Cynthia Sternberg v. Lydia Marrero Langston Trust, Katherine Langston Stoetzel, James Wright Langston, Jr., Kenneth Louis Langston, and Dr. James Wright Langston

ACCEPTED
14-15-00191-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
9/25/2015 3:45:37 PM
CHRISTOPHER PRINE
CLERK

NO. 14-15-00191-CV

FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS FOR THE9/25/2015 3:45:37 PM
FOURTEENTH JUDICIAL DISTRICT AT HOUSTON, TEXAS A. PRINE
CHRISTOPHER
Clerk

CYNTHIA STERNBERG,
Appellant

V.

LYDIA MARRERO LANGSTON TRUST, KATHERINE LANGSTON
STOETZEL, JAMES WRIGHT LANGSTON, JAMES WRIGHT
LANGSTON, JR., KENNETH LOUIS LANGSTON,
Appellees

On Appeal from the 190th Judicial District Court
Harris County, Texas
Trial Court Cause No. 2013-677-67

BRIEF OF APPELLANT, CYNTHIA STERNBERG
ORAL ARGUMENT NOT REQUESTED
/Cynthia Sternberg/
Cynthia Sternberg
2727 Revere St., #1069
Houston, Texas 77098
832-613-4955
Langston7@aol.com
PRO SE APPELLANT
 IDENTITY OF PARTIES TO THE JUDGMENT AND COUNSEL

Parties to the Order of Final Summary Judgment at issue in this

appeal are as follows:

APPELLANT: Cynthia Sternberg
Pro Se Appellant
70380 Highway 21-#190
Covington, Louisiana 70433
Langston7@aol.com

APPELLEES: LYDIA MARRERO LANGSTON TRUST,
KATHERINE LANGSTON STOETZEL,
JAMES WRIGHT LANGSTON, JR. KENNETH
LOUIS LANGSTON, DR. JAMES WRIGHT
LANGSTON

APPELLEE’S COUNSEL: PRATT LAW GROUP, PC
Darryl V. Pratt, Attorney
Texas State Bar No. 24002789
2500 Legacy Drive, Suite 228
Frisco, Texas 75034

  2

 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rule of Appellate Procedure 39.1, Appellants submit

that oral argument is unnecessary to the appellate review of the trial court’s

Order of Final Judgment.

  3

 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

STATEMENT REGARDING ORAL ARGUMENT 3

TABLE OF CONTENTS 4

TABLE OF AUTHORITIES 7
Cases 7
Statutes 8

STATEMENT OF THE CASE 9

ISSUES PRESENTED 17

STATEMENT OF THE FACTS 18

SUMMARY OF THE ARGUMENT 25

ARGUMENT 28
I. Introduction 28

II. Subject Matter Jurisdiction 29

III. Appellees’ Lack of Standing 30

  4

 IV. Procedural History of Competing Mississippi 31
and Texas Litigation

a. Texas Litigation: November 2013. 31

b. Mississippi Litigation: March, 2014 to present 32

c. Texas Litigation: December, 2015 35

V. Standard of Review and Burden of Proof 37

a. Appellees’ Burden 36

b. District Court’s Standard of Review 40

i. Cynthia Not Obligated to Respond to Patently Deficient
Motion 40

ii. District Court’s Standard of Review Irrespective of
Response 41

VI. Legal Insufficiency 44

a. Genuine Issue of Fact:
Fact versus Fiction – Disputed and Undisputed 44

i. Offer of Judgment 44

ii. Mississippi Judgment 47

iii. True Facts Defeat Appellees’ Claims 50

  5

CONCLUSION 51

PRAYER 52

APPENDIX 53

CERTIFICATE OF COMPLIANCE 54

CERTIFICATE OF SERVICE 55

  6

 TABLE OF AUTHORITIES
Cases
Black v. Victoria Lloyds Ins. Co., 39
797 S.W.2d 20, 27 (Tex. 1991).

Bradt v. West, 42
892 S.W.2d 56, 65 (Tex. App.-Houston [1st Dist.] 1994, writ denied).

City of Houston v. Clear Creek Basin Authority, 38, 40
589 S.W.2d 671, 678 (Tex. 1979)

Fry v. Comm’n for Lawyer Discipline, 979 S.W.2d 331, 334 37
(Tex. App.—Houston [14th Dist.] 1998, pet. denied)
KPMG Peat Marwick v. Harrison County House. Fin. Corp., 40
988 S.W.2d 746, 748 (Tex.1999),

M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 37, 40
28 S.W.3d 22, 25 (Tex. 2000)

Robinson v. Devereux Foundation, 38
No. 14-01-00081 (Tex. App.— Houston [14th Dist.] June 6, 2002)

Southwestern Elec. Power Co. v. Grant, 38
73 S.W.3d 211, 215 (Tex. 2002).

TH Investments, Inc. v. Kirby Inland Marine, L.P., 42
218 S.W.3d 173, 209 (Tex. App. – Houston [14th Dist.] 2007, pet. denied).

Woomer v. City of Galveston, 39
765 S.W.2d 836, 837 (Tex. App. – Houston [1st Dist] 1988, writ denied.

  7

Statutes
Mississippi:
Rule 68, Mississippi Rules of Civil Procedure 13, 20, 33
Texas:
Texas Trust Code. CI.R. 5. Article I(A),
Sections 15.001, 15.002(c). 18, 29

  8

 STATEMENT OF CASE

This suit originates from the passing of Lydia Marrero Langston

(“Lydia”) and is repugnant family litigation over the validity and enforcement

of the Lydia Marrero Langston Trust (“Trust”) and Last Will and Testament

(“Will”), translating into a suit over Lydia’s assets and money. CI.R. pages

89, 93. Cynthia Sternberg (“Cynthia”), Appellant appears here as the

defendant on Appellees’ counterclaims. CI.R. page 58. The Appellees

are James W. Langston, and her siblings, James Wright Langston, Jr.,

Katherine Stoetzel and Kenneth Louis Langston (“Appellees”). CI.R. page

4.

Cynthia appeals Appellees’ default Final Order Motion for Summary

Judgment (“Summary Judgment”) rendered by the 190th Judicial District

Court, Harris County, Texas’ (“Texas District Court”) in favor of Appellees

on their counterclaims. CI.R. Page 201.

