In Re Cantu

961 S.W.2d 482, 1998 Tex. App. LEXIS 1116, 1997 WL 706545

• Court: Court of Appeals of Texas
• Decided: February 19, 1998
• Docket: 13-97-550-CV, 13-97-558-CV
• Status: Published

Opinions

JUDGMENT OF CONTEMPT

SEERDEN, Judge.

On the 24th day of October, 1997, Mark A. Cantu appeared before the Court of Appeals, Thirteenth District, sitting en bane at Edin-burg, Hidalgo County, Texas, to show cause why he should not be held in contempt of court for failing to obey an order of this Court, which issued on September 26, 1997, enjoining Mark A Cantu from asking for additional relief that would impede or prevent the collection of a final judgment rendered by the 138th District Court of Cameron County, Texas, in the underlying case styled Juan Lopez Butrón, et al. v. Mark. A. Cantu, cause no. 91-11-8115-B. The present enforcement proceeding stems from Cantu’s continuing attempts to prevent and impede execution of that judgment in violation of this Court’s Injunction.

II. History of the Litigation

A. Judgment of the 138th District

Court of Cameron County

Juan Lopez Butrón and Luis Enrique Cor-tinas Villarreal (collectively “Butrón”) originally hired Cantu as their attorney to represent them in a wrongful death action on behalf of relatives killed in the collapse of the Amigo Store in Brownsville, Texas. Cantu obtained a 45% contingent fee award on Bu-tron’s settlement. Butrón then sued Cantu for fraud and breach of fiduciary duty with regard to the fee award, and the 138th District Court of Cameron County, Texas, granted a May 1993 judgment against Cantu for an amount in excess of $1,000,000. The judgment included $800,000.00 in punitive damages. Following the trial court’s denial of Cantu’s motion for new trial on the basis of new evidence of fraud, Cantu appealed that judgment to this Court and posted a superse-deas bond to prevent execution during the appeal. This Court affirmed the May 1993 judgment, the Texas Supreme Court denied writ of error, and our mandate issued on February 19, 1997. See Cantu v. Butrón, 921 S.W.2d 344 (Tex.App. — Corpus Christi 1996, writ denied).

On August 26, 1996, Cantu filed a Bill of Review with the 138th District Court also grounded in the discovery of new evidence of fraud and conspiracy. The trial court denied Cantu’s bill in March of this year and that issue is the subject of a related appeal pending before this Court. During the pendency of the Bill of Review proceeding, Cantu asked for a temporary injunction staying enforcement of the underlying judgment pending the outcome of the bill of review. The trial court denied the temporary injunction and that issue is in this Court now on accelerated appeal.

B.Initial Proceedings Before the 93rd District Court of Hidalgo County

On June 4, 1993, Mark A. Cantu and his wife, Roxanne Cantu, brought a separate action against Butrón in the 92nd District Court of Hidalgo County (later transferred to the 93rd District Court of Hidalgo County) for wrongful garnishment in connection with Butron’s¹ attempts to collect his judgment against Cantu. In that lawsuit, Cantu complains, among other things, that the judgment of the 138th District Court is void. The 93rd District Court issued two interlocutory orders preventing execution of the May 1993 judgment:

— June 30, 1995, a partial summary judgment declaring the May 1993 judgment by the 138th District Court void and a temporary restraining order providing “[n]o process or execution may be had upon that judgment”; and

— February 11, 1997, a temporary injunction specifically enjoining Butrón and his attorney from collecting his judgment against Cantu along with a Writ of Attachment directed against the money Cantu had paid into the registry of the 138th District Court in connection with that judgment.

In March of this year, Butrón brought an accelerated appeal from the February 1997 temporary injunction, and this Court ordered that injunction dissolved on the ground that it was beyond the power of the 93rd District Court to enjoin the collection of a judgment of the 138th District Court. See Butron v. Cantu, 960 S.W.2d 91 (Tex.App.—Corpus Christi, 1997, n.w.h.) (not yet reported).

