### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 20 - 00189 - CV
Appellants, Nellie Katherine Marx, Sandra Jones, and William Donald Marx, Individually and as Co - Trustees of the Paul Marx 2013 Management Trust// Cross - Appellant, Johnnie Love - Marx
v. Appellee, Johnnie Love - Marx// Cross - Appellees, Nellie Katherine Marx, Sandra Jones, and William Donald Marx, Individually and as Co - Trustees of the Paul Marx 2013 Management Trust

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C - 1 - PB - 16 - 000686, THE HO NORABLE GUY S. HERMAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N Nellie Katherine Marx, Sandra Jones, and William Donald Marx, Individually and as Co

- Trustees of the Paul Marx 2013 Management Trust ( collectively, the T rustees) ha v e file d a mo ti on for vo luntary dismiss al of their appeal and for involuntary dismissal of Johnn ie Love

- Marx ’ s cross appeal
. See Tex. R. App. P. 42. 1(a), .3( a ). On December 22, 2020, we requested that Love

- Marx respond by January 4, 2021 , but she h as no t filed a resp onse .

In the underlying proceeding , the probate court issued a final judgment that

“ dispos[ ed ] of all claims an d all parties
. ” T he Trust ees filed a notice of appe al from the portion of the p robate court ’ s final judgment granting s ummary judgment in favor o f Lo ve - Marx and di smissing the T rust ees ’ claims ag ainst her. Love

- Marx also filed a notice of cross appeal “ from2

the portion of the probate court ’ s odiou s discovery rulings .
. . over - ruling her valid objections to Plaintiffs ’ obno xious requests an d com p e l ling discovery. ”

In thi s Court, t he Trustees mo ved to dismiss the appeal and cross appeal before filing any of their briefing on the merits
. As noted above, Love

- Marx has not filed a response, but she did file a n opening b rief in her cross appeal rai s ing a single issue: “ t he failure of the [pr obate court] to sustain her objections to requests for production” after the pr obate court compelled her “to produce things in response to illegitimate, improper requests.” As her only requested appellate re lie f , Love

- Marx requests that the Trustees “ sh ould not be allowed use of any docume nt produce d in response to these illegiti mate RFP’s on a re

- trial of the cause if this court remand ” and “[t]o remedy this error, all documents obtained by [ the Trustees] in re s ponse to these RFP’s should be ordered exc luded from use at any re

- trial unless same are obtained in some other legitimat e fashion or offered by [ Love

- Marx].”

We may dismiss an appeal on an appellant ’ s motion “ unless such disposition would prevent a pa rty from seeking re lief to which it would othe rwise be entitled. ” Id. R. 42.1 (a)
. Here, Lov e - Marx ’ s requested relief in her cross appeal is contingent upon a remand in the Trustees ’ appeal and a potential retria l ; Love

- Marx does not independently seek to re v er se the probate court ’ s judgment and to remand the cause
. Thus, a bsent consideration , reversal, and remand of the Trustees ’ appeal , Love

- Marx would not “ otherwise be entitled ” to her requested rel ief from this Court
. See id. R. 43.2 (describing type s o f judgment available t o courts of appeals)
. Nor has Love

- Marx identified h ow a dismissal of the Trustees ’ appeal would prevent her from seeking any other relief to which she would otherwise be entitled. We therefore grant the Trustees ’ motion to v olun t ar i ly dismiss thei r appeal
. See id. R. 42.1(a).3 We also may grant a motion for involunta r y dismiss al of an appeal when the appeal is sub

je ct to dismissal “ for want of jurisdiction ” or “ because the appellant has failed to comply with .
. . a notice from the clerk requir ing a response o r other action within a specified time. ” Id. R . 42.3 ( a), ( c). Here, Love

- Marx has failed to comply wit h the notice from the clerk requesting a response by January 4, 2021, to the Trustees ’ motion
. Additionally, the Trust e es
a rgue that the “ dismissal of their app eal against [Love

- Marx] for tortious interference and partici pation in a bre ach of fiduciary duty, incl udin g their jud icial admission o f intent to forgo any further pursuit of any previously

- nonsuited claims against [L o ve - Marx] ” moots Love

- Marx ’ s
cross app eal because “ there is no possible ‘ re - trial ’ in wh ich any document produce d by [Love

- Marx] could be used ag ainst her ” and , accordingly , “ no live controversy in which this Court could rule that such documents should be e xcluded. ” See Zipp v. Wuemling , 218 S.W.3d 71 , 73 (Tex. 2007) (per curiam) ( “ An appeal is moot when a court ’ s action on the merits cannot affec t the rights of the parties. ” ). We there fore grant the Trustees ’ motion for involuntar y dismiss al of Love

- M arx ’ s c ross appeal. See Tex. R. App. P. 4 2.3(a), (c).

Having granted the Trustees ’ motion, we dismiss the appeal and cross appeal. See id. R. 42.1(a), .3(a), (c).

_______________________________________ ___ Meli ssa Goodwin , Justice Before Justices Goo d win, Triana, and Kelly Dismissed on Appellant s ’ Motion Filed: January 15, 2021