[Cite as N. Chem. Blending Corp., Inc. v. Strib Industries, Inc., D.B.A. Prod. Chem.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105911

NORTHERN CHEMICAL BLENDING CORP., INC.

PLAINTIFF-APPELLANT

vs.

STRIB INDUSTRIES, INC., D.B.A., PRODUCTS CHEMICAL, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-857980

BEFORE: E.T. Gallagher, P.J., S. Gallagher, J., and Jones, J.

RELEASED AND JOURNALIZED: August 23, 2018 ATTORNEYS FOR APPELLANT

Jim Petropouleas James E. Boulas James E. Boulas Co., L.P.A. 7912 Broadview Road Broadview Heights, Ohio 44147

ATTORNEYS FOR APPELLEES

John S. Kluznik Weston Hurd, L.L.P. The Tower at Erieview 1301 East 9th Street, Suite 1900 Cleveland, Ohio 44114

For ChemMasters, Inc.

Deborah J. Michelson Miller Goler Faeges Lapine, L.L.P. 1301 East 9th Street, Suite 2700 Cleveland Ohio 44114

For John Stibrick

Victor T. Dimarco Shawn W. Maestle Weston Hurd, L.L.P. 1301 East 9th Street, Suite 1900 Cleveland, Ohio 44114 EILEEN T. GALLAGHER, P.J.:

{¶1} Plaintiff-appellant, Northern Chemical Blending Corp., Inc. (“Northern Chemical”),

appeals from the trial court’s judgment granting summary judgment in favor of

defendants-appellees, Strib Industries, Inc., d.b.a. Products Chemical, and John Stibrick

(collectively “Strib Industries”). Northern Chemical raises the following assignments of error

for review:

1. The trial court erred as a matter of law in not considering all of the evidence before it in rendering judgment in appellees’ favor.

2. The trial court erred as a matter of law in granting appellees’ motion for summary judgment.

{¶2} After careful review of the record and relevant case law, we affirm the trial court’s

judgment.

I. Procedural and Factual History

{¶3} Northern Chemical has operated a chemical blending company since 1983 and

performs filling and blending services for customers. Northern Chemical is owned and operated

by John Zemaitis. Strib Industries also performs chemical filling and blending services and is

owned and operated by John Stibrick.

{¶4} For approximately 25 years, Northern Chemical subcontracted certain filling and

blending orders to Strib Industries for customers who required smaller packaging. Pursuant to

the parties’ business arrangement, Strib Industries was paid a percentage of the revenue Northern

Chemical received for the product Strib Industries filled or blended on Northern Chemical’s

behalf. On January 1, 2006, Northern Chemical and Strib Industries entered into a

confidentiality, nondisclosure, and nonuse agreement (the “Strib NDA Agreement”). The NDA Agreement covered all work Strib Industries performed for Northern Chemical and required Strib

Industries to maintain Northern Chemical’s confidential information.

{¶5} In January 2009, Northern Chemical entered into a business relationship with

ChemMasters, Inc. (“ChemMasters”). Pursuant to their business arrangement, Northern

Chemical agreed to blend and package certain concrete sealers and coatings for ChemMasters.

ChemMasters and Northern Chemical also entered into a confidentiality, nondisclosure, and

nonuse agreement (the “ChemMasters NDA Agreement”), wherein Northern Chemical agreed to

maintain ChemMasters’ confidential information.

{¶6} Upon securing ChemMasters’ business, Northern Chemical subcontracted with Strib

Industries to fill the orders it received from ChemMasters. Strib Industries was paid a

percentage of the revenue Northern Chemical received from ChemMasters for the products Strib

Industries filled and blended. Upon relinquishing the blended product to ChemMasters, Strib

Industries would invoice Northern Chemical for the amount due, with the notation that payment

was due within 30 days. It was understood and agreed that Northern Chemical was to pay Strib

Industries the amount invoiced no later than 10 days after Northern Chemical received payment

from ChemMasters.

{¶7} In April 2014, ChemMasters ceased doing business with Northern Chemical, and

began doing business directly with Strib Industries. Believing that “[Strib Industries and

ChemMasters] conspired to improperly cut-out Northern Chemical from the business

relationship,” Northern Chemical filed a complaint against Strib Industries and ChemMasters in

January 2016. The complaint sought a declaratory judgment and asserted causes of action for

breach of contract, tortious interference with business relations, tortious interference with

contract, accounting and restitution, misappropriation of trade secrets, and civil conspiracy. {¶8} In March 2016, Strib Industries filed an answer brief and asserted counterclaims for

breach of contract and unjust enrichment. The counterclaim sought payment of overdue

invoices in the amount of $8,992.50.

{¶9} In April 2016, Northern Chemical filed a notice of voluntary dismissal of its claims

against ChemMasters. Northern Chemical also voluntarily dismissed its civil conspiracy claim

against Strib Industries.

{¶10} In June 2016, Strib Industries filed a “motion to deem admissions as admitted.”

