Sal's Heating & Cooling, Inc. v. Bers Acquisition Co., L.L.C.
2022 Ohio 1756
| Ohio Ct. App. | 2022Background
- Sal’s Heating & Cooling required employees to sign non‑competition and confidentiality agreements protecting client lists, pricing, vendor info, advertising guidelines, and trade secrets.
- In spring 2020 several Sal’s employees left to work for BERS and HUGE, competing HVAC companies controlled by JAWS/Warren; some former owners (Rutkosky, Mark Huge, Brenneis) allegedly allowed their contractor licenses to remain assigned to the new companies.
- Sal’s filed suit (second amended complaint) asserting breach of non‑compete/non‑solicit/confidentiality agreements, OUTSA trade‑secret misappropriation claims, tortious interference, and civil conspiracy (Counts 7 and 8 among others) against BERS, HUGE, JAWS, principals, and the former employees.
- Defendants moved to dismiss Counts 2,3,4,7,8; the trial court granted dismissal of Counts 7 (civil conspiracy against Rutkosky and Huge) and 8 (civil conspiracy to misappropriate trade secrets), and required a more definite statement; Sal’s appealed.
- The appellate court affirmed: Count 7 failed because Sal’s did not plead an independent unlawful act (and R.C. 4740.13 gives no private remedy or standing); Count 8 was preempted by Ohio’s Uniform Trade Secret Act (OUTSA) because it merely restates the same operative facts as the statutory trade‑secret claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count 7 (civil conspiracy) pleaded an underlying unlawful act supporting conspiracy against Rutkosky and Huge | Rutkosky/Huge improperly assigned/continued to allow use of their HVAC licenses and misrepresented licensing status, creating an independent tort to support civil conspiracy | Alleged license assignments/statutory violation is not an independent tort; statute vests enforcement with the licensing board, not private parties; fraud not adequately pled | Dismissed — no independent unlawful act pleaded; R.C. 4740.13 provides no private right of action/standing; fraud claim not pled with required particularity |
| Whether Count 8 (conspiracy to misappropriate trade secrets) is preempted by OUTSA | Civil conspiracy claim survives because it alleges concerted misconduct distinct from OUTSA remedies | OUTSA preempts state‑law claims that are merely based on or restate the same operative facts as trade‑secret misappropriation | Dismissed as preempted — Count 8 duplicates the operative facts of the OUTSA misappropriation claims and is displaced by OUTSA |
Key Cases Cited
- Williams v. Aetna Fin. Co., 700 N.E.2d 859 (Ohio 1998) (civil conspiracy requires unlawful act independent from conspiracy)
- Mangelluzzi v. Morley, 40 N.E.3d 588 (Ohio Ct. App. 2015) (civil‑conspiracy pleading survived where independent torts were sufficiently pled)
- Groob v. KeyBank, 843 N.E.2d 1170 (Ohio 2006) (elements of fraudulent‑misrepresentation claim)
- Spit Shine A Detailer, L.L.C. v. Rick Case Hyundai, 100 N.E.3d 1231 (Ohio Ct. App. 2017) (fraud elements summarized)
- Thermodyn Corp. v. 3M Corp., 593 F. Supp. 2d 972 (N.D. Ohio 2008) (OUTSA preemption inquiry: whether state claim merely restates operative facts of trade‑secret claim)
- Stolle v. Machine Co., LLC v. Ram Precision Indus., [citation="605 F. App'x 473"] (6th Cir. 2015) (OUTSA displaces torts and other civil remedies for trade‑secret misappropriation)