Burns-Kish Funeral Homes, Inc., Thomas J. Burns, and Jean Burns (collectively “Plaintiffs”) now appeal the trial court’s denial of their Verified Application for Preliminary Injunction against Kish Funeral Homes, LLC, Kevin Kish, and Patricia Kish (collectively “Defendants”) and the appointment of a custodian over Burns-Kish pending a hearing on Patricia Kish’s Counter-Claim for Judicial Dissolution of Burns-Kish. Specifically, Plaintiffs argue that because Kevin Kish was an officer of Burns-Kish, he owed a fiduciary duty to the corporation and that he breached that duty when he made plans to open his own funeral home, Kish Funeral and Cremation Services; that the trial court erred in not considering evidence that Kish Funeral and Cremation Services would cause confusion and irreparable harm to Burns-Kish; and that the trial court erred in appointing a custodian over Burns-Kish because it cited the wrong statute.
Conclusion (slip op. at 20): The trial court did not abuse its discretion in denying Plaintiffs’ request for a preliminary injunction and properly appointed a custodian over Burns-Kish pending a hearing on Patricia’s counter-claim for judicial dissolution of Burns-Kish. Affirmed.
Key Analysis (slip op. at 13, 17, 20): As an employee, Kevin was not precluded from using information, knowledge, or skills gained during his employment with Burns-Kish and was allowed to make arrangements to compete before leaving Burns-Kish. Without an employment agreement, Kevin is free to compete with his former employer . . . The court was entitled to determine that there was no confusion, particularly because there are other funeral homes in Lake County with Burns in the name . . . The court properly appointed a custodian over Burns-Kish to preserve the corporate assets and to carry on the business . . . appointment of a custodian is especially appropriate given the evidence of Thomas’s history of making unauthorized and unequal distributions to himself.