The Texas District Court’s default Summary Judgment awarded the

Appellees the following, without any evidence:

1) the Lydia Marrero Langston Trust, dated December 24, 2010, be
and hereby declared to be invalid and should be and is set aside as a
matter of law;
2) Cynthia be disgorged of any distributions from the Marrero Ltd. &
Improvement Association…;

  9

 3) Cynthia reimburse the Appellees for the cost of the Expert Witness
Handwriting Opinion of Jane H. Buckner of $4,500.00;
4) $137,000.00 which is the amount of money which Plaintiff
absconded with from the Marrero Ltd. & Improvement Association,
Ltd.;
5) $15,000.00 as the actual cash amount paid by Defendant Dr.
Katherine Langston to the pawn shop to recover the $100,000.00
worth of jewelry which Cynthia pawned from the Lydia Marrero
Langston trust, dated December 10, 2010;
6) $ as interest due on the outstanding each of the above
referenced amounts through the date this Final Summary Judgment
is signed and entered;
7) $ as late fees;
8) $24,000.00 as reasonable and necessary attorneys fees;
9) Post judgment interest at the rate of five per cent (5%) per annum
from the date of this judgment until paid; and
10) all taxable costs of court.
CI. R. page 201. Additionally, regarding appeals, the District Court

ordered Cynthia to pay Appellees:

(i) $10,000.00 upon dismissal of an appeal filed by Plaintiff in the
Court of Appeals, or upon the issuance of a mandate affirming
the judgment of the Court;

(ii) $7,500.00 upon the denial of a petition for review filed by the
Plaintiff to the Texas Supreme Court, or upon the granting of a
petition for review filed by the Plaintiff to the Texas Supreme
Court; and

(iii) $10,000.00 if a brief on the merits is requested of Defendants,
and the Texas Supreme Court thereafter (a) denies a petition
for review filed by the Plaintiff or (b) affirms the judgment of this
Court.

  10

Finally, the Summary Judgment reads,

“Because this Judgment disposes of all
parties and all issues, this is a FINAL JUDGMENT.”

CI. R. page 203.

The incidental consequence of this Texas District Court default

Summary Judgment, is: 1) Appellees avoided any and every discovery

obligations through deception; 2) Appellees dodged responding to a single

interrogatory, request for admission or request for production of

documents, except baseless objections; 3) Appellees avoided sitting for a

single requested deposition; 4) Appellees absconded with the alleged rights

and assets of the Estate of Lydia Marrero Langston; and 5) effectively a full

and final disposition of all of the Estate and/or Appellees’ Mississippi

Claims. CI.R. Page 65, 201. Moreover, Appellees failed to provide any

evidence of their alleged legal claims and actual damages. CI. Page 65.

Further to Appellees’ fraud on the Texas District Court and Mississippi

Court and abuse of process is that Appellees consciously, with malice and

forethought, exclude any and all facts regarding any of the benefits,

including direct and indirect money payments received by them from the

Trust. – not to mention the protection afforded Dr. Langston from his

bankruptcy creditors. CI.R. page 65, 182.

  11

 On November 8, 2013, Cynthia filed a “Petition to Sever the Cynthia

Langston Sternberg Trust from the Lydia Marrero Langston Trust, or

alternatively to Dissolve the Lydia Marrero Langston Trust” (“Petition”) in

the Texas District Court. CI.R. Page 4. Cynthia primarily sought that the

Cynthia Langston Sternberg Trust (“Sternberg Trust”) be severed from the

Trust, or in the alternative that the Trust be terminated. CI.R. Page 4

The Appellees responded with a “Special Appearance Challenging

Personal Jurisdiction and a Plea in Abatement, Special Exceptions and

Original Answer” and “Defendants’ Amended Answer, Affirmative Defenses

and Counterclaims” (collectively, “Counterclaims”), asserting against

Cynthia a variety of counterclaims, including among others, forgery, fraud

and theft. CI.R. pages 57-64. Appellees seek from Cynthia complete

disgorgement of any and all rights in and to her interest in the Trust assets,

damages and other relief (“Langston Claims”). CI.R. Pages 57-64, 65, 201.

Apparently, the Estate of Lydia Marrero Langston (“Estate”), pending

in Jones County, Mississippi, was a more appealing and favorable

jurisdiction for Appellees, so tin addition to their Counterclaims in Texas,

Appellees also filed their same claims in Mississippi, Petition to Set Aside

Instrument and Trust Admitted to Probate and for Other Relief in Jones

County, Mississippi,(“Mississippi Litigation”) within the Estate. CI.R. page 2.

  12

 Since Appellees filed the Mississippi Litigation, Mississippi has been

the sole jurisdiction for all contentious pretrial motions and discovery

disputes. CI.R. page 2. Neither the Appellees nor Cynthia have filed any

pleadings, motions or engaged in discovery in the Texas District Court

since March, 2014. CI.R. page 2, 116-180.

In December, 2015, Appellees ambushed Cynthia by returning to the

Texas District Court with a “Motion for Summary Judgment with Exhibits”

(“Motion for Summary Judgment”). CI.R. Page 65. Appellees’ Motion for

Summary Judgment asked the Texas District Court to review, interpret and

“enforce” or “apply” a Mississippi interlocutory consent Judgment to

(“Interlocutory Judgment”), and an Offer of Judgment Cynthia submitted

under Rule 68 of the Mississippi Rules of Civil Procedure, among other

Mississippi documents and law. By virtue of the Mississippi Interlocutory

Judgment, the Estate acquired all “ownership” of all of Lydia’s assets from

the moment of her death and therefore, the proper party for any of the

alleged claims against Cynthia. By virtue of the Mississippi Interlocutory

Judgment, Appellees do not have standing in this Texas Litigation and

are not the proper party in this Texas District Court default Summary

Judgment. Only the Estate has standing. CI.R. 5, 111.

  13

 Appellees set their Motion for Summary Judgment for submission on

January 9, 2015. Cynthia calculated that her response, though not

required under Texas law, was due on or before December 29, 2014. CI.R.

page 205. At about 8:00 a.m. of December 29, 2014, Cynthia telephoned

the Texas District Court Clerk to see what time they opened. CI.R. page

205. Cynthia received a recording from the Clerk that stated they were

closed. CI.R. page 205. Cynthia believed the clerk’s office was closed,

when in hindsight that recording had not yet been changed from the

previous Friday, which was a holiday. CI.R. page 205. Relying on the clerk

of court’s recording, Cynthia filed her response to Appellees’ Motion for

Summary Judgment on December 30, 2014. CI.R. Page 186, 205.

On January 2, 2015, Appellees filed a Proposed Order on Final

Summary Judgment. CI. R. page 197.

On January 9, 2015, Judge Patricia Kerrigan inserted into the

Appellees’ proposed Order on Final Summary Judgment that she only

considered a “…timely filed response…” and signed the Proposed Order

on Final Summary Judgment as presented. [Emphasis added] CI. R. page

197, 201. Only upon reading the inserted language did Cynthia realize

that she accidentally filed her response to the Appellees’ motion for

summary judgment, ONE (1) day late. CI.R. page 201.

  14

 Plaintiffs are shrewd enough to exploit the Mississippi and Texas

courts for their own advantage, so it is absurd to believe that Appellees

really believe their Motion for Summary Judgment is truly a “no-evidence”

motion submitted from the standpoint of a defendant. Under Plaintiffs’

contention, they say that because they are defendants on Cynthia’s original

petition, they can use the “no-evidence” standard to obtain a full and final

judgment on each and every of their vehemently disputed claims against

Cynthia.