After this Court handed down its opinion in the accelerated appeal, Butrón moved to set aside the partial summary judgment as well. The 93rd District Court, however, denied Butron’s motion and declined to set aside the partial summary judgment. In addition, on September 4, 1997, the 93rd Dis-triet Court granted an additional temporary restraining order preventing Butrón from collecting his judgment by prohibiting Universal Security of America, Inc., the surety on the supersedeas bond, from demanding payment of a letter of credit issued by International Bank of Commerce as security for the bond.

C. Initial Proceedings Before the 370th District Court of Hidalgo County

In September, Cantu filed yet another lawsuit, this time against Universal Surety and International Bank of Commerce in the 370th District Court of Hidalgo County, seeking injunctive relief. On September 17, 1997, that court issued a TRO substantially similar to that already granted by the 93rd District Court, prohibiting Universal Surety from making demand for funds under the letter of credit issued by the International Bank of Commerce.

D. The Original Proceeding Before This Court.

Butrón sought mandamus relief from this Court to set aside the partial summary judgment and TRO of the 93rd District Court, writ of prohibition to prevent the trial court from issuing subsequent orders of the same nature, and an injunction to prevent Cantu from continuing to ask for such relief before other courts of this state. We granted Bu-tron’s request in In re Johnson, 961 S.W.2d 478 (Tex.App.—Corpus Christi, 1997, n.w.h.)(corrected opinion October 2, 1997) (not yet reported). In that proceeding, we conditionally granted a writ of mandamus directing the 93rd District Court to vacate the temporary orders issued by it which interfered with the execution and enforcement of the judgment of the 138th District Court. We further granted a writ of prohibition prohibiting that court from issuing any such orders in the future with regard to the judgment of the 138th District Court. Finally, we granted an injunction,

enjoining Mark A. Cantu and Roxanne Cantu, their agents, attorneys or anyone acting on their behalf, from filing any additional lawsuit or asking for additional relief within any pending action, whether in law or equity, that would impede or prevent the collection of the final judgment rendered by the 138th District Court.

E. Actions Following Our September 26th Order

Pursuant to this order, on September 29, the 93rd District Court set aside three of its prior orders. However, Cantu successfully opposed Butron’s motion to strike that portion of Cantu’s pleadings seeking a declaratory judgment that the 138th District Court judgment was void.

Returning to the 370th District Court of Hidalgo County, on October 1, Cantu opposed Butron’s motion to dissolve the TRO granted there. Further, Cantu moved to have the TRO made permanent. In support of his motion, Cantu filed a copy of the (now rescinded) partial summary judgment declaring the 138th District Court of Cameron County judgment void. In response, on October 3, Butrón filed the motion for contempt currently before us.

Apparently dissatisfied with the relief he was finding elsewhere, on October 6, Cantu filed a case styled Cantu v. Johnson, et al. and docketed as C-5281-97-C in the 139th District Court of Hidalgo County. He applied for a TRO enjoining Butron’s counsel from executing on letters of credit securing the supersedeas bond associated with the 138th District Court of Cameron County judgment. This is substantially identical to the TRO granted by the 370th District Court of Hidalgo County, granted on September 18th, simply pursued in a different venue.

The following day, October 7th, Cantu sought and obtained writ of attachment from the 93rd District Court of Hidalgo County attaching the letters of credit securing the supersedeas bond, the funds held by the bonding company and the funds securing such bond deposited into the registry of the Cameron County District Clerk. This action prompted Butrón to file a motion to stay proceedings with this Court on October 9th.

Butrón claims by his motion to hold Cantu in contempt that Cantu has violated the injunction issued by this Court by continuing attempts to prevent execution of the judgment. Specifically, Butrón points to the pleadings that have since been filed by Mark A. Cantu in the 93rd, 139th and the 370th District Courts that allegedly impede collection of the judgment of the 138th District Court in violation of this Court’s injunction.