The motion alleged that Northern Chemical failed to respond to Strib Industries’ requests for

admissions, which asked Northern Chemical to admit that it failed to pay Strib Industries for

certain invoices. Thus, Strib Industries requested the trial court to deem the relevant discovery

requests as written admissions pursuant to Civ.R. 36(A)(1). The motion was unopposed and

granted by the trial court.

{¶11} In December 2016, Strib Industries filed a motion for summary judgment on its

counterclaims, arguing that it is entitled to judgment in the amount of $8,992.50. Strib

Industries argued that judgment was appropriate because “Northern Chemical concedes the

invoices are outstanding and due to Strib Industries as evidenced by the request for admissions

propounded upon Northern Chemical and which [the trial court] deemed admitted.”

{¶12} In February 2017, Strib Industries filed a separate motion for summary judgment as

to Northern Chemical’s claims, arguing that it was entitled to judgment as a matter of law

because (1) there is no evidence of a valid contract between Northern Chemical and Strib

Industries, (2) there is no evidence of an exclusivity contract between Northern Chemical and

ChemMasters, (3) the blending and filling services provided to ChemMasters were products that

ChemMaster developed and/or formulated, and (4) it was not unlawful or improper for Strib Industries to conduct business directly with ChemMasters based on Northern Chemical’s failure

to pay Strib Industries for its services.

{¶13} In support of its motions for summary judgment, Strib Industries attached copies of

the pleadings, a copy of the Strib NDA Agreement, a copy of the ChemMasters NDA Agreement,

pertinent portions of John Zemaitis’s deposition testimony, the affidavit of John Stibrick, and

copies of Northern Chemical’s unpaid invoices that were deemed by the court to be written

admissions.

{¶14} After receiving a 30-day extension of time, Northern Chemical filed a brief in

opposition to Strib Industries’ motions for summary judgment on March 3, 2017. Northern

Chemical argued that genuine issues of material fact remain on their claims against Strib

Industries. In addition, Northern Chemical maintained that Strib Industries is not entitled to

summary judgment on its counterclaim for the unpaid invoices because Strib Industries

“materially breached [its] agreement to wait until Northern Chemical was paid by ChemMasters

to receive payment [from Northern Chemical].”

{¶15} Northern Chemical’s opposition brief attached a copy of the Strib NDA

Agreement, emails from Northern Chemical to ChemMasters regarding past due invoices, and

the deposition testimony of John Stibrick.1

{¶16} On March 13, 2017, Strib Industries filed a reply brief in support of its motions for

summary judgment and contemporaneously filed a motion to strike the certain exhibits attached

to Northern Chemical’s brief in opposition. In the motion to strike, Strib Industries argued that

1 Northern Chemical’s brief in opposition references “Plaintiff’s Affidavit attached as ‘Exhibit 1.’” However, no affidavit was attached to the brief. the email correspondences attached to Northern Chemical’s brief in opposition did not constitute

proper evidence under Civ.R. 56(C) and were not authenticated by a properly framed affidavit.

{¶17} On March 20, 2017, Northern Chemical filed a brief in opposition to the motion to

strike and requested leave of court to supplement its opposition brief with the affidavit of John

Zemaitis, which was notarized on March 20, 2017. Northern Chemical argued that the affidavit

properly attests to the exhibits attached to the brief in opposition pursuant to Civ.R. 56(E), and

“provides no additional information that is not already provided in the brief in opposition.”

{¶18} Before the trial court ruled on Northern Chemical’s attempt to supplement its brief

with Zemaitis’s affidavit, Strib Industries filed a motion to strike the affidavit. Strib Industries

argued that it would be unjust to consider the untimely affidavit because it was not attached to

the brief in opposition, and therefore, Strib Industries did not have the opportunity to address the

contents of the affidavit at the time Strib Industries was required to file its reply brief. Strib

Industries noted that the affidavit was notarized on March 20, 2017, thereby demonstrating that

the affidavit did not exist at the time the brief in opposition was filed.

{¶19} On May 18, 2017, the trial court denied Northern Chemical’s request to

supplement its brief in opposition with Zemaitis’s affidavit. In addition, the trial court granted

Strib Industries’ motion to strike the affidavit and copies of certain email correspondences

attached to Northern Chemical’s brief in opposition. On the same day, the trial court granted

Strib Industries’ separate motions for summary judgment, stating in relevant part:

Pending before the court are (A) [Strib Industries’] motion for summary judgment with respect to Northern Chemical’s claims; and (B) [Strib Industries’] motion for summary judgment on its counterclaim pursuant to Civ.R. 56. * * *.

Upon review of the evidentiary materials, and viewing the evidence most strongly in favor of the non-moving party, the court finds and concludes that no genuine issues of material fact remain to be litigated in this case and that defendants are entitled to judgment as a matter of law. Defendants supported their motions with admissible evidence and concise, compelling legal arguments. Northern Chemical, by contrast, has not come forward with admissible evidence suggesting that there is a genuine issue for trial. Defendants’ motions for summary judgment are therefore granted.

