 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                              ATTORNEY FOR APPELLEE:

STEPHEN R. BUSCHMANN                                 F. ANTHONY PAGANELLI
Thrasher Buschmann & Voelkel, P.C.                   Taft Stettinius & Hollister LLP
Indianapolis, Indiana                                Indianapolis, Indiana


                                                                                  Apr 03 2013, 9:08 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

CHRISTOPHER SNYDER,                                  )
                                                     )
       Appellant,                                    )
                                                     )
               vs.                                   )      No. 29A02-1207-CT-592
                                                     )
CLASSIC RESTAURANT SERVICES, LLC,                    )
                                                     )
       Appellees.                                    )


                     APPEAL FROM THE HAMILTON CIRCUIT COURT
                            The Honorable Paul A. Felix, Judge
                             Cause No. 29C01-1205-CT-5427


                                           April 3, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Christopher Snyder appeals from the trial court’s grant of a preliminary injunction

against him and in favor of Classic Restaurant Services, LLC (Classic). Snyder presents the

following consolidated and restated issues for review:

       1. Did the trial court abuse its discretion when it concluded that Classic had a
          reasonable likelihood of success on the merits on its claim for tortious
          interference with Classic’s business relationships?

       2. Did the trial court abuse its discretion when it concluded that Classic had
          established a reasonable likelihood of success on the merits on its claim for
          misappropriation of trade secrets?

       We affirm.

       Classic is an Indiana limited liability company that provides heating, air conditioning,

refrigeration, and cooking equipment sales and service predominantly to restaurants

throughout central Indiana. Rick Petrie is a twenty-five-percent owner of Classic and has

managed the company since its inception in 2009. Prior to this, Petrie was an employee of

PFC Management Company (PFC), which owns all or most of the Denny’s restaurants in

central Indiana. PFC is a joint owner of Classic. Aside from Denny’s, Classic’s largest

customers in 2011 and 2012 included Golden Corral, Ruby Tuesday, Jimmy John’s, and

Subway. Classic employs less than eight individuals and operates in a highly competitive

market.

       Snyder began working part-time as a service tech for PFC in early 2009 and shortly

thereafter became a full-time service tech for Classic. Snyder did not have a non-compete

agreement with Classic and was expressly permitted to do residential jobs on the side while

using his company vehicle. During his more than three years of employment, Snyder


                                              2
serviced all of Classic’s customers.

         By the summer of 2011, Snyder began efforts to start his own competing business and

take customers from Classic. Without showing his hand, Snyder repeatedly asked Petrie

about wholesale-to-retail markups, but Petrie refused to provide this information. By July

2011, and without Classic’s knowledge, Snyder had succeeded in taking the business of two

Subway restaurants from Classic. He serviced these restaurants after hours on his own behalf

and to the exclusion of Classic, and he used his company-owned vehicle while making these

calls.

         In the fall of 2011, Snyder unsuccessfully attempted to solicit Ruby Tuesday

restaurants to transfer their business to him. Although he was still employed by Classic,

Snyder had prepared to compete by purchasing and outfitting a van, obtaining business cards

and insurance, and printing marketing flyers. He distributed his flyers to several restaurants

in central Indiana. He organized his new company, A Plus Air LLC, by filing articles of

organization with the Indiana Secretary of State in February 2012.

         Around February 2012, Snyder directly solicited Golden Corral to transfer its

substantial business away from Classic and to A Plus Air. When speaking with management

of Golden Corral, Snyder referred to Classic’s service as sub-par and indicated that he could

do better. By his own admissions, Snyder failed to inform Classic of customer complaints

and, instead, “commiserate[ed]” with Classic’s customers when they expressed

dissatisfaction. Transcript at 36. While still employed by Classic, Snyder filed an

application for qualification as a Golden Corral vendor in February or March 2012. After


                                              3
Snyder became an approved vendor, he entered into discussions with Golden Corral’s district

manager, Carl Horton. In March 2012, Horton gave Snyder the “green light” to go out on his

own, agreeing to give most of Golden Corral’s business to A Plus Air. Id. at 155. Snyder

asked if the transition could be delayed until late April so that he could use his remaining

paid vacation days at Classic for an upcoming trip to Florida. Horton agreed.

