Steve Belardo and Rene Belardo v. Mary Ellen Kimball ( 2006 )

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

STEVE BELARDO and RENE BELARDO,    )                  No. 08-05-00344-CV

)

                                    Appellants,                       )                             Appeal from

)

v.                                                                          )                  394th District Court

)

MARY ELLEN KIMBALL,                               )                  of Brewster County, Texas

)

                                    Appellee.                          )                  (TC# B7903-CV)

MEMORANDUM OPINION

            This appeal is before the Court on its own motion to determine whether it should be dismissed pursuant to Tex.R.App.P. 37.3(b), which states:

(b) If No Clerk’s Record Filed Due to Appellant’s Fault. If the trial court failed to file the clerk’s record because the appellant failed to pay or make arrangements to pay the clerk’s fee for preparing the clerk’s record, the appellate court may -- on the party’s motion or its own initiative -- dismiss the appeal for want of prosecution unless the appellant was entitled to proceed without payment of costs. The court must give the appellant a reasonable opportunity to cure before dismissal.

            By a letter dated December 5, 2005, this Court’s clerk informed Appellants that no clerk’s record had been filed and of the Court’s intent to dismiss the appeal for want of prosecution pursuant to Tex.R.App.P. 37.3(b), absent a response from any party within ten days to show grounds for continuing the appeal. No response has been received as of this date.

            We have given notice of our intent to dismiss the appeal, requested a response if a reasonable basis for failure to pay or make arrangements to pay the clerk's fee for preparing the clerk's record exists, and have received none. We see no purpose that would be served by declining to dismiss this appeal at this stage of the proceedings. Pursuant to Tex.R.App.P. 37.3(b), we dismiss the appeal.

February 23, 2006                                                      

                                                                                    ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Barajas, C.J., not participating)