Cantu v. McKinney (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Higley)
(sanctions, injunction, challenge to agreed judgment barred by acceptance of benefits doctrine,
Rule 11 agreement)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley
Before Justices Jennings, Higley and Sharp
01-07-00638-CV Tony Cantu v. Wade E. McKinney, Jr., Rebecca McKinney, Justin McKinney, Daniel
Broussard, Craig Dehaan, Jonnie Harker, Epernay Homeowners Association
Appeal from 129th District Court of Harris County
Trial Court Judge: Hon. Grant Dorfman
MEMORANDUM OPINION
This appeal arises from a dispute between neighbors who live in a townhouse complex. Pro se appellants,
Tony Cantu and his wife, Elsa Cantu (“the Cantus”), assert two issues on appeal. The Cantus challenge the
agreed judgment signed by the trial court on the ground that they did not consent to the judgment. The Cantus
also challenge the trial court’s order levying monetary sanctions against Tony Cantu.
We affirm.
Background
The Cantus, Wade McKinney, Jr., Rebecca McKinney, Justin McKinney, Craig Dehaan, and Jonnie Harker
all resided in a townhome complex. Daniel Broussard was employed by the complex’s homeowners’ association,
Epernay Homeowners Association (“Epernay”). The Cantus sued their neighbors and Broussard, alleging that
they had committed various tortious acts against the Cantus, including acts of vandalism, defamation, threats of
physical harm, and verbal harassment.
Epernay intervened into the lawsuit. The Cantus counter-claimed for breach of contract, alleging that
Epernay failed to repair their residence. Ultimately, the trial court realigned the parties. The Cantus became the
defendants and the parties initially sued by the Cantus became the plaintiffs.
The newly realigned plaintiffs identified John Maher as a potential witness in the case. Maher was not a
party to the suit. Maher resided in the townhouse complex and is an attorney licensed to practice law in Texas.
In February 2007, Tony Cantu went to Tommy’s Seafood Steakhouse Restaurant. Tommy Tollette, the
owner of the restaurant, was Maher’s client. While Cantu was at the restaurant, an altercation occurred between
Cantu, Maher, and Tollette.
On February 28, 2007, the trial court signed an agreed order granting a temporary injunction in the instant
case. The trial court included Maher and Tommy’s Seafood Steakhouse Restaurant in the order as non-parties.
In the order, the trial court enjoined Tony Cantu from “directly or indirectly, having any contact or communication
with Tommy’s Seafood Steakhouse Restaurant, its owners, employees, and vendors, by personal means,
electronically, telephonically, or by other means.” The trial court also enjoined Cantu from “directly or indirectly,
having any contact or communication with Mr. John Maher, his family, personal property or real property, by
personal means, electronically, telephonically, or be any other means, and from stalking or following John Maher
or his family members and from stopping, slowing down, and/or making gestures or comments to or toward John
Maher or his family while passing John Maher’s home.” In turn, the trial court ordered that Maher was similarly
enjoined from “stopping, slowing down, and/or making gestures or comments to or toward Tony Cantu or his
family while passing Tony Cantu’s home.”
Shortly after the trial court signed the agreed temporary injunction, Tony Cantu filed suit in Harris County
Court at Law No. 1 against Maher, Tollette, and Tommy’s Seafood Steakhouse. Without disclosing the February
28 agreed temporary injunction to the sitting judge, Cantu obtained an ex parte temporary restraining order
against Maher, Tollette, and Tommy’s Seafood Steakhouse Restaurant from County Court at Law No. 1.
Footnote
On April 13, 2007, following an evidentiary hearing, the trial court in this case found that Tony Cantu’s act
of obtaining the ex parte restraining order in County Court at Law No. 1. violated the February 28 agreed
temporary injunction and invoked the trial court’s “inherent authority to ensure the orderly administration of
justice and to protect witnesses and persons with knowledge of relevant facts.” The trial court found that “Dr.
