TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00024-CV
Johnnie Love-Marx, Appellant
v.
Nellie Katherine Marx, Sandra Jones, and William Donald Marx, Individually and as
Co-Trustees of the Paul Marx 2013 Management Trust, Appellees
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
NO. 20-0006-G, THE HONORABLE CHRIS JOHNSON, JUDGE PRESIDING
MEMORANDUM OPINION
Johnnie Love-Marx appeals from an order of the probate court approving an
agreement settling a dispute over a trust. Appellees 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 moved to dismiss this appeal as moot. We agree and will
dismiss for want of jurisdiction.
This appeal arises from a dispute over the Paul Marx 2013 Management Trust.
Paul Marx created and funded the trust prior to his marriage to Love-Marx. In 2016, the
Trustees sued Marx and Love-Marx in the probate court of Hays County. The probate court
rendered a final judgment, and all parties appealed: Paul Marx appealed from the judgment
against him on the Trustees’ claims; the Trustees cross-appealed the dismissal of their claims
against Love-Marx on summary judgment; and Love-Marx cross-appealed certain evidentiary
rulings. While those appeals were pending in this Court, a county court at law appointed Joe
Babb as guardian of Paul Marx’s estate for the limited purposes of managing the litigation. Babb
was authorized to, among other things, “compromise, and/or settle all matters in dispute between
Paul Marx and third parties, including the trustees of the Paul Marx 2013 Management Trust.”
Babb and the Trustees reached a settlement in which they agreed to dismiss all pending
litigation, terminate the trust, and distribute its assets among Paul Marx and the Trustees. Love-
Marx was not a party to the settlement.
Babb filed a motion in the probate court to approve the settlement. After hearing
arguments from Babb, the Trustees, and Love-Marx, the probate court signed an order granting
the motion on October 26, 2020. Babb moved to dismiss his appeal, and the Trustees separately
moved to dismiss their cross-appeal and Love-Marx’s cross-appeal. We granted both motions.
See Babb v. Marx, No. 03-20-00189-CV, 2020 WL 6834227, at *1 (Tex. App.—Austin
Nov. 19, 2020, order) (per curiam) (dismissing Babb’s appeal); Marx v. Love-Marx,
No. 03-20-00189CV, 2021 WL 162500, at *1–2 (Tex. App.—Austin Jan. 15, 2021, no pet.)
(mem. op.) (granting Trustees’ motion).
Two days before we granted the Trustees’ motion, Love-Marx filed this appeal
from the probate court’s order approving the settlement agreement. The Trustees moved to
dismiss for want of jurisdiction on the ground that the order approving the agreement is not final
and appealable and, in the alternative, that the appeal is untimely. The Trustees later filed a
supplemental motion arguing that the appeal is moot because the mandate has issued in the
previous appeal. The Trustees then filed a second supplemental motion to dismiss informing us
that Paul Marx had died and arguing that his death renders this appeal moot. On October 8, 2021,
Love-Marx filed a suggestion of death confirming that Paul Marx is deceased.
2
The mootness doctrine is a constitutional limitation that prohibits courts from
issuing advisory opinions. Electric Reliability Council of Tex., Inc. v. Panda Power Generation
Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021). “A case becomes moot when there
ceases to be a justiciable controversy between the parties or when the parties cease to have ‘a
legally cognizable interest in the outcome.’” State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex.
2018) (quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)). Put simply, an appeal is
moot “when events make it impossible for the court to grant the relief requested or otherwise
‘affect the parties’ rights or interests.’” Id. (citing Heckman v. Williamson County, 369 S.W.3d 137,
162 (Tex. 2012)). If a case becomes moot, the court must dismiss the case for lack of
jurisdiction. Heckman, 369 S.W.3d at 162.
We agree with the Trustees that Paul Marx’s death renders this appeal moot.
Love-Marx opposed the settlement agreement in the probate court on the ground that it would
leave Paul Marx without sufficient funds to support himself during his life. She argues on appeal
that there is a live controversy over whether approving the settlement agreement and thus
terminating the trust contradicted Paul Marx’s intent in creating the trust—to provide for his own
“maintenance and support until death.” Paul Marx’s death means that Love-Marx can no longer
obtain the relief she seeks, which is reinstatement of the trust for the remainder of Paul Marx’s
lifetime. 1 See Electric Reliability Council, 619 S.W.3d at 635 (explaining that appeal becomes
moot when “the court can no longer grant the requested relief or otherwise affect the parties’
rights or interests”); Harper, 562 S.W.3d at 6. We grant the Trustees’ second supplemental
1 Love-Marx stated in the suggestion of death that she has been appointed personal
representative of Marx’s estate and “anticipates filing further, appropriate pleadings in due time.”
She did not file a response to the Trustees’ motion to dismiss arguing that Marx’s death render
this appeal moot.
3
motion to dismiss, and we dismiss this appeal for want of jurisdiction. 2 See Tex. R. App. P.
42.3(a); Heckman, 369 S.W.3d at 162.
__________________________________________
Edward Smith, Justice
Before Justices Goodwin, Baker, and Smith
Dismissed for Want of Jurisdiction
Filed: December 3, 2021
2 We dismiss the Trustees’ original and first supplemental motions to dismiss as moot.
4