{ "id": 9249578, "name": "NATIONAL TRAVEL SERVICES, INC. and PLAZA RESORTS, INC. d/b/a RAMADA PLAZA RESORTS ORLANDO/FT. LAUDERDALE VACATIONS, Plaintiffs v. STATE OF NORTH CAROLINA ex rel. ROY A. COOPER, III, Attorney General, Defendant", "name_abbreviation": "National Travel Services, Inc. v. State ex rel. Cooper", "decision_date": "2002-10-01", "docket_number": "No. COA01-1096", "first_page": "289", "last_page": "294", "citations": [ { "type": "official", "cite": "153 N.C. App. 289" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "180 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561294 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0657-01" ] }, { "cite": "178 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "26" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552020 ], "year": 1970, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0163-01" ] }, { "cite": "334 S.W.2d 780", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10168914, 2259023 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/sw2d/334/0780-01", "/tex/160/0586-01" ] }, { "cite": "160 Tex. 586", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2259023 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/tex/160/0586-01" ] }, { "cite": "494 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "128 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11654261 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/128/0321-01" ] }, { "cite": "418 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 80", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527153 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0080-01" ] }, { "cite": "316 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "61-62" }, { "page": "62" }, { "page": "62", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "311 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682052 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "234" }, { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0230-01" ] }, { "cite": "166 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558288 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0189-01" ] }, { "cite": "163 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554027 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0491-01" ] }, { "cite": "206 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "285 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565058 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/285/0434-01" ] }, { "cite": "22 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1942, "pin_cites": [ { "page": "453" }, { "page": "453" } ], "opinion_index": 0 }, { "cite": "222 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629449 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0200-01" ] }, { "cite": "347 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "317 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779714 ], "year": 1986, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0579-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-254", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 1-253", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 } ], "analysis": { "cardinality": 697, "char_count": 12584, "ocr_confidence": 0.765, "pagerank": { "raw": 6.546918191769059e-08, "percentile": 0.4014502389907674 }, "sha256": "d23f56345e5632b8bbc88076e3a901b84d428edae49d12c354e6fdf23150fb44", "simhash": "1:4bad142e75fc66d6", "word_count": 2029 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and BRYANT concur." ], "parties": [ "NATIONAL TRAVEL SERVICES, INC. and PLAZA RESORTS, INC. d/b/a RAMADA PLAZA RESORTS ORLANDO/FT. LAUDERDALE VACATIONS, Plaintiffs v. STATE OF NORTH CAROLINA ex rel. ROY A. COOPER, III, Attorney General, Defendant" ], "opinions": [ { "text": "McCullough, Judge.\nPlaintiffs National Travel Services, Inc. and Plaza Resorts, Inc., d/b/a Ramada Plaza Resorts Orlando/Ft. Lauderdale Vacations, appeal from an order by Judge Cashwell dismissing their complaint for Declaratory Judgment on 30 May 2001.\nPlaintiff National Travel is a Nevada corporation that promotes and sells vacation packages throughout the country. Plaintiff Plaza Resorts is a Florida corporation that also promotes and sells vacation packages throughout the country.\nThe State of North Carolina has had dealings and litigation with plaintiffs prior to this suit. North Carolina, along with fifteen other states and the District of Columbia, filed actions for unfair and deceptive business practices against plaintiffs. All parties settled and consent judgments were filed in the respective states. The North Carolina consent judgment, filed in Wake County Superior Court on 8 February 2000, enjoined plaintiffs from engaging in certain vacation marketing and sales practices used to lure consumers to Florida so they could be solicited to purchase time share properties there. The consent judgment set forth parameters and guidelines for future solicitations and advertisements by plaintiffs. In addition, plaintiffs had to reimburse some previous customers and pay further damages and penalties.\nAs for the present controversy, plaintiffs developed and prepared a new advertisement package which they believed complied with the parameters set by the consent judgment. Rather than proceed with distribution of the package to the public, plaintiffs submitted it to the North Carolina Attorney General\u2019s Office. This was done \u201cto ensure that the Attorney General would not inadvertently bring an enforcement action without thoroughly considering the mailing.