Cantu’s pro se filing of an ex parte TRO was an effort to harass, intimidate and/or coerce a potential witness
and person with relevant knowledge in the cause pending before this Court.” The trial court further found,
Given the Court’s expressed concerns about the actions that might appear directed at intimidating or coercing
witnesses, Dr. Cantu’s end-run around this Court’s authority and apparent lack of candor to [the county court
judge] demonstrate an intent to engage in precisely the conduct intended to be forbidden by the February 28
Order.
The court continued, “[T]his is conduct of a nature that invokes this Court’s inherent authority in aid of its
jurisdiction.”
In the April 13 sanctions order, the trial court sanctioned Cantu $3,000 to be paid to Maher, ordered Cantu
to notify the trial court of any new requests for injunctive relief made in any Harris County court against any
person connected with this case, and prohibited Cantu from contacting any potential witness.
On April 25, 2007, the Cantus, the plaintiffs, and intervenor, Epernay, reached a settlement. A rule 11
agreement containing the terms of the settlement was filed with the trial court. The rule 11 agreement was
signed by Tony Cantu and the Cantu’s attorney, and the other parties. Elsa Cantu did not sign the agreement.
Based on the rule 11 agreement, the trial court signed an “Agreed Permanent Injunction and Order” (the
“Agreed Judgment”) on April 30, 2007, incorporating the terms and provisions of the settlement agreement.
Among the provisions of the judgment were the following:
Provided that Tony and Elsa Cantu sell [their townhouse] to a legitimate third party buyer in an arms-length
transaction (i.e., no sales to a Cantu relative) within 260 days of the entry of this Agreed Permanent Injunction
Order, Plaintiffs and/or Epernay will pay the sum of $80,000.00 to Tony and Elsa Cantu (such payment will be
made within 72 hours of the closing of the sale of [the townhouse] to a legitimate third party buyer). . . .
The April 13 sanctions against Tony Cantu were not addressed in the Agreed Judgment.
Tony Cantu filed a motion challenging the sanctions awarded against him. Following several evidentiary
hearings, the trial court denied Cantu’s challenge to the sanctions in an order dated May 9, 2007. The trial court
made clear in the May 9 order that it found Tony Cantu’s evidence, offered to explain why he obtained the ex
parte TRO, not to be credible or to be absent. The May 9 order concluded that “[t]he Court’s prior Order, issued
April 13, 2007, remains in full force and effect.”
On May 24, 2007, the Cantus filed a motion “to set aside void non-mediated settlement agreement” and for
“reconsideration of sanctions.” The motion was in substance a motion for new trial. The Cantus supported the
motion with affidavits signed by each of them. The Cantus asserted that the rule 11 settlement agreement was
invalid because Elsa Cantu had not consented to or signed the settlement agreement and that the Cantus’
attorney did not have authority to sign on her behalf. The Cantus further asserted that Tony Cantu signed the
settlement agreement “under extreme duress” and “under tremendous pressure.” Specifically, Tony Cantu
alleged that he did not fully understand the settlement agreement because he was suffering from “prolonged
sleep deprivation” and because he was not given adequate time to review the document. The Cantus also
complained that many of the settlement terms relating to their use of and access to the townhome were “illegal”
and “unconstitutional” because they infringed on the Cantus’ property rights.
In the May 24 motion, the Cantus also challenged the trial court’s April 13 sanctions order and the May 9
order in which the trial court ordered that the April 13 sanctions order “remains in full force and effect.”
Essentially, the Cantus asserted that trial court’s findings underlying the sanctions were not supported by the
evidence.
The Cantus sold their townhouse and closed on June 28, 2007. On that date, Tony Cantu re-signed the
settlement agreement and initialed each page. Although she had not previously signed the document, Elsa also
signed and initialed the settlement agreement on June 28, 2007.
As required by the settlement agreement and by the Agreed Judgment, Epernay tendered a check to the
Cantus and their attorney for $80,000 following the closing on the sale of the Cantus’ home. The Cantus and
their attorney cashed the check. The Cantus also each signed a release thereby fully releasing the plaintiffs
and Epernay from all claims related to the suit. The settlement agreement and the Agreed Judgment were
expressly excepted from the release.
