NO. 07-03-0529-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D OCTOBER 21, 2004

______________________________ DOUBL E ACE, INC. , MATTH EW POPE, AND ALYSSA POPE, APPELLANTS V. BENNIE DALE P OPE AND MIC HAEL DEARDO RFF, APPELLEES

_________________________________ FROM THE 2 86TH DI STRICT COURT OF HO CKLEY COUNT Y; NO. 02-12-19019; HONORABLE H AROLD PHELAN , JUDGE

_______________________________ Before QUINN and REAVIS an d CAMPBELL, JJ. MEMORA NDUM OPIN ION
Double Ace, Inc., M atthew Pope, an d Alyssa Wom ack, hereafter D ouble Ace, and Donna P ope, ap pearing pro se , present this accelerated ap peal from an amended order granting a temporary

injunction s igned on November 25, 2003. By five issues, Double Ace and Donna question w hether (1) th e temporary injunction or ders are void for failing to set1 The appeal of the meritsis pending in Cause No. 07-04-00429-CV

. 2 As material her

e, the order enj oined Double Ace and D onna from the withdraw al or transfer of the funds of Doub le Ace, Inc. ex cept for essentia l farming expenses, etc ., the sale or encumbering any of the assets of Double Ace, Inc., and o ther actions more fully s et out in the order. 2 a hearing date as required by Rule 683 of the Te xas Rules of Ci vil Pro cedure; (2) the petition for temporary injunction was denie d upon e ntry of the final judgment de nying all relief not expressl y granted th erein; (3 ) the tria l court ab used its discretio n in granti ng a temporary injunction against Donna without serv ice o f the petition; (4) servi ce of the petition and order sett ing a heari ng on Donna w as fatally defective; and (5) the trial court abused its di scret ion in gran ting a tempor ary injun ction agai nst Do uble Ace. We affirm.
Followi ng a jury t rial, on November 3, 2003, the trial cour t signed its judgment

which, among other thing s, rendered that Bennie Pope recover judgment against Double Ace and Donna, jointly

and several ly, in t he amount of $160 ,000and t hat M ich ael Dear dorf f recover judgment

against D ouble Ace and Donna , jointly and several ly, in t he amount of $11,000. 1 Thereafter, on November 25, 2003, the tri al court si gned an amended or der grant ing a temporary injunction; 2 the order, however, did not set a heari ng date. On December 22, Bennie filed a motion tomodify the amended or der to includ e a hearing d ate. A modified order settin g a hearing for January 30, 2004, was signed by the trial court. Repr

esented3 After receiving notice that Double Ace, Inc. had f iled a chapter 12 bankruptcy proc eed ing, we abated this appeal pursuant to Ru le 8.2 of the TexasRules of Appellate Procedure. Upon receiv ing notice that the automatic stay had been lifted, the appeal w as reinstated per

Rule 8.3. 3 by counsel, Doubl e Ace, filed a noti ce of accelerated appeal challeng ing the amen d ed order of November 25. Donna did not file a notice of ap peal. 3
Double Ace’s appell ate counsel and Donna , acting pro se , filed a joint brief on December

18, 2003. Before w

e commence our anal ysis of the issues, we first address Donna’s status as a party to this appeal. Donna Pope
Althou gh the filing of a notice by any party

invokes t he jurisdic

tion of this Cour

t over all parties, because Donna seeksto modify or alter the trial court’s or

der she was

required to perfect her appeal by filing a notice of accel erated appe al either individually or jointly with Double Ace i f their interests were a ligned. See Tex. R. App. P. Rule 25.1( b) and (c). Donna did no t file a notice of any kind and the notice filed herein is not de signated as a joint notice. Acco rdin gly, issues three and four, which pertain on ly to Donna, are not before us. Double Ace By the issues th at remain, Double Ace con tends (1) the temporary injunction orders are void for fail ing to set ahearing dateas requir ed by Rule 683 of the Texas Rul es of Civil4

Procedure; (2) the peti tion for temporary injunction w as denied upon entr

y of the final judgment

denying all relief

not expres sly gr

anted therein; and (5) the tri al court abused its discretion in granti ng a temporary injunction ag ainst Double A ce. Double Ace contends the November 25 or der is void because it did not set a hearing date as requir

ed by Rule 6 83 of the Texas Rul es of Civi l Procedure. We disagree. By the last two paragraphs of the order, the trial court pr ovided: The Cour

t finds that this temporary i njunction isnecessary because the Counter-Defendan ts, Double Ace, Inc., Alyss a Pope Womack, Matthew Pope, a nd Donna Pope have eng aged in a cour se of action involving the withdraw al of excessi ve funds from Doubl e Ace, Inc. w hich wer e beneficial to the indiv iduals and detrimental to Doubl e Ace, Inc. and f urther, the individual Counter-Defendants have eng aged in mismanag ement which h as resulted in jeopardy

to the financial condition o f Doub le Ace, Inc. and in reasonable probability , if such conduct is not e njoin ed will render the corporation i nsolvent. This temporary

injunction is issued a ncillary to the Court’s power to protect its jurisdic

tion over the subject matter of this suit and its power to enforce its judgmentsas a part of post-trial proceed ings and this order shall continue in effect so lon g as this Cour t retains pl enary pow

er over t his proceedin g, or enforcement proceedings issued, pursuant to an y judgment entered in this procee ding. As judgment cr

ed itors, Bennie and Dea rdorff were ent itled throug h injunction o r other means to obtain sa tisfaction on the judgment. See Tex. Civ . Prac. & Rem. Cod e Ann. § 31.002 (Vernon Supp. 2004-05). The typical requirements for an injunct ion are not applicable to an injuncti on granted pur suant to secti on 31.0 02. Roo sth v. Roo sth, 8895

S.W.2d 445, 460 (Tex.A pp.--Houston [14th Dist.] 1994, writ denied). Thus, Rule 683 of the Texas Rulesof Civil Procedure is not controll ing. Iss ue one is overruled. By its second i ssue, Double Ace contends thepetition for temporary injunction w

as denied upon entr y of t h e fi n a l j u d g m e n td e n y i n g a l l re l i e f n o te x p r e s s l y g r a n t e d

. We disagree. Although the final judg ment wassigned on N ovember 3, 2003, the challeng ed order was not signed unti l November 25. In adopting the turnover statute, the L egislature intended to facilitate t he collectio n of assets by a judgment cr editor from a jud gment debtor. RepublicIns. Co. v. M illard, 825 S.W.2d 780, 783 (Tex.App.--Hou ston [14th Dist.] 1992 , no wri t). Section 31.002(d) of theCode expre ssly autho rizes an injunction or other relief in thesame proce eding in w hich judgment is rendered or in an independent proceeding. Issue twois overruled. By its fifth issue, Double Ace con tends the trial court abused its discretion in granting a temporary

injunction ag ainst it. We disagree. A s above noted, the turnover statute facilitates collecti on 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 decis ion to g rant inj unct iv e re lie f to B enni e and Dea rdor ff without a hearing or

presentation of

evidence was not unr

easonable or arbitrary

and thus was not an abuse of discret ion. The trial cour t had previ ously hear

d evidence at

the trial on the merits. See Sivley v. Siv ley, 972 S.W.2d 850, 862 (Tex.App.--Tyler 1998, no writ). Issue five i s overru led.6

Accordingl y, the tri al court’s order gra nting a tempor ary inj unction is affirmed.
Don H. Reavis Justice