\u201d\nAccording to the Attorney General\u2019s Office, it consulted other states while reviewing the package. On 3 November 2000, it sent a detailed letter to plaintiffs outlining ways in which the proposed solicitations did not comply with the consent judgment. The letter, in pertinent part, read:\nIf Ramada Plaza insists on attempting to use solicitations of this type in North Carolina, this office will take whatever action necessary to enjoin their use and seek to have the Court exercise its contempt powers for violations of the Consent Judgment.\nPlaintiffs filed a complaint for declaratory judgment on 1 February 2001. Essentially, plaintiffs\u2019 complaint asked the trial court to determine whether or not the advertisement package complied with the parameters set by the consent judgment. On 13 March 2001, the State made its motion to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted on the grounds that this matter is not one that can be determined in a declaratory judgment under the provisions of N.C. Gen. .Stat. \u00a7 1-253, et seq. On 30 May 2001, the trial court entered an order allowing the State\u2019s motion and dismissing the complaint. Plaintiffs appeal.\nPlaintiffs\u2019 only assignment of error is that the trial court erred by dismissing the complaint pursuant to Rule 12(b)(6) in that the record shows that the complaint states a valid claim for relief under Rule 8 of North Carolina Rules of Civil Procedure and that the trial court had jurisdiction over the subject matter of the case.\nWe hold that there is no actual controversy to invoke the jurisdiction of the trial court, and therefore we need not address the merits of this appeal.\nAs mentioned above, plaintiff brought this action under North Carolina\u2019s Uniform Declaratory Judgment Act, N.C. Gen. Stat. \u00a7\u00a7 1-253 through 1-267 (2001). N.C. Gen. Stat. \u00a7 1-253 provides that our courts \u201cshall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed.\u201d N.C. Gen. Stat. \u00a7 1-253 (2001). N.C. Gen. Stat. \u00a7 1-254 states:\nAny person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof.\nN.C. Gen. Stat. \u00a7 1-253 (2001).\nIn actions involving a request for a declaratory judgment, our Supreme Court \u201chas required that an actual controversy exist both at the time of the filing of the pleading and at the time of hearing.\u201d Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 585, 347 S.E.2d 25, 30 (1986).\nOur Supreme Court has stated that:\nWe have described an actual controversy as a \u201cjurisdictional prerequisite\u201d for a proceeding under the Declaratory Judgment Act, the purpose of which is to \u201cpreserve inviolate the ancient and sound juridic concept that the inherent function of judicial tribunals is to adjudicate genuine controversies between antagonistic litigants with respect to their rights, status or other legal relations.\u201d Adams v. North Carolina Dept. of Natural and Economic Resources, 295 N.C. [683] at 703, 249 S.E.2d [402] at 414 (quoting Lide v. Mears, 231 N.C. [111] at 118, 56 S.E.2d [404] at 409 [(1949)]). In Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450 (1942) this Court acknowledged that, although the actual controversy rule may be difficult to apply in some cases and the definition of a \u201ccontroversy\u201d must depend on the facts of each case, \u201c[a] mere difference of opinion between the parties\u201d does not constitute a controversy within the meaning of the Declaratory Judgment Act. Id. at 205, 22 S.E.2d at 453.\nAlthough it is not necessary that one party have an actual right of action against another to satisfy the jurisdictional requirement of an actual controversy, it is necessary that litigation appear unavoidable. North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 206 S.E.2d 178 [1974]. Mere apprehension or the mere threat of an action or a suit is not enough. Newman Machine Co. v. Newman, 2 N.C. App. 491, 163 S.E.2d 279 (1968), rev\u2019d on other grounds, 275 N.C. 189, 166 S.E.2d 63 (1969). Thus the Declaratory Judgment Act does not \u201crequire the court to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise.\u201d Town of Tryon v. Power Co., 222 N.C. at 204, 22 S.E.2d at 453 (1942).\nGaston Bd. of Realtors, Inc. v. Harrison, 311 N.C. 230, 234, 316 S.E.2d 59, 61-62 (1984).\nPlaintiffs, in their briefs and at oral argument, stress the letter from the Attorney General\u2019s Office and argue that it shows litigation is unavoidable, and thus an actual controversy exists. This argument fails. Our courts have historically required more than anticipation of future action. See Wendell v. Long, 107 N.C. App. 80, 418 S.E.2d 825 (1992); Town of Pine Knoll Shores v. Carolina Water Service, Inc., 128 N.C. App. 321, 494 S.E.2d 618 (1998). In an analogous case, a party sent a letter to the opposing side stating that he would \u201c \u2018take such actions as are necessary to protect myself . . . from harm by the actions of individuals involved in this matter.\u2019 \u201d Gaston Bd. of Realtors, 311 N.C. at 235, 316 S.E.2d at 62. The Supreme Court held that \u201clitigation between the parties does not appear unavoidable and that the controversy between them is not therefore actual, genuine and existing.