Accordingly, Northern Chemical’s claims are dismissed in their entirety, with prejudice. With respect to defendant Strib Industries’ counterclaim, the court awards judgment to Strib Industries in the amount of $8,992.50, plus interest at the statutory rate from the date of judgment, as well as the costs of this action.

{¶20} Northern Chemical now appeals the trial court’s judgment.

II. Law and Analysis

A. Evidentiary Rulings

{¶21} In its first assignment of error, Northern Chemical argues “the trial court erred as a

matter of law in not considering all of the evidence before it in rendering judgment in [Strib

Industries’] favor.” Northern Chemical contends that the trial court erred by striking the

affidavit of John Zemaitis and the email correspondences referred to in his supporting affidavit.

1. Notice of Appeal

{¶22} Before addressing the merits of this assigned error, we must resolve Strib

Industries’ contention that Northern Chemical’s first assignment of error fails as a matter of law

because Northern Chemical’s notice of appeal does not comply with App.R. 3(D) and

Loc.App.R. 3(B).

{¶23} According to App.R. 3(D), the decision being appealed must be designated in the

notice of appeal, and Loc.App.R. 3(B) requires attachment of that entry to the notice. In this

case, Strib Industries correctly states that Northern Chemical’s notice of appeal only attached the

trial court’s May 18, 2017 journal entry granting summary judgment in favor of Strib Industries.

It did not identify or attach the trial court’s separate May 18, 2017 judgment entries that granted Strib Industries’ motions to strike Zemaitis’s affidavit and certain exhibits attached to Northern

Chemical’s brief in opposition to summary judgment.

{¶24} However, the failure to attach a copy of the order being appealed from is not a

jurisdictional defect. Thus, “this court has discretion to entertain an appeal that does not

comply with these rules.” Hubbard v. Charter One Bank, 8th Dist. Cuyahoga No. 104146,

, citing Midland Funding L.L.C. v. Hottenroth,

,

, ¶ 3 (8th Dist.) (en banc). The purpose of these rules is to appropriately notify other

parties to the appeal of its scope.

{¶25} As stated, the trial court found that summary judgment in favor of Strib Industries

was appropriate because Northern Chemical failed to “come forward with admissible evidence

suggesting that there is a genuine issue for trial.” The admissibility of the evidence attached to

Northern Chemical’s brief in opposition was highly contested and was the subject of multiple

motions. Furthermore, the validity of the court’s May 18, 2017 judgments have been fully

briefed by both parties on appeal. Under these circumstances, we find Strib Industries was

reasonably placed on notice that Northern Chemical would be challenging the trial court’s

decision to strike certain evidence attached to its brief in opposition. Accordingly, we exercise

our discretion to consider Northern Chemical’s first assignment of error.

2. Motion to Strike Documentary Evidence

{¶26} A trial court’s determination of a motion to strike is reviewed for an abuse of

discretion. Squire v. Geer,

,

,

. An

abuse of discretion implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore,

,

(1983). {¶27} On appeal, Northern Chemical argues the trial court abused its discretion by

striking Zemaitis’s affidavit and the email correspondences attached to its brief in opposition to

summary judgment. Northern Chemical asserts that the excluded “email [exhibits] were not a

surprise to [Strib Industries] as they were attached to the brief in opposition and the affidavit was

not a surprise to [Strib Industries] as it did not deviate or provide anything outside of the brief.”

{¶28} Civ.R. 56(C) provides, in relevant part:

Unless otherwise provided by local rule or by order of the court, the adverse party may serve responsive arguments and opposing affidavits within twenty-eight days after service of the motion, and the movant may serve reply arguments within fourteen days after service of the adverse party’s response. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.

{¶29} Civ.R. 56(E) provides, in relevant part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.

{¶30} This court has previously recognized that “[u]nder Civ.R. 56(E), the proper

procedure for introducing evidentiary matters not specifically authorized by Civ.R. 56(C) is to

incorporate them by reference in a properly framed affidavit.” Biskupich v. Westbay Manor

Nursing Home,

,

(8th Dist. 1986). {¶31} “Documents submitted in defense against a motion for summary judgment must be

properly ‘sworn, certified or authenticated by affidavit’ or they may not be considered in

determining whether there is a triable issue of fact.” Burkhart v. H.J. Heinz Co.,

,

, ¶ 12 (6th Dist.), quoting Green v. B.F. Goodrich Co.,

,

(9th Dist. 1993); see also Douglass v. Salem Comm. Hosp.,

,

,

(7th Dist.). Ohio courts

consistently apply this rule and recognize that “documents that have not been sworn, certified, or

authenticated by way of affidavit ‘have no evidentiary value.’” Mitchell v. Internatl. Flavors &

Fragrances, Inc.,

,

,

(1st Dist.),

quoting Lance Acceptance Corp. v. Claudio, 9th Dist. Lorain No. 02CA008201,

, ¶ 15.

