WESCO AUTOBODY SUPPLY, INC. v. ERNEST

<>Id. Summary judgment is improper "if reasonable persons could reach differing conclusions or draw conflicting inferences from the evidence presented." McPheters v. Maile, 138 Idaho 391, 394, 64 P.3d 317, 320 (2003). However, a "mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine issue of material fact for the purposes of summary judgment." Van, 147 Idaho at 556, 212 P.3d at 986.

Wesco first argues that the district court erred in granting partial summary judgment on its claims. This issue encompasses Wesco's other issues raised on appeal and thus all issues will be discussed in the context of whether the district court erred in granting partial summary judgment. We will address each original count and decision by the district court in turn. On their cross-appeal, Respondents argue that the district court erred in failing to grant full summary judgment. However, "an order denying a motion for summary judgment is neither a final order that can be directly appealed nor is it an order that can be reviewed on an appeal from a final judgment in the action." Courtney v. Big 0 Tires, 139 Idaho 821, 823, 87 P.3d 930, 932 (2003). Consequently, we will not review the denial of Respondents' request for full summary judgment.

Respondents also cross-appeal from the Memorandum Decision and Order Denying Renewed Motion for Summary Judgment entered on August 13, 2008. However, that decision was not certified as a final and appealable judgment pursuant to Rule 54(b).

2. Breach of Contract

In its First Amended Complaint, Wesco asserts: (1) the employees had an employment contract with Wesco; (2) implied in every contract is the duty to act in good faith; (3) the employees owed a duty of fidelity, confidentiality, and loyalty to Wesco; and (4) by taking confidential customer information, soliciting customers for their new business while still employed by Wesco, and recruiting their fellow employees to work for P S and APW, the employees materially breached their duties to Wesco.

It is settled law in Idaho that employment is at will unless an employee is hired pursuant to a contract that specifies the duration of employment or limits the reasons for which an employee may be discharged. Jenkins v. Boise Cascade Corp., 141 Idaho 233, 240, 108 P.3d 380, 387 (2005). Thus, in the absence of an agreement limiting a party's right to terminate the employment relationship, they may terminate it at any time or for any reason. Mitchell v. Zilog, Inc., 125 Idaho 709, 712, 874 P.2d 520, 523 (1994). "This rule reflects the judiciary's reluctance to bind employers and employees to an unsatisfactory and potentially costly situation, although we recognize that either party is likely to be damaged by an unforewarned termination of the employment relationship." Id.

There is no dispute that the employees here were at-will employees. Howe, an owner of Wesco, stated in his deposition that the employees could leave the employment of Wesco and go work for a competitor the next day based upon the employee agreements they signed with Wesco. The employee agreements stated:

I, the undersigned, hereby acknowledge that my employment with Wesco Autobody Supply, Inc., is employment-at-will under the laws of the State of Idaho. Idaho State recognizes the doctrine of employment-at-will which means that either party to the relationship can terminate the employment with or without notice and with or without cause by either party. I further acknowledge my employment with Wesco Autobody Supply, Inc., will remain employment-at-will notwithstanding any other oral or written statement made by the company prior to, at or following my date of employment.

Included with the acknowledgment form was a document further defining "Employment-At-Will," which stated that "[e]mployees may resign from the company after proper notice and may be terminated by the company at any time, for any reason, with or without notice."

Here, the district court found that, because the employees were at-will, they could terminate their employment at any time and for any reason without breaching their employment contracts. We agree and find that the district court did not err in its determination that the employees did not breach their employment contracts by terminating their employment with Wesco. However, we still must consider whether the employees breached the covenant of good faith and fair dealing or their fiduciary duties toward Wesco.

a. Breach of covenant of good faith and fair dealing

"Idaho law recognizes a cause of action for breach of an implied covenant of good faith and fair dealing. Such a covenant is found in all employment agreements, including employment at-will relationships." Cant-well v. City of Boise, 146 Idaho 127, 135, 191 P.3d 205, 213 (2008) (internal citation omitted). The determination of whether the covenant has been breached is an objective determination of whether the parties have acted in good faith in terms of enforcing the contractual provisions. Jenkins, 141 Idaho at 243, 108 P.3d at 390. "An action by one party that violates, qualifies or significantly impairs any benefit or right of the other party under an employment contract whether express or implied, violates the covenant." Cantwell, 146 Idaho at 135-36, 191 P.3d at 213-14. However, the "covenant only arises in connection with the terms agreed to by the parties, and does not create new duties that are not inherent in the employment agreement." Van v. Portneuf Med. Ctr., 147 Idaho 552, 562, 212 P.3d 982, 992 (2009).