Appellees confess that the evidence supporting their Motion for

Summary Judgment was pursuant to that required of a defendant, though

Appellees most certainly assert this Motion in the capacity as plaintiffs on

their counterclaims. CI.R. Paragraphs 4.2, 4.4, Page 71, 72. Appellees

are not defendants in their Motion for Summary Judgment and their

Motion for Summary Judgment is not a “no-evidence” motion as they

pretend. Appellees alleged facts are deficient by Appellees’ own

admission. Therefore, irrespective of the timeliness of Cynthia’s response,

well settled Texas law makes clear that no response is required where the

movant fails to establish their claims. Appellees’ Motion for Summary

Judgment is deficient by Appellees own words and on its face, and a

  15

default Summary Judgment is a travesty of justice, depriving Cynthia of her

civil rights.

Cynthia filed a Motion for New Trial or for Reconsideration, explaining

innocent miscalculation and misunderstanding regarding the due date for

her response. CI.R. Page 205. The Texas District Court denied Cynthia’s

motion, and this appeal ensued. CI.R. page 223. The Texas District Court

committed egregious error by granting Appellees’ default Order of Final

Summary Judgment.

  16

 ISSUES PRESENTED

Whether the District Court erroneously granted the Appellees’ Motion

for Summary Judgment with a default Summary Judgment, specifically:

1. Whether the District Court erred in granting the Appellees Motion for

Summary Judgment by default as the Motion contained genuine

issues of material fact, prohibiting summary judgment?

2. Whether Cynthia was required to file a response to the Motion for

Summary Judgment in light of Appellees’ absence of evidence in

support of the Motion for Summary Judgment?

3. Whether the Appellees have standing in light of the Judgment which

converted all Trust assets to the Estate of Lydia Marrero Langston.

4. Whether the District Court erred by granting the default Motion for

Summary Judgment as the Appellees’ Motion was wrought with

blatant material issues of fact?

5. Whether the summary judgment record conclusively established the

basis for and amount of the Appellees’ damages?

6. Whether the District Court erred by granting the Order of Final

Summary Judgment without providing a “Findings of Fact?”

  17

 STATEMENT OF THE FACTS

This appeal derives from a default Order of Final Summary

Judgment granted by the Texas District Court. CI.R. page 201. The

peculiar procedural history and posture of this litigation enabled Appellees’

duplicitous abuse of and fraud on the judicial system.

Lydia passed away in August, 2012. There was an alleged Trust and

Will. CI.R. page 89, 93. Within a year, the heirs began suing each other

over the validity and administration of the Trust and Will, asserting

countless causes of action against one another, primarily the Appellees

against Cynthia. CI.R. page 4. Among those claims Appellees assert

against Cynthia are fraud, theft and forgery. CI.R. page 58, 68, 192.

On November 8, 2013, Cynthia filed the Petition CI.R. Page 4. The

Texas District Court’s subject matter jurisdiction was premised on the

choice of law provisions in the Trust, designating Texas law as the choice

law and Harris County as the venue and the Texas Trust Code. CI.R. 5.

Article I(A), Sections 15.001, 15.002(c).

The Appellees responded with their Counterclaims, accusing Cynthia

of various types of fraud, seeking from Cynthia complete disgorgement of

  18

any and all rights in and to her interest in the Trust assets (“Langston

Claims”), among other relief. CI.R. pages 30, 58.

On March 21, 2014, Appellees went to Jones County, Mississippi and

filed a “Petition to Set Aside Instrument and Trust Admitted to Probate and

for Other Relief” (“Mississippi Litigation”) within the Estate. CI.R. 77. In the

Mississippi Litigation, the Appellees asserted the identical claims against

Cynthia as they asserted against Cynthia in the Texas Litigation. CI.R.

page 58, 77. Likewise, Cynthia responded asserting against Appellees the

identical claims asserted in her Texas Petition. The Mississippi Litigation

continues to be aggressively prosecuted, but in light of the Texas Summary

Judgment, is stalled, pending this Appeal. CI.R. pages 116-180.

Appellees elected to proceed in Mississippi over Texas. Mississippi

was there jurisdiction and venue of choice. Cynthia obliged. Accordingly,

the Mississippi Litigation has been the sole venue for all very contentious

pretrial activity, from March 21, 2014 to present.

From March 24, 2014 through December 10, 2015, neither the

Appellees nor Cynthia have filed any pleadings, motions or engaged in

discovery in the Texas District Court. CI.R. pages 58, 65.

  19

 In April, 2014, in the Mississippi Litigation, Cynthia sent Appellees an

Offer of Judgment under Rule 68 of the Mississippi Rules of Civil

Procedure (“Rule 68”). Appendix A. The Offer of Judgment speaks for

itself. CI.R. page 114. Cynthia’s Offer of Judgment is in plain and simple

language, requiring no interpretation. Appellees rejected Cynthia’s Offer of

Judgment. By operation of the plain language of Rule 68, Cynthia’s Offer

of Judgment was withdrawn. Appendix B. Finally, Rule 68 unequivocally

prohibits any use of an Offer of Judgment against the offeror, Cynthia, in

any proceeding. Appendix A. In direct contravention of Rule 68, Appellees

not only use Cynthia’s Offer of Judgment in these Texas proceedings, but

also, Appellees twist Cynthia’s language in the Offer of Judgment, telling

the Texas District Court that Cynthia, “expressly admits…” liability in the

Offer of Judgment. CI.R. page 68, paragraph 3.3.

In July, 2014, by consent of Cynthia and Appellees, Judge McKenzie

in Mississippi Litigation entered the Mississippi consent Interlocutory

Judgment on July 15, 2014. CI.R. page 111. Cynthia and Appellees

mutually negotiated the Mississippi Judgment and agreed to the language

used in the Mississippi between the parties. CI.R. page 111. The

language of the Mississippi Judgment is clear and unambiguous, thus not

  20

subject to interpretation. CI.R. page 111. The Mississippi Judgment

speaks for itself. CI.R. page 111.

Also in August, 2014, the Mississippi Judge entered an Order on

numerous motions pending before the Mississippi Court. Appendix A.

Among other things, this August Order disposed of cross motions to

compel and motions for protective order regarding depositions, and ordered

the Estate’s administrator to identify all outstanding discovery owed by all

parties and prohibiting the scheduling of any depositions until outstanding

discovery disputes are resolved. Appendix A.

The August, 2014 Mississippi discovery Order is conspicuously

absent from Appellees’ misrepresentations to the Texas District Court

stating among other things, that Cynthia waived her right to participate in

discovery because she failed to engage in discovery. Appendix B.

Cynthia did not engage in discovery in the Texas Litigation in an effort to

preserve judicial resources and economics, and in good faith. Certainly,

litigating in Texas and discovery in the Texas District Court would have

been cheaper and more cost efficient for Cynthia. Cynthia’s good faith

conduct in relying solely on the Mississippi Court is being punished, and in

fact, advanced the Appellees’ exploitation of the parallel and apparently

competing proceedings. The August, 2014 discovery Order speaks for

  21

itself, and Appellees omission reveals yet again, Appellees’ proclivity for

falsifying and manipulating the alleged facts. Appendix A.

