Lead Opinion
[¶ 1] Jim Weins and Mac Meyer (often collectively referred to as Weins) asserted a claim for misappropriation of a trade secret against Robert Sporleder (Sporleder), Merle Van Liere and En-R-G Max, Inc. (often collectively referred to as Van Liere), and a contract action against Sporleder. During the trial, Weins amended his complaint to assert various tort claims against Sporleder, Van Liere, and En-R-G Max, Inc. Each claim was submitted to the jury. A verdict was returned in favor of Weins for compensatory and punitive damages. The trial court later found that the tort claims were displaced by the Uniform Trade Secrets Act and struck the jury’s award of punitive damages.
[¶ 2] We reverse as to the verdict finding misappropriation of a trade secret.
FACTS AND PROCEDURAL HISTORY
[¶ 3] This case involves the development of livestock feed supplements. Van Liere initially retailed feed supplements, later built a feed manufacturing plant and developed a soybean flaking process. Weins was employed with a feed company, TCI, which sold industrial minerals for livestock and liquid supplements for cattle. During his employment, he was involved with formulating feed programs for farmers. Sporleder earned an associate’s degree in applied science in animal nutrition and soil sciences. He was also a dealer for TCI for a few years, dealing with the formulation of feed programs.
[¶4] In 1983, Weins was working on a fermentation idea with yeast and sugar. He discussed the development of a tub product using this fermentation idea with Billy Talbot, an employee of TCI. When the plan never advanced beyond these general discussions, Weins began working with another company in similar employment where he also discussed the production of the tub product with other parties. In 1985, he terminated this employment and moved to Rapid City. Weins then spoke to Frank Parker about retailing and/or manufacturing a tub product, but Parker chose to remain uninvolved. In 1987, Weins first mentioned his
[¶ 5] In September of 1988, Weins and Sporleder first met and discussed experimen-tations with feed products. Within a month, Weins, Meyer, and Sporleder were mixing a batch of feed in a garage. The ingredients included milo flour, En-R-G Flakes, cane molasses, sugar, urea, ethyl alcohol, enzyme and fermentation packages, metal protei-nates, vitamins, and iodine. Weins incorpo-l'ated his fermentation idea by adding sugar and alcohol as limiting agents in initial batches of feed. The test results indicated lack of consistency, as the cattle ate more than a desirable amount.
[¶ 6] Other limiting agents were used unsuccessfully until Sporleder suggested the use of phosphoric acid.
[¶ 7] Sporleder, Weins, and Meyer then agreed that Sporleder would set up a corporation named “Pro-Energy” and Weins and Meyer would arrange for a patent search. Weins relayed to Sporleder his lawyer’s advice that they could not sell the product until they applied for a patent. Apparently, Spor-leder was dissatisfied with the delay and contacted another lawyer recommended by Van Liere. Meanwhile, Weins and Meyer decided to abandon the name “Pro-Energy” and use “Ferm-Mix.” Thus, Pro-Energy was never incorporated. By March of 1989, Weins and Meyer terminated their relationship with Sporleder. When they applied for a patent, Weins and Meyer were forced to exclude phosphoric acid from their formula since the idea was Sporleder’s.
[¶ 8] Shortly thereafter, Sporleder approached Van Liere with a proposed tub product. Sporleder claims the product was not the same as Weins’, because Weins admittedly used fermentation yeast and sugar, while Sporleder used phosphoric acid. Spor-leder and Mark VanderVliet tested the product at several farms, but consistency was never achieved.
[¶ 9] A series of letters and phone calls between the lawyers, Weins, Meyer, Sporleder, and Van Liere ensued. Among them was an alleged call in March of 1989 between Meyer and Van Liere, in which Meyer told Van Liere and Sporleder to discontinue making their tub product. Van Liere claims he was not making a tub product at that time. Rather, he contends that he was dealing with Sporleder concerning other matters.
[¶ 10] Van Liere claims he began manufacturing his own product in May of 1989, using steam-flaked corn, En-R-G Flakes, and base-mixes, along with molasses and phosphoric acid. Testing of the product was conducted and, by August of 1989, there was a marketable product.
