                                                                                         ACCEPTED
                                                                                    04-13-00897-CV
                                                                         FOURTH COURT OF APPEALS
                                                                              SAN ANTONIO, TEXAS
                                                                                3/6/2015 9:23:35 AM
                                                                                      KEITH HOTTLE
                                                                                             CLERK

                         NO. 04-13-00897-CV
__________________________________________________________________
                                                                   FILED IN
                                                            4th COURT OF APPEALS
                       IN THE COURT OF APPEALS               SAN ANTONIO, TEXAS
           FOURTH COURT OF APPEALS DISTRICT OF              03/6/2015 9:23:35 AM
                                                            TEXAS
                                                              KEITH E. HOTTLE
                             SAN ANTONIO, TEXAS                     Clerk

__________________________________________________________________

          LYN NOBLE HAWTHORNE A/K/A LYN HAWTHORNE,
                                            APPELLANT
                            VS.

                              JACK GUENTHER,
                                              APPELLEE
__________________________________________________________________
               On Appeal from the 285th Judicial District Court,

                   Bexar County, Texas, No. 2011-CI-20197
_______________________________________________________________                 _

              APPELLANT, LYN NOBLE HAWTHORNE
       A/K/A LYN HAWTHORNE'S MOTION FOR REHEARING
________________________________________________________________ _

Barkhurst & Hinojosa, P.C.                Of Counsel:
Paul D. Barkhurst
State Bar No. 00790266                    Shiv K. Kapoor
pbarkhurst@bhlawpc.com                    State Bar No. 24076474
Joe R. Hinojosa                           shiv@kapoorlawoffice.com
State Bar No. 24007368                    Kapoor Law Office, PLLC
jhinojosa@bhlawpc.com                     Chulie Professional Building
110 Broadway, Suite 350                   926 Chulie Drive
San Antonio, Texas 78205                  San Antonio, TX 78216
(210) 226-7800 - Telephone                (210) 225-6666 - Telephone
(210) 226-7802 - Facsimile                (210) 225-2300 - Facsimile
                                         TABLE OF CONTENTS


TABLE OF CONTENTS ........................................................................................... i

INDEX OF AUTHORITIES..................................................................................... ii

REHEARING ISSUE .............................................................................................. iv

SUMMARY OF REHEARING ARGUMENT .........................................................1

ARGUMENT ON REHEARING ..............................................................................3


         I.       Appellee’s June 3, 2003 filing was not a new and independent
                  action, and, thus, not an action of debt that revived the 1993
                  judgment. ...............................................................................................3

         II.      Appellee's June 3, 2003 filing was not a traditional plea in
                  intervention, but only an application for turnover relief that did
                  not revive the 1993 judgment. ...............................................................6

         III.     At most, Appellees’ filing could be considered a post-judgment
                  plea in intervention; however, that is not a new and
                  independent action...............................................................................10

PRAYER ..................................................................................................................11
CERTIFICATE OF COMPLIANCE .......................................................................13

CERTIFICATE OF SERVICE ................................................................................13




                                                             i
                                       INDEX OF AUTHORITIES
Cases
Beaumont Bank, N.A. v. Buller,
 806 S.W.2d 223, 224 (Tex. 1991) ..........................................................................5

Breazeale v. Casteel,
 4 S.W.3d 434, 436 (Tex. App.—Austin 1999) .............................................. 10, 11

Bridges v. Samuelson,
 11 S.W. 539, 539-540 (Tex. 1889) .........................................................................3

Bullock v. Ballew,
 9 Tex. 498, 499-500 (1853) ....................................................................................3

C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC,
 274 S.W.3d 299, 306–07 (Tex. App.—Houston 2008, no pet.) .......................9, 10

First Freeport Nat. Bank v. Brazoswood Nat. Bank,
  712 S.W.2d 168, 170 (Tex. App.—Houston 1986, no writ) ..................................6

Guaranty Federal Sav. Bank v. Horseshoe Operating Co.,
 793 S.W.2d 652, 657 (Tex. 1990) ......................................................................7, 8

