Edgewater Servs., Inc. v. Epic Logistics, Inc.

Edgewater Servs., Inc. v. Epic Logistics, Inc., 2009 NCBC 20.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAKE 05 CVS 1971

EDGEWATER SERVICES, INC. )
and LUCINDA DOSHER, )
)
Plaintiffs, )
) ORDER
v. )
)
EPIC LOGISTICS, INC., DON AND )
BARBARA SHERRILL, and )
JOLIE ANNE OSGOOD, )
)
Defendants. )

THIS MATTER, designated a complex business and exceptional case and

assigned to the undersigned Special Superior Court Judge by Order of the Chief Justice

of the North Carolina Supreme Court, pursuant to Rules 2.1 and 2.2 of the General

Rules of Practice for the Superior and District Courts, came to be heard upon motions

for summary judgment (the “Motion(s)”), pursuant to Rule 56 of the North Carolina

Rules of Civil Procedure (“Rule(s)”), filed by Defendants Epic Logistics, Inc. (“Epic”),

Don and Barbara Sherrill (collectively, the “Sherrills”) and Jolie Anne Osgood

(“Osgood”); and

THE COURT, having considered the Motions, the arguments and submissions of

counsel, pleadings, discovery and all other admissible appropriate matters of record,

CONCLUDES that the Motions should be GRANTED in part and DENIED in part for the

reasons stated below.
J.W. Bryant Law Firm, PLLC by John Walter Bryant, Esq. for Plaintiffs Edgewater
Services, Inc. and Lucinda Dosher.

Cranfill, Sumner & Hartzog, LLP by Dan M. Hartzog, Esq. and Stephanie A.
Gaston, Esq. and Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC by Lyn K.
Broom, Esq. for Defendants Epic Logistics, Inc. and Don and Barbara Sherrill.

Bailey & Dixon, LLP by Dayatra T. King, Esq. for Defendant Jolie Anne Osgood.

Jolly, Judge.

I.

PROCEDURAL BACKGROUND

[1] Plaintiffs Edgewater Services, Inc. (“ESI”) and Lucinda Dosher (“Dosher”),

(collectively, the “Plaintiffs”) filed a Complaint against Epic, the Sherrills, and Osgood

(collectively, the “Defendants”) on February 14, 2005, in Wake County Civil Superior

Court. Plaintiffs’ various claims (“Claim(s)”) against the Defendants include: First Claim

for Relief (Trade Secrets Protection Act); Second Claim for Relief (Misappropriation of

Proprietary Confidential Information); Third Claim for Relief (Breach of Contract --

Employment and Non-Compete Agreement); Fourth Claim for Relief (Breach of

Contract -- Joint Venture Agreement); Fifth Claim for Relief (Conversion); Sixth Claim

for Relief (Breach of Fiduciary Duty); Seventh Claim for Relief (Constructive Fraud);

Eighth Claim for Relief (Tortious Interference with Contract -- Employment and Non-

Compete Agreement); Ninth Claim for Relief (Tortious Interference with Contract);

Tenth Claim for Relief (Interference with Prospective Economic Advantage); Eleventh

Claim for Relief (Defamation); Twelfth Claim for Relief (Civil Conspiracy); Thirteenth

Claim for Relief (Unfair and Deceptive Trade Practices); and Fourteenth Claim for

Relief (Punitive Damages).
[2] Defendant Osgood previously filed a Motion for Partial Summary

Judgment (Osgood’s “First Rule 56 Motion”) as to the Plaintiffs’ Third Claim (Breach of

Contract -- Employment and Non-Compete Agreement). Subsequently, by Order dated

October 22, 2007, the court granted Osgood’s First Rule 56 Motion by dismissing

Plaintiffs’ Third Claim to the extent it sought recovery from Osgood for breach of (a) a

non-competition covenant and (b) a non-solicitation covenant contained in the

employment agreement (“Employment Agreement”) between Osgood and Plaintiff. The

court denied Osgood’s First Rule 56 Motion to the extent that Plaintiff’s Third Claim

sought recovery from Osgood for breach of a non-disclosure covenant contained in the

Employment Agreement.

[3] By way of their Motions, the Defendants Epic and the Sherrills seek

summary judgment dismissal of all Plaintiffs’ Claims against them.

[4] By way of her Motion, Defendant Osgood seeks summary judgment

dismissal of Plaintiffs’ First, Second, Ninth, Tenth, Twelfth and Fourteenth Claims

against her.