[¶ 11] On August 26, 1991, the first complaint was filed by Sporleder against Van Liere and En-R-G Max, Inc., claiming unjust enrichment, breach of fiduciary duty,
[¶ 12] The trial court initially directed a verdict against Sporleder on his implied contract claim and, during the trial, Weins and Meyer were allowed to amend their complaint to assert various tort claims. After a twelve-day trial, the trial court submitted the remaining claims to the jury. As to Sporleder’s causes of action, the jury returned a verdict in favor of Sporleder for $320,000 in compensatory damages and $100,000 in punitive damages against Van Liere and En-R-G Max, Inc. Judgment was entered for $420,-000.
[¶ 13] As for the remaining causes of action, the jury returned a verdict in favor of Weins and Meyer for $440,000 against Spor-leder (50%), Van Liere (25%), and En-R-G Max, Inc. (25%), plus punitive damages of $100,000, $50,000, and $50,000, respectively. The trial court later found that the tort claims (including the claim for punitive damages) were displaced by South Dakota’s adoption of the Uniform Trade Secrets Act and struck the jury’s award of punitive damages. Judgment was entered for $440,000.
[¶ 14] Van Liere appeals, raising the following issues:
I. Whether the Weins verdict is inconsistent.
II. Whether Weins has a trade secret as a matter of law, or in the alternative, whether there is sufficient evidence of a trade secret.
III. Whether there is sufficient evidence of misappropriation.
IV. Whether the trial court improperly instructed the jury.
V. Whether the trial court made proper evidentiary rulings.
VI. Whether the damages awarded by the jury are supported by the evidence, are contrary to law, or are the result of passion and prejudice.
VII. Whether there was misconduct by counsel for Weins during the trial which requires a new trial.
VIII. Whether Weins should have been allowed to file a second amended compliant during the trial.
IX. Whether the costs should be reversed.
Sporleder also appeals as to the jury verdict against him, raising one issue different from Van Liere:
I.Whether the joint venture was terminated.
Weins and Meyer collectively filed notice of review, raising the following issues:
I. Whether the trial court erred in striking the punitive damages awarded by the jury.
II. Whether Weins is entitled to prejudgment interest on the compensatory damages awarded by the jury.
III. Whether punitive damages and attorney’s fees should have been awarded on the first cause of action, misappropriation of a trade secret.
DECISION
[¶ 15] Sporleder and Van Liere contend the trial court erred in failing to grant a summary judgment, directed verdict, or judgment notwithstanding the verdict on the issue of misappropriation of a trade secret. The standard of review in such instances was identified in Olson v. Judd,
[¶ 16] Van Liere and Sporleder claim Weins had no trade secret as a matter of law. The determination as to whether a trade secret exists as a matter of law is of first impression in this Court. We agree with the standard of review applied in a similar case, Uncle B’s Bakery, Inc. v. O’Rourke,
[¶ 17] The question of law pertains to SDCL 37-29-1(4), defining trade secret as “information, including a formula, pattern, compilation, program, device, method, technique or process,” whereas the questions of fact involve the remaining subsections which require that the trade secret:
(i) 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
(ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.8
[¶ 18] The burden is upon Weins to show the existence of a trade secret. Jensen v. Redevelopment Agency of Sandy City,
[¶ 19] In a similar case, wherein there was confusion as to what the trade secret was claimed to be, the Eighth Circuit Court of Appeals stated: “The testimony on this count was somewhat confused as Coenco never quite specified what ‘trade secrets’ had been taken from it. The theory seems to have been that the defendants had stolen [the plaintiffs] ideas as represented by the [product].” Coenco, Inc. v. Coenco Sales, Inc.,
[¶20] Even if Weins’ product was considered a trade secret under the initial
[¶21] It is undisputed that Weins’ product is a combination of well-known feed materials provided as a feed supplement. Specifically, the contents of the end product include milo flour, soybean flakes, cane molasses, sugar, urea, phosphoric acid, ethyl alcohol, an enzyme and fermentation package, metal proteinates (trace metals), and various vitamins. Combining these materials cannot be considered a trade secret if the formula was ‘“within the realm of general skills and knowledge’ in the relevant industry.” Computer Care v. Service Sys. Enters., Inc.,
[¶ 22] The ease with which one can develop a similar product is examined by focusing on the time and expense involved. See Computer Care,
[¶ 23] Furthermore, reasonable minds could not have differed as to the determination of whether the economic value of Weins’ product was readily ascertainable by other means. See id.; SDCL 37-29-1(4)(i). Weins offered no evidence that the use of phosphoric acid to limit consumption in feed products was not readily ascertainable by other persons. In fact, Phil Anderson was granted a patent along with Frank N. Rawlings on a feed supplement containing molasses, urea, and phosphoric acid for use as a liquid, free-choice feed supplement for ruminants.