In December, 2014, the Appellees returned to the Texas District

Court, filing their “Motion for Summary Judgment with Exhibits” (“Motion for

Summary Judgment”). CI.R. Page 65. Appellees’ Motion for Summary

Judgment sought full disposition of all of their claims against Cynthia, with

an order granting the Appellees all of the relief prayed for not only in their

Texas Counterclaims but also in their Mississippi Petition. CI.R. oage 65,

182, 197. Appellees set their Motion for Summary Judgment for

submission on January 9, 2015.

Accidentally and unintentionally filed her response to Appellees’

Motion for Summary Judgment 1 day late. CI.R. page 205. The delay was

caused by Cynthia’s confusion over the court holidays. CI. R. page 205.

On January 2, 2015, Appellees filed a Proposed Order on Final Summary

Judgment. CI. R. page 197.

On January 9, 2015, Judge Patricia Kerrigan signed the Appellees’

proposed Order on Final Summary Judgment, as presented, except to

insert that she only considered a “…timely filed response…”. [Emphasis

added] CI. R. page 201.

  22

 The Order on Final Summary Judgment awarded the Appellees: 1)

the Lydia Marrero Langston Trust, dated December 24, 2010, be and

hereby declared to be invalid and should be and is set aside as a matter of

law; 2) Cynthia be disgorged of any distributions from the Marrero Ltd. &

Improvement Association…; 3) Cynthia reimburse the Appellees for the

cost of the Expert Witness Handwriting Opinion of Jane H. Buckner of

$4,500.00; 4) $137,000.00 which is the amount of money which Plaintiff

absconded with from the Marrero Ltd. & Improvement Association, Ltd.; 5)

$15,000.00 as the actual cash amount paid by Defendant Dr. Katherine

Langston to the pawn shop to recover the $100,00.00 worth of jewelry

which Cynthia pawned from the Lydia Marrero Langston trust, dated

December 10, 2010; 6) $ as interest due on the outstanding each

of the above referenced amounts through the date this Final Summary

Judgment is signed and entered; 7) $ as late fees; 8) $24,000.00

as reasonable and necessary attorneys fees; 9) Post judgment interest at

the rate of five per cent (5%) per annum from the date of this judgment until

paid; and 10) all taxable costs of court. CI. R. page . Additionally,

regarding appeals, the District Court ordered Cynthia to pay Appellees: (i)

$10,000.00 upon dismissal of an appeal filed by Plaintiff in the Court of

Appeals, or upon the issuance of a mandate affirming the judgment of the

  23

Court; (ii) $7,500.00 upon the denial of a petition for review filed by the

Plaintiff to the Texas Supreme Court, or upon the granting of a petition for

review filed by the Plaintiff to the Texas Supreme Court; and (iii)

$10,000.00 if a brief on the merits is requested of Defendants, and the

Texas Supreme Court thereafter (a) denies a petition for review filed by the

Plaintiff or (b) affirms the judgment of this Court. Finally, the Judgment

reads, “Because this Judgment disposes of all parties and all issues, this is

a FINAL JUDGMENT. CI. R. page 201.

Cynthia filed a Motion for New Trial or for Reconsideration, explaining

her error. CI.R. page 205. Judge Kerrigan denied Cynthia’s motion, and

this appeal ensued. CI.R. page 223. Even a cursory review of Appellees’

alleged facts would have revealed the Appellees’’ brazen deceit, abuse of

process and fraud on the courts. The Texas District Court committed

egregious error by granting Appellees’ Order of Final Summary Judgment,

by default.

  24

 SUMMARY OF THE ARGUMENT

Appellees’ Motion for Summary is wrought with flagrant perversions

of the facts and shameless lies. Because two completely independent and

unrelated jurisdictions, Texas and Mississippi, concurrently preside over

the identical legal claims and issues between Cynthia and Appellees,

Appellees were able to exploit these courts and play one against the other

in order to obtain a “trial by ambush.” CI.R. pages 30, 58, 77, 116-180.

The Texas District Court presided over this litigation based upon the

Trust’s choice of law provision. Under the Trust, Harris County was the

selected venue, and the Trust was to be governed by Texas law. CI.R. 4,

93. However, when the parties mutually agreed to set aside the Trust,

retroactively in fact, and submit the Trust assets to the Estate, the

Appellees and Cynthia tacitly agreed to proceed in Mississippi, the sole and

exclusive jurisdiction over the Estate. CI.R. page 111. The Texas District

Court lost subject matter jurisdiction over this case as well. CI.R. page 93,

111.

Further to the mutual invalidation of the Trust and the deferral all

assets to the Estate, the Appellees lost standing in these Texas

proceedings and are not the proper party plaintiffs. CI.R. page

  25

211.Appellees arguably used the Texas District Court to steal from the

Estate.

Any and all meaningful pretrial proceedings occurred in Mississippi

Court, to the exclusion of Texas. However, relying solely on the

Mississippi Interlocutory Judgment, Cynthia’s Offer of Judgment under the

Mississippi Rules of Civil Procedure and other documents and information

from the Mississippi proceedings, Appellees ask the Texas Court to grant a

summary judgment on all of the claims they asserted against. The

Appellees unabashedly misrepresented the plain language of those

Mississippi documents, if not lied, to the Texas District Court. Because the

Texas District Court did not read Appellees’ Motion, Appellees succeeded

in depriving Cynthia of all of her property rights in the Estate of Lydia

Marrero Langston, without due process, to “win.” Appellees lies are

deplorable, a flagrant abuse of process and fraud on the Texas and

Mississippi Courts.

Under established Texas law, Cynthia had no obligation to respond to

Appellees’ patently and admittedly deficient Motion. In fact, by Appellees’

own admission, their Motion for Summary Judgment only met the standard

required of a defendant, no-evidence motion. CI.R. pages 71-72,

paragraphs 4.2, 4.4. Appellees must know that to recover on their

  26

Counterclaims against Cynthia, they must provide conclusive evidence of

each and every element of their claims. Appellees did not even attempt to

conclusively prove each element of their causes of action.

Under even a cursory review of Appellees’ “evidence,” and their

corresponding arguments reveals Appellees’ barefaced lies. Appellees’

“evidence” does not say or prove what Appellees argue it says and proves.

Appellees failed to produce evidence of their claims and their damages.

The Texas District Court committed egregious error by granting

Appellees’ default Order of Final Summary Judgment.

  27

 ARGUMENT

I. Introduction.
After almost one year of hostile litigation in Mississippi, Appellees

returned to the Texas District Court, asking the Texas District Court to

adjudicate the application of Mississippi law and alleged “evidence” from

that ongoing litigation in order to obtain a full and final summary judgment

against Cynthia. By returning to the otherwise stationary Texas Litigation

to obtain their Summary Judgment, Appellees successfully avoided any

and all discovery obligations ongoing and pending in Mississippi. In fact,

by utilizing the Texas District Court, Appellees succeeded in completely

circumventing the Mississippi Court orders currently effecting them.