Gutierrez v. Cayman Islands Firm of Deloitte & Touche,
 100 S.W.3d 261, 267 (Tex. App. – San Antonio 2002, no pet.) ............................8

Henry Austin’s Ex’Ors v. Abut G. Reynolds's Adm’r.,
 13 Tex. 544, 547 (1855)..........................................................................................3

In re L.A.M. & Assoc.,
  975 S.W.2d 80, 84 (Tex. App.—San Antonio 1998, orig. proceeding) .............5, 8

Janner v. Richardson,
  414 S.W.3d 857, 859 (Tex. App.— Houston 2013, no writ) .................................7

Johnson v. State Farm Lloyds,
  204 S.W.3d 897, 899 n. 1 (Tex. App.—Dallas 2006), aff’d, 290 S.W.3d 886
  (Tex. 2009)..............................................................................................................7


                                                             ii
Lerma v. Forbes,
  166 S.W.3d 889, 893 (Tex. App.—El Paso 2005) ...............................................11

Mercer v. Band,
 454 S.W.2d 833, 835 (Tex.App.—Houston 1970, no writ) ...................................6

Pillitteri v. Brown,
  165 S.W.3d 715, 722 (Tex. App.—Dallas 2005, no pet.) ............................. 4, 5, 8

Republic Ins. Co. v. Millard,
 825 S.W.2d 780, 782 (Tex. App.—Houston 1992, orig. proceeding) ...............4, 5

Sias v. Berly,
  245 S.W.2d 503, 511 (Tex. Civ. App.—Beaumont 1950), rev’d on other
  grounds, 255 S.W.2d 505, 508 (1953)....................................................................4

State Bar of Texas v. Heard,
  603 S.W.2d 829, 833 (Tex. 1980) ..........................................................................6

Statutes and Rules

TEX. CIV. PRAC. & REM. CODE ANN. § 31.002 (West 2008) .....................................1

TEX. R. APP. P. 49.......................................................................................................1

TEX. R. CIV. P. 71 .............................................................................................. 6, 7, 9




                                                           iii
                      REHEARING ISSUE

The Court erred as a matter of law in holding that Appellee revived the
dormant 1993 Judgment. Appellee’s June 3, 2003 filing did not revive the
1993 Judgment as it was not a new and independent action and thereby an
action of debt.




                                iv
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:

      COMES NOW Appellant, Lyn Noble Hawthorne a/k/a Lyn Hawthorne, and

files this Motion for Rehearing, pursuant to TEX. R. APP. P. 49.

                 SUMMARY OF REHEARING ARGUMENT

      At issue is whether Appellee’s June 3, 2003 “Plea In Intervention And

Application For Turnover Relief” was an action of debt that revived the 1993

Judgment. Texas courts have long held that an action of debt is a new and

independent action in which a judgment creditor obtains a new judgment based on

the original judgment. On the other hand, Texas courts have established that

applications for turnover orders are ancillary actions.

      There are no reported Texas cases where an application for a turnover order

was found to be an action of debt that revived a dormant judgment. The turnover

statute, TEX. CIV. PRAC. & REM. CODE ANN. § 31.002 (West 2008), is purely

procedural in nature. Unlike an action of debt, a turnover action does not result in a

new judgment, but merely an order to reach the judgment debtor’s property to

satisfy the original judgment.

      The turnover statute specifically states that the judgment creditor is entitled

to aid from a court to reach property to obtain satisfaction on the judgment. Thus,

it is not a vehicle in which a judgment creditor is seeking to obtain a new judgment

based on the original judgment, as is the case with “actions of debt.” Here,
                                          1
Appellee sought an order for Hawthorne to turn over any proceeds she received in

a personal injury lawsuit to satisfy in part the 1993 judgment. The filing was not a

new and independent proceeding, did not result in a new judgment, and, thus, was

not an action of debt that revived the dormant 1993 judgment.

      The Court erred in holding that Appellee’s filing was a traditional plea in

intervention and thus a new and independent action that revived the 1993

judgment. The nature of a filing is determined by its substance, not by its caption.

