Frank J. Holdampf, dba Patriot Oil Company v. B & D Oil Company, a Kino Corporation Company--Appeal from County Court at Law No 1 of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

FRANK J. HOLDAMPF d/b/a PATRIOT OIL )

COMPANY, )

) No. 08-02-00458-CV

Appellant, )

) Appeal from the

v. )

) County Court at Law

B & D OIL COMPANY, A KINO )

CORPORATION COMPANY, ) of Midland County, Texas

)

Appellee. ) (TC# CC09474)

)

MEMORANDUM OPINION

This appeal is before the Court on its own motion for determination of 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 clerk 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 a 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.

Tex.R.App.P. 37.3(b).

By letter dated December 16, 2003, the District Clerk of Midland County informed this Court that no designation of record and/or financial arrangements have been made by Appellant. On December 18, 2003, pursuant to Tex.R.App.P. 37.3(b), this Court=s clerk sent Appellant notice of the Court=s intent to dismiss this appeal for want of prosecution if no timely clerk=s record or request for additional time was received. Further, the Court requested a response within ten days from the records current due date of December 20, 2003, 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 12, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.