[Cite as Key Realty, Ltd. v. Hall , 2021-Ohio-1868.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Key Realty, Ltd. Court of Appeals No. L-19-1237 Appellant Trial Court No. CI0201901132

v. Michael Hall, et al. DECISION AND JUDGMENT Appellees Decided: June 1, 2021 * * * * * Gregory H. Wagoner and Nicholas T. Stack, for appellant. David A. Nacht, for appellee Michael Hall. Roman Arce, for appellees Heather Hall, Kenton Fairchild, and Red 1 Realty, LLC.

* * * * * MAYLE, J. {¶ 1} This case is before the court upon a motion filed by plaintiff- appellant, Key Realty, Ltd., asking that we reconsider, or consider en banc, o ur decision in Key Realty,

Ltd. v. Hall , 6th Dist. Lucas No. L-19-1237, 2021-Ohio-26 ( Key Realty I). Defendantsappellees, Michael Hall, Red 1 Realty, LLC, Heather Hall, and K enton Fairchild, have2. jointly filed a brief in opposition to the motion. For the fol lowing reasons, we grant Key Realty’s motion for reconsideration and vacate our decision in Key Realty I . We deny as

moot its motion for consideration en banc. I. Procedural Background {¶ 2} Key Realty, Ltd. (“Key Realty”), filed a complaint against Mich ael Hall (“Hall”), Red 1 Realty, LLC, Heather Hall (“Heather”), and Kent on Fairchild for trade secret misappropriation (Count 2), unfair competition (Count 3) , tortious interference with business relations (Count 4), tortious interference with c ontract (Count 5), breach of fiduciary duty (Count 6), conversion (Count 7), unauthorized us e of computer, cable or telecommunication property (Count 8), criminal mischief (Count 9), civil theft (Count 10), spoliation (Count 12), and civil conspiracy (Count 13). A s against Hall only, it also alleged breach of a Non-Competition, Non-Solicitation, and Conf identiality Agreement (“the agreement”) (Count 1) and extortion (Count 11). Appellee s moved for summary judgment on all of Key Realty’s claims. In a judgment journali zed on October 15, 2019, the trial court granted Hall’s motion for summary judgment on a ll counts except Count 1—which it denied, in part—and granted the remaining appellees’ motion for summary judgment on all counts applicable to them. {¶ 3} Key Realty appealed and assigned the following errors:

I. The trial court committed reversible error when it dismisse d Key Realty’s claim that Michael Hall violated the confidentiality p rovision in his agreement.3. II. The trial court committed reversible error when it dismiss ed Key Realty’s trade secret claim.

III. The trial court committed reversible error when it dismis sed Key Realty’s unfair competition claim.

IV. The trial court committed reversible error when it dismiss ed Key Realty’s tortious interference with business relations and contract

claims.

V. The trial court committed reversible error when it dismisse d Key Realty’s conversion claim.

VI. The trial court committed reversible error when it dismiss ed Key Realty’s unauthorized use of computer property, criminal mi schief,

civil theft and extortion claim.

VII. The trial court committed reversible error when it dismis sed Key Realty’s spoliation claim.

VIII. The trial court committed reversible error when it dismi ssed Key Realty’s civil conspiracy claim.

IX. The trial court committed reversible error when it dismiss ed Key Realty’s breach of fiduciary duty claim against Mike Hall. {¶ 4} In a 2-1 decision, we affirmed the judgment of the Lucas County Court of Common Pleas, dismissing Key Realty’s claims for breach of the confidentiality provision of the Agreement and Counts 2 through 13. Although n ot raised by appellees4. as error on appeal, we also reversed the trial-court judgment d enying summary judgment to Hall on Key Realty’s remaining claims for breach of the Agre ement, holding that the agreement was unenforceable for lack of consideration. {¶ 5} Key Realty filed this motion for reconsideration and considerat ion en banc. It argues as follows: The Majority’s Conclusion that the Agreement is unenforceable, as a matter of law, for lack of “proper” consideration should be rec onsidered

and reversed. The Majority’s conclusion that Key Realty’s tortious interferen ce with contract claim fails as a matter of law should be reconsid ered and

reversed. The Majority’s conclusion that Key Realty’s claim for tortious

interference with business relations fails as a matter of law s hould be

reconsidered and reversed. The Majority’s conclusion that Key Realty’s breach of fiduciary duty claim fails as a matter of law should be reconsidered and reversed. The Majority’s conclusion that Key Realty’s conversion claim fa ils

as a matter of law should be reconsidered and reversed. The Majority’s conclusions that Key Realty’s claims of civil li ability for [unauthorized use of computer property, civil theft, and ex tortion] fail

as a matter of law should be reconsidered and reversed.5. The Majority’s conclusion that Key Realty’s claim for civil conspiracy fail[s] as a matter of law should be reconsidered an d reversed. The Majority’s conclusion that Key Realty’s claim for spoliatio n against Heather Hall fails as a matter of law should be reconsi dered and

reversed. The Majority’s conclusion that Key Realty’s claim for unfair competition fails as a matter of law should be reconsidered and reversed. II. Factual Background of this Dispute {¶ 6} Before addressing Key Realty’s arguments, we recite the facts o f this case as explained in the dissenting opinion in Key Realty I because the facts as set forth in the majority opinion in Key Realty I were incomplete and failed to reference or include key

facts relevant to the issues addressed therein. {¶ 7} Hall began his real estate career as an agent working for Golde n Gate Real Estate as an independent contractor, where he worked for approx imately four years. During that time, he was also employed by Old Republic Home War ranty as a home warranty representative. In 2010, Hall left Golden Gate and be came a real estate agent for Key Realty, which was owned by Dennis Degnan and his wife, Amy Saylor. At that time, Hall continued in his employment with Old Republic while working as a realtor for Key Realty as an independent contractor. {¶ 8} Hall terminated his employment with Old Republic in “2011 or ‘1 2” because he “was moving into a different role within Key Realty” at that time. That is, “sometime6. around 2012,” Hall transitioned into a management role at Key R ealty and began overseeing agents. Over the years that followed, Hall’s work f or Key Realty continued to grow, and he was eventually promoted to director. {¶ 9} At all times, Hall worked for Key Realty as an independent cont ractor. As an independent contractor, he did his work for Key Realty throu gh Key Realty Columbus 1, LLC (“Key Columbus”), a limited liability company t hat he owned. A. The Non-Competition, Non-Solicitation, and Confidentiality Agreement {¶ 10} On December 12, 2012, Hall signed a Non-Competition, Non-Solici tation, and Confidentiality Agreement with Key Realty. The parties dis pute the circumstances surrounding the execution of the agreement. {¶ 11} Hall claims that he signed the agreement because Degnan promise d him a “future ownership” interest in Key Realty over the course of “t wo to three” conversations in 2012. Degnan, however, flatly denied this. He testified: That’s ridiculous, okay? Why would – this is someone who had n o track record as manager, whatsoever. * * * Why would I give som ebody an offer of ownership in a company? He was untested as a manager. He had no track record, whatsoever, in real estate management. So the idea that I had conversations with him about ownership in 2012 are simply n ot true. {¶ 12} The written agreement does not contain any promises of “future ownership” in Key Realty. The agreement is a form contract, an d it is couched in terms of an employer/employee relationship—referring to Hall as “Empl oyee” and Key Realty7. as “Employer”—even though Hall always worked for Key Realty as an independent contractor. The relevant provisions of the agreement can be su mmarized as follows:

 WHEREAS clause : Hall is employed “in a position of trust and confidence, requiring a high degree of loyalty, honesty and integrity” and he “has gained and will continue to gain valuable information and insights on the lines of business in which Employer is engaged; access to Employer’s con fidential and proprietary information; and exposure to its existing and poten tial business opportunities”;

 WHEREAS clause : Hall has accepted his “present position” with the understanding that he “is not to use or divulge any such matter s” for his own “personal gain or to the detriment of Employer”;

 Paragraph 1, “TERM” : The agreement is effective during his employment and for two years after the termination of his employment with Key Realty “for any cause or reason”;

 Paragraph 2, “COVENANT NOT TO COMPETE” : During his employment, Hall could not, directly or indirectly, compete with Key Realty or “be connected in any like manner with any other business” similar t o Key Realty within a 30-mile radius of his principal place of employment;

 Paragraph 3, untitled : After the termination of his employment, Hall could not, directly or indirectly, compete with Key Realty within a f ifty-mile radius8. of his principal place of employment or “be connected in any li ke manner with any other business” similar to Key Realty;

 Paragraph 4, NO DISCLOSURE OR SOLICITATION OF CUSTOMERS : Hall could not, directly or indirectly, divulge the names or address es of any customers of Key Realty unless in response to a subpoena or cou rt order;

 Paragraph 5, NO SOLICITATION OF EMPLOYEES : Hall could not, directly or indirectly, “solicit or cause any person under his/her contr ol to solicit any employee of Employer, to terminate his/her employment relations hip with Employer”;

 Paragraph 6, INFORMATION : Hall could not, during the term of the agreement, “in any fashion, form or manner, either directly or indirectly, divulge, disclose or communicate to any person, firm, or corpor ation in any manner whatsoever any information of any kind, nature or descri ption concerning any matters affecting or relating to the business of Employer”; and

