Brass Metal Products, Inc. v. E-J Enterprises Inc.

GRAEFF, Judge. This appeal arises from a dispute between appellant, Brass Metal Products, Inc. (“Brass Metal”), and appellees, E-J Enterprises, Inc. (“E-J Enterprises”) and its President, Eric Johnson. E-J Enterprises, a wholesale metal distributor, entered into an agreement with Brass Metal to provide “just-in-time” inventory services, which entailed purchasing aluminum railings directly from aluminum extrusion mills, storing these railings, and selling them to Brass Metal as needed. The railings were designed by Brass Metal’s owner and President, James Burger, but Mr. Burger did not patent his railing designs.

In April 2006, E-J Enterprises sold railings that were being held for Brass Metal to another company, Parthenon Installations (“Parthenon”). Thomas Martin, a Brass Metal salesman, owned a majority interest in Parthenon. In July 2006, when Mr. Burger discovered that Parthenon had established a manufacturing facility that was a “duplicate” of his facility, ³¹⁹ Mr. Burger fired Mr. Martin. Mr. Burger then requested that E-J Enterprises stop selling railings based on Mr. Burger’s design to Parthenon.

E-J Enterprises declined Mr. Burger’s request. In October 2006, Brass Metal filed a complaint in the Circuit Court for Howard County against E-J Enterprises, Mr. Johnson, Parthenon, Mr. Martin, and Anastasios Pantoulis, part-owner of Parthenon, requesting injunctive relief and damages. Prior to trial, Brass Metal settled with Parthenon, Mr. Martin, and Mr. Pantoulis, and they were dismissed from the case. Trial proceeded against E-J Enterprises and Mr. Johnson.

On August 22, 2008, after six days of trial, at the close of Brass Metal’s case, the circuit court granted appellees’ motion for judgment. Brass Metal appealed. It presents five questions for our review, which we have reorganized and rephrased: 1. Did the circuit court err in granting appellees’ motion for judgment on Count I, conversion? 2.

Did the circuit court err in granting judgment on count II, tortious interference with contract, on the ground that there was insufficient evidence to present to the jury regarding damages or the existence of contracts with third parties? 3. Did the circuit court err in granting appellees’ motion for judgment on counts IV, V, VII, VIII, and IX, which asserted claims for injurious falsehood, civil conspiracy, false representations, non-disclosure or concealment, and constructive fraud and misrepresentation? 4. Did the circuit court err in precluding Brass Metal from using the term “trade secret” in front of the jury and in finding that the Maryland Uniform Trade Secret Act (“MUTSA”) preempted a common law claim for misappropriation of trade secrets? 5. Did the court err in excluding from evidence: (1) two depositions; and (2) a non-disclosure agreement between Mr. Martin and Mr. Burger? ³²⁰ For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND Brass Metal is a manufacturer and distributor of aluminum railing products. Mr. Burger, President of Brass Metal, testified that he designed several aluminum railings for his company to sell. The railing system had interchangeable caps, which were named the Jersey Cap, the Senate Cap, the Waverly Cap, the Snap Cap, the Top Rail Cap, the Winchester Cap, the Maryland Cap, and the Slimline Cap, and each had a different shape and design. No patent was obtained for the designs of these aluminum railings.

There was testimony that the shapes of at least some of these railings were similar to others in the aluminum industry. Brass Metal purchased its aluminum railings from four different mills: Tifton; Loxcreen; Bonnell; and Pennex. The mills created Mr. Burger’s aluminum railings using an extrusion process. Brass Metal described this process as making “a shape by forcing the metal through a die or mold to give the railing its specific design.” 1 A die is a tool or device “for imparting a desired shape, form, or finish to a material.” Webster’s Third New International Dictionary, Unabridged 628 (2002).

Mr. Burger testified that, per his agreements with the mills, Brass Metal was the only company that was allowed to “ran the material” from his dies, and “if [he] wanted anybody else to have access to that material, [he] would have to give written permission ... to allow [the mills] to take materials of those d[ies] and shapes.” 2 Once a die was created, the mill retained ³²¹ possession of the die. Mr. Burger testified that he chose these mills because he received assurances that his “designs were going to be protected, and the designs and profiles were not going to be copied or distributed anywhere else.” In 1999, Mr. Martin contacted Mr. Burger to discuss the possibility of purchasing Brass Metal and operating the business. Mr. Burger was concerned that Mr. Martin lacked the money to purchase the business and the necessary experience in the industry. Mr. Burger and Mr. Martin agreed that Mr. Burger would train Mr. Martin, which he did for approximately a year and a half, during which time Mr. Martin was not paid.

In March or April 2001, Mr. Burger formally hired Mr. Martin as a salesperson for Brass Metal. Mr. Burger initially paid Mr. Martin through his company, Thomas Martin & Associates, $5,000 per month. This was subsequently increased in 2002 to $8,000 per month. Brass Metal did not provide Mr. Martin with any employment benefits.

During the time that Mr. Martin worked for Brass Metal, he also worked for three other companies. In 2001, Mr. Martin’s son-in-law, Mr. Pantoulis, created Parthenon Installations, a company that provided installation services for Brass Metal’s clients. Because Brass Metal did not provide installation services, Brass Metal would direct customers who requested installation services to Parthenon or one of the other two companies that performed installation work for Brass Metal. The companies that provided installation services for Brass Metal would install the railings and, once the companies received payment from the customer, they would pay Brass Metal for the railings.

