This opinion will be unpublished and

may not be cited except as provided by

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




Mermaid Marketing, Inc., Wisconsin Corporation,



Esberg Corp., et al.,


Filed August 11, 1998


Shumaker, Judge

Hennepin County District Court

File No. 97-22954

Seth M. Colton, Stephen E. Yoch, Maun & Simon, PLC, 2300 World Trade Center, 30 East Seventh Street, St. Paul, MN 55101-4904 (for appellant)

Frank A. Taylor, Gregory J. Schaefer, Tanya Gisolfi, Hinshaw & Culbertson, Piper Jaffray Tower, Suite 3200, 222 South Ninth Street, Minneapolis, MN 55402, and

Richard K. Hocking, Richard K. Hocking, P.A. 7570 West 147th Street, Apple Valley, MN 55124 (for respondents).

Considered and decided by Shumaker, Presiding Judge, Peterson, Judge, and Amundson, Judge.



Appellant seeks review of the denial of a temporary injunction. Because appellant has an adequate legal remedy and has not shown that an injunction is necessary to prevent great and irreparable injury, we affirm.


Appellant Mermaid Marketing, Inc., is the franchisor of eight Mermaid Car Wash facilities. Respondents Esberg Corporation, et al., and Steve L. Smith own three car washes under a Mermaid franchise located in Eagan, Apple Valley, and Savage.

Smith told Mermaid that he intended to purchase a non-Mermaid car wash in Bloomington. Smith and Mermaid disagreed as to whether the Bloomington car wash would have to be operated as a Mermaid Car Wash under the parties' existing franchise agreement. The franchise agreement states that, upon a franchisee's request to run a non-franchise car wash, Mermaid cannot unreasonably withhold consent.

Smith unsuccessfully sought permission from Mermaid to acquire and operate the Bloomington car wash as a non-franchise car wash. Smith claims that Mermaid unreasonably withheld its consent and thereby breached the franchise agreement.

Mermaid, on the other hand, claims that it reasonably withheld its consent "because of its legitimate business interest in protecting its confidential, proprietary and trade secret information from use in [a] competing car wash." Mermaid also complains that the other two Mermaid franchisees in Minnesota will terminate their franchises if Smith prevails.

Mermaid first unsuccessfully sought a temporary restraining order to prevent Smith from purchasing the Bloomington car wash. After the court denied the temporary restraining order, Smith purchased the Bloomington car wash and then informed Mermaid that, by unreasonably withholding consent, Mermaid had breached the franchise agreement and that Smith would terminate the Eagan, Savage, and Apple Valley franchises unless Mermaid remedied the breach. Mermaid did not attempt to remedy the alleged breach but rather sought a temporary injunction to prevent Smith and the other respondents from "breaching their existing multiple franchise relationships with Mermaid." The district court denied the injunction, and Mermaid seeks review.


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 Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993). For a temporary injunction to be granted, the party seeking the injunction must show that any possible legal remedy is inadequate and an injunction is necessary to prevent great and irreparable injury. Cherne Indus., Inc. v. Grounds & Assoc., Inc., 278 N.W.2d 81, 92 (Minn. 1979). The failure of a moving party to show irreparable harm is, by itself, a sufficient ground for denial of a motion for a temporary injunction. Morse v. City of Waterville, 458 N.W.2d 728, 729 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). "The injury must be of such a nature that money alone could not suffice." Id. at 729-30. The facts are viewed in favor of the prevailing party. Cramond v. AFL-CIO, 267 Minn. 229, 234-35, 126 N.W.2d 252, 257 (1964). The district court concluded that Mermaid's claim against Smith was, in essence, a claim for money damages and that Mermaid was unable to articulate trade secret information that could be lost irreparably if the injunction were not granted.

Mermaid argues that the irreparable harm it will suffer is that its entire franchise network will unravel, apparently referring to not only the three franchises owned by Smith in this action, but also to the two other franchises in Rochester and Golden Valley. Mermaid also argues that Smith will inappropriately use confidential and proprietary Mermaid car wash information at the Bloomington car wash.

This is a contract dispute based on the parties' franchise agreement. The agreement contemplates the possibility that a franchisee might operate a non-franchise business. The agreement permits such operation upon the franchiser's consent. The franchiser cannot unreasonably withhold its consent. An action on the merits will determine if a breach of the franchise agreement occurred. If a breach occurred, damages will be ascertainable. Further, after reviewing the facts in a light favorable to Smith and considering the abuse of discretion standard we apply to the district court's decision, we conclude that Mermaid has not met its burden of demonstrating that it provided trade secret or confidential car wash information to respondents. Mermaid's concern about possible future actions by the other two Minnesota Mermaid franchisees is speculative and we do not consider it. The district court did not abuse its discretion when it denied the temporary injunction.