The district court here found that a covenant of good faith and fair dealing arises only regarding terms agreed to by the parties, and there was no evidence in the record that the employment agreements between the parties included any terms regarding confidential customer information, soliciting Wesco's customers for other entities after leaving Wesco employment, and/or recruiting or talking to fellow employees about changing their employment. The district court, therefore, determined that the employees did not breach the covenant of good faith and fair dealing. This Court agrees that a material issue of fact was not raised as to whether Defendants breached the covenant of good faith and fair dealing. As the district court stated, there was no evidence of terms or provisions regarding confidentiality, solicitation, or recruitment in any agreement between Wesco and Defendants.

b. Breach of fiduciary duty

"To establish a claim for breach of fiduciary duty, plaintiff must establish that defendants owed plaintiff a fiduciary duty and that the fiduciary duty was breached." ToUey v. THI Co., 140 Idaho 253, 261, 92 P.3d 503, 511 (2004). This Court, in Jensen v. Sidney Stevens Implement Co., approved of the following statements regarding fiduciary duty:

"Loyalty to his trust is the first duty which an agent owes to his principal. It follows as a necessary conclusion that the agent must not put himself in such a relationship that his interests become antagonistic to those of his principal. Fidelity in the agent is what is aimed at, and as a means of securing it the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal. . . ."

36 Idaho 348, 353, 210 P. 1003, 1005 (1922). The Restatement (Third) of Agency § 8.04 states that:

The district court referred to Restatement (Second) of Agency § 393 in its opinion. That section is adopted in large part by Restatement (Third) of Agency § 8.04.

Throughout the duration of an agency relationship, an agent has a duty to refrain from competing with the principal and from taking action on behalf of or other-wise assisting the principal's competitors. During that time, an agent may take action, not otherwise wrongful, to prepare for competition following termination of the agency relationship.

In R Homes Corp. v. Herr, the Idaho Court of Appeals addressed the issue of fiduciary duty in the context of the solicitation of customers. 142 Idaho 87, 123 P.3d 720 (Ct. App. 2005). The Herr Court found no evidence in the record that the defendant sought out customers or solicited customers before he terminated his employment with the plaintiff, and also held that it was unreasonable to infer solicitation had taken place solely from the fact that customers who once did business with the plaintiff thereafter did business with the defendant's new place of work. Id. at 90-91, 123 P.3d at 723-24.

Here, the district court found as follows:

[T]here are genuine issues of fact as to whether some of the employees (against whom Wesco has brought suit) have breached these duties. Dayley may have breached a duty by drafting letters of resignation for other employees. Johnston may have breached a duty by speaking to Dobbs about quitting P E. Brady may have breached a duty by talking to other employees about quitting P E. Cook may have breached a duty by writing resignation letters for other employees. Hancock may have breached a duty by speaking to Thompson and McClure about quitting P E and by preparing resignation letters for them. The Court therefore dismisses all employee defendants except Dayley, Johnston, Brady, Cook, and Hancock as to this count.