 Paragraph 7, RECORDS BELONG TO THE CORPORATION : “All books, records, files, forms, reports, accounts and documents relating in any manner to Employers [sic] business or customers, whether prepared by E mployee or otherwise coming into Employee’s possession, shall be the exclu sive property of Employer and shall be returned immediately to Employer upon termination of employment or upon Employer’s request at any time.”9. {¶ 13} It is undisputed that after Hall signed this agreement with Key Realty in 2012, his responsibilities and business with Key Realty grew ex ponentially over the years that followed. Degnan testified that from the end of 2012 unti l Hall left Key Realty, Hall had four main responsibilities: (1) he recruited real estate a gents for Key Realty and hired them into the company; (2) he educated and trained Key Re alty agents; (3) he “respond[ed] to day-to-day questions, problems, [and] managemen t intervention situations”; and (4) he was responsible for holding people acco untable for inappropriate behavior and “dehiring” them, if necessary. {¶ 14} By the time he left the company in 2019, Hall had multiple Key Realty managers and brokers reporting directly to him, and those manag ers and brokers oversaw approximately 380 real estate agents. At that time, Key Realty had approximately 1100 agents in total. Hall received a percentage of the revenue tha t was generated by his group, and he was responsible for paying many of the expenses t hat were related to his group’s business (including paying the managers and brokers who reported to him). B. The Formation of Red 1, LLC {¶ 15} Although the parties dispute whether Hall and Degnan had any di scussions regarding Hall’s potential ownership in Key Realty in 2012—i.e. , before the noncompete agreement was executed, and before he assumed management respon sibilities for Key Realty—it is undisputed that they had ownership-related discuss ions after Hall became a

manager.10. {¶ 16} Hall testified that in “2014-ish,” Degnan suggested that they s tart working on a franchising agreement for him. Degnan testified that thes e franchise discussions began in 2015. According to Hall, the discussions dragged on f or several years, and Degnan changed the form of the would-be ownership arrangement “ multiple times.” In 2016, Degnan decided against offering Hall a franchise agreemen t—which, he said, was because of the costs involved with expanding a franchise—and be gan working on the concept of a “master services agreement” whereby Hall would set up a new LLC, and that new LLC would enter into a management agreement with Key R ealty. Degnan testified that he offered this “master services agreement” to H all in 2018—which, to Degnan, represented “an opportunity to acquire business that I thought was worth

millions of dollars”—but Hall declined. {¶ 17} At that time, Degnan was unaware that Hall had formed a new com pany— Red 1, LLC—two years before Degnan offered the master services agreement. Hall

testified that he formed that new LLC in 2016 because he was “u nhappy and angry” when Degnan changed his mind about offering a franchising agree ment. In his own words, Hall explained that he formed Red 1 because: I was promised ownership for years, and that ownership had then turned into an offer of a franchise agreement, and then that fr anchise agreement, after years of working on it and getting the circula r sent and the franchise agreement sent, the company decided to move in a diff erent

direction and not offer a franchise.11. {¶ 18} Hall testified, however, that he was “uncertain if [he] wanted to form a brokerage” when he formed Red 1 in 2016, and just “loved the na me Red 1 and [he] wanted to reserve that name.” Hall also formed a Red 1 entity in Florida to reserve the

name there as well. C. Pre-Launch Activities in 2018 and Early 2019 Relating to Re d 1

{¶ 19} It is undisputed that the two other individual appellees—Heathe r Hall and Kenton Fairchild—began activities in 2018 to launch Red 1 as a competing real estate brokerage. Hall denies that he was involved in these activitie s. {¶ 20} Heather is Hall’s wife. She provided day-to-day administrative support for Hall’s Key Realty business—for no compensation—starting in 2015 or 2016. Heather is not, and never has been, a licensed real estate broker or real estate agent. {¶ 21} On or about October 15, 2018, Hall transferred ownership of Red 1 to Heather. Hall testified that he transferred ownership of Red 1 to his wife because “[s]he asked me to.” Hall maintained that the transfer of ownership f rom him to his wife did not have anything to do with the noncompete agreement that he execu ted in December 2012 with Key Realty. He testified, “I transferred that because my wife said transfer it to me. * * * [W]hen your wife tells you to do something, then sometime s you just do it.” When asked whether Heather was aware of his 2012 contract with Key R ealty, he answered “[y]ou’d have to ask Ms. Hall.” {¶ 22} Heather testified that she decided to form Red 1 after she “tag ged along” with Hall to the Key Realty regional manager meeting in October 2018. She stated that12. Degnan promised all of the regional managers at that meeting th at “he was going to make them owners of Key Realty. He was going to make them millionai res.” When he said that, Heather thought to herself “oh my God, he lied. He’s not going to do anything. He’s breaking every single promise that he promised my husband. ” She said that made her “think I should start my own brokerage firm.” Heather stat ed she asked Hall if he wanted to start the business with her, and “[h]e said he was un sure if there was a noncompete or whatever.” When asked whether Hall transferred o wnership of Red 1 to her to avoid the noncompete agreement, she responded, “I asked him to transfer it. But no, I mean, the noncompete that I saw I did not believe was val id. I just wanted to take precautions and keep my family safe.” Heather testified that s he did not think the agreement was valid because it refers to Hall as an “employee” and because the signature line for Key Realty was blank. {¶ 23} Kenton Fairchild was an associate broker with Key Realty, where he worked “hand in hand” with Hall. Unlike Hall, Fairchild did no t have a noncompete agreement with Key Realty. Degnan testified that in December 2 018, he told Hall to “get a noncompete and an intellectual property agreement from Ken Fa irchild” but he did not. Hall testified that he actually followed Degnan’s instructions: he sent the noncompete agreement to Fairchild on December 14, 2018, and told him to co nsult with an attorney.

Hall denied that he ever told Fairchild that he should not exec ute the agreement. {¶ 24} Just a few weeks before that December 14 discussion—on November 28,

2018—Heather and Fairchild met for the first time to discuss th e launch of Red 1 as a13. competing brokerage. Hall was not present for that meeting. A t that time, Heather told Fairchild that she was “starting” Red 1, she asked him if he wo uld be interested in being the broker of record for her brokerage, and she offered him an ownership interest in the new company. According to Fairchild, at this initial meeting, Heather told him that “Mike has signed some form of noncompete but neither of them th ought it was valid.” At his deposition, Fairchild would not say whether the agreemen t prevented Hall from having an ownership interest in Red 1, and he testified that he “didn’t know” why Hall was not an owner. Ultimately, Heather and Fairchild agreed tha t Heather would own 67 percent of Red 1 and Fairchild would own 33 percent. {¶ 25} For his part, Hall testified that he merely formed Red 1 as an LLC in 2016—with no specific plans to operate it as a real estate brok erage—and he had “no involvement” in starting or running the brokerage firm. He cla imed that “[o]nce it came time to start it, Ken and Heather started running it.” There i s, however, evidence in the record to the contrary. For example,

 Beth Bick, a Key Realty agent in Florida who reported to Hall, testified that in May or June of 2018, Hall asked her if she “wanted to change the name of the company [in Florida] to Red 1 Realty.” She told him no, and there

were no further discussions.

 On October 25, 2018—i.e., 10 days after Hall transferred owners hip of Red 1 to Heather—Hall emailed Insperity Insurance Services LLC stat ing “We are looking to add insurance for several dozen to several hundr ed14. independent contractors. We are starting a new real estate bro kerage firm and would like to differentiate ourselves by offering some type of insurance package.”

 In November 2018, a bank account was opened for Red 1 with Heat her and Hall as signatories.

 On December 20, 2018, Heather met with Fairchild (their second meeting regarding Red 1), and she provided him with “onboarding documen ts,” including preliminary financial projections. Heather testified that “[she] had created” the documents, but later testified that Hall assis ted her in creating the financial projections, stating that “I asked my hu sband to help me put some numbers on a spreadsheet. Just mainly it was if th is scenario, here’s some possible expenses that we may incur.” Notably, Hea ther also testified elsewhere that “the bulk of my expertise was primaril y supporting the branches with, you know, training, policies and procedures, not doing accounting.” And Fairchild testified that he did not review th e projected financials for Red 1 to determine if they were reasonable becau se, he said, “[Heather] knew better than I did”—even though, unlike him, Hea ther had no real estate experience.

 On January 2, 2019, in another email to Insperity Insurance Ser vices regarding insurance benefits for agents, Hall states, “I am lea ving Key15. Realty on January 10th. I am hoping 100 agents follow me in th e first 3

months and another 100 within the first 6 months.”

 In January 2019—shortly before his departure from Key Realty—Ha ll sent out a survey through the Key Realty Columbus Facebook group (ov er which the parties dispute ownership) asking Key Realty agents w hat “additional features and benefits” they would like to see in th eir brokerage. Key Realty agents provided various responses, including free co mpanyprovided leads and free centralized showing services. Shortly after the launch of Red 1, those same benefits would be offered as incent ives to Key Realty agents as reasons to switch to Red 1.

 On January 9, 2019, Hall discussed Red 1 with two Key Realty ag ents, Angela Perez and Daniel Perez, and provided draft marketing mat erials. Hall testified that he discussed Red 1 with these agents becaus e Degnan had instructed him to terminate Key Realty’s relationship with them , so he simply “let them know that Key Realty was sending their license back and there would be another option available to them”—i.e., Red 1.

 Hall testified that he left Key Realty on January 10, 2019, bec ause “Heather said she was starting Red 1 Realty that day.” According to Hea ther, she picked January 10 to start Red 1 because, she said, “I wanted t o wait for my husband to get paid out for his December numbers.”16. {¶ 26} According to Fairchild, he discussed Red 1 with two Key Realty individuals before he left the company. In late December 2018, and early January 2019, he had discussions with Mark Hutchinson, a Key Realty agent and his best friend, about Red 1. At that time, Hutchinson indicated that he would follow Fairchild to Red 1. In addition, on January 8, 2019, he told Carol Sommer, a trainer f or Key Realty, that he was going to start a new company that he would like her to join.

