This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




Gary Horrisberger,



McNamara Company, Inc., et al.,


Filed July 21, 1998

Reversed and remanded

Harten, Judge

Ramsey County District Court

File No. C6-98-468

Kevin K. Shoeberg, Ruth S. Marcott, Thomas, Shoeberg & Marcott, P.L.L.P., 120 MidAmerica Bank Building, 6949 Valley Creek Rd., Woodbury, MN 55125 (for appellant)

Robb L. Olson, Meslow & Olson, PLLC, 4700 Clark Avenue, Suite 100, White Bear Lake, MN 55110 (for respondents)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Holtan, Judge.*



Appellants McNamara Company, Inc. and Richard K. McNamara appeal from a district court order granting a temporary injunction to respondent Gary Horrisberger. Appellants argue that there is no basis for the district court's conclusions and that the district court did not make adequate findings to support the injunction. We reverse and remand.


In February 1991, Horrisberger began employment as an insurance agent with appellant McNamara Company, Inc. (McNamara). Horrisberger and McNamara entered into an employment contract. The contract contains noncompete provisions restricting Horrisberger in the event of his termination, but does not include noncompete provisions applicable to McNamara. The contract also states: 4. Any and all insurance business PROCURED BY THE AGENT while in the employ of the Employer will be owned by the Agent subject to the termination of provisions contained in this agreement.

5. Any and all insurance business ALLOCATED TO OR REFERRED TO the agent * * * shall be the permanent and exclusive property of the McNamara Company. * * * In this connection, the company shall have the exclusive right, title and interest in and to all materials, services and information pertaining to such business, whether in the possession of the Agent or the companies, including but not by way of limitation, all records of insurance policies, manuals, secretarial and telephone services, policy expiration dates, and the names, telephone numbers and addresses of existing or prospective policyholders. On termination of the Agent's employment, all such materials, services and information shall be immediately surrendered to the Employer, whether provided by the Company or prepared by the Agent and will not thereafter be used by the Agent.

Horrisberger testified at the preliminary hearing that before he signed the employment contract, Richard McNamara told him that the contract meant that upon termination, he could not "go after" business referred to him by McNamara, and McNamara could not "go after" business procured by Horrisberger.

On December 30, 1997, Horrisberger informed McNamara that he was resigning his position to start his own insurance agency. The next day, McNamara terminated him. McNamara refused to provide Horrisberger with any of the records of business claimed to be owned by Horrisberger;[1] McNamara also refused Horrisberger access to his prospective customer files.

Horrisberger testified that he had instructed the company to forward to him messages from his customers. Horrisberger introduced two affidavits from people who called McNamara looking for him and were told that he no longer worked for the company and the company did not know how to reach him.

Horrisberger also claims that McNamara has actively tried to prevent him from entering into agency contracts with insurance companies. Horrisberger argues that McNamara contacted insurance companies with whom Horrisberger had worked and convinced them not to renew their policies with Horrisberger.

Horrisberger filed a complaint claiming breach of contract and tortious interference with contract and requesting injunctive relief. The district court granted Horrisberger a temporary injunction based on an "implicit" noncompete agreement against McNamara in the employment contract. Under the terms of the injunction, McNamara is required to provide Horrisberger with all business records relating to business that he claims to have procured, including live, dormant, and prospective customer files. McNamara is also required to inform inquiring customers of Horrisberger's whereabouts. Further, the company is prohibited from soliciting or seeking to negatively influence or otherwise attempt to interfere with Horrisberger's business or prospective business or making disparaging comments about him.


1. The Business Records and Information to Customers

It is well-established that courts will decide only actual controversies. Matter of Schmidt, 443 N.W.2d 824, 826 (Minn. 1989). If a court is unable to grant effectual relief, the matter is deemed moot, and the appeal is dismissed. Id. Moreover, courts will not issue advisory opinions, nor decide cases merely to establish precedent. Id. Neither party here raised the question of mootness, but we consider the issue as a prerequisite to jurisdiction, even if ignored by the parties. Id.

McNamara has now provided Horrisberger with the business records and has informed inquiring customers of his whereabouts. We therefore dismiss as moot the appeal of the temporary injunction insofar as it relates to the business records and customer information about Horrisberger's whereabouts.

2. Competition/Interference with Business Relationships A decision on whether to grant a temporary injunction is left to the discretion of the district court and will not be disturbed on appeal absent a clear abuse of that discretion. Carl Bolander & Sons v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993). A district court's findings regarding entitlement to injunctive relief will not be set aside unless clearly erroneous. LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn. 1979). The reviewing court views the facts in favor of the party who prevailed below. Cramond v. AFL-CIO, 267 Minn. 229, 234-35, 126 N.W.2d 252, 257 (1964).

The purpose of a temporary injunction is to preserve the status quo until there is an adjudication of the case on the merits. Miller v. Foley, 317 N.W.2d 710, 712 (Minn. 1982). Appellate courts review temporary injunction decisions in light of five factors: (1) the nature and background of the relationship between the parties, (2) the relative harm to the parties, (3) the likelihood of either side prevailing on the merits, (4) public policy considerations, and (5) administrative burdens. Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965).

The district court issued an order for temporary injunction that has the effect of restricting McNamara from competing with Horrisberger for business. But the district court's order is deficient because it is supported by conclusory statements rather than factual findings on the five Dahlberg factors. Without fact findings, the district court's conclusions stand alone and cannot be reviewed.

Moreover, the district court based its temporary injunction on provisions "implicit in the contract" which prevent McNamara from competing with Horrisberger. The district court apparently implied a covenant not to compete from the provision that Horrisberger owns the business that he procured while with McNamara. But the fact that the employment contract provides for ownership of business does not imply a covenant not to compete upon termination. The employment contract is clear and does not suggest any noncompete agreement restricting McNamara.

Finally, even were there grounds to imply a noncompete agreement as found by the district court, it would be invalid unless limited in scope. Restraints on trade are unlawful if not limited as to time, harm, or geographical area. Harris v. Bolin, 310 Minn. 391, 394-95, 247 N.W.2d 600, 603 (1976). The district court did not place any temporal or geographic limits on the purported noncompete agreement. Upon the foregoing rationale, we reverse and remand the district court order granting the temporary injunction. Because Horrisberger has not prevailed on this appeal, we do not consider his request for attorney fees.

Reversed and remanded.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Whether particular customers were procured by Horrisberger or referred to him by McNamara is disputed. The ownership of client accounts will be an issue for trial.