On July 23, 2007, the trial court signed an order denying the Cantus’ May 24 motion “to set aside void non-
mediated settlement agreement” and for “reconsideration of sanctions.” In the order, the trial court stated,
This is, at minimum, the THIRD motion for rehearing/reconsideration of the Court’s April 13, 2007 Order and/or
May 9, 2007 Orders on these same defendants’ prior motion for reconsideration of the April 13 Order. The
Motion is hereby DENIED. The Court will entertain no further motions upon the April 13 or May 9 Orders. This
matter is final, pending only Defendants’ compliance with the outstanding sanctions orders, and the fulfillment of
all conditions imposed by same.
(Emphasis in original.)
This appeal followed.
Challenge to the Agreed Judgment
In their first issue, the Cantus challenge the Agreed Judgment. The Cantus assert that they did not consent
to the settlement agreement on which the Agreed Judgment is based. They contend that, at the time the
settlement agreement was signed in April 2007, Tony Cantu was under duress due to lack of sleep and that
they did not have adequate time to review the settlement agreement. The Cantus assert that they settled the
case and agreed to the judgment “under false pretensions” and “under the threat of coercion of threat [by the
trial court] of striking their pleadings due to ‘spoliation’ if settlement was not reached.” Footnote The Cantus also
assert that their trial counsel was “colluding” with opposing counsel. Footnote The Cantus further contend that
many terms of the Agreed Judgment, which limited their use of and access to their property, were
“unenforceable,” “illegal,” and “unconstitutional.”
It is undisputed that, pursuant to the Agreed Judgment, the Cantus sold their townhouse, and that they,
and their attorney, received and accepted $80,000 from Epernay. The briefing indicates that the Cantus’
attorney received $10,000 of these funds, with the remainder being accepted by the Cantus.
As intimated by appellees, a party cannot treat a judgment as both right and wrong. See Carle v. Carle,
234 S.W.2d 1002, 1004 (Tex. 1951). Under the acceptance of benefits doctrine, generally, a party who has
voluntarily accepted the benefits of a judgment may not thereafter prosecute an appeal from it. Footnote See
Carle, 234 S.W.2d at 1004; see also Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002); McCartney v.
Mead, 541 S.W.2d 202, 205 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ).
Similarly, when a judgment debtor voluntarily satisfies the judgment, the case becomes moot and the
debtor waives any right to appeal. See Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787
(Tex. 2006); Riner v. Briargrove Park Prop. Owners, Inc., 858 S.W.2d 370, 370 (Tex. 1993) (citing Highland
Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982)). This rule is intended to prevent a party who
voluntarily satisfies a judgment from later changing his or her mind and appealing. See Highland Church of
Christ, 640 S.W.2d at 236 (holding that parties should not be allowed to mislead their opponent into believing
that the controversy is over and then contest payment and seek recovery).
To the extent that they felt that they had not given proper consent to the settlement agreement or that
certain terms were unenforceable, the Cantus should not have accepted the funds under the judgment or
satisfied their obligation by selling their townhouse. That is, the Cantus cannot treat the Agreed Judgment as
both right and wrong.
We conclude that the Cantus may not now prosecute an appeal from the Agreed Judgment because they
voluntarily accepted the benefits under the Agreed Judgment and voluntarily complied with their obligations
thereunder. See Carle, 234 S.W.2d at 1004; Marshall, 198 S.W.3d at 786–87.
We overrule the Cantus’ first issue.
Challenge to the Sanctions Order
In their second issue, the Cantus challenge the trial court’s April 13, 2007 sanctions order and the
subsequent orders reaffirming those sanctions (collectively referred to as “the sanctions order”). Footnote
The Cantus first challenge the sanctions order on the ground that attorney, John Maher, to whom the trial
court awarded the $3,000 sanctions, should have been “disqualified” to act as an attorney in this case because
he was identified as “an expert witness” by the plaintiffs and was “illegally introducing motions” as “a third party
attorney.” Footnote Based on this argument, the Cantus allege that the sanctions order should be “deemed
invalid and void.”