If a customer wanted to purchase the railings without installation services, it would purchase the railings directly from Brass Metal. ³²² Mr. Burger had been purchasing general materials for the railings from E-J Enterprises beginning in 1986 or 1987. In 2002, E-J Enterprises and Brass Metal agreed that E-J Enterprises would provide “just-in-time” inventory services for Brass Metal. E-J Enterprises became the exclusive supplier for Brass Metal’s products, which involved ordering Brass Metal’s products from various mills, stockpiling the railings, and supplying the material to Brass Metal as needed. Pursuant to this agreement, Brass Metal was required to pay E-J Enterprises for the inventory within 30 days of delivery to Brass Metal.

Mr. Burger sent letters to Bonnell, Loxcreen, and Pennex authorizing these mills to sell E-J Enterprises’ railings based on the dies created for Mr. Burger’s designs. 3 Mr. Burger testified that he advised E-J Enterprises that he would “buy all the dies that [E-J Enterprises] would need for [his] usage so [he] could keep control.” In 2003, Mr. Martin and Mr. Pantoulis met with Mr. Burger to revisit the issue of purchasing Brass Metal. Mr. Burger did not agree to sell the business to Mr. Martin. In 2004, Mr. Martin purchased a 60 percent interest in Parthenon. Mr. Martin did not advise Mr. Burger that he purchased a controlling interest in this company.

In 2005, Mr. Martin visited E-J Enterprises’ offices and advised Mr. Johnson that “he was planning to build a manufacturing facility to manufacture railing,” and “he would like for E-J to do for his company what they did for Brass Metal Products.” Mr. Johnson testified that, initially, he declined Mr. Martin’s offer, and he instructed his wife, who was E-J’s contact with Brass Metal, to advise Mr. Burger about Mr. Martin’s proposal. In March 2006, Mr. Johnson reconsidered his earlier decision and decided to supply Parthenon with aluminum railings. Mr. Martin provided E-J Enterprises with drawings for the ³²³ railings. E-J Enterprises determined that, once Parthenon paid for the rights to a die that was identical to that used to make the designs sold by Brass Metal, E-J Enterprises could immediately sell the identical railings in its inventory to Parthenon, as long as it could supply Brass Metal with the inventory it needed.

E-J Enterprises provided an invoice to Parthenon, which included a “die service charge.” After Parthenon paid the invoice, in April 2006, E-J Enterprises began to supply Parthenon with railings from its inventory. In July 2006, Mr. Burger required that Parthenon purchase railings on a cash on delivery basis. Parthenon was not paying Brass Metal for the materials it installed in 30 days, as agreed. Rather, it was waiting to pay until 120 to 150 days after completing the work.

After Parthenon was “put on a COD” status, it did not purchase any more railings from Brass Metal. That same month, Mr. Burger learned that Mr. Martin and Parthenon had set up a “separate operation” to manufacture railings. Mr. Burger went to the address, and he discovered a “duplicate of [his] operation,” which he described as six people “cutting, punching, welding ... and powder coating, and all ... [his] shapes were sitting there on the racks.” After he discovered this facility, Mr. Burger terminated Mr. Martin’s employment as a salesman with Brass Metal. Mr. Burger called Mr. Johnson to learn “how Tom had gotten my materials.” Mr. Johnson advised Mr. Burger that he had sold Parthenon the materials.

Mrs. Johnson subsequently asked if she and her husband could go to dinner with Mr. Burger and his wife to talk about the situation. On July 21, 2006, Mr. Burger and his wife met for dinner with Mr. and Mrs. Johnson to discuss the business relationship between Brass Metal and E-J Enterprises. Mr. Burger was upset that E-J Enterprises was supplying Mr. Martin’s company with what he believed to be his railings, based on the shapes designed by him. He asked Mr. Johnson to stop selling aluminum railings to Mr. Martin, but Mr. Johnson refused. ³²⁴ In a letter dated August 30, 2006, Mr. Burger advised Pennex that it “revoke[d] the right” of E-J Enterprises to “order material” from his dies.