[¶ 24] In addition, Weins actually admitted that the ingredients in his product were readily available in the market, and that it was common knowledge in the feed industry that these kinds of ingredients are used to formulate feed supplements.
[¶ 25] Facts similar to this case, which assist with the determination of the existence of a trade secret as a matter of law, are found in TGC Corp. v. HTM Sports, B.V.,
[¶26] Similarly, as we noted previously, although the feed product is claimed by Weins to be a trade secret, all of the ingredients therein are public knowledge. Furthermore, being the first to combine the ingredients is of no assistance to the claim of trade secret. Weins also claims the process used to combine the ingredients was the trade secret, but such a combination is easily duplicated, thereby preventing it from being a trade secret.
[¶ 27] In addition, there was no substantial evidence showing Weins took reasonable efforts to maintain his product’s secrecy. SDCL 37-29-1(4)(ii). Secrecy is fundamental to the existence of a trade secret. Pioneer Hi-Bred Int’l,
[N]o evidence exists to show that plaintiff took any affirmative measures to keep its [product] secret. No evidence was presented regarding internal or external physical security; that confidentiality agreements or understanding existed among those having access to plaintiffs [product]; that plaintiffs [product] contained confidentiality stamps or [was] kept under lock and key; or that employees received entrance and exit interviews imparting the importance of confidentiality. Consequently, we conclude that plaintiff failed to produce sufficient evidence to prove that under [the relevant section] of the [Trade Secrets] Act, its [product] was the subject of reasonable efforts designed to protect its secrecy.
Gillis Associated Indus, v. Cari-All,
[¶ 28] Again, the application of TGC is helpful. The sizing specifications of the gloves in TGC were claimed to be a trade secret, but the court found the size of a glove can be duplicated by merely viewing it, and “[m]atters disclosed by a marketable product cannot be a secret.”
[T]he clear weight of the evidence is that TGC did not have confidential agreements .... Yet, TGC gave both those firms the necessary information with which to make the TGC glove. The voluntary disclosure of “any alleged ‘trade secret’ as part of a business transaction without any reservation or agreement of confidentiality prevents recognition of the information as a ‘trade secret.’ ”
Id. at 760-61 (quoting Turner v. Great Am. Opportunities, Inc.,
[¶ 29] Viewing the evidence most favorably to Weins, we conclude that no substantial evidence exists which demonstrates Weins’ product possesses economic value not readily ascertainable by other means pursuant to SDCL 37-29-l(4)(i), or that Weins maintained the product’s secrecy according to SDCL 37 — 29—1(4)(ii). Therefore, the trial court erred when it denied the motions for directed verdict and/or judgment notwithstanding the verdict.
[¶ 30] Even if a trade secret was involved in this case, there was no misappropriation. Misappropriation means:
(i) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(ii) Disclosure or use of a trade secret of another without express or implied consent by a person who:
*24 (A) Used improper means to acquire knowledge of the trade secret; or
(B) At the time of disclosure or use, knew or had reason to know that such knowledge of the trade secret was:
(I) Derived from or through a person who had utilized improper means to acquire it;
(II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use[.]
SDCL 37-29-1(2). Weins and Meyer have the burden of proving Sporleder and Van Liere misappropriated the trade secret pursuant to this statute. Such a burden includes proving there was an improper acquisition of the so-called formula. “Improper” is defined to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means[.]” SDCL 37-29-1(1). Weins and Meyer cannot prove such improper acquisition, since the kind of ingredients used in their product to formulate feed supplements are of common knowledge even by Weins’ own admission. As stated in Computer Care, a protectable trade secret cannot be established when a formula is easily duplicated using commonly known ingredients.