III. Cantu’s Challenge to the Judgment of the 138th District Court.

Cantu complains generally that the judgment of the 138th District Court should be declared void because it was procured by a conspiracy and by perjured testimony.

A void judgment is a nullity and subject to either direct or collateral attack. Fulton v. Finch, 162 Tex. 361, 346 S.W.2d 823, 827 (1961). However, the Texas Supreme Court has also consistently held that:

Unless a judgment of a court of general jurisdiction is void, it is not subject to collateral attack in another court of equal jurisdiction. Austin Independent School District v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973). All errors other than jurisdictional deficiencies render the judgment merely voidable, and such errors must be corrected on direct attack. When time for direct attack by appeal has elapsed, a bill of review in the court rendering the initial judgment is the exclusive remedy to attack the judgment. Middleton v. Murff, 689 S.W.2d 212 (Tex.1985).

Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985).

A suit to enjoin the enforcement of the judgment of a court other than the one in which the action is brought is generally regarded as a impermissible collateral attack on that judgment. Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 327 (1956); Martin v. Stein, 649 S.W.2d 342, 345 (Tex.App.—Fort Worth 1983, writ ref'd n.r.e.); see also Butron v. Cantu, 960 S.W.2d 91, 94 (Tex.App.—Corpus Christi, 1997, n.w.h.); Tex. Civ. PRAC. & Rem.Code Ann. § 65.023(b) (Vernon 1997). Moreover, the prohibition against collateral attack extends to claims that false swearing or fraud of a party to the judgment renders it voidable. See Glenn v. Dallas County Bois D’Arc Island Levee District, 114 Tex. 325, 268 S.W. 452 (Com.App.1925); Kaphan v. Fidelity & Deposit Co. of Maryland, 564 S.W.2d 459, 462 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ refd n.r.e.).

Accordingly, even if the present judgment had been procured through conspiracy or pexjured testimony, Cantu’s only remedy is by a direct attack in the same court which rendered the judgment, and not by a collateral attack on the execution of that judgment in another court of equal jurisdiction. See Hollis v. Hollis, 226 S.W.2d 129, 133 (Tex.Civ.App.-Amarillo 1949, writ dism’d w.o.j.).²

As this Court recently stated in our opinion dissolving the temporary injunction of the 93rd District Court in the underlying wrongful garnishment action, “orderly procedure and proper respect for the courts will require that ... attacks upon their judgments should be made in the court rendering such judgment, rather than in other courts indiscriminately.” Butron, at 94 (quoting McVeigh v. Lerner, 849 S.W.2d 911, 914 (Tex.App.—Houston [1st Dist.] 1993, writ denied)).

IV. This Court’s Order Granting the Injunction Against Cantu.

By its original opinion on September 26,1997, and a corrected opinion on October 2, 1997³, this Court issued an anti-suit injunction against Cantu enjoining him “from filing any additional lawsuit or asking for additional relief within any pending action, whether in law or equity, that would impede or prevent the collection of the final judgment rendered by the 138th District Court.”

An anti-suit injunction is appropriate in four instances: 1) to address a threat to the court’s jurisdiction; 2) to prevent the evasion of important public policy; 3) to prevent a multiplicity of suits; or 4) to protect a party from vexatious or harassing litigation. Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex.1996). In the present case, we concluded that Cantu’s attempts to block enforcement of the judgment both threatened this Court’s jurisdiction over that judgment and had become vexatious and harassing to the parties seeking to enforce the judgment.

Moreover, this Court’s injunction against asking for relief that would impede or prevent the collection of that judgment was sufficiently specific to inform Cantu what action was required of him.

