Cantu, In re

• Decision Date: 12 November 1997
• Docket Number: 13-97-558-CV,Nos. 13-97-550-C,s. 13-97-550-C
• Parties: In re Mark A. CANTU. Ancillary to: In re: Robert W. Johnson, Jr., Juan Lopez Butron, and Luis Enrique Cortinas Villarreal.
• Court: Texas Court of Appeals

Page 482

961 S.W.2d 482

In re Mark A. CANTU Ancillary to: In re: Robert W. Johnson, Jr., Juan Lopez Butron, and Luis Enrique Cortinas Villarreal.

Nos. 13-97-550-CV, 13-97-558-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 12, 1997.

Order onRehearing Nov. 20, 1997.

Order on Motions Feb. 19, 1998.

Ronald G. Hole, Micaela Alvarez, Law Office of Ronald G. Hole, McAllen, R.E. Lopez, Jr., Brownsville, Robert W. Johnson, Jr., Corpus Christi, for Relators.

Jose E. Garcia, William L. Hubbard, Law Office of Jose E. Garcia, Cynthia G. Gutierrez, Ellis, Koeneke & Ramirez, McAllen, Stephen W. Schueler, Kem T. Frost, Windstead Sechrest & Minick, Houston, Ofelia De Los Santos, Edinburg, for Real Parties in Interest.

Before the Court En Banc.

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 banc at Edinburg, 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 Butron, 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 Butron and Luis Enrique Cortinas Villarreal (collectively "Butron") 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 Butron's settlement. Butron 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 supersedeas 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. Butron, 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 Butron 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's ¹ 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 Butron 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, Butron 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, Butron 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 District Court granted an additional temporary restraining order preventing Butron 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.

Butron 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 Butron'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, Butron 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 Butron to file a motion to stay proceedings with this Court on October 9th.

Butron 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, Butron 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. 351, 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). .......