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

• Court: Court of Appeals of Texas
• Decided: July 2, 2008
• Docket: 04-07-00328-CV
• Status: Published

Opinion

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

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