Moreover, Appellees are not the proper claimants as a result of the

consent interlocutory Mississippi Judgment. The Estate holds all rights to

any alleged claims. CI.R. page 111, 65.

Appellees’ obtained by default, a full and final disposition of each and

every of its counterclaims filed against Cynthia. CI.R. page 201. Incidental

to Appellees’ Final Order of Summary Judgment, the Order disposed of

each and every of Appellees’ Mississippi causes of action, successfully

avoiding having to comply with a single of Cynthia’s pending discovery

requests. CI.R. page 4, Appendix A.

  28

 The District Court erred by granting the Appellees facially deficient

Motion for Summary Judgment, and the Order of Final Summary Judgment

is an unconscionable abuse of discretion and a travesty of justice. Further,

Appellees’ Order of Final Summary Judgment deprives Cynthia of her

property rights without her constitutional right to due process.

II. Subject Matter Jurisdiction

The Texas District Court presided over this litigation based upon the

Trust’s choice of law provision. CI.R. page 93, . Under the Trust and

Texas Trust Code, Harris County was the selected venue and the dispute

was to be governed by Texas law. CI.R. page 5, 93; Texas Trust Code,

Article I(A), Sections 15.001, 15.002(c). Thus, the Texas District Court had

subject matter jurisdiction over matters relating to the Trust by virtue of the

Trust itself.

Ultimately, the Appellees and Cynthia agreed to set aside the Trust

and submit the assets for administration through the intestate Estate of

Lydia Marrero Langston. CI.R. page 111. As Lydia Marrero Langston

passed away in Mississippi, Mississippi is the exclusive jurisdiction over the

Estate and its assets. The Texas District Court lost subject matter

jurisdiction over this case. The Mississippi Court now has exclusive

  29

jurisdiction. CI.R. page 111. The Texas District Court did not have jsubject

matter jurisdiction to rule on Appellees’ Motion.

The Texas District Court erred by granting the default Summary

Judgment.

III. Appellees Lack Standing, Abscond from the Estate.

Appellees’ Counterclaims were asserted based upon the existence of

the Trust and as beneficiaries of the Trust. CI.R. page 58, 93. Accordingly,

they could properly assert alleged claims in relation to the Trust. However,

by mutual consent, the Appellees negotiated the interlocutory Mississippi

Judgment, terminating the Trust and submitting all assets for administration

within the intestate Estate. CI.R. page 111. Accordingly, any and all

alleged claims relating to any asset of the Estate belong to the Estate.

CI.R. page 111.

Appellees voluntarily gave up their alleged claims in favor of the

Estate. CI.R. page 111. Certainly Appellees know this, but nevertheless

came to Texas to assert those same alleged on there own behalf against

Cynthia. CI.R. page 65. Again, Appellees conduct is at best, suspicious.

The Texas District Court’s default Summary Judgment is a travesty of

justice.

  30

IV. Procedural History of Competing Mississippi and Texas Litigation

a. Texas Litigation: November, 2013 – March, 2014.

On November 8, 2013, Cynthia filed a Petition in the Texas District

Court. CI.R. Page 4. Cynthia is the plaintiff on these claims and the

Appellees are the defendants.

The Appellees responded with their Counterclaims, asserting against

Cynthia a variety of claims including among others, forgery, fraud and theft.

CI.R. pages 30, 58. Appellees’ Counterclaims seek to disgorge Cynthia of

her entire right and interest in and to her share of the Trust and/or the

Estate. CI.R. page 58. The Appellees are plaintiffs on these

counterclaims and Cynthia is the defendant. CI.R. page 58.

Prior to filing their Mississippi Petition, all parties engaged in

discovery in Texas. All discovery was abandoned in the Texas Litigation

once the Mississippi Litigation was filed. CI.R. page 2.

The Texas Litigation progressed from November 8, 2013 through and

until March, 2014, when the Appellees filed the Mississippi Litigation. CI.R.

page 2.

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 b. Mississippi Litigation: March, 2014 through Present.

The Estate of Lydia Marrero Langston was opened in Jones County,

Mississippi in 2012. On March 21, 2014 while the Texas Litigation

remained ongoing, the Appellees filed a Petition to Set Aside Instrument

and Trust Admitted to Probate and for Other Relief within the Estate in

Mississippi (“Mississippi Litigation”). CI.R. page 77 Appellees’ Texas

Counterclaims and Mississippi Claims against Cynthia are identical,

seeking essentially the identical relief as sought within the Texas Litigation.

CI.R. page 58, 77. Obviously, the Appellees are the plaintiffs on their

claims against Cynthia in the Mississippi Litigation, and Cynthia is the

defendant.

From March 21, 2014 to the present, the Mississippi Litigation has

been the sole venue for all very antagonistic pretrial discovery and pretrial

motions from March 21, 2014 to present. In Mississippi, Appellees and

Cynthia have filed countless, very contentious pretrial motions and

engaged in antagonistic discovery. Pertinent to Appellees’ alleged

“evidence” in their Motion for Summary Judgment, the Mississippi Court

has presided over or entered the following:

  32

 i. April, 2014 Offer of Judgment from Cynthia to Appellees

under Rule 68 of the Mississippi Rules of Civil Procedure.

Appellees rejected the Offer of Judgment. CI.R. page

114

ii. In July, 2014, consent Mississippi Judgment. CI.R. page

111.

iii. August 12, 2014 Order, Appendix A.

Cynthia’s April Offer of Judgment was pursuant to Rule 68 of the

Mississippi Rules of Civil Procedure. CI.R. page 114, Appendix B.

Contrary to Appellees statement to the Texas District Court, Cynthia made

NO admission of liability or wrongdoing and in fact, specifically denied any

admission of liability. CI.R. page 114.

In July, 2014, Appellees and Cynthia negotiated and agreed to set

aside the Last Will and Testament and the Trust. Appellees and Cynthia

negotiated and agreed to the exact language of the Mississippi consent

judgment which they entitled, “Judgment to Set Aside Last Will and

Testament and Instrument.” CI.R. page 111. Appellees presented the

Judgment to the Mississippi Court. The Mississippi Court signed and

entered the Judgment exactly as presented on July 15, 2014. (“Mississippi

Judgment”) CI. R. page 111.

  33

 Appellees told the District Court that Cynthia chose not to engage in

any discovery in the Texas Litigation, by choice or out of negligence.

Appellees conspicuously omit any discussion of the very contentious

discovery ongoing in Mississippi and particularly the August, 2014 Order

from the Mississippi Court specifically addressing discovery. Appendix A.

Presumably, that same discovery, if the Appellees had cooperated, would

have been used in Texas as well. Appellees have objected to each and

every interrogatory, request for admission and request for production of

documents and has sought a protective order regarding each and every of

Cynthia’s attempts at deposing the Appellees.

Specifically omitted from Appellees’ Motion is any mention of the

Mississippi Court ordered the Estate Administrator to review the

voluminous discovery responses to identify what each party properly owes

the other, and further, prohibited all parties from scheduling any

depositions. Appendix A. After 13 months, the Estate Administrator and

friend of the Appellees’ Mississippi counsel, has failed to comply with even

his most basic of obligations so the Mississippi Litigation is at a standstill

through no fault of Cynthia. Appendix A.

