15 N.C. App. 492 | N.C. Ct. App. | 1972
The first assignment of error brought forward on this appeal by defendant-appellants is that the trial judge erred in not granting their motion for summary judgment. The defend
The thrust of defendants’ argument is that the plaintiff has failed to show any legal or equitable grounds for issuance of an order enjoining defendants’ solicitations, as the defendants had a right to solicit funds in Johnston County because they were properly licensed by the State, pursuant to State law, to solicit funds anywhere in the State. They further argue that the plaintiff, through its complaint and affidavits, failed to show any wrongdoing on the part of the defendants and failed to show any material misrepresentations by the defendants.
The trial judge found “that there is a genuine issue of fact in equity raised by the pleadings, and that the motion of the defendants for summary judgment should be denied”; we do not agree. We hold, without considering the meritorious services rendered by each of these non-profit, charitable organizations, that the materials presented in support of defendants’ motion for summary judgment showed that plaintiff suffered no compensable injury or damage under principles of law or equity. We note that the trial judge found “there is a genuine issue of fact.” Whether there is a genuine issue of fact is not the question. The question is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact. G.S. 1A-1, Rule 56(c).
The allegations of plaintiff and the accompanying affidavits show that plaintiff has done a good job of raising funds in Johnston County and has performed faithful service to the people of Johnston County in the past; that during the years prior to 1969 the plaintiff cooperated with the defendant corporation in its program; that the plaintiff was opposed to the reorganization of the State Association into districts which took place in the spring of 1967; that the plaintiff withdrew its affiliation from the State Association in 1969; that the corporate defendant through its affiliate, the Tar River Association, conducted mail campaigns to Johnston County residents and received considerable funds in the 1969 and 1970 solicitation campaigns; and that defendants were in the process of mailing into Johnston County appeals for funds in the fall of
The plaintiff’s complaint further alleged that the defendants’ solicitations were misrepresenting to the residents of Johnston County that they were the “local” Johnston County association because their mailed letters list “Johnston County” on the letterhead and had imprinted thereon a map of Johnston County which constituted a willful misrepresentation by defendants with the purpose of hurting the fund-raising efforts of the plaintiff. An examination of the record discloses that this is a mere assertion and that even the affidavits tendered by plaintiff fail to show misrepresentation on defendants’ part, much less a willful misrepresentation. On the other hand, the defendants offered the affidavit of C. Scott Venable, Executive Director of the North Carolina Tuberculosis and Respiratory Disease Association, Inc., which in pertinent part states as follows:
“That it is not true that the Tar River Association misrepresents itself as the Johnston County Association either in its appeal for funds or in other written materials. The Tar River Association lists Johnston County on its letterhead along with nine other counties in its area and uses a map to show that Johnston County along with nine other counties comprise the area of the Tar River Association.”
Although some confusion may have resulted in the solicitations of the two organizations soliciting funds in Johnston County, there is no showing of misrepresentation. Consequently, this mere assertion of misrepresentation, without support in any other form, does not establish a genuine issue as to any material fact or a legal basis for enjoining defendants.
The further allegations of plaintiff’s complaint, that defendants had no active local supporters in Johnston County; that neither of the defendants had made any accounting to the people of Johnston County; and that corporate defendant had not expended any funds raised by it within Johnston County or to the benefit of Johnston County residents, were not sufficient to establish a genuine issue as to any material fact or a sufficient basis to deny the defendants their right to solicit
Finally, the plaintiff’s allegation, that the defendants’ solicitations had hurt and injured the plaintiff’s efforts in soliciting funds in Johnston County, was not sufficient to establish a genuine issue as to any material fact or a basis for restraining the defendants. Even though plaintiff claimed its solicitations were not as successful as it would have desired, it failed to allege and disclose any unlawful activities on the part of the defendants. On the contrary, the record shows that the defendants were acting in accord with law, soliciting funds for their charitable purposes, and expending those funds for the benefit of mankind.
Although competition in this charitable field may not be desirable, we find that the complaint and the plaintiff’s affidavits fail to disclose a genuine issue as to any material fact. For the above reasons, the defendants’ motion for summary judgment should have been granted.
The question has not been argued by appellee, and we do not decide in this case, whether an appeal lies from a denial of a motion for summary judgment or from the issuance of a preliminary injunction.
Reversed.