       Upon returning from vacation on Saturday, April 21, Snyder sent a text message to

Petrie, indicating that he was resigning effective immediately. He also notified Petrie of a

specific Denny’s location where he had left the company vehicle and equipment. Snyder,

however, had retained a binder that contained contact information of all Classic’s vendors

and customers. This list was marked confidential and Classic employees had been directed

on numerous occasions by Petrie to keep its contents confidential. Snyder continued to use

the list for his new business.

       The following Monday morning, April 23, Snyder made his first service call at Golden

Corral as A Plus Air. Shortly after Snyder’s resignation, Petrie noticed a sharp decline in the

volume of service calls from Golden Corral. Petrie began calling the managers of the various

Golden Corral restaurants and learned that Snyder now had the bulk of their business.

       Doris Warswick, Classic’s office manager, had been aware for some time of Snyder’s

intention to go out on his own. In fact, he told her in July 2011 of his efforts to solicit Ruby

Tuesday. Moreover, Snyder had sought pricing information from her, which she could not

provide at the time because only Petrie had this type of information.

       The day before Snyder sent his text-message resignation, Warswick provided Classic


                                               4
with notice of her own pending resignation. Thereafter, early in the morning on her last day

of work, April 27, Warswick surreptitiously emailed two of Classic’s business documents to

Snyder, routing the emails first through her personal email account.1 Warswick gave Snyder

advance notice that these would be coming. The documents were correspondence from one

of Classic’s largest customers, Ruby Tuesday, for which Classic was the primary contractor

in the area. The first document outlined Ruby Tuesday’s new program for facilities

management and directions on how to continue to be a preferred contractor, and the second

document was a table of HVAC services part mark-ups for USM Tech, Ruby Tuesday’s new

facilities maintenance and management provider. With this information in hand, Snyder once

again began soliciting Ruby Tuesday’s business. A manager at one of these restaurants

warned Petrie of this within a couple weeks after Snyder resigned.

          Upon discovering many of the facts outlined above, Classic promptly filed the instant

action on May 24, 2012. 2 Along with its complaint, Classic filed a verified motion for

temporary restraining order and preliminary injunction. The trial court issued a temporary

restraining order that same day and scheduled a preliminary injunction hearing for June 6,

which was later rescheduled for June 13. At the hearing, Classic presented two grounds in

support of its motion for a preliminary injunction: (1) Snyder’s misappropriation of trade

secrets, which Classic alleged were the customer list and the two documents sent by




1
  Warswick also deleted messages from both her sent-items folder and her deleted-items folder before leaving
Classic’s employ.
2
    Snyder has not provided us with a copy of the complaint or any other relevant pleadings in this case.


                                                       5
Warswick to Snyder and (2) tortious interference with Classic’s business relationships.

Classic asked that Snyder be enjoined from “continuing to interfere with the relationships

that Classic had with customers while he was employed”. Id. at 127. This primarily included

specific Golden Corral, Ruby Tuesday, and Jimmy John’s restaurants in central Indiana.

Otherwise, Classic agreed that Snyder should be free to compete in the local restaurant

HVAC business. Classic noted that the extent of harm caused by Snyder was still unknown

and new information continued to be discovered through expedited discovery. Further, Petrie

testified that Snyder had already taken Golden Corral, one of Classic’s biggest accounts, and

that if he succeeded in taking the handful of other big accounts (such as Ruby Tuesday and

Jimmy John’s) Classic would go out of business.

       At the conclusion of the evidentiary hearing, the trial court took the matter under

advisement and directed the parties to submit proposed findings of fact and conclusions of

law. On June 20, 2012, the trial court issued its order granting Classic’s request for a

preliminary injunction and including detailed findings of fact and conclusions of law. The

court specifically enjoined Snyder from:

       (a) having any business dealings, directly or indirectly, with any of the Golden
       Corral restaurants, Ruby Tuesday restaurants, Jimmy John’s restaurants, and/or
       Subway restaurants; specifically, the Indianapolis Subway Restaurants, whose
       business he solicited for his own benefit while still employed by Classic; and
       (b) making any use whatsoever, directly or indirectly, of the information
       contained on the customer list introduced (under seal and subject to oral
       protective order) as Exhibit 10 at the preliminary injunction hearing in this
       matter.

