United Tel. Co. v. Universal Plastics, Inc.

214 S.E.2d 49 (1975)

287 N.C. 232

UNITED TELEPHONE COMPANY OF the CAROLINAS, INC. v. UNIVERSAL PLASTICS, INC.

No. 20.

Supreme Court of North Carolina.

May 6, 1975.

*51 William D. Sabiston, Jr. and Hurley E. Thompson, Jr. by William D. Sabiston, Jr., Carthage, for plaintiff appellee.

Smith, Moore, Smith, Schell & Hunter by Bynum M. Hunter and Benjamin F. Davis, Jr., Greensboro, for defendant appellant.

MOORE, Justice.

Defendant appeals from the order granting the preliminary injunction pending trial on the merits. We do not decide here the ultimate issues raised by the pleadings. The only question for review is whether plaintiff made a sufficient showing to justify the court's order granting a preliminary injunction.

A prohibitory preliminary injunction is granted only when irreparable injury is real and immediate. Its purpose is to preserve the status quo of the subject matter involved until a trial can be had on the merits. 4 Strong, N.C. Index 2d, Injunctions § 1, p. 388 (1968); In re Reassignment of Albright, 278 N.C. 664, 180 S.E.2d 798 (1971); Hall v. Morganton, 268 N.C. 599, 151 S.E.2d 201 (1966); Starbuck v. Havelock, 252 N.C. 176, 113 S.E.2d 278 (1960). The issuing court, after weighing the equities and the advantages and disadvantages to the parties, determines in its sound discretion whether an interlocutory injunction should be granted or refused. The court cannot go further and determine the final rights of the parties which must be reserved for the final trial of the action. 2 McIntosh, North Carolina Practice and Procedure 2d, § 2219 (1956); In re Reassignment of Albright, supra; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309 (1924). "In passing on the validity of an interlocutory injunction the appellate court is not bound by the findings of fact made by the issuing court, but may review the evidence and make its own findings. . . ." In re Reassignment of Albright, supra. Accord, Western Conference v. Creech and *52 Teasley v. Creech and Western Conference v. Miles, 256 N.C. 128, 123 S.E.2d 619 (1962); Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319 (1953). As stated by Justice Lake, writing for the Court in Board of Elders v. Jones, 273 N.C. 174, 159 S.E.2d 545 (1968):

"The burden is upon the applicant for an interlocutory injunction to prove a probability of substantial injury to the applicant from the continuance of the activity of which it complains to the final determination of the action. [Citations omitted.] . . . An injunction pendente lite should not be granted where there is a serious question as to the right of the defendant to engage in the activity and to forbid the defendant to do so, pending the final determination of the matter, would cause the defendant greater damage than the plaintiff would sustain from the continuance of the activity while the litigation is pending. Huskins v. Hospital, 238 N.C. 357, 78 S.E.2d 116 (1953)."

The record in the present case fails to disclose evidence of any actual damage to plaintiff. Plaintiff's only witness James R. Thomas, its Division Commercial Manager and Assistant Secretary, testified at the hearing that he had no detailed information that the distribution of defendant's cover had in any way affected the plaintiff's income received from advertisement in the yellow pages. Plaintiff offered no evidence that it has lost a single subscriber to its yellow pages by reason of defendant's activities or that a single advertiser on defendant's cover had failed to advertise in plaintiff's yellow pages. The record discloses that plaintiff's directory had 111 yellow pages for advertising and only 99 white pages for the directory proper and that defendant's cover had only eight advertisers, many if not all of whom also advertised in plaintiff's yellow pages. Thus, plaintiff's evidence fails to support the broad allegations of irreparable injury contained in its complaint. Similarly, while alleging irreparable injury, plaintiff's verified complaint fails to allege facts in support of its allegations.

An applicant for a preliminary injunction must do more than merely allege that irreparable injury will occur. The applicant is required to set out with particularity facts supporting such statements so the court can decide for itself if irreparable injury will occur. ". . . `It is not enough for the plaintiff to allege simply that the commission or continuance of the act will cause him injury, or serious injury, or irreparable injury; but he should allege the facts, from which the court may determine whether or not such injury will result.' [Citations omitted.]" Pharr v. Garibaldi, 252 N.C. 803, 815, 115 S.E.2d 18, 27 (1960).

Defendant, by affidavit and by its verified answer, has set out in detail its damage. The preliminary injunction issued in this action has prevented defendant's agent from soliciting orders in this area, has discredited the good name of defendant's business, has discouraged potential customers, and, in fact, has completely stopped defendant's business in the area served by plaintiff.

Since plaintiff has failed to show a reasonable probability of substantial injury through the continuance of defendant's business until the final hearing, we hold that it was error to grant the preliminary injunction and it is hereby vacated.

Upon this appeal it is not necessary for us to determine whether defendant has the right under the quoted tariff to solicit advertising and to manufacture and distribute the plastic covers with advertising thereon to plaintiff's subscribers, and we express no opinion upon that question. This and all other issues raised by the pleadings will be determined at the final hearing of the cause.

Our ruling dissolving the preliminary injunction will have no bearing whatever on the rights of the parties when the action is tried on its merits. Huskins v. Hospital, supra.

*53 For the reasons stated, the order of the trial court granting the preliminary injunction is reversed and the case is remanded to the Superior Court of Moore County for trial on its merits.

Reversed.