                                                                  Apr 14 2015, 9:49 am




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
William C. Wagner                                           F. Joseph Jaskowiak
Geoffrey Slaughter                                          Lauren K. Kroeger
Taft Stettinius & Hollister LLP                             Hoeppner Wagner & Evans LLP
Indianapolis, Indiana                                       Merrillville, Indiana
Brian N. Custy
Merrillville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Think Tank Software                                        April 14, 2015
Development Corporation,                                   Court of Appeals Case No.
d/b/a Think Tank Networking                                64A03-1404-PL-134
Technologies Group and Think                               Appeal from the Porter Superior
Tank Information Systems,                                  Court.
                                                           The Honorable William E. Alexa,
Appellant-Plaintiff,                                       Special Judge.
                                                           Cause No. 64D05-0205-PL-3861
        v.

Chester, Inc., Mike Heinhold,
John Mario, Joel Parker,
Thomas Guelinas, Jon Meyer,
Daniel Curry, Eric M.
Wojciechoswki, Michael Gee,
Philip Ryan Turner and Carl
Zuhl,
Appellees-Defendants



Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015                 Page 1 of 17
      Baker, Judge.

[1]   Think Tank Software Development Corporation d/b/a Think Tank

      Networking Technologies Group and Think Tank Information Systems

      (“Think Tank”) appeals the trial court’s directed verdict in favor of Defendants–

      Appellees Chester, Inc. (Chester); Mike Heinhold (Heinhold); John M. Mario

      (Mario); Joel E. Parker (Parker); Thomas Guelinas (Guelinas); Jon Meyer

      (Meyer); Daniel B. Curry (Curry); Eric M. Wojciechowski (Wojciechowski);

      Michael Gee (Gee); Philip Ryan Turner (Turner); and Carl Zuhl (Zuhl)

      (collectively, the defendants) on Think Tank’s claim for misappropriation of

      trade secrets. In addition, Think Tank appeals the trial court’s determination

      that its non-solicitation claim was barred. Finding that the trial court did not

      err in granting a directed verdict and correctly determined that Think Tank’s

      non-solicitation claim was barred, we affirm the judgment of the trial court.


                                                      Facts     1




[2]   The relevant facts of this case have been relayed in prior decisions in this case as

      follows:

              Think Tank is engaged in computer-related business activities,
              including systems and network engineering, problem solving, systems
              design, implementation, sales, client training, and computer
              maintenance. As of April 19, 2001, Think Tank employed defendants




      1
       We heard oral argument on March 18, 2014, in the courtroom of the Indiana Court of Appeals in
      Indianapolis. We thank counsel for their informative and illustrative oral advocacy.

      Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015                    Page 2 of 17
         Mario, Parker, Guelinas, Meyer, Curry, Wojciechowski, Gee, Turner,
         and Zuhl (collectively, the former employees).
                                                    ....
         During a period ranging from April 20, 2001, to April 19, 2002, all of
         the former employees left Think Tank for various reasons, shrinking
         Think Tank’s staff from sixteen to nine employees. With the
         exception of Parker, all of the former employees went directly from
         Think Tank to Chester. [Parker worked for another employer for five
         months before going to work for Chester.] Chester was informed of
         the covenant not to compete by Curry, Gee, Guelinas, Wojciechowski,
         and Zuhl. However, Mario, Parker, Meyer, and Turner did not
         believe they had signed the covenant when they were hired by Think
         Tank, and Think Tank could not produce the signed agreements.
         Think Tank’s president asserts that each of these four signed the
         covenant in his presence.
         On April 26, 2002, Think Tank filed its “Verified Complaint For
         Injunctive And Other Relief” against Chester; Chester’s manager,
         Heinhold; and the former employees. Among other things, Think
         Tank alleged in its complaint that its former employees were violating
         the covenant not to compete by contacting Think Tank personnel and
         customers.2 Think Tank further alleged that Chester, Heinhold, and
         the former employees were interfering with Think Tank’s business by
         divulging confidential information and trade secrets. Three days later,
         after an ex parte emergency hearing, a Lake Superior Court granted a
         temporary restraining order finding that Think Tank had “a
         protectable interest in its goodwill (which includes all its customer
         information and relationships as well as its employees) and
         reputation....” The court further found that “the provisions of [the
         covenant] provide reasonable and appropriate restrictions on post-
         employment conduct of [Think Tank’s] employees; and that all




