
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 72
ND
 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 of the record.  
See Harkins v. Dever Nursing Home
, 999 S.W.2d 571, 573 (Tex.App.-- Houston [14
th
 Dist.] 1999, no pet.).  

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



John T. Boyd

 Chief Justice



Do not publish.   















