Mason v. Double Oaks Apt., Inc.

HEDRICK, Judge. The plaintiff was granted an ex parte temporary restraining order on 10 April 1970 which enjoined the defendant from renting or leasing the apartment previously occupied by the plaintiff pending further hearing and order of the court. At a hearing to show cause why the injunction ought not to be continued pending the final hearing on the merits, the burden is on the party seeking the injunctive relief to establish (1) [133] that there is probable cause to believe that the party will ultimately prevail in a final determination of the case, and (2) that irreparable harm will befall the party if the injunctive relief is not ordered. Edmonds v. Hall, 236 N.C. 153, 72 S.E. 2d 221 (1952); Cablevision v. Winston-Salem, 3 N.C. App. 252, 164 S.E. 2d 737 (1968). The plaintiff contends that “ & lessor who accepts rent from his tenant qua rent, after judgment of summary eviction against the tenant and in an amount exceeding that awarded in such judgment, thereby waives his right to rely upon the eviction judgment and becomes estopped to issue out a writ of possession based thereon.” This contention is without merit. The landlord is clearly entitled to the amount of rent specified in the summary eviction judgment. In addition, the landlord is entitled to accrued rents which are not included in the judgment. Acceptance of these subsequently accrued rents does not estop the landlord from regaining possession pursuant to the summary eviction judgment. Mauney v. Norvell, 179 N.C. 628, 103 S.E. 372 (1920) ; Vanderford v. Foreman, 129 N.C. 217, 39 S.E. 839 (1901). The plaintiff has therefore failed to show probable cause that he will prevail in a final determination of the question. We do not discuss whether the appellant made a sufficient showing of irreparable harm since the failure of one of the requirements will support the dissolution of the temporary restraining order and a denial of further injunctive relief. The order of the District Court dissolving the temporary restraining order is affirmed. Affirmed. Chief Judge Mallard and Judge Parker concur.