Marshall, E. Pierce, Ind. & v. Estate of J. Howard Marshall ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Howard Stern, as Executor of the Estate of Vickie Lynn Marshall
v. Elaine Marshall, Individually, as Independent Executrix of the
Estate of E. Pierce Marshall, as trustee of the Marshall
Grandchildren’s Trust for the benefit of E. Pierce Marshall, Jr.,
as trustee of the Marshall Grandchildren’s Trust for the Benefit
of Preston Marshall, as trustee of the Bettye B. Marshall Living
Trust, as trustee of the J. Howard Marshall, II, Marital Trust
Number Two, as trustee of the J. Howard Marshall, II, Living
Trust, as trustee of the E. Pierce Marshall Family Trust created
under the Bettye B. Marshall Living Trust Indenture dated
October 30, 1990, as trustee of the Marshall Petroleum, Inc.,
Stock Holding Trust, as trustee of the Marshall Heritage
Foundation, and as trustee of the Marshall Legacy Foundation; E.
Pierce Marshall, Jr., Individually, as trustee of the Marshall
Petroleum, Inc., Stock Holding Trust, as trustee of the Marshall
Heritage Foundation, and as trustee of the Marshall Legacy
Foundation; Preston Marshall, Individually, as trustee of the
Marshall Petroleum, Inc., Stock Holding Trust, as trustee of the
Marshall Heritage Foundation, and as trustee of the Marshall
Legacy Foundation; Robert McIntyre, as temporary administrator
of the Estate of J. Howard Marshall, II; Marshall Petroleum, Inc.
n/k/a Trof, Inc.; Trof, Inc., f/k/a Marshall Petroleum, Inc.; Finley
Hilliard, individually, as trustee of the Grantor Retained Annuity
Trust, as trustee of the J. Howard Marshall Charitable Lead
Trust, as trustee of the J. Howard Marshall, II, Liquidating Trust
Number Two, and as trustee of the J. Howard Marshall, II,
Family Trust; Ken Farrar, as trustee of the J. Howard Marshall,
II, Liquidating Trust Number One, and as trustee of the J.
Howard Marshall, II, Family Trust; and Dr. Stephen Cook, as
trustee of the J. Howard Marshall, II, Living Trust
Appellate case number: 01-02-00114-CV
Trial court case number: 276815402
Trial court: Probate Court No. 2 of Harris County
On May 12, 2014, Charles Koch, Don Cordes, and Koch Industries, Inc. (“Koch
Parties”) filed an “Unopposed Motion to Dismiss,” asking the Court “to dismiss them
from this appeal.” We deny the motion.
In their motion, the Koch Parties contend that they should be dismissed from this
appeal because “there are no active claims on appeal pending against the Koch Parties”
and that we should “authoritatively clarify that the Koch Parties do not need to file an
appellees’ brief.”
Texas Rule of Appellate Procedure 3.1(c) defines an “appellee” as “a party
adverse to an appellant.” TEX. R. APP. P. 3.1(c). “Unlike an appellant, who must file a
notice of appeal and identify himself or herself, an appellee need not be definitively
identified until the appellant’s brief is filed. An appellee, however, must be a party to the
trial court’s final judgment and must be someone against whom the appellant raises
issues or points of error in the appellant’s brief.” Showbiz Multimedia, LLC v. Mountain
States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.—Houston [1st Dist.] 2009,
no pet.) (citing Gray v. Allen, 41 S.W.3d 330, 331 n.2 (Tex. App.—Fort Worth 2001, no
pet.)).
Here, appellant, Howard Stern, as Executor of the Estate of Vickie Lynn Marshall,
has not yet filed a brief. If appellant raises an issue or point of error against the Koch
Parties in his brief, then the Koch Parties will be “appellees” in this appeal; should
appellant not raise any issue or point of error on appeal involving the Koch Parties,
however, the Koch Parties will not be “appellees.” See Showbiz Multimedia, 303 S.W.3d
at 771 n.3 (requiring issues or points of error to be raised against party by appellant in
appellant’s brief for party to be “appellee”). Accordingly, we cannot yet determine
whether the Koch Parties are “appellees.” Further, unless appellant raises an issue or
point of error against the Koch Parties, they will not be proper parties to this appeal and
will not need to file an appellee’s brief or a motion to dismiss. See TEX. R. APP. P. 38.1,
38.2, 38.3 (establishing requirements of briefs, which are filed by appellant and appellee).
Finally, to the extent the Koch Parties request that we issue a judgment dismissing
them from this appeal, such a judgment would be premature and interlocutory.
Accordingly, we deny the Koch Parties’ motion to dismiss.
Judge’s signature: /s/ Chief Justice Sherry Radack
 Acting individually  Acting for the Court
Date: May 20, 2014