Mr. Burger further advised that “[duplication of these shapes by E-J or anyone else would constitute infringement of our proprietary products.” Mr. Burger similarly advised Pennex that E-J Enterprises was no longer permitted to purchase material based on Mr. Burger’s designs. On October 19, 2006, Brass Metal filed a complaint in the Circuit Court for Howard County against E-J Enterprises, Parthenon, Mr. Martin, Mr. Johnson, and Mr. Pantoulis. Brass Metal alleged the following claims: (1) breach of employment contract/obligation; (2) civil conspiracy; (3) breach of employment obligation; and (4) injunctive relief. 4 On January 23, 2007, Brass Metal filed a first amended complaint, which did not reference the initial complaint. 5 Count I alleged that the defendants converted Brass Metal’s “trade secrets, confidential information, unique dies, Product, customers and contracts[.]” Count II alleged that the defendants “deliberately interfered with/or converted several contracts of Plaintiff, including a lucrative NV Homes contract, for their sole benefit and to cause injury to Plaintiff____” Count III alleged that the defendants “interfered with the economic relationships” of Brass Metal “by both interfering with contracts” and “by working with suppliers and extruders, wrongfully using Plaintiff’s trade secrets, confidential information, dies, designs and business acronym (ACRS) to deceive said entities into believing that Architectural Columns and Rails Systems (ACRS), owned by Defendant Parthenon, was ³²⁵ in fact Advanced Columns and Rails Systems (ACRS).” 6 Count IV alleged that the defendants engaged in “injurious falsehood” when they “falsely represented to customers, suppliers and extruders” that Brass Metal’s “proprietary dies, designs and railings ... were properly available to Defendants for sale[.]” Count V alleged that the defendants engaged in a civil conspiracy to interfere with and convert Brass Metal’s property, which involved “deceiving customers and suppliers regarding the ownership of trade secrets, confidential information, dies, Product and contracts.... ” Count VI alleged that the defendants knowingly made “false representations” with the intent “that Plaintiff would act in reliance on said false representations[.]” Count VII alleged that the defendants made false representations and “intentionally created in the mind of customers, suppliers and extruders untrue and misleading material facts,” which included “the representation [that] the Defendants were rightfully entitled to trade secrets, confidential information, dies, designs, products, acronym, and contracts which belonged to Plaintiff.” Count VIII alleged that the defendants “deceived Plaintiff by intentionally concealing and/or not disclosing to Plaintiff’ that the defendants “were planning to use Plaintiffs trade secrets, confidential information, proprietary dies, designs, acronym and Product to compete with Plaintiff and to wrongfully convert his contracts and customers for their own benefit[.]” Count IX alleged that the defendants engaged in constructive fraud when they “breached a legal and/or equitable duty owned to Plaintiff to avoid converting Plaintiffs property and customers fraudulentlyf.]” Count X requested an injunction because “Defendants continue to illegally use his trade secrets, confidential information, designs, Product and proprietary dies in their business.” Count XI alleged that Mr. Martin breached his employment contract when he converted Brass Metal’s “contracts and customers for his own benefit.” Count XII alleged that Mr. Martin breached a fiduciary duty that he ³²⁶ owed to Brass Metal when he “stole the Product and Product Methodology of Plaintiff in order to compete against Plaintiff.” Brass Metal requested, among other things, $500,000 in compensatory damages, $1,500,000 in punitive damages, and an injunction against the defendants. Brass Metal filed subsequent amended complaints, but both parties assert that the first amended complaint “is the operative complaint” on appeal. 7 On February 8, 2007, Mr. Johnson and E-J Enterprises filed a motion to dismiss Brass Metal’s first amended complaint.

The court denied this motion. On March 23, 2007, after a hearing, Brass Metal voluntarily dismissed count VI, “overt, false representations,” from the first amended complaint. On January 17, 2008, Brass Metal dismissed Parthenon, Mr. Martin, and Mr. Pantoulis as parties to the lawsuit. On February 21, 2008, E-J Enterprises and Mr. Johnson filed cross-claims against Parthenon, Mr. Martin, and Mr. Pantoulis, alleging claims for indemnification and contribution.

Parthenon, Mr. Martin, and Mr. Pantoulis filed a motion to strike the cross-claims, arguing that they were not filed within 30 ³²⁷ days of E-J Enterprises’ answer and that “the Dismissed Defendants have been prejudiced by the Remaining Defendants’ failure to assert their cross-claim[s] until after they had reached a settlement with the Plaintiff.” The court granted the motion to strike the cross-claims. On June 11, 2008, E-J Enterprises filed a motion for summary judgment. The court expressed doubt whether Brass Metal’s evidence ultimately would persuade the jury, but it granted summary judgment only on counts eleven and twelve, which alleged claims solely against Mr. Martin. The court denied the motion on the other counts.

On August 8, 2008, appellees filed a motion in limine, requesting that Brass Metal be prohibited from arguing that appellees violated trade secrets laws: Brass Metal Products has stated in discovery that it intends to argue at trial that E-J Enterprises violated the Maryland Uniform Trade Secrets Act [MUTSA] [8] and or common law trade secrets laws. However, Brass Metal Products has never alleged a claim against E-J Enterprises under [MUT-SA] or common law trade secrets laws. The First Amended Complaint, the operative Complaint in this case, clearly does not allege a cause of action under [MUTSA] or common law trade secrets law.... Any attempt by Brass Metal Products to argue such claims at trial in this case would unduly prejudice E-J Enterprises, because such claims have not been pled, and would simply serve to confuse the jury as to the claims alleged and in dispute.

Therefore, Brass Metal Products must be prohibited from arguing any claims or causes of action under [MUTSA] or common law trade secrets at trial____ Brass Metal did not file any response to the motion. On August 11, 2008, prior to trial, the court heard argument on the motion. Initially, Brass Metal stated that “there is nothing in the [MUTSA] that says the Act must be specifical ³²⁸ ly” pled. When asked by the court how the determination of whether shapes or customer lists are trade secrets was relevant to the causes of actions that Brass Metal pled, Brass Metal argued that “trade secrets, under the Act, and in our case, is a lot broader; a lot broader.” Counsel stated that pricing information, cost information, and the manufacturing process were duplicated and misappropriated.

The court then asked why Brass Metal thought it was “appropriate for [its] witnesses to draw the legal conclusions that these were trade secrets.” Brass Metal expressly stated that using the term “trade secret” was not material to its case: “whether or not we actually use the actual words [trade secrets] ... is not important to us.” Brass Metal continued: [W]e’re not going to make any conclusions of law; we’re going to present the evidence. And we’re going to show them—tell them the story of what happened, and then ... the jury has to decide, well, do we think that fits the definition? And do we think that fits some of the common law precedents that are still in place? Do we think that fits what the Act says?

That’s all we’re trying to do. We don’t even need to use the word[s], Your Honor. Brass Metal then argued that, when the General Assembly enacted the MUTSA, “it broadened the availability of trade secrets.” Brass Metal explained that “we are not preempted from suing under the common law” for misappropriation of trade secrets. Appellees argued that Brass Metal should be precluded from arguing any claims regarding trade secrets because it had not asserted such a cause of action in its complaint.

