                            COURT OF APPEALS FOR THE
                       FIRST DISTRICT OF TEXAS AT HOUSTON

                                        ORDER

Appellate case name:   E. Pierce Marshall, Individually, as will proponent, as co-trustee
                       of the Marshall Grandchildren’s Trust for the Benefit of E. Pierce
                       Marshall, Jr., as co-trustee of the Marshall Grandchildren’s Trust
                       for the Benefit of Preston Marshall, as trustee of the Marshall
                       Petroleum, Inc. Stockholding Trust, as trustee of the Marshall
                       Museum and Library Trust, as trustee of the Bettye B. Marshall
                       Living Trust, as trustee of the J. Howard Marshall, II, Marital
                       Trust Number Two, and as trustee of the E. Pierce Marshall
                       Family Trust created under the Bettye B. Marshall Living Trust
                       Indenture dated October 30, 1990; Elaine Marshall, Individually,
                       as co-trustee of the Marshall Grandchildren’s Trust for the
                       benefit of E. Pierce Marshall, Jr., and as co-trustee of the
                       Marshall Grandchildren’s Trust for the Benefit of Preston
                       Marshall; E. Pierce Marshall, Jr.; Preston Marshall; Marshall
                       Petroleum, Inc.; Trof, Inc.; Finley Hilliard, individually, as
                       trustee of the J. Howard Marshall, II, Living Trust, as trustee of
                       the Marshall Petroleum, Inc. Stock Holding Trust, 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, Living Trust, 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 Marshall Museum and Library
                       Trust v. J. Howard Marshall, III; Vickie Lynn Marshall; Harvey
                       Sorensen; and Foulston & Siefkin, L.L.P.

                                         ****


                                           1
Foulston & Siefkin, L.L.P. and Harvey Sorensen v. J. Howard
Marshall, III

                   ****

J. Howard Marshall, III v. E. Pierce Marshall, Individually, as
will proponent, as co-trustee of the Marshall Grandchildren’s
Trust for the Benefit of E. Pierce Marshall, Jr., as co-trustee of
the Marshall Grandchildren’s Trust for the Benefit of Preston
Marshall, as trustee of the Marshall Petroleum, Inc. Stockholding
Trust, as trustee of the Marshall Museum and Library Trust, as
trustee of the Bettye B. Marshall Living Trust, as trustee of the J.
Howard Marshall, II, Marital Trust Number Two, and as trustee
of the E. Pierce Marshall Family Trust created under the Bettye
B. Marshall Living Trust Indenture dated October 30, 1990;
Elaine Marshall, Individually, as co-trustee of the Marshall
Grandchildren’s Trust for the benefit of E. Pierce Marshall, Jr.,
and as co-trustee of the Marshall Grandchildren’s Trust for the
Benefit of Preston Marshall; E. Pierce Marshall, Jr.; Preston
Marshall; Marshall Petroleum, Inc.; Trof, Inc.; Finley Hilliard,
individually, as trustee of the J. Howard Marshall, II, Living
Trust, as trustee of the Marshall Petroleum, Inc. Stock Holding
Trust, 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, Living Trust, as trustee
of the J. Howard Marshall, II, Liquidating Trust Number One,
and as trustee of the J. Howard Marshall, II, Family Trust;
Harvey Sorensen; Foulston & Siefkin, L.L.P.; Dr. Stephen Cook,
as trustee of the Marshall Museum and Library Trust; Charles
Koch; Don Cordes; and Koch Industries, Inc.

                   ****

Vickie Lynn Marshall v. E. Pierce Marshall, as will proponent,
Individually, as co-trustee of the Marshall Grandchildren’s Trust
for the Benefit of E. Pierce Marshall, Jr., as co-trustee of the
Marshall Grandchildren’s Trust for the Benefit of Preston
Marshall, as trustee of the Marshall Petroleum, Inc. Stockholding
Trust, as trustee of the Marshall Museum and Library Trust, as
trustee of the Bettye B. Marshall Living Trust, as trustee of the J.
                     2
                        Howard Marshall, II, Marital Trust Number Two, and as trustee
                        of the E. Pierce Marshall Family Trust created under the Bettye
                        B. Marshall Living Trust Indenture dated October 30, 1990;
                        Elaine Marshall, Individually, as co-trustee of the Marshall
                        Grandchildren’s Trust for the benefit of E. Pierce Marshall, Jr.,
                        and as co-trustee of the Marshall Grandchildren’s Trust for the
                        Benefit of Preston Marshall; E. Pierce Marshall, Jr.; Preston
                        Marshall; Marshall Petroleum, Inc.; Trof, Inc.; Finley Hilliard,
                        individually, as trustee of the J. Howard Marshall, II, Living
                        Trust, as trustee of the Marshall Petroleum, Inc. Stock Holding
                        Trust, 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, Living Trust, as trustee
                        of the J. Howard Marshall, II, Liquidating Trust Number One,
                        and as trustee of the J. Howard Marshall, II, Family Trust;
                        Harvey Sorensen; Foulston & Siefkin, L.L.P.; and Dr. Stephen
                        Cook, as trustee of the Marshall Museum and Library Trust