[5] All briefs and oral arguments have been submitted in support of and

opposition to the Motions, and the Motions are ripe for determination.

[6] Unless otherwise indicated herein, the material facts reflected in

paragraphs 7 through 19, 27 through 29 and 58 of this Order exist, are undisputed 1 and

are pertinent to the issues raised by the Motions.

1
It is not proper for a trial court to make findings of fact in determining a motion for summary judgment
under Rule 56 of the North Carolina Rules of Civil Procedure (“Rule(s)”). However, it is appropriate for a
Rule 56 order to reflect material facts that the court concludes exist and are not disputed, and which
support the legal conclusions with regard to summary judgment. Hyde Ins. Agency v. Dixie Leasing, 26
N.C. App. 138 (1975).
II.

FACTUAL BACKGROUND

[7] Plaintiff ESI is a corporation organized and existing under the laws of the

State of North Carolina with its principal place of business in Raleigh, Wake County,

North Carolina.

[8] Plaintiff Dosher is a citizen and resident of Johnston County, North

Carolina.

[9] Defendant Epic is a corporation organized and existing under the laws of

the State of North Carolina with its principal place of business in Smithfield, Johnston

County, North Carolina.

[10] Defendants Don and Barbara Sherrill are citizens and residents of Iredell

County, North Carolina.

[11] Defendant Osgood is a citizen and resident of Wake County, North

Carolina.

[12] Epic was incorporated in North Carolina in January 1998, and initially was

owned by Don Sherrill. Epic is a third-party logistics company that negotiated

transporting packages and pricing for accounts, handling mostly less than truckload

(“LTL”) shipping. In 2001, Jim Davis (“Davis”) joined Epic as its operations manager

and a forty percent shareholder of Epic.

[13] In 2001, Joe Dosher, the then-president of ESI, contacted Epic concerning

helping move certain LTL business for a client because Edgewater typically dealt with

truckload (“TL”) freight. Dosher and Sherrill met to discuss their respective businesses,

and the result was an oral agreement that Epic would pay ESI a thirty percent
commission for referring LTL business to Epic. Pursuant to the agreement, ESI was

supposed to sell TL for itself and try to sell LTL for Epic.

[14] ESI requested that Epic sign a written agreement stating Epic would be

obligated to offer ESI all of its TL shipments; however, ESI refused to sign such an

agreement. Instead, the parties operated under the oral agreement, which is alleged by

ESI to have constituted a joint venture, from 2001 to 2004.

[15] In June 2003, Don Sherrill and Joe Dosher met for lunch in Smithfield,

North Carolina, to discuss the general lack of LTL business coming from ESI sales

personnel and the pricing related to ESI’s TL services, which was limiting Epic’s

referrals to ESI. At this time, however, Epic and ESI were having some of the most

profitable months of their arrangement.

[16] In 2003, Joe Dosher was diagnosed with pancreatic and liver cancer,

which caused his death on February 15, 2004. At that time, Osgood, who was Dosher’s

daughter, was employed at ESI. Prior to Osgood’s employment at ESI, Osgood had

been convicted of grand theft of motor vehicles in Florida, and she had pled guilty to

multiple felony charges. Despite Osgood’s criminal problems, Joe Dosher gave his

daughter a job at ESI the same year she plead guilty to the criminal violations. It was

Joe Dosher’s plan that his wife, Lucinda, succeed him in the business. Lucinda alleges

that when Osgood learned of her father’s plan of succession for ESI, her interest in the

success of ESI as a business disappeared.

[17] Subsequently, ESI and Dosher allege that they learned that Osgood had

been misrepresenting her itinerary and daily whereabouts. They allege that further

investigation revealed that Osgood had misused ESI business credit cards and
submitted false expense statements. In April 2004, Osgood was observed removing

materials from ESI offices. Plaintiffs allege the materials were customer lists, pricing

information and carrier lists from ESI office files.

[18] In March 2004, Davis received a call from Osgood in which she stated she

was thinking about making a career change. A meeting was set up for Friday, April 23,

2004, between Davis, Don Sherrill, and Osgood. Osgood then approached ESI’s two

key operations employees and shareholders, Harold D. “Chip” Jones, II (“Jones”) and

Wilson Ferrell (“Ferrell”), and requested that they accompany her to the meeting with

Epic. Osgood notified Davis of her plan to bring Jones and Ferrell to the meeting.

