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 HONORABLE 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 Trustees) have

filed a motion for voluntary dismissal of their appeal and for involuntary dismissal of 

Johnnie 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 has not filed a response.

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

“dispos[ed] of all claims and all parties.” The Trustees filed a notice of appeal from the portion 

of the probate court’s final judgment granting summary judgment in favor of Love-Marx and 

dismissing the Trustees’ claims against her. Love-Marx also filed a notice of cross appeal “from 
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the portion of the probate court’s odious discovery rulings . . . over-ruling her valid objections to 

Plaintiffs’ obnoxious requests and compelling discovery.”

In this Court, the Trustees moved 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 an opening brief in her cross appeal raising a single issue: “the failure of the 

[probate court] to sustain her objections to requests for production” after the probate court 

compelled her “to produce things in response to illegitimate, improper requests.” As her only 

requested appellate relief, Love-Marx requests that the Trustees “should not be allowed use of 

any document produced in response to these illegitimate 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 response 

to these RFP’s should be ordered excluded from use at any re-trial unless same are obtained in 

some other legitimate fashion or offered by [Love-Marx].”

We may dismiss an appeal on an appellant’s motion “unless such disposition 

would prevent a party from seeking relief to which it would otherwise be entitled.” Id. 

R. 42.1(a). Here, Love-Marx’s requested relief in her cross appeal is contingent upon a remand 

in the Trustees’ appeal and a potential retrial; Love-Marx does not independently seek to reverse 

the probate court’s judgment and to remand the cause. Thus, absent consideration, reversal, and 

remand of the Trustees’ appeal, Love-Marx would not “otherwise be entitled” to her requested

relief from this Court. See id. R. 43.2 (describing types of judgment available to courts of 

appeals). Nor has Love-Marx identified how 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 voluntarily dismiss their appeal. See id. R. 42.1(a). 
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We also may grant a motion for involuntary dismissal of an appeal when the 

appeal is subject to dismissal “for want of jurisdiction” or “because the appellant has failed to

comply with . . . a notice from the clerk requiring a response or other action within a specified 

time.” Id. R. 42.3(a), (c). Here, Love-Marx has failed to comply with the notice from the clerk 

requesting a response by January 4, 2021, to the Trustees’ motion. Additionally, the Trustees 

argue that the “dismissal of their appeal against [Love-Marx] for tortious interference and 

participation in a breach of fiduciary duty, including their judicial admission of intent to forgo 

any further pursuit of any previously-nonsuited claims against [Love-Marx]” moots Love-Marx’s 

cross appeal because “there is no possible ‘re-trial’ in which any document produced by 

[Love-Marx] could be used against her” and, accordingly, “no live controversy in which this 

Court could rule that such documents should be excluded.” 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 

affect the rights of the parties.”). We therefore grant the Trustees’ motion for involuntary 

dismissal of Love-Marx’s cross appeal. See Tex. R. App. P. 42.3(a), (c).

Having granted the Trustees’ motion, we dismiss the appeal and cross appeal. See 

id. R. 42.1(a), .3(a), (c).

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Triana, and Kelly

Dismissed on Appellants’ Motion

Filed: January 15, 2021