Advanced Physical Therapy, LLC et al v. Apex Physical Therapy, LLC

Filing 206

ORDER granting 120 and 122 Defendant's motions for summary judgment on Counts I and II; denying 128 Defendant's motion to exclude expert testimony of Brittany Hopp; and denying 124 Defendant's motion for summary judgment on Count III. Signed on 11/16/2021 by District Judge Roseann Ketchmark. (Brown, Jonathan)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
ADVANCED PHYSICAL THERAPY,
LLC, ZACHARY BALL, TODD
LINEBARGER,
Plaintiffs,
v.
APEX PHYSICAL THERAPY, LLC,
Defendant.

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Case No. 6:20-cv-03043-RK

ORDER
Before the Court are Defendant Apex Physical Therapy’s motions for summary judgment
on Counts I, II, and III of Plaintiffs Advanced Physical Therapy, Zachary Ball, and Todd
Linebarger’s First Amended Complaint. (Docs. 120, 122, 124.) The motions are fully briefed.
(Docs. 121, 123, 125, 126, 143, 144, 145, 148, 159, 160, 161.) Also before the Court is
Defendant’s motion to exclude expert testimony of Brittany Hopp (Doc. 128), which is fully
briefed. (Docs. 129, 136, 153.) After careful consideration and for the reasons explained below,
it is ORDERED that: (1) Defendant’s motions for summary judgment on Counts I and II (Docs.
120, 122) are GRANTED; (2) Defendant’s motion to exclude expert testimony of Brittany Hopp
(Doc. 128) is DENIED; and (3) Defendant’s motion for summary judgment on Count III (Doc.
124) is DENIED.
Background
This is a civil action involving claims of malicious prosecution, abuse of process, and
computer tampering in violation of Missouri law. Plaintiffs Advanced Physical Therapy, LLC
(“Advanced”), Zachary Ball (“Ball”), and Todd Linebarger (“Linebarger”) bring this action
against Defendant Apex Physical Therapy, LLC (“Apex”). Plaintiffs’ malicious prosecution and
abuse of process claims stem from a 2017 lawsuit Apex filed against Plaintiffs in Illinois state
court for breach of contract and tortious interference with business expectancy, among other
claims.

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Apex is an Illinois limited liability company that runs a network of physical therapy
rehabilitation locations for various industrial clients or facilities. In December 2016, Apex had
two facilities in southwest Missouri, located in Springfield and Monett.1
Advanced, established in July 2016, is a Missouri limited liability company providing
physical therapy services in northwest Arkansas. Ball is the Chief Executive Officer and sole
owner of Advanced. Linebarger is Advanced’s Director of Business Development. Advanced
opened its first facility in Rogers, Arkansas. In December 2016 this was Advanced’s only facility,
although it has since expanded throughout the region including into southern Missouri. Ball and
Linebarger both reside in Missouri.
On April 30, 2007, Ball began working at Apex as a licensed physical therapist. Ball
worked at Apex’s Springfield location and was the regional manager for Apex’s southwestern
Missouri region (encompassing Apex’s Springfield and Monett locations). Linebarger began
working part-time at Apex’s Springfield location in January 2015 in marketing and as a technician.
Prior to joining Apex, Linebarger (who is Ball’s brother-in-law) did not have any experience in
the physical therapy industry but he did have some prior experience in marketing. (Doc. 148-14
at 4.)
On February 3, 2015, Ball signed an Employment Agreement with Apex.

The

Employment Agreement included a confidentiality provision stating, he “will not make personal
use of, nor disclose to any person or entity, any Confidential Information relating to [Apex].” The
agreement defined “Confidential Information” to mean:
Manuals, processes, methods, techniques, templates, documents, electronic files,
contracts, Referral Sources (as defined below), projected results, supplier lists
(including existing and potential supplier information), pricing, marketing,
computer programs, skills, performance specifications, technical and other data,
designs, schematics, equipment, set-up, billing, samples, products and services
information (including information regarding all existing products and services and
any future or planned products or services), financial information and results and
other information and know-how relating to or useful in the business or operations
of any of the APEX Related Parties.
The agreement also included a “Non-Solicitation of Referral Sources” provision:
For a period of two (2) years after the expiration or termination of Employee’s
employment with the Employer for any reason, and whether voluntary or
1

Illinois.

