Lily Clement v. Guy R. Fogel, M.D., Sisters of St. Joseph of Texas D/B/A Medical Arts Clinic and St. Mary Rehabilitation Center St. Mary of the Plains Hospital Foundation And Sisters of St. Joseph of Orange, Inc.

• Court: Court of Appeals of Texas
• Decided: March 5, 2002
• Docket: 07-01-00364-CV
• Status: Published

Opinion

NO. 07-01-0364-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 5, 2002

______________________________

LILY CLEMENT, APPELLANT

V.

GUY R. FOGEL, M.D., APPELLEE

_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 98-504,250; HONORABLE J. BLAIR CHERRY, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Lily Clement filed a notice of appeal challenging a take-nothing summary

judgment granted against her in a medical malpractice action against appellee Guy R.

Fogel, M.D. For the reasons set forth, we affirm the judgment of the trial court.

No reporter’s record has been filed in this proceeding, and we have been notified

by the court reporter that appellant has failed to make arrangements to pay for the preparation of the record. We informed appellant by letter dated December 5, 2001, that

if proof of payment was not received, the court would consider and decide those issues

that do not require a reporter’s record for decision. No such proof was ever submitted to

this court.

Appellant has also failed to file a brief in this matter. We notified appellant by letter

dated February 5, 2002, that her brief was due January 3, 2002, and that if it was not

received within ten days, the appeal would be considered without the brief. Neither a brief

nor a motion for extension of time has ever been received by this court.

Nevertheless, appellee has filed a brief in this matter and, in doing so, requests that

we affirm the judgment pursuant to Texas Rule of Appellate Procedure 38.8(a)(3) without

examining the record. That rule provides in relevant part:

(a) Civil Cases. If an appellant fails to timely file a brief, the appellate court may:

* * *

(3) if an appellee’s brief is filed, the court may regard that brief as correctly presenting the case and may affirm the trial court’s judgment upon that brief without examining the record.

Tex. R. App. P. 38.8(a)(3). Since appellant has failed to make arrangements to pay for the

reporter’s record or file a brief and has not responded to this court’s notices with respect

to those matters, we grant appellee’s request and affirm the judgment without examination

2 of the record. See Harkins v. Dever Nursing Home, 999 S.W.2d 571, 573 (Tex.App.--

Houston [14th Dist.] 1999, no pet.).

Accordingly, the judgment of the trial court is hereby affirmed.

John T. Boyd Chief Justice

Do not publish.