No. 7327SC380 | N.C. Ct. App. | Aug 22, 1973
In reviewing on appeal an order granting or continuing a preliminary injunction in effect pending a final determination in a case, the presumption is indulged that the judgment of the trial court is correct and the burden is upon the appellants to assign and show error. Register v. Griffin, 6 N.C. App. 572" court="N.C. Ct. App." date_filed="1969-11-19" href="https://app.midpage.ai/document/register-v-griffin-1406880?utm_source=webapp" opinion_id="1406880">6 N.C. App. 572, 170 S.E. 2d 520 (1969).
To justify a continuation of a preliminary injunction until the final hearing, ordinarily it must appear that there is probable cause the plaintiff will be able to establish his asserted right at the final hearing. Cablevision v. Winston-Salem, 3 N.C. App. 252" court="N.C. Ct. App." date_filed="1968-12-18" href="https://app.midpage.ai/document/cablevision-of-winston-salem-inc-v-city-of-winston-salem-1246830?utm_source=webapp" opinion_id="1246830">3 N.C. App. 252, 164 S.E. 2d 737 (1968).
Defendant contends, among other things, that Judge McLean erred in concluding as a matter of law:
“ [1] That the pacing [sic] of said restrictions on said land prior to the sale thereof is an arbitrary and capricious act of the defendants and is unlawful.
[2] That subjecting said land to said restrictions restricts and depresses or may depress its value by reducing the number of purchasers and places members of the medical profession in a favored position.
[3] That said restrictions are null and void and may not be placed on said land prior to its sale by the corporate defendant.”
The “Declaration of Restrictions” ratified and approved by the Commissioners on 19 January 1973, in pertinent part provides:
*235 “Use. Each lot and the improvements thereon may be utilized only by the persons enumerated in this section, and then only for the practice of his profession:
(a) Medical doctors . . .
(b) Dentists . . .
(c) Optometrists ...
(d) Osteopaths . . .
(e) Podiatrists ...”
Only a “medical office building,” defined as “structure . . . ■occupied solely for the purpose of rendering medical treatment in compliance with the restrictions herein relating to use,” and •approved accessory structures may be built on each lot.
Although G.S. 153-9 (14) empowers the boards of commissioners of the several counties to sell or lease real property belonging to the county, in so doing, they are acting as fiduciaries or trustees for the taxpayers and citizens of the county and must exercise their best judgment and skill, as reasonable men, to obtain the best price for the land. G.S. 153-2 (4); Hughes v. Commissioners, 107 N.C. 598" court="N.C." date_filed="1890-09-05" href="https://app.midpage.ai/document/hughes-v-commissioners-of-craven-county-3673667?utm_source=webapp" opinion_id="3673667">107 N.C. 598, 12 S.E. 465 (1890); Gooch v. Gregory, 65 N.C. 142" court="N.C." date_filed="1871-01-05" href="https://app.midpage.ai/document/gooch-v--gregory-3656101?utm_source=webapp" opinion_id="3656101">65 N.C. 142 (1871); Malcom v. Webb, 211 Ga. 449, 86 S.E. 2d 489 (1955).
In his complaint the plaintiff alleges in substance, among other things, that the action of the defendants in placing the restrictions on sixteen of the seventeen lots was arbitrary, capricious, and unlawful, and that the restrictions put members of the medical and dental professions in a favored position, limited competitive bidding, and thereby tended to depress the selling price of the property. Whether the restrictions complained of do tend to reduce the market value of the lots is a fact which can be determined only after a final hearing of the case where both parties will have had an opportunity to fully develop their respective contentions.
While Judge McLean was premature in concluding as a matter of law that the action of the defendants in placing the restrictions upon the subdivided lots was “arbitrary and capricious” and “unlawful” and that the restrictions were “null and void,” it is our opinion the record establishes probable cause to believe that the plaintiff might prevail on his asserted claim at
Since the preliminary injunction will be continued in effect pending a final hearing of the whole case, it is not necessary that we discuss the further contentions of the parties. The order appealed from is
Affirmed.