While Apex primarily has facilities in Missouri, its principal place of business is in Highland,

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involuntary and whether for cause or without cause, Employee will not, directly or
indirectly, solicit, and will not directly or indirectly contact any existing Referral
Source or identified prospective Referral Source with whom Employee has had
direct or indirect contact or about whom Employee has learned confidential
information and/or trade secrets by virtue of his/her employment with Employer,
other than Referral Sources that Employer has not had contact with within the two
(2) years immediately preceding the expiration or termination of my employment
with Employer. A “Referral Source” is a person or entity which refers or can refer
patients to Employer, such as a physician, a hospital, a physician assistant, a nurse
practitioner, a nurse case manager, or a business.
Linebarger also signed a confidentiality agreement with the same confidentiality provision as
Ball’s employment agreement. (Doc. 126-9 at 24.) Both agreements signed by Ball and
Linebarger also included a provision regarding any breach of the agreement: “In the event of my
actual or threatened breach or default of this Agreement, Employer shall be entitled to an ex parte
injunction (without notice to or service of process upon Employees) restraining Employee from
any such actual or threatened breach or default.”
Ball left Apex on August 12, 2016, followed by Linebarger five days later on August 17,
2016. Around that time, Linebarger texted an administrative assistant at Apex, saying that they
were “coming back to Springfield with a vengeance.”
From 2014 to 2017, one of Apex’s most important customers was Prime, Inc. Apex
considered Prime, a company in the trucking industry, to be a “referral source” as defined in the
Agreements. Ball and Linebarger had been Prime’s primary points of contact with Apex. While
working at Apex, Linebarger became friends with Apex’s contact at Prime, Matt Rachel.
On February 29, 2016, Prime wrote a testimonial regarding the physical therapy services
provided by Apex. This testimonial was regarded as important for Apex’s entry and expansion as
a physical therapy service provider in the trucking industry. Seven months later, in September
2016 – and just one month after Ball and Linebarger had left their employment at Apex – Apex
saw a nearly identical testimonial from Prime on Advanced’s website. Apex was concerned that
whatever interactions or communication Ball and Linebarger had with Prime could adversely
impact Apex’s relationship with the trucking company. (Doc. 126-14 at 6). And in fact, the
contract Apex then had with Prime expired on February 28, 2017, after Prime did not renew the
contract. The non-renewal letter from Prime stated that the reason for the expiration of the contract
was the company had decided to align its post-offer physical practices with its on-site doctor’s
office. (Doc. 148-2 at 19.)
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Apex also had a long-standing relationship (since 2005) with Tyson Foods’ Monett,
Missouri, facility (“Tyson-Monett”). (Doc. 126-41 at 2.) In 2011, Apex had submitted a proposal
to provide its services at Tyson Foods’ Noel, Missouri, facility (“Tyson-Noel”). 2 While he was
working at Apex, Ball was the main point of contact for Tyson as he spoke with Tyson supervisors
and visited and treated patients at the Tyson-Monett facility.
After Ball and Linebarger left Apex and opened Advanced in Arkansas, Apex learned Ball
and Linebarger had been in contact with Tyson facilities in the region. In November 2016,
Linebarger contacted the Tyson-Noel facility as well as a Tyson Foods’ facility in Berryville,
Arkansas (“Tyson-Berryville”) to discuss Advanced providing on-site physical therapy at those
locations. Ball followed up a few months later.
Following their departure from Apex, Apex learned Ball and Linebarger had opened
Advanced and had begun providing physical therapy services in northwest Arkansas and it
believed the contacts Ball and Linebarger had with Tyson and Prime after leaving Apex was to
procure business for Advanced. (Doc. 126-14 at 7, 9-10.)
Before taking legal action, Apex contacted the Tyson-Berryville facility itself. Apex had
been “looking into” and had “planned” to expand into northwest Arkansas, although at the time it
initiated a lawsuit against Plaintiffs, Apex did not have any locations in Arkansas. Apex viewed
its expansion within southwest and northwest Arkansas as a means to further serve Tyson’s
facilities beyond the Tyson-Monett facility. (Doc. 126-40 at 4.) However, Apex was not aware
of any specific examples of lost business, or that Apex had been directly damaged or injured by
Advanced, Ball, or Linebarger’s actions. (Docs. 148-12 at 20; 148-40 at 8.)
On December 16, 2016, Apex filed a five-count complaint in Illinois state court against
Ball, Linebarger, and Advanced for breach of contract, tortious interference with business
relations, and conspiracy (the “Illinois Lawsuit”). (Doc. 126-1 at 3-13.) Three days later, on
December 19, 2016, the Illinois state court issued three summonses to be served on Ball,
Linebarger, and Advanced. After a private process server was appointed on December 29, 2016,
Plaintiffs were served in Missouri on January 10, 2017. On February 7, 2017, Plaintiffs (as the
defendants in the Illinois Lawsuit) removed the case to the United States District Court for the

