COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73115 RHEALY TRAVEL, INC. : ACCELERATED DOCKET : Plaintiff-appellant : JOURNAL ENTRY : AND -vs- : OPINION : JENNIFER SULLIVAN, ET AL.: PER CURIAM : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-CV-292326 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: JAMES F. CSANK, ESQ. KEVIN M. SPELLACY, ESQ. CSANK & CSANK CO. MCGINTY, GIBBONS & HILOW Four Brecksville Commons, #202 1375 E. Ninth Street, #1920 8221 Brecksville Road Cleveland, Ohio 44114 Brecksville, Ohio 44141 THOMAS P. GILL, ESQ. 75 Public Square, Suite 1320 Cleveland, Ohio 44113 -2- PER CURIAM: Appellant, Rhealy Travel, Inc., appeals the trial court's order granting summary judgment in favor of appellees, Jennifer Sullivan, Dyco Travel, Inc. and Kelly Haas. For the following reasons, we reverse and remand. Appellant purchased the assets of Mayfield Travel West. The purchase agreement stated that, included in the sale was a customer list. No written customer list was ever provided by Mayfield. Lisa Healy, an owner of Rhealy Travel, understood this customer list included all of the past clients of Mayfield . Jennifer Sullivan was the office manager and an in-house, salaried travel agent for Mayfield and its successor, Rhealy. Three months after Rhealy purchased the business, Sullivan left and went to work for Dyco Travel, Inc. When Sullivan left, she took with her a file box of index cards. The index cards contained the names of clients, their addresses, phone numbers, credit card numbers, frequent flier numbers, hotel and seating preferences, and names of the client's family members. Sullivan averred that many of these clients were generated by her friends and family members, prior to her employment with Mayfield. Sullivan signed a covenant not to compete with Mayfield. Sullivan deposed that she did not have a copy of the covenant, and a copy was not in evidence. She could not recall if the covenant contained a limitation as to time or geographic area. In another pleading, Sullivan admitted the duration of the covenant was one year. Sullivan stated that the covenant contained a provision that -3- she would not be prohibited from doing business with clients Sullivan had before she came to Mayfield. Reichert, the owner of Mayfield, could not recall whether Sullivan signed a covenant not to compete. Sullivan denied booking for other travel agencies while still at Rhealy, and appellant presented no evidence of same. Dyco Travel, Inc. averred that it did not seek to entice customers away from Rhealy and it did not engage in any conduct to damage or destroy Rhealy's business. According to Dyco, any clients brought by Sullivan to Dyco were the property of Sullivan. Appellee Kelly Haas was employed by Mayfield, and subsequently Rhealy, as both an in-house and an outside travel agent. A covenant not to compete bearing Haas' signature was in evidence. Haas promised not to compete with the business of Mayfield, its successors or assigns. Not compete was defined as soliciting a customer of Mayfield or its successor, which customer existed during the course of her employment with Mayfield or its successor. The covenant was for a duration of one year after employment terminated, but did not contain any limitations as to geographic area. Jennifer Sullivan signed the covenant on behalf of Rhealy. Haas left Rhealy on maternity leave on July 10, 1995. On and after July 10, 1995, Haas contacted clients she had served at Mayfield and Rhealy. Haas booked these clients through Dyco. Haas resigned from Rhealy on October 16, 1995. Haas allegedly took her file box of clients when she left -4- Rhealy Travel. Haas deposed that all of her clients were generated through her family and friends, prior to her employment with Mayfield. Lisa Healy deposed that although the names of the clients were available from the invoices, there were no other records of the customer's credit card numbers, seating and hotel preferences and other information. Healy said that only employees, owners and three independent contractors had access to the computers. In deposition, Healy said that anyone could have walked in and taken the file box off Sullivan's desk. She also said that she gave the employees no specific instructions as to how to secure the file boxes. In a later affidavit, Healy stated that the general public did not have access to Sullivan's desk, located in the back room. The public did have access to Haas' desk, but Haas put her file box in her desk when she was not at her desk. Healy also deposed that travel agents develop a following of customers, who follow the agent when the agent goes to another travel agency. Healy advertised for agents with such a following . Reichert, the owner of Mayfield, also deposed that agents develop a following . Rhealy's complaint alleged that: Sullivan and Haas unlawfully removed file boxes and files; Sullivan and Haas violated their covenants not to compete; Sullivan and Haas booked customers for other travel agencies while working at Rhealy; Dyco, Inc. engaged in unfair competition by servicing the former customers of Rhealy; and Sullivan, Dyco and Haas engaged in a conspiracy to damage -5- Rhealy's business. Appellant requested this appeal be heard on the accelerated docket. Appellant attempted to circumvent the page limit for appellant briefs by referring the court to its responses to motion for summary judgment. See Loc. R. 25 of the Ohio Court of Appeals, Eighth District. While we find appellant's action in violation of the local rules, we chose, in our discretion, to hear this case on the accelerated docket. Appellant's first and second assignments of error are interrelated, and will be discussed together. They state: THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS DYCO, SULLIVAN AND HAAS BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE IN THIS CASE. WHEN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS DYCO, SULLIVAN, AND HAAS, THE COURT BELOW ERRED IN ITS APPLICATION OF LAW. Summary judgment is appropriate upon the demonstration that there is no genuine issue as to any material fact; that the moving party is entitled to judgment as a matter of law; and that reasonable minds can come to but one conclusion, and that conclu- sion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Dre sher v. Burt (1996), 75 Ohio St.3d 280, 293. If the moving party satisfies its burden, the nonmoving party has the burden to set forth specific facts showing there is an issue for -6- trial. Id. We will first consider whether appellees were entitled to sum- mary judgment on the issue of the covenant not to compete. Appellees asserted the covenants were not enforceable because they did not contain geographic limitations. An unreasonable restric- tion will be enforced to the extent necessary to protect the employer's legitimate business interests, as long as undue hardship to the employee does not result. Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21, Rogers v. Runfold Assoc. (1991), 57 Ohio St.3d 5. The court may modify a restrictive covenant so that the covenant is not an unreasonable restraint of trade. Id., Am. Bldg. Serv., Inc. v. Cohen (1992), 78 Ohio App.3d 29. The lack of a geographic limit did not render the covenants unenforceable, because the court could impose a reasonable geographic limitation. There was a genuine issue of fact as to whether the covenants here were necessary to protect the legitimate business interests of the employer and/or were unduly burdensome to the employees. An employer may have a legitimate business interest in maintaining its customers. See Am. Bldg. Serv., Inc. Haas' covenant prohibits her from servicing even the customers Haas had previous to her employ- ment with Mayfield. Haas obtained these previous clients over at least two years, through family and friends. Haas worked at Mayfield for ten months. A reasonable trier of fact could differ as to whether it would place an undue hardship upon Haas to prevent her from servicing these clients. Sullivan and Haas were prohibited from servicing clients they -7- procured while at Mayfield/Rhealy or house clients of Mayfield/Rhealy. It is an issue of fact whether prohibiting the employees from contacting house clients or clients obtained during their tenure at Mayfield/Rhealy resulted in an undue hardship on Haas and Sullivan. While there was no evidence Haas or Sullivan serviced the house clients or clients obtained while at Mayfield/Rhealy, it appears the trial court left discovery issues pending as to the records of Dyco showing which customers were served. We will next consider whether the use of the customer information by appellees constituted the unlawful use of a trade secret. To support a claim for misappropriation of a trade secret, there must be evidence of: (1) the extent to which the information was known outside the business and (2) the precautions taken to safeguard the information. Biomedical Innovations v. McLaughlin (1995), 103 Ohio App.3d 122, citing Water Management, Inc. v. Stayanchi(1984), 15 Ohio St.3d 83, Pyromatics, Inc. v. Petruziello (1983), 7 Ohio App.3d 131, R.C. 1333.61. Healy deposed that anyone could have obtained the file boxes, and no instructions were given concerning securing the file boxes. Healy later averred that the general public did not have access to the boxes. An affidavit of a non-moving party which conflicts with the non-moving party's prior deposition testimony can create a genuine issue of fact and prevent summary judgment, if the affidavit was not submitted in bad faith. Kurtz v. Harcourt Brace Jovanovich, Inc. (1990), 69 Ohio App.3d 267, 171. Healy's affidavit does not appear to be in bad -8- faith. There was a genuine issue of material fact as to whether sufficient precautions were taken to safeguard the information. Healy indicated that only the owners and staff of Rhealy had access to the customer names, addresses and other information. The former employers of Haas and Sullivan knew the identity of the customers Haas and Sullivan had before they worked for Mayfield. However, these employers may not have known the current address and other customer information. Additionally, the competitors had no knowledge of Rhealy's house clients and clients generated during Haas' and Sullivan's tenure at Mayfield. There were genuine issues of fact as to the extent the customer information was known outside the business, and an issue of fact as to whether this information was a trade secret. There are genuine issues of fact as to whether the appellees engaged in a civil conspiracy to damage appellant's business. The elements of civil conspiracy are: (1) a malicious combination of two or more persons, (2) resulting in injury to person or property, and (3) existence of an unlawful act independent of the conspiracy. Universal Coach, Inc. v. New York City Transit Authority, Inc. (1993), 90 Ohio App.3d 284, 292, Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 419. There are issues of fact as to whether Haas, Sullivan and Dyco purposefully conspired to violate the covenants not to compete and misappropriate trade secrets. There is also an issue of fact as to whether Haas breached her duty of good faith and loyalty to Rhealy by servicing customers -9- through Dyco while still an employee of Rhealy. Haas was on maternity leave, but an employment relationship still existed when Haas performed these services for Dyco. It is an implied condition of employment that an employee will carry out their duties in good faith and not act to the detriment of the employer. Roberto v. Brown Cty. Gen. Hosp. (1989), 59 Ohio App.3d 84, 87, Cartwright v. Falls Heating & Cooling, Inc. (June 29, 1994), Summit App. No. 16079, unreported. There are also issues of fact as to whether the file boxes were the property of Haas and Sullivan or the property of Rhealy. Regardless of whether the information was a trade secret, the file boxes may have been Rhealy's property. Sullivan and Haas allegedly converted the file boxes, depriving Rhealy of their use. In conclusion, the trial court erred in granting summary judgment in favor of appellees. Accordingly, the appellant's assignments of error are sustained. The decision of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion. -10- It is therefore considered that said appellant recover of said appellees its costs herein. 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. ANN DYKE, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE KENNETH A. ROCCO, 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 .