NO. 04

- 13 -00897- CV

__________________________________________________________________ IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT OF TEXAS

SAN ANTONIO, TEXAS

__________________________________________________________________

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

APPELLEE

__________________________________________________________________

On Appeal from the 285 th 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. 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 ACCEPTED 04-13-00897-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/6/2015 9:23:35 AM KEITH HOTTLE CLERKi 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 act ion.

................................ ................................ .............. 10

PRAYER

................................ ................................ ................................ .................. 11 CERTIFICATE OF COMPLIANCE

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

................................ ................................ ................ 13ii 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 19 98, 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)

................................ ................................ ................................ .............. 7iii

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
T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 31.002 (West 2008)

................................ ..... 1
T EX
. R. A PP
. P. 49

................................ ................................ ................................ ....... 1
T EX
. R. C IV
. P. 71

................................ ................................ .............................. 6, 7, 9iv REHEARING ISSUE The Court erred as a matter of law in holding that Appellee revived t he 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.1

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 T EX
. R. A PP
. P. 49

.

SUMMARY OF REHEARING ARGUMENT At issue is wh ether A ppellee’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
ap plications 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, T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 31.002 (West 2008) , is pure ly 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 judgme nt 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 t he case with “actions o f debt.” Here,2

Appellee sought an order for Hawthorne to turn over any proceeds she received in a personal injury lawsuit to satisfy in part th e 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 A ppellee’s filing was a traditional plea in intervention and thus a new and independent action t hat revived the 1993 judgment. The nature of a filing is determined by its substance, not by its caption.
A ppellee’s filing was not in substance a tr aditional 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 A ppellee made his filing, which was a personal injury lawsuit by Hawthorne against an unrelated
defendant. Appellee had no thing to do with that lawsuit and could not have brought the same action in his own name. I ndeed, 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, A ppellee’s filing was in substance onl y 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.3

The filing was at most a post

- judgment plea in intervention, whi ch 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 n o 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 ne w judgment is sought); Bullock v. Ballew , 9 Tex. 49 8, 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.4

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 f or 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 f

acilitate 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 f orced to litigate a substantive issue).
I n Republic Ins. Co. , the Houston Court expressly rejected the argument that the “‘independent proceeding” language in the turnover s tatute allowed “new”
l awsuits. Id

. The Houston Court reasoned that subsection (d) of the turnover
statute simply denoted “the procedural manner in which the turnover action may be5

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 an cillary to the underlying suit. For example, po st

- 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 diffic ult 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 th e relief obtained by the A ppellee was not a new judgment

– the trial court issued an order, captioned “Turnover Order,” granting
the A ppellee’s “sworn Application for Turnover Relief” and ordering Hawthorne to turn over any property or payment received by her related to the personal injury6

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 th e 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. B and , 454 S.W.2d 833, 835 (Tex.App.

— Houston 1970, no writ) (“[a] motion’s substance is not to be
d etermined by its caption or by its introduction”). Trial courts can consider and grant the actual relief sought even if the capt ion of the filing is incorrect. “When a party has mistakenly designated any plea or pleading, the court, if justice so require s, shall treat the plea or pleading as if it had been properly designated.” T EX
. R. C IV
. P. 71

. Rule 71 “permits a trial court to consider a motion or other filing according to its substance, even if it is not7

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, 89 9 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 ).
T he 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 ap plication for turnover relief. And the trial court in the personal injury lawsuit issued an order based on the substance of the relie f 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 a s a plaintiff or defendant in the case. While Appellee’s June 3, 2003 filing was captioned “Plea In Intervention
And A pplication For Turnover Relief”, CR Supp 96 (Pl.’s MSJ, Ex. 8), it was not in substance a traditional plea in in tervention. 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, A ppellee intervened in a personal injury lawsuit by Hawthorne against another defendant. CR Supp 96

- 97 (Pl.’s MSJ, Ex. 8). The facts underlying the8

lawsuit were not related to the A ppellee 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 und erlying lawsuit in his filing. Id. In truth and substance, the filing was not a traditional plea in intervention. Rather, the filing was an a pplication 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

. “Unli ke 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).9

While Appelle e 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

recovere d by Hawthorne in the lawsuit. And, as noted, the trial court issued an order, captioned “Turnover Order,” granting the A ppellee’s “sworn Application for Turnover Relief.” CR Supp 110 (Pl.’s MSJ, Ex. 10). The fact that the term “plea in intervention” app eared 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 cont rolled 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
ap plication for turnover relief. The undisputed evidence demonstrates that the filing was in fact an applicat ion 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 applicatio n 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

ar e ‘actions of debt’” (Brief of Appellee at p. 20); and that [a]ll of [Appellee’s]10

applications for turnover relief were clearly requests for judicial intervention to enforce the 1993 judgment.” Id

. Because A ppellee’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 th is 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 Interv ention” to be considered a
new and independent action is if one were to disregard what (in substance) was brought and what (in subs tance) was ordered by the court. Th is Court should not recast the p lea in i ntervention as something more than what the trial court in the personal injury lawsuit determined it to be. Because A ppellee’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 judgm ent. 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 interve ntion 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 that11

unrelated judgment when judgment creditor sought the judgment debto r’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 se eking 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 inj ury lawsuit, it still would not be considered a new and independent action as a matter of la w. 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 jud gment

. It is simply not an action of debt

. T his Court erred in holding that it was. Hawthorne respectfully requests that this C o u r t grant rehear ing in this matter and hold that the 1993 judgment is dormant and is no longer of any force or effect.
PRAYE R WHEREFORE, Appellant, Lynn Noble Hawthorne a/k/a Lynn Hawthorne, prays this Court GRANT its Motion for Rehearing, withdraw its opinion of12

February 4, 2015, and issue a new opinion in its stead, holding that the trial court erred in granting summary judg ment to A ppellee 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 Driv e San Antonio, TX 78216 (210) 225

- 6666

- Telephone (210) 225

- 2300

- Facsimile ATTORNEYS FOR APPELLANT, LYN NOBLE

- HAWTHORNE A/K/A LYN HAWTHORNE13 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) becau se this brief has been prepared in a conventional typeface of 14

- point font in the text. /s/ Paul D. Barkhurst Paul D. Barkhurst

C ERTIFICATE 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 Antoni o, TX 78217

- 6233 Attorneys for Appellee /s/ Paul D. Barkhurst Paul D. Barkhurst