We find that the district court did not err in its determination that a genuine issue of material fact exists as to whether Dayley, Johnston, Brady, Cook, and Hancock breached their fiduciary duties to Wesco. The district court is correct in finding that the deposition testimony of Dayley, Johnston, Brady, Cook, and Hancock indicates that, by drafting letters of resignation for other employees and speaking to other employees about quitting, those five employees may have put themselves in such a position that their interests became antagonistic to those of their principal or that they may have been assisting the principal's competitors. In addition, unlike in R Homes, the letters written to customers here provide evidence that the defendants may have sought out customers or solicited customers before the termination of their employment with Wesco. The letters have contact information for Peck, Dayley, Brady, Johnston, Cristobal, Hancock, McClure, and Cook, and are not dated. However, they state that the employees have terminated their employment with P E effective August 19, 2005, and beginning August 22, 2005, have joined P S. It is difficult to tell when the letters may have been sent, so the evidence is tenuous, but the district court should consider it. Therefore, as Dayley, Johnston, Hancock, Peck, Cristobal, and McClure were dismissed from the action by stipulation, we hold that a genuine issue of material fact exists as to whether Brady and Cook breached their fiduciary duties to Wesco.

Wesco also argues on appeal that Ernest and P S actually participated in the employees' breach of their fiduciary duties by aiding and abetting the employees. However, the claim for breach of contract and breach of duty on behalf of Ernest and P S was not argued before the district court. Thus, we need not address this claim on appeal as to aiding and abetting; however, the claim will be addressed in the context of the claim of tortious interference with contract.

3. Interference with Prospective Economic Advantage

"This Court has previously noted that the torts of intentional interference with prospective economic advantage and intentional interference with contract are similar, and that cases and commentary addressing the two torts often apply interchangeably for proving the common elements." Cantwell v. City of Boise, 146 Idaho 127, 138 n. 5, 191 P.3d 205, 216 n. 5 (2008).

In its First Amended Complaint, Wesco argues that Wesco had a valid economic expectancy in its relationship with its employees and customers in the Idaho Stores, Defendants had knowledge of that expectancy, and yet Defendants intentionally interfered with both Wesco's customer and employee relationships. Furthermore, Wesco argued that Defendants interfered for the purpose of stealing Wesco's customers and putting the Idaho Stores out of business, and coercing Wesco's employees to leave Wesco's employ and work for P S. On appeal, Wesco argues that Ernest, Davis, and P S employed wrongful means in aiding and abetting Brady's breach of his duty of loyalty and therefore tortiously interfered with Wesco's expectancy in the continuing employment and loyalty of its workforce.

To establish a claim for intentional interference with a prospective economic advantage, Wesco must show:

(1) the existence of a valid economic expectancy, (2) knowledge of the expectancy on the part of the interferer, (3) intentional interference inducing termination of the expectancy, (4) the interference was wrongful by some measure beyond the fact of the interference itself, and (5) resulting damage to the plaintiff whose expectancy has been disrupted.

Cantwell, 146 Idaho at 138, 191 P.3d at 216. To establish that the intentional interference resulting in injury was wrongful, Wesco may offer proof that either: "(1) the defendant had an improper objective or purpose to harm the plaintiff; or (2) the defendant used a wrongful means to cause injury to the prospective business relationship." Idaho First Nat'l Bank v. Bliss Valley Foods, Inc., 121 Idaho 266, 286, 824 P.2d 841, 861 (1991). However, an enforceable contract need not be shown to exist, just a valid economic expectancy. Commercial Ventures, Inc. v. Rex M. Lynn Lea Family Trust, 145 Idaho 208, 217, 177 P.3d 955, 964 (2008).

In Highland Enters., Inc. v. Barker, this Court stated that the proper standard for the "knowledge of the expectancy" element necessary to make a claim of intentional interference with economic advantage is not actual knowledge. 133 Idaho 330, 338, 986 P.2d 996, 1004 (1999). Instead, the knowledge element may be "`satisfied by actual knowledge of the prospective [economic advantage] or by knowledge "of facts which would lead a reasonable person to believe that such interest exists."`" Id. at 338-39, 986 P.2d at 1004-05 (alteration and emphasis in the original) (quoting Kutcher v. Zimmerman, 87 Hawai'i 394, 957 P.2d 1076, 1088 n. 16 (Haw.Ct.App. 1998)).

Intent may be demonstrated if it is shown that the actor desires to bring about the interference, or "knows that the interference is certain or substantially certain to occur as a result of his action." Id. at 340, 986 P.2d at 1006 (quoting Restatement (Second) of Torts § 766 cmt. d (1977)). "Intent can be shown even if the interference is incidental to the actor's intended purpose and desire `but known to him to be a necessary consequence of his action.'" Id. (quoting Restatement (Second) of Torts § 766 cmt. j. (1977)).