The Appellees escaped any and every discovery obligation regarding

Cynthia’s defenses, yet by fraud on the Mississippi and Texas courts,

  34

succeeded in obtaining a final summary judgment on all of their claims

against Cynthia, depriving her of her entire interest in the Estate.

The Texas District Court committed egregious error by granting the

Appellees’ default Order of Final Summary Judgment.

c. Texas Litigation: December, 2014 to present.

Despite 11 months of horrendous and contentious litigation in

Mississippi, to the exclusion of Texas, in December, 2014, Appellees

returned to the Texas District Court to file a Motion for Summary Judgment

with Exhibits on their Counterclaims against Cynthia (“Motion for Summary

Judgment”). CI.R. Page 65, 116-180.

Instead of asking the Mississippi Court for their judgment based upon

Mississippi pleadings, orders and documents, Appellees ask the Texas

District Court to grant them all of the relief prayed for on those Mississippi

“evidence.” CI.R. page 65, 182, 197.

Appellees set their Motion for Summary Judgment for submission on

January 9, 2015. Cynthia’s response was due, it seemed on December 29,

2014. On December 29, 2014, Cynthia telephoned the District Court Clerk

of Court and received a voicemail stating that the court was closed. CI. R.

page 205. Turns out the recording was for the previous day which was in

  35

fact a holiday. The court was not closed. Accidentally and an honest,

inadvertent and true mistake, and as a result of her misunderstanding

regarding clerk of court holidays, Cynthia filed her response one (1) day

late. Notwithstanding the due date for Cynthia’s response, under Texas

law and because Appellees’ Motion is so blatantly deficient, Cynthia was

not required to file a response.

On January 2, 2015, Appellees filed a Proposed Order on Final

Summary Judgment. CI. R. page 197.

On January 9, 2015, Judge Patricia Kerrigan signed the Appellees’

proposed Order on Final Summary Judgment, as presented, except to

insert that she only considered a “…timely filed response…” CI. R. page

201. Upon reading the Order of Final Summary Judgment, Cynthia, for the

first time realized that she accidentally filed her response to the Appellees

motion for summary judgment, ONE (1) day late. CI.R. page 201. Judge

Kerrigan apparently did not read the Appellees’ Motion because Cynthia

inadvertently filed her response late – though even a cursory review of the

Appellees’ pleadings shows the complete absence of evidence. This

appeal ensued.

  36

 Mississippi Litigation remains ongoing. The Texas District Court

committed egregious error by granting Appellees’ Order of Final Summary

Judgment.

V. Standard of Review and Burdens of Proof.
From amongst the litany of summary judgment rules, this brief

emphasizes these:

a. Appellees’ Burden of Proof –
Appellees Required to Conclusively
Establish Each Element of Each Cause of Action.

Summary judgment is not intended to replace trial by jury with trial by

affidavit, and here, Appellees ask the Texas Court for full and final relief on

claims pending in both Texas and Mississippi based upon documents from

the Mississippi Litigation and succeed in “trial” by ambush and fraud.

A plaintiff moving for summary judgment must prove his entitlement

to summary judgment on each element of his cause of action. Fry v.

Comm’n for Lawyer Discipline, 979 S.W.2d 331, 334 (Tex. App.—Houston

[14th Dist.] 1998, pet. denied). Once a movant has established each and

every element of a cause of action, and they are entitled to a summary

judgment, the burden then shifts to the non-movant to present any issues

which might preclude summary judgment. M.D. Anderson Hosp. and

  37

Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000), Robinson v.

Devereux Foundation, No. 14-01-00081 (Tex. App. — Houston [14th Dist.]

June 6, 2002).

However, unless the movant offers evidence sufficient to conclusively

establish his claim, the non-movant has no burden to file a response.

M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.

2000). [Emphasis added]. So, even where the nonmovant fails to respond,

if the movant's summary judgment evidence is not legally sufficient, a

summary judgment cannot be granted. City of Houston v. Clear Creek

Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).

Appellees’ Motion is from the perspective of plaintiff, not a defendant

and to argue otherwise is ludicrous. CI.R. Pages 71-72, paragraphs 4.2,

4.4. Appellees foolishly argue that as defendants, they can avail

themselves of the diminished burden of proof afforded a defendant seeking

summary judgment against the plaintiff, dismissing the plaintiff’s claims.

Appellees contention is preposterous, but they state,

…A defendant who moves for summary has the burden of
showing as a matter of law that no material issue of fact exists
as to the Plaintiff’s cause of action. Id.; see also Southwestern
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). This
may be accomplished by showing that at least one element of
the cause of action has been established conclusively against

  38

 the plaintiff. Woomer v. City of Galveston, 765 S.W.2d 836, 837
(Tex. App. – Houston [1st Dist] 1988, writ denied.
CI.R. page 71. paragraph 4.2. [Emphasis added.]

Also, Appellees continue,

Summary judgment must also be granted against a plaintiff’s claim
where the defendant shows that there is no genuine issue of
material fact about an element essential to plaintiff’s recovery.
Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1991).
CI.R. page 72, paragraph 4.5. [Emphasis added.]
Appellees finally insist, “

When a defendant seeks to obtain summary judgment based upon
the plaintiff’s inability to prove its case, the defendant must
conclusively prove at least one element of each of the plaintiff’s
causes of action.
CI.R. page 72, paragraph 4.4. [Emphasis added.]
***
In light of the above, there is no genuine issue of material fact as to
the Plaintiff’s liability under each of the subject documents.
Moreover, there is not genuine issue of material fact as to the
damages suffered by Defendants. Accordingly, pursuant to
Tex.R.Civ.P. 166a(c), Defendants are entitled to judgment as a
matter of law that Defendants have and recover from Plaintiff,
Cynthia Langston Sternberg, all sums due them

CI.R. page 72, Paragraph 5.1. [Emphasis added.]

What sums, and what evidence of those “sums.” Appellees argue that

because they are defendants to Cynthia’s primary claims against them,

  39

they can obtain a judgment for fraud and other of their counterclaims

against Cynthia by merely proving a single element of their cause of action.

The absurdity is obvious to anyone, much less a judge if read. Appellees’

Motion and alleged burden of proof is laughable.

The District Court’s Order of Final Summary Judgment is egregious

error and a travesty of justice.

b. District Court’s Standard of Review

1. Cynthia Not Obligated to
Respond to Patently Deficient Motion

Unless the movant offers evidence sufficient to conclusively establish

his claim, the non-movant has no burden to file a response. M.D. Anderson

Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). So, even

where the nonmovant fails to respond, if the movant's summary judgment

evidence is not legally sufficient, a summary judgment cannot be granted.

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.

1979).