When a lawyer is or may be a witness necessary to establish an essential fact, Texas Disciplinary Rule of
Professional Conduct 3.08 prohibits the lawyer from acting as both an advocate and a witness in an
adjudicatory proceeding. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004). Mere allegations of unethical conduct
or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice to merit
disqualification. Id. at 57. The fact that a lawyer serves as both an advocate and a witness does not in itself
compel disqualification. Id. Disqualification is only appropriate if the lawyer’s testimony is “necessary to establish
an essential fact.” Id. (citing Tex. Disciplinary R. Prof’l Conduct 3.08(a)). Consequently, the party requesting
disqualification must demonstrate that the opposing lawyer’s dual roles as attorney and witness will cause the
party actual prejudice. Id.
We begin by noting that the Cantus have not shown that they raised this complaint in the trial court; thus, it
is waived. See Tex. R. App. P. 33.1. In any event, the Cantus have made no showing that Maher’s testimony
was necessary to establish an essential fact or that Maher’s alleged “dual roles as attorney and witness” caused
them actual prejudice. See Sanders, 153 S.W.3d at 57.
The Cantus also challenge the sanctions order on the ground that the evidence did not support the
underlying bases of the sanctions. In its April 13 order, the trial court cited Government Code section 21.001(a),
which provides, “A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its
lawful orders, including authority to issue the writs and orders necessary or proper in aid of its jurisdiction.” Tex.
Gov’t Code Ann. § 21.001(a) (Vernon 2004). As described, the April 13 sanctions order provides that the trial
court sanctioned Tony Cantu for violating the trial court’s February 28 agreed temporary injunction by obtaining
an ex parte TRO against Maher in another Harris County court. The trial court stated that the sanction was
necessary “to ensure the orderly administration of justice and to protect witnesses and persons with relevant
knowledge.”
Although the record is not entirely developed on this point, it appears that Tony Cantu asked the trial court
to reconsider the April 13 sanctions order on two grounds. Cantu alleged that he was not aware of the February
28 agreed temporary injunction when he obtained the TRO in county court. He also asserted that the TRO was
necessary because Maher was harassing him and his family and that Maher had not been truthful to the court
when he alleged that Cantu had been harassing him.
The record reflects that the trial court heard evidence pertinent to Cantu’s request to reconsider the
sanctions at four separate hearings. Footnote The trial court denied Cantu’s motion for reconsideration in its
May 9, 2007 order, which provides that the April 13 sanctions order remains “in full force and effect.” The May 9
order reflects that, after considering the evidence admitted at the hearings, the trial court found Tony Cantu’s
testimony, evidence, and proffered reasons for obtaining the TRO not credible or lacking in substance. The
order reflects that the trial court found that Cantu failed to show that the TRO was obtained for any other reason
than to harass or intimidate a potential witness in the case.
We review a trial court’s award of sanctions under an abuse of discretion standard. See Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007). A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004). We examine the entire record, review the conflicting evidence in the light most favorable to the court’s
ruling, and draw all reasonable inferences in favor of the court’s judgment. Herring v. Welborn, 27 S.W.3d 132,
143 (Tex. App.—San Antonio 2000, pet. denied). As fact finder, the trial court is entitled to evaluate the
credibility of the testimony and determine what weight to give it. Alpert v. Crain, Caton, & James, P.C., 178 S.W.
3d 398, 412 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
Here, the trial court, as fact finder, was entitled to disbelieve Tony Cantu’s testimony that he was not aware
of the February 28 agreed injunction or that he never threatened or harassed Maher. The trial court was also
entitled to disbelieve Tony Cantu’s and Elsa Cantu’s testimony that Maher harassed and threatened the Cantu
family. The trial court was equally entitled to believe Maher’s testimony that Tony Cantu had threatened and
harassed him on many occasions. Other persons associated with the townhome complex also offered testimony
detailing Tony Cantu’s propensity to engage in what can be characterized as harassing and threatening
conduct.
We conclude that the Cantus have not shown that the trial court abused its discretion by sanctioning Tony
Cantu for violating the trial court’s February 28 order.
We overrule the Cantus’ second issue.
Conclusion
We affirm the judgment of the trial court. We deny all pending motions.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.