D. The Launch of Red 1 {¶ 27} On January 10, 2019, Red 1 officially launched, and Hall and Fa irchild separately resigned from Key Realty. On that date, Hall and Fa irchild drove together to the Division of Real Estate, and hand-delivered their applicati ons to transfer their licenses

to Red 1. Fairchild became the broker of record for Red 1. {¶ 28} When he left Key Realty on January 10, Hall “unshared” the Key Realty Columbus Facebook group (an online platform used by Key Realty agents for businessrelated communication) from Key Realty management—which blocked Key Realty’s access to that platform as a means to communicate with its agen ts. Heather then changed the banner in the Facebook group from Key Realty to Red 1. On that same date, Hall also blocked, or “unshared,” various Google drive accounts from Key Realty management, blocking access to any documents that he created wh ile performing work for Key Realty, including “[p]resentations, spreadsheets, Googl e Drive docs, Exel [sic] sheets, lots of different types of documents.” He also blocked Key Realty management from access to the general email for his Key Realty office,17. keyrealtycolumbus@gmail.com, and similar gmail accounts for Key Realty Cincinnati, Dayton, Cleveland, Akron, and Sarasota. Hall maintains that al l of these actions are justified because he created these online platforms, documents, accounts, and information for his own independent company—Key Realty Columbus 1, LLC—thro ugh which he performed his work for Key Realty as an independent contractor, not an employee. {¶ 29} At 2:32 pm on January 10, 2019, Hall emailed Degnan and Saylor stating: I wish to rescind any noncompete that I may have signed in the past. If I did sign a non-compete, I never received a signed copy fro m you. Due to contract law, dispatch and delivery did not occur regarding a bilateral

contract. In addition, I would like to offer many items of consideration in an effort to reach a written mutual release of agreement. Please see the attached termination agreement and release for consideration. {¶ 30} Attached to his email was a draft “Termination of Agreement and Release,” through which Hall proposed that Key Realty terminate the nonco mpete and fully release all claims that it may have against Hall arising out of the non compete agreement. As consideration, Hall offered to (1) transfer ownership of Key Re alty One Florida to Degnan; (2) transfer ownership of JoinKeyRealty.com to Degnan; (3) sign an agreement stating that neither he nor any family members would operate a brokerage firm in Toledo; (4) turn over ownership of the various gmail accounts, (5) turn over ownership of18. Facebook groups, (6) turn over leases, and (7) “work with Key R ealty through

transition.” {¶ 31} At 8:55 p.m. on January 10, 2019, Fairchild posted in the forme r Key Realty Columbus Facebook group—which had been unshared with Key Realty management and renamed the “Red 1 Realty” group—in which he sta ted the following: * * * Effective immediately, Heather Hall and I have started a new brokerage, Red 1 Realty, and Mike has also joined us. We will offer the same commission plan you are accustomed to as well as a new opt ion. In addition to the tools you already have, we will also provide Co mpany Leads and CSS at no cost to our agents, Commercial Training, on line options for weekly training, additional assistance with KV Core and more. * * * [W]e will be having a Grand Opening at the office on Satu rday from 6-9p with food & drinks if you would like to attend. * * * {¶ 32} On January 12, 2019, appellees hosted the Red 1 grand opening e vent at the former Key Realty Columbus office. Appellees invited only Key Realty agents to this event. At the event, Hall presented to the Key Realty agents u sing a power point presentation that he and Fairchild created. The power point st ates that appellees left Key Realty due to, among other things, “[b]roken promises to manage ment and agents.” The document also highlights differences between Red 1 and Key Real ty, including companyprovided leads, easier Dotloop approval/shorter checklist, free CSS, commercial training and assistance, and “more to follow – health benefits, credit c ards.” Key Realty19. maintains that many of these items were identified in the Janua ry 2019 survey that Hall sent to Key Realty agents in the days before his departure. Th e Red 1 power point also includes an “easy transition offer,” which would end on Februar y 15, in which Red 1 offered to pay transfer fees and take transfer applications to the Division of Real Estate for Key Realty agents, replace their business cards, replace tw o signs, and honor their anniversary dates. {¶ 33} At Red 1, Hall provided commercial real estate training for Red 1 agents, and Fairchild provided residential real estate training. Hall testified, however, that he has not received any payments from Red 1 whatsoever, and there is n o “formalized plan” for him to be paid for any work that he does for the company as an independent contractor. {¶ 34} According to Degnan, Key Realty lost approximately 200 agents i n the Columbus area and suffered other damages due to appellees’ cond uct. E. The Current Litigation {¶ 35} On January 15, 2019, Key Realty filed this case against Hall, H eather, Fairchild, and Red 1, along with a motion for temporary restrai ning order and preliminary injunction. The next day, the trial court held a hearing on Ke y Realty’s motion for temporary restraining order. At the conclusion of the hearing, the trial court ordered Hall, among other things, to return various documents and onlin e platforms—including the Key Realty Columbus Facebook page—to Key Realty. {¶ 36} The very same day, between 4:30 p.m. and 5:21 p.m., Heather del eted many posts from the Facebook page. When asked in her depositio n why she removed20. these posts on January 16, 2019, she responded “I really can’t recall,” “I don’t know,”

and “I can’t remember.” F. The Trial Court Judgment {¶ 37} Appellees filed motions for summary judgment, seeking dismissal of all of Key Realty’s claims. The trial court denied summary judgment t o Hall on Count 1 as it related to Key Realty’s allegations of breach of the non-compet ition and non-solicitation provisions of the agreement, but it granted summary judgment to Hall for breach of the confidentiality provisions. It held that despite Key Realty’s allegations to the contrary,

there was insufficient evidence to show that Hall disclosed to Heather and Fairchild information concerning Key Realty’s business. It explained tha t while there may be evidence that Heather and Fairchild used Key Realty’s data in f ormulating their business plan, there is nothing in the record to indicate that they got this information from Hall. {¶ 38} As to Count 2, trade secret misappropriation, the trial court w as skeptical

that the information at issue constituted trade secrets. It de termined that even if the information did constitute protected trade secrets, Key Realty failed to demonstrate how appellees used any of the protected information. {¶ 39} As to Count 3, unfair competition, the trial court determined t hat the competition appellees engaged in with Key Realty was not unfair because they were also simultaneously competing with all other real estate brokerage s ervices companies. It found that there was no evidence that anyone believed that Red 1 was really just Key Realty, that Red 1 held itself out to the public as Key Realty, or that any agent or broker21. of Red 1 claimed to be a Key Realty agent or broker. And it fo und that Red 1’s own name and logo appeared on all of its publicly available informa tion, and any genuine issue of fact as to who owned a particular “Key Facebook group” did not rise to the level of unfair competition because there was no evidence that appell ees’ actions were “designed to harm the business of another.” {¶ 40} As to Count 4, tortious interference with business relations, t he trial court determined that Key Realty’s claim of tortious interference wit h its business relations could not survive summary judgment because the nature of the co nduct alleged “was minor, and involved nothing more than Facebook group activity o f no importance to Key Realty business operations.” It found that appellees had “cons istently and repeatedly assert[ed] * * * their belief that the Key Facebook group belon ged (and continues to belong) to Hall, not to Key Realty. And it concluded that appe llees’ actions were motivated by a desire to promote the Red 1 business, rather tha n to harm Key Realty’s business, and there was nothing tortious about Heather or Fairc hild’s efforts to recruit Key Realty agents. {¶ 41} As to Count 5, tortious interference with contract, the court f ound that Hall had made his own decision to leave Key Realty—Heather and Fairc hild did not “procure” his breach of the agreement. The court also found that appelle es did not interfere with Key Realty’s contracts with its agents because no contracts exi sted. {¶ 42} As to Count 6, breach of fiduciary duty, the trial court determ ined that even accepting as true all of Key Realty’s assertions, Key Realty fa iled to demonstrate how22. Hall had agreed “‘to act primarily for the benefit of [Key] in matters connected with its [business].’” It further held that even if a duty did exist, Key Realty failed to articulate the specific duty that was owed to Key Realty or how Hall may h ave breached it. {¶ 43} As to Count 7, conversion, the trial court determined that ther e was no evidence in the record that Key Realty demanded the return of t he property in question, let alone that appellees refused to return it. {¶ 44} As to Counts 8 and 10, unauthorized use of computer, cable or telecommunication property and civil theft, the trial court con cluded that appellees had maintained “an unwavering position” that any disputed electroni c resources used or accessed by them, if any, were the property of Key Realty Colum bus 1, LLC, which was undisputedly owned by Hall. Moreover, the court held, Key Real ty failed to provide evidence that appellees “‘knowingly’ used and operated the elec tronic resources without proper consent.” {¶ 45} As to Count 9, criminal mischief, the trial court found that Ke y Realty’s claims of impaired functioning of its computer systems and elec tronic resources failed because the evidence showed that appellees acted with the inten t to benefit Red 1 and not to impair the functioning of Key Realty’s computer systems. {¶ 46} As to Count 11, extortion, the trial court concluded that Key R ealty’s evidence “reveals no threat by Michael Hall to commit any theft offense, whatsoever. * * * Thus, there is nothing in the record to suggest that Mich ael Hall either 1) threatened to knowingly obtain or exert control over Key property or servi ces; or 2) engaged in the23. unauthorized use of computer or telecommunication property * * *.” The court found that the email from Hall to Degnan showed “nothing more than an intent on the part of Michael Hall to negotiate with his former employer [to rescind the Agreement], using items he ‘owned’ as leverage to assist with his negotiations.” {¶ 47} As to Count 12, spoliation, the trial court determined that “[e ]ven accepting, arguendo, that defendants may have willfully destroy ed evidence in an attempt to disrupt plaintiff’s case, there is simply no evidence or all egation to suggest that any disruption to plaintiff’s case occurred.” It further found tha t Key Realty failed to provide evidence of damages proximately caused by appellees’ conduct. {¶ 48} And as to Count 13, civil conspiracy, the trial court concluded that because every count—except Count 1—had been dismissed, Key Realty could not prove that there had been a “malicious combination of two or more persons” to injure it.