Appellants’ recitation of their burden of proof is simply wrong. Based

upon Appellees’ reliance on the absurd premise that they are only required

to establish one element of their causes of action against Cynthia because

they are defendants on their Counterclaims proves they lack conclusive

  40

conclusive evidence of each element of their counterclaims against

Cynthia. In fact, even the “facts” they rely upon are unsubstantiated and

refute their claims, if read within their context. CI.R. page 186, 193.

Mischaracterizations of the truth – if not lies – pervade Appellees’ Motion.

No reasonable person could conclude that Cynthia was required to respond

to such fallacious tales and factually and legally deficient Motion for

Summary Judgment. Appellees’ Motion for Summary Judgment is a fraud

on the court and a complete abuse of process. Cynthia could not

reasonably have been required to respond to such a facially deficient and

twisted Motion. Because Cynthia was not required to respond to

Appellees’ Motion for Summary Judgment which by their own admission

only tries (but fails) to establish a “no-evidence” summary judgment. The

Summary Judgment is an unconscionable punishment for an accidental

error in calculated a deadline.

The District Court committed egregious error by summarily signing

Appellees’ Order of Final Summary Judgment.

2. District Court’s Standard of Review, Irrespective of Response

Irrespective of whether Cynthia was required to respond to Appellees’

motion or required to file a timely response, the District Court must consider

  41

the defendant’s evidence as true and in the light most favorable to the

non-movant, drawing every reasonable inference indulged in favor of the

Cynthia in deciding whether there is a genuine issue of material fact,.

KPMG Peat Marwick v. Harrison County House. Fin. Corp., 988 S.W.2d

746, 748 (Tex.1999), TH Investments, Inc. v. Kirby Inland Marine, L.P., 218

S.W.3d 173, 209 (Tex. App. – Houston [14th Dist.] 2007, pet. denied).

For summary judgment purposes, a matter is conclusively

established only if ordinary minds cannot differ regarding the conclusion to

be drawn from the evidence. Bradt v. West, 892 S.W.2d 56, 65 (Tex.

App.-Houston [1st Dist.] 1994, writ denied).

If the District Court had even skimmed Appellees’ Motion and their

corresponding “evidence,” the District Court would have necessarily known

that Cynthia was not required to respond to Appellees’ Motion because of

the deficiencies in Appellees’ Motion. The District Court would have

summarily dismissed their Motion for Summary Judgment. Appellees’

motion and alleged evidence is patently deficient. In fact, Appellees’

evidence is admittedly deficient as set out in their shameful argument that

as defendants to Cynthia’s claims, they only need prove an absence of

evidence.

  42

 Considering the Appellees’ alleged facts in the light most favorable to

Cynthia and under any plain reading of the Judgment, Offer of Judgment,

and other “evidence” every fact relied upon by the Appellees is vehemently

disputed. All minds would agree that Appellees’ allegations are whgolly

inadequate to support this Order of Final Summary Judgment. Worse, all

minds would look at Appellees’ “evidence” and when compared to

Appellees’ arguments, see their insulting lies, abuse of process and fraud

on the court.

Appellees’ alleged “facts” are blatant lies. The Appellees failed to

conclusively establish any element of their claims of forgery, fraud and

damages, among others. Under any review of the pleadings, the law did

not require Cynthia to respond to their motion. That Appellees could

brazenly lie to this District Court and walk away with a Final Order of

Summary Judgment is grotesque, an abuse of process and fraud on the

District Court.

The District Court abused its discretion in granting the Appellees’

Order of Final Summary Judgment against Cynthia.

  43

VI. The Legal Insufficiency
Of Appellees’ Motion for Summary Judgment.

Appellees, deliberately and with malice and forethought, availed

themselves of the Mississippi Court Litigation while convenient and when

Mississippi Court became inconvenient, they returned to the Texas District

Court for the relief they had not and could not obtain in Mississippi. Any

and all reasonable minds would necessarily agree that the Appellees used

the Texas District Court to make an end-run around the Mississippi Court.

There cannot be any other explanation for Appellees’ conduct and

arguments. Shamelessly and in bad faith, Appellees manipulated these

competing jurisdictions to achieve a judgment by ambush, which must be

seen as an abuse of process and fraud on the Texas District Court.

The District Court erred by granting the Order of Final Summary of

Judgment.

a. Genuine Issue of Fact:
Fact versus Fiction – Disputed or Undisputed.

Appellees’ undisputed “facts” are blatant “fiction.” Had the District Court

read a single line of Appellees’ Motion or a single piece of Appellees’

alleged conclusive “evidence,” the District Court would have recognized

Appellees’ unabashed fraud. Appellees submit the following documents as

  44

“conclusive evidence” of one element of their claim that Cynthia committed

forgery, fraud and theft, among other things. against Cynthia: 1) Cynthia’s

Offer of Judgment, CI.R., page 114; 2) Mutual consent Mississippi

Judgment, CI.R. page 78; and 3) all exhibits to Appellees Motion for

Summary Judgment. CI.R. page 78-181

Appellees’ lied about the plain language and intent of each of the above

documents. Because the documents speak for themselves and clearly and

without question do not say what Appellees argue they say, Cynthia had

not legal obligation to respond to the false accusations. Appellees’ Motion

was undeniably deficient.

The District Court erred in granting the Final Order of Summary

Judgment and must be reversed to rectify a complete travesty of justice.

1. Mississippi Offer of Judgment.

On April 22, 2014, Cynthia utilized Rule 68 of the Mississippi Rules of

Civil Procedure, submitting to Appellees an “Offer of Judgment.” CI.R.

page 114. Rule 68 provides in pertinent part,

…a party defending against a claim may serve upon the
adverse party an offer to allow judgment to be taken against
him for the money or property…specified in his offer…An offer
not accepted shall be deemed withdrawn and evidence
thereof is not admissible except in a proceeding to
determine costs… [

  45

Appendix B, [Emphasis added.]
Rule 68 speaks for itself and requires no interpretation. An Offer of

Judgment allows a party to expedite or settle litigation in advance of trial,

without being subject to any liability. If the opposing party fails to accept

the Offer of Judgment timely or rejects it, the Offer of Judgment is deemed

withdrawn. Finally, under any and every reading of Rule 68, evidence of

the Offer of Judgment is not admissible as evidence against the offeror.

Knowing Texas is unfamiliar with Mississippi law and without even

mentioning Rule 68 of the Mississippi Rules of Civil Procedure, Appellees

tell Texas that Cynthia, “expressly admits…” wrongdoing in her Offer of

Judgment. CI.R. Page 68, 114. Specifically, Appellees have the audacity

to 1) submit Cynthia’s Offer of Judgment as evidence against Cynthia;

and 2) blatantly lied to the Texas District Court that Cynthia admitted

liability in her Offer of Judgment. CI.R. page 68, 114.

As a defendant in the Mississippi litigation, Cynthia exercised her right

under Rule 68, sending Appellees an Offer of Judgment. Cynthia’s Offer of

Judgment specifically states:

….without liability…..****

CI.R. page 114. [Emphasis added.]

  46

 Cynthia served Appellees with an Offer of Judgment on April 22,

2014. CI.R. 114. Appellees rejected Cynthia’s Offer of Judgment. By

simple application of Rule 68, Cynthia’s Offer of Judgment withdrawn.