Appellate case number: 01-02-00114-CV

Trial court number:     276,815-402

Trial court:            Probate Court No. 2 of Harris County

       On August 15, 2002, we abated this appeal pursuant to a notice of bankruptcy
stating that J. Howard Marshall, III had filed for bankruptcy protection. See 11 U.S.C.S.
§ 362(a)(1) (LexisNexis 2009); TEX. R. APP. P. 8.1, 8.2. On January 31, 2014, J. Howard
Marshall, III filed a “Motion to Lift Bankruptcy Stay and Motion for Scheduling
Conference,” stating that the bankruptcy court had closed the bankruptcy case and
requesting that we “issue an order lifting the stay in this case.” J. Howard Marshall, III
attached an order of the United States Bankruptcy Court for the Central District of
California, dated January 6, 2014, to his motion, reflecting that J. Howard Marshall, III’s
bankruptcy case “is hereby closed.”1 Accordingly, to the extent that J. Howard Marshall,
1
       The motion does not include a certified copy of the federal court’s order as
       required by Texas Rule of Appellate Procedure 8.3(a). Nevertheless, we take
       judicial notice of the United States Bankruptcy Court’s order closing the
       bankruptcy case, which is capable of accurate and ready determination through the
       federal court’s PACER service. See TEX. R. EVID. 201; Office of Pub. Util.
       Counsel v. Pub. Util. Com’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994).
                                            3
III moves for an order lifting the bankruptcy stay in this case, we grant the motion and
reinstate this case on the Court’s active docket. See 11 U.S.C. § 362(c)(2)(A).
        In the same motion, J. Howard Marshall, III further moves the Court to “set a date
for a scheduling and status conference, at which the Court will determine the future
deadlines in the case.” In support of this request, J. Howard Marshall, III argues that the
bankruptcy proceedings discharged parts of the judgment on appeal, that “it is unclear . . .
whether [Vickie Lynn Marshall’s] estate will continue to pursue her will contest,” that
Vickie Lynn Marshall and E. Pierce Marshall have passed away and “several of the other
entities will necessarily have new trustees or representatives,” thereby necessitating “time
to ensure that all parties to the judgment have been apprised that the appeal is going
forward,” that counsel of record may have changed, that there is a dispute regarding who
bears the burden of paying for the reporter’s record, that “it is unclear to [J. Howard
Marshall, III’s] counsel whether the clerk’s record is presently complete,” and that a
scheduling conference would be an appropriate place to discuss whether mediation is
appropriate for this case.
       To the extent the bankruptcy court proceedings discharged portions of the trial
court’s judgment in this case, we will review the trial court’s judgment in light of the
bankruptcy court’s judgment. Further, if the executor of Vickie Lynn Marshall’s estate
determines that it would be in the estate’s best interest to discontinue pursuit of her
appeal, the executor may notify this Court and the respective parties. Moreover, if her
estate elects to pursue her appeal, it will be required to abide by the briefing schedule
ordered by this Court. See TEX. R. APP. P. 38.6(a), (d), 38.8(a), 42.3(c).
       To the extent the parties or attorneys on appeal have changed, it is the parties’ and
counsels’ responsibility to notify the Court of any such changes. See TEX. R. APP. P. 6.1,
6.2, 6.5, 7.1(a)(1), (b). Further, we order the parties to file motions for substitution of
the parties as necessary and appropriate, which shall include motions to substitute the
current trustees in lieu of E. Pierce Marshall for each entity on whose behalf E. Pierce
Marshall filed a notice of appeal.2 See TEX. R. APP. P. 7.1(b).
       The record in this appeal was originally due on April 8, 2002. See TEX. R. APP. P.
35.1(a). The clerk’s record, consisting of 41 volumes, was filed on June 17, 2002. If any
counsel believes that a relevant item has been omitted from the clerk’s record, counsel
may direct the trial court clerk to prepare, certify, and file a supplemental clerk’s record
containing any such item or items, and the supplemental clerk’s record will be made part