G. Key Realty I {¶ 49} Key Realty appealed the trial court’s judgment. The majority a ffirmed the trial court’s dismissal of Key Realty’s claims, including the c laim for breach of the confidentiality provision of the agreement. But the majority w ent further. It reversed the trial court’s judgment denying summary judgment to Hall on Key Realty’s claim for breach of the non-competition and non-solicitation provisions o f the agreement. {¶ 50} The majority reasoned that a contract is not binding without co nsideration, and here, the agreement contained a blank line where the consid eration was supposed to be recited. It acknowledged that an at-will employee’s continu ed employment may serve24. as consideration for an employment agreement, but it concluded that because Hall was an independent contractor—not an employee—his continued employment could not serve as the consideration necessary to form a contract here. The major ity held that “[b]ecause Mr. Hall was never appellant’s employee * * * appellant did not provide Mr. Hall with proper consideration when he signed the Agreement.” It affirme d the trial court’s decision granting summary judgment to Hall as to the confidenti ality provisions of the agreement and reversed its denial of summary judgment on the ad ditional contract

claims. III. Law and Analysis {¶ 51} Key Realty now asks that we reconsider and reverse the majority decision, and adopt the reasoning of the dissenting opinion. The dissent would have reversed the trial court judgment, except as to (1) that part of Key Realty’ s claim for tortious

interference with contract that relates to interference with al leged contracts between Key Realty and its agents, (2) Key Realty’s spoliation claim agains t Hall and Fairchild (but not against Heather), (3) Key Realty’s claim for criminal misch ief, and (4) Key Realty’s claim for misappropriation of trade secrets. {¶ 52} Under App.R. 26(A)(1), an “[a]pplication for reconsideration of any cause or motion submitted on appeal shall be made in writing no later than ten days after the clerk has both mailed to the parties the judgment or order in q uestion and made a note on the docket of the mailing as required by App. R. 30(A).” The t est generally applied in considering a motion for reconsideration in the court of appeal s is whether the motion25. identifies an obvious error in the court’s decision or raises a n issue that was either not considered at all or not fully considered by the court when it should have been. Matthews

v. Matthews , 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th Dist.1981). “A motion for reconsideration is not designed for use in instances when a par ty merely disagrees with the conclusions reached and the logic used by the appellate cou rt.” (Citations omitted.) Deutsche Bank Natl. Trust Co. v. Greene, 6th Dist. Erie No. E-10-006, 2011-Ohio-2959, ¶ 2. It is also not to be used as an opportunity to raise new arguments that were not made in earlier proceedings. Waller v. Waller, 7th Dist. Jefferson No. 04-JE-27, 2005-Ohio5632, ¶ 3. {¶ 53} Key Realty argues that the majority decision made obvious error s of fact and law that contravene Ohio Supreme Court and other Ohio case law. Most importantly, it argues that the decision conflicts with the Ohio Supreme Cou rt’s decisions in Lake Land Emp. Group of Akron, LLC v. Columber , 101 Ohio St.3d 242, 2004-Ohio-786, 804 N.E.2d 27, and Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos. , 86 Ohio St.3d 270, 714 N.E.2d 898 (1999), and the decisions of the Tenth and First Dis tricts, respectively, in

Americare Healthcare Servs. LLC v. Akabuaku , 10th Dist. Franklin No. 10AP-777, 2010- Ohio-5631, and Financial Dimensions, Inc. v. Zifer , 1st Dist. Hamilton No. C-980960, 1999 WL 1127292, *4 (Dec. 10, 1999). Key Realty also argues th at the majority failed to consider the substantive merits of many assignments of error be cause it based its decision upon the erroneous conclusion that Hall’s noncompete agreement is unenforceable as a matter of law. And, regarding the merits of those assignments of error that the majority26. did consider, Key Realty argues that the majority decision cont ains obvious errors of facts and law. Key Realty does not, however, ask this court to reconsider those issues upon which the majority and dissenting judge agreed. {¶ 54} As explained below, we agree that Key Realty I conflicts with several Ohio cases—including governing precedent from the Supreme Court of O hio—and contains other obvious errors of fact and law. We, therefore, grant Key Realty’s motion and

vacate Key Realty I , except to the extent that it affirmed the dismissal of (1) th at part of Key Realty’s claim for tortious interference with contract that relates to interference with alleged contracts between Key Realty and its agents, (2) Key Re alty’s spoliation claim against Hall and Fairchild (but not against Heather), (3) Key R ealty’s claim for criminal mischief, and (4) Key Realty’s claim for misappropriation of tr ade secrets. {¶ 55} Having granted Key Realty’s motion for reconsideration, we shal l now address the assignments of error in turn. A. First Assignment of Error: Breach of Contract (against Hall) {¶ 56} In its amended complaint, Key Realty alleges that Hall breached the noncompete agreement by (1) directly competing with Key Realty, (2) soliciting Key Realty agents and customers, (3) using and disclosing Key Realt y’s confidential information, and (4) failing to return all books, records, and other materials that relate to Key Realty’s business or customers upon his termination. The t rial court concluded that there are genuine issues of material fact regarding whether Hal l violated the agreement27. by competing with Key Realty, soliciting Key Realty agents and customers, and failing to return all Key Realty-related materials upon his termination—th ereby precluding summary judgment on those parts of Key Realty’s contract claim. The trial court granted summary judgment to Hall on the remaining aspect of Key Realty’ s breach-of-contract claim—i.e., Hall’s alleged use and disclosure of confidential i nformation. On appeal, Key Realty argues that part of the trial court’s order was erro r. {¶ 57} The majority in Key Realty I did not reach the merits of Key Realty’s assignment of error. Instead, it declared the entire noncompet e agreement void for lack of consideration. The majority concluded that Key Realty faile d to “provide Mr. Hall with proper consideration” when he signed the noncompete agreem ent because he “was never appellant’s employee and was never appellant’s co-owner” and, therefore, “[a]t most it appears appellant offered a gratuitous promise as consi deration.” This conclusion was obvious error for the following reasons. {¶ 58} First, it is irrelevant that Hall was “never appellant’s employ ee.” As the Supreme Court of Ohio has recognized, noncompete agreements may be executed outside the employer-employee relationship and noncompetes that are exe cuted by independent

contractors can be enforceable. Hamilton Ins. Serv., 86 Ohio St.3d 270, 714 N.E.2d 898 (enforcing a noncompete clause in a corporate agency agreement between Nationwide and an independent contractor). Indeed, several Ohio appellate courts have expressly concluded that the “the enforceability of [a noncompete] agreem ent does not depend on28. [the worker’s] status as an employee or independent contractor. ” Americare Healthcare

Servs. at ¶ 21; Financial Dimensions, Inc. , 1st Dist. Hamilton No. C-980960, 1999 WL 1127292, at *4 (finding that the distinction between at -will employee and independent contractor is “not relevant” when considering the e nforceability of a noncompete agreement). We similarly conclude, under the author ity of these cases, that noncompete agreements executed by independent contractors can b e binding and

enforceable. Moreover, although the parties in this case used the terms “Emp loyee” and “Employer” to refer to themselves in the noncompete agreement—i .e., the contract provides that it is by and between “Mike Hall * * * (hereinafte r ‘Employee’) and Key Realty, Ltd. (hereinafter referred to as ‘Employer’)”—those are merely defined terms for purposes of the contract and, therefore, have no legal signific ance. {¶ 59} Second, the record contains no evidence that Hall’s independent -contractor relationship with Key Realty had a specific term of duration, a nd “employment with no specific term of duration gives rise to an employment-at-will r elationship, regardless of whether the underlying relationship is one of employer-employee or employerindependent contractor.” Americare Healthcare Servs. at ¶ 24. Hall’s relationship with Key Realty was therefore an employment-at-will relationship, ev en though the underlying relationship was employer-independent contractor. {¶ 60} Third, it is very well established that “[c]onsideration exists to support a noncompetition agreement when, in exchange for the assent of an at-will employee to a proffered noncompetition agreement, the employer continues an a t-will employment29. relationship that could legally be terminated without cause.” Lake Land Emp. Group of Akron, LLC , 101 Ohio St.3d 242, 2004-Ohio-786, 804 N.E.2d 27, at ¶ 20. I n Key Realty

I , the majority overlooked this binding precedent when it concluded that Hall’s noncompete agreement lacked consideration. That is, the record contains no evidence of any contract, written or oral, that established a specific dura tion for Hall’s relationship with Key Realty. Accordingly, “the parties’ relationship was a t-will” and Hall’s “independent contractor status does not diminish the applicabil ity of the Lake Land holding.” Americare at ¶ 24 (finding that noncompete between employer and independent contractor was supported by consideration because t he contractor “continued to perform services” for the employer after the execution of th e agreement); see also Financial Dimensions, Inc. at *4 (finding that the employer’s “continuation of the parties’ relationship was sufficient consideration to support Z ifer’s agreement to the provisions in the covenant not to compete” and Zifer’s status a s an independent contractor, rather than an at-will employee, was “not relevant to the issue under consideration”). {¶ 61} Indeed, it is undisputed that Hall and Key Realty continued the ir at-will relationship for six years after Hall executed the noncompete a greement in 2012. Because there is no evidence in the record to suggest that eith er party was required to continue their relationship for any period of time, the continu ation of their employerindependent contractor relationship went beyond what either par ty was otherwise30. obligated to do, and therefore constituted sufficient considera tion for the noncompete agreement that Hall signed. Lake Land at ¶ 20. {¶ 62} In Key Realty I , the majority concluded differently, relying upon Hall’s testimony that he signed the noncompete agreement “on the futur e promise of ownership,” which never occurred. But, even if this “future pr omise” is assumed to be true, it is not relevant to the enforceability of the agreement . As discussed, under Lake

