Waff Bros. v. Bank of North Carolina, N.A.

BROCK, Chief Judge. Plaintiff argues that the trial judge committed error in dissolving the temporary restraining order and further committed error in refusing to issue a preliminary injunction pending trial of this action on the merits. At a hearing on motion for a preliminary injunction pending the final hearing on the merits (See G.S. 1A-1, Rule 65 [b]), the burden is on the party seeking the injunctive relief to establish (1) 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 be suffered by the party if the injunctive relief is not granted. A failure to establish either of the two requirements will justify denial of the injunctive relief. Mason v. Apt., Inc., 10 N.C. App. 131, 177 S.E. 2d 733 (1970). We are impressed at the outset with the complete failure of a showing by plaintiff that it will be irreparably damaged if injunctive relief is not granted. Plaintiff offered no evidence of the value of the 48.672 acres. Plaintiff has offered no evidence to suggest that the Quible judgment and plaintiff’s judgment cannot be satisfied in full by a sale of the 48.672 acres. We are aware that the total of the two judgments is $257,Í70.53, but that tells us nothing of the value of the property. Plaintiff does not even argue in its brief that a sale of the property would not satisfy both judgments. Maybe a sale will satisfy both, or maybe it will not. The plaintiff’s evidence is silent upon the question. There is some inference from defendants’ evidence that the property has been substantially developed for vacation property, that streets have been opened, lots divided, bulkheads constructed on the Albemarle Sound, and some work done on a golf course, tennis courts, and a recreation center. There is also some inference from defendants’ evidence that lots were selling for $8,000.00 each and that 65 of the lots within the 48.672 acres were under sales contracts totaling $467,206.50, including interest. We do not need to decide whether plaintiff has established probable cause to believe that it will prevail in the final determination of this case because the failure to establish the probability of irreparable harm is sufficient to support the denial of injunctive relief. [522] Plaintiff is joined by defendants in seeking a determination by this Court of the merits of plaintiff’s claim that the Quible judgment -was extinguished by its assignment to Carolina. The present posture of the case does not permit such a determination. There are no stipulations of fact, and there are no findings of fact by the trial judge or a jury. Whether plaintiff can establish an extinguishment or can establish conduct between Vacation, Berger, Carolina, and Bank that amounts to wrongful conduct (See Henderson v. Finance Co., 273 N.C. 253, 160 S.E. 2d 39 [1968]) is a matter of conjecture at this point. The resolution of these and the other pertinent facts must be left for a trial on the merits. Although the appellate courts can make their own findings of fact to determine the propriety of temporary injunctive relief, Coggins v. City of Asheville, 278 N.C. 428, 180 S.E. 2d 149 (1971) ; Realty Corp. v. Kalman, 272 N.C. 201, 159 S.E. 2d 193 (1967), the resolution of the facts on the merits of the case is the function of the trial court. Affirmed. Judges Parker and Arnold concur.