Appellee’s filing was not in substance a traditional plea in intervention. A third

party can intervene in an action only where he could have brought the same action

in his own name, or, if the action had been brought against him, he would be able

to defeat recovery. That was not the case in the action where Appellee made his

filing, which was a personal injury lawsuit by Hawthorne against an unrelated

defendant.

      Appellee had nothing to do with that lawsuit and could not have brought the

same action in his own name. Indeed, he did not allege a cause of action. Appellee

sought a turnover order and that is the relief that the trial court granted to Appellee.

Thus, Appellee’s filing was in substance only an application for turnover relief.

The Court’s holding sets a precedent that allows a party’s caption to control the

outcome of a case – something Texas courts have consistently rejected.




                                           2
      The filing was at most a post-judgment plea in intervention, which is not a

new and independent action. A party can file a post-judgment plea in intervention

in a turnover action where he seeks only to protect his interest in the judgment in

the underlying lawsuit and not obtain a new judgment. There is simply no legal

basis for a plea in intervention seeking a turnover application to be considered a

new and independent action or “an action of debt.” Based on the undisputed facts

and long held Texas law, this Court should hold that the 1993 Judgment is dormant

and is no longer of any force or effect.

                         ARGUMENT ON REHEARING
I.    Appellee’s June 3, 2003 filing was not a new and independent action,
      and, thus, not an action of debt that revived the 1993 judgment.

      Texas courts have identified and have long held that an “action of debt” is a

new and independent action in which a judgment creditor obtains a new judgment

based on the original judgment. This has been the law for more than 100 years.

See Bridges v. Samuelson, 11 S.W. 539, 539-540 (Tex. 1889) (petition to revive

dormant judgment requesting judgment for the amount of the dormant judgment

plus interest and costs was an action of debt); Henry Austin’s Ex’Ors v. Abut G.

Reynolds's Adm’r., 13 Tex. 544, 547 (1855) (in an action of debt on a dormant

judgment a new judgment is sought); Bullock v. Ballew, 9 Tex. 498, 499-500

(1853) (“[i]n an action of debt[,] the judgment for the plaintiff is that he recover his

debt,” whereas “[i]n a scire facias, it is simply that he have execution”); Sias v.
                                           3
Berly, 245 S.W.2d 503, 511 (Tex. Civ. App.—Beaumont 1950), rev’d on other

grounds, 255 S.W.2d 505, 508 (1953) (“the judgment rendered in an action of debt

is a new judgment”).

      Conversely, Texas courts have held that an application for a turnover order

is not a new and independent action seeking a new judgment, but merely a form of

ancillary relief to enforce an existing judgment.      See Pillitteri v. Brown, 165

S.W.3d 715, 722 (Tex. App.—Dallas 2005, no pet.) (“[t]hrough his turnover

application, [appellee] sought to enforce an existing judgment”). The turnover

statute is “a purely procedural device to assist judgment creditors in post-judgment

collections.” Republic Ins. Co. v. Millard, 825 S.W.2d 780, 782 (Tex. App.—

Houston 1992, orig. proceeding). “Its purpose is merely to ascertain whether an

asset is either in the judgment debtor’s possession or subject to the debtor’s

control” and “to facilitate the collection of assets from the judgment debtor to the

judgment creditor.” Id. at 783 (holding that the statute does not allow for a third

party not part of the original judgment to be forced to litigate a substantive issue).

In Republic Ins. Co., the Houston Court expressly rejected the argument that the

“‘independent proceeding” language in the turnover statute allowed “new”

lawsuits. Id. The Houston Court reasoned that subsection (d) of the turnover

statute simply denoted “the procedural manner in which the turnover action may be




                                          4
brought.” Id. In other words, the turnover statute does not allow for a new and

independent action.