2
       These entities include: the Marshall Grandchildren’s Trust for the Benefit of E.
       Pierce Marshall, Jr., the Marshall Grandchildren’s Trust for the Benefit of Preston
       Marshall, the Marshall Petroleum, Inc. Stockholding Trust, the Marshall Museum
       and Library Trust, the Bettye B. Marshall Living Trust, the J. Howard Marshall, II,
       Marital Trust Number Two, and the E. Pierce Marshall Family Trust created under
       the Bettye B. Marshall Living Trust Indenture dated October 30, 1990.
                                             4
of the record in this appeal. See TEX. R. APP. P. 34.5(b)(4), (c)(1), (3). Because the
clerk’s record was originally filed more than 11 years ago, however, the filing of any
supplemental clerk’s record will not be grounds for an extension of time to file any
party’s brief in this case. See TEX. R. APP. P. 34.5(b)(1) (“At any time before the clerk’s
record is prepared, any party may file” designation of items to be included in record);
38.6(a) (setting deadline for filing appellant’s brief based on filing of clerk’s record).
       Further, on March 18, 2002, the court reporter informed the Court that, although
several parties had expressed interest in the record and requested estimates, no party had
actually requested or paid for the reporter’s record. The reporter also informed the Court
that the record would contain “approximately 30,000 pages of trial testimony, bench and
chambers conferences, and hearings, and thousands of pages of exhibits.” All appellants
are jointly and severally liable for the costs to prepare the reporter’s record. See TEX. R.
APP. P. 34.6(b)(1), (c)(1), (3), 35.3(b)(2), (3), 37.3(c)(2). The Court therefore orders the
appellants to provide written evidence from the court reporter showing that one or more
appellant has paid or made arrangements to pay the reporter’s fee for preparing the
reporter’s record within 30 days of the date of this Order, or the Court will consider and
decide this appeal on those points or issues that do not require a reporter’s record for a
decision.3 See TEX. R. APP. P. 37.3(c); see also TEX. R. APP. P. 35.3(c) (“The trial and
appellate courts are jointly responsible for ensuring that the appellate record is timely
filed. … The appellate court may enter any order necessary to ensure the timely filing of
the appellate record.”).
        The brief of appellants E. Pierce Marshall, Individually, as will proponent, as co-
trustee of the Marshall Grandchildren’s Trust for the Benefit of E. Pierce Marshall, Jr., as
co-trustee of the Marshall Grandchildren’s Trust for the Benefit of Preston Marshall, as
trustee of the Marshall Petroleum, Inc. Stockholding Trust, as trustee of the Marshall
Museum and Library Trust, as trustee of the Bettye B. Marshall Living Trust, as trustee
of the J. Howard Marshall, II, Marital Trust Number Two, and as trustee of the E. Pierce
Marshall Family Trust created under the Bettye B. Marshall Living Trust Indenture dated
October 30, 1990; Elaine Marshall, Individually, as co-trustee of the Marshall
Grandchildren’s Trust for the benefit of E. Pierce Marshall, Jr., and as co-trustee of the
Marshall Grandchildren’s Trust for the Benefit of Preston Marshall; E. Pierce Marshall,
Jr.; Preston Marshall; Marshall Petroleum, Inc.; Trof, Inc.; Finley Hilliard, individually,
as trustee of the J. Howard Marshall, II, Living Trust, as trustee of the Marshall
Petroleum, Inc. Stock Holding Trust, as trustee of the Grantor Retained Annuity Trust, as

3
       Because all of the appellants are jointly and severally liable for payment for the
       reporter’s record, we will not grant any extensions of time for providing evidence
       of the payment of the court reporter’s fee for preparing the record, nor will we
       consider motions for allocation of costs of the reporter’s record. See TEX. R. APP.
       P. 34.6(b)(1), (c)(1), (3), 35.3(b)(2), (3), 37.3(c)(2).
                                             5
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, Living Trust, 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 Marshall
Museum and Library Trust shall be filed within 30 days after the complete record is filed.
See TEX. R. APP. P. 38.6(a).
      The appellant’s brief of Foulston & Siefkin, L.L.P. and Harvey Sorensen will be
due within 30 days of the filing of the appellants’ brief by E. Pierce Marshall et al. See
TEX. R. APP. P. 38.6(a).
       J. Howard Marshall, III’s appellant’s and response briefs4 and Vickie Lynn
Marshall’s appellant’s and response briefs5 will be due within 30 days after the later of
the date that E. Pierce Marshall et al.’s appellants’ brief is filed or the date that Foulston
& Siefkin, L.L.P. and Harvey Sorensen’s appellants’ brief is filed. See TEX. R. APP. P.
38.6(b).
       The appellees’ brief of E. Pierce Marshall et al., the appellees’ brief of Foulston &
Siefkin, L.L.P. and Harvey Sorensen, and the appellees’ brief of Charles Koch, Don
Cordes, and Koch Industries, Inc., if any, will be due within 30 days after the later of the
date that J. Howard Marshall, III’s appellant’s brief is filed or the date that Vickie Lynn
Marshall’s appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).
       Finally, if the Court, on its own motion or on motion of any party, determines that
this case is appropriate for referral to mediation, the Court will inform the parties of such
determination. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.021, 154.022(a),
154.023 (West 2011).
      Accordingly, we deny J. Howard Marshall, III’s request to set a date for a
scheduling conference.
       It is so ORDERED.


Judge’s signature: /s/ Chief Justice Sherry Radack
                    Acting individually  Acting for the Court

Date: March 13, 2014

4
       We order J. Howard Marshall, III to file two separate briefs, one appellant’s brief
       and one response brief, rather than a combined brief.
5
       We order Vickie Lynn Marshall to file two separate briefs, one appellant’s brief
       and one response brief, rather than a combined brief.
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