Town of Winterville v. King

299 S.E.2d 838 (1983)

TOWN OF WINTERVILLE
v.
James W. KING, Nellie V. King, Cottie Louvenia Person, Mary P. Moore, Samuel E. Person, Joseph Person, Icelean Person, James Person and Lossie Person.

No. 823SC243.

Court of Appeals of North Carolina.

February 15, 1983.

Dixon, Horne & Duffus by J. David Duffus, Jr., Greenville, for plaintiff, appellee.

Robert L. White, Greenville, for defendants, appellants.

HEDRICK, Judge.

Our review is limited to the question of whether the findings of fact and conclusions of law support the order appealed from. See, North Carolina Rule of Appellate Procedure 10(a).

In its eagerness to prove that defendants dedicated at least a portion of their property to be used as a public street, the plaintiff seems to have lost sight of the rule that a permanent injunction will not lie where there is a full, adequate, and complete remedy at law and without a determination that the applicant will suffer irreparable injury from the acts and conduct of the party to be enjoined. Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923 (1949); Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593 (1946); Guyton v. Board of Transportation, 30 N.C.App. 87, 226 S.E.2d 175 (1976); Frink v. Board of Transportation, 27 N.C. App. 207, 218 S.E.2d 713 (1975).

With respect to the "acts and conduct" of the defendants which allegedly would cause irreparable "harm, damage and injury" to the plaintiff, if not enjoined, the plaintiff in its complaint alleged: "Defendant, James W. King acting on behalf of defendants has prevented plaintiff's employees from grading said road by threatening them with violence."

There is no evidence in this record whatsoever that any of the defendants, other than James W. King, did anything to prevent the plaintiff from grading the street or to prevent the general public from using the street, or that they made threats of any kind toward the plaintiff or any of its servants or employees. Moreover, the judge made no findings of fact that any of the defendants, other than James W. King, did anything to prevent the plaintiff or its servants or employees or the general public from using or maintaining the street in question. Thus, the conclusions that irreparable harm will result to plaintiff if it is prevented from maintaining Person Street, that sufficient grounds exist for a permanent injunction, and that plaintiff is entitled to a permanent injunction, insofar as it relates to the defendants other than James W. King, are not supported by the findings of fact.

Assuming arguendo that Finding of Fact Nos. 19 and 20 with respect to the defendant James W. King are sufficient to show that the plaintiff will suffer irreparable harm and injury if his conduct as described in those findings of fact is not permanently enjoined, we find no support for the Conclusion of Law No. 7 that plaintiff has no adequate remedy at law with respect to the acts and conduct of the defendant, James W. King. Board of Pharmacy v. Lane, 248 N.C. 134, 102 S.E.2d 832 (1958); Mills v. Cemetery Park Corp., 242 N.C. 20, 86 S.E.2d 893 (1955); Dare County v. Mater, 235 N.C. 179, 69 S.E.2d 244 (1952); Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593 (1946). Defendant James W. King might have been charged with violating any or all of the following Statutes: N.C.Gen.Stat. § 14-399; N.C.Gen.Stat. § 136-90; N.C.Gen. Stat. § 14-277.1. Thus the plaintiff has an adequate remedy at law. We hold the court erred in granting a permanent injunction against all of the defendants, including James W. King.

While our decision does not require us to elaborate on what we perceive to be other fatal defects requiring a vacation of the order appealed from, it seems appropriate to point out that Conclusion of Law No. 1 is erroneous since only one of the defendants, Cottie Louvenia Person, in any way participated in or was a party to the meeting with the Board of Aldermen of the Town of Winterville in 1960, wherein the defendants purportedly agreed to give fifteen feet of the property in question to the plaintiff to be used as a public street. The order appealed from is

Vacated.

JOHNSON and EAGLES, JJ., concur.