{¶32} In this case, Northern Chemical’s brief in opposition relied extensively on

unauthenticated email communications that were not incorporated into a properly framed

affidavit. Strib Industries moved to strike these exhibits on grounds that they did not constitute

proper evidence under Civ.R. 56(C). Although Northern Chemical subsequently attempted to

incorporate the unauthenticated documents through its submission of Zemaitis’s affidavit, the

trial court ultimately accepted Strib Industries’ position that the affidavit was untimely pursuant

to Civ.R. 56(C).

{¶33} Despite the language of Civ.R. 56(C), Northern Chemical maintains that its

submission of Zemaitis’s affidavit was not untimely because it was filed well before the trial

court’s judgment was rendered. In support of its position, Northern Chemical relies on this

court’s decision in Paul v. Metrohealth, 8th Dist. Cuyahoga No. 71195,

(Oct. 22, 1998). In Paul, this court reversed the trial court’s exclusion of an opposing

affidavit as untimely, stating:

The trial court’s determination * * * was inappropriate since the rule specifically permits the opposing party to file affidavits “prior to the day of hearing.”

Id. at 18.

{¶34} After careful consideration, we are not persuaded by Northern Chemical’s reliance

on Paul. Significantly, Paul interpreted a version of Civ.R. 56(C) that has since been

amended. 2 The statute no longer contains language permitting the opposing party to file

affidavits “prior to the day of hearing.” Rather, that language has been deleted and the statute

now directs adverse parties to serve responsive arguments and opposing affidavits “within

twenty-eight days after service” of the movant’s motion for summary judgment.3

{¶35} In this case, Northern Chemical received a 30-day extension in time to respond to

Strib Industries’ motion for summary judgment and was ordered to “file its brief(s) in opposition

to the two motions [for summary judgment] on or before Friday, March 3, 2017.” Northern

Chemical complied with the trial court’s order and filed its opposition brief on March 3, 2017.

However, Northern Chemical did not attach an affidavit to its opposition brief and, without

2 Civ.R. 56(C) was amended on July 1, 2015. The former version of Civ.R. 56(C) provided, in pertinent part:

The motion shall be served at least fourteen days before the time fixed for hearing. The adverse party, prior to the day of hearing, may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. (Emphasis added.)

3 Loc.R. 11(I)(1) of the Court of Common Pleas of Cuyahoga County, General Division, provides an opposing party 30 days to file a brief in opposition with accompanying evidentiary materials. explanation or justification, waited two additional weeks before attempting to supplement its

brief with Zemaitis’s affidavit. Significantly, the affidavit was filed well beyond the time

period set forth under Civ.R. 56(C), beyond the dispositive motion deadline set forth by the trial

court, and after Strib Industries filed its reply brief in support of its motion for summary

judgment.

{¶36} Under the totality of these circumstances, we find the trial court did not abuse its

discretion in striking the untimely affidavit of John Zemaitis. As such, the email

correspondences attached to Northern Chemical’s brief in opposition were not incorporated by

reference in a properly framed affidavit as required by Civ.R. 56(E). Accordingly, the email

exhibits were not properly before the court for consideration on summary judgment and we

cannot say the trial court abused its discretion by striking them from the record.

{¶37} Northern Chemical’s first assignment of error is overruled.

B. Summary Judgment

{¶38} In its second assignment of error, Northern Chemical argues the trial court erred as

a matter of law in granting summary judgment in favor of Strib Industries.

{¶39} This court reviews a trial court’s grant of summary judgment under the de novo

standard. Grafton v. Ohio Edison Co.,

,

(1996).

Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of

material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable

minds can come to but one conclusion and that conclusion is adverse to the nonmoving party,

said party being entitled to have the evidence construed most strongly in his favor. Horton v.

Harwick Chem. Corp.,

,

(1995), paragraph three of the

syllabus; Zivich v. Mentor Soccer Club,

,

(1998). {¶40} Summary judgment consists of a burden-shifting framework. The movant bears

the initial burden of informing the trial court of the basis for the motion, and identifying those

portions of the record that demonstrate the absence of a genuine issue of material fact on the

essential element(s) of the nonmoving party’s claims. Dresher v. Burt,

,

(1996). Once the moving party satisfies its burden, the nonmoving

party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s

response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.” Id.; Mootispaw v. Eckstein,

,

(1996); Civ.R. 56(E). Doubts must be resolved in favor of the nonmoving party.

Murphy v. Reynoldsburg,

,

(1992).

{¶41} On appeal, Northern Chemical argues the trial court improperly granted summary

judgment in favor of Strib Industries on its counterclaim for unpaid invoices and on its claims

against Strib Industries for tortious interference with a business relationship, tortious interference

with a contract, breach of contract, and misappropriation of trade secrets. For the purposes of

judicial clarity, we review each claim separately.