The Texas Supreme Court has set out the following balancing test to determine whether an injunction is sufficiently specific to be enforced:

For a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him. Ex Parte Slavin, 412 S.W.2d 43 (Tex.1967). Interpretation of the provisions of the court order in question should not rest upon implication or conjecture. The allegedly contemptuous acts must be directly contrary to the express terms of the court order. Ex Parte Hodges, 625 S.W.2d 304 (Tex.1981). On the other hand, a court order need not be “full of superfluous terms and specifications adequate to counter any flight of fancy a contemner may imagine in order to declare it vague.” Ex Parte McManus, 589 S.W.2d 790, 793 (Tex.Civ.App.—Dallas 1979, no writ). These general rules of law require us to balance the due process rights of individuals accused of contempt with the power of courts to enforce their orders.

Ex parte Blasingame, 748 S.W.2d 444, 446 (Tex.1988); see also Ex parte Kraus, 863 S.W.2d 104, 106 (Tex.App.—Corpus Christi 1993, orig. proceeding).

In Kraus, for instance, this Court held an injunction in a child custody ease that ordered a party to “conduct all acts necessary to secure possession of the child” and “assist ■with the immediate return of the child to the Court” to be too vague and ambiguous to be enforced. Id. at 107. However, the circumstances of the particular ease must be taken into consideration in determining whether the order is too vague to be enforced. The Texas Supreme Court in Ex parte Hudson, 917 S.W.2d 24 (1996), concluded that an injunction against a landowner requiring him to take certain specific actions to clean and maintain his property, in addition to a general clause requiring him to “maintain [the land] in a sightly condition” was sufficiently specific to apprise the landowner of the actions required of him. Id. at 26.

In the present case, this Court’s injunction ordered Cantu not to file a lawsuit or ask for relief that would impede or prevent the collection of the final judgment of the 138th District Court. The final judgment of the 138th District Court represents a certain sum of money owed now by Cantu to Butrón, the payment of which has been secured by a supersedeas bond, which is itself secured by letters of credit. Cantu must reasonably be aware that actions which interfere with the collection process itself, or with the security, violate the present injunction. Under the test set out in Blasingame, we conclude that the present injunction is sufficiently specific to prevent Cantu from continuing his efforts to block the execution of that judgment.

V. Contempt Hearing and Findings by this Court.

On October 24,1997, this Court had a “show cause” hearing at which Butrón and Cantu appeared individually, and through counsel.⁴ This Court received sworn testimony and exhibits offered by the parties. This Court finds that Mark A. Cantu has continued to file numerous pleadings before the courts of Hidalgo County in an attempt to prevent Butrón from satisfying the judgment rendered against Cantu by the 138th District Court. Cantu’s underlying theory in all of the actions filed by him is that the judgment against him was a product of conspiracy and perjured testimony, and he maintains his belief that any other trial court in Texas is properly able to declare that judgment void on such grounds.

Subsequent to the issuance of this Court’s September 26, 1997, injunction, Cantu has filed pleadings in two separate trial courts in Hidalgo County asking for relief which would prevent or impede collection of the judgment against him. Specifically, this Court finds, based on the evidence offered at the October 24th hearing, that Cantu filed the following actions:

On October 1, 1997, Mark A. Cantu filed in the 370th District Court his “Plaintiff’s Response to Defendant’s Amended Emergency Motion to Dissolve Temporary Restraining Order.” By this pleading, Cantu alleged that the 93rd District Court had declared void the judgment against him. Accordingly, Cantu asked the 370th District Court to enjoin the surety on the bond, Universal Surety of America, Inc., from making demand for and receiving funds under letters of credit securing the supersedeas bond posted in connection "with the appeal of the judgment rendered against Cantu by the 138th District Court.

On October 6,1997, Mark A. Cantu filed in the 139th District Court his “Application for Temporary Restraining Order and Injunctive Relief.” By this pleading, Cantu alleged that Robert W. Johnson, counsel for Butrón, stipulated that he would not seek to enforce the judgment of the 138th District Court if the supersedeas bond were increased pending appeal of the bill of review proceeding concerning that judgment. Accordingly, Cantu asked the 139th District Court for a temporary restraining order to enjoin the surety on the bond, Universal Surety of America, Inc., from making demand for and receiving funds under letters of credit and to enjoin Johnson from continuing to pursue collection of the judgment against Cantu.

