Layne C. Moerbe v. Ellonne M. Carter

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00092-CV
Layne C. Moerbe, Appellant
v.
Ellonne M. Carter, Appellee
FROM THE 425TH JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY
NO. 19-3824-F425, THE HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Layne C. Moerbe has filed a notice of appeal from the district court’s
final decree of divorce. The decree was signed on November 4, 2020, and Moerbe timely filed a
motion for new trial, making the notice of appeal due on or before February 2, 2021. See Tex. R.
App. P. 26.1(a)(1). Appellant’s notice of appeal was not filed until February 24, 2021.
The deadline might have been extended until February 17, 2021, if Moerbe had
filed either a notice of appeal with the trial court or a motion for extension of time with this
Court within 15 days after the deadline for filing the notice of appeal. See Tex. R. App. P. 26.3;
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Moerbe did not file either document
within the 15-day extension period, and we cannot imply a motion for extension of time when
the notice of appeal is filed beyond the 15-day extension period. See Verburgt, 959 S.W.2d at
617 (“[O]nce the period for granting a motion for extension of time under [Rule 26.3] has
passed, a party can no longer invoke the appellate court’s jurisdiction.”); see also Naaman v.
Grider, 126 S.W.3d 73, 74 (Tex. 2003) (“[Appellant] filed no motion for extension of time, and
none can be implied, when she filed her notice of appeal more than fifteen days after it would
have been due from the [date of] judgment.”).
On March 18, 2021, the Clerk of this Court notified Moerbe that his notice of
appeal appeared to be untimely and that his appeal may be dismissed for want of jurisdiction if
he did not provide a response on or before March 29, 2021, explaining how this Court may
exercise jurisdiction over this appeal. Moerbe filed a response, explaining that the district court
had reset the date of the hearing on his motion for new trial from November 30, 2020, to
February 1, 2021, and that the reason the district court gave for the reset was the Texas Supreme
Court’s 29th Emergency Order Regarding the COVID-19 State of Disaster. Moerbe wrote in his
response, “Based on the information provided from the trial court, we were under the impression
that we had until February 28, 2021 to file the appeal in this matter.” However, we have
reviewed the transcript of the proceeding at which the district court reset the hearing, and at no
point did the district court say anything to suggest that the deadline for filing Moerbe’s notice of
appeal was extended until February 28 or any other date,1 and Moerbe has provided this Court
with no other documentation to support his claim that the district court provided him with
inaccurate information regarding the deadline.
1
At one point during the proceeding, counsel for appellee remarked that the motion for
new trial “didn’t have to be heard in 30 days,” and the district court responded, “That’s correct,
plus pursuant to the emergency orders of the Texas Supreme Court, we have some leeway in
regard to that.” This appears to be a reference to the deadline for a hearing on Moerbe’s motion
for new trial, not his notice of appeal.
2
Because Moerbe did not timely file his notice of appeal, we lack jurisdiction to
consider his appeal. See Tex. R. App. P. 25.1(b). Accordingly, we dismiss this appeal for want
of jurisdiction. See id. R. 42.3(a).
__________________________________________
Gisela D. Triana, Justice
Before Justices Goodwin, Triana, and Kelly
Dismissed for Want of Jurisdiction
Filed: April 20, 2021
3