Asheville Mall, Inc. v. Sam Wyche Sports World, Inc., 8928SC353

• Decision Date: 16 January 1990
• Docket Number: No. 8928SC353,8928SC353
• Citation: 97 N.C.App. 133,387 S.E.2d 70
• Court: North Carolina Court of Appeals
• Parties: ASHEVILLE MALL, INC. v. SAM WYCHE SPORTS WORLD, INC.

Page 70

387 S.E.2d 70

97 N.C.App. 133

ASHEVILLE MALL, INC. v.SAM WYCHE SPORTS WORLD, INC.

No. 8928SC353.

Court of Appeals of North Carolina.

Jan. 16, 1990.

Riddle, Kelly & Cagle, P.A. by E. Glenn Kelly, Asheville, for plaintiff-appellant.

Van Winkle, Buck, Wall, Starnes & Davis, P.A. by Michelle Rippon and Allan R. Tarleton, Asheville, for defendant-appellee.

GREENE, Judge.

The plaintiff sought an injunction restraining defendant from further violation of the terms of a lease.The trial court granted defendant's motion for summary judgment.

The trial court's findings of fact, which are not challenged on appeal, are as follows:

1.On April 1, 1987Plaintiff and Defendant entered into an Indenture of Lease whereby Plaintiff leased to Defendant a certain store located in the Asheville Mall Shopping Center in Asheville, North Carolina (hereinafter "the Mall").

2.By the terms of the lease Defendant is to remain open for business during all such days (including Sundays), nights and hours when one or more of the Sears or Belks department stores adjoining the Mall are open for business.

3.The Sears and Belks department stores in the Mall were open for business during the hours of 1:00 p.m. to 6:00 p.m. on July 30, 1988 and from 10:00 a.m. to 9:00 a.m. [sic] on August 1, 2 and 3.

4.Defendant's store at the Mall was closed between the hours of 5:00 p.m. on July 31 and 5:00 p.m. on August 3.

The trial court concluded as follows:

1.Defendant breached the terms of its lease with the Plaintiff on July 31, August 1, 2, and 3.

2.Notwithstanding the Defendant's breach of the lease, Plaintiff is not entitled to injunctive releaf [sic].

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The issue presented is whether injunctive relief is appropriate in light of a single breach of a lease agreement.

The plaintiff argues that the trial court erred in granting the defendant's motion for summary judgment since defendant breached the lease, and injunctive relief is the only meaningful relief available.The plaintiff cites cases from other jurisdictions for the proposition that the plaintiff should be granted injunctive relief rather than forced to seek monetary damages for the breach since it is nearly impossible to calculate the monetary damages sustained by plaintiff by reason of defendant's closing his business for four days.SeeDover Shopping Center Inc. v. Cushman's Sons, Inc., 63 N.J.Super. 384, 164 A.2d 785(1960);Lincoln Tower Corp. v. Richter's Jewelry Co., 152 Fla. 542, 12 So.2d 452(1943);Jerrico Inc. v. Washington Nat. Ins. Co., 400 So.2d 1316(Fla.Dist.Ct.App.1981), rev. denied, 411 So.2d 382(1981).

However, we note that in those cases the breach of the lease was ongoing or repeated, but here we have evidence only of one isolated breach.We reject plaintiff's argument that defendant's failure to keep its store open for business from July 31 to August 3, 1988 equals four separate and distinct breaches.Rather, the closing is more in the nature of one isolated incident.

Injunctive relief is not available unless irreparable injury is proven and damages are not reasonably obtainable, and it is proper only where the injury is "of such continuous and frequent recurrence that no reasonable redress can be had in a court of law."Barrier v. Troutman, 231 N.C. 47, 50, 55 S.E.2d 923, 925(1949).Furthermore, "acts and practices will not, as a rule, furnish a basis for injunctive relief when they have been discontinued or abandoned before institution of the suit to restrain them, ... particularly where there is nothing to indicate a probability that they will be resumed...."42 Am.Jur.2dInjunctions§ 5, at 731(1969).The danger sought to be enjoined must be real and immediate.SeeDorsett v. Group Development Corp., 2 N.C.App. 120, 124-25, 162 S.E.2d 653, 656(1968)(action to restrain an anticipated nuisance)."[T]here must be at least a reasonable probability that the injury will be done if no...