Specifically, the Court finds that Mark A. Cantu violated its September 26, 1997, order by the following actions, as were alleged in the present motion to hold Mr. Cantu in contempt:

(b) filing on October 1, 1997, in the 370th District Court of Hidalgo County, Texas, sworn pleadings, to wit, Plaintiffs Response to Defendant’s Amended Emergency Motion to Dissolve Temporary Restraining Order, asking that court to enjoin Universal Surety of America, inc., from making demand for and receiving funds under letters of credit issued to secure the supersedeas bond posted in the cause of action in the 138th District Court of Cameron County, Texas, in which Relators recovered the underlying judgment against the Cantus, in violation of this Court’s order enjoining the Cantus from asking for additional relief that would impede or prevent the collection of the final judgment rendered by the 138th District Court.

(c) filing on October 6,1997, in the 139th District Court of Hidalgo County, Texas, sworn pleadings, to wit, Application for Temporary Restraining Order and Injunc-tive Relief, asking that court to enjoin Universal Surety of America, inc., from making demand for and receiving funds under letters of credit and to enjoin Relator’s attorney, Robert W. Johnson, from continuing to pursue collection of their judgment against the Cantus, in violation of this Court’s order enjoining the Cantus from asking for additional relief that would impede or prevent the collection of the final judgment rendered by the 138th District Court.

VI. Judgment of Contempt.

After considering all of the evidence before the Court, we find and conclude that both of these pleadings before the 370th and 139th District Courts are in violation of this Court’s injunction and that Mark A. Cantu is guilty of contempt on each allegation (b and c) as set out above.

VII. Punishment.

There are two types of punishment for contempt of court: civil, or coercive contempt, and criminal contempt, sometimes called punitive contempt. See Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex.App.-El Paso 1994, orig. proceeding); Ex parte Mitchell, 783 S.W.2d 703, 706 (Tex.App.—El Paso 1989, orig. proceeding). The statutory authority for punitive contempt allows punishments of a fine of not more than $500 and confinement in jail for not more than six months for each violation. See Tex. Gov’t Code Ann. § 21.002(b) (Vernon 1988). For civil contempt, however, the Court has the authority to assess coercive confinement until such time as the contemnor complies with the order of the Court. Civil contempt is intended to persuade or coerce the contemnor to obey an order of the court. Ex parte Hawkins, 885 S.W.2d at 588; Ex parte Mitchell, 783 S.W.2d at 706. The confinement is conditional upon obedience and therefore the civil contemnor “carries the keys of [his] prison in [his] own pocket.” Ex parte Mitchell, 783 S.W.2d at 706 (citing Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Ex parte Werblud, 536 S.W.2d at 545.).

Having concluded that respondent is in contempt of this Court’s injunctive orders, we now face the difficult task of assessing appropriate punishment for such actions.

At the outset, we are mindful that those of us who have chosen careers in the legal profession and have been given the special privileges attendant thereto, have also assumed special obligations and duties to the profession, the courts and the judicial system. Each of us is an officer of the court in which we practice. It is axiomatic that the courts are the glue which holds our society together. If society does not have confidence in the fairness and impartiality of the court and its officers, then the very foundations of society are threatened. At the present time, when cynicism and skepticism of the integrity of the judicial system is expressed by much of society, we must look honestly at ourselves to ensure that the system is rightly entitled to the respect and honor to which we all aspire. In order to have the credibility to which the system is entitled, disrespect and violation of court orders by an officer of the court must not be tolerated.

Throughout the lengthy proceeding relating to the underlying issues in this ease, relator has shown that the monetary fines allowed by our statutes would be scant punishment in his situation; therefore, it seems that the primary means by which we can demonstrate our determination not to tolerate the violation of our orders is by the restriction of respondent’s liberty by confinement in jail.