Land , the contract is nonetheless supported by consideration given th e continuation of their at-will relationship. {¶ 63} Moreover, the written contract does not include a “future promi se of ownership.” Instead, the contract expressly provides that the parties’ agreement is “in

consideration of the mutual promises contained herein , and for other good and valuable consideration, including ______, the receipt of which and the s ufficiency of which are hereby acknowledged.” (Emphasis added.) The Key Realty I majority committed an obvious mistake of fact when it concluded that the agreement ha s “a blank line where the description of the consideration should go,” while ignoring the preceding language which stated that the agreement is “in consideration of the mutual pr omises contained herein.” Although not specifically labeled as a “promise” from Key Realt y in the agreement, the contract specifically states that Hall will “gain valuable info rmation and insights on the lines of business in which Employer is engaged; access to Emplo yer’s confidential and proprietary information; and exposure to its existing and poten tial business opportunities.” In exchange, Hall promised that he would not compete against Ke y Realty, solicit its31. customers or employees, or use its business information. Accor dingly, the written contract contains a bargained-for benefit and detriment, fully satisfying the general

definition of consideration in Ohio. Kostelnick v. Helper , 96 Ohio St.3d 1, 2002-Ohio2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc. , 436 F.Supp. 409, 414 (N.D.Ohio 1976) (stating that consideration is “the ba rgained for legal benefit and/or detriment”). {¶ 64} Finally, even though Hall denied that he signed the noncompete in 2012 because he was being promoted to manager (and claimed that the agreement was signed “on the future promise of ownership” instead), the majority ove rlooked plenty of evidence in the record that creates a genuine dispute of fact o n that issue (to the extent that it is even relevant). That is, the record shows that Hall ’s execution of the noncompete agreement in 2012 coincided with the termination of his employment with Old Republic Home Warranty and promotion into a management posi tion with Key Realty. As Degnan testified, Hall was “untested as a manager” in 2012. For that reason, Degnan maintains that it would have been “ridiculous” to have o ffered an ownership

interest to Hall at that time. The ultimate factfinder must de termine the respective credibility of Degnan and Hall on this issue. {¶ 65} For these reasons, the noncompete agreement is supported by con sideration and is fully enforceable. {¶ 66} We now consider the substantive merits of Key Realty’s first as signment of error, which were not considered by the majority in Key Realty I . Key Realty argues that32. there is a genuine dispute of material fact regarding whether H all breached his obligations under paragraph 6 of the agreement, which provides that Hall cannot directly or indirectly disclose “any information of any kind * * * conce rning any matters affecting or relating to the business of Employer” including, without lim itation, any information regarding “its plans, processes, work in process or any other d ata of any kind * * * without regard to whether any or all of the foregoing matters w ould be deemed confidential, material, or important.” {¶ 67} The trial court concluded that although there is evidence that Red 1 had information regarding Key Realty—most notably, the results of t he survey that Hall sent to Key Realty agents in January 2019, which were later offered by Red 1 as incentives to Key Realty agents to get them to switch companies—“there is not hing in the record to indicate that they got this information from Michael Hall.” To the contrary, there is

evidence in the record that could lead a reasonable factfinder to conclude that Hall sent the survey to Key Realty agents in January 2019 precisely because he intended to gather information for Red 1 to use to solicit Key Realty agents. Ind eed, the timing and content of the survey itself is circumstantial evidence of this. That is, just a few days before he departed Key Realty for Red 1, Hall sent a survey to Key Realty agents to determine “[w]hat additional features and benefits” those agents would “l ike from [their] brokerage.” And, two days after he left Key Realty, the inform ation gathered through those survey responses appears in a power point presentation—jo intly prepared by Hall and Fairchild—that was used at the Red 1 grand opening to convi nce Key Realty agents33. to switch to Red 1. This evidence is sufficient to create a ge nuine dispute of material fact regarding Hall’s breach of paragraph 6 of the noncompete agreem ent. {¶ 68} We, therefore, grant Key Realty’s motion for reconsideration on this issue, and reverse the trial court’s decision to the extent that it gr ants summary judgment to Hall on Key Realty’s claim that Hall used and/or disclosed informati on related to its business in contravention of the noncompete agreement. In addition, we affirm that portion of the trial court’s judgment that found genuine issues of material fa ct relating to the remainder of Key Realty’s breach-of-contract claim against Hall. The rec ord—as outlined in the fact section above—demonstrates the existence of questions of f act relating to this entire

claim. {¶ 69} Accordingly, we find Key Realty’s first assignment of error wel l-taken. B. Second Assignment of Error: Misappropriation of Trade Secrets (against all appellees) {¶ 70} Key Realty does not ask us to reconsider the determination that we made in Key Realty I to affirm the trial court’s dismissal of its claim for misappro priation of trade

secrets. C. Third Assignment of Error: Unfair Competition (against all appellees) {¶ 71} In its motion for reconsideration, Key Realty argues that the m ajority made an obvious error of fact by overlooking material evidence in th e record that creates a genuine dispute regarding whether the appellees engaged in unfa ir competition. We

agree.34. {¶ 72} “Unfair competition ordinarily consists of representations by o ne person, for the purpose of deceiving the public, that his goods are tho se of another. * * * The concept of unfair competition may also extend to unfair commerc ial practices such as malicious litigation, circulation of false rumors, or publicati on of statements, all designed

to harm the business of another.” Water Mgmt., Inc. v. Stayanchi , 15 Ohio St.3d 83, 85, 472 N.E.2d 715 (1984); see also Microsoft Corp. v. Action Software , 136 F.Supp.2d 735, 740 (N.D.Ohio 2001), quoting Ohio Jurisprudence 3d, Trade Regul ations, Section 66 (1989) (recognizing that unfair competition “has come to develo p a broader connotation in recent years”). To the extent that the “circulation of fals e rumors” may form the basis of the claim, summary judgment is appropriate where “no compete nt evidence has been presented which creates a question of fact as to whether [defen dants] circulated false rumors, or published statements designed to harm [plaintiff’s] business.” Molten Metal Equip. v. Metaullics Systems Co. , 8th Dist. Cuyahoga No. 76407, 2000 WL 739470, * 5 (June 8, 2000). {¶ 73} Here, at a minimum, Key Realty presented competent evidence tha t creates a question of fact as to whether appellees circulated false rum ors and published statements that were designed to harm Key Realty’s business. T hat is, the power point presentation that was used at the Red 1 grand opening event to solicit Key Realty agents to join Red 1, states that Key Realty had made “broken promises ” to agents. Heather was asked at her deposition to identify any of these “broken promis es,” but she could not:35. Q: So can you identify any specific broken promise that was ma de to a specific agent? A: I can’t per se. {¶ 74} Moreover, the majority failed to recognize that all of the evid ence—as summarized above—should be weighed by the ultimate factfinder t o assess witness credibility and thereby determine appellees’ true intentions. The trial court concluded that appellees were not engaged in unfair competition, as a mat ter of law, because “they were also simultaneously competing with all other real estate b rokerage services companies.” But the factfinder should have the opportunity to weigh that fact against the other evidence in the record—for example, Hall’s statement that he hoped that “100 agents” from Key Realty would follow him to Red 1 “within 3 mon ths” and “another 100 within the first 6 months”—to determine whether appellees engag ed in unfair competition by soliciting Key Realty agents through the use of any false rumors or published statements that were intended to harm Key Realty. {¶ 75} Accordingly, we grant Key Realty’s motion for reconsideration o n this issue, reverse summary judgment on Key Realty’s claim against a ppellees for unfair competition, and remand that claim to the trial court for furth er proceedings. We find Key Realty’s third assignment of error well-taken.36. D. Fourth Assignment of Error: Tortious Interference with Contract (against Red 1, Heather, an d Fairchild) and Tortious Interference with Business Relations (against all appellees) {¶ 76} Key Realty asserted a claim against Red 1, Heather, and Fairchi ld for tortious interference with contract, alleging that those appell ees permitted, caused, encouraged and/or induced Hall’s breach of his noncompete agree ment. 1 Key Realty also asserted a claim against all appellees, arguing that they torti ously interfered with Key Realty’s business relationship with its agents. We will addres s these claims separately.

1. Tortious Interference with Contract {¶ 77} The trial court granted summary judgment to appellees on its to rtious

interference with contract claim because “Michael Hall made his own decision to stop working for plaintiff as an independent contractor.” In Key Realty I , the majority affirmed the trial court’s judgment on this claim. The majorit y concluded that Key Realty has no tortious interference with contract claim, as a m atter of law, because the underlying noncompete agreement between Hall and Key Realty was unenforceable. Key Realty argues that the noncompete agreement is enforceable (as discussed above, we agree), and the majority therefore erred when it failed to cons ider the substantive merits of its arguments relating to this claim. We agree.

1 Key Realty also claimed that appellees tortiously interfered w ith alleged contracts between it and its agents. Key Realty does not ask us to recon sider that portion of Key Realty I that affirmed summary judgment as to that portion of its torti ous-interferencewith-contract claim.37. {¶ 78} The elements of tortious interference with contract are (1) the existence of a contract, (2) the wrongdoers’ knowledge of the contract, (3) the wrongdoers’ intentional procurement of the contract’s breach, (4) lack of justification , and (5) resulting damages. Fred Siegel Co., L.P.A. v. Arter & Hadden , 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), paragraph one of the syllabus. {¶ 79} Here, as discussed, the majority erred when it concluded that t he noncompete agreement between Hall and Key Realty is unenforceab le. The agreement is enforceable and questions of fact remain regarding Key Realty’s claim for breach of contract. Regarding the remaining elements of this tortious-in terference claim, Heather and Fairchild both testified that they were aware of the agreem ent, and that they discussed the agreement to some degree at their initial meeting regarding Red 1. Although Heather testified that she did not think the agreement was valid, and Fairchild would not say whether the agreement prevented Hall from having an ownership interest in Red 1 and testified that he “didn’t know” why Hall was not a n owner of Red 1, their credibility on those issues should be weighed by the ultimate f actfinder. A reasonable factfinder could conclude that the circumstances surrounding th e inception and structure of Red 1 LLC—i.e., that it was transferred from Hall to Heather in October 2018, and that Fairchild owns only one-third of the company while Heather owns two-thirds of the company despite her lack of real estate experience—demonstrates that these appellees were attempting to end run Hall’s obligations to Key Realty und er his noncompete from the beginning.38. {¶ 80} This evidence could also be interpreted by a reasonable factfin der as tending to show that the appellees intentionally procured Hall’ s breach. Although the trial court found it to be dispositive that Hall made “his own decision” to leave Key Realty, that fact is immaterial for purposes of this claim. Ke y Realty does not allege that Hall breached his agreement by leaving Key Realty—it alleges th at Hall breached his agreement by competing with Key Realty by, among other things, soliciting its agents to Red 1, sharing its confidential information with Red 1, and tra ining Red 1 agents. There is testimony and evidence in the record that, if believed (or n ot believed, as the case may be), demonstrates that these appellees worked with Hall to esta blish Red 1 as a competing brokerage, and that they carefully and deliberately structured Red 1 in a manner that was designed to avoid Hall’s noncompete agreement with Key Realty. {¶ 81} We therefore grant Key Realty’s motion to reconsider on this is sue, we reverse summary judgment on Key Realty’s claim against Red 1, H eather, and Fairchild for tortious interference with contract, and remand that claim to the trial court for further proceedings. {¶ 82} To be clear, to the extent that Key Realty’s claim for tortious interference with contract includes an allegation that all appellees interfe red with “Key Realty’s contractual relationships with its agents and other contractual partners,” summary judgment is warranted on that part of the claim. Indeed, Key R ealty has not asked us to reconsider that portion of our Key Realty I decision.39. 2. Tortious Interference with Business Relationships {¶ 83} In Key Realty I , the majority held that where a defendant’s breach of contract “necessarily interferes with the injured party’s busin ess relations with third parties,” the injured party is generally limited to an action f or breach of contract. Digital & Analog Design Corp. v. North Supply Co. , 44 Ohio St.3d 36, 46, 540 N.E.2d 1358 (1989). In other words, the majority concluded that Key Realty is limited to its breach-of-contract claim against Hall and, as a matter of law, cannot maintain a separate action for any resulting interference with its business relatio nships. Key Realty argues— and we agree—that the majority committed an obvious error of la w by failing to recognize an applicable exception to that rule. That is, “[a]n exception exists, and a tort action may lie, only where the breaching party indicates, by hi s breach, a motive to interfere with the adverse party’s business relations rather than an interference with business as a mere consequence of the breach.” Id. ; see also Universal Windows & Doors, Inc. v. Eagle Window & Door, Inc. , 116 Ohio App.3d 692, 700, 689 N.E. 2d 56 (1st Dist.1996) (recognizing that a party can maintain both a b reach of contract claim and a tortious interference with business relations claim if (1) th ere is a motive to interfere with the injured party’s business relations and (2) the interfe rence is not “merely incidental to the breach.”). {¶ 84} Here, there is sufficient evidence in the record to create a ge nuine dispute

