
NO. 07-03-0529-CV


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL D


OCTOBER 21, 2004


______________________________



DOUBLE ACE, INC., MATTHEW POPE, AND ALYSSA POPE, APPELLANTS


V.


BENNIE DALE POPE AND MICHAEL DEARDORFF, APPELLEES



_________________________________


FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;


NO. 02-12-19019; HONORABLE HAROLD PHELAN, JUDGE

 
_______________________________



Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION


	Double Ace, Inc., Matthew Pope, and Alyssa Womack, hereafter Double Ace, and
Donna Pope, appearing pro se, present this accelerated appeal from an amended order
granting a temporary injunction signed on November 25, 2003.  By five issues, Double Ace
and Donna question whether (1) the temporary injunction orders are void for failing to set
a hearing date as required by Rule 683 of the Texas Rules of Civil Procedure; (2) the
petition for temporary injunction was denied upon entry of the final judgment denying all
relief not expressly granted therein; (3) the trial court abused its discretion in granting a
temporary injunction against Donna without service of the petition; (4) service of the
petition and order setting a hearing on Donna was fatally defective; and (5) the trial court
abused its discretion in granting a temporary injunction against Double Ace.  We affirm.
	Following a jury trial, on November 3, 2003, the trial court signed its judgment which,
among other things, rendered that Bennie Pope recover judgment against Double Ace and
Donna, jointly and severally, in the amount of $160,000 and that Michael Deardorff recover
judgment against Double Ace and Donna, jointly and severally, in the amount of $11,000. (1) 
Thereafter, on November 25, 2003, the trial court signed an amended order granting a
temporary injunction; (2) the order, however, did not set a hearing date.  On December 22,
Bennie filed a motion to modify the amended order to include a hearing date.  A modified
order setting a hearing for January 30, 2004, was signed by the trial court.  Represented
by counsel, Double Ace, filed a notice of accelerated appeal challenging the amended
order of November 25.  Donna did not file a notice of appeal. (3) 
	Double Ace's appellate counsel and Donna, acting pro se, filed a joint brief on
December 18, 2003.   Before we commence our analysis of the issues, we first address
Donna's status as a party to this appeal.
Donna Pope

	Although the filing of a notice by any party invokes the jurisdiction of this Court over
all parties, because Donna seeks to modify or alter the trial court's order she was required
to perfect her appeal by filing a notice of accelerated appeal either individually or jointly
with Double Ace if their interests were aligned.  See Tex. R. App. P. Rule 25.1(b) and (c). 
Donna did not file a notice of any kind and the notice filed herein is not designated as a
joint notice.  Accordingly, issues three and four, which pertain only to Donna, are not before
us.
Double Ace 

	By the issues that remain, Double Ace contends (1) the temporary injunction orders
are void for failing to set a hearing date as required by Rule 683 of the Texas Rules of Civil
Procedure; (2) the petition for temporary injunction was denied upon entry of the final
judgment denying all relief not expressly granted therein; and (5) the trial court abused its
discretion in granting a temporary injunction against Double Ace.
	Double Ace contends the November 25 order is void because it did not set a hearing
date as required by Rule 683 of the Texas Rules of Civil Procedure.  We disagree.  By the
last two paragraphs of the order, the trial court provided:
	The Court finds that this temporary injunction is necessary because the
Counter-Defendants, Double Ace, Inc., Alyssa Pope Womack, Matthew
Pope, and Donna Pope have engaged in a course of action involving the
withdrawal of excessive funds from Double Ace, Inc. which were beneficial
to the individuals and detrimental to Double Ace, Inc. and further, the
individual Counter-Defendants have engaged in mismanagement which has
resulted in jeopardy to the financial condition of Double Ace, Inc. and in
reasonable probability, if such conduct is not enjoined will render the
corporation insolvent.	
 
	This temporary injunction is issued ancillary to the Court's power to protect
its jurisdiction over the subject matter of this suit and its power to enforce its
judgments as a part of post-trial proceedings and this order shall continue in
effect so long as this Court retains plenary power over this proceeding, or
enforcement proceedings issued, pursuant to any judgment entered in this
proceeding.

	As judgment creditors, Bennie and Deardorff were entitled through injunction or
other means to obtain satisfaction on the judgment.  See Tex. Civ. Prac. & Rem. Code
Ann. § 31.002 (Vernon Supp. 2004-05).  The typical requirements for an injunction are not
applicable to an injunction granted pursuant to section 31.002.  Roosth v. Roosth, 889
S.W.2d 445, 460 (Tex.App.--Houston [14th Dist.] 1994, writ denied).  Thus, Rule 683 of the
Texas Rules of Civil Procedure is not controlling.   Issue one is overruled.
	By its second issue, Double Ace contends the petition for temporary injunction was
denied upon entry of the final judgment denying all relief not expressly granted.  We
disagree.  Although the final judgment was signed on November 3, 2003, the challenged
order was not signed until November 25.  In adopting the turnover statute, the Legislature
intended to facilitate the collection of assets by a judgment creditor from a judgment
debtor.  Republic Ins. Co. v. Millard, 825 S.W.2d 780, 783 (Tex.App.--Houston [14th Dist.]
1992 , no writ).  Section 31.002(d) of the Code expressly authorizes an injunction or other
relief in the same proceeding in which judgment is rendered or in an independent
proceeding.  Issue two is overruled.
	By its fifth issue, Double Ace contends the trial court abused its discretion in
granting a temporary injunction against it.  We disagree.  As above noted, the turnover
statute facilitates collection of assets by a judgment creditor from a judgment debtor. 
Millard, 825 S.W.2d at 783.  Although the granting of turnover relief is reviewed for abuse
of discretion, the trial court's decision to grant injunctive relief to Bennie and Deardorff
without a hearing or presentation of evidence was not unreasonable or arbitrary and thus
was not an abuse of discretion.  The trial court had previously heard evidence at the trial
on the merits.  See Sivley v. Sivley, 972 S.W.2d 850, 862 (Tex.App.--Tyler 1998, no writ). 
Issue five is overruled.
	Accordingly, the trial court's order granting a temporary injunction is affirmed.
						Don H. Reavis
						    Justice

 






1. The appeal of the merits is pending in Cause No. 07-04-00429-CV.
2. As material here, the order enjoined Double Ace and Donna from the withdrawal
or transfer of the funds of Double Ace, Inc. except for essential farming expenses, etc., the
sale or encumbering any of the assets of Double Ace, Inc., and other actions more fully set
out in the order.
3. After receiving notice that Double Ace, Inc. had filed a chapter 12 bankruptcy
proceeding, we abated this appeal pursuant to Rule 8.2 of the Texas Rules of Appellate
Procedure.  Upon receiving notice that the automatic stay had been lifted, the appeal was
reinstated per Rule 8.3.
