, and breach
of fiduciary duty against Cortez, the Short Trust's
investment advisor, and a Texas bank that had held some
assets of the Short Trust. Murray sought money damages on the
Trust's behalf, punitive damages, and attorneys'
2015, Cortez filed an Original Petition in Intervention
(Petition) as representative of his deceased wife's
estate in Murray's suit pending before the Texas Probate
Court. In his Petition, Cortez asked the Texas Probate Court
to declare that the Short Trust terminated on Mrs.
Short's death; that Mrs. Cortez was the Shorts' sole
heir at law; and that, because Mrs. Cortez was deceased, that
the Trustee of the Short Trust was to distribute all
remaining Trust funds to Mrs. Cortez's estate. Cortez
named only Murray, in her capacity as Successor Trustee, as a
defendant. His Petition did not name or otherwise allude to
any other potential beneficiaries of the Trust.
November 2015, Murray filed a declaratory judgment action
under West Virginia Code § 55-13-1 (2016) in the Circuit
Court of Wirt County concerning distribution of the assets of
the Trust. She named twenty defendants, including Cortez. The
vast majority of the defendants named by Murray lived in West
Virginia. Cortez was the sole defendant who resided in Texas.
The defendants, except Cortez, answered Murray's
complaint in December 2015 and January 2016. None of the
defendants, except Cortez, objected to the distribution of
the Short Trust as alleged by Murray in her complaint.
one month after Murray filed the West Virginia declaratory
judgment action, the Texas Probate Court issued a restraining
order temporarily prohibiting her from distributing the
assets of the Trust. The Texas Probate Court, however, did
not order Murray to dismiss her declaratory judgment action.
December 2015, Cortez moved to dismiss the West Virginia
action on the ground of forum non conveniens (West Virginia
Code § 56-1-1A (2012)). The circuit court denied the
motion by order entered March 21, 2016. Cortez then sought a
writ of prohibition from this Court on the same grounds,
which we refused the following June.
April 2016, Connie Lou Keith Barry (Barry), a defendant in
Murray's declaratory judgment action, filed a motion for
partial summary judgment to obtain a determination that
Cortez was not a legal beneficiary of the Short Trust. The
circuit court granted Barry's motion by order entered
September 15, 2016 and dismissed Cortez from the case. Eleven
days later, Murray filed a motion for summary judgment
seeking a final order from the circuit court naming the
Shorts' heirs and enumerating the proportional share of
the Short Trust to which each individual heir was entitled.
On September 29, 2016, Cortez filed a motion to alter or
amend the circuit court's Partial Summary Judgment Order.
Less than one month later, while that motion was still
pending, Cortez removed the case to the Southern District of
West Virginia. In April 2017, the Southern District of West
Virginia remanded the case back to the circuit court due to
Cortez's untimely removal under 28 U.S.C. §
Murray's declaratory judgment action was pending in
federal court, the Texas Probate Court dismissed Cortez's
Petition. In pertinent part, the Texas Probate Court's
December 2016 judgment and dismissal order states:
[T]he Court hereby dismisses any and all claims that Mateo
Cortez, in his individual capacity or in his capacity as
personal representative of the Estate of Deborah Cortez, has
to any assets of The William D. Short and Phyllis D. Short
Revocable Living Trust . . . other than his claim for
undistributed income from the Trust during the life of
is currently appealing that decision to the Third Court of
Appeals, Texas (Appeal No. 03-17-00365). He submitted his
reply brief in April 2018.
remand of Murray's declaratory judgment action to the
circuit court, Cortez moved to intervene on behalf of Mrs.
Cortez's estate and to dismiss Murray's action
because she had not named Mrs. Cortez's estate as a
party. During a June 2017 hearing, the circuit court denied
Cortez's pending motions (Motion to Intervene; Motion to
Dismiss; and Motion to Alter or Amend). Then, on June 30,
2017, the circuit court entered two orders, entitled Findings
of Fact and Conclusions of Law and Final Judgment Order,
memorializing its earlier rulings in June. In those orders,
the circuit court named the Shorts' heirs; enumerated the
proportional share of the Short Trust to which each
individual heir is entitled; and authorized Murray to
distribute the Trust assets, accordingly.
order dated September 19, 2017, the circuit court voided its
June 30, 2017 Findings of Fact and Conclusions of Law. It did
not void the Final Judgment Order, which named the
Shorts' heirs, detailed the Shorts' heirs' shares
of the Short Trust, and authorized Murray to distribute the
Trust assets. It then entered the following three orders:
Alter or Amend Order; Order Denying Motion to Dismiss; and
Order Denying Motion to Intervene. Cortez now appeals from
those three orders, in addition to the Partial Summary
Standard of Review
various assignments of error invoke different standards of
review. We identify each standard of review in conjunction
with the corresponding assignment of error.
Subject Matter Jurisdiction, Comity, and Forum Non
first three assignments of error, Cortez argues that the
circuit court should have deferred to the first-filed
litigation in Texas, or lacked jurisdiction to consider
Murray's declaratory judgment action at all. For the
following reasons, we find that the circuit court did not err
by permitting Murray's declaratory judgment action to
proceed here in West Virginia.