      Indeed, an application for ancillary relief “seeks relief ancillary to the

underlying suit. For example, post-judgment writs of garnishment and turnover

orders are used to enforce existing judgments by freezing and ultimately obtaining

possession of enough of the judgment debtor’s non-exempt property to satisfy the

judgment.” In re L.A.M. & Assoc., 975 S.W.2d 80, 84 (Tex. App.—San Antonio

1998, orig. proceeding) (emphasis added); see also Beaumont Bank, N.A. v. Buller,

806 S.W.2d 223, 224 (Tex. 1991) (turnover statute is “the procedural device by

which judgment creditors may reach assets of a debtor that are otherwise difficult

to attach or levy on by ordinary legal process”); Pillitteri, supra, 165 S.W.3d at 721

(“[t]he purpose of the turnover statute is to assist a judgment creditor in reaching

certain property of a judgment debtor to obtain satisfaction on a judgment”).

      In this case, it is undisputed that Appellee’s filing did not seek a new

judgment, but rather that Hawthorne turn over any proceeds she may receive in the

personal injury lawsuit to satisfy the 1993 judgment. CR Supp 96-99 (Pl.’s MSJ,

Ex. 8). It is also undisputed that the relief obtained by the Appellee was not a new

judgment – the trial court issued an order, captioned “Turnover Order,” granting

the Appellee’s “sworn Application for Turnover Relief” and ordering Hawthorne

to turn over any property or payment received by her related to the personal injury


                                          5
lawsuit CR Supp 110 (Pl.’s MSJ, Ex. 10). Appellee’s application for turnover

relief was in no way an action of debt where a new judgment was granted and this

Court’s holding that it was is contrary to the substance of the order and long

established binding Texas precedent.

II.   Appellee's June 3, 2003 filing was not a traditional plea in intervention,
      but only an application for turnover relief that did not revive the 1993
      judgment.


      The nature of a filing is determined from its substance, not from its caption.

State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (“[w]e look to the

substance of a plea for relief to determine the nature of the pleading, not merely at

the form of title given to it”); First Freeport Nat. Bank v. Brazoswood Nat. Bank,

712 S.W.2d 168, 170 (Tex. App.—Houston 1986, no writ) (“Texas courts have

consistently applied the rule that the character of a motion is to be determined from

its substance, not from its caption”); Mercer v. Band, 454 S.W.2d 833, 835

(Tex.App.—Houston 1970, no writ) (“[a] motion’s substance is not to be

determined by its caption or by its introduction”).

      Trial courts can consider and grant the actual relief sought even if the

caption of the filing is incorrect. “When a party has mistakenly designated any

plea or pleading, the court, if justice so requires, shall treat the plea or pleading as

if it had been properly designated.” TEX. R. CIV. P. 71. Rule 71 “permits a trial

court to consider a motion or other filing according to its substance, even if it is not
                                           6
accurately titled.” Janner v. Richardson, 414 S.W.3d 857, 859 (Tex. App.—

Houston 2013, no writ); Johnson v. State Farm Lloyds, 204 S.W.3d 897, 899 n. 1

(Tex. App.—Dallas 2006), aff’d, 290 S.W.3d 886 (Tex. 2009) (motion titled

“Motion to Compel,” which requested in the body summary judgment, was

properly treated as a motion for summary judgment pursuant to Rule 71).

      The caption of Appellee’s filing is not controlling as to whether it was a plea

in intervention. The Court must look to the substance of the filing. The substance

of the filing was an application for turnover relief. And the trial court in the

personal injury lawsuit issued an order based on the substance of the relief sought,

i.e., turnover relief, not on the form or the caption of the plea. Indeed, Appellee

did not seek nor did he receive relief as a plaintiff or defendant in the case.

      While Appellee’s June 3, 2003 filing was captioned “Plea In Intervention

And Application For Turnover Relief”, CR Supp 96 (Pl.’s MSJ, Ex. 8), it was not

in substance a traditional plea in intervention. A third party “has the right to

intervene if the [third party] could have brought the same action, or any part

thereof, in his own name, or, if the action had been brought against him, he would

be able to defeat recovery, or some part thereof.” Guaranty Federal Sav. Bank v.

Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).

