COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71440 FRED SIEGEL CO., L.P.A., : ET AL., : : Plaintiffs-Appellants : JOURNAL ENTRY : and vs. : OPINION : ARTER & HADDEN, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : JULY 31, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 277224 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: J. Michael Murray Brooke F. Kocab BERKMAN, GORDON, MURRAY & DEVAN 2121 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1949 2 For defendants-appellees: D. John Travis Mark A. Greer GALLAGHER, SHARP, FULTON & NORMAN 6th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 3 NAHRA, J.: Fred Siegel Co., L.P.A. and Fred Siegel(hereinafter referred to collectively as FSC ) appeal the grant of summary judgment in favor of defendants, Karen Bauernschmidt and Arter & Hadden ( A & H ), in a suit for damages arising out of the departure of FSC associate attorney Bauernschmidt to the law firm of A & H. Bauernschmidtworked for Siegel for ten years as an associate attorney. Prior to her change of employment, she gave FSC notice that she would be leaving. On the day prior to her departure, FSC notified Bauernschmidt that it considered its client list confidential and that she was to be prohibited from contacting any of its clients in the future. On her last day with appellants, Bauernschmidt removed personal belongings from her office, including a Rolodex file which contained cards made and acquired before and during her tenure at FSC. Additionally, she retained FSC's client list at her home, which she later returned. Bauernschmidt contacted FSC clients to notify them of her departure to A & H. In her affidavit submitted in support of the motion for summary judgment, she stated that she compiled the addresses of the clients that she had done work for from various sources, not excluding both her Rolodex file and the FSC client list. Following Bauernschmidt'sannouncement, appellees sent a later mailing to solicit business for Bauernschmidt. The mailing consisted of a two-page solicitation describing the services that A & H provided, listing Bauernschmidt as the person to contact for 4 more information. The solicitation was sent to current A & H clients as well as targeted property owners, reaching FSC clients. Bauernschmidt testified at deposition that she did not create the mailing list and that the mailing list consisted of addresses of A & H clients and others culled from business directories. Appellants' assignment of error reads: THE TRIAL COURT ERRED IN GRANTING THE APPELLEES' MOTION FOR SUMMARY JUDGMENT BECAUSE APPELLEES FAILED TO MEET THEIR BURDEN OF PROVING THERE WERE NO GENUINE ISSUES AS TO ANY MATERIAL FACTS SUCH THAT THEY WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW. See. R. 28, 37-43. (SIC) Appellants argue that appellees tortiously interfered with their relationship with clients because Bauernschmidt took and used trade secrets to solicit FSC clients together with A & H. Additionally, appellant alleges that Bauernschmidt breached her fiduciary duties by taking trade secrets to A & H. The court granted summary judgment in full to both defendants after FSC sought fees owed by former clients from those clients, removing the issue of any fees due FSC from A & H. The court granted summary judgment without explanatory reasoning. However, it is not necessary to know the trial court's reasoning as a case decided upon summary judgment is reviewed de novo. See, Brown v. Scioto Bd. of Comm'rs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A court may grant summary judgment pursuant to Civ.R. 56 when it determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary 5 judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274. In their joint motion for summary judgment, appellees claimed that appellants could not present evidence sufficient to maintain the claims made in the complaint. To prevail on a claim that the party opposing a motion for summary judgment cannot present evidence sufficient to allow the case to go to trial, the moving party must show by the evidentiary materials listed in Civ.R. 56 that appellant cannot support its allegations. See, Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. Upon a satisfactory showing, the non-moving party has a duty to produce evidentiary material sufficient to sustain its allegations. Id. Appellants present four counts in their complaint. Count I alleges that appellees tortiously interfered with appellants business relationships, Count II alleges that Bauernschmidt utilized trade secrets to solicit business for A & H, Count III alleges that A & H conspired with Bauernschmidt to use trade secrets, and Count IV alleges that Bauernschmidt breached duties of loyalty and fiduciary obligations by retaining and later using appellants' trade secrets. Appellants specifically allege that the Rolodex, client list, and information regarding its fee arrangements with its clients are trade secrets as defined in R.C. 1333.51(A)(3). As to Count I, appellees argue that they were privileged to contact FSC clients and accordingly no tortious interference 6 occurred. Appellees argue as to the second and third counts of the complaint that the materials and information retained by Bauernschmidt after she left appellants employ were not trade secrets, and thus no cause of action lies. As to Count IV of the complaint, appellees argue that there is no separate cause of action for breach of loyalty or fiduciary obligation cognizable in this case. A law firm may bring a tort action for business interference against a former employee. See, e.g., Sonkin & Melena Co, L. P. A. v. Zaransky (1992), 83 Ohio App.3d 169, 614 N.E.2d 807. In Sonkin & Melena, this court recognized that: The tort of business interference occurs when a person, without a privilege, induces or otherwise purposely causes a third party not to enter into, or continue, a business relationship, or perform a contract with another. Id. at 179, 614 N.E.2d at 814 (quoting Juhasz v. Quik Shops, Inc. (1977), 