Unbeknownst to everyone except Jones and Ferrell, Dosher had instructed Ferrell to

record the April 23, 2004 meeting. The parties disagree concerning the accuracy of the

transcript of the recording, and about whether Epic and Osgood attempted to lure

Ferrell and Jones away from ESI at this meeting and hire them to work at Epic.

[19] On May 17, 2004, Davis wrote a letter to Osgood welcoming her as an

employee of Epic. On May 18, 2004, Osgood quit her job at ESI and began her

employment with Epic as Director of Sales. Her duties were to help maintain Epic’s LTL

business and add TL shipping. Following Osgood’s leaving ESI, Dosher and Ferrell

received an e-mail from an ESI vendor, which was a forward of an e-mail originally sent

by Osgood. The latter e-mail notified the vendor of Osgoods’ resignation from ESI,

provided her contact information at Epic, and stated that Osgood would contact the

vendor regarding its future LTL needs. Shortly thereafter, Epic applied for and was

granted a broker’s license in July 2004, so that Epic could offer nationwide TL service

under its own authority.
III.

THE MOTIONS -- DISCUSSION

[20] Under Rule 56(c), summary judgment is to be rendered “forthwith” if the

pleadings, depositions, answer to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

any party is entitled to a judgment as a matter of law. When the forecast of evidence

demonstrates that the plaintiff cannot satisfy an essential element of a claim or

overcome an affirmative defense established by the defendant, summary judgment

should be granted. Grayson v. High Point Dev. Ltd. P’ship, 175 N.C. App. 786, 788

(2006). The court will examine the Motions in the context of each of Plaintiffs’

respective Claims.

A.

First Claim (Trade Secrets Protection Act)

[21] The Plaintiffs contend that Defendants unlawfully acted together to

misappropriate ESI’s trade secrets, in the form of “formulae, patterns, programs,

devices, compilations of information, methods, techniques and processes,” as defined

by North Carolina’s Trade Secrets Protection Act, N.C. Gen. Stat. § 66-152, et seq. (the

“Act”) (hereafter, references to the North Carolina General Statutes will be to “G.S.”).

[22] Defendants contend that Plaintiffs have not forecast sufficient evidence

that Defendants misappropriated any trade secrets, on the grounds that ESI’s carrier

files, rates, and customer files do not constitute “trade secrets” under the Act. They

further contend that even if the information were to be considered trade secrets, there is

no evidence these trade secrets were misappropriated by Defendants.
[23] A threshold question in any action involving allegations of

misappropriation of trade secrets is whether the information in question constitutes a

trade secret under the Act. Combs & Assocs. v. Kennedy, 147 N.C. App. 362, 369

(2001).

[24] The Act defines what constitutes a “trade secret.” G.S. 66-152(3) provides

that:

“Trade secret” means business or technical information, including but not
limited to a formula, pattern, program, device, compilation of information,
method, technique, or process that:

(a) Derives independent actual or potential commercial value
from not being generally known or readily ascertainable through
independent development or reverse engineering by person 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.

[25] Our courts have articulated the following six factors that should be

considered when determining whether information is a trade secret:

(a) The extent to which the information is known outside the

business;

(b) The extent to which it is known to employees and others

involved in the business;

(c) The extent of measures taken to guard the secrecy of the

information;

(d) The value of the information to the business and its competitors;

(e) The amount of effort or money expended in developing the

information; and
(f) The ease or difficulty with which the information could

properly be acquired or duplicated by others.

Combs at 369-70.

[26] To support a claim for misappropriation of trade secrets, a complaining

plaintiff must identify the trade secret with sufficient particularity to enable a defendant

to have notice of what he is accused of misappropriating, and for a court to determine

whether misappropriation has or is threatened to occur. Visionair, Inc. v. James, 167

N.C. App. 437 (2004).

[27] In the instant case, Plaintiffs’ Complaint fails to identify with sufficient

particularity what trade secrets have been misappropriated in violation of the Act.

During discovery, Plaintiffs identified carrier files, TL and LTL rates, and customer files

as the “trade secrets” Plaintiffs contend were misappropriated. 2 In her deposition,

Plaintiff Dosher conceded that the only thing in the carrier file that might be considered

a “trade secret” would be the rate information. 3 With respect to rates, she testified that

rates change as variables such as the cost of fuel and insurance change, and that they

even can change depending on the economy or how the industry itself is doing. 4

Dosher further testified that when a customer becomes aware of ESI’s rate schedule,

the customer is not required to sign anything agreeing to keep that information

confidential. 5 Plaintiffs do not dispute Dosher’s testimony as reflected in this paragraph,

and it therefore is deemed to be undisputed for purposes of the Motions. In addition,