[¶ 31] Furthermore, Weins has not shown that Van Liere and Sporleder actually used the formula. No evidence exists proving the product ultimately mixed by Van Liere and Sporleder was exactly the same as Weins’ product. In fact, Weins admitted the products were not the same during his testimony. Weins’ product includes sugar, yeast, and alcohol, making it a sweet, fermentation product, while Van Liere’s product is a natural, texturized product. Van Liere’s expert testified the products are considerably different. Although Weins’ expert stated the products were substantially similar, he never actually examined the formula. Since Van Liere and Sporleder’s end product was at least somewhat different from Weins’ product, it is clear that independent thought was used to obtain the result. See, e.g., TGC,
[¶32] Due to our holding on the trade secret issue, we need not address the remaining issues in this ease. We reverse and direct a judgment consistent with this opinion.
Notes
. This cause of action was consolidated for trial with Sporleder v. Van Liere & En-R-G Max, Inc.,
. Meyer, the owner of a trucking business, met Weins through a mutual friend. The two then discussed feed sales and began working together.
. Limiting agents such as phosphoric acid are used to prevent cattle from overeating.
. This patent was later held invalid due to its obviousness. Rawlings v. National Molasses Co.,
. Such testing was performed on different ranches. Whether the owners of the ranch were informed of the formula for the ingredients in the tub is in dispute.
. Phosphoric acid was, however, used in Weins’ final product. See, e.g., ¶ 21, infra.
. Sporleder started a feed company, Winner Circle Feeds (WCF), which was having financial difficulties. Therefore, Van Liere eventually agreed to sell directly to some of WCF’s customers in April of 1989.
. SDCL ch 37-29 is a substantial adoption of the Uniform Trade Secrets Act.
. As we noted in footnote 3, this patent was challenged in Rawlings, wherein the court held the patent was invalid because prior art disclosed its obviousness.
. Weins testified as follows:
Counsel: The ingredients that you used in your recipe, were those ingredients that were available on the market?
*22 Weins: Yes, they were.
Counsel: All right. Could you buy them— Anybody could go buy them; right?
Weins: Yes.
Counsel: And isn’t it common knowledge in the feed industry that these kind of ingredients are used to formulate feed supplements?
Weins: That is common knowledge, with the understanding, the right combination of ingredients will make feed much better.
. However, the jury in the case at hand was instructed to disregard the patent exhibits when determining whether a trade secret exists.
. For a review of case law dealing with the determination of trade secret as a matter of law. see Bateman v. Mnemonics, Inc.,
. A glove with a seamless palm is comprised of "a pattern of five pieces sewn together with a ’gunn cut’ and with single seams around the fingers.” Id. at 757.
Dissenting Opinion
(dissenting).
THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE JURY’S CONCLUSION THAT THE FORMULA CONSTITUTED A TRADE SECRET.
[¶ 35] The Uniform Trade Secret Act (UTSA) is codified at SDCL ch 37-29. Whether something is a “trade secret” hinges on SDCL 37-29-1(4), which provides:
(4) “Trade secret,” [is defined as] information, including a formula, pattern, compilation, program, device, method, technique or process, that:
(i) 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
(ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
As noted by the majority opinion, this statute requires a two-part analysis, one legal and one factual.
Trade secrets can range from customer information, to financial information, to information about manufacturing processes to the composition of products. There is virtually no category of information that cannot, as long as the information is protected from disclosure to the public, constitute a trade secret.
(Quoting Thomas J. Collin, Determining Whether Information is a Trade Secret Under Ohio Law, 19 UTolLRev 543, 545 (1988)) (emphasis added). The majority opinion concludes, as a matter of law, that no trade secret existed because “there was never a clear assertion as to what exactly was claimed to be the trade secret.” Supra ¶ 18.
a feed that could be used anywhere, (not subject to freezing like the Anderson product), that took advantage of the fermenting process using a yeast and sugar process and that would be self limiting. [Unlike Anderson’s product,] Weins, Meyer and Sporleder developed a dry product.