Appellees further argued: The Plaintiffs secrets are attached to his—to all of his motions. There’s nothing secret about it. The Plaintiffs secrets, Your Honor, are all these drawings that he has exposed to the world. The Plaintiffs secrets, Your Honor, are the things that he has allowed the Martin parties, [] Parthenon, to use, based on that agreement, that settlement agreement that we talked about in court on Friday.

You ³²⁹ can’t have a trade secret when you’re allowing other parties to use it; when you’ve blessed it. And that’s what he has done, and now he wants to come back and say, “I want—and I don’t have to use the term ‘trade secret’ in front of a jury, but I want the jury to consider this a trade secret.” Well, fundamentally, it fails based upon his own pleadings. The court granted the motion in limine: “I’ll direct that the Plaintiff is not permitted to refer to anything in this matter before the jury as a trade secret.” The court stated that it would “deal with the specific issue of whether or not an instruction will be given at the end of the trial, but it’s difficult to see how it would be given.” Trial commenced on August 11, 2008. James Burger, the President of Brass Metal, testified that, when he entered into the inventory agreement with E-J Enterprises, they verbally agreed that Mr. Burger would retain control of the dies and shapes that he designed.

Mr. Burger acknowledged that he did not obtain patents on the designs of his railings. He further acknowledged that, in his deposition testimony, he stated that he did not pursue obtaining a patent because it was “ ‘very easy ... to design the system.’ ” Mr. Burger denied encouraging employees with E-J Enterprises, including Eric Johnson, to sell railings based on his designs. In January 2006, Mr. Johnson advised Mr. Burger that Mr. Martin had a “slick operation,” and that Mr. Johnson had a “hunch” that Mr. Martin intended to compete with Brass Metal. In March 2006, Mr. Johnson again advised Mr. Burger that Mr. Martin would compete with Brass Metal. 9 Mr. Burger, however, was not aware that Mr. Martin had acquired “manufacturing equipment.” On July 21, 2006, Mr. Burger and his wife had dinner with Mr. Johnson and Mr. Johnson’s wife.

Mr. Burger had learned that E-J Enterprises was selling Brass Metal’s aluminum ³³⁰ railings to Mr. Martin and Parthenon, and he demanded that E-J Enterprises stop those sales. Mr. Johnson refused. When Mr. Burger asked Mr. Johnson why Mr. Johnson did not inform him that Mr. Johnson was selling his railings to Mr. Martin, Mr. Johnson responded that he “was respecting [Mr. Martin’s] privacy as a customer.” Nancy Kenealey, Mr. Burger’s wife, testified that, following the dinner, her husband stated that his employee, Frank Haas, had warned him about Mr. Martin competing with his company. Mr. Johnson, the President of E-J Enterprises, testified that E-J Enterprises was a wholesale metal distributor, which bought materials from manufacturers and distributed them to people who wanted the materials.

From March 2006 to July 2006, his company provided “just-in-time inventory” services for Brass Metal and Parthenon. E-J Enterprises provided identical aluminum railings, based on Brass Metal’s designs, to both companies from the same dies. Mr. Johnson explained that it was his company’s policy that, “if you pay for a die, that material that comes from that die belongs to you.” He testified, however, that Mr. Burger requested that E-J Enterprises sell railings to other manufacturers based on his designs in order to lower his costs, and it was only after Mr. Burger made this request that E-J Enterprises “tried to sell his stuff.” 10 Although Mr. Johnson did not specifically ask for Brass Metal’s permission to sell to Mr. Martin and Parthenon, he did notify Mr. Burger that Mr. Martin was building a manufacturing facility to compete with Brass Metal. Mr. Johnson confirmed that, at the July 2006 dinner meeting, Mr. Burger requested that E-J Enterprises stop selling aluminum to Mr. Martin.

Mr. Johnson testified that he responded: “You told me to sell it, Jim. You told me to sell.” Mr. Burger responded, “[w]ell if I did, I don’t want you to do it anymore.” Mr. Burger further requested that Mr. Johnson wait until Mr.- Martin requested additional railings and inform him that he could not order material from the dies. Mr. ³³¹ Burger believed that, by the time Mr. Martin had new dies built, “his customers [would] have gotten tired of his nonperformance and he [would] be out of business.” Mr. Johnson did not agree to Mr. Burger’s request to stop selling to Mr. Martin. Sharon Ann Johnson, Mr. Johnson’s wife and a sales person at E-J Enterprises, testified that she was responsible for the Brass Metal account.

In 1999 or 2000, she contacted Mr. Burger and proposed that E-J Enterprises provide Brass Metal with “just-in-time” inventory services. Rather than Brass Metal purchasing railings directly from a mill, which had to be paid for within 30 days and created storage problems for Brass Metal, E-J Enterprises would store 30 to 60 days “worth of material” for Brass Metal and release it to Brass Metal as needed. Brass Metal still had to pay for the material within 30 days of receiving it, but Brass Metal could purchase a smaller number of railings than if it purchased directly from a mill. Brass Metal’s predictions regarding its need for railings eventually became “lopsided,” however, and E-J Enterprises accumulated a significant amount of railings in stock, which for certain railing designs resulted in a two year supply instead of a supply for 30 to 60 days.

Ms. Johnson testified that in 2003 Mr. Burger gave E-J Enterprises permission to sell the railings he designed on the “open market.” By selling more railings based on Mr. Burger’s designs, E-J Enterprises could lower Mr. Burger’s costs. Ms. Johnson explained the agreement: E.J. Enterprises had no restrictions on selling material of the d[i]es to any customer. And, Mr. Burger wanted, he said a royalty for selling his d[i]es, and we said we will get you a better price. That is how we are going to lower your cost is to get you a better price on the material. ... and that is how we are going to do it, by selling it to other customers, turning the inventory, getting a lower cost, and providing you with a better price.