It is not clear in the summary judgment record what the outcome was, although it is apparent
Apex did not ever provide services to the Tyson-Noel facility.
2

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Southern District of Illinois. See Apex Physical Therapy, LLC v. Ball, No. 17-cv-00119-JPGDGW, 2017 WL 3130241 (S.D. Ill July 24, 2017).
On April 18, 2017, Ball and Linebarger filed a declaratory judgment and injunctive relief
action against Apex in Missouri state circuit court. They asked the Missouri court to declare as
invalid and unenforceable the restrictive covenants in the employee agreements they had signed
while working at Apex. The declaratory judgment action was removed to the United District Court
for the Western District of Missouri, Case No. 6:17-cv-03149-BP, and was subsequently
transferred to the Southern District of Illinois. See Advanced Physical Therapy, LLC v. Apex
Physical Therapy, LLC, 2017 WL 9717215 (W.D. Mo. July 6, 2017). On June 25, 2017, the two
cases were consolidated in the Southern District of Illinois.
On March 29, 2018, Apex amended its complaint to add additional breach of contract
claims. Six months later, on October 1, 2018, Apex caused a subpoena to be issued to Victor
Zuccarello to appear for a deposition in St. Louis, Missouri, to be conducted later the same month
on October 26, 2018. The next day, on October 2, 2018, the district court granted, in part, Ball
and Linebarger’s motion for summary judgment on their counterclaims. See Apex Physical
Therapy, 2018 WL 4737053 (S.D. Ill. Oct. 2, 2018). The court held as invalid and unenforceable
the confidentiality provision of the employment agreements and ordered that the breach of contract
claims be narrowed to “apply no longer to any alleged breaches of the aforementioned
confidentiality provisions.” Id. at *3-4.
On October 9, 2018, Apex caused an additional subpoena to be issued to the corporate
representative of a company, Avansic, for a deposition in Tulsa, Oklahoma, to be conducted on
the same day as the other scheduled depositions (October 26, 2018). Six days later, on October
15, 2018, Apex caused three subpoenas to issue to Carr Athletic Performance & Physical Therapy
and Cory and Jill Carr for a deposition in Orem, Utah, to be conducted on the same day as the
other scheduled depositions. (Advanced contends the information and discovery sought through
all of these depositions pertained only to the portion of the litigation involving the confidentiality
provision.)
On February 12, 2019, the district court granted Advanced, Ball, and Linebarger’s motion
for summary judgment as to the remaining claims. Apex Physical Therapy, 2019 WL 571031
(S.D. Ill. Feb. 12, 2019.) The court held Ball did not breach his employment contract with Apex
and “the undisputed record shows that APEX did not have a reasonable expectancy of entering
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into a valid business relationship with the Tyson Foods locations in Arkansas and Noel, Missouri.”
Id. at *4.
Plaintiffs filed the instant lawsuit against Apex in Missouri state court on January 3, 2020.
(Doc. 1-1.) Apex removed the action to this Court on February 7, 2020, based on this Court’s
diversity of citizenship jurisdiction under 28 U.S.C. §§ 1332 and 1441. (Doc. 1.) Plaintiffs filed
an Amended Complaint on March 6, 2020, asserting claims against Apex for malicious prosecution
and abuse of process regarding the Illinois Lawsuit Apex instituted against them, and a separate
claim for computer tampering in violation of Missouri law. (Doc. 16.) Apex now moves for
summary judgment on all three counts.
Standard of Review
“Summary judgment is required if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. Ins. Co. v. Great
Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (citations and quotation marks omitted). A fact
is material in this context when it “might affect the outcome of the suit under the governing law”
and a genuine dispute is one “such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A moving party is ‘entitled
to judgment as a matter of law’ if the nonmoving party fails to make a sufficient showing of an
essential element of a claim with respect to which it has the burden of proof.” Woodsmith Pub.
Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)) (other citation omitted). In ruling on a motion for summary judgment, the
Court views the evidence “in the light most favorable to the nonmoving party and giv[es] the
nonmoving party the benefit of all reasonable inferences.” Id. (quotation marks and citation
omitted). At the summary judgment stage, the movant must “support” its motion either by “citing
to particular parts of materials in the record” or by “‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp.,
477 U.S. at 325; see Fed. R. Civ. P. 56(c)(1).
In resisting summary judgment, the nonmoving party may not rest on the allegations in its
pleadings, but must, by affidavit and other evidence, set forth specific facts showing that a genuine
issue of material fact exists. Rule 56(c); see also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.
2007) (mere allegations, unsupported by specific facts or evidence beyond a nonmoving party’s
own conclusions, are insufficient to withstand a motion for summary judgment). An “adverse
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party may not rely merely on allegations or denials, but must set out specific facts – by affidavits
or other evidence – showing [a] genuine issue for trial.” Tweeton v. Frandrup, 287 F. App’x 541,
541 (8th Cir. 2008) (citing Fed. R. Civ. P. 56(e)). In so doing, the nonmoving party “cannot create
sham issues of fact in an effort to defeat summary judgment.” RSBI Aerospace, Inc. v. Affiliated
FM Ins. Co., 49 F.3d 399, 402 (8th Cir. 1995) (citation omitted).
Discussion
I.