1. Tortious Interference with Business Relations

{¶42} The elements of a tortious interference with a business relationship claim require

(1) a business relationship; (2) the wrongdoer’s knowledge of the relationship; (3) the

wrongdoer’s intentional and improper action taken to prevent a contract formation, procure a

contractual breach, or terminate a business relationship; (4) a lack of privilege; and (5) resulting

damages. Brookeside Ambulance, Inc. v. Walker Ambulance Serv.,

,

(1996); Spafford v. Cuyahoga Community College, 8th Dist. Cuyahoga

No. 84786,

. {¶43} Tortious interference with a business relation occurs when “a person, without

privilege, induces or otherwise purposely causes a third party not to enter into, or continue, a

business relationship, or perform a contract with another.” Castle Hill Holdings, L.L.C. v. Al

Hut, Inc., 8th Dist. Cuyahoga No. 86442,

, citing Juhasz v. Quik Shops,

Inc.,

,

(9th Dist. 1978), paragraph two of the syllabus.

{¶44} Whether the business relationship is an at-will relationship does not in and of itself

preclude a finding that the defendant tortiously interfered with the business relationship and,

therefore, is not dispositive of the claim. Fred Siegel Co., L.P.A. v. Arter & Hadden,

,

(1999). On the other hand, interference with the business

relationship alone is insufficient to sustain a cause of action for tortious interference.

It is

the improper nature of the conduct that establishes liability. Baseball at Trotwood, L.L.C. v.

Dayton Professional Baseball Club, S.D.Ohio No. C-3-98-260,

,

*5 (Sept. 2, 2003).

{¶45} Courts must consider the following factors in determining whether the actor’s

means are improper:

(a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties.

Gracetech Inc. v. Perez, 8th Dist. Cuyahoga No. 96913,

, quoting Fred

Siegel, at paragraph three of the syllabus.

{¶46} It is undisputed that Northern Chemical and ChemMasters shared a business

relationship and that Strib Industries was aware of their business relationship. However, Strib Industries argued in its motion for summary judgment that it was not improper for John Stibrick

to notify ChemMasters that it would “no longer provide services or products to Northern

Chemical due to non-payment.” Further, Strib Industries argued that there is no evidence to

suggest Strib Industries or ChemMasters were bound to Northern Chemical under an exclusivity

agreement. Thus, Strib Industries maintains that “it was not unlawful or improper for [it to

conduct] business directly with ChemMasters at ChemMasters’ request.” Strib Industries

supported its arguments with Northern Chemical’s written admissions, the affidavit of John

Stibrick, and the deposition testimony of John Zemaitis.

{¶47} In contrast, Northern Chemical argues that Strib Industries intentionally and

without justification caused ChemMasters to end its business relationship with Northern

Chemical. Specifically, Northern Chemical submits that the following factors create genuine

issues of material fact regarding whether Strib Industries’ intentional interference was improper:

Defendants held a shipment of product hostage to cause the interference with the business relationship between Plaintiff and ChemMasters and left ChemMasters with the option of either finding a new supplier or doing business directly with Defendants. * * * Defendants left ChemMasters no option to do business with Defendants. * * * Defendants’ motive was to force the shut out of Plaintiff and to take the entire business relationship and profits for themselves. Defendants’ used the nature of their relationship with Plaintiff and the knowledge it acquired from Plaintiff of Plaintiff’s processes, pricing, contacts and relationship with ChemMasters to steal the relationship.

{¶48} Our review of the relevant admissible evidence does not support Northern

Chemical’s position. While Northern Chemical suggests the Strib Industries’ actions were

unjustified, Stibrick testified that he ended his business relationship with Northern Chemical

because he “wasn’t being paid for my services, timely, as we had agreed.” He acknowledged

that Northern Chemical and Strib Industries agreed to a payment schedule where Strib Industries

would not be paid by Northern Chemical until Northern Chemical was paid by ChemMasters. However, Stibrick testified that he learned that ChemMasters “was very timely” with its

payments to Northern Chemical based on conversations he had with Northern Chemical

representatives.

{¶49} Stibrick explained that before Strib Industries held an order that was produced for

ChemMasters, he contacted Zemaitis to determine why Northern Chemical was failing to pay

outstanding invoices. According to Stibrick, Zemaitis claimed that “he was not being paid

timely by ChemMasters.” Thereafter, Stibrick met with ChemMasters to seek clarification.

Stibrick testified that during this meeting, a representative for ChemMasters indicated that

ChemMasters was paying Northern Chemical for its services in a timely fashion, despite what

Zemaitis may have claimed. In light of this information, Stibrick testified that he informed

ChemMasters as follows:

I can’t do business with [Northern Chemical] because [it] doesn’t pay as we agreed. You can either find another vendor or supplier or we can continue to produce them, but you would have to send me, Products Chemical, the purchase orders, we would process your orders and * * * you would pay us directly.

{¶50} Stibrick testified that shortly after his meeting with ChemMasters, Strib Industries

received its first purchase order from ChemMasters and, at ChemMasters’ request, Strib

Industries agreed to provide blending services to ChemMasters directly.