\u201d Id. The Gaston Court further noted that\n[i]t is true that the defendant in seeking a rehearing before the Board stated in a letter that he would take whatever actions necessary to protect himself. That statement does not in and of itself point to unavoidable litigation and the existence of an actual controversy. Although the defendant did not specify what action he intended to take to protect his interests, he never mentioned filing a lawsuit. Even if the defendant had directly threatened to sue the Board, a mere threat to sue is not enough to establish an actual controversy.\nId. at 235-36, 316 S.E.2d at 62 (emphasis added).\nPlaintiffs\u2019 complaint is rife with words such as \u201ccould,\u201d \u201cmay,\u201d and \u201cwould\u201d in reference to the advertisement package it has yet to send out and the legal action which the Attorney General\u2019s Office has threatened but not yet brought to bear. Our case law mandates the affirmance of the trial court\u2019s order of dismissal.\nIn addition, we note that granting jurisdiction and allowing a declaratory judgment to be rendered in this case would arguably not settle anything between the parties. We cite with approval the Texas case of California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960). In that case, the plaintiff sought a declaratory judgment as to whether or not a bottle in which it planned to market lemon and lime juice would violate the terms of a permanent injunction which defendant had obtained in an earlier suit in which plaintiff had been enjoined from marketing juice in a bottle resembling that used by the defendant. The Texas court held that the adjudication sought was but an advisory opinion and therefore not a proper subject for declaratory judgment action, and noted that:\nA declaratory judgment rendered herein would not settle the controversy between the parties. The permanent injunction ... is still outstanding. A violation of that judgment is subject to be punished for contempt in a proper proceeding. It cannot be determined whether or not a proposed bottle will be violative of the injunction... until [plaintiff] seeks to market its product in a bottle in the same market with [defendant]. Only in this way can it be determined whether the [plaintiff\u2019s] bottle is of the size and appearance that it misleads and deceives the buying public into believing that it is securing [defendant\u2019s] products rather than [plaintiff\u2019s] products.\nWe agree with the Court of Civil Appeals that this proceeding is one in which an advisory opinion is sought. Should we decide that the bottle proposed to be used by [plaintiff] did violate the injunction, we would settle nothing. [Plaintiff] could continue indefinitely to propose bottles of different sizes, shapes and colors on which it could seek an equally indefinite number of advisory opinions as to whether such bottles violate the injunction. Such procedure would accomplish nothing. [Plaintiff] should propose a bottle which it thinks does not violate the injunction, use it and litigate the material issue on a contempt hearing.\nId. at 591, 334 S.W.2d at 781.\n\u201cThe courts of this state do not issue anticipatory judgments resolving controversies that have not arisen.\u201d Bland v. City of Wilmington, 10 N.C. App. 163, 164, 178 S.E.2d 25, 26 (1970), rev\u2019d on other grounds, 278 N.C. 657, 180 S.E.2d 813 (1971). While plaintiffs are seemingly legitimately seeking to comply with the consent judgment they are bound by, \u201c[t]he Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.\u201d Lide v. Mears, 231 N.C. at 117, 56 S.E.2d at 409.\nAffirmed.\nJudges WALKER and BRYANT concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Robin K. Vinson; Greenspoon Marder Hirschfeld Rafkin Ross & Berger by Gerald Greenspoon, Esq., Richard W. Epstein, Esq., and Robby H. Bimbaum, Esq., for plaintiff appellants.", "Attorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for defendant appellee." ], "corrections": "", "head_matter": "NATIONAL TRAVEL SERVICES, INC. and PLAZA RESORTS, INC. d/b/a RAMADA PLAZA RESORTS ORLANDO/FT. LAUDERDALE VACATIONS, Plaintiffs v. STATE OF NORTH CAROLINA ex rel. ROY A. COOPER, III, Attorney General, Defendant\nNo. COA01-1096\n(Filed 1 October 2002)\nDeclaratory Judgments\u2014 letter threatening legal action \u2014 no actual controversy\nThe trial court did not err by dismissing under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) plaintiffs\u2019 complaint seeking a declaratory judgment to determine whether their advertising package complied with the parameters set by a consent judgment, because: (1) there is no actual controversy to invoke the jurisdiction of the trial court, and courts do not issue anticipatory judgments resolving controversies that have not arisen; and (2) North Carolina courts have historically required more than anticipation of future action based on a letter threatening legal action.\nAppeal by plaintiffs from order entered 1 June 2001 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 15 May 2002.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Robin K. Vinson; Greenspoon Marder Hirschfeld Rafkin Ross & Berger by Gerald Greenspoon, Esq., Richard W. Epstein, Esq., and Robby H. Bimbaum, Esq., for plaintiff appellants.\nAttorney General Roy Cooper, by Assistant Attorney General Harriet F. Worley, for defendant appellee." }, "file_name": "0289-01", "first_page_order": 319, "last_page_order": 324 }