Appendix at 25-26. Snyder appealed this interlocutory order, claiming the trial court abused

its discretion in granting the preliminary injunction.

                                              6
        It is within the sound discretion of the trial court to grant or deny a preliminary

injunction, and this court’s review is limited to whether there has been a clear abuse of

discretion. State v. Econ. Freedom Fund, 959 N.E.2d 794 (Ind. 2011), cert. denied. In this

regard, we consider the evidence in the light most favorable to the judgment and construe

findings together liberally in favor of the judgment. Burns-Kish Funeral Homes, Inc. v. Kish

Funeral Homes, LLC, 889 N.E.2d 15 (Ind. Ct. App. 2008).

               Generally, to obtain a preliminary injunction, a party must demonstrate
        the following four elements by a preponderance of the evidence: (1) there
        exists a reasonable likelihood of success at trial; (2) the remedies at law are
        inadequate, thus causing irreparable harm pending resolution of the substantive
        action; (3) the threatened injury to the movant outweighs the potential harm to
        the nonmovant from the granting of an injunction; and (4) the public interest
        would not be disserved by granting the requested injunction.

State v. Econ. Freedom Fund, 959 N.E.2d at 803. Only the first element is at issue in this

appeal. 3

        The trial court concluded that Classic had established a reasonable likelihood of

success at trial as to both of its legal bases (misappropriation of trade secrets and tortious

interference with business relationships) for seeking the preliminary injunction. Snyder

disputes both of these legal bases.




3
   Snyder makes no claim that Classic failed to establish the third and fourth elements. Although he does
assert in passing that Classic failed to establish that its remedies at law for tortious interference were
inadequate, he presents no real argument in support of this assertion. Therefore, we find the issue waived. See
Lyles v. State, 834 N.E.2d 1035 (Ind. Ct. App. 2005), trans. denied.


                                                      7
                                              1.

       With respect to the tortious interference claim alleged here, Snyder argues that a

preliminary injunction is not a proper remedy. Although he acknowledges that he owed a

fiduciary duty of loyalty to Classic while employed, Snyder baldly asserts that because he is

no longer employed by Classic, he is no longer bound by the fiduciary duty and should be

able to compete against Classic in any way because there exists no non-compete agreement.

       The elements of tortious interference with a business relationship are: (1) the existence

of a valid business relationship; (2) the defendant’s knowledge of the existence of the

relationship; (3) the defendant’s intentional interference with that relationship; (4) the

absence of justification; and (5) damages resulting from the defendant’s wrongful

interference with the relationship. Columbus Med. Servs. Org., LLC v. Liberty Healthcare

Corp., 911 N.E.2d 85 (Ind. Ct. App. 2009). Our Supreme Court has also held that “this tort

requires some independent illegal action.” Brazauskas v. Fort Wayne–South Bend Diocese,

Inc., 796 N.E.2d 286, 291 (Ind. 2003), cert. denied. Illegal action in this context does not

necessarily mean criminal action, but instead sufficiently wrongful action as in breach of a

contractual or common law duty. See Economation, Inc. v. Automated Conveyor Sys., Inc.,

694 F. Supp. 553 (S.D. Ind. 1988).

       Here, the trial court determined that the fourth element (absence of justification) and

the additional requirement of illegal action were satisfied by Snyder’s breach of his fiduciary

duty of loyalty while employed by Classic. See SJS Refractory Co., LLC v. Empire

Refractory Sales, Inc., 952 N.E.2d 758 (Ind. Ct. App. 2011) (describing the fiduciary duty of


                                               8
loyalty owed by an employee to his or her employer). 4 Specifically, the court found in part:

“while he was Classic’s employee and agent, Mr. Snyder engaged repeatedly in self-dealing

and other acts of disloyalty to his employer and principal, thereby breaching his fiduciary

duties to Classic.” Appendix at 19.