Ms. Johnson testified that Mr. Burger gave her sample railings to provide to E-J Enterprises’ “outside salespeople” so ³³² that they could take the samples “to [their] customers to show them the product that he wanted [E-J Enterprises] to sell.” Ms. Johnson then provided the samples to E-J Enterprises’ sales representatives to sell to companies identified by Mr. Burger. Frank Haas, Shop Foreman with Brass Metal, testified that he had worked for Mr. Burger for 24 years, and Mr. Burger designed railing shapes sold by Brass Metal. Mr. Haas testified that he had seen some similar shapes, but not the Slimline Cap. Between 2004 and 2006, Mr. Haas warned Mr. Burger “a couple of times” that Parthenon “would possibly” compete with Brass Metal.

William Polhamus, Sales Manager with E-J Enterprises, testified that, on January 15, 2006, Mr. Martin sent E-J Enterprises five or six drawings of aluminum railing parts. Mr. Polhamus forwarded the drawings to Pennex, which sent back architectural drawings and the price to buy “the die or the rights to the die.” On April 17, 2006, Mr. Martin approved the final drawings from the mill. Soon after, Mr. Polhamus discovered that the parts Mr. Martin requested were identical to the railings that E-J Enterprises was holding in its inventory for Brass Metal. This presented an “ethical question” for Mr. Polhamus, i.e., “selling a die that Mr. Burger had rights to, to someone else.” Mr. Polhamus was told by Mr. Johnson, however, that E-J Enterprises had permission to sell the products it was holding for Brass Metal to other people “to gain a price advantage from mills, because [they would] be buying bigger tonnage.” E-J Enterprises eventually “concluded that if we had drawings ... we could send them out, get a price on them, present the price to Mr. Martin at Parthenon, and have him agree to buy [the rights to those dies].” It determined that, once Parthenon paid for the rights to a die that was identical to that used to make the designs sold by Brass Metal, E-J Enterprises could immediately sell the identical railings in its inventory to Parthenon, as long as it could supply Brass Metal ³³³ with the inventory it needed.

This arrangement eliminated the need for E-J Enterprises to store double inventory. E-J Enterprises provided an invoice to Parthenon, which included a charge to pay for the rights for the die. After Parthenon paid the invoice, E-J Enterprises had Pennex create the dies, but E-J Enterprises immediately began to supply Parthenon with the railings from its inventory. Thomas Martin testified that he was “an independent manufacturer’s agent.” In 2000, Mr. Martin, through his company Thomas Martin & Associates, entered into an agreement with Mr. Burger. 11 He would work as an independent contractor on sales and marketing, and any profits that he earned would go toward purchasing Brass Metal.

This work entailed finding customers, quoting material, securing contracts, and following “it through to final execution.” In December 2003, Mr. Burger advised that he would not sell Brass Metal to Mr. Martin. Mr. Burger encouraged Mr. Martin to go into business with his son-in-law, Mr. Pantoulis, the owner of Parthenon. In February 2004, Mr. Martin purchased a 60% ownership interest in Parthenon. Parthenon installed Brass Metal’s railings until August 2006, when Mr. Burger required that Parthenon pay for railings on a cash on delivery basis.

Parthenon did not “have the cash available” to purchase the railings thirty days to four months in advance of payment from the customer. Mr. Martin testified that, prior to purchasing railings from E-J Enterprises, he was assured by E-J Enterprises that Mr. Johnson had contacted an attorney and there would not be a problem using Brass Metal’s shapes or dies. Mr. Martin acknowledged that he never advised Mr. Burger that he had purchased a ³³⁴ 60% interest in Parthenon, or that he purchased aluminum railings from E-J Enterprises. J. Jeffrey Jaros, an employee with Architectural Trim Products, testified that his company provides “metal architectural trim for companies that are building buildings.” Mr. Jaros submitted a bid on a high-rise condominium project in Washington, D.C. for the “Palantine,” and, in compiling this bid, he contacted Brass Metal to obtain an estimate on railings.

Mr. Burger provided him with an estimate on the materials, and he referred Mr. Jaros to Mr. Martin to obtain an estimate on installation. Mr. Jaros provided Mr. Martin with all the information relating to this bid. Mr. Jaros, however, did not receive the contract. He did not know who received the contract, or why his bid was unsuccessful.

William Carter, Purchasing Supervisor with E-J Enterprises, testified that he was responsible for replenishing inventory to ensure that E-J Enterprises had its product in stock for its customers, including Brass Metal. One area of E-J Enterprises warehouse was referred to as “Burger Bay” because “a number of the extrusions” that were purchased for Brass Metal “were stored in that area.” Mr. Carter recalled that he received an e-mail from another employee at E-J Enterprises indicating that the “New Jersey,” one of Brass Metal’s shapes, was the same as “Pinnacle,” one of Parthenon’s shapes. Barbara Cooper, Inside Sales Supervisor for E-J Enterprises, testified that she received and entered the orders for aluminum railings from Brass Metal. Ms. Cooper testified that Mr. Burger had advised her that he wanted E-J Enterprises to sell railings based on his designs to other customers so that E-J Enterprises could pass on “better pricing” to him.

