This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).


Free Spirit, Inc.,


Marilyn Matejka-Rupp,
d/b/a Road to Recovery,

Jackson County District Court
File No. C4-95-132

Filed July 2 ,1996
Toussaint, Chief Judge

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Richard Meshbesher, Meshbesher Law Office, 10285 Yellow Circle Drive, Minnetonka, MN 55343 (for appellant)

Hans K. Carlson, Muir, Costello & Carlson, 603 2nd Street, Jackson, MN 56143-1645 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Crippen, Judge.


TOUSSAINT, Chief Judge

Free Spirit, Inc., appeals the trial court's denial of its motion for a temporary restraining order regarding the breach of a covenant not to compete against Marilyn Matejka-Rupp. Free Spirit claims that the trial court failed to consider all relevant factors when deciding whether to grant a temporary injunction. We affirm.



A trial court's decision to grant or deny a temporary injunction will not be reversed absent an abuse of its discretion. Eakman v. Brutger, 285 N.W.2d 95, 97 (Minn. 1979). The sole issue on appeal is whether there was a clear abuse of the trial court's discretion. M.G.M. Liquor Warehouse Int'l v. Forsland, 371 N.W.2d 75, 77 (Minn. App. 1985). In determining whether a temporary restraining order is appropriate, the following factors should be considered:

(1) the relationship between the parties before the dispute; (2) the harm the plaintiff will suffer if relief is denied compared with the harm inflicted on the defendant if the injunction is issued; (3) the likelihood that one party or the other will prevail on the merits; (4) the public interest involved, if any; (5) the administrative burdens involved in enforcing the relief requested.

Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965).

Here, the trial court determined that Free Spirit was unlikely to prevail on the merits, and it did not address the remaining Dahlberg factors. Free Spirit argues that this was in error and that the trial court was required to address each of the Dahlberg factors. We are not persuaded by this argument.

We hold that where enforceability of the covenant not to compete is dispositive, and the court concluded that the agreement is not legally enforceable, it is not a clear abuse of discretion to deny injunctive relief without explicit findings on the other Dahlberg factors. [1] Cf. Sandborn Mfg. Co. v. Currie, 500 N.W.2d 161, 163 (this court indicated that because the enforceability of the covenant not to compete was dispositive it would limit its inquiry to that subject).


Courts carefully scrutinize employee non-competition agreements because they restrict a person's right to work and earn a livelihood. Freeman v. Duluth Clinic, Ltd., 334 N.W.2d 626, 630 (Minn. 1983). A non-competition agreement signed after an oral employment agreement and after the employee has begun work can be sustained only if supported by independent consideration. National Recruiters, Inc. v. Cashman, 323 N.W.2d 736, 740 (Minn. 1982). The adequacy of consideration for such a restrictive covenant depends upon the facts of each case. Davies & Davies Agency, Inc. v. Davies, 298 N.W.2d 127, 130 (Minn. 1980). Continuation of employment alone can be used to uphold coercive agreements, but the agreement must be bargained for and it must provide the employee with real benefits. Satellite Indus., Inc. v. Keeling, 396 N.W.2d 635, 639 (Minn. App. 1986) review denied (Minn. Jan. 21, 1987).

In this case, the trial court determined that because the non-competition agreement was not supported by consideration, it was unenforceable. We agree.

The record reveals that Matejka-Rupp did not receive any additional compensation, employment related benefits or training from Free Spirit in exchange for her agreement to sign this covenant not to compete. See Davies, 298 N.W.2d at 131 (holding that adequate consideration existed where an employee originally hired into a clerical position, stayed with the company for ten years and advanced into a sales position where he received informal training and support in receiving his insurance license); see also Satellite Indus., 396 N.W.2d at 639 (holding that a