Active Release Techniques, LLC, a Colorado limited liability company; ART Corporate Solutions, Inc., a Colorado corporation; and ART Business Solutions, LLC, a Colorado limited liability company, Plaintiffs-Appellants,
Xtomic, LLC, a Colorado limited liability company; Select Seminar Services, LLC, a Colorado limited liability company; and Jay Ferguson, Defendants-Appellees.
County District Court No. 13CV30988 Honorable Thomas K. Kane,
AND ORDER AFFIRMED IN PART, VACATED IN PART, AND CASE
REMANDED WITH DIRECTIONS.
Hardy & Bacon, L.L.P., Richard G. Sander, Daniel E.
Rohner, Denver, Colorado, for Plaintiffs-Appellants
& Jensen LLC, Erin M. Jensen, Colorado Springs, Colorado,
1 Plaintiffs, Active Release Techniques, LLC; ART Corporate
Solutions, Inc.; and ART Business Solutions, LLC
(collectively, ART), appeal from the trial court's entry
of judgment and an award of damages in favor of defendants,
Xtomic, LLC; Select Seminar Services, LLC; and Jay Ferguson
(collectively, Xtomic). We reverse in part and remand the
case to the trial court to amend the damages award.
2 ART describes itself as a provider of "training,
seminars and business support software for chiropractor and
other health care professionals who specialize in soft tissue
treatment techniques called Active Release Techniques."
Tulio Pena was an employee of ART for several years and
worked closely with ART's founder and owner, Dr. Michael
Leahy. Mr. Pena introduced Jay Ferguson, a co-owner of
Xtomic, to Dr. Leahy. Dr. Leahy hired Xtomic to manage
ART's information technology (IT) services and provide IT
support. Xtomic also developed software programs and wrote
software code for ART.
3 Approximately ten years later, Mr. Ferguson, Mr. Pena, and
others formed Select Seminar Services, LLC (S3). S3 was
created to market seminar training for a different soft
tissue technique than that offered by ART, using software
programs that Xtomic had developed, including a program that
ART also used. When ART learned about S3, it petitioned the
court for a temporary restraining order and a preliminary
injunction. It also initiated the current litigation,
asserting claims for, inter alia, misappropriation
of trade secrets. Xtomic responded by asserting numerous
counterclaims including, as relevant here, a claim for abuse
of process. A jury ultimately decided all claims in
Xtomic's favor and awarded $1, 530, 000 in damages. ART
4 ART contends that the trial court erred by denying its
motion for a directed verdict on Xtomic's counterclaim
for abuse of process. We agree.
5 We review a trial court's decision on a motion for
directed verdict de novo. Top Rail Ranch Estates, LLC v.
Walker, 2014 COA 9, ¶ 17. A directed verdict should
only be granted in the clearest of cases. Huntoon v. TCI
Cablevision of Colo., Inc., 969 P.2d 681, 686 (Colo.
1998). In deciding whether to grant the motion, the court
should view the evidence and all reasonable inferences
arising therefrom in the light most favorable to the
nonmoving party. Huntoon, 969 P.2d at 686;
Bonidy v. Vail Valley Ctr. for Aesthetic
Dentistry, P.C., 186 P.3d 80, 82-83 (Colo.App.
2008). "If the evidence viewed in this light cannot
support a verdict in favor of the nonmoving party, the court
may grant a motion for directed verdict and the issue should
not be submitted to the jury." Bonidy, 186 P.3d
at 82 (quoting Bryant v. Cmty. Choice Credit Union,
160 P.3d 266, 271 (Colo.App. 2007)).
6 A valid abuse of process claim must allege
(1) an ulterior purpose for the use of a judicial proceeding;
(2) willful action in the use of that process which is not
proper in the regular course of the proceedings, i.e., use of
a legal proceeding in ...