Window company sues former subcontractor for starting similar business

By Chris Dickerson | Jun 5, 2008

WINFIELD – A St. Albans-based company claims a former subcontractor violated agreements when he started a similar business.

Hanshaw Enterprises Inc, doing business as Window World of Kanawha, filed the suit May 30 in Putnam Circuit Court against Window Depot USA TriState/WV LLC and Marc Sisser.

Window World, among other things, sells and installs replacement windows. It is suing Window Depot and Sisser collectively for breaking an Independent Contractor Agreement and to keep it from hiring, soliciting or encouraging employees and contractors to leave Window World.

In the complaint, filed by Charleston attorney Carl J. Roncaglione Jr., Sisser entered into a written Independent Contractor Agreement with Window World on Jan. 2, 2007. The agreement said he would sell and install replacement windows, doors, siding, sunrooms and trim for Window World and report directly to Window World and to fulfill any other duties reasonably requested by Window World.

By signing the agreement, Window World says Sisser was "exposed to and gained access to Window World's confidential, proprietary and trade secret information, including but not limited to all of Window World's materials, manuals, goods, installation and marketing methods, programs, customer lists, and monetary and marketing data, including payroll, employees, and employment practices, which defendants agreed were 'confidential in nature.'"

The agreement also said that for six months after termination, defendants "shall not, directly or indirectly, hire, solicit or encourage to leave the Company's employment, any employee, consultant or contractor … or hire any such employee, consultant or contractor who had left (Window World's) employment or contractual engagement within one year."

It also said Window World would be entitled to injunctive and other relief if defendants did breach the contract.

Window World says that on April 3, 2008, Sisser incorporated Window Depot to compete directly and indirectly with Window World and also conspired to, tried to and did hire Window World sales associates and subcontractors and the former office manager.

"The immediate and irreparable harm caused by defendants, on balance, tips decidedly in favor of estopping and enjoining the defendants temporarily, preliminarily and permanently for a true uninterrupted period of six months following any termination of defendant Sisser, from committing, or failing to commit, any acts or omissions to violate and breach the parties' Independent Contractor Agreement," the complaint states.

Window World also claims the defendants "tortiously interfered with Window World's legitimate business and contractual expectations, interests and relations and engaged in unfair competition and deceptive trade practices, infringing on, stealing, misappropriating and interfering with Window World's legitimate and specific business interests, property, contracts, practices, interests, relations and reputation in the business of selling and installing replacement windows, doors, siding, sunrooms and trim in the relevant market, without excuse or justification."

It says Sisser "gained an unfair competitive advantage" through deception, fraudulent practices in employment and misappropriation of Window World's proprietary trade secret and commercial information and systems."

The plaintiff also says Sisser owes Window World the duty of good faith and fair dealing after signing the Independent Contractor Agreement. Otherwise, the complaint says, Sisser "would not have gained access to and been exposed to Window World's 'unique, unusual and extraordinary' proprietary, trade secret and commercial information, processes, programs, operations, marketing information, lists and products, employees, consultants, contractors, practices and customer lists."

Window World seeks judgment against the defendants in an amount to fully and fairly compensate it for the defendants' breach of contract and other duties owed, fraud and deceit, unfair trade practices and tortious interference. It also seeks punitive and exemplary damages to deter Sisser and Window Depot and others from engaging in such conduct.

Window World also seeks a temporary restraining order and a preliminary and permanent injunction to keep the defendants from committing such further acts. The plaintiff also seeks an order enforcing the Independent Contractor Agreement.

In addition, Window World wants Sisser and Window Depot to provide an accounting of all gains, revenue, profits, customers, contracts and advantages derived and received by violating the parties' confidentiality clause.

Window World also seeks attorney fees, court costs, pre- and post-judgment interest and other relief.

The case has been assigned to Circuit Judge Ed Eagloski.

Putnam Circuit Court case number: 08-C-175

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