United Tel. Co. of Carolinas, Inc. v. Universal Plastics, Inc., 20

• Decision Date: 06 May 1975
• Docket Number: No. 20,20
• Citation: 214 S.E.2d 49,287 N.C. 232
• Court: North Carolina Supreme Court
• Parties: UNITED TELEPHONE COMPANY OF the CAROLINAS, INC. v. UNIVERSAL PLASTICS, INC.

Page 49

214 S.E.2d 49

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.

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 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 sctivity 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...