2
  In its first amended complaint, Think Tank alleged the following claims: 1) breach of the covenant not to
compete, 2) breach of the confidentiality clause, 3) breach of the agreement not to solicit its employees for
other work, 3) tortious interference with contracts, 4) misappropriation of trade secrets, 5) tortious
interference with business relationships, 6) unjust enrichment, and 7) defamation. In addition, a claim for
unfair competition was alleged against Chester. Appellant’s App. p. 50-115.

Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015                           Page 3 of 17
              defendants in concert with one another have either breached the
              [covenant] or induced or aided the breach....”
              On May 1, 2002, the defendants filed for a change of venue, and the
              Lake Superior Court transferred the case to the Porter Superior Court
              on May 6, 2002. After a hearing on the defendants’ motion to dissolve
              the temporary restraining order, the trial court ruled on May 10, 2002,
              that the temporary restraining order was not properly issued because
              Think Tank failed to give proper notice pursuant to Indiana Rule of
              Trial Procedure 65(B)(2) and failed to post bond pursuant to Indiana
              Rule of Trial Procedure 65(C).
              On June 7, 2002, Think Tank filed its “First Amended Verified
              Complaint For Injunctive And Other Relief.” In this amended
              complaint, Think Tank asserted breach of contract and tort claims
              against various defendants.
                                                         ...
              On December 31, 2009, the defendants filed a motion for summary
              judgment challenging Think Tank’s claims. On March 9, 2010, after
              holding a hearing and reviewing the designated evidence of all parties,
              the trial court granted the motion for summary judgment for the
              defendants on all of the claims raised by Think Tank in its first
              amended complaint. In doing so, the trial court concluded that the
              covenant not to compete in the various employment agreements “is
              overbroad and is therefore unenforceable ... and cannot be reformed.”
              The court also concluded that “the information alleged to have been
              misappropriated by [the defendants] does not constitute a ‘trade secret’
              under the Indiana Trade Secret Act and therefore [Think Tank’s] claim
              for misappropriation fails as a matter of law.” The court further
              concluded as a matter of law that Think Tank’s claims for interference
              with a business relationship, unfair competition, and unjust
              enrichment “do not apply to the fact situation of this case.”
      Think Tank Software Dev. Corp. v. Chester, Inc. (Think Tank I), No. 64A03-1003-

      PL-172 *1-3, 2011 WL 1362527 (Ind. Ct. App. Apr. 11, 2011).


[3]   In Think Tank I, a panel of this Court concluded that the trial court erred in

      granting summary judgment with regard to Think Tank’s claims for breach of


      Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015      Page 4 of 17
      the covenant not to compete and confidentiality agreement contained in the

      employee agreement, its claim for tortious interference with a contract, and its

      trade secrets claim. We held that the employee agreements the defendants

      signed—including the covenant not to compete and the confidentiality

      agreement—were valid. We found that the trial court correctly granted

      summary judgment on all remaining issues. Id. at *16. In addition, we limited

      the damages on Think Tank’s claims to the profits lost in regard to four

      customers: Braun Corporation (Braun), Lowell Public Library (Lowell), Weil-

      McClain, and Methodist Hospital. Id. at *12.