We therefore assess punitive contempt of thirty (30) days in the Hidalgo County Jail and a fine of $500.00 separately for each of the two violations found, confinement to run concurrently.

Accordingly, the Court hereby ORDERS, ADJUDGES, and DECREES that Mark A. Cantu is in Contempt of Court for violating this Court’s order of September 26, 1997, in the manner alleged in paragraph (b) as follows:

(b) filing on October 1, 1997, in the 370th District Court of Hidalgo County, Texas, sworn pleadings, to wit, Plaintiffs Response to Defendant’s Amended Emergency Motion to Dissolve Temporary Restraining Order, asking that court to enjoin Universal Surety of America, ine., from making demand for and receiving funds under letters of credit issued to secure the supersedeas bond posted in the cause of action in the 138th District Court of Cameron County, Texas, in which Relators recovered the underlying judgment against the Cantus, in violation of this Court’s order enjoining the Cantus from asking for additional relief that would impede or prevent the collection of the final judgment rendered by the 138th District Court.

For this violation, the Court orders that Mark A Cantu shall be confined to the Hi-dalgo County Jail for thirty (30) days and fined $500.00.

The Court further ORDERS, ADJUDGES, and DECREES that Mark A Cantu is in Contempt of Court for violating this Court’s order of September 26, 1997, in the manner alleged in paragraph (c) as follows:

(c) filing on October 6,1997, in the 139th District Court of Hidalgo County, Texas, sworn pleadings, to wit, Application for Temporary Restraining Order and Injunc-tive Relief, asking that court to enjoin Universal Surety of America, inc., from making demand for and receiving funds under letters of credit and to enjoin Relator’s attorney, Robert W. Johnson, from continuing to pursue collection of then-judgment against the Cantus, in violation of this Court’s order enjoining the Cantus from asking for additional relief that would impede or prevent the collection of the final judgment rendered by the 138th District Court.

For this violation, the Court orders that Mark A. Cantu shall be confined to the Hi-dalgo County Jail for thirty (30) days and fined $500.00.

The Court orders that, for each of the two violations found by the Court, confinement shall run concurrently.

We further hereby order Mark A Cantu to report to the Hidalgo County Jail no later than 5:00 p.m. on November 17, 1997, to begin confinement under the terms of this contempt order. In the event that Mark A. Cantu challenges the present order of contempt by application for writ of habeas corpus in the Supreme Court of Texas, we order him- released from confinement on his own recognizance pending action by the Supreme Court of Texas on the writ of habeas corpus.

It is farther ordered that all costs be adjudged against Mark A Cantu.

FEDERICO G. HINOJOSA, J., not participating.

YANEZ, concurring and dissenting with opinion.

CHAVEZ, J., concurring and dissenting with opinion joined by YANEZ, J.

1 . Immediately upon receipt of judgment in their favor, the Butrons filed a garnishment action against Cantu’s property.

2 . If a party disagrees with a trial court’s ruling, there are other methods by which that party may obtain review in the same case that rendered the judgment. In the case at hand, without regard to die merits of such actions, Cantu could have, and did, challenge the judgment of the 138th District Court directly by filing a motion for new trial, appeal, writ of error, and bill of review.

3 . The corrected opinion made only the minor deletion of the word "temporary” to indicate that the nature of this Court’s injunction was permanent.

4 . As constructive contempt of this Court’s order committed outside the presence of the Court, Cantu's alleged violations must be tried at an evidentiary hearing before this Court or a trial court designated by this Court to hear the matter. See Ex parte Durham, 921 S.W.2d 482, 485-86 (Tex.App.—Corpus Christi 1996, orig. proceeding); In re Reed, 901 S.W.2d 604, 610-11 (Tex.App.—San Antonio 1995, orig. proceeding).