{¶51} Viewing the foregoing evidence in a light most favorable to Northern Chemical, we

find there is no evidence that Strib Industries used improper means to terminate ChemMasters’

business relationship with Northern Chemical.

{¶52} Collectively, the evidence attached to Strib Industries’ motion for summary

judgment demonstrates that Stibrick had a good faith basis to notify ChemMasters that it would

no longer blend products on Northern Chemical’s behalf due to Northern Chemical’s failure to pay outstanding invoices. Without competing admissible evidence regarding the status of

ChemMasters’ payment history with Northern Chemical, Strib Industries’ communication to

ChemMasters that it would no longer provide products on Northern Chemical’s behalf was

justified and, therefore, cannot be deemed improper. ChemMasters was free to continue its

business relationship with Northern Chemical, and there is no factual or legal basis to conclude

that Strib Industries improperly induced ChemMasters to end its relationship with Northern

Chemical. In short, Northern Chemical cannot attempt to use the tortious interference doctrine

“to thwart competition where it * * * had no reasonable expectation of exclusive dealings” with

ChemMasters and there is no evidence of improper interference or inducement. See Miller

Bros. Excavating v. Stone Excavating, 2d Dist. Greene No. 97-CA-69,

(Jan.16, 1998).

{¶53} Moreover, Northern Chemical has not presented admissible evidence to support its

assertion that Stibrick met with ChemMasters with the intention of “stealing” its business from

Northern Chemical. Stibrick testified that the purpose of the meeting was to determine whether

ChemMasters had been making timely payments to Northern Chemical. In addition, Zemaitis

testified that he had no knowledge concerning the conversation between Stibrick and

ChemMasters’ representatives or how the relationship between ChemMasters and Strib

Industries began.

{¶54} Accordingly, we find the trial court properly granted summary judgment in favor of

Strib Industries on Northern Chemical’s tortious interference with a business relationship claim.

2. Tortious Interference with a Contract

{¶55} The elements of a tortious interference with a contract claim include “(1) the

existence of a contract, (2) the wrongdoer’s knowledge of the contract, (3) the wrongdoer’s intentional procurement of the contract’s breach, (4) the lack of justification, and (5) resulting

damages.” Fred Siegel,

,

(1999), at paragraph one of the

syllabus.

{¶56} In its motion for summary judgment, Strib Industries’ argued that Northern

Chemical’s complaint merely set forth the elements of a tortious interference with a contract

claim, without “factual allegations that go to each and every one of the recited legal elements.”

In support of this statement, Strib Industries attached the affidavit of John Stibrick and the

deposition testimony of John Zemaitis. In relevant part, Stibrick averred that he was not aware

of any contract between ChemMasters and Northern Chemical. Similarly, Zemaitis conceded

that ChemMasters “was free to do business with anybody” and that he was not aware if Northern

Chemical had a written contract with ChemMasters. Thus, while ChemMasters had sent

purchase orders to Northern Chemical in the past, there is no evidence in the record to suggest

Northern Chemical and ChemMasters shared an ongoing contractual relationship, or that Strib

Industries was aware of such a contractual relationship. See, e.g., Walter v. ADT Sec. Sys., Inc.,

10th Dist. Franklin No. 06AP-115,

(noting that the “main difference

between tortious interference with a contract and tortious interference with a business

relationship is that interference with a business relationship includes intentional interference with

prospective contractual relations, not yet reduced to a contract.”).

{¶57} Collectively, this evidence demonstrates the absence of material facts on the

essential elements of Northern Chemical’s tortious interference with a contract claim.

Furthermore, Northern Chemical’s brief in opposition did not present evidence to create issues of

material fact as to the existence of a valid contract with ChemMasters, or Strib Industries’

knowledge of the contract if one existed. Accordingly, we find the trial court properly granted summary judgment in favor of Strib Industries on Northern Chemical’s tortious interference with

a contract claim.

3. Breach of Contract

{¶58} To recover on a claim for breach of contract, a plaintiff must demonstrate (1) the

existence of a binding contract, (2) performance by the plaintiff, (3) breach by the defendant, and

(4) damages resulting from the breach. Corsaro v. ARC Westlake Village, Inc., 8th Dist.

Cuyahoga No. 84858,

, citing Am. Sales, Inc. v. Boffo,

,

(2d Dist. 1991).

{¶59} Throughout this litigation, Northern Chemical has alleged that Strib Industries

breached the Strib NDA Agreement by using Northern Chemical’s confidential information,

including pricing and product formula information, to create a relationship with ChemMasters.

In its motion for summary judgment, Strib Industries argued that assuming the Strib NDA

Agreement was valid and applied to its dealings with ChemMasters, “there is no evidence to

support Northern Chemical’s claim that Strib Industries breached the agreement.”

