Hopper v. Mason

71 N.C. App. 448 | N.C. Ct. App. | 1984

VAUGHN, Chief Judge.

Defendants 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).

The merits of defendants’ claim are not before us. As a threshold issue, it is clear that an appeal does not lie from Judge Burroughs’ order granting the preliminary injunction. A “preliminary injunction” 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 “substantial right” which may be lost if appellate review is disallowed. Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980); Pruitt, supra.

In the present case, defendants will not be harmed while the injunction is enforced pending trial. At the hearing, Mr. Mason stated that he “[didn’t] see anything wrong with waiting for a reasonable amount of time” 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).

We 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’s 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.

Appeal dismissed.

Judges Braswell and Eagles concur.