                                  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




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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.




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