The district court here found that, given that it had found that some of the defendants (Dayley, Johnston, Brady, Cook, and Hancock) may have violated their fiduciary duty to Wesco, such a violation may also be wrongful conduct by some measure above the interference itself so as to support Wesco's claim for interference with prospective economic advantage. We affirm the district court in its finding that a genuine issue exists as to whether the violation of the employees' fiduciary duty may also support Wesco's claim for interference with prospective economic advantage.

We also affirm the district court in its finding that a genuine issue of material fact does not exist with regard to Ernest, Davis, P S, and APW. Wesco seeks to demonstrate that Ernest, Davis, APW, and P S had formulated a plan to take as many of Wesco's employees as possible through the en masse resignation, demonstrating that they had an improper purpose to harm Wesco. To support this argument, Wesco relies on Howe's deposition testimony that Ernest and Davis informed Howe that they knew P E's employees very well, had a better relationship with them than P E's owner, and if P E did not work something out with them, they would take the business from P E's owner. Howe's testimony was as follows:

Q. And what was the nature of that conversation?

A. Just essentially that they were, you know, interested in the three stores down there and if anything ever become of it, you know, they'd like to do something with the stores down there and that sort of thing.

Q. Anything else you recall about that conversation today?

A. Yeah, that they had a better handle of David's [P E's owner] business. They knew his employees real well, and they had a better relationship with them than David did and that — you know, I mean, if they couldn't work something out with David, they'd just go take it away from him.

Q. Is that a quote, or is that just your recollection today?

A. That's my reco — it's not an exact quote, but it's a pretty — pretty fair statement of what I recall.

Wesco further contends that by taking as many employees of Wesco's as possible, and leaving Wesco without managers or trained sales staff in the Idaho Stores, when Wesco was new to the Eastern Idaho market, Ernest, Davis, APW, and P S demonstrated an intent to cause harm to Wesco's economic interests.

However, the only evidence Wesco put forth, besides the actual fact that the employees resigned en masse, was the statement by Howe that was a "pretty fair statement" of what Howe recalled of the conversation. This evidence did not raise a genuine issue of material fact regarding Ernest, Davis, APW, and P S's intentional interference with Wesco's prospective economic advantage.

4. Interference with Contracts

"One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability. . . ." Restatement (Second) of Torts § 766 (1979). Liability may arise for tortious interference with a contract even where the contract is terminable at will because, until it has been terminated by one party, the contract is valid and subsisting and a defendant may not improperly interfere with it. Restatement (Second) of Torts § 766 cmt. g. (1979). Tortious interference with contract has four elements: "(1) the existence of a contract; (2) knowledge of the contract on the part of the defendant; (3) intentional interference causing a breach of the contract; and (4) injury to the plaintiff resulting from the breach." Bybee v. Isaac, 145 Idaho 251, 259, 178 P.3d 616, 624 (2008). The plaintiff must establish these elements before the burden switches to the defendant to explain the interference with the contracts. Nw. Bec-Corp v. Home Living Serv., 136 Idaho 835, 841, 41 P.3d 263, 269 (2002).

"The `intent' of the `intentional interference' requirement can be inferred by the jury from evidence of `conduct substantially certain to interfere with the [contract].'" Bybee v. Isaac, 145 Idaho 251, 259, 178 P.3d 616, 624 (2008) (quoting Highland Enters., Inc. v. Barker, 133 Idaho 330, 340, 986 P.2d 996, 1006 (1999)). In Bybee, this Court found that there was evidence from which the jury could have inferred Farm Air engaged in conduct substantially certain to interfere with the non-compete agreement because the owner of Farm Air knew of the covenant not to compete, hired Isaac directly after she quit working for Bybee Air, and testified that he did not ask Isaac to refrain from contact with customers of Bybee Air before or after he hired her, nor put any limitations on her ability to contact customers. Id.

a. Interference with Employee Contracts

Wesco alleged in its First Amended Complaint that Ernest, Davis, P S, and APW had knowledge of Wesco's contract with the employees, and they intentionally interfered with the employee contracts, which caused a breach of the contract and injury to Wesco. The district court found that there is no evidence in the record to suggest that Wesco employees breached their employment contract with Wesco and, therefore, Wesco cannot maintain this action against Defendants. We agree based upon our determination that a genuine issue of material fact did not exist regarding whether the employees breached their employment contracts with Wesco.

b. Interference with Customer Contracts

Wesco next contends that all Defendants had knowledge of Wesco's contracts with its customers and Defendants intentionally interfered with those contracts, resulting in a breach of the relationships and injury to Wesco. In its First Amended Complaint, Wesco identified three contracts it claimed were interfered with. On appeal, Wesco focuses on one of the contracts, and argues that because the customer is still using the equipment but not purchasing paint from Wesco, evidence of interference has been provided. Defendants argued below that there was no evidence of an injury because the contracts identified by Wesco merely require that any equipment provided to the customers be returned along with any unused product, and therefore Wesco could simply pick up its equipment and bill the customers for any unused paint.

Here, the district court found that a "conditional use contract" was the only contract between Wesco and customers that may have been breached by the customers. The court stated: "There is no other evidence that Wesco customers owed a contractual duty to Wesco to continue to purchase goods and/or services from them. There is no other evidence that such Wesco customers then breached such a contractual duty as a result of any interference in the contractual relationship by any of the Defendants."

The three contracts Wesco identified provided that P E would supply equipment at no charge in exchange for the customer purchasing products from P E. As Defendants argued, Wesco could simply pick up its equipment if the customers were no longer purchasing the specified products from Wesco. Therefore, we affirm the district court and find that Defendants did not interfere with Wesco's customer contracts.

5. Unfair Competition

Wesco asserts in its First Amended Complaint that Defendants, through their joint and several efforts, purposefully engaged in unfair competition specifically designed to reduce Wesco's ability to compete against Defendants in the automotive paint supply industry and to drive Wesco out of business. The Restatement (Third) of Unfair Competition § 4 provides that one is subject to liability if:

[I]n connection with the marketing of goods or services, the actor makes a representation likely to deceive or mislead prospective purchasers by causing the mistaken belief that the actor's business is the business of the other, or that the actor is the agent, affiliate, or associate of the other, or that the goods or services that the actor markets are produced, sponsored, or approved by the other.

The district court here found that there was a genuine issue of material fact as to whether former employees were engaged in unfair competition by (1) wearing P E clothing while working for P S and (2) maintaining and using the P E cell numbers (with the same recorded telephone messages) for their cell telephones while they worked for P S. The court thus refused to dismiss any of the former employees or P S from the allegations in this count, but did dismiss Ernest and APW, as there was no evidence that an action could be maintained against them. However, the court found no evidence that the organizers of P S used the name to confuse the customers of P E, as the record indicated that the P S name was used by the company since 1972.

That employees continued to wear P E clothing and use P E cell numbers did create a genuine issue of material fact as to whether the employees were making representations likely to deceive or mislead customers. As Wesco pointed out in its memorandum in opposition to summary judgment, "customers calling on former Wesco Paint Equipment employees heard Paint Equipment recordings, saw Paint Equipment uniforms, called the same cell phone numbers, and dealt with the same people they had been dealing with for years at Paint Equipment." Thus, the district court was correct in finding that there was a genuine issue of material fact as to whether the former employees and P S engaged in unfair competition. The district court was also correct in finding that P S did not use its name to confuse customers of P E, because the record indicated that the name had been in use since 1972.

6. Idaho Competition Act

Wesco contends that Ernest and APW conspired or combined with the employees to unreasonably restrain Idaho commerce by attempting to steal Wesco's customers and employees and to put the Idaho Stores out of business. Idaho Code § 48-102(2) outlines the purpose of the Idaho Competition Act:

The purpose of this chapter is to maintain and promote economic competition in Idaho commerce, to provide the benefits of that competition to consumers and businesses in the state, and to establish efficient and economical procedures to accomplish these purposes and policies.

Idaho Code § 48-104 then provides: "A contract, combination, or conspiracy between two (2) or more persons in unreasonable restraint of Idaho commerce is unlawful." In Woodland Furniture, LLC v. Larsen, this Court stated:

[Idaho Code § 48-104] requires a claimant to show a purpose to drive another out of business, reflecting the notion that un-fair competition laws were enacted to protect competition, not competitors. Idaho Code § 48-104 strikes the balance between free competition and fair competition by offering relief only where a company can show a competitor's intent to drive the company out of business, rather than simply an intent to compete.

142 Idaho 140, 146, 124 P.3d 1016, 1022 (2005) (internal citation omitted). The Court then found that, although the defendant's actions were "not commendable" there was no evidence to support the claim that the defendant had an intent to drive the plaintiff out of business. Id. at 147, 124 P.3d at 1023.

The court here found that Wesco could not maintain a cause of action under the Idaho Competition Act because there was no evidence that the defendants were engaged in conduct that would subject them to antitrust actions. This Court agrees because, while the actions of Ernest in seeking to hire the majority of the Wesco employees to staff stores in the same three cities may not have been "commendable," Wesco's only evidence that the intent was to drive Wesco out of business was Howe's testimony that Ernest commented on taking P E's business away from them. That evidence was not enough to raise a genuine issue of material fact.

7. Computer Fraud

Wesco asserts that the Idaho Stores maintained computers containing confidential customer information and the employees intentionally accessed the computers without authorization from Wesco for the purposes of obtaining, transmitting, and utilizing the confidential customer information for their own gain. A violation of the Computer Fraud Abuse Act occurs when one:

(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; (B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or (C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.

18 U.S.C.A. § 1030(a)(5).

The district court found that there was undisputed evidence that Cook deleted information from the Wesco computer. The court dismissed all Defendants except Cook, finding that there was a genuine issue of material fact that Cook's conduct (1) violated 18 U.S.C.A. § 1030(a)(5)(A), and (2) impaired the integrity or availability of data or a program causing loss.

An order denying a summary judgment is not reviewable. Courtney v. Big O Tires, 139 Idaho 821, 823, 87 P.3d 930, 932 (2003). Therefore, this Court will not review the district court's decision concerning Cook.

8. Idaho Trade Secrets Act

Wesco argues that Defendants, acting jointly and severally, acquired, disclosed or used Wesco's customer information at the Idaho Stores using improper means. Wesco asserts that it maintained confidential customer information at its Idaho Stores including customer names, customer buying preferences, and customer history; this information derives independent economic value and is not readily ascertainable by proper means; Wesco reasonably attempted to maintain the secrecy of the customer information; and the customer information constitutes a "trade secret" under I.C. § 48-801(5).

Idaho Code § 48-801(5) defines a "trade secret" as follows:

[I]nformation, including a formula, pattern, compilation, program, computer program, device, method, technique, or process, that:

(a) 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

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

In order to prevail in a misappropriation action under the Idaho Trade Secrets Act (ITSA), the plaintiff must show that a trade secret actually existed. Basic Am., Inc. v. Shatila, 133 Idaho 726, 735, 992 P.2d 175, 184 (1999). In Basic American, this Court looked to the Restatement for six factors that can be used to show that given information is a trade secret:

(1) the extent to which the information is known outside [the plaintiff's] business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and his competitors; (5) the amount of effort or money expended by him in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Id. (quoting Restatement of Torts § 757 cmt. b (1939)) (alteration in original). All of these factors address the issue of whether the information in question is generally known or readily ascertainable. Id.

In Northwest Bec-Corp v. Home Living Service, Inc., the issue was whether actual misappropriation, as defined by I.C. § 48-801(2), occurred. 136 Idaho 835, 839, 41 P.3d 263, 267 (2002). The Court agreed with the district court's finding that "the legislature did not intend the statute to be read so broadly as to preclude the hiring of an employee from a competitor; the legislature also did not intend that merely hiring a competitor's employee constitutes acquiring a trade secret." Id. at 840, 41 P.3d at 268. Instead, "[a]n employee will naturally take with her to a new company the skills, training, and knowledge she has acquired from her time with her previous employer. This basic transfer of information cannot be stopped, unless an employee is not allowed to pursue her livelihood by changing employers." Id. In Northwest Bec-Corp, the Court found that, despite the evidence that — after the defendant left her employment with the appellants — approximately ninety customers ended their business relationship with the appellants and began doing business with the defendant's new place of business, defendants nevertheless established the absence of any genuine issue of material fact through the affidavits they submitted providing alternative explanations for the customer changes. Id. at 840-41, 41 P.3d at 268-69.

Here, based on the evidence in the record, the district court found that there was a genuine issue of material fact as to whether Cook's actions with the Wesco computer violated ITSA because customer lists, lists showing customer buying preferences, the history of customer purchases, and custom paint formulas are trade secrets. The court further found that there was no evidence that Wesco's former employees used Wesco's trade secrets to cause the customers to buy their products from P S.

We affirm the district court on this issue. Wesco did not raise a genuine issue of material fact that any of the employees other than Cook took customer lists, lists showing customer buying preferences, the history of customer purchases, and custom paint formulas through the evidence it presented. To the extent that customers left Wesco and began using P S, the depositions of the employees indicate that this was due to the relationships the employees had developed with the customers and not trade secrets taken from Wesco.

9. Civil Conspiracy

Wesco contends that Defendants associated together for the unlawful objective of putting the Idaho Stores out of business, stealing Wesco's customers, and unlawfully restricting Wesco's lawful competition against Defendants. Wesco further asserts that Defendants combined and conspired to reach an agreement with respect to the employees' resignations from Wesco, the employees' solicitation of customers while still employed for Wesco, and to drive the Idaho Stores out of business. Wesco argues that Defendants employed unlawful means to accomplish these purposes.

"A civil conspiracy that gives rise to legal remedies exists only if there is an agreement between two or more to accomplish an unlawful objective or to accomplish a lawful objective in an unlawful manner." McPheters v. Maile, 138 Idaho 391, 395, 64 P.3d 317, 321 (2003). Civil conspiracy is not an independent claim for relief because "[t]he essence of a cause of action for civil conspiracy is the civil wrong committed as the objective of the conspiracy, not the conspiracy itself." Id. Furthermore, there must be specific evidence of a plan or agreement to demonstrate the existence of the conspiracy at the time the allegedly unlawful objective was accomplished. Mannos v. Moss, 143 Idaho 927, 935, 155 P.3d 1166, 1174 (2007). In Mannos, the plaintiff argued that the fraudulent acts that the defendants engaged in to induce him to invest in a company constituted the underlying civil wrong. Id. However, the Court found that the plaintiff failed to offer, and the records failed to contain, any specific evidence regarding an alleged agreement or plan among the defendants to defraud him. Id.

The district court here stated: "While the Court has found genuine issues of fact concerning those who have allegedly committed wrongs alleged in the complaint, the Court finds no evidence of an agreement between two or more to accomplish these civil wrongs." We affirm the district court on this issue, as the record is devoid of specific evidence of an agreement or plan to commit wrongful acts between any two defendants.

10. Conversion

Wesco alleged in its First Amended Complaint that Defendants wrongfully took and converted property belonging to Wesco. However, Wesco did not add the conversion claim until its amended complaint, and there-fore Defendants did not move for summary judgment on the issue. (Counsel for Defendants: "My review of [the amended complaint] didn't affect my motion for summary judgment, other than the conversion thing I haven't had a chance to respond to, as far as making a motion for summary judgement [sic] on the conversion."). However, the district court, while recognizing that Defendants had not moved for summary judgment as to this cause of action, found that there could only be a genuine issue of material fact as to the actions of Cook, Johnston, and Cristobal on this count. We find that the district court erred in addressing this issue, as it had not been raised by Defendants in their Motion for Summary Judgment.

III. CONCLUSION

This Court affirms the district court's grant of partial summary judgment on all issues except as to the claim of conversion, as we hold that the issue was not properly before the district court. The case is remanded for further proceedings consistent with this opinion.

Chief Justice EISMANN, and Justices W. JONES and HORTON concur.