Shishko v. Whitley

308 S.E.2d 448 (1983)

John SHISHKO and Belle Shishko
v.
John M. WHITLEY, Sr. and Grover D. Ellis, Sr. and Holly Ridge Airport, Inc.

No. 824DC742.

Court of Appeals of North Carolina.

November 1, 1983.

Popkin & Coxe by Samuel S. Popkin, Jacksonville, for plaintiffs-appellants.

Bailey, Raynor & Erwin by Frank W. Erwin, Jacksonville, for defendants-appellees.

JOHNSON, Judge.

We concede at the outset that much of the long and complex procedural history of this case, summarized in pertinent part above, is unnecessary to a determination of the merits of this case. However, the record on appeal is so incomplete in certain respects that the merits are difficult to reach and a fair consideration of them nearly impossible. The record is complete enough, however, to show that the trial court had no jurisdiction to enter the judgment appealed from.

The judgment, as entered orally and in writing, purports to be a final judgment in all respects: it makes findings of fact and draws conclusions of law as to the merits of the case and enters the relief prayed for, a permanent injunction.

That the judgment purports to be final is apparent from the nature of the relief granted. A permanent injunction is an extraordinary equitable remedy and may only properly issue after a full consideration of the merits of a case. As such, the court has no authority to issue a permanent injunction in an interlocutory proceding. See Smith v. Rockingham, 268 N.C. 697, 151 S.E.2d 568 (1966) (improper for a judge to enter a permanent injunction in a pretrial conference). Accordingly, it is error for a court to issue a permanent injunction at a hearing to show cause why a temporary injunction or restraining order should not be continued. MacRae & Co. v. Shew, 220 N.C. 516, 17 S.E.2d 664 (1941); Register v. Griffin, 6 N.C.App. 572, 170 S.E.2d 520 (1969). "The judge hearing the order to show cause why the injunction should not be continued to the hearing had no jurisdiction to hear and determine the controversy on its merits...." Patterson v. Hosiery Mills, 214 N.C. 806, 810, 200 S.E. 906, 908 (1939).

These cases stand for the proposition that the trial court has no jurisdiction to consider and determine the merits of a case and grant permanent injunctive relief in the context of a hearing to determine whether a temporary injunction or restraining order should continue in effect. In such situations, the only question properly considered is whether the order should be continued. MacRae v. Shew, supra; Register v. Griffin, supra; see generally 7 Strong's N.C.Index 3d, Injunctions, §§ 12.1, 12.2 (1977 and Supp.1983); but see In re Savings and Loan Assoc., 53 N.C.App. 326, 280 S.E.2d 748, disc. rev. denied, 304 N.C. 588, 291 S.E.2d 148 (1981) (judgment on the merits in a hearing on a motion to show cause not error where issue decided was solely one of law).

For the court below to consider the merits of the present case in the procedural context then existing was just as improper as in the situations in the cases cited supra. Although our research has disclosed no case that is directly on point, it follows logically that the jurisdictional constraints which determined the outcome in the above cases apply equally and for the same reasons where, as here, the court is considering a motion to dissolve a standing preliminary injunction. The preliminary injunction, like the temporary restraining order, is interlocutory and the question presented by the motion to dissolve is whether the injunction should continue in effect. In such cases, the court has no jurisdiction to proceed to the merits of the case, and jurisdiction may not be conferred by consent of the parties. See MacRae v. Shew, supra.

The record on appeal in this case does sufficiently indicate, by its inclusions as well as its omissions, that the hearing in question was not a hearing on the merits, but rather a hearing on the plaintiffs' motion to dissolve the 26 May 1981 preliminary injunction: (1) in their pleadings, both parties requested a jury trial as to all the issues involved but the hearing was before the judge and there is no indication that either party waived its right to a jury trial; (2) there is no indication that this matter was ever calendared for a trial on the merits in District Court at the 1 March 1981 Session; and (3) the amended complaint was not filed until after the hearing and after judgment had been entered and signed; defendant never having waived his right to file an answer. In their briefs, the parties proceed on entirely different perceptions of what the hearing was suppose to be. Plaintiff proceeds on the premise that the court had continued the preliminary injunction while defendant assumes that final judgment had been entered and a permanent injunction issued. Finally, and most convincingly, the transcript of the hearing affirmatively discloses that neither the parties nor the court clearly intended to proceed on the merits of the case or to determine finally the rights of the parties as regards this controversy. At the close of the hearing, the following colloquy took place between counsel for the parties and the trial judge:

COURT: [after summarizing the evidence]... I must issue a permanent injunction against the plaintiffs to not go on the defendants' property. I know I can feel for both sides, but I think this is the law and what I have to uphold, and that is what I am going to do.

MR. POPKIN: Judge, was that a motion for a permanent injunction that we were hearing?

COURT: I think your motion was to dissolve the restraining order that I issued, and what I'm saying is I'm not dissolving it, which means the injunction is there. I mean it's a matter of semantics really, I suppose.

MR. POPKIN: I wasn't aware that Mr. Erwin was asking for that, I thought he was just asking to keep the preliminary injunction in effect.

COURT: I'll word it differently then. What I'm saying is this, the injunction that I previously entered in May is to remain in effect.

MR. ERWIN: Thank you.

MR. POPKIN: Thank you. (Mr. Popkin conferred with his clients.)

MR. POPKIN: Your Honor, in the case I know the Court has granted the preliminary injunction against the Shishkos, but what type of security is the Court going to require of the defendants?

COURT: What sort of security of what nature?

MR. POPKIN: Pursuant to Rule 65 can I—

MR. ERWIN: May we approach the bench?

COURT: Yes, sir. (Counsel and the Court conferred at the bench).

COURT: This is a permanent injunction, in other words I'm telling you people to stay off somebody else's property, pure and simple, period, so no security is required for that. None is necessary, none is required.

MR. POPKIN: We would like to note our appeal from your Order.

[Emphasis added.]

Inasmuch as the trial court here had no jurisdiction to enter the judgment appealed from, that judgment must be vacated with the result that the preliminary injunction remains in effect until this matter is properly heard and considered on its merits. Further, neither this opinion nor the proceeding below is res judicata with respect to any of the substantive issues that might be raised on a subsequent proceeding. Huggins v. Board of Education, 272 N.C. 33, 157 S.E.2d 703 (1967).

Vacated and remanded.

HILL and PHILLIPS, JJ., concur.