From 2004 to 2006, E-J Enterprises sold railings made from Brass Metal’s designs to customers other than Parthenon. Brass Metal received preferential pricing. When Brass Metal placed an order, E-J Enterprises billed Brass Metal $.20 per pound over cost. E-J Enterprises billed other purchasers “[substantially more” than that. ³³⁵ Rick Ferri, Vice President and General Manager of Contract Hardware, Inc., testified that in 2005 he submitted a bid to a general contractor for a project called Senate Square Towers in Washington, D.C. In assembling his bid, he contacted Brass Metal to obtain an estimate for railings.

Mr. Ferri was notified in the Spring of 2006 that he lost the portion of the bid with respect to providing aluminum railings. Mr. Ferri subsequently saw “installers that had used to work” for Brass Metal installing railings, which included Mr. Pantoulis. Mr. Ferri, however, did not know the price of the winning bid. Bruce O’Heir, a certified public accountant, testified as an expert in business valuation.

He testified that, based on the information provided by Mr. Burger regarding contracts that Brass Metal did not receive, Brass Metal lost revenue of $1,876,347. Timothy Gettings, Mr. Burger’s cousin, worked as a salesperson with Pennex Aluminum Company, an independent aluminum extrusion company, from 1985 to 2005. Mr. Get-tings testified that it was Pennex’s policy not to reproduce an identical customer part that it had already created for another customer. Mr. Gettings explained that, when a customer submitted a drawing for custom aluminum extrusion, Pennex would determine whether the custom part could be produced in the factory according to the drawing.

Next, it would go through a “d[ie] review” to determine whether the part “already existed within the Pennex organization.” If Pennex determined that an identical die already existed, Mr. Gettings would contact the customer and advise the customer that Pennex could not create that part. The customer would then have to “either redesign the part, or they would have to obtain written consent from the other customer!.]” He acknowledged, however, that Pennex had in excess of 10,000 custom designs, and it was difficult to monitor. With respect to the ownership rights to the dies, Mr. Gettings testified that, if the customer paid for the die, “they owned that steel that that profile was eut[.]” If Pennex paid ³³⁶ for the die, Pennex “owned the steel [and] the customer owned the rights to [Pennex] putting that in our equipment and producing a part from it.” If a customer had paid for a die and decided to no longer conduct business with Pennex, Pennex “would put those d[ies] on a pallet, a skid, and ship them back to [the customer].” If, however, a customer decided to no longer conduct business with Pennex, and Pennex had paid for the die, the die would stay at Pennex’s factory and, “[a]fter a number of years of inactivity, [Pennex] would sell it off for scrap value to a scrap dealer.” Pennex would not use the die and extrude products for other customers. At the end of Brass Metal’s case, appellees moved for judgment.

The court granted the motion. It stated as an initial matter: We have to keep in mind throughout everything I say, that there is no breach of contract action here. There has been testimony that there was an agreement of types between the parties. There is [a] difference as to the terms of the agreements or whether or not it was modified, but there is no breach of contract action.

The court went on to find that the shape and design of Brass Metal’s railings were not “protected property,” and it addressed the deficiency in proof with respect to each count. At the conclusion of the hearing, the court made two additional findings: Let me state a couple of separate things, so everything is complete for the inevitable appeal. As to Eric Johnson, individually, had I denied the motion with one or more of the counts to E.J. Enterprises, I would have granted the motion with respect to Eric Johnson individually, because no matter what you view this E.J. as having done, I do not believe that the evidence has been sufficient to charge Mr. Johnson individually with that conduct. I would also note, I asked early on in this case as to who is the plaintiff, and are—is the plaintiff Brass Metals Enterprises, Inc.?

And, I was told ... the company was the plaintiff, not the individual Mr. Burger. And I noted in ³³⁷ several places in my notes, that which Mr. Lynch verbalized in the end, that Mr. Burger’s testimony was entirely this was my design, this—his outrage over his artwork being taken was ... palpable.... And, granted, he testified as to he, in essence being Brass Metal’s Products, and having one, one employee. However the real question is, whether or not that is sufficient to qualify as evidence of the plaintiff of record.

And, perhaps I am being overly strict, but I do not think it is. This timely appeal followed. STANDARD OF REVIEW Maryland Rule 2-519(a) provides that “[a] party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party” and the “moving party shall state with particularity all reasons why the motion should be granted.” When a defendant moves for judgment in a jury trial, “the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.” Md. Rule 2-519(b). “ ‘We review a trial court’s grant of a motion for judgment under the same analysis used by the trial court.’ ” Cont’l Cas. Co. v. Kemper Ins.

Co., 173 Md.App. 542, 546 , 920 A.2d 66 (2007) (quoting Barrett v. Nwaba, 165 Md.App. 281, 290 , 885 A.2d 392 (2005)). We “may affirm the grant of the motion for judgment only if ... we conclude that there was insufficient evidence to create a jury question.” Spengler v. Sears, 163 Md.App. 220, 235 , 878 A.2d 628 (citation omitted), cert. denied, 389 Md. 126 , 883 A.2d 915 (2005). DISCUSSION Before addressing each claim raised by Brass Metal, some general discussion of the record is warranted. Brass Metal’s claims are based upon its assertion that it entrusted E-J Enterprises with confidential dies, die drawings, die rights, metallurgical formulas, trade secrets, and confidential information.

