Edward Fischer, Jr. & Linda Fischer v. Billy Wells

i i i i i i CONCURRING OPINION No. 04-07-00328-CV Edward FISCHER, Jr., Appellant v. Billy WELLS, Appellee From the County Court at Law No. 2, Bexar County, Texas Trial Court No. 293108 Honorable David Rodriguez, Judge Presiding Opinion by: Phylis J. Speedlin, Justice Concurring opinion by: Alma L. López, Chief Justice Sitting: Alma L. López, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice Delivered and Filed: July 2, 2008 I wholly concur in the majority’s opinion affirming the trial court’s orders. Although the sanctions issue gives me great pause, I am constrained to concur in the denial of appellate sanctions in view of the applicable standard. In an effort to avoid paying a judgment entered against him on December 2, 2005, Fischer has undertaken a series of actions in an attempt to abuse the judicial system. Initially, Fischer refused to respond to discovery requiring Wells to file a motion seeking sanctions. Because Fischer Concurring Opinion 04-07-00328-CV failed to comply with the trial court’s sanctions order, Wells filed a motion for an injunction to preclude Fischer from dissipating or transferring assets. Despite the trial court’s order granting the injunction, Fischer posted a vacant lot for sale requiring Wells to file a motion seeking a turnover order. Despite being served with a subpoena, Fischer failed to appear at the hearing on the motion for turnover order. Finally, Fischer appeals the trial court’s order even though he was a party to an agreed motion seeking to disburse funds and close the receivership. If we considered the entire history of Fischer’s efforts to avoid paying the 2005 judgment, I believe sanctions would be warranted by Fischer’s egregious behavior. Constrained by the standard which requires us to consider whether the appeal is objectively frivolous, looking at the record from the viewpoint of the advocate, I reluctantly concur in the denial of the sanctions. Alma L. López, Chief Justice -2-