Looney v. Wilson , 97 N.C. App. 304 ( 1990 )

WELLS, Judge.

We first address, ex mero motu, whether this appeal must be dismissed as premature. A preliminary injunction is an interlocutory order. Iredell Digestive Disease Clinic v. Petrozza, 92 N.C. App. 21, 373 S.E.2d 449, affirmed, 324 N.C. 327, 377 S.E.2d 750 (1989) (citing Pruitt v. Williams, 288 N.C. 368, 218 S.E.2d 348 (1975)). No appeal lies from an interlocutory order unless such order affects a substantial right of the appellant, N.C. Gen. Stat. §§ 1-277(a), 7A-27(d)(1), the enforcement of which will be “lost, prejudiced or . . . less than adequately protected by exception to entry of the interlocutory order.” J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812 (1987) (and cases cited therein). Applying this test to the record before us, we conclude that this appeal is properly taken, and accordingly we proceed to an examination of the merits of the case advanced by defendants.

A preliminary injunction may issue only where the moving party shows (1) a likelihood of success on the merits of his case and (2) that he is likely to sustain irreparable loss absent issuance or, in the opinion of the court, issuance is necessary to protect the movant’s rights during the course of the litigation. Myers v. H. McBride Realty, Inc., 93 N.C. App. 689, 379 S.E.2d 70 (1989) (and cases cited therein). In reviewing the trial court’s ruling on a motion for a preliminary injunction, the appellate court is not bound by the findings of the court below, but may weigh the evidence and find the facts for itself. Id.

Our review of the record convinces us that plaintiffs’ motion for preliminary injunction was improvidently granted in this case. Title to the realty at issue is sufficiently clouded that we cannot conclude plaintiffs have met their threshold burden of demonstrating a likelihood of success on the merits of their case.

Additionally, our review of the evidence indicates that defendants, or their predecessors, have possessed and used the church property for many years, during a significant portion of which time defendant Wilson served the church as its pastor and occupied the parsonage. This evidence does not indicate that defendants have seized the church property or converted it to their own use as alleged in the complaint. Rather, the evidence tends to show that defendants are continuing in conditions of occupancy and use which have existed over a substantial period of time and that greater harm shall inure to defendants rather than to plaintiffs as a result of the issuance of the preliminary injunction. Consequently, plaintiffs have also failed to demonstrate the requisite irreparable harm.

The order granting plaintiffs’ motion for preliminary injunction therefore must be and is

Reversed.

The order granting defendants’ petition for writ of superse-deas is

Dissolved.

Chief Judge HEDRICK and Judge ARNOLD concur.