as to whether Hall had a “motive to interfere with the adverse party’s business relations.” For example, Hall stated, just a few days before he left Key Re alty, that “I am hoping 10040. agents follow me in the first 3 months and another 100 within t he first 6 months.” That statement could be viewed by a reasonable factfinder as evidenc e that Hall had a distinct motive to raid Key Realty’s agents in the Columbus area for the benefit of Red 1 and, therefore, any interference with Key Realty’s agent relationshi ps was not merely incidental to any breach of his noncompete agreement. {¶ 85} Moreover, considering the general elements of this tort, there is a question of fact regarding whether all appellees tortiously interfered w ith Key Realty’s agent relationships—and we find that the evidence on this issue was n ot fully considered by the majority decision of Key Realty I . This tort requires (1) the existence of a business relationship, (2) the wrongdoer’s knowledge thereof, (3) an int entional interference causing a termination of that relationship, and (4) resulting d amages. Wauseon Plaza Ltd. Partnership v. Wauseon Hardware Co. , 156 Ohio App.3d 575, 2004-Ohio-1661, 807 N.E.2d 953, ¶ 57 (6th Dist.). Although the interference must b e done with actual malice, “[a]ctual malice in a tortious interference claim is not ill-wi ll, spite, or hatred; rather, it denotes an unjustified or improper interference with the busine ss relationship.” Chandler & Assocs., Inc. v. Am.’s Healthcare Alliance, Inc. , 125 Ohio App.3d 572, 583, 709 N.E.2d 190 (8th Dist.1997). Where the alleged wrongdoer and the injured party are competitors, any interference is privileged (and therefore not actionable) if (1) the relation concerns a matter of competition between them, (2) the actor does not use “improper means” to interfere, (3) the actor does not intend to create or continue an illegal restraint of competition, and (4) the actor’s purpose i s at least in part to advance41. his own competitive interests. MedCorp., Inc. v. Mercy Health Partners , 6th Dist. Lucas No. L-08-1227, 2009-Ohio-988, ¶ 43-48. {¶ 86} Here, the record demonstrates that appellees intentionally inte rfered with Key Realty’s business relationships by soliciting its agents to join Red 1, and that Key Realty suffered damages as a result. The only question is whet her appellees used “improper means” to intentionally interfere with these relation ships—if so, their conduct was not privileged competition. {¶ 87} Based on all the evidence in the record, a reasonable factfinde r could conclude that appellees used “improper means” to interfere with Key Realty’s agent relationships. For example, a factfinder could conclude that, pursuant to the terms of Hall’s noncompete agreement, Key Realty owned the Facebook grou p and the other online platforms that appellees commandeered to directly solici t Key Realty’s agents. Indeed, Hall agreed in the noncompete agreement that “ all books, records, files, forms, reports, accounts and documents” relating to Key Realty’s business—including any such items that were “prepared by” Hall himself—are “the exclusive p roperty” of Key Realty. If these items are found to be Key Realty’s “exclusive property ,” then a factfinder could also conclude that it was improper for appellees to use the Fac ebook account and other online platforms—to the complete exclusion of Key Realty manage ment—to communicate with and solicit Key Realty agents. {¶ 88} Accordingly, we grant Key Realty’s motion for reconsideration o n this issue, reverse summary judgment on Key Realty’s claim against a ppellees for tortious42. interference with business relations, and remand that claim to the trial court for further proceedings. We find Key Realty’s fourth assignment of error w ell-taken. E. Fifth Assignment of Error: Breach of Fiduciary Duty (against Hall) {¶ 89} In the amended complaint, Key Realty asserted a breach of fiduc iary duty claim against Hall. The trial court granted summary judgment t o appellees on this claim.

In Key Realty I , the majority affirmed, finding that any language in Hall’s no ncompete agreement could not create a fiduciary duty because the noncomp ete agreement is

unenforceable as a matter of law. In its motion for reconsider ation, Key Realty argues that the majority erroneously concluded that the noncompete agr eement is unenforceable as a matter of law (as discussed above, we agree) and, therefor e, the majority committed

obvious error when it failed to consider the merits of its fidu ciary-duty claim against Hall. We agree. {¶ 90} A “fiduciary relationship” is one “in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special tr ust.” Hope Academy Broadway Campus v. White Hat Mgt., LLC , 145 Ohio St.3d 29, 2015-Ohio-3716, 46 N.E.3d 665, ¶ 43, quoting In re Termination of Emp. of Pratt , 40 Ohio St.3d 107, 115, 321 N.E.2d 603 (1974). “The determination concerning what cons titutes a confidential (fiduciary) relationship is a question of fact dependent upon t he circumstances of

each case.” B-G Leasing Co. v. First Nat’l Bank , 6th Dist. Huron No. H-89-56,43. 1991 WL 87113, * 3 (May 4, 1999), quoting Indermill v. United Savings , 5 Ohio App.3d 243, 245, 451 N.E.2d 538 (9th Dist.1982). Generally, there is no fiduciary relationship between an employer and an independent contractor “unless both parties understand that that relationship is one of special trust and confidence.” Northeast Ohio College of Massotherapy v. Burek , 144 Ohio App.3d 196, 204, 759 N.E.2d 869 (7th Dist.2001). “A fiduciary duty may arise out of a contract or an informal relat ionship,” so long as both parties “understand that a special trust of confidence has been reposed.” M.S. v. Toth , 2017-Ohio-7791, 97 N.E.3d 1206, ¶ 27 (9th Dist.), quoting RPM, Inc. v. Oatey Co. , 9th Dist. Medina Nos. 3282-M, 2005-Ohio-1280, ¶ 19. {¶ 91} Whether Hall owed any fiduciary duties to Key Realty is a quest ion of fact that cannot be resolved on summary judgment. Although Hall wor ked for Key Realty as an independent contractor, he signed an enforceable contract ac knowledging that Key Realty was placing him “in a position of trust and confidence, requiring a high degree of loyalty, honesty, and integrity,” and he agreed that he would n ot “use or divulge” any of Key Realty’s business-related information for his own “personal gain” or “to the detriment of” Key Realty. According to Degnan, the realities o f their relationship demonstrated that Hall maintained a position of trust and confi dence. Hall, on the other hand, when asked whether he was placed within a position of tru st and confidence at Key Realty, responded “[s]ometimes yes and sometimes no.” {¶ 92} Given the evidence in the record, especially the explicit langu age of the contract that Hall signed, a genuine dispute of material fact e xists regarding whether Hall44. owed any fiduciary duties to Key Realty that he breached throug h his conduct related to

Red 1. {¶ 93} Accordingly, we grant Key Realty’s motion for reconsideration o n this issue, we reverse summary judgment on Key Realty’s claim agains t Hall for breach of fiduciary duty, and we remand that claim for further proceeding s. We find Key Realty’s fifth assignment of error well-taken. F. Sixth Assignment of Error: Conversion (against all appellees) {¶ 94} In its amended complaint, Key Realty asserted a claim for conve rsion of its Facebook page, email accounts, websites, calendars, and Google Drive resources. This claim is premised on appellees’ conduct in altering administrat ive privileges, expelling Key Realty owners from Key Realty’s central Ohio forums, and bl ocking owners and directors from those materials and accounts. The trial court g ranted summary judgment to appellees on this claim, reasoning that Key Realty failed to demand that appellees return the property. In Key Realty I , the majority affirmed after concluding that Hall

— not Key Realty—owns the disputed property through his LLC. In its motion for reconsideration, Key Realty argues that the majority wholly ove rlooked one of its arguments on appeal—i.e., that the trial court improperly grant ed summary judgment on a ground not specified by the moving party—and, in addition, ov erlooked material facts that create a genuine dispute regarding ownership of the proper ty in question. We agree.45. {¶ 95} To prevail on a claim for conversion, a plaintiff must prove “( 1) plaintiff’s ownership or right to possession of the property at the time of conversion; (2) defendant’s conversion by a wrongful act or disposition of plaintiff’s prop erty rights; and (3) damages.” 6750 BMS, L.L.C. v. Drentlau , 2016-Ohio-1385, 62 N.E.3d 928, ¶ 28 (8th Dist.). If the defendant came into possession of the property lawfully, the pl aintiff must also prove “(1) that the plaintiff demanded the return of the property after th e defendant exercised dominion or control over the property; and (2) that the defenda nt refused to deliver the property to the plaintiff.” Id. Because appellees came into possession of the property lawfully, the trial court concluded that Key Realty was require d—but failed—to prove

these additional elements. {¶ 96} Although not considered by the majority, Key Realty argued on a ppeal that this was error because a trial court may not award summary judg ment on a ground not specified in the motion for summary judgment. It cites State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty. , 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 27. There, the Ohio Supreme Court recognized that “‘[i]t is reversible error to award summary judgment on grounds not specified in the motion for sum mary judgment.’” Id. , citing Patterson v. Ahmed, 176 Ohio App.3d 596, 2008-Ohio-362, 893 N.E.2d 198, ¶ 14 (6th Dist.). The court explained that by relying on an unargue d ground for granting summary judgment, the non-movant is denied a meaningful opportu nity to respond. Id.

