Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
J. GUY REVELLE, JR., EXECUTOR OF THE ESTATE OF WILLIAM T.
CHAMBLEE, JR., Petitioner v. NELLIE D. CHAMBLEE, Widow, JAMES B.
CHAMBLEE, And Wife, BETTY ANN D. CHAMBLEE, Respondents
Filed: 18 January 2005
1. Appeal and Error--appealability--interlocutory order--preliminary injunction
Although petitioner's appeal from the trial court's order granting a preliminary injunction
restraining petitioner from proceeding with a sale of the pertinent real property belonging to
decedent's estate is an appeal from an interlocutory order, it is immediately appealable, because:
(1) the merits of the underlying special proceeding between petitioner and respondent were
decided by the entry of respondent's default in 1994; and (2) there can be no final order
confirming a sale of respondent's allotted portion of the pertinent farm until a sale, which the
trial court's order enjoins, is accomplished.
2. Injunction--preliminary injunction--sale of real property--default
The trial court erred by granting a preliminary injunction restraining petitioner from
proceeding with a sale of the pertinent real property belonging to decedent's estate, because: (1)
respondent did not move to set aside her default even though nearly a decade had passed
between its entry and the filing of her motion for a preliminary injunction; (2) there is no current
pending injunctive order in either federal suit filed by respondent, one of which has been
terminated and the other of which is an entirely separate action to which petitioner is not a party;
and (3) the trial court did not have jurisdiction to grant the preliminary injunction since there is
no pending litigation between petitioner and respondent regarding petitioner's authority to sell
the land, and thus, there is no action to which the ancillary remedy against petitioner may attach.
Appeal by petitioner from an order entered 31 July 2003 by
Judge Cy A. Grant in Hertford County Superior Court. Heard in the
Court of Appeals 13 September 2004.
L. Frank Burleson, Jr., for petitioner-appellant.
NCABL Land Loss Prevention Project, by Stephon J. Bowens, for
MARTIN, Chief Judge.
William T. Chamblee died testate in December of 1987. At the
time of his death, he owned a
n undivided one-half interest in land
known as the Cowan farm, located in Hertford County, NorthCarolina. His undivided interest was the primary asset in his
estate. In his will, Mr. Chamblee left this interest to his wife,
the respondent, subject to the debts of his estate.
named executor of decedent's estate in January of 1988.
1988, Mrs. Chamblee and the estate became delinquent in the debt
owed on loans from the
United States Department of Agriculture Farm
Service Administration [FSA]
Alleging that it was in the best interest of the estate to
partition the farm and to sell the estate's interest, petitioner
filed a petition for actual partition and sale of the Cowan farm on
4 January 1994. The following day respondent was served with the
summons and petition by certified mail. She did not file an answer
or otherwise appear, and her default was entered on 16 February
n order to partition the property
was entered on 29
September 1994 and a final amended report of the commissioners
partitioning the property was
entered on 31 May 1996. The
commissioners' report was confirmed by order entered 17 June 1996.
A sale of respondent's allotted portion of the Cowan farm was
ordered, and a resale was ordered for 13 February 1998. Prior to
the resale, respondent brought an action in the United States
District Court for the Eastern District of North Carolina seeking
FSA's decision to suspend consideration of her
application for loan servicing. Upon her motion, the District
Court issued a
enjoining the sale of the
land until that action was resolved on its merits. On 12 October
1999, the federal court action was resolved on the merits by the
entry of summary judgment in respondent's favor ordering theSecretary of the United States Department of Agriculture to direct
the FSA to consider respondent's application for loan servicing.