[¶ 37] The fact part of the question arises from the remaining portion of the definition in subdivisions (i) and (ii). Economy Roofing,
We interpret the facts on a basis most favorable to upholding the jury’s verdict.
Our standard of review of the circuit court’s denial of a directed verdict and of the jury’s determination in favor of [the] plaintiff is well established. We must examine the evidence in the light most favorable to the non-moving party and give [her] the benefit of all reasonable inferences. Robinson v. Mudlin,273 N.W.2d 753 , 755 (S.D.1979). The moving party is entitled to evidentiary consideration only where its evidence is un-contradicted or tends to amplify, clarify or explain the evidence in support of the verdict of the jury for the prevailing party. Nugent v. Quam,82 S.D. 583 ,152 N.W.2d 371 , 374 (1967).
In such a context, it becomes our task to review the record and determine whether there is any substantial evidence to allow reasonable minds to differ. Haggar v. Olfert,387 N.W.2d 45 (S.D.1986). This court does not weigh the evidence and substitute its judgment for that of the jury. Robinson, supra; Berg v. Sukup Mfg.,355 N.W.2d 833 , 835 (S.D.1984).
Landstrom v. Shaver,
It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.
Fajardo v. Cammack,
[¶ 38] The jury was properly instructed regarding trade secrets. Instruction 19 was taken verbatim from SDCL 37-29-1(4), and the jury decided the question based on that instruction.
Jurors are deemed to be reasonably intelligent. Allen v. McLain,75 S.D. 520 ,69 N.W.2d 390 (1955). It is also presumed that a jury understands and follows the court’s instructions. Giltner v. Stark,219 N.W.2d 700 (Iowa 1974). In addition, a jury verdict may be read in light of the pleadings in the case, the issues presented by the evidence, and the charge made to the jury. NEDA Const. Co., Inc. v. Jenkins,137 Ga.App. 344 ,223 S.E.2d 732 (1976).
Mid-America Mktg. Corp. v. Dakota Indus., Inc.,
[¶ 39] The first factual element of the statute requires that the product “[derive] 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[.]” The majority opinion substitutes its judgment for that of the jury and the trial court and concludes that “reasonable minds could not have differed as to [this] determination.” Supra ¶ 23. What this statement fails to recognize is that reasonable minds do differ on this issue, i.e., the jury and the judge reached a conclusion with which the majority opinion disagrees.
[¶ 40] The appellants focus on the fact that phosphoric acid was readily known as a potential limiting agent in livestock feed.
[¶ 41] The second factual element provides that the information must be “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” The majority opinion states that ‘Weins fails to demonstrate active measures were taken to maintain his product’s secrecy.” Supra ¶ 28. However, the evidence shows that none of
THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE JURY’S CONCLUSION THAT SPORLEDER MISAPPROPRIATED A TRADE SECRET.
[¶ 42] Whether Sporleder misappropriated Weins’ trade secret is governed by SDCL 37-29-1(2), which provides:
(2) “Misappropriation,”
(i) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper17 means; or
(ii) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(A) Used improper means to acquire knowledge of the trade secret; or
(B) At the time of disclosure or use, knew or had reason to know that such knowledge of the trade secret was:
(I) Derived from or through a person who had utilized improper means to acquire it;
(II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C)Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake!.]
[¶ 43] Whether Sporleder misappropriated a trade secret depends upon whether he “[acquired it] under circumstances giving rise to a duty to maintain its secrecy or limit its use.” Id. (2)(ii)(B)(II). The jury indicated on the verdict form that Sporleder breached his fiduciary relationship with Weins. The prefatory note to the UTSA indicates one of its purposes is to provide a single statute of limitations for “violation of fiduciary relationship theories of noncontractual liability utilized at common law.” 14 ULA Uniform Trade Secrets Act 433, 435 (1990). Fiduciary duties are not inherent in normal arm’s-length business relationships. Ward v. Lange,
[¶44] A fiduciary relationship is created when two or more persons engage in a “joint venture.” See 48A CJS Joint Ventures § 24, at 442-44 (1981):
Generally, the parties to a joint venture stand in a fiduciary relation, each to the other, or in a close relationship of trust and confidence, and are bound by the same standards of good conduct and square dealing as are required between partners.