See Mitseff v. Wheeler , 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus (“A party seeking summary judgment must specifically delineate the basis upon which summary46. judgment is sought in order to allow the opposing party a meani ngful opportunity to respond”). {¶ 97} We agree with Key Realty. In their summary-judgment motions, a ppellees argued that they were entitled to summary judgment on Key Realt y’s conversion claim because the property at issue belonged to Key Realty Columbus 1 , LLC, owned solely by Hall. Appellees did not argue that Key Realty failed to establ ish that it had demanded return of the property. As such, Key Realty was denied a meani ngful opportunity to refute the conclusion reached by the court. {¶ 98} Additionally, as to the arguments that were raised by appellees , we find that the majority overlooked evidence in the record that create s a genuine issue of material fact. That is, paragraph 7 of the noncompete agreemen t—which provides that “all books, records, files, forms, reports, accounts and docume nts relating in any manner to [Key Realty’s] business or customers, whether prepared by [H all] or otherwise coming into [Hall’s] possession, shall be the exclusive property of [K ey Realty] and shall be returned immediately to [Key Realty] upon termination of employ ment * * *”—belies Hall’s claim of ownership and, at the very least, creates a gen uine issue of material fact precluding summary judgment. {¶ 99} Accordingly, we grant Key Realty’s motion for reconsideration o n this issue, we reverse summary judgment on Key Realty’s claim agains t appellees for conversion, and we remand that claim for further proceedings. We find Key Realty’s sixth assignment of error well-taken.47. G. Seventh Assignment of Error: Alleged Criminal Acts {¶ 100} R.C. 2307.60(A)(1) provides that “[a]nyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law * * *.” See Jacobson v. Kaforey , 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 10 (“R.C. 2307.60(A)(1), by its plain and unam biguous terms, creates a statutory cause of action for damages resulting from any crimin al act.”). Proof of an underlying criminal conviction is not required to maintain an a ction under R.C. 2307.60. Buddenberg v. Weisdack, Slip Opinion No. 2020-Ohio-3832. {¶ 101} In its amended complaint, Key Realty asserts civil claims for t he following criminal conduct that it claims appellees committed: (1) unauthorized use of computer, cable, or telecommunication property, a violation of R.C. 2913.04(A) or (B); (2) criminal mischief, a violation of R.C. 2909.07(A)(6)(a); (3 ) theft; and (4) extortion, a violation of R.C. 2905.11(A)(1). The trial court judgment gran ted summary judgment in favor of appellees on all of Key Realty’s claims premised on vi olations of criminal

statutes. In Key Realty I , the majority affirmed. Key Realty asks us to reconsider our ruling with respect all of these claims—except criminal mischie f—arguing that the majority’s opinion contains obvious errors of fact and law. 1. Unauthorized Use of Computer Property (against all appellee s) {¶ 102} Under R.C. 2913.04 (A), “[n]o person shall knowingly use or ope rate the property of another without the consent of the owner or person authorized to give48. consent.” Under R.C. 2913.04(B), “[n]o person, in any manner a nd by any means * * * shall knowingly gain access to, attempt to gain access to, or c ause access to be gained to any computer, computer system, computer network, * * * or infor mation service without the consent of, or beyond the scope of the express or implied c onsent of, the owner of the computer, computer system, computer network, * * * or informati on service or other person authorized to give consent.” {¶ 103} The trial court held that because appellees purportedly believe d that Hall’s LLC owned the electronic resources at issue, Key Realty is unab le to establish the “knowingly” element of the offense, thus precluding its claim. In Key Realty I , the majority concluded that Key Realty could not rely upon the nonc ompete agreement to establish ownership of the disputed property because that agree ment was not enforceable—and, therefore, Key Realty could not show that the appellees used or operated “the property of another.” Key Realty argues that the majority erroneously concluded that the noncompete agreement is unenforceable as a m atter of law (as discussed above, we agree) and, therefore, the majority committ ed obvious error when it

failed to consider the merits of this claim due to its erroneou s belief that the noncompete agreement is invalid. In addition, Key Realty argues that the majority overlooked evidence in the record that creates a genuine dispute of materi al fact. We agree. {¶ 104} It is an affirmative defense to R.C. 2913.04 that “[a]t the tim e of the alleged offense, the actor, though mistaken, reasonably believe d that the actor was authorized to use or operate the property.” See R

. C. 2913.04(E) and R.C. 2913.03(C)(1)49. (the affirmative defenses listed in R.C. 2913.03(C) are applica ble to a charge under R.C. 2913.04). Despite the trial court’s conclusion that appellees were “unwavering” in their position that Hall owned the records, the noncompete agreement that Hall signed specifically provided otherwise. And Hall’s deposition testimo ny on this point was equivocal (he first conceded that the agreement was “very clear ” that the records belonged to Key Realty, but then said he misspoke.). {¶ 105} But even setting that aside, Hall’s position—that he believed H all’s LLC owned the property—is itself a credibility issue. “If an issue is raised on summary judgment, which manifestly turns on the credibility of the witn ess because his testimony must be believed in order to resolve the issue, and the surroun ding circumstances place the credibility of the witness in question—for example, where t he potential for bias and interest is evident—then, the matter should be resolved at tria l, where the trier of facts has an opportunity to observe the demeanor of the witness.” Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 167, 499 N.E.2d 1291 (10th Dist.1985). A jury should determine whether Hall’s position is credible and, if so, wheth er his belief was reasonable

under the circumstances. {¶ 106} We therefore grant Key Realty’s motion for reconsideration on t his issue, we reverse summary judgment on Key Realty’s claim for unauthori zed use of computer, cable, or telecommunication property, and we remand that claim for further proceedings.50. 2. Civil Theft (against all appellees) {¶ 107} Under R.C. 2307.61(A), a property owner may recover damages in a civil action from a person who commits a theft offense. A “theft off ense” is defined in 2913(K)(1) to include a violation of R.C. 2911.01, 2911.02, 291 1.11, 2911.12, 2911.13, 2911.31, 2911.32, 2913.02, 2913.03, 2913.04, 2913.041, 2913.05, 2913.06, 2913.11, 2913.21, 2913.31, 2913.32, 2913.33, 2913.34, 2913.40, 2913.42, 2913.43, 2913.44, 2913.45, 2913.47, 2913.48, 2913.51, 2915.05, or 2921.41. Key R ealty does not specify in its complaint which theft statute appellees allegedly violat ed, but we assume that the theft offense alleged here is R.C. 2913.04 (unauthorized use of computer, cable, or telecommunication property). Given our conclusion that a genu ine issue of material fact exists as to Key Realty’s claim for unauthorized use of compute r, cable, or telecommunication property under R.C. 2913.04, we reach the sam e conclusion with respect to its civil theft claim for the reasons articulated ab ove. {¶ 108} We therefore grant Key Realty’s motion for reconsideration on t his issue, we reverse summary judgment on Key Realty’s claim for civil the ft, and we remand that claim for further proceedings. 3. Extortion (against Hall ) {¶ 109} Under R.C. 2905.11(A)(1), “[n]o person, with purpose to obtain any valuable thing or valuable benefit * * * shall * * * [t]hreaten to commit any felony.” The trial court rejected this claim by characterizing Hall’s conduc t—agreeing to return Key Realty’s property in exchange for its agreement to rescind the noncompete agreement—51. as merely an intent to negotiate with his former employer, usin g items he owned as leverage. In Key Realty I , the majority agreed with the trial court’s reasoning. In its motion for reconsideration, Key Realty argues that the majority committed obvious errors of fact and law. That is, the majority’s opinion was premised upon its conclusion that Key Realty could not establish a theft offense given that Hall— not Key Realty—owned the disputed property. As we have already discussed, we agree with Key Realty that this was an obvious error because it ignored material evidence in th e record—namely, the terms of the enforceable noncompete agreement—that created a ge nuine dispute regarding the ownership of that property. {¶ 110} Accordingly, to the extent that Hall threatened to continue to deprive Key Realty of property that belonged to it (i.e., engage in a theft offense) if Key Realty would not agree to release him from his noncompete agreement (i.e., a valuable benefit), we find that a question of fact exists regarding whether Hall’s conduct rose to the level of extortion. We therefore grant Key Realty’s motion for reconside ration on this issue, we reverse summary judgment on Key Realty’s claim for extortion, a nd we remand that claim for further proceedings. {¶ 111} In sum, we find Key Realty’s seventh assignment of error not we ll-taken with respect to the criminal mischief claim, but well-taken in all other respects.52. H. Eighth Assignment of Error: Spoliation (against Heather) {¶ 112} Key Realty contends that appellees spoliated evidence when they deleted posts and removed group members from the Key Realty Columbus Fa cebook page. The

trial court concluded that there is no evidence of “willful” de struction of evidence, nor is there any evidence of “actual disruption” of Key Realty’s case. In Key Realty I , the majority agreed with the trial court. In its motion for recons ideration, Key Realty argues that the majority’s conclusion—with respect to Heather, specifi cally—contains obvious

errors of fact and law. 2 That is, the majority did not consider the definition of “wil lful” for purposes of a spoliation claim. In addition, Key Realty ar gues that the majority failed to recognize that appellees’ conclusory assertion that Key Real ty has no evidence to prove its case was insufficient to meet their initial burden wi th respect to their motion for summary judgment on this claim against Heather. We agree. {¶ 113} In the trial court, Key Realty offered as an exhibit a log prin ted from the Facebook page in support of its spoliation claim. It shows tha t on the day the trial court ordered Hall to return control of the page to Key Realty (the d ay after the action was filed), Heather—before returning control to Key Realty—deleted 19 posts (including posts by Hall and Fairchild) and removed numerous individuals f rom the group.