Petitioner in this proceeding was not a party to the federal
action, and the order granting summary judgment did not include
In October 2000, respondent and others filed a class action
complaint in the United States District Court for the District of
Columbia against the Secretary of the United States Department of
Agriculture alleging discrimination against minority and female
family farmers. The action sought declaratory relief and
compensatory damages, but did not seek injunctive relief. Again,
petitioner in this action was not made a party to the federal
On 14 January 2003, the Clerk of Superior Court of Hertford
County ordered a resale of the property, and the sale was noticed
for 19 February 2003. Respondent sought and obtained a temporary
restraining order, and a preliminary injunction was subsequently
issued restraining petitioner's sale of the property pending the
outcome of the federal discrimination action. P
 Petitioner appeals from an interlocutory order. See
Barnes v. St. Rose Church of Christ
, 160 N.C. App. 590, 591, 586
S.E.2d 548, 549 (2003) (stating that [a] preliminary injunction is
an interlocutory order). There is no immediate right of appeal
from an interlocutory order unless the order affects a substantial
right. N.C. Gen. Stat. §§ 1-277(a), 7A-27(d)(1) (2003). A
substantial right is one which might be lost if the order is notreviewed before the entry of final judgment in the case. Action
Cmty. Television Broadcasting Network, Inc. v. Livesay
, 151 N.C.
App. 125, 129, 564 S.E.2d 566, 569 (2002). Under the unusual
circumstances before us in this case, the merits of the underlying
special proceeding between petitioner and respondent in which
petitioner's right to partition the property and to sell
respondent's interest therein were decided by the entry of
respondent's default in 1994. Moreover, there can be no final
order confirming a sale of respondent's allotted portion of the
Cowan farm until a sale, which the trial court's order enjoins, is
accomplished. Thus, we hold the trial court's order granting a
preliminary injunction to be immediately appealable.
N.C. Gen. Stat. § 1-485 (2), authorizes the issuance of a
When, during the litigation, it appears by
affidavit that a party thereto is doing or
threatens or is about to do, or is procuring
or suffering some act to be done in violation
of the rights of another party to the
litigation respecting the subject of the
action, and tending to render the judgment
N.C. Gen. Stat. § 1-485
(2) (2003). A preliminary injunction is an
not an independent cause of action. Hutchins v.
, 23 N.C. App. 467, 469, 209 S.E.2d 348, 349 (1974). It
merely preserve[s] the status quo pending trial on the merits.
State v. School
, 299 N.C. 351, 357, 261 S.E.2d 908, 913 (1980).
Here, there is no on-going litigation between the parties in
the courts of this State as required by N.C. Gen. Stat. § 1-485(2)
for the issuance of a preliminary injunction. The sale of theproperty was ordered by default judgment in 1994
respondent's failure to answer in the partition action.
When a defendant fails to timely answer a
complaint, an entry of default may be made by
the clerk on motion of the plaintiff. G.S. §
1A-1, Rule 55(a). The effect of an entry of
default is that the defendant against whom
entry of default is made is deemed to have
admitted the allegations in plaintiff's
complaint, G.S. § 1A-1, Rule 8(d), and is
prohibited from defending on the merits of the
Spartan Leasing v. Pollard
, 101 N.C. App. 450, 460, 400 S.E.2d 476,
Once a party's default has been established, it may be
set aside only for good cause shown.
N.C. Gen. Stat. § 1A-1, Rule
55(d) (2003). Respondent did not move to set aside her default
even though nearly a decade
had passed between its entry and the
filing of her motion for a preliminary injunction.
Before the trial court, respondent argued that the partition
and sale of the Cowan farm should be stayed pending FSA's
resolution of her application for debt servicing and she contended
there was a demonstrable likelihood of success on the merits of the
federal discrimination claim, which could result in a settlement
large enough to satisfy the debt which necessitated the partition
and sale of the property. While we find respondent's circumstances
compelling, there is no current pending injunctive order in either
federal suit, one of which has been terminated and the other of
which is an entirely separate action to which petitioner is not a
Because there is no pending litigation between petitioner and
respondent regarding the petitioner's authority to sell the land,
there is no action to which the ancillary remedy against petitionermay attach and the trial court had no jurisdiction to grant the
Therefore, the trial court's order
granting a preliminary injunction restraining petitioner from
proceeding with a sale of the real property belonging to the estate
of William T. Chamblee, Jr. must be reversed.
Judges WYNN and HUNTER concur.
*** Converted from WordPerfect ***