         On appeal, Snyder does not dispute that he actively violated his fiduciary duties to

Classic during the last year of his employment. He argues only that this prior misconduct

should not affect his ability to compete with Classic following the termination of his

employment. In other words, Snyder claims essentially that once he resigned, he became free

to enjoy the fruits of his breach of fiduciary duties. Snyder cites no relevant authority in

support of this assertion.

         In a related context, we have held that termination of a fiduciary relationship does not

shield the fiduciary from its duties or obligations concerning “transactions that have their

inception before the termination of the relationship.” Abdalla v. Qadorh-Zidan, 913 N.E.2d

280, 286 (Ind. Ct. App. 2009) (quoting Thompson v. Ctr. Ohio Cellular, Inc., 639 N.E.2d

462, 469 (Ohio Ct. App. 1994)), trans. denied. See also Standage v. Planned Inv. Corp., 772

P.2d 1140, 1144 (Ariz. Ct. App. 1988) (“where a transaction has its inception while the


4
    We explained in part in SJS Refractory:
                  An employee owes his employer a fiduciary duty of loyalty. To that end, an employee
         who plans to leave his current job and go into competition with his current employer must
         walk a fine line. Prior to his termination, an employee must refrain from actively and directly
         competing with his employer for customers and employees and must continue to exert his best
         efforts on behalf of his employer…. These rules balance the concern for the integrity of the
         employment relationship against the privilege of employees to prepare to compete against
         their employers without fear of breaching their fiduciary duty of loyalty.
         Id. at 768 (citations omitted).


                                                       9
fiduciary relationship is in existence, an employee cannot by resigning and not disclosing all

he knows about the negotiations, subsequently continue and consummate the transaction in a

manner in violation of his fiduciary duties”) (quoting Microbiological Research Corp. v.

Muna, 625 P.2d 690, 695 (Utah 1981)); Duane Jones Co. v. Burke, 117 N.E.2d 237, 245-46

(N.Y. 1954) (“[n]or is it a defense that the defendants-appellants did not avail themselves of

the benefit of the customers…diverted from plaintiff until after defendants [had left

employment]”; the benefits realized by defendants’ new company were “merely the results of

a predetermined course of action” and earlier breach of fiduciary duty). Although Snyder’s

fiduciary relationship with Classic terminated when the employment relationship ended, he

may not capitalize on opportunities (i.e., customers) that he usurped or transactions that had

their inception before the termination of the fiduciary relationship.

       Snyder has failed to establish that the trial court abused its discretion in determining

that Classic had a reasonable likelihood of success at trial on its tortious interference claim.

Moreover, Snyder’s claim that a preliminary injunction is improper because he no longer

owes a fiduciary duty to Classic is entirely unsupported and without merit. We affirm the

preliminary injunction issued by the trial court on this ground.

                                               2.

       Snyder also contends that the trial court abused its discretion when it determined that

Classic’s trade-secret claims had a reasonable likelihood of success at trial. In this regard,

Snyder’s sole argument is that the materials he undeniably misappropriated – Classic’s

customer list, correspondence from one of Classic’s largest customers, and a pricing list for


                                              10
this customer – do not qualify as trade secrets.

       The Indiana Uniform Trade Secrets Act provides that either actual or threatened

misappropriation of trade secrets may be enjoined. Ind. Code Ann. § 24-2-3-3(a) (West,

Westlaw current through 2012 2nd Reg. Sess.). The Act defines the term trade secret as

“information, including a…compilation” that:

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

I.C. § 24-2-3-2 (West, Westlaw current through 2012 2nd Reg. Sess.). “The determination of

whether information is a trade secret is a fact sensitive determination.” U.S. Land Servs., Inc.

v. U.S. Surveyor, Inc., 826 N.E.2d 49, 63 (Ind. Ct. App. 2005).

       Although there appears to be at least some merit to Classic’s trade secret claims, we

need not address the likelihood of success at trial on this claim. The trial court cited dual

bases for the issuance of the preliminary injunction in this case. Because we have upheld the

preliminary injunction on the basis of the tortious interference claim, we may end our inquiry

without delving into the law of trade secrets.

       Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.




                                              11