2
Dosher Dep., Vol. I, p. 37; Dosher Dep., Vol. II, p. 51.
3
Dosher Dep., Vol. II, pp. 67-68.
4
Id., pp. 121-22.
5
Id., pp. 71-72.
although ESI only communicates a quote or rate to its customer, it does not instruct that

customer to refrain from sharing that rate information with others. 6

[28] The carrier files and rate information are kept in an unlocked file room,

accessible to anyone. Carrier files, rate information, and customer files are not kept in

any locked containers. 7 Dosher conceded in her testimony that anybody could access

the information in the carrier files and rate files “if they knew where to go and what they

were looking for.” 8 She also testified that the three ESI operations employees at that

time would have had access to these files. 9 Dosher’s testimony in these regards is

undisputed. Plaintiffs do not dispute Dosher’s testimony as reflected in this paragraph,

and it therefore is deemed to be undisputed for purposes of the Motions.

[29] With respect to customer files, ESI’s salespersons keep customer files in

their respective offices for the customers with which they deal. Items that would be

maintained in a customer file include: “[n]ame, address, frequency, lanes, rates, pretty

much everything about them, volumes, what they’re -- what type of freight it is . . . [t]he

contract person, phone numbers, e-mail addresses.” 10

[30] Misappropriation of a trade secret under the Act requires a showing by

substantial evidence that the person against whom relief is sought both: (a) knows or

should have known of the trade secret; and (b) has had a specific opportunity to acquire

it for disclosure or use or has acquired, disclosed, or used it without the express or

implied consent or authority of the owner. G.S. 66-155.

6
Id.
7
Id., pp. 83-84.
8
Id.
9
Id., p. 83.
10
ESI (Dosher) Dep. pp. 118-19.
[31] Plaintiffs’ carrier files, rates, and customer files do not constitute “trade

secrets,” and information contained therein is such that can be learned directly from

carriers and customers of ESI. In addition, ESI does not have sufficient safeguards,

protocols, or procedures in place to protect the secrecy of such information from

persons outside ESI or within ESI. Further, the information that makes up Plaintiffs’

alleged trade secrets is information that is compiled in the course of doing business.

There is no evidence in the record, nor any allegation by Plaintiffs, that ESI expended

any significant amount of effort or money in developing the information, outside of the

cost of doing business. For these reasons, Plaintiffs’ carrier files, rates, and customer

files do not constitute “trade secrets” pursuant to the Act. 11

[32] In light of the court’s conclusion that the information complained of by

Plaintiffs in this Claim does not constitute trade secrets under the Act, Defendants are

entitled to summary judgment in their favor as to such Claim. Further analysis is not

required with regard to whether the record supports Plaintiffs’ contentions that there

was “misappropriation” of information, as defined by the Act.

11
In Byrd’s Lawn & Landscaping, Inc. v. Smith, 142 N.C. App. 371 (2001) the court, although noting that
North Carolina courts have not answered the precise question of whether confidential cost history records
qualify as a trade secret, relied upon the language of the Tenth U.S. Circuit Court of Appeals in Black,
Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 952 (10th Cir. 1978), which held
that confidential data regarding operating and pricing policies can also qualify as trade secrets because
the ability to predict a competitor’s bid with reasonable accuracy would give a distinct advantage to the
possessor of that information, so long as the information is not easily acquired by others who had not
performed similar services on the same properties from which the cost history information came.
Plaintiffs here attempt to apply the same reasoning to what Plaintiffs consider their own confidential data
regarding operating and proving policies that can also quality as trade secrets because the information
would in fact give Epic an advantage over ESI. However, Byrd is distinguishable from the instant matter
because there the information considered to be trade secrets was maintained in detail by the plaintiff’s
president in a personal notebook over a period of seventeen years and was not shared with any
employees. Id. at 374. Such is not the case in the instant matter.
B.

Second Claim (Misappropriation of Proprietary Confidential Information)

[33] With regard to this Claim, there exist one or more genuine issues of

material fact, and Defendants are not entitled to summary judgment in their favor.

C.

Third Claim (Breach of Contract -- Employment and Non-Compete Agreement).

[34] This Claim has been limited by the court’s Order of October 22, 2007,

which granted partial summary judgment in favor of Defendant Osgood by dismissing

Plaintiffs’ Third Claim to the extent it sought recovery from Osgood for alleged violations

of non-competition and non-solicitation covenants of Osgood’s Employment Agreement

with ESI.