[4]   Regarding the confidentiality clause and the misappropriation of trade secrets

      issues, we noted “the misappropriation of trade secrets issue is subsumed by the

      confidentiality clause issue.” Id. at *7 n. 4. In determining that the grant of

      summary judgment was inappropriate on these issues, we stated:

              Think Tank has designated evidence that shows there is a genuine
              issue of material fact that prevents the grant of summary judgment on
              this issue. The fact finder must determine whether the items contained
              in the confidentiality clause are trade secrets that may be protected. If
              they are not, then Think Tank has not asserted that the covenant not to
              compete asserts a legitimate interest that may be protected and/or that
              the former employees have gained a unique competitive advantage or
              ability to harm Think Tank.
      Id. at *9. The case was remanded to the trial court for disposition of the

      remaining claims.


[5]   On May 7, 2013, this Court handed down another opinion in this case

      following an interlocutory appeal. Think Tank Software Dev. Corp. v. Chester, Inc.


      Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015       Page 5 of 17
      (Think Tank II), 988 N.E.2d 1169 (Ind. Ct. App. 2013). Therein, Think Tank

      appealed the trial court’s determination excluding expert evidence from

      Benjamin S. Wilner, Think Tank’s economic expert, and requested that we

      clarify our decision regarding damages in Think Tank I.


[6]   In Think Tank II, a panel of this Court found that the trial court had erred in

      ruling that Wilner’s testimony regarding lost profits from Braun, Lowell, Weil-

      McClain, and Methodist Hospital was inadmissible. We also found that

      Wilner was qualified as an expert witness with respect to economics and

      business, but noted that,

              To the extent that Wilner’s profit erosion analysis is based solely on
              the departure from Think Tank of the defendant employees and their
              subsequent employment by Chester, the analysis may be inadmissible
              because the defendant employees were free to leave and become
              employees elsewhere. They committed no wrong, contractually or
              otherwise, against Think Tank merely by leaving.
      Id. at 1180.


[7]   We also clarified the issue of damages in Think Tank II:

              Stated simply, four of Think Tank’s claims survived summary
              judgment: breach of a covenant not to compete, breach of a covenant
              of confidentiality, misappropriation of trade secrets, and tortious
              interference with contract. In Think Tank I, we noted, “The proper
              measure of damages for breach of a covenant is the plaintiff’s lost net
              profits.” No. 64A03-1003-PL-172, at *9. Next, we concluded that
              Think Tank had established a dispute of material fact as to lost profits
              arising from Chester’s relationship with four specific customers.
              Consequently, we limited the damages for Think Tank’s claim for
              breach of the covenant not to compete to lost profits in relation to
              those four customers. This holding also applies to Think Tank’s claim
              for breach of a covenant of confidentiality. Similarly, with respect to

      Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015           Page 6 of 17
              Think Tank’s claim for tortious interference with contract, we
              determined that the claim only survived summary judgment as to the
              same four customers. Id. at *14. It stands to reason that Think Tank’s
              damages for misappropriation of trade secrets is also limited to those
              four customers. However, we said nothing about any measure of
              damages for tortious interference with contract or for misappropriation
              of trade secrets. Nothing in Think Tank I should be understood to limit
              or define damages under those two claims.
      Id. at 1179.
[8]   On February 13, 2013, Think Tank moved to include its non-solicitation claim

      in the pretrial order, claiming that defendants had not sought summary

      judgment on the claim, and that neither the trial court nor this Court had

      considered its merits. The trial court denied the motion, determining that,

      although defendants had not explicitly raised the non-solicitation claim for

      summary judgment, “the trial court sua sponte held all claims for summary

      judgment in favor of the Defendant.” Appellant’s App. p. 43 (emphasis in

      original).


[9]   On March 10, 2014, the case went to trial on Think Tank’s remaining claims

      for misappropriation of trade secrets, tortious interference with contracts, and

      breach of the covenant not to compete and confidentiality provisions. At the

      conclusion of Think Tank’s case-in-chief, the defendants moved for a directed

      verdict on all of Think Tank’s claims. The trial court held a hearing on the

      motion on March 25, 2014, and granted the directed verdict on Think Tank’s

      claim for misappropriation of trade secrets, reasoning that, “[it] is a question of

      law for the Court relative to what is and what is not a trade secret. Plaintiff has

      failed to show that the information obtained was ever, in law, a trade secret.”


      Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015      Page 7 of 17
       Id. at 37. The trial court also granted a directed verdict on the tortious

       interference with contracts claim. The remaining claims for breach of the

       confidentiality clause and the covenant not to compete were submitted to the

       jury. The jury returned a verdict in favor of the defendants on both claims.


[10]   As several of the defendants had counterclaims that were to be tried separately,

       the jury’s verdict against Think Tank was not an appealable final judgment.

       Think Tank moved for an entry of final judgment on its claims pursuant to

       Indiana Trial Rule 54(B). On May 29, 2014, the trial court granted that

       motion, and this appeal ensued.


                                      Discussion and Decision
[11]   Think Tank appeals the trial court’s directed verdict in favor of the defendants

       on its misappropriation of trade secrets claim. It argues that the trial court

       could not determine whether information constitutes a trade secret as a matter

       of law, as such a determination is contrary to the law of the case as decided by

       this Court in Think Tank I and Think Tank II. Think Tank also asserts that the

       trial court erred when it did not allow Think Tank to try its non-solicitation

       claim.3




       3
         Think Tank also makes an argument regarding joint and several liability and asks that we issue an order
       allowing certain evidence to be admitted in any future trial. As we determine that a trial court correctly
       granted a directed verdict, we need not address these arguments.

       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015                          Page 8 of 17
                           I. Misappropriation of Trade Secrets
[12]   Think Tank first argues that the trial court erred in granting a directed verdict

       on its misappropriation of trade secrets claim. The standard of review on a

       challenge to a motion for judgment on the evidence is the same as the standard

       governing the trial court in making its decision.4 J.E. Stone Tree Serv., Inc. v.

       Bolger, 831 N.E.2d 220, 227 (Ind. Ct. App. 2005); see also Ind. Trial Rule 50(A)

       (governing judgments on the evidence). Judgment on the evidence is proper

       where all or some of the issues are not supported by sufficient evidence. Id. We

       will examine only the evidence and the reasonable inferences that may be

       drawn therefrom that are most favorable to the nonmovant, and the motion

       should be granted only where there is no substantial evidence supporting an

       essential issue in the case. Id. If there is evidence that would allow reasonable

       people to differ as to the result, judgment on the evidence is improper. Id.


[13]   At trial, Think Tank asserted that the defendants misappropriated trade secrets.

       Indiana Code section 24-2-3-2 defines a trade secret as:

               information, including a formula, pattern, compilation, program,
               device, method, technique, or process, 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




       4
         Indiana Trial Rule 50(A) governs motions for directed verdict, which are also called motions for judgment
       on the evidence. Garcia v. State, 979 N.E.2d 156, 157 (Ind. Ct. App. 2012).

       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015                        Page 9 of 17
               (2) is the subject of efforts that are reasonable under the circumstances
               to maintain its secrecy.
       In other words, a protectable trade secret has four characteristics: (1)

       information, (2) which derives independent economic value, (3) is not generally

       known or readily accessible by proper means by other persons who can obtain

       economic value from its use, and (4) is the subject of efforts reasonable under

       the circumstances to maintain its secrecy. N. Elec. Co., Inc. v. Torma, 819

       N.E.2d 417, 425 (Ind. Ct. App. 2004). Think Tank maintains that the following

       information constitutes trade secrets: 1) the nature and design of its technical

       solutions; 2) the design of its customers’ computer systems; 3) pricing; and 4)

       customer identities.


[14]   Think Tank argues that the trial court erred when it found that the above

       information was not trade secrets as a matter of law. It argues that, in doing so,

       the trial court acted contrary to the law of the case. The law of the case

       doctrine provides that an appellate court’s determination of a legal issue binds

       both the trial court and the appellate court in any subsequent appeal involving

       the same case and substantially the same facts. Dutchmen Mfg., Inc. v.