Appellees also pervert the plain language of Cynthia’s Offer of Judgment,

lying that Cynthia “…expressly admits the Trust Agreement and the Last

Will and Testament are invalid.” CI.R. page 68. Appellees assertion that

Cynthia’s Offer of Judgment is an admission of anything is a bold-faced lie!

Appellees deliberately and with malice and forethought, lie to the

District Court about Cynthia’s Offer of Judgment, conveniently fabricate o

the District Court the context, implication and intent of Cynthia’s Offer of

Judgment. Again, Appellees demonstrate their proclivity for exploitation of

the Texas District Court’s obliviousness to the ongoing Mississippi

proceedings. Cynthia’s Offer of Judgment in no way and no where even

suggests any admission of wrongdoing or as to the validity of the Trust.

The District Court erred by entering a default Order of Final

Summary Judgment and is a travesty of justice.

2. Judgment Setting Aside Last Will and
Testament and the Lydia Marrero Langston Trust.

In July, 2014, Cynthia and Appellees mutually agreed to set aside the

Trust. CI.R. page 111. Cynthia and Appellees negotiated, prepared and

  47

modified the Judgment for submission to the Mississippi Court. The

Judgment was mutually agreed. CI.R. page 111. Reginald Blackledge,

Mississippi counsel for Appellees, delivered the proposed Judgment

Setting Aside Last Will and Testament and The Lydia Marrero Langston

Trust.

The actual words in the consent Judgment negotiated between

Appellees and Cynthia exposes Appellees’ fraud,

…Petitioners and Respondent have agreed that the Lydia Marrero
Langston Trust …be declared invalid, and further agree that the
instrument admitted to probate in this matter…should be set
aside and this estate proceed as an intestate estate.
CI.R. page 111. [Emphasis added.]

Appellees seemingly maintain that the Mississippi Court determined

that the Last Will and Testament and Lydia Marrero Trust were “invalid,”

presumably after consideration of some “evidence.” CI.R. page 70,

paragraph 3.12. Appellees pervert the language and meaning of the

Judgment, stating

On or about July 16, 2014, the Mississippi Court entered its
Judgment Setting Aside Last Will and Testament and the Lydia
Marrero Langston Trust, declaring, inter alia, the Last Will and
Testament and the Trust Agreement is “invalid.”
CI.R. page 79, paragraph 3.12. [Emphasis added]

  48

Applying rudimentary definitions to Appellees’ words exposes Appellees’

lies, abuse of process and fraud on the Texas District Court:

1. “Its” means, “of, belonging to,” and is a possessive modifier used

to attribute the Judgment to the Mississippi Court, as if belonging

to or originating from that Mississippi Court. Appellees argue that

the Judgment belonged to the Mississippi Court.

2. “Declared” means, “to proclaim;” or to announce one’s position.”

Appellees tell the Texas District Court that the Mississippi Court

opined and declared that the Trust was invalid.

3. Appellees use the words, “entered its Judgment…” to mislead the

Texas Court into believing that the Mississippi Court made a

judicial determination that the Trust was invalid, presumably due to

Cynthia’s actions or omissions of wrongdoing.

Free Dictionary.com.

No reading of the Mississippi Judgment, in any context, can support

Appellees suggestion that it is a judicial determination as to Cynthia’s

conduct or wrongdoing. Appellees’ lies have no bounds and are

unconscionable. The Judgment speaks for itself. The Judgment’s plain

language leaves no room for interpretation.

  49

 The Appellees conned the Texas District Court. The Texas District

Court erred in granting the default Summary Judgment.

3. True Facts Defeat Appellees’ Claims Against Cynthia

The true facts of this case actually refute all of Appellees’ Counterclaims

against Cynthia. Had Appellees in any meaningful way participated in good

faith in discovery, Cynthia could refute the Appelleesl’ lies with actual facts,

but Appellees refuse for obvious reasons. Interestingly though, Appellees

neglect to identify a single element of their causes of action, including

fraud, forgery, and theft, each requires proof of actual and specific intent.

Appellees did not even pretend to offer evidence of intent, much less

conclusive evidence that Cynthia intended to “defraud” Appellees, to

“commit forgery” and to “steal.”

Notwithstanding Appellees complete absence of evidence to support

their Summary Judgment, even if there was absolute and conclusive

evidence of their “claims” against Cynthia, Appellees must know that they

are NOT the proper party to assert such claims – the Estate “owns” the

alleged claims and the Estate is the ONLY party entitled to assert any

alleged claims against Cynthia. Knowing that the Mississippi Judgment

they rely upon as “evidence” that Mississippi Court found that Cynthia

committed wrongdoing, it is by virtue of this same Mississippi Judgment

  50

that deprives them of any and all rights to their alleged claims, which claims

are vehemently denied.

Notwithstanding that Appellees have no right to assert any alleged

claims against Cynthia, not only did they fail to establish any damages,

Appellees deliberately and with malice and forethought, omitted from

their pleadings any mention of the extent to which they benefited from and

participated in the assets within the “Trust” while it was still in operation.

Again, Appellees lie by omission. Appellees’ use their Summary Judgment

to steal Cynthia’s interest in the Estate without due process and in violation

of all notions of fair play and substantial justice.

  51

 CONCLUSION

At every turn, Appellees deceive the District Court by presenting

evidence from the Mississippi Litigation, using the distance to

mischaracterize and misrepresent the facts. The Appellees have and

continue to exploit the Texas Court for its distance from the Mississippi

Litigation.

For the foregoing reasons, Cynthia respectfully requests that this

Court reverse the Order of Final Summary Judgment dated January 9,

2015 and remand for further proceedings in the trial court below, and all

other just and equitable relief, including sanctions.

  52

 PRAYER

Cynthia Sternberg implores this Honorable Court to reverse the

Texas District Court’s Order of Final Summary Judgment and remand the

case to the District Court for further proceedings. Additionally, Cynthia

pleas that the Appellees be sanctioned for their complete disregard for the

truth, abuse of process and fraud on the Texas District Court, as well as the

Mississippi Court.

/s/Cynthia Sternberg/
2727 Revere St., #1069
Houston, Texas 77098
832-613-4955
Langston7@aol.com
PRO SE APPELLANT

  53

 APPENDIX

A. August 12, 2014 Order of Jones County, Mississippi Court.

B. Rule 68 of the Mississippi Rules of Civil Procedure

  54

 CERTIFICATE OF COMPLIANCE

I hereby certify that this document complies with the typeface

requirements of Texas Rules of App. P. 9.4(e) because it has been

prepared in a conventional typeface no smaller than 14-point for text. This

document complies with the word-count limitations of Tex. R. App. 9.4(i), if

applicable.

I hereby certify that this brief was produced on a computer using

Word software and contains 7,356 words, as determined by the software’s

word-count function, excluding those sections of the brief listed in Texas

Rule of Appellate Procedure 9.4(i)(1) as being excludable.

  55