The record, however, does not support this broad assertion. ³³⁸ Our review of the record, in the light most favorable to Brass Metal, reflects the following: (1) Brass Metal and E-J Enterprises entered into an agreement whereby E-J Enterprises would purchase railings from an aluminum extrusion mill and then supply the railings to Brass Metal as needed; (2) Brass Metal contacted mills and gave authority for E-J Enterprises to order railings from Brass Metal’s dies; and (3) Brass Metal may have given E-J Enterprises drawings of its designs to enable E-J Enterprises to order additional dies. 12 Brass Metal points to no place in the record that supports its assertion that it gave E-J Enterprises dies, metallurgical formulas, trade secrets, or other confidential information. See Van Meter v. State, 30 Md.App. 406, 408 , 352 A.2d 850 (an appellate court “cannot be expected to delve through the record to unearth factual support favorable to appellant and then seek out law to sustain his position.”), cert. denied, 278 Md. 737 (1976). With respect to the actual railings, Brass Metal contends that E-J Enterprises was not permitted to sell railings based on Brass Metal’s designs to anyone else. Mr. Johnson, however, testified to the contrary, stating that Mr. Burger requested that E-J Enterprises sell Brass Metal’s railings on the open market in order to lower his costs by enabling E-J Enterprises to order larger quantities of railings.

Whether Brass Metal could have prevailed on a breach of contract claim is unknown; no such claim was made. On the claims that Brass Metal did assert, however, we conclude that the trial court properly granted E-J Enterprises’ motion for judgment. I. Count I—Conversion Brass Metal first challenges the circuit court’s ruling granting judgment on its claim for conversion. It argues that ³³⁹ appellees were liable for the tort of conversion based on their actions in selling to “Plaintiffs competitor the dies, die rights, die drawings, and custom railings that had been entrusted to them by Plaintiff’ and in using “the special authority entrusted to them by Plaintiff to order custom railings for the same competitor.” Appellees, on the other hand, argue that “Brass Metal Products failed to introduce any evidence to support its claim of ownership over” the disputed shapes, the dies, or the inventory.

Appellees further argue that Brass Metal “failed to produce any evidence that E-J Enterprises or Mr. Johnson exercised dominion or control over any chattel belonging to Brass Metal Products that in any way interfered with Brass Metal Products’ rights.” Conversion has been defined as “ ‘any distinct act of ownership or dominion exerted by one person over the personal property of another in denial of his right or inconsistent with it.’ ” Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 261 , 841 A.2d 828 (2004) (quoting Allied Inv. Corp. v. Jasen, 354 Md. 547, 560 , 731 A.2d 957 (1999)). Thus, in order to establish a claim for conversion, the plaintiff must first demonstrate that he or she had a property interest in property that was allegedly converted. A. Die Rights Initially, we address Brass Metal’s claim that it held a property interest in the designs or shapes of the aluminum railings that it sold to E-J Enterprises.

The trial court properly rejected that argument and granted appellees’ motion for judgment on that claim. This claim asserts intangible property rights. In Allied Inv. Corp. v. Jasen, 354 Md. 547 , 731 A.2d 957 (1999), the Court of Appeals addressed whether a claim for conversion could be made for intangible property rights.

The Court stated that “[t]he original common law rule was that a claim ³⁴⁰ for conversion could not be sought unless the plaintiffs property was tangible,” but this “rule has been modified over time and certain intangible property interests may now be recovered through a conversion claim.” Id. at 560 , 731 A.2d 957 . The Court held that “the tort of conversion generally may extend to the type of intangible property rights that are merged or incorporated into a transferable document.” Id. at 562 , 731 A.2d 957 . The Court refused, however, “to extend the tort further, to cover completely intangible rights....” Id. Moreover, it held that, even when intangible property rights were merged into a document, the tort of conversion would not be extended “to situations in which the relevant document itself has not been transferred.” Id. 13 Although Brass Metal cited Allied Inv.

Corp. in its brief for the general proposition that a conversion claim exists for intangible property rights, it did not address the holding limiting such conversion claims. Brass Metal did not discuss, much less show, that the purported intellectual property rights at issue here were merged into a document that was transferred. Under these circumstances, Brass Metal’s conversion claim regarding the designs and shapes of the railings fails. We will, however, address the contentions raised by the parties.

As explained below, Brass Metal fares no better. Appellees argue that there can be no property right in the design of a product in the absence of a patent. They rely on Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 , 84 S.Ct. 784 , 11 L.Ed.2d 661 (1964). In that case, the Supreme Court stated that, when a product is unpatented and uncopyrighted, a State may not “prohibit the copying of the article itself or award damages for such copying”.

Id. at 232-33 , 84 S.Ct. 784 . Accord Miracle Boot Puller Co. v. Plastray Corp., 84 Mich. ³⁴¹ App. 118, 269 N.W.2d 496, 498 (1978) (in the absence of a patent, “an inventor has no common-law right to a monopoly of his invention. He has the right to make, use, and vend his own invention, but if he voluntarily discloses it, such as by offering it for sale, the world is free to copy and use it with impunity.”). Brass Metal does not address the Supreme Court’s decision in Sears .

Rather, it asserts that there are other ways “to protect rights in property,” such as “[cjustom, and usage in the industry” and “agreement between the parties.” This argument is unavailing. The trial court rejected the argument that Brass Metal obtained a property interest in the shapes and designs of the railings based on custom and usage. The court found that “custom and usage” was used to determine rights pursuant to a contract rather than to create “the same protections as say patented property.” The court went on to find that, even if custom and usage afforded the shapes “some protected status under the law,” there was not sufficient evidence of custom and usage in this case. The court noted that “there has been no expert testimony” on the issue, and that “universal acceptance is what has to be demonstrated____ It must be so uniform and regular that the parties concern[ed] can be presumed to have known of the custom and acted in reference to it.” The court concluded: I do not find the custom and usage has provided the shapes, or designs in this particular case with any special protections under the law.

And, I will note, that once again, there was not a contract count that has been alleged between the two of them. We agree with the trial court that Brass Metal did not obtain a property interest in the shapes and designs by custom and usage. Brass Metal cites no case holding that custom and usage in an industry can create property rights that give rise to a conversion claim. The sole case cited by Brass Metal is Jarrett v. J. Staum & Sons Co., 138 Md. 217 , 113 A. 720 (1921), but that case does not support that proposi ³⁴² tion.

Rather, it addresses the admissibility of evidence of custom and usage to interpret the terms of a contract, id. at 220-21 , 113 A. 720 , the context in which custom and usage is usually discussed. See Morris v. Ehlers, 211 Md. 23, 29 , 124 A.2d 776 (1956) (“ ‘The true test is that there must be in the contract something doubtful which can be explained by a usage or custom.... If the contract is made with reference to a usage and therefore omits the special particulars which are supplied by that usage, those particulars can be supplied by proof of the usage.’ ”) (citation omitted). Even if custom and usage could create property rights, Brass Metal failed to present sufficient evidence at trial to survive the appellees’ motion for judgment.

To establish that custom and usage creates an enforceable right, the plaintiff must prove, by clear and convincing evidence, that the custom or usage was “definite, uniform, well established, and so general that knowledge of it may be presumed____” Wathen v. Pearce, 175 Md. 651, 663 , 3 A.2d 486 (1939). Accord Eastern Assocs., Inc. v. Sarubin, 274 Md. 378, 397-98 , 336 A.2d 765 (1975) (“ ‘a custom or usage, to be valid and effective, must be actually known, generally known, or notorious.’ ”) (quoting 21 Am.Jur.2d Customs and Usages § 17 (1965)). Here, Brass Metal failed to present sufficient evidence to establish that there was a uniform, definite, and well-established custom in the aluminum extrusion industry that a person who creates a die possesses a property right in the shapes created from the die. Mr. Burger testified that the three mills that he chose, Loxcreen, Tifton, and Bonnell, gave him assurances that his “designs were going to be protected, and the designs and profiles were not going to be copied or distributed anywhere else.” Mr. Gettings, a former salesperson with Pennex, another mill, testified that Pennex would neither replicate an extrusion that it had created for another customer nor use the die to extrude products for another customer. 14 None of these witnesses, however, testified to the ³⁴³ general practice in the industry, and Brass Metal did not call any expert witnesses to testify on this issue.

Even in the light most favorable to Brass Metal, the evidence at trial merely established that four mills in the aluminum extrusion industry either recognized that a customer retained some right to the shape or design of the product it created for the customer or would agree to recognize such a right. This was insufficient to establish that this practice was “ ‘definite, uniform, well established, and so general that knowledge of it may be presumed.’ ” Wathen, 175 Md. at 663 , 3 A.2d 486 . 15 “Proof of the customs, habits or conduct of an individual is not admissible to show a general usage----” Id. at 664 , 3 A.2d 486 . Thus, Brass Metal did not establish a property right based on custom and usage. Finally, with respect to Brass Metal’s claim that intangible property rights can be created by agreement, this bald assertion is made without any citation to legal authority to support the proposition.

Accordingly, we will not address whether intangible property rights can be created by agreement. See Anderson v. Litzenberg, 115 Md.App. 549, 577-78 , 694 A.2d 150 (1997) (refusing to address argument because appellants failed to cite any legal authority to support their contention of error). In sum, there was no basis for a jury to find that Brass Metal held a property interest in the shapes and designs of its railings. Accordingly, the circuit court properly granted the motion for judgment on the conversion count with respect to the die rights.

B. Aluminum Railings We turn next to Brass Metal’s argument that it owned the aluminum railings in E-J Enterprises’ warehouse and that E ³⁴⁴ J Enterprises converted its property when it sold the railings to Parthenon. Appellees argue that this claim should be rejected for two reasons. First, it was never argued below. 16 Second, appellees contend that E-J Enterprises’ inventory was not the property of Brass Metal. Appellees argue that “Brass Metal Products had no ownership interest in any of those products until the products were delivered to Brass Metal Products and paid of[f] by Brass Metal Products.” In addressing this issue, the trial court stated: The [aluminum railings] that [were] in the Burger Bay, the materials that actually, physically sat there, [were] E.J.’s to sell as they wish.

Now, maybe they had an agreement with Mr. Burger not to do that, maybe they did not, that count is not before us. They could sell that to who they wish because the shape itself was not protected, legally protected. We agree. The evidence at trial established that E-J Enterprises purchased aluminum railings from the mill, and it stored the railings until Brass Metal requested a delivery.

Once the railings were delivered, Brass Metal was obligated to pay E-J Enterprises within 30 days. Under these circumstances, which were not disputed, E-J Enterprises owned the railings until it sold them to Brass Metal. Brass Metal contends, however, that appellees “were the bailees for hire of the custom railings.” A bailment relationship occurs when a person “with legal title to property transfers possession of it to another pursuant to a contract of bailment____” 8A Am.Jur.2d Bailments § 51 (2009). Accord Gen.

Refining Co. v. Int'l Harvester Co., Inc., 173 Md. 404, 414 , 196 A. 131 (1938). If Brass Metal had purchased the railings and contracted with E-J Enterprises to store its ³⁴⁵ inventory, there would have been a bailment. Here, however, E-J Enterprises bought the railings, and it was that company’s property until Brass Metal ordered it. Although selling the railings to other people may, or may not, have been