Goodman Toyota, Inc. v. City of Raleigh , 47 N.C. App. 628 ( 1980 )

267 S.E.2d 714 (1980)

GOODMAN TOYOTA, INC.
v.
CITY OF RALEIGH.

No. 7910SC921.

Court of Appeals of North Carolina.

July 15, 1980.

Blanchard, Tucker, Twiggs & Denson by Charles F. Blanchard and Charles H. Mercer, Jr., Raleigh, for plaintiff-appellee.

City Atty. Thomas A. McCormick, Jr., by Associate City Atty. Ira J. Botvinick, Raleigh, for defendant-appellant.

MORRIS, Chief Judge.

Defendant argues that the preliminary injunction is improper in that enforcement of the ordinance will not irreparably injure plaintiff; that plaintiff, in its application for a preliminary injunction, failed to set out with particularity facts showing irreparable injury; and that any injunction restraining the enforcement of the ordinance is contrary to prior decisions involving injunctions and sign regulations. We agree with defendant that plaintiff has failed to set forth with particularity facts to support its claim of irreparable injury, and accordingly reverse the trial court's granting a preliminary injunction prohibiting the enforcement of defendant's sign control ordinance.

In United Telephone Co. of Carolinas, Inc. v. Universal Plastics, Inc., 287 N.C. 232, 235, 214 S.E.2d 49, 51 (1975), we find the following language pertinent to the case before us:

A prohibitory preliminary injunction is granted only when irreparable injury is real and immediate. Its purpose is to preserve the status quo of the subject matter involved until a trial can be had on the merits. 4 Strong, N.C. Index 2d Injunctions § 1, p. 388 (1968); In re Reassignment of Albright, 278 N.C. 664, 180 S.E.2d 798 (1971); Hall v. Morganton, 268 N.C. 599, 151 S.E.2d 201 (1966); Starbuck v. Havelock, 252 N.C. 176, 113 S.E.2d 278 (1960). The issuing court, after weighing the equities and the advantages and disadvantages to the parties, determines in its sound discretion whether an interlocutory injunction should be granted or refused. The court cannot go further and determine the final rights of the parties which must be reserved for the trial of the action. 2 McIntosh, North Carolina Practice and Procedure 2d, § 2219 (1956); In re Reassignment of Albright, supra ; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309 (1924). ``In passing on the validity of an interlocutory injunction the appellate court is not bound by the findings of fact made by the issuing court, but may review the evidence and make its own findings.. . .' In re Reassignment of Albright, supra. Accord, Conference v. Creech and Teasley v. Creech and Miles, 256 N.C. 128, 123 S.E.2d 619 (1962); Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319 (1953).

An applicant for a preliminary injunction has the burden of showing a reasonable probability of substantial and irreparable injury to the applicant from the continuance of the activity of which it complains to the final determination of the action. Board of Provincial Elders v. Jones, 273 N.C. 174, 159 S.E.2d 545 (1968). The applicant must do more than merely allege that irreparable injury will occur. "The applicant is required to set out with particularity facts supporting such statements so the court can decide for itself if irreparable injury will occur." United Telephone Co. of Carolinas, Inc. v. Universal Plastics, Inc., supra, 287 N.C. at 236, 214 S.E.2d at 52.

The record in the present case fails to disclose any facts from which we can determine that plaintiff will suffer irreparable harm if defendant's sign control ordinance is enforced against it. We find only the allegation that plaintiff will suffer injury in that "removal and abandonment [of the blimp and searchlight] will cost it many thousands of dollars in loss of property and profits," and that it will either have to remove the objects or "subject itself to daily arrest and fines . . .." There is nothing which would permit us to know the extent to which plaintiff's business or goodwill may be damaged by the imposition of defendant's ordinance. The lack of particularity in plaintiff's application is in stark contrast to other decisions where our courts have upheld the granting of a preliminary injunction dealing with alleged business losses. See, e.g., Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962). Cf. United Telephone Co. of Carolinas, Inc. v. Universal Plastics, Inc., supra (issuance of preliminary injunction on facts alleged held error).

It is not necessary for us to determine whether plaintiff has the right to the continued use of its blimp and searchlight in the face of defendant's ordinance prohibiting such activity. This and all other issues raised by the pleadings will be determined at the final hearing of this action.

We are aware of State v. School, 299 N.C. 351, 261 S.E.2d 908 (1980), where the Court, in a unanimous opinion, said that unless a substantial right of appellant is endangered, appeal from the granting of a preliminary restraining order cannot be maintained. While we do not think appellant here has shown deprivation of a substantial right, we have, nevertheless, entertained the appeal. Future appeals of this nature will be examined in the light of State v. School, supra.

For the reasons stated, the order of the trial court granting the preliminary injunction is reversed and the case is remanded for trial on its merits.

Reversed and remanded.

PARKER and WELLS, JJ., concur.