      Here, Appellee intervened in a personal injury lawsuit by Hawthorne against

another defendant. CR Supp 96-97 (Pl.’s MSJ, Ex. 8). The facts underlying the


                                           7
lawsuit were not related to the Appellee in any way. He could not have brought

the same action in his own name and certainly the action could not have been

brought against him. It is undisputed that Appellee did not state a cause of action

for the underlying lawsuit in his filing. Id. In truth and substance, the filing was

not a traditional plea in intervention.

      Rather, the filing was an application for turnover relief. “A pleading is

distinguishable from an application requesting relief in an ancillary proceeding.”

Pillitteri, supra, 165 S.W.3d 715, 722 (citing Gutierrez v. Cayman Islands Firm of

Deloitte & Touche, 100 S.W.3d 261, 267 (Tex. App. – San Antonio 2002, no pet.)

(“this court distinguished a ‘pleading’ from an ‘application’ by defining a pleading

as a means to allege a cause of action or ground of defense”)); In re L.A.M. &

Assoc., supra, 975 S.W.2d at 84. “Unlike a pleading, an application for ancillary

relief does not allege a cause of action or defense.” Pillitteri, supra, 165 S.W.3d at

722 (citing In re L.A.M. & Assoc., 975 S.W.2d at 84). An application for ancillary

relief “seeks relief ancillary to the underlying suit. For example, post-judgment

writs of garnishment and turnover orders are used to enforce existing judgments

by freezing and ultimately obtaining possession of enough of the judgment

debtor’s non-exempt property to satisfy the judgment.” In re L.A.M. & Assoc., 975

S.W.2d at 84 (emphasis added).




                                          8
      While Appellee did not allege a cause of action or defense in the underlying

personal injury lawsuit in his June 3, 2003 filing, he did, however, seek “relief

ancillary to the underlying suit,” requesting turnover of the proceeds to be

recovered by Hawthorne in the lawsuit. And, as noted, the trial court issued an

order, captioned “Turnover Order,” granting the Appellee’s “sworn Application for

Turnover Relief.” CR Supp 110 (Pl.’s MSJ, Ex. 10). The fact that the term “plea in

intervention” appeared in the caption was not controlling pursuant to Rule 71. See

C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 306–07

(Tex. App.—Houston 2008, no pet.) (although plaintiff titled document a

“nonsuit,” in substance document was an amended pleading, and pursuant to Rule

71, was not controlled by the fact that the term “nonsuit” appeared in document).

The trial court could and did consider the filing for what it actually was – an

application for turnover relief. The undisputed evidence demonstrates that the

filing was in fact an application for turnover relief.

      Indeed, Appellee referred to the June 3, 2003 filing and the others only as

applications for turnover relief throughout his Appellee brief, further establishing

that even Appellee considered the substance of the filing was an application for

turnover relief. Appellee stated he filed “five separate requests for turnover relief”

(Brief of Appellee at p. 19); that the “applications for turnover relief themselves

are ‘actions of debt’” (Brief of Appellee at p. 20); and that [a]ll of [Appellee’s]


                                           9
applications for turnover relief were clearly requests for judicial intervention to

enforce the 1993 judgment.” Id.

       Because Appellee’s filing was only an application for turnover relief, not a

new and independent suit, it could not revive the dormant 1993 judgment as a

matter of law. As this Court stated in its opinion, an “‘action on debt’ is a new and

independent suit that does not seek execution of the former judgment, but instead,

seeks recovery of the full amount of the debt owed under the former judgment.”

Opinion at p. 5. The only way for the “Plea In Intervention” to be considered a

new and independent action is if one were to disregard what (in substance) was

brought and what (in substance) was ordered by the court. This Court should not

recast the plea in intervention as something more than what the trial court in the

personal injury lawsuit determined it to be. Because Appellee’s June 3, 2003 filing

was not a new and independent action, it was not an action of debt and did not

revive the dormant 1993 judgment.

III.   At most, Appellees’ filing could be considered a post-judgment plea in
       intervention; however, that is not a new and independent action.

       Although post-judgment interventions are normally barred, a party can file a

post-judgment plea in intervention in a judgment creditor’s turnover action to

protect that party’s interest in a judgment debtor’s property. See Breazeale v.

