Cynthia Sternberg v. Lydia Marrero Langston Trust, Katherine Langston Stoetzel, James Wright Langston, Jr., Kenneth Louis Langston, and Dr. James Wright Langston
Opinion
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
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.
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
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
CONCLUSION 51
PRAYER 52
APPENDIX 53
CERTIFICATE OF COMPLIANCE 54
CERTIFICATE OF SERVICE 55
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.
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
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…;
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.
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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
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.
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
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
CONCLUSION 51
PRAYER 52
APPENDIX 53
CERTIFICATE OF COMPLIANCE 54
CERTIFICATE OF SERVICE 55
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.
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
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…;
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.
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.
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.
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.
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.
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
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.
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?”
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
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.
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
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
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.
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
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.
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
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
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.
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.
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
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.
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.
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:
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
ii. In July, 2014, consent Mississippi Judgment. CI.R. page
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.
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,
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
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
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
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.
Mississippi Litigation remains ongoing. The Texas District Court
committed egregious error by granting Appellees’ Order of Final Summary
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
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
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,
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
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
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.
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.
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
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
“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… [
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.]
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
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]
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.
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
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.
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.
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
APPENDIX
A. August 12, 2014 Order of Jones County, Mississippi Court.
B. Rule 68 of the Mississippi Rules of Civil Procedure
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.
Cynthia Sternberg v. Lydia Marrero Langston Trust, Katherine Langston Stoetzel, James Wright Langston, Jr., Kenneth Louis Langston, and Dr. James Wright Langston (Cynthia Sternberg v. Lydia Marrero Langston Trust, Katherine Langston Stoetzel, James Wright Langston, Jr., Kenneth Louis Langston, and Dr. James Wright Langston) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.