Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Active Release Techniques LLC v. Xtomic LLC

Court of Appeals of Colorado, Fourth Division

February 9, 2017

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,
v.
Xtomic, LLC, a Colorado limited liability company; Select Seminar Services, LLC, a Colorado limited liability company; and Jay Ferguson, Defendants-Appellees.

         El Paso County District Court No. 13CV30988 Honorable Thomas K. Kane, Judge

         JUDGMENT AND ORDER AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.

          Shook, Hardy & Bacon, L.L.P., Richard G. Sander, Daniel E. Rohner, Denver, Colorado, for Plaintiffs-Appellants

          Howard & Jensen LLC, Erin M. Jensen, Colorado Springs, Colorado, for Defendants-Appellees

          OPINION

          ASHBY JUDGE.

         ¶ 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.

         I. Background

         ¶ 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 appeals.

         II. Directed Verdict

         ¶ 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.