{
  "id": 8522736,
  "name": "TOWN OF KNIGHTDALE, Plaintiff v. PAUL ALTON VAUGHN, Defendant",
  "name_abbreviation": "Town of Knightdale v. Vaughn",
  "decision_date": "1989-09-19",
  "docket_number": "No. 8810SC982",
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  "last_updated": "2023-07-14T18:25:49.576177+00:00",
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  "casebody": {
    "judges": [
      "Judges Phillips and Parker concur."
    ],
    "parties": [
      "TOWN OF KNIGHTDALE, Plaintiff v. PAUL ALTON VAUGHN, Defendant"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nDefendant appeals the trial court\u2019s issuance of a preliminary injunction enjoining defendant from operating a used car lot in violation of plaintiff\u2019s zoning ordinance. We hold that plaintiff failed to make the required showing of irreparable harm under N.C. Gen. Stat. \u00a7 1A-1, Rule 65. We therefore vacate the trial court\u2019s order.\nPlaintiff instituted an action on 28 April 1988 alleging that defendant was operating a used car lot in violation of plaintiff\u2019s zoning ordinance. At the hearing on plaintiff\u2019s motion for preliminary injunction, the only evidence before the trial court was plaintiff\u2019s verified complaint. The complaint alleged that plaintiff had adopted a set of zoning ordinances in order to \u201caccomplish a coordinated, balanced, and harmonious development of the land within the zoning jurisdiction\u201d; that plaintiff \u201cis informed and believes and therefore alleges\u201d that defendant was the lessee of certain property within a district zoned as \u201cHighway Commercial\u201d and was using the property as a used car lot in violation of plaintiff\u2019s zoning ordinance; that plaintiff had no adequate remedy at law and would \u201csuffer irreparable harm, damage, and injury unless the conduct of the Defendant above complained of is enjoined\u201d; and that the irreparable harm \u201cwill continue during the litigation of this issue.\u201d\nBased solely on plaintiff\u2019s complaint, the trial court found, inter alia, that defendant was using the property as a used car sales lot in violation of plaintiff\u2019s zoning ordinances, and that plaintiff had no adequate remedy at law and was suffering \u201creal and immediate irreparable injury ... in that [defendant\u2019s] conduct represents a continuous impediment to the Plaintiff in carrying out the goals and purposes [of its zoning ordinances].\u201d The court concluded that plaintiff was likely to prevail on the merits and would suffer irreparable harm if defendant\u2019s conduct was not enjoined. Defendant contends on appeal that the trial court\u2019s preliminary injunction was in error because plaintiff did not prove irreparable harm. We agree.\nInitially, we hold that, although defendant\u2019s appeal is from an interlocutory order, defendant would be deprived of a substantial right \u2014 the right to operate his business \u2014 absent a review prior to determination on the merits. N.C. Gen. Stat. \u00a7\u00a7 1-277, 7A-27; Masterclean of N.C., Inc. v. Guy, 82 N.C. App. 45, 345 S.E.2d 692 (1986).\nBefore a preliminary injunction may be issued, a plaintiff must show (1) likelihood of success on the merits of its case and (2) likelihood of sustaining irreparable harm unless the injunction is issued, or if, in the court\u2019s opinion, issuance is necessary for the protection of the plaintiff\u2019s rights during the course of litigation. Ridge Community Investor\u2019s, Inc. v. Berry, 293 N.C. 688, 701, 239 S.E.2d 566, 574 (1977). The applicant for a preliminary injunction has the burden of proving the probability of substantial injury to the applicant if the activity of which it complains continues to the final determination of the action. Board of Provincial Elders v. Jones, 273 N.C. 174, 182, 159 S.E.2d 545, 551 (1968). It is not enough that a plaintiff merely allege irreparable injury. Rather, \u201c[t]he applicant is required to set out with particularity facts supporting such statements so the court can decide for itself if irreparable injury will occur.\u201d United Tel. Co. of Carolina, Inc. v. Universal Plastics, Inc., 287 N.C. 232, 236, 214 S.E.2d 49, 52 (1975). We therefore hold that plaintiff\u2019s conclusory allegation of irreparable harm was insufficient to allow the trial court to weigh the equities and thereby determine in its sound discretion whether an interlocutory injunction should be issued or refused. Id.\nAlthough the General Assembly has given to municipalities the power to enforce ordinances through injunctive relief, a municipality must comply with the requirements of Rule 65 of the North Carolina Rules of Civil Procedure, which requires a clear showing of specific facts of irreparable injury. See N.C. Gen. Stat. \u00a7 160A-175(e) (1988) and N.C. Gen. Stat. \u00a7 1A-1, Rule 65(b) (1988). Furthermore, the availability of injunctive relief as the appropriate ultimate remedy is not prima facie evidence establishing a municipality\u2019s right to injunctive relief prior to the resolution of a matter on its merits.\nThe preliminary injunction must therefore be\nVacated.\nJudges Phillips and Parker concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Kirk, Gay, Kirk, Gwynn & Howell, by Joseph T. Howell and Donna S. Stroud, for plaintiff appellee.",
      "Burns, Day & Presnell, P.A., by Lacy M. Presnell, III, and Daniel C. Higgins, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "TOWN OF KNIGHTDALE, Plaintiff v. PAUL ALTON VAUGHN, Defendant\nNo. 8810SC982\n(Filed 19 September 1989)\nInjunctions \u00a7 13.2\u2014 zoning violation \u2014 preliminary injunction \u2014 allegation of irreparable harm \u2014insufficient\nA preliminary injunction enjoining defendant from operating a used car lot in violation of plaintiff\u2019s zoning ordinance was vacated because plaintiffs conclusory affidavit of irreparable harm was insufficient to allow the trial court to weigh the equities and thereby determine in its sound discretion whether an interlocutory injunction should be issued or denied. N.C.G.S. \u00a7 160A-175(e). N.C.G.S. \u00a7 1A-1, Rule 65.\nAPPEAL by defendant from Order of Judge Robert L. Farmer entered 24 May 1988 in WAKE County Superior Court. Heard in the Court of Appeals 12 April 1989.\nKirk, Gay, Kirk, Gwynn & Howell, by Joseph T. Howell and Donna S. Stroud, for plaintiff appellee.\nBurns, Day & Presnell, P.A., by Lacy M. Presnell, III, and Daniel C. Higgins, for defendant appellant."
  },
  "file_name": "0649-01",
  "first_page_order": 677,
  "last_page_order": 680
}