Count I – Malicious Prosecution
In Count I of the Amended Complaint, Plaintiffs assert a claim against Apex for malicious

prosecution regarding the Illinois Lawsuit. Plaintiffs allege Apex did not have probable cause to
assert any of the three claims raised against them in the Illinois Lawsuit (breach of contract,
tortious interference, and conspiracy), that Apex brought the lawsuit with malice, and Plaintiffs
suffered damages including attorney’s fees, litigation expenses, loss of revenue and business
opportunity, among others. (Doc. 16 at 14.) Apex argues it is entitled to summary judgment
because it reasonably believed it had a basis to file the lawsuit and Plaintiffs have failed to show
they suffered special injury (as required for a malicious prosecution claim under Illinois law).
Generally, a federal court sitting in diversity jurisdiction applies the substantive law of the
forum state (here, Missouri). Chew v. Am. Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014).
Under Missouri law, a claim for malicious prosecution requires proof that: (1) an earlier suit was
commenced against the party, (2) the suit was terminated in the party’s favor, (3) the filing party
lacked probable cause for filing the suit, (4) malice in the filing party, and (5) the party sustained
damages. See, e.g., Hobbs v. Consol. Grain & Barge Co., 517 S.W.3d 7, 9-10 (Mo. Ct. App.
2016). In this context, probable cause means the filing party had a reasonable belief in both the
underlying facts and the claims asserted against the opposing party (i.e., the original defendant and
the subsequent malicious prosecution plaintiff). 3 See, e.g., Impey v. Clithero, 553 S.W.3d 344,
Both Apex and Plaintiffs rely on Missouri law regarding the probable cause element of Plaintiffs’
malicious prosecution claim (Plaintiffs after conducting a choice-of-law analysis). As Apex points out in
its motion for summary judgment, however, no conflict exists between Missouri and Illinois law as to the
probable cause element of a malicious prosecution claim. See, e.g. Davis v. World Credit Fund I, LLC, 543
F. Supp. 2d 953, 956 (N.D. Ill. 2008) (under Illinois law, “[i]n a civil malicious prosecution claim, probable
cause is defined as ‘such a state of facts as would lead a person of ordinary caution and prudence to believe
that he has a justiciable claim to prosecute against the defendant.’”) (citation omitted). Unless a “true
conflict” exists on a pertinent issue, no choice-of-law analysis is required. See Bacon v. Liberty Mut. Ins.
Co., 688 F.3d 362, 366 (8th Cir. 2012); Rangeline Capital, LLC v. Preston, No. 4:16-CV-1428-SNLJ, 2018
WL 2321097, at *3 (E.D. Mo. May 22, 2018) (because no conflict between Missouri and Tennessee law as
3

