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
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.
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
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
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
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
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
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
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
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.
We affirm the judgment of the trial court. We deny all pending motions.
Laura Carter Higley
Panel consists of Justices Jennings, Higley, and Sharp.