Wendell v. Long

418 S.E.2d 825, 107 N.C. App. 80, 1992 N.C. App. LEXIS 637

Opinions

HEDRICK, Chief Judge.

Although neither party raises the question in their briefs, we ex mero motu consider whether plaintiffs have alleged in their complaint an actual justiciable controversy sufficient to give the superior court jurisdiction to determine this matter pursuant to the Declaratory Judgment Act.

The authority of our court to render declaratory judgments is set forth in G.S. 1-253 which provides in part:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed ....

Although not expressly provided by statute, courts have jurisdiction to render declaratory judgments only when the complaint demonstrates the existence of an actual controversy. N.C. Farm Bureau Mut. Ins. Co. v. Warren, 89 N.C. App. 148, 365 S.E.2d 216, disc. review denied, 322 N.C. 481, 370 S.E.2d 226 (1988); Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E.2d 25 (1986); Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 316 S.E.2d 59 (1984). To satisfy the jurisdictional requirement of an actual controversy, it must be shown in the complaint that litigation ap pears unavoidable. N.C. Farm Bureau, supra; Gaston Bd. of Realtors, supra. Mere apprehension or the mere threat of an action or suit is not enough. Gaston Bd. of Realtors, supra.

In the present case, plaintiffs’ complaint affirmatively demonstrates that there is no actual controversy existing between the parties. In paragraph 9 of the complaint, plaintiffs, allege that a “proposed house site” is noted on the Plat Book description of defendants’ property. They further allege in paragraph 16, that defendants, “intend to violate” the restrictive covenants applicable to their property. Plaintiffs do not allege that defendants have acted in violation of these covenants, but that they anticipate some future action to be taken by defendants which would result in a violation. “The courts of this state do not issue anticipatory judgments resolving controversies that have not arisen.” Bland v. City of Wilmington, 10 N.C. App. 163, 164, 178 S.E.2d 25, 26 (1970), rev’d on other grounds, 278 N.C. 657, 180 S.E.2d 813 (1971).

Therefore, the superior court did not have jurisdiction to render a declaratory judgment in the present case. The judgment of the trial court is vacated, and the matter is remanded for entry of an order dismissing the action.

Vacated and remanded.

Judge ORR concurs. Judge Walker dissents.