2 Key Realty does not ask us to reconsider our conclusion in Key Realty I that it failed to establish a claim for spoliation against the other appellees.53. {¶ 114} Heather described the Facebook page as a forum for agents to as k questions and she conceded that she, Fairchild, and her husband had responded to questions posed by agents on the page. Heather denied that she deleted the posts to conceal the fact that they had recruited Key Realty agents to w ork for Red 1, but she claimed that she could not remember the content of the posts sh e deleted or why she deleted them. She acknowledged that she was aware that the law suit, including the TRO,

had been filed. 3 {¶ 115} Under Ohio law, “[a] cause of action exists in tort for interfe rence with or

destruction of evidence.” Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993). “The elements of a claim for interference with or destruction of evidence are (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful de struction of evidence by defendant designed to disrupt the plaintiff’s case, (4) disrupt ion of the plaintiff’s case, and (5) damages proximately caused by the defendant’s acts.” Id. {¶ 116} Here, litigation had been initiated against Hall and Red 1—a co mpany that Heather co-owned. Heather was aware of the litigation—she was the statutory agent

3 Heather claimed in a September 10, 2019 affidavit that she fir st learned that a TRO had been granted sometime after 5:30 p.m. on January 16, 2019—after she finished purging Facebook posts—and she was not initially named in the suit. Si gnificantly, she does not deny that she was aware that the litigation had been initiated against her husband and Red 1 (which she co-owned) and that control of the Key Realty Faceb ook page was at issue in the litigation.54. for Red 1 and her husband was a defendant. Thus, the first two elements of the claim are easily satisfied. It is primarily the third, fourth, and fifth elements at issue here. {¶ 117} As to the third element, willful destruction designed to disrup t the plaintiff’s case, to prove this element, a plaintiff must show that a defendant willfully destroyed evidence. See, generally, Elliott-Thomas v. Smith , 154 Ohio St.3d 11, 2018- Ohio-1783, 110 N.E.3d 1231. Willfulness “‘reflects an intentio nal and wrongful

commission of the act.’” Heimberger v. Zeal Hotel Group, Ltd., 2015-Ohio-3845, 42 N.E.3d 323, ¶ 37 (10th Dist.), quoting White v. Ford Motor Co., 142 Ohio App.3d 384, 387, 755 N.E.2d 954 (10th Dist.2001). {¶ 118} Here, Heather testified that to remove the Facebook posts and g roup members, she pressed the “delete” button; she believes that onc e deleted, a post cannot be retrieved. While she denied that her purpose was to conceal ev idence that she or her husband solicited Key Realty agents to work for Red 1, she said that she does not know why she did it. We conclude that this testimony creates a genu ine issue of material fact as to whether Heather willfully destroyed evidence. See Abbott v. Marshalls of MA, Inc., 8th Dist. Cuyahoga No. 87860, 2007-Ohio-1146, ¶ 25 (finding “wi llful destruction” element met where employee taped over video footage depicting p urported shoplifting incident in violation of store policy, noting that such conduct did not appear to be “merely coincidental”).55. {¶ 119} As to the elements of disruption and damages, Heather failed to meet her burden of establishing that no genuine issue of material fact e xists. Heather’s summaryjudgment motion stated only as follows: The evidence now before this court establishes beyond genuine dispute that none of the Red 1 Defendants can be held liable fo r the tort of spoliation of evidence. Heather Hall and Ken Fairchild testifi ed in their depositions that they did nothing that constitutes the tort of spoliation of evidence. And there is no evidence to the contrary. {¶ 120} The Ohio Supreme Court in Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) held that “a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portio ns of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims.” The court explained that “[t]he moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evid ence to support the nonmoving party’s claims.” (Emphasis in original.) Id. “If the moving party fails to satisfy its initial burden, the motion for summary judgment mus t be denied.”56. {¶ 121} Here, there is evidence that Heather willfully destroyed eviden ce, and she offered only conclusory assertions to dispute the remaining ele ments of Key Realty’s spoliation claim. These conclusory assertions are insufficient to entitle her to summary judgment. {¶ 122} We therefore grant Key Realty’s motion for reconsideration on t his issue, we reverse summary judgment on Key Realty’s against Heather for spoliation, and we remand that claim for further proceedings. We find Key Realty’ s eighth assignment of error well-taken with respect to the spoliation claim against H eather, but not well-taken with respect to its spoliation claims against the remaining app ellees. I. Ninth Assignment of Error: Civil Conspiracy (against all appellees) {¶ 123} Finally, there are genuine disputes of material fact relating t o Key Realty’s civil conspiracy claim. The tort of civil conspiracy is “a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages.” Kenty v. Transamerica Premium Ins. Co. , 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995). An underlying unla wful act is required before a party can prevail on a civil conspiracy claim. Williams v. Aetna Fin. Co. , 83 Ohio St.3d 464, 475, 700 N.E.2d 859 (1998). {¶ 124} Here, the ultimate factfinder should have the opportunity to de termine whether appellees (despite their protestations to the contrary) acted in concert to injure Key Realty through such unlawful acts as tortious interference with contract and business57. relations, unfair competition, unauthorized use of computer, ca ble, or telecommunication property, theft, and extortion—all of which claims should be re solved at trial. As we have concluded, the Key Realty I majority made obvious errors of law and fact when affirming summary judgment on these underlying claims. Because summary judgment on the underlying claims was erroneous, summary judgment on the civil conspiracy claim is also inappropriate. {¶ 125} We therefore grant Key Realty’s motion for reconsideration on t his issue, we reverse summary judgment on Key Realty’s claim for civil con spiracy, and we remand that claim for further proceedings. We find Key Realty’ s ninth assignment of

error well-taken.

IV. Conclusion {¶ 126} We agree with Key Realty that the majority decision in Key Realty I contains obvious errors of fact and law, and that it failed to consider several issues that should have been considered. We, therefore, grant its motion f or reconsideration, vacate

our decision in Key Realty I , and deny as moot Key Realty’s motion for consideration

en banc. {¶ 127} We find Key Realty’s first, third, fifth, eighth, and ninth ass ignments of error well-taken. We find its second assignment of error not w ell-taken. We find its fourth, sixth, and seventh assignments of error well-taken, in part, and not-well-taken, in part. As to its fourth assignment of error, we affirm as to th e dismissal of that part of Key Realty’s claim for tortious interference with contract that rel ates to interference with58. alleged contracts between Key Realty and its agents, but otherw ise, we reverse. As to its sixth assignment of error, we affirm the dismissal of Key Realt y’s criminal-mischief claim, but otherwise, we reverse. And as to its seventh assign ment of error, we reverse as to the dismissal of the spoliation claim against Heather, but o therwise, we affirm. {¶ 128} We reverse, in part, and affirm, in part, the October 15, 2019 judgment of the Lucas County Court of Common Pleas and remand this matter t o the trial court for proceedings consistent with this decision. Appellees are order ed to share equally in the costs of this appeal under App.R. 24. Reconsideration granted; judgment reversed, in part, and affirmed, in part. A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ___________________

____________ JUDGE Gene A. Zmuda, P.J. CONCUR. _______________________________ JUDGE Thomas J. Osowik, J. DISSENTS AND WRITES SEPARATELY.

OSOWIK, J. {¶ 129} I respectfully disagree with the new majority’s decisions to gr ant reconsideration and to deny en banc consideration in this matte r.59. {¶ 130} Appellant argues reconsideration is warranted because this cour t’s opinion is contrary to Lake Land Emp. Group of Akron, LLC v. Columber , 101 Ohio St.3d 242, 2004-Ohio-786, 804 N.E.2d 27, syllabus, where we allegedly fail ed to “acknowledge, analyze, or fully consider Lake Land’s holding and analysis.” Contrary to appellant’s argument, this court addressed Lake Land and found Mr. Hall was never appellant’s at-will employee. Key Realty, Ltd. v. Hall , 6th Dist. Lucas No. L-19-1237, 2021-Ohio26, ¶ 42. Appellant further argues reconsideration is warrante d for each of its nine assignments of error. However, appellant presents no arguments for our consideration that were not presented in its direct appeal and considered by this court. Rather, appellant urges this court to “adopt the analysis” of the disse nting opinion to simply reach a different conclusion. “An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions r eached and the logic used by an appellate court.” Perrysburg Twp. v. City of Rossford , 6th Dist. Wood Nos. WD-02-010, WD-02-011, 2002-Ohio-6364, ¶ 4, quoting State v. Owens , 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th Dist.1996). By the new m ajority in this decision merely adopting the dissenting opinion to this court’s opinion, they are improperly rewarding appellant for simply disagreeing with the conclusions reached and the logic used by the majority decision of this court. {¶ 131} However, given the reversal to this court’s decision the new ma jority grants in its decision to grant reconsideration, then an intrad istrict conflict exists and an en banc proceeding is warranted.60. {¶ 132} “An en banc proceeding is one in which all full-time judges of a court who have not recused themselves or otherwise been disqualified participate in the hearing

and resolution of a case.” State v. Forrest , 136 Ohio St.3d 134, 2013-Ohio-2409, 991 N.E.2d 1124, ¶ 7, citing App.R. 26(A)(2)(a) and McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, ¶ 10. The purpo se of en banc proceedings is to resolve intradistrict conflicts of law, i.e., conflicts that arise within a district, and “promotes uniformity and predictability in the la w, and a larger appellate panel provides the best possible means of resolution.” Id. {¶ 133} “Courts of appeals have discretion to determine whether an intr adistrict conflict exists. * * * An abuse-of-discretion standard applies to decisions on whether to grant en banc proceedings.” McFadden v. Cleveland State Univ. , 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, ¶ 19. {¶ 134} For the foregoing reasons I respectfully dissent and would deny appellant’s application for reconsideration because it does not call to our attention an

obvious error or raise an issue for consideration that was not considered when it should have been. Further, because of the new majority’s decision gra nting reconsideration, I find it is within this court’s discretion to grant appellant’s application for en banc

consideration to resolve an intradistrict conflict.

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.