SJS Refractory Co. v. Empire Refractory Sales, Inc.

952 N.E.2d 758, 2011 Ind. App. LEXIS 1211, 2011 WL 2547183
CourtIndiana Court of Appeals
DecidedJune 28, 2011
DocketNo. 02A04-1004-CT-233
StatusPublished
Cited by25 cases

This text of 952 N.E.2d 758 (SJS Refractory Co. v. Empire Refractory Sales, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SJS Refractory Co. v. Empire Refractory Sales, Inc., 952 N.E.2d 758, 2011 Ind. App. LEXIS 1211, 2011 WL 2547183 (Ind. Ct. App. 2011).

Opinion

OPINION

BROWN, Judge.

SJS Refractory Co., LLC, (“SJS”), Patrick M. Johnson, (“Johnson”), and Patrick Salwolke (“Salwolke”), (collectively “the Appellants”), appeal the trial court’s judg[762]*762ment and award of damages and attorney fees in favor of Empire Refractory Sales, Inc., (“Empire”). The Appellants raise seven issues, which we consolidate and restate as:

I. Whether the trial court erred in entering judgment including damages and attorney fees in favor of Empire on its conversion claim;
II. Whether the trial court erred in awarding damages on Empire’s breach of fiduciary duty claim; and
III. Whether the trial court erred in awarding Empire attorney fees as a sanction pursuant to Ind.Code § 34-52-1-1.

We affirm in part, reverse in part, and remand for a calculation of damages consistent with this opinion.

The relevant facts follow. Larry Snell is the owner of Empire, a Fort Wayne, Indiana, refractory services company that has been in business since 1987. Empire produces, sells, installs, and services refractory materials that are used to line high-heat environments such as industrial furnaces and kilns. Bill Sale began working as a sales representative at Empire in 1995. His employment contract included a noncompete agreement wherein Sale agreed not to engage in any business which competed against Empire during the period of the contract and for a period of two years after the termination of the contract within a 150-mile radius of Fort Wayne.

In 1998, Snell transferred a ten percent interest in Empire to Sale, who became a company vice-president. At the same time, Snell also transferred to Sale minority ownership interests in two other refractory service companies in Chicago and West Virginia. In 2004, following the death of his son, Snell began to reduce his full-time involvement with Empire and turned over management of the company to Sale.

Sale eventually began to negotiate the purchase of Empire from Snell. Throughout the negotiations, Sale was responsible for the day-to-day operations of Empire, including hiring and firing employees. In July 2004, Sale promoted Johnson, Sale’s friend and Empire’s Construction Manager, to the position of full-time sales representative. Although Snell told Sale to have Johnson, and all full-time sales representatives, sign a noncompete agreement, Sale failed to do so. In 2005, Sale hired Salwolke, his best friend and next door neighbor, as an Empire sales representative. Sale did not ask Salwolke to sign a noncompete agreement either.

In the summer of 2005, Sale invited Snell to his home to discuss his purchase of Empire and the Chicago and West Virginia companies. During the discussion, Sale insisted that Snell accept less than the previously-negotiated price for Empire. When Snell refused, Sale told Snell that he had promoted Johnson and hired Salwolke without requiring either of them to sign a noncompete agreement. Sale told Snell that without these agreements, Johnson and Salwolke could start up a company to compete with Empire, and Sale could find other employment and join them two years later after the expiration of his noncompete agreement. Despite this conversation, Sale continued to negotiate with Snell for the purchase of the companies.

In late 2005, after Sale and Snell had come to a preliminary agreement, Sale discovered that Snell had added significant mortgage debt to Empire’s books. As a result, Sale determined that Empire would not produce sufficient cash flow to pay all of the new debt and requested that Snell reconsider the sale price. When Snell re[763]*763fused, Sale determined that purchasing Empire was not economically feasible. Sale told Snell that if he was unable to purchase Empire and left its employ, other Empire employees would also leave. Snell responded that, “Pat Johnson [would] never go anywhere.” Transcript at 1182.

However, as early as December 2005 or January 2006, Johnson was using Empire’s facility and tools to build hot gunning nozzles for SJS, which was in the planning stages. Further, during the week of January 22, 2006, Salwolke contacted Lake City Bank about a line of credit for SJS. On February 1, 2006, Salwolke used his Empire e-mail account to look for space to lease for SJS, and on February 23, 2006, the Articles and Certificate of Organization for SJS became effective. At the beginning of March 2006, Salwolke and Johnson offered jobs at SJS to six of Empire’s employees, all of whom accepted.

In addition to hiring Empire’s employees, Johnson and Salwolke began recruiting Empire’s customers. For example, in late February 2006, Johnson met with Patrick Cloyd from SPX Contech. SPX had been an Empire customer for twelve to fourteen years. Johnson asked Cloyd if he could do work for SPX if he started his own company. On SJS’s first day of business, the new company received a $134,000 quote for a job from SPX, and SJS performed the job in early April 2006. Johnson also met with Paul Weirbowski and Dave Bednarz from IDI at the end of February 2006 at the Oyster Bar to discuss SJS doing work for IDI. IDI had been an Empire customer for five or six years. Lunches and dinners charged to Johnson’s Empire expense account in February and March 2006 are consistent with dates Johnson dined with Empire’s customers and attempted to solicit their business. For example, a $300.00 receipt for the Oyster Bar Bistro on February 20, 2006, is consistent with the place and date Johnson met with Weirbowski and Bed-narz.

During the week of March 13, 2006, Tim Frost, a supervisor at Baker-Schindler, called Johnson at Empire to inquire about a bid for work in a furnace pit. Johnson told Frost he was leaving Empire and that he could complete the job for him the following week through SJS. Johnson called Frost on March 18, 2006, and secured the job for SJS before he left Empire.

Salwolke was also soliciting business from Empire’s customers during this time. For example, one day Salwolke and Sale visited Dalton Foundaries, Wabash Alloys, Exide, and G & S Metals representing Empire, but soliciting business for SJS. SJS received work from all four businesses shortly after it opened. Dalton had been an Empire customer for over twenty-five years. Johnson and Salwolke personally contacted at least thirteen of Empire’s long-time customers during late February and March 2006.

In addition to Johnson and Salwolke’s face-to-face solicitations of Empire’s customers, on March 16, 2006, Johnson used an Empire credit card to pay $545.66 for the renewal of plates on a truck and trailer to be used by SJS. The following day, Johnson took Empire employee Norm Edwards with him to Cleveland, Ohio, to drive back a delivery truck full of equipment and materials for SJS. Both men were paid wages by Empire for the day they spent in Cleveland on SJS business. Edwards was specifically paid $124. Sal-wolke also prepared marketing materials while employed by Empire. On March 18, 2006, Salwolke sent a letter to Empire customers announcing the formation of SJS on SJS letterhead and offering to buy these customers a cup of coffee and discuss their refractory needs.

[764]*764On March 18, 2006, Johnson went to Empire and removed customer forms, tools, equipment, and works-in-progress, all of which he took to SJS. The items Johnson took were related to Empire customers he hoped to serve at SJS.

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Bluebook (online)
952 N.E.2d 758, 2011 Ind. App. LEXIS 1211, 2011 WL 2547183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sjs-refractory-co-v-empire-refractory-sales-inc-indctapp-2011.