IN THE

TENTH COURT OF APPEALS

No. 10-00-045-CV

     CHARLES AUSTIN

     AND ESTHER J. AUSTIN,

                                                                         Appellants

     v.

     DOUGLAS REXFORD RANKIN

     AND ELIZABETH ANN RANKIN,

                                                                         Appellees

From the 40th District Court

Ellis County, Texas

Trial Court # 59148

O P I N I O N

      On January 22, 1997, Charles and Esther Austin (the “Austins”) purchased two lots in a platted real estate subdivision in Ellis County. Douglas and Elizabeth Rankin (the “Rankins”), the original owners of the lots, allege that the property was subject to deed restrictions which prohibited mobile homes or more than one residence on a lot. The Austins placed a mobile home on one lot which also had another residence. The Rankins brought suit to enforce the alleged restrictions. The trial court entered a temporary injunction ordering the Austins to remove the mobile home from the property. The Austins appealed. While the appeal was pending, the trial court proceeded to a trial on the merits which resulted in a permanent injunction requiring the Austins to remove the mobile home. The Austins then filed this appeal from the permanent injunction, claiming among other things, that by statute their appeal from the temporary injunction order stayed the commencement of the trial on the merits. The Austins argue that they were prejudiced by the trial court’s action, because had they not been hurried to trial, they would have called additional witnesses to dispute the Rankins’ claim that any restrictions applied to their property.

      Section 51.014 of the Civil Practice and Remedies Code provides that a person may appeal from an interlocutory order of a district court that grants or refuses a temporary injunction. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon Supp. 2001). An interlocutory appeal stays the commencement of a trial in the trial court pending resolution of the appeal. Id. § 51.014(b).

      The record indicates that the Austins filed a notice of appeal from the temporary injunction with the trial court clerk. “An appeal is perfected when a written notice of appeal is filed with the trial court clerk.” Tex. R. App. P. 25.1. Thus, the Austins properly appealed from the interlocutory order granting the temporary injunction. As a result, the appeal stayed the commencement of a trial pending the resolution of that appeal. The trial court should not have proceeded with the trial on the merits. The Austins were prejudiced in their ability to present evidence on the applicability of the restrictions to their property. Therefore, we reverse the final judgment of the trial court granting the permanent injunction and remand the cause for a new trial.

                                                BILL VANCE

                                                Justice

Before Chief Justice Davis

      Justice Vance, and

      Justice Gray

Reversed and remanded

Opinion delivered and filed March 21, 2001

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