Casteel, 4 S.W.3d 434, 436 (Tex. App.—Austin 1999) (third-party assignee of

judgment debtor’s unrelated judgment could intervene to protect its interest in that
                                         10
unrelated judgment when judgment creditor sought the judgment debtor’s proceeds

from the unrelated judgment in a turnover action). However, a post-judgment plea

in intervention to protect a party’s interest in the proceeds of a lawsuit is not a new

action because it is not seeking to alter the judgment. See Breazeale, 4 S.W.3d

434 at 436; Lerma v. Forbes, 166 S.W.3d 889, 893 (Tex. App.—El Paso 2005)

(post-judgment plea in intervention allowed where party is not seeking to alter the

judgment in the underlying lawsuit, but only seeking to protect its interest). In

these holdings, the post-judgment plea in intervention is allowed precisely because

it is not a new and independent action seeking a new judgment.

      Thus, to the extent that Appellee was trying to protect his interest in any

recovery in the personal injury lawsuit, it still would not be considered a new and

independent action as a matter of law. There is no legal basis for the proposition

that by filing a plea in intervention seeking to protect an interest in a judgment that

one may revive a dormant judgment. It is simply not an action of debt. This Court

erred in holding that it was. Hawthorne respectfully requests that this Court grant

rehearing in this matter and hold that the 1993 judgment is dormant and is no

longer of any force or effect.

                                      PRAYER

      WHEREFORE, Appellant, Lynn Noble Hawthorne a/k/a Lynn Hawthorne,

prays this Court GRANT its Motion for Rehearing, withdraw its opinion of


                                          11
February 4, 2015, and issue a new opinion in its stead, holding that the trial court

erred in granting summary judgment to Appellee and in not granting Appellant’s

Motion for Summary Judgment. Appellant further prays for all other and further

relief to which she is entitled.

                                        Respectfully submitted,

                                        Barkhurst & Hinojosa, P.C.

                                         /s/ Paul D. Barkhurst
                                        Paul D. Barkhurst
                                        State Bar No. 00790266
                                        pbarkhurst@bhlawpc.com
                                        Joe R. Hinojosa
                                        State Bar No. 24007368
                                        jhinojosa@bhlawpc.com
                                        110 Broadway, Suite 350
                                        San Antonio, Texas 78205
                                        (210) 226-7800 - Telephone
                                        (210) 226-7802 - Facsimile

                                   Of Counsel:

                                        Shiv K. Kapoor
                                        State Bar No. 24076474
                                        shiv@kapoorlawoffice.com
                                        Kapoor Law Office, PLLC
                                        Chulie Professional Building
                                        926 Chulie Drive
                                        San Antonio, TX 78216
                                        (210) 225-6666 - Telephone
                                        (210) 225-2300 - Facsimile

                                        ATTORNEYS FOR APPELLANT,
                                        LYN NOBLE-HAWTHORNE A/K/A
                                        LYN HAWTHORNE


                                          12
                      CERTIFICATE OF COMPLIANCE

The undersigned certifies that this Motion for Rehearing complies with the type-
volume limitation of Tex. R. App. P. 9.4(i)(2)(D) because this brief contains 2,838
words, excluding parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).

This brief complies with the typeface requirements of Tex. R. App. R. 9.4(e)
because this brief has been prepared in a conventional typeface of 14-point font in
the text.

                                       /s/ Paul D. Barkhurst
                                      Paul D. Barkhurst



                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Appellant, Lyn
Noble-Hawthorne a/k/a Lyn Hawthorne's Motion for Rehearing, was forwarded on
the 6th day of March, 2015, via Electronic Service Transmission, to:

      Mr. David C. Snell
      Bayne, Snell & Krause
      State Bar No. 24011309
      8626 Tesoro Drive, Suite 500
      San Antonio, TX 78217-6233
      Attorneys for Appellee

                                           /s/ Paul D. Barkhurst
                                      Paul D. Barkhurst




                                        13