       Reynolds, 891 N.E.2d 1074, 1082 (Ind. Ct. App. 2008). The purpose of

       the doctrine is to minimize unnecessary repeated litigation of legal issues once

       they have been resolved by an appellate court. Id. This doctrine is based upon

       the sound policy that once an issue is litigated and decided, that should be the

       end of the matter. Godby v. Whitehead, 837 N.E.2d 146, 152 (Ind. Ct. App.

       2005). However, unlike the doctrine of res judicata, the law of

       the case doctrine is a discretionary tool. Reynolds, 891 N.E.2d at 1082. To

       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015        Page 10 of 17
       invoke this doctrine, the matters decided in the earlier appeal must clearly

       appear to be the only possible construction of an opinion. Id. at 1082–83.

       Thus, questions not conclusively decided in the earlier appeal do not become

       the law of the case. Id. at 1083.


[15]   Think Tank argues that the trial court’s directed verdict directly conflicts with

       the law of the case. In Think Tank I, a panel of this Court determined that

       Think Tank had designated evidence showing that a genuine issue of material

       fact existed regarding its misappropriation of trade secrets claim and held that,

       “[t]he fact finder must determine whether the items contained in the

       confidentiality clause are trade secrets that may be protected.” No. 64A03-

       1003-PL-172 at *9. In other words, we determined that a jury must decide

       whether the information Think Tank alleged to be trade secrets were, in fact,

       trade secrets. Id. In its order granting a directed verdict in favor of the

       defendants on Think Tank’s misappropriation of trade secrets claim, the trial

       court stated, “[i]t is a question of law for the Court relative to what is and what

       is not a trade secret. Plaintiff has failed to show that the information obtained

       was ever, in law, a trade secret.” Appellant’s App. p. 37. Think Tank argues

       that this determination was directly contrary to the law of the case.


[16]   Conversely, the defendants would have us determine that whether or not

       information constitutes trade secrets is a question of law to be decided by the

       court. The defendants point us to PrimeCare Home Health v. Angels of Mercy Home

       Health Care LLC, 824 N.E.2d 376, 381 (Ind. Ct. App. 2005), in which a panel of

       this Court held that “[w]hat constitutes trade secret information is a

       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015   Page 11 of 17
       determination for the court to make as a matter of law.” Therefore, the

       defendants argue that the trial court did not err in granting a directed verdict.


[17]   Think Tank responds that, even if the trial court could issue a directed verdict

       as a matter of law, this Court’s ruling in Think Tank I—that there was enough

       evidence of the existence of trade secrets to require the claim to go to the jury—

       stands as the law of the case on the question of whether Think Tank presented

       enough evidence to defeat a motion for directed verdict. Appellant’s Br. p. 21.

       Think Tank argues that this Court’s determination in Think Tank I that

       “designated evidence that shows there is a genuine issue of material fact that

       prevents the grant of summary judgment on this issue” and that “[t]he fact

       finder must determine whether the items contained in the confidentiality clause

       are trade secrets that may be protected,” precluded the trail court from

       determining that Think Tank had not presented enough evidence to survive the

       defendant’s motion for a directed verdict. No. 64A03-1003-PL-172 at *9.

       Therefore, Thank Tank argues that the evidence required to defeat a motion for

       summary judgment and a motion for directed verdict is the same, “[b]ecause

       those standards of review are essentially the same.” Appellant’s Br. p. 21.


[18]   In addressing these arguments, we first take note of the fact that the procedural

       standards for summary judgment and judgment on the evidence are

       fundamentally different. In Purcell v. Old National Bank, 972 N.E.2d 835 (Ind.