{¶60} The Strib NDA Agreement provides, in pertinent part:

1. Confidential Information. “Confidential Information,” for purposes of this Agreement, shall include, without limitation, (a) the existence of the discussions with the Company regarding the Possible Transaction, and (b) all information, materials, documents, including, without limitation, technical information and data, product development information and data, and financial statements, projections and other information, furnished by the Company * * * Recipient hereby acknowledges the sensitive and confidential nature of the Confidential Information and the damage that may result to the Company in the event any of such confidential information is disclosed to third parties or otherwise used improperly.

2. Non-Use of Information. Recipient shall not [use] any Confidential Information furnished by or through the Company or its employees, affiliates, agents or representatives in any manner whatsoever, in whole or in part, for any purpose other than in connection with evaluating the Possible Transaction. 3. Non-Disclosure of Information. Recipient shall use its best efforts to keep secret and confidential all Confidential Information provided by the Company or any of its employees, affiliates, agents or representatives, and shall not reveal any Confidential Information to any third party.

{¶61} At his deposition, Zemaitis alleged that Strib Industries breached the Strib NDA

Agreement by using Northern Chemical’s confidential information to steal ChemMasters as a

customer. However, Zemaitis’s deposition testimony does not support this assertion. Relevant

to Strib Industries’ position that it did not breach the Strib NDA Agreement, Zemaitis provided

the following testimony:

Defense Counsel: The product you were developing or producing for ChemMasters, were those formulas Northern Chemical’s or ChemMasters’?

John Zemaitis: ChemMasters’.

Defense Counsel: So they would tell you, “here is the formula. I want you to mix this for us?

John Zemaitis: Correct.

***

Defense Counsel: Was there any information that belonged to Northern Chemical that you feel my client misued?

John Zemaitis: I can’t answer that. I don’t know.

***

Defense Counsel: As you sit here today, are you aware of any information that Strib Industries, and when I say Strib Industries, I mean Products Chemical, Strib Industries, and John Stibrick, any information that they provided to ChemMasters that belonged to you?

John Zemaitis: No.

{¶62} In light of the foregoing testimony, we find Strib Industries met its initial burden of

pointing to evidence that established its entitlement to judgment as a matter of law on Northern Chemical’s breach of contract claim. In response, Northern Chemical failed to meet its

reciprocal burden. The clear and unambiguous language of the Strib NDA Agreement

demonstrates that Strib Industries was only restricted from using or disclosing Northern

Chemical’s confidential information to third parties. Here, Zemaitis acknowledged at his

deposition that the formulas used to produce or develop chemical sealants for ChemMasters were

owned by ChemMasters. Thus, the record reflects that any confidential or proprietary

information received or used by Strib Industries belonged to ChemMasters.

{¶63} Furthermore, we find no merit to Northern Chemical’s contention that there are

issues of material fact remaining as to whether Strib Industries inappropriately used or disclosed

confidential information regarding Northern Chemical’s pricing structure. Stibrick testified at

his deposition that he and ChemMasters discussed pricing and agreed the price would be the

same as the price ChemMasters previously paid to Northern Chemical. However, there is no

evidence in this record to suggest that Strib Industries provided ChemMasters with any

confidential information regarding pricing that ChemMasters was not already aware of given its

prior business relationship with Northern Chemical. Similarly, there is no testimony to suggest

Stibrick used his knowledge of Northern Chemical’s pricing information to facilitate or finalize

Strib Industries’ business relationship with ChemMasters. Rather, the evidence demonstrates

that ChemMasters’ business relationship with Strib Industries began at ChemMasters’ request.

{¶64} Under these circumstances, reasonable minds can conclude that in formulating its

business relationship with ChemMasters, Strib Industries did not breach the Strib NDA

Agreement by using or disclosing confidential information that was furnished to Strib Industries

by or through Northern Chemical or its employees. The admissible evidence attached to

Northern Chemical’s brief in opposition does not create a genuine issue of fact for trial. Accordingly, we find the trial court properly granted summary judgment in favor of Strib

Industries on Northern Chemical’s breach of contract claim.

4. Misappropriation of Trade Secrets

{¶65} Ohio’s Uniform Trade Secrets Act, R.C. 1333.61 through 1333.69, provides for a

civil remedy for the misappropriation of trade secrets.

{¶66} In its complaint, Northern Chemical alleged that Strib Industries misappropriated

Northern Chemical’s trade secrets in an effort to facilitate its direct business relationship with

ChemMasters. The trade secrets identified in Northern Chemical’s complaint include,

“business information and scientific and/or technical information regarding, amongst other

things, the plaintiff’s customers, pricing, designs, processes, methods, and techniques.”

