Opinion
Case No. 05-cv-01017-REB-OES.
January 30, 2006
ORDER FOR PRELIMINARY INJUNCTION
The Motion of Novus Franchising, Inc. ("Novus"), for preliminary injunctive relief, pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, was presented to the undersigned on the 19th day of December, 2005. Appearing for the Plaintiff was Lawrence R. Commers and Hal Bruno, III. Philip Gordon Marrs appeared Pro Se for and on behalf of himself and Novus Windshield Repair d/b/a Novus Auto Glass Repair Replacement. Alternative Auto Glass Solutions, Inc., was not represented.
Based upon the arguments of the parties, memorandums submitted by the parties, affidavits submitted by the parties, testimony and exhibits presented by the parties, and upon all the proceedings and pleadings herein,
NOW, THEREFORE, the Court enters the following Findings of Fact, Conclusions of Law, Orders, and Preliminary Injunction:
1. The Court has jurisdiction over the parties and the subject matter.
2. Plaintiff Novus Franchising, Inc., is a corporation organized and existing under the laws of the State of Washington with its principal place of business as 12800 Highway 13 South, Suite 500, Savage, Minnesota.
3. Defendant Philip Gordon Marrs is a resident and citizen of the State of Colorado, residing at 630 46th Avenue Ct., Greeley, Colorado 80634.
4. Defendant Alternative Auto Glass Solutions, Inc., is a corporation organized and existing under the laws of the State of Colorado, with its principal place of business at 630 46th Avenue Ct., Greeley, Colorado 80634.
5. Defendant Philip Gordon Marrs entered into a Franchise Agreement with Novus Franchising, Inc., dated November 16, 1996 for a 10 year term.
6. Defendant Philip Gordon Marrs unilaterally terminated its Franchise Agreement effective December 31, 2004.
7. Defendants' Franchise Agreement, at paragraph 20.3, contains a valid and legally enforceable post-term covenant not to compete prohibiting Defendants for a period of two years after termination or expiration of the Franchise Agreement from performing windshield repair and replacement services within their area of primary responsibility which is defined as Weld County excluding the City of Brighton.
8. Despite the covenant not to compete in the Franchise Agreements, Defendants are operating a competing business using the name Alternative Auto Glass Solutions, Inc., in the County of Weld, and are communicating with existing customers and customer referral sources, advising them of Defendants' competing business, and soliciting customers and customer referrals for Defendants' new business in violation of the covenant not to compete.
9. By reason of the above acts of the Defendants and the breaches of the Franchise Agreements, Novus has sustained, and will continue to sustain, real, substantial and irreparable harm and injury, including the loss of customers and the loss of good will, by virtue of Defendants' breach of their post-term covenant not to compete.
10. Defendants, their agents, servants, employees, stock holders, partners and all persons in privity, active concert or participation with them, shall not engage in any competing business and are enjoined and restrained from seeking to service or solicit windshield repair and replacement customers within the Colorado County of Weld, State of Colorado for a period of 24 months from the date of this Order.
11. Novus shall not be required to post a bond.
12. The Court retains jurisdiction over this matter.
IT IS SO ORDERED.