       2012), our Supreme Court discussed these standards:

               By its express language, Rule 50 acknowledges that a party must do
               more than simply present some evidence; in addition, that evidence

       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015     Page 12 of 17
               must also be sufficient evidence. Unlike a motion for summary
               judgment under Rule 56, the sufficiency test of Rule 50(A) is not
               merely whether a conflict of evidence may exist, but rather whether
               there exists probative evidence, substantial enough to create a
               reasonable inference that the non-movant has met his burden. The
               crux of the qualitative failure analysis under Rule 50(A) is whether the
               inference the burdened party’s allegations are true may be drawn
               without undue speculation.
       Id. at 841-42 (internal quotations and citations removed). Therefore, the same

       evidence that allowed Think Tank to defeat a summary judgment motion could

       be insufficient to overcome a motion for a directed verdict. Thus, Think Tank

       cannot argue that—in defeating the defendant’s summary judgment motion—it

       has also automatically defeated a motion for directed verdict.


[19]   In addition, while we acknowledge the tension between the parties’ positions

       regarding who is to determine whether information is a trade secret, we need

       not determine today if the question of whether information constitutes a trade

       secret is a matter of law or a question of fact. Instead, we determine that, as a

       matter of law, Think Tank failed to produce enough evidence to allow a

       reasonable fact finder to determine that the proffered information was trade

       secrets. More particularly, we find that Think Tank failed to show that any of

       the information alleged to be trade secrets was not generally known or

       ascertainable to the public, and, therefore, was not a trade secret. See PrimeCare,

       824 N.E.2d 381 (“[A] protectable trade secret . . . is not generally known or

       readily accessible by proper means by other persons who can obtain economic

       value from its use.”). As noted above, one of the four necessary characteristics




       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015      Page 13 of 17
       of a protectable trade secret is that it is not readily ascertainable. N. Elec. Co.,

       819 N.E.2d at 425.


[20]   The facts in this case are similar to those in Steenhoven v. College Life Ins. Co. of

       America, 458 N.E.2d 661 (Ind. Ct. App. 1984). In the Steenhoven case, this

       Court found that certain policyholder information could not be considered a

       trade secret because “it was readily available from the policyholder themselves”

       and the information was “the same information that could be extracted from

       the policyholder in a blind replacement attempt.” Id. at 975 n.6. We further

       found that:

               The real thrust of appellee’s argument is not that Steenhoven disclosed
               College Life’s customer list (at least as concerns his limited knowledge
               thereof), but rather, that Steenhoven used such list to benefit
               economically. College Life seemingly seeks not to protect a trade
               secret, but rather, to prevent competition by its former agent. Insofar
               as College Life attempts to merely restrain Steenhoven’s competition,
               we believe the Uniform Trade Secrets Act to be an improper vehicle
               therefore. The fact that Steenhoven possesses certain knowledge
               acquired within the course of his employment does not mandate that,
               upon his departure, Steenhoven must wipe clean the slate of his
               memory. Rather, it is clear from the language of the act that the
               Uniform Trade Secrets Act was promulgated by the legislature to
               prevent the abusive and destructive usurpation of certain
               economically-imbued business knowledge commonly referred to as
               trade secrets. We do not believe the legislature ever intended the
               statute’s provisions to act as a blanket post facto restraint on trade. If
               College Life had desired to prevent competition by its former agents
               based upon the agents’ acquired knowledge, it could have done so
               contractually via the provisions of a covenant not to compete. Having
               forgone that possibility, we believe it misguided to attempt to stem
               such competition by arguing, in essence, that properly-acquired
               knowledge of the employer’s business is automatically made a trade


       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015        Page 14 of 17
               secret pursuant to the Act, without regard to the nature of the
               information, simply because it can be compiled into a table or a list.
[21]   Id. at 974 n.7. To be clear, we did not hold in Steenhoven that customer lists and

       the information accumulated regarding customers cannot be a trade secret, and

       we do not do so here. However, under the circumstances, it appears to us that

       Think Tank seeks not to protect a trade secret, but instead to prevent

       competition.