{¶67} The Ohio Uniform Trade Secret Act, R.C. 1333.61(D), defines a “trade secret” as:

[I]nformation, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:

(1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

{¶68} R.C. 1333.63(B) defines “misappropriation” as any of the following:

(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means;

(2) Disclosure or use of a trade secret of another without the express or implied consent of the other person by a person who did any of the following:

(a) Used improper means to acquire knowledge of the trade secret; (b) At the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret that the person acquired was derived from or through a person who had utilized improper means to acquire it, was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or was derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use;

(c) Before a material change of their position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

{¶69} When analyzing a trade secret claim, the court must consider:

(1) The extent to which the information is known outside the business; (2) the extent to which it is known to those inside the business, i.e., by the employees; (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information; (4) the savings effected and the value to the holder in having the information as against competitors; (5) the amount of effort or money expended in obtaining and developing the information; and (6) the amount of time and expense it would take for others to acquire and duplicate the information. (Citation omitted.)

Salemi v. Cleveland Metroparks,

,

,

.

{¶70} Northern Chemical’s trade secret claim reiterates many of the same arguments

supporting its breach of contract claim. In challenging the validity of Northern Chemical’s

trade secrets claim, Strib Industries argued in its motion for summary judgment that there cannot

be a claim for misappropriation of trade secrets where (1) “the trade secrets belonged to

ChemMasters not plaintiff,” and (2) “there was no information provided from Strib Industries to

ChemMasters for which ChemMasters did not already have knowledge.” In support of these

statements, Strib Industries relies on Zemaitis’s testimony that (1) the formulas Strib Industries

used to produce the concrete sealer for ChemMasters were owned and/or developed by

ChemMasters, and (2) he was unaware of any information Strib Industries provided to

ChemMasters that belonged to Northern Chemical. {¶71} Viewing the evidence in a light most favorable to Northern Chemical, we find Strib

Industries satisfied its burden of demonstrating the absence of genuine issues of material fact of

the element of “misappropriation.” Initially, we note that there is no evidence that Strib

Industries used improper means to “acquire” Northern Chemical’s alleged trade secrets. In this

case, the “trade secrets” referenced in Northern Chemical’s complaint contemplates information

that would have been properly provided to Strib Industries during its business relationship with

Northern Chemical. It is not information that was acquired through “theft, bribery,

misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage

through electronic or other means.” See R.C. 1333.61(A). Moreover, Zemaitis’s deposition

testimony supports Strib Industries’ position that the blending formulas Strib Industries used to

fill ChemMasters purchase orders were owned or developed by ChemMasters. Thus, trade

secrets relating to the scientific information involved in Strib Industries’ production of the

concrete sealant, including designs, processes, methods, and techniques, belonged to

ChemMasters and not Northern Chemical.

{¶72} In addition, we find no evidence to support an allegation that Strib Industries

disclosed trade secrets to ChemMasters without Northern Chemical’s consent. Analogous to

our resolution of Northern Chemical’s breach of contract claim, we find no legal precedent to

suggest Strib Industries “misappropriated trade secrets” where the record demonstrates that the

“information,” as defined under R.C. 1333.63(D), was already known by ChemMasters based on

its prior business dealings with Northern Chemical. As stated, the record demonstrates that

ChemMasters was aware of Northern Chemical’s processes and/or pricing information through

no act of Strib Industries. Thus, there is no evidence to suggest Strib Industries improperly

disclosed information to ChemMasters that it had a duty to maintain its secrecy or limit its use. {¶73} Northern Chemical’s brief in opposition falls short of presenting genuine issues of

material fact regarding the element of misappropriation as defined under the statute. Northern

Chemical provided no evidence to support the mere accusations and assertions raised in its

opposition brief. Accordingly, we find the trial court properly granted summary judgment in

favor of Strib Industries on Northern Chemical’s misappropriation of trade secrets claim.

5. Strib Industries’ Counterclaims

{¶74} Strib Industries’ raised counterclaims for breach of contract and unjust enrichment,

alleging that “Northern Chemical failed to pay Strib Industries for product prepared at the request

of Northern Chemical for ChemMasters and for which Northern Chemical received payment

from ChemMasters.”

{¶75} In its motion for summary judgment, Strib Industries’ argued that Northern

Chemical failed to pay outstanding invoices in the amount of $8,992.50. In support of this

statement, Strib Industries attached copies of nine overdue invoices that were deemed by the trial

court to be written admissions. Construing this evidence in a light most favorable to Northern

Chemical, no genuine issues of material fact remain as to Strib Industries’ counterclaims for

unpaid invoices.

{¶76} In its brief in opposition and on appeal, Northern Chemical does not dispute that it

failed to satisfy the unpaid invoices for services rendered by Strib Industries. Instead, Northern

Chemical argues that it is excused from performing its obligation to pay the outstanding invoices

because Strib Industries’ “materially breached” the parties’ agreement for Strib Industries to

receive payment after Northern Chemical was paid by ChemMasters. However, Northern

Chemical’s opposition brief failed to set forth admissible evidence to support its allegation of material breach. Accordingly, the trial court properly granted summary judgment in favor of

Strib Industries for its claim for unpaid invoices in the amount of $8,992.50.

{¶77} Based on the foregoing, Northern Chemical’s second assignment of error is

overruled.

{¶78} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and LARRY A. JONES, SR., J., CONCUR