55 Ohio App.2d 51, 379 N.E.2d 235, syllabus.) R.C. 1333.51 provided in part that: (A)(3) `Trade Secret' means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, or improvement, or any business plans, financial information, or listing of names, addresses, or telephone numbers which has not been published or disseminated, or otherwise become a matter of general public knowledge. Such scientific or technical information, design, process, procedure, formula, or improvement, or any such business plans, financial information, or listing of names, addresses, or telephone numbers is presumed to be secret when the owner thereof takes measures designed to prevent it, in the ordinary course of business, from being available to persons other than those selected by the owner to have access thereto for limited purposes. *** 7 (C) No person, having obtained possession of an article representing a trade secret or access thereto with the owner's consent, shall convert such article to his own use or that of another person, or thereafter without the owner's consent make or cause to be made a copy of such article, or exhibit such article to another. In [a]pplying R.C. 1333.51(A)(3), a trial court should examine those facts which show the extent to which information is known outside the business and the precautions taken to guard the secrecy of the information. Waste Management, Inc. v. Stayanchi (1984), 15 Ohio St.3d 83, 472 N.E.2d 715, syllabus; see, also, Sonkin & Melena, supra. Appellants'claim for business interference is dependent on whether or not the information that Bauernschmidt retained was in fact a trade secret; if so, then the use of that information could be found to be tortious. Whether information is a trade secret or not is a factual determinationto be made by the trial court. State ex rel. Jacobs v. Prudoff (1986), 30 Ohio App.3d 89, 506 N.E.2d 927. The FSC client list is a listing of names, addresses, or telephone numbers which has not been published or disseminated, or otherwise become a matter of general public knowledge. R.C. 1533.51(A)(3). Although appellees state that FSC clients are a matter of public record, the client list contains the names of contacts which do not necessarily appear as a matter of public record. Moreover, the information contained in public records was kept in many counties in Ohio and considerable effort was needed to collect it. Appellees, for the purpose of summary judgment, have not foreclosed a finding of fact that the client list constitutes a trade secret 8 within the meaning of former R.C. 1533.51. We next examine whether or not the other elements of the tort of business interference have been sufficiently supported by appellants to withstand a motion for summary judgment. In Sonkin & Melena, supra, we found that a departing attorney had a privilege to inform those clients for whom he worked that he was leaving the firm and that he did not tortiously interfere with his previous firm's business by compiling a client list and informing those clients of his departure. However, in this case, the client list retained by Bauernschmidt was a list of all FSC clients, not only those clients Bauernschmidt had worked for. Bauernschmidt stated in her affidavit that she does not remember using the FSC client list to compile her mailing list of former clients. However, appellants demonstrated that certain letters sent by Bauernschmidt contain misspellings in client addresses; misspellings which appear only in the FSC client list. Accordingly, an inference may be made that the client list was utilized in her mailing. Also, in Bauernschmidt's affidavit she avers that she contacted only those clients for whom she worked. But she also stated on deposition that she did not know if A & H used FSC's client list in its mailing. Thus, a trier of fact could find that the privilege as outlined in Sonkin & Melena, supra, was exceeded in this mailing as well. Accordingly, there remains a genuine issue of material fact as to whether or not appellees contacted only those FSC clients for 9 whom Bauernschmidt worked or whether they utilized the entire FSC client list to solicit business. This precludes summary judgment as to Count I of the complaint alleging appellees tortiously interfered with appellants' client relationships. As to the second and third count of appellants' complaint, as stated supra, we find that the client list retained by Bauernschmidt may be found to be a trade secret. As to Bauernschmidt's rolodex, it contains the names of clients she worked for and she could properly retain this information. As to FSC's fee arrangements, the record indicates that FSC's fee structure was readily ascertainable by anyone making inquiry and is thus not a trade secret. Accordingly, appellees have not met their burden to show that appellants cannot present evidence to sustain their claim as to the client list. For this reason, summary judgment was inappropriate as to Counts II and III of the complaint. However, Count IV, alleging that Bauernschmidt breached her duties of loyalty and fiduciary obligations while still employed by FSC, is not supported by the facts of this case nor by citation to existing Ohio law. Appellants argue that the breach alleged was committed by the retention of trade secrets but have not provided Ohio law recognizing such a cause of action. Accordingly, appellees have demonstrated that appellants cannot maintain this claim, and summary judgment was appropriately granted as to Count IV of the complaint. 10 The grant of summary judgment is reversed as to counts I, II, and III of appellants' complaint. The grant of summary judgment as to count IV of appellants' complaint is affirmed. Judgment affirmed in part, reversed in part and remanded. 11 This cause is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Costs divided equally between plaintiffs-appellants and defendants-appellees. 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. BLACKMON, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .