{
  "id": 8525716,
  "name": "WILLIAM I. HOPPER v. CLARENCE E. MASON and wife, ELIZABETH MASON",
  "name_abbreviation": "Hopper v. Mason",
  "decision_date": "1984-11-20",
  "docket_number": "No. 8430SC473",
  "first_page": "448",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T17:51:06.115640+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Braswell and Eagles concur."
    ],
    "parties": [
      "WILLIAM I. HOPPER v. CLARENCE E. MASON and wife, ELIZABETH MASON"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Chief Judge.\nDefendants object to the preliminary injunction on two grounds. Defendants first contend that the injunctive order is not specific in its terms and does not properly describe the act or acts to be enjoined. G.S. 1A-1, Rule 65(d). See, e.g. Gibson v. Cline, 28 N.C. App. 657, 222 S.E. 2d 478 (1976); Resources, Inc. v. Insurance Co., 15 N.C. App. 634, 190 S.E. 2d 729 (1972). They suggest that this required specificity must be contained in the decretal portion of the injunction. Defendants also claim that the trial court erred in setting plaintiffs bond at $200. The record reveals that the trial judge mistakenly assumed that a bond in that amount was required by statute. Defendants contend that the court thereby failed to exercise any discretion whatsoever and that this failure is fatal to the validity of the order. Keith v. Day, 60 N.C. App. 559, 299 S.E. 2d 296 (1983).\nThe merits of defendants\u2019 claim are not before us. As a threshold issue, it is clear that an appeal does not lie from Judge Burroughs\u2019 order granting the preliminary injunction. A \u201cpreliminary injunction\u201d is an interlocutory injunction issued after notice and hearing which restrains a party pending trial on the merits. G.S. 1A-1, Rule 65; Pruitt v. Williams, 288 N.C. 368, 218 S.E. 2d 348 (1975); Setzer v. Annas, 286 N.C. 534, 212 S.E. 2d 154 (1975). G.S. 1-277, in turn, provides that no appeal lies from an interlocutory order unless such ruling or order deprives an appellant of a \u201csubstantial right\u201d which may be lost if appellate review is disallowed. Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980); Pruitt, supra.\nIn the present case, defendants will not be harmed while the injunction is enforced pending trial. At the hearing, Mr. Mason stated that he \u201c[didn\u2019t] see anything wrong with waiting for a reasonable amount of time\u201d before soil removal operations could resume. Defendants have simply been asked to temporarily withdraw their permission for the gratuitous removal of soil by third parties. Cf Ball v. Ball, 55 N.C. App. 98, 284 S.E. 2d 555 (1981) (preliminary injunction requiring appellants to allow a neutral third party to enter their land does not involve a substantial right and is not appealable).\nWe recognize that the language of an injunctive order may be so unclear that a party is, in good faith, unable to follow the trial court\u2019s directives in the absence of clarifying instructions. This factor, however, is not present in the case before us. Defendants are clearly aware of what is expected of them. In the absence of either confusion or harm, real or threatened, these defendants will not be permitted to challenge this interlocutory injunctive order on appeal.\nAppeal dismissed.\nJudges Braswell and Eagles concur.",
        "type": "majority",
        "author": "VAUGHN, Chief Judge."
      }
    ],
    "attorneys": [
      "Herbert L. Hyde, for defendant appellant.",
      "Mayer & Magie, by Roderic G. Magie, for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "WILLIAM I. HOPPER v. CLARENCE E. MASON and wife, ELIZABETH MASON\nNo. 8430SC473\n(Filed 20 November 1984)\nAppeal and Error \u00a7 6.2\u2014 preliminary injunction \u2014 no immediate appeal\nDefendants had no right to appeal an order granting a preliminary injunction when they will not be harmed while the injunction is enforced pending trial on the merits. G.S. 1-277; G.S. 1A-1, Rule 65.\nAPPEAL by defendants from Burroughs, Judge. Order entered 3 April 1984 in Superior Court, MACON County. Heard in the Court of Appeals 24 October 1984.\nPlaintiff sued defendants for permanent injunctive relief and for damages resulting from the excavation of rock and soil from defendants\u2019 land which allegedly formed the lateral support of plaintiffs property. The court imposed a preliminary injunction against defendants pending an adjudication of the merits. Defendants seek to set aside the injunction.\nThe preliminary injunction prohibits the removal of any additional rock or soil from defendants\u2019 property. The injunction consisted of detailed findings of fact and conclusions of law and subsequently stated:\nIt is, therefore, Ordered and Adjudged as follows:\nThat a preliminary injunction is hereby ordered and issued against Defendants, their assigns, heirs and successors, and such preliminary injunction shall be continued until the hearing on the merits or further order of this Court.\nPlaintiff shall post bond in the amount of $200.00.\nAt the hearing Mr. Mason was asked: \u201cDo you have any objection to the status quo being maintained, that is, no removal of dirt for several months until this case can be tried . . .?\u201d In response, he stated, \u201cI don\u2019t see anything wrong with waiting for a reasonable amount of time.\u201d Defendants were in the practice of merely allowing contractors to remove the soil and, since 1980, had neither received nor expected payment in exchange. Defendants nevertheless seek to vacate the injunction on appeal.\nHerbert L. Hyde, for defendant appellant.\nMayer & Magie, by Roderic G. Magie, for plaintiff appellee."
  },
  "file_name": "0448-01",
  "first_page_order": 482,
  "last_page_order": 484
}