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353 (Mo. Ct. App. 2018) (probable cause to file a civil action is established if “it appears that a
reasonably prudent person would have believed and acted under the circumstances as did the
person who instigated the previous action”) (citation and quotation marks omitted); see also
Hutchison v. Texas Cty., Mo., No. 09-3018-CV-S-RED, 2010 WL 11509270, at *7 (W.D. Mo.
Dec. 1, 2010) (in a malicious prosecution action, probable cause for the initial suit means “‘a belief
in the facts alleged, based on sufficient circumstances to reasonably induce such belief by a person
of ordinary prudence in the same situation, plus a reasonable belief by such person that under such
facts the claim may be valid under the applicable law’”) (quoting Kelley v. Kelly Res. Grp., Inc.,
945 S.W.2d 544, 549 (Mo. Ct. App. 1997)). Dismissal of the underlying action against the initial
plaintiff does not by itself establish a lack of probable cause in a subsequent malicious prosecution
action. Crawford v. Ryan, No. 12-6068-CV-SJ-REL, 2013 WL 2319360, at *5 (W.D. Mo. May
28, 2013). The dispositive inquiry is “whether under the facts as they reasonably appeared at the
time the suits were filed [initial plaintiffs] had a reasonable basis to believe the claim [asserted]
was valid.” McAninch v. Traders Nat’l Bank of Kansas City, 779 F.2d 466, 470 (8th Cir. 1985)
(citations omitted).
Finally, a claim for malicious prosecution requires proof that the initial plaintiff lacked
probable cause for the entire proceeding. Joseph H. Held & Assoc., Inc. v. Wolff, 39 S.W.3d 59,
63 (Mo. Ct. App. 2001). In other words, a malicious prosecution plaintiff “must show a lack of
probable cause for each claim.” Heberlie v. Harriman Oil Co., LLC, 497 S.W.3d 886, 890 (Mo.
Ct. App. 2016) (citation omitted); see Zahorsky v. Friffin, Dysart, Taylor, Penner & Lay, P.C.,
690 S.W.2d 144, 151 (Mo. Ct. App. 1985). It follows, then, a malicious prosecution defendant (or
the plaintiff in the initial action) is entitled to summary judgment in the subsequent action when
the undisputed facts show the malicious prosecution plaintiff “would be unable to establish a lack
of probable cause” regarding one of the claims asserted in the initial lawsuit. Heberlie, 497 S.W.3d
at 891. Thus, if a malicious prosecution defendant (here, Apex) establishes the undisputed facts
show it had probable cause as to even one claim asserted in the initial lawsuit, it is entitled to

to breach-of-contract element of whether the parties entered an enforceable contract, the Court did not apply
a choice-of-law analysis but instead looked to Missouri law as the forum state); Smith v. Aqua-Care
Marketing, LLC, No. 6:15-CV-03489-BCW, 2017 WL 5957814, at *3 (W.D. Mo. Jan. 31, 2017); Harlan
Feeders, Inc. v. Grand Labs., Inc., 881 F. Supp. 1400, 1404 (N.D. Iowa Mar. 31, 1995) (collecting cases).
Thus, as to the probable cause element, the Court will look to Missouri law, as the law of the forum state.
No choice-of-law analysis is necessary at this point in the analysis.