[35] In light of the court’s prior dismissal of Plaintiffs’ Claims against Osgood

arising from non-competition and non-solicitation covenants of Osgood’s Employment

Agreement, there also exist no material issues of fact as to said allegations as they

related to Defendants Epic and the Sherrills; and said Defendants are entitled to

summary judgment in their favor as to said Claims.

[36] With regard to the Plaintiffs’ Claim for violation of a non-disclosure

covenant of Osgood’s Employment Agreement, there exist one or more genuine issues

of material fact, and Defendants are not entitled to summary judgment in their favor.

D.

Fourth Claim (Breach of Contract -- Joint Venture Agreement)

[37] With regard to this Claim, there exist one or more genuine issues of

material fact, and Defendants are not entitled to summary judgment in their favor.
E.

Fifth Claim (Conversion)

[38] This Claim makes allegations only against Defendant Osgood.

[39] With regard to this Claim, Defendant Osgood has not moved for summary

judgment disposition, and no Rule 56 determination is required.

F.

Sixth Claim (Breach of Fiduciary Duty)

[40] This Claim makes allegations only against Defendant Osgood.

[41] With regard to this Claim, Defendant Osgood has not moved for summary

judgment disposition, and no Rule 56 determination is required.

G.

Seventh Claim (Constructive Fraud)

[42] This Claim makes allegations only against Defendant Osgood.

[43] With regard to this Claim, Defendant Osgood has not moved for summary

judgment disposition, and no Rule 56 determination is required.

H.

Eighth Claim (Tortious Interference with Contract --
Employment and Non-Compete Agreement)

[44] This Claim makes allegations only against Defendants Epic and the

Sherrills. It largely is redundant of Plaintiffs’ First Claim (Trade Secrets Protection Act)

and Plaintiffs’ Third Claim (Breach of Contract -- Employment and Non-Compete

Agreement). The primary difference appears to be that in their Third Claim, Plaintiffs

alleged that Defendants Epic and the Sherrills “conspired, aided and abetted” 12

12
Compl. ¶ 81.
Defendant Osgood in the breach of her Employment Agreement; and in this Eighth

Claim, Plaintiffs allege that Epic and the Sherrills “induced” 13 Osgood to breach the

same agreement.

[45] The material substantive allegations of this Eighth Claim are that Epic and

the Sherrills induced Osgood to (a) compete with ESI, (b) solicit employees of ESI and

(c) misappropriate trade secrets belonging to ESI.

[46] In its October 22, 2007 Order, and in its discussion, supra, with regard to

the allegations in Plaintiffs’ Third Claim to the effect that Osgood had a duty not to

compete with ESI or solicit employees of ESI, the court has concluded that the

Employment Agreement between Osgood and ESI was not enforceable with regard to

its non-compete and non-solicitation covenants. Further, in its discussion, supra, with

regard to the allegations in Plaintiffs’ First Claim to the effect that Defendants

misappropriated trade secrets belonging to ESI, the court has concluded that the

information sought to be protected by Plaintiffs did not constitute a trade secret under

the Act.

[47] Plaintiffs cannot base this Eighth Claim upon unenforceable covenants in

the Employment Agreement or upon unsustainable trade secrets contentions.

Defendants Epic and the Sherrills therefore are entitled to summary judgment in their

favor with regard to Plaintiffs’ Eighth Claim.

I.

Ninth Claim (Tortious Interference with Contract)

[48] With regard to this Claim, there exist one or more genuine issues of

material fact, and Defendants are not entitled to summary judgment in their favor.

13
TP Id. at ¶ 107.
J.

Tenth Claim (Interference with Prospective Economic Advantage)

[49] With regard to this Claim, there exist one or more genuine issues of

material fact, and Defendants are not entitled to summary judgment in their favor.

K.

Eleventh Claim (Defamation)

[50] This Claim makes allegations only against Defendants Epic and

Osgood. 14

[51] With regard to this Claim, there exist one or more genuine issues of

material fact, and Defendants are not entitled to summary judgment in their favor.

L.

Twelfth Claim (Civil Conspiracy)

[52] With regard to this Claim, there exist one or more genuine issues of

material fact, and Defendants are not entitled to summary judgment in their favor.

M.

Thirteenth Claim (Unfair and Deceptive Trade Practices)

[53] With regard to this Claim, there exist one or more genuine issues of

material fact, and Defendants are not entitled to summary judgment in their favor.

N.

Fourteenth Claim (Punitive Damages)

[54] In order for the Plaintiffs to prevail on a claim for punitive damages, they

must prove that one or more of the following aggravating factors was present: (a) fraud,

(b) malice or (c) willful or wanton conduct; and that the aggravating factor(s) proximately
caused the injury. G.S. 1D-15(a)(1)-(3). Here, the aggravating factors alleged by

Plaintiffs are that the Defendants’ conduct was malicious, willful and wanton.

[55] In order to support a claim for punitive damages, the Plaintiffs also are

required to prove existence of each aggravating factor by “clear and convincing

evidence.” G.S. 1D-15(b).

[56] “Malice” is defined as “a sense of personal ill will toward the claimant that

activated or incited the defendant to perform the act or undertake the conduct that

resulted in harm to the claimant.” G.S. 1D-5(5).

[57] “Willful or wanton conduct” is defined as “the conscious and intentional

disregard of and indifference to the rights and safety of others, which the defendant

knows or should know is reasonably likely to result in injury, damage, or other harm.”

G.S. 1D-5(7).

[58] In the instant case, Plaintiffs’ basis for the punitive damages claim against

Epic and the Sherrills is based primarily on “a feeling” by Dosher and the circumstances

surrounding the hiring of Osgood by Epic. Dosher testified as a Rule 30(b)(6) deponent

representative of ESI that she did not know why the Sherrills would bear Plaintiffs

personal ill will, but that she thinks “they were greedy and trying to get something that

they didn’t have to pay for.” 15 Plaintiffs do not dispute Dosher’s testimony as reflected

in this paragraph, and it therefore is deemed to be undisputed for purposes of the

Motions.

[59] In order to support a claim for punitive damages, the plaintiff must offer

direct or circumstantial evidence sufficient to take the case out of the realm of

14
Osgood has not moved for summary judgment in her favor with regard to this Claim.
15
ESI (Dosher) Dep., p. 134.
speculation and conjecture and into the field of legitimate inference from established

facts. Parker v. Wilson, 247 N.C. 47 (1957). Here, the court is forced to conclude that

the forecast evidence is not sufficient to meet the requirement that it be “clear and

convincing” as to either the aggravating element of malice or of willful or wanton

conduct.

[60] Accordingly, there exist no genuine issues of material fact, and

Defendants are entitled to summary judgment in their favor as to said Claim.

NOW THEREFORE, based upon the foregoing CONCLUSIONS, it is ORDERED

that:

[61] With regard to Plaintiffs’ First Claim for Relief (Trade Secrets Protection

Act); Eighth Claim for Relief (Tortious Interference with Contract -- Employment and

Non-Compete Agreement) and Fourteenth Claim for Relief (Punitive Damages), the

motions for summary judgment by Defendants Epic Logistics, Inc., Don and Barbara

Sherrill, and Jolie Anne Osgood are GRANTED, and said Claims are DISMISSED.

[62] With regard to Plaintiffs’ Second Claim for Relief (Misappropriation of

Proprietary Confidential Information); Fourth Claim for Relief (Breach of Contract -- Joint

Venture Agreement); Ninth Claim for Relief (Tortious Interference with Contract); Tenth

Claim for Relief (Interference with Prospective Economic Advantage); Eleventh Claim

for Relief (Defamation); Twelfth Claim for Relief (Civil Conspiracy) and Thirteenth Claim

for Relief (Unfair and Deceptive Trade Practices), the motions for summary judgment by

Defendants Epic Logistics, Inc., Don and Barbara Sherrill, and Jolie Anne Osgood are

DENIED.
[63] To the extent Plaintiffs’ Third Claim for Relief (Breach of Contract --

Employment and Non-Compete Agreement) seeks recovery from Defendants Epic and

the Sherrills for breach of non-competition and non-solicitation covenants contained in

the Employment Agreement between Osgood and Plaintiff ESI, the motion for summary

judgment by Defendants Epic Logistics, Inc. and Don and Barbara Sherrill is

GRANTED, and said Claims are DISMISSED as to said Defendants.

[64] To the extent Plaintiff’s Third Claim for Relief (Breach of Contract --

Employment and Non-Compete Agreement) seeks recovery from all Defendants for

breach of a non-disclosure covenant contained in the Employment Agreement, the

motions for summary judgment by Defendants Epic Logistics, Inc., Don and Barbara

Sherrill, and Jolie Anne Osgood are DENIED.

[65] This civil action will be set for jury trial in due course.

SO ORDERED, this the 11th day of August, 2009.