15 N.C.App. 275, 189 S.E.2d 802
STATE of North Carolina ex rel. Robert
MORGAN, Attorney General
v.
DARE TO BE GREAT, INC., et al.
No. 7210SC517.
Court of Appeals of North Carolina.
July 12, 1972.
VAUGHN, Judge.
[1] Defendants contend that the thirteen
affidavits were not admissible into
evidence at the show cause hearing. This
contention is based on the following
wording of G.S. s 1--485(1): *276 'When
it appears by the complaint that the
plaintiff is entitled to the relief demanded,
. . .' We do not agree with defendants'
contention that, if proceeding under G.S.
s 1--485(1) for a preliminary injunction, the
court is limited to what appears in the
complaint. Our courts have historically
heard motions for preliminary injunction on
affidavits. In Huggins v. Wake County
Board of Education, 272 N.C. 33, 157
S.E.2d 703 (1967) the application for a
temporary injunction was heard upon
affidavits. In State of North Carolina Milk
Commission v. National Food Stores, 270
N.C. 323, 154 S.E.2d 548 (1967) at the
show cause hearing, the matter was
heard upon affidavits. For other cases
where the same procedure was followed
see: Board of Provincial Elders v. Jones,
273 N.C. 174, 159 S.E.2d 545 (1968);
Schloss v. Jamison, 258 N.C. 271, 128
S.E.2d 590 (1962); Western Conference
of Original Free Will Baptists v. Creech
and Teasley v. Creech and Miles, 256
N.C. 128, 123 S.E.2d 619 (1962); Causby
v. High Penn Oil Co., 244 N.C. 235, 93
S.E.2d 79 (1956); Collins v. Freeland, 12
N.C.App. 560, 183 S.E.2d 831 (1971).
Rule 65 of the Rules of Civil Procedure
recognizes that preliminary injunctions are
sought by motion. G.S. s 1A--1, Rule
7(b)(1) provides that an application to the
court for an order shall be by motion, and
G.S. s 1A--1, Rule 43(e) provides: 'When
a motion is based on facts not appearing
of record the court may hear the matter on
affidavits presented by the respective
parties, but the court **804 may direct that
the matter be heard wholly or partly on
oral testimony or depositions.'
Accordingly, both before and after the
adoption of the new rules of civil
procedure, it was and is proper for the
court to consider evidence by affidavits in
show cause hearings for injunctions.
Defendant's contention that G.S. s 1--485(1) prohibits this is overruled.
[2] Defendants also contend that the
court erred in concluding as a matter of
law that the State of North Carolina,
through economic loss to its individual
citizens and residents, may suffer
immediate and irreparable injury unless
the defendants are enjoined during the
pendency of this action. Defendants
contend that the conclusion is not
supported by the findings of fact and that
any person damaged will have an
adequate remedy at law. We do not
agree with this contention. G.S. s 14--291.2 prohibits pyramid and chain
schemes such as alleged in the instant
case. Section (c) of that statute provides
for injunctive relief from the continuation
of such schemes. The pleadings and
affidavits tend to show an effort to
continue such schemes *277 within the
State. G.S. s 25A--37 forbids referral
sales schemes. G.S. s 25A--44(4) makes
the knowing and willful violation of any
provision of Chapter 25A an unfair trade
practice under G.S. s 75--1.1. G.S. s 75--14 provides for permanent or temporary
injunctions and temporary restraining
orders to carry out the provisions of the
chapter. In State ex rel. Turner v. Koscot
Interplanetary, Inc., 191 N.W.2d 624
(Iowa, 1971) a case involving another
Glenn Turner enterprise similar to Dare
To Be Great, Inc., (it dealt with cosmetics
instead of motivational courses,) the court
enjoined the defendant although a section
in the Iowa Code (713.24, subd. 2, par. b)
provided an individual remedy. We hold,
therefore, that even though individual
remedies may exist, the statutes provide
for injunctive relief at the instance of the
State. to hold otherwise would, we
believe, cripple the legislative intent to
provide an effective means of curbing
illegitimate business schemes and
protecting the consumers of our State.
Defendants present several other
assignments of error. We have
considered each of them and the same
are overruled. The order from which
defendant appealed is affirmed.
Affirmed.
PARKER and GRAHAM, JJ., concur.
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