(Collecting cases). The jury was properly
The elements of a joint venture are:
(1) an intent to enter into a joint venture;
(2) an agreement, express or implied, among members of a group;
(3) a common purpose to be carried out by the group;
(4) a joint pecuniary interest in that purpose among the members;
(5) an equal right to a voice in the direction and control of the group; and
(6) a right to share in the profits and a duty to share in any losses.
Instruction 31. As noted, the jury found that Sporleder breached his fiduciary duty to Weins. Our task is simply to determine whether there is substantial evidence to support that conclusion. Landstrom,
[¶ 45] Sporleder argues that he could not misappropriate the formula employing phosphoric acid as a limiter because he brought the knowledge of that chemical’s usefulness to the joint venture. Furthermore, he argues, he continued to test his product after his relationship with Weins ended. Therefore, he claims that he could not misappropriate an idea which was his own. His claim fails for several reasons.
[¶ 46] First, it is undisputed that Sporleder and Weins together developed and tested a livestock feed formula. Along the way, they certainly learned what “worked” as well as what did not. See Morton v. Rank America, Inc.,
The Defendants have also failed to cite to any authority indicating that the misappropriation of a trade secret by a joint owner of that trade secret does not constitute the misappropriation of the trade secret “of another.” Indeed, [the equivalent of SDCL 37-29-1(2)(ii)(B)(II) ] appears to contemplate exactly this situation.... [I]t is reasonable to conclude that one party’s use of the trade secrets that affects the other party’s right in the [alleged trade secrets] would constitute the misappropriation of the trade secrets “of another.”
Accord B.F. Gladding & Co. v. Scientific Anglers,
[¶ 47] Second, the fact that Sporleder and Weins continued to independently test the formula, resulting in variations in the final product is no bar to a misappropriation claim. See, e.g., Richardson v. Suzuki Motor Co., Ltd.,
Whether a party to a joint venture has the right to withdraw from it, and what the effect of such withdrawal will be, depends upon the terms of the agreement and upon the circumstances. Generally, where the purposes of the enterprise have not been fulfilled, no party has the right to withdraw from or abandon it without the consent of coventurers. ...
Although dissension may provide a sufficient ground for dissolution of the venture by a decree of a court of equity, in the absence of such a decree, or of an agreement fixing the time of termination or a voluntary abandonment of the enterprise by one of the parties, the agreement remains in force until its purpose has been accomplished or has become impossible of fulfillment. While the agreement is in force, ordinarily one joint venturer has no right to exclude another, or to withdraw himself from he arrangement, in order to act independently in respect to the subject matter. If he does so and thereafter pursues the enterprise alone, he may be compelled to share the benefits with his former associates.
46 AmJur2d Joint Ventures § 31, at 59-60 (1994) (collecting cases) (emphasis added). Therefore, Sporleder’s claims and defenses are without merit and the jury properly rejected them.
[¶ 49] There is substantial evidence in the record to support the jury’s conclusion that Sporleder misappropriated a trade secret.
[¶ 50] In view of all of the above, I would affirm these two issues and reach the rest of the issues set forth in ¶ 14 of the majority opinion.
. The majority opinion's reliance on Coenco, Inc. v. Coenco Sales, Inc.,
. But see Rivendell Forest Prod. v. Georgia-Pacific Corp.,
. While the majority opinion maintains that the ingredients were readily ascertainable, no proof was offered to show that any other company was utilizing the three-stage process. See, e.g., Bestechnologies, Inc. v. Trident Envtl. Sys., Inc.,
. "Improper” is also defined by UTSA:
“Improper,” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means[.]
SDCL 37-29-1(1).
. This is not intended as an exhaustive list of the relationships in which fiduciary duties may arise.
. The instruction comports with this court’s discussion of joint ventures in Ethan Dairy Products v. Austin, 448 N.W.2d 226, 228 (S.D.1989).