[22]   Here, Chester could have used proper means to acquire the information

       claimed by Think Tank as trade secrets. Indeed, the trial court came to the

       same conclusion. When granting a directed verdict on the trade secrets claim, it

       determined that all the information presented by Think Tank was readily

       available from the customer:

               Could the information be ascertained from other means? [] I think the
               answer is quite obviously, yes. From what we had here, all you had to
               do was walk in and talk to the [prospective] client and they [could] tell
               you pretty much whatever it was they were doing or what they had.
               That’s been the evidence that I’ve seen here.
       Tr. p. 1818. This was the basis for the trial court’s grant of a directed verdict—

       that Think Tank had failed to show that the information was not readily

       ascertainable from another source.


[23]   We agree with the trial court, and find that it is clear that all of the information

       Think Tank claimed as trade secrets was generally known or readily

       ascertainable from another source, including Think Tank’s customers and

       network certification training programs available to the public. We find that 1)

       the computer certifications and intellectual capital Think Tank possessed was

       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015         Page 15 of 17
       readily available information; 2) knowledge of customers’ computer systems

       and current or future needs was readily ascertainable, as such information

       belonged to the customers in question; and 3) pricing information does not

       constitute a trade secret, as it too was readily available from the customers.

       Further, while custom written software could possibly be a trade secret, as it

       pertains to the four customers in the instant case, Think Tank failed to present

       any evidence regarding the alleged custom written software. Thus, the trial

       court did not err in granting a directed verdict.


                                    II. Non-Solicitation Claim
[24]   Finally, Think Tank argues that the trial court erred when it denied Think

       Tank’s motion to try its non-solicitation claim. Think Tank argues that the trial

       court’s March 9, 2010, summary judgment ruling “issued a sweeping ruling

       disposing of all of Think Tank’s claims, granting the defendants more relief

       than they sought.” Appellant’s Br. p. 31. Think Tank points out that the

       defendants, in moving for summary judgment, “offered no argument with

       respect to Think Tank’s non-solicitation claim,” and that the trial court “did not

       even mention Think Tank’s non-solicitation claim, let alone address its merits”

       when granting summary judgment. In addition, Think Tank notes that this

       Court did not address its non-solicitation claim in Think Tank I. As a result,

       Think Tank argues that neither court has addressed the non-solicitation claim

       on its merits and that, therefore, the trial court erred by not allowing the claim

       to be tried by a jury.



       Court of Appeals of Indiana | Opinion 64A03-1404-PL-134 | April 14, 2015   Page 16 of 17
[25]   Here, Think Tank simply misstates the record. The defendant’s motion for

       summary judgment states, “[a]ll Defendants . . . move that summary judgment

       be entered in their favor on all counts of the Plaintiff’s First Amended Verified

       Complaint . . . because there is no genuine issue of material fact and

       Defendants are entitled to judgment as a matter of law on all counts.”

       Appellant’s App. p. 116 (emphases added). In addition, when the trial court

       ruled on the defendant’s motion for summary judgment, it granted summary

       judgment for defendants “on all of the claims in Plaintiff’s complaint.” Id. at 317

       (emphasis added). Therefore, the trial court granted the defendants exactly the

       relief they sought.


[26]   Further, Think Tank was or should have been aware that the trial court had

       granted summary judgment in favor of the defendants on all the counts alleged

       in its complaint, including the non-solicitation claim. Yet, Think Tank did not

       appeal the trial court’s grant of summary judgment with regard to the non-

       solicitation claim in its first appeal to this Court and, therefore, the issue has

       been waived. See Montgomery v. Trisler, 771 N.E.2d 1234, 1239 (2002) (“[A]n

       issue ripe for review, but not raised in the first appeal, will be considered as

       finally determined and will be deemed affirmed.”). Therefore, the trial court

       correctly barred the non-solicitation claim.


[27]   The judgment of the trial court is affirmed.


       Vaidik, C.J. and May, J., concur.



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