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summary judgment. “Where there is no dispute as to the facts underlying a claim for malicious
prosecution, the question of probable cause is one of law for the court.” Zahorsky, 690 S.W.2d at
152 (citations omitted).
Apex asserted several causes of action against Advanced, Ball, and Linebarger in the
Illinois Lawsuit. Plaintiffs argue the record supports a lack of probable cause for both Apex’s
breach of contract claim brought against Ball and Linebarger and the tortious interference claim
brought against Advanced. Apex argues it is entitled to judgment as a matter of law because
Plaintiffs cannot establish Apex lacked probable cause to bring the claims in the Illinois Lawsuit
(or, stated differently, the undisputed facts demonstrate Apex did have probable cause to bring the
claims against Plaintiffs in the initial lawsuit).
The undisputed facts show Ball and Linebarger were employed by Apex and worked in
Apex’s southwest region of Missouri (Ball, as the regional manager). While at Apex, both Ball
and Linebarger were the primary points of contacts for Prime, and Ball was the primary contact
for Tyson-Monett. Both Ball and Linebarger signed employment agreements prohibiting the
personal use of confidential information (including as to “Referral Sources” and other company
know-how and information). Moreover, Ball’s employment agreement included a non-solicitation
provision prohibiting him from soliciting or contacting Apex’s Referral Sources (including
existing and prospective referral sources the employee has had contact with or learned confidential
information about) for two years after his employment with Apex ended. A “Referral Source” was
defined in the agreement as “a person or entity which refers or can refer patients to Employer, such
as a physician, a hospital, a physician assistant, a nurse practitioner, a nurse case manager, or a
business.”
Advanced was established in July 2016, in northwest Arkansas, approximately one month
before Ball and Linebarger left Apex. In September 2016, only one month after Ball and
Linebarger left Apex, Apex saw a testimonial on Advanced’s website from Prime that was nearly
identical to a testimonial Prime had written for Apex just a few months earlier. It is undisputed
Apex considered Prime to be a “Referral Source” under the agreements. Plaintiffs do not show
“how or why it would have been inappropriate for [Apex] to rely on these uncontroverted facts to
support a reasonable belief that [Ball and Linebarger] might be found to have [breached their
employment agreements].” Vescovo, 628 S.W.3d at 659. Having just left Apex and started
Advanced in the same region where Apex planned to expand, it was apparent Ball and Linebarger
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had had some contact with Prime since a testimonial from Prime appeared on Advanced’s website.
Apex had probable cause to believe Ball and Linebarger had breached the employment agreements
at least as to Prime. Cf. Brockman v. Regency Fin. Corp., 124 S.W.3d 43, 48 (Mo. Ct. App. 2004)
(malicious prosecution defendant did not have probable cause to initiate breach of contract claim
when it knew or should have known the sales contract was void because the certificate of title was
not assigned).
Plaintiffs argue Apex did not have probable cause it had been damaged by Ball and
Linebarger’s contacts with Prime because the contract Apex had with Prime simply expired
without a renewal and the reason Prime gave for not renewing the contract had nothing to do with
Advanced or Ball and Linebarger. In the context of this malicious prosecution action, however,
Apex need not establish it had actual knowledge it had been damaged, but only that it had probable
cause to believe it had been damaged by the perceived breach of contract regarding Ball and
Linebarger’s contacts with Prime. The undisputed facts show Apex had probable cause or a
reasonable belief it had been damaged by the perceived breach of the employment agreement as
to confidential information (as related to Prime as a referral source and otherwise from
employment at Apex). That Prime did not renew the contract is not the only basis for Apex’s
reasonable belief it had been damaged by Ball and Linebarger’s perceived breach of the
employment agreement. Additionally, Apex did not just seek monetary damages, but it also sought
injunctive relief against Ball and Linebarger (as specifically provided for in the employment
agreements Ball and Linebarger signed for actual or threatened breach of the agreement).
These facts would lead a reasonably prudent business to believe (1) its (recently) former
employees had breached the confidentiality and non-solicitation provisions of their employment
agreement, and (2) the former employer had been damaged by that breach including the nonrenewal of the contract.
Plaintiffs also argue Apex did not have a reasonable belief that the non-solicitation and
confidentiality provisions in the employment agreements were valid and enforceable. For
instance, Plaintiffs state in their suggestions in opposition to Apex’s motion for summary
judgment: “Apex knew, because it was told prior to the filing of the lawsuit that the confidentiality
provision was unenforceable.” (Id. at 128-29.) Other than being wholly unsupported by the

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record, 4 “[t]he enforceability of any restrictive covenant is a question of law.” Assoc. Ben. Serv.,
Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007) (applying Illinois law). And even
though the district court later held that the restrictive covenants were in fact not enforceable, in the
context of a subsequent malicious prosecution claim, this is not dispositive. See Impey, 553
S.W.3d at 353 (citation omitted). Plaintiffs have presented no evidence sufficient to raise a genuine
issue of fact for a jury to find Apex did not reasonably believe the provisions were unenforceable.
The Court is generally inclined to agree with Plaintiffs that a genuine issue of fact exists
whether Apex reasonably believed the employment agreement provisions applied to Tyson-Noel
and Tyson-Berryville (that is, whether Apex reasonably believed those facilities were “referral
sources” as defined by the agreement and were “referral sources” that Apex had contact with two
years prior to Ball and Linebarger’s departure). Nonetheless, Apex is entitled to summary
judgment on Count I in light of the forgoing in the context of this malicious prosecution action.
Under the undisputed facts, Plaintiffs cannot establish Apex lacked probable cause to believe its
breach of contract claim (in whole) was valid, regardless of the actual outcome of the claim. See
Impey, 553 S.W.3d at 353 (“probable cause does not require that a plaintiff initiating a suit would
have prevailed on its claim but instead only requires that a reasonable person have an honest belief
that purs[u]ing the claim [was] proper”) (citation omitted).
Because the Court finds that Plaintiffs cannot establish Apex lacked probable cause to
initiate the Illinois Lawsuit as to the breach of contract claims against Ball and Linebarger, Apex
is entitled to judgment as a matter of law on the entirety of Count I. See, e.g., Vescovo v. Kingsland,
628 S.W.3d 645, (Mo. Ct. App. 2020) (holding the trial court did not err in granting summary
judgment in favor of defendants where plaintiff Vescovo could not establish the absence of
probable cause for defendants to bring the claims asserted in the initial underlying federal lawsuit
against the other five defendants (in addition to plaintiff Vescovo in his official capacity)).
Nonetheless, the Court will also consider Apex’s other arguments. Apex also argues it is
entitled to judgment as a matter of law because it had probable cause to assert the claim for tortious
interference against Advanced in the Illinois Lawsuit.

Apex asserted a claim for tortious

In support, Plaintiffs cite only to an expert report prepared for this litigation that opines the
restrictive covenants in the employment agreements were not enforceable and Apex could not reasonably
believe they were enforceable. Neither the expert opinion nor Plaintiff’s argument opposing summary
judgment on this point appears to have any basis in fact, whether underlying the expert’s opinion or in the
summary judgment record now before the Court.
4

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interference with a business expectancy against Advanced based on its solicitation (through Ball
and Linebarger) of other Tyson facilities in the area including Tyson-Noel and Tyson-Berryville.
(See Doc. 126-1 at 12.) Under Illinois law, a claim of tortious interference with business
expectancy requires proof of: “(1) a reasonable expectancy of entering into a valid business
relationship; (2) the defendant’s knowledge of the expectancy; (3) the defendant’s intentional and
unjustified interference that prevents the realization of the business expectancy; and (4) damages
resulting from the interference.” Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd. USA,
893 N.E.2d 981, 993 (Ill. App. Ct. 2008) (citation omitted).
The undisputed facts in this case show Apex had a long-standing relationship with TysonMonett. When Ball worked at Apex, he was not only regional manager for southern Missouri
where Tyson-Monett was located but was also Apex’s main point of contact at this facility.
Plaintiffs raise no genuine dispute as to any material fact from which a reasonable jury could
conclude Apex lacked probable cause (that is, a reasonable belief in the facts and the claim) that it
had a reasonable expectancy of entering into a valid business relationship with Tyson Foods
generally or at least the Tyson-Noel facility. It is undisputed Apex planned to expand its operations
in southern Missouri and northwestern Arkansas based on the regional presence of other Tyson
facilities (given Apex’s longstanding relationship with the Tyson-Monett facility). Regardless of
the ultimate outcome in the Illinois Lawsuit (including the district court’s conclusion that Apex
did not have a valid expectancy sufficient to support a tortious interference claim), Plaintiffs have
failed to raise any genuine dispute as to the material facts on which Apex argues it is entitled to
judgment as a matter of law. Instead, Plaintiffs argue (without legal support) Apex is collaterally
estopped from asserting an “honest and reasonable belief” in a business expectancy based on the
district court’s decision in the Illinois Lawsuit. This unsupported argument is not persuasive,
however. The doctrine of collateral estoppel operates to prevent re-litigation of issues previously
and finally decided on the merits between parties. See, e.g., Air Line Pilots Ass’n Int’l v. Trans
States Airlines, LLC, 638 F.3d 572, 579 (8th Cir. 2011). At a minimum, the operative issue in this
case is not whether Apex did have a reasonable expectancy of a valid business relationship (the
issue previously decided in the Illinois Lawsuit) but instead whether at the time the lawsuit was
filed Apex had probable cause or a reasonable belief it had a claim for tortious interference with
business expectancy against Advanced. And the undisputed facts in this case show Apex did have
probable cause to assert the claim.
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Plaintiffs also assert the undisputed facts show Apex only reached out to Tyson’s Berryville
and Noel facilities after Ball and Linebarger had left. Even if true, these facts do not establish
Apex lacked probable cause or a reasonable belief its relationship with Tyson-Monett, interactions
with Tyson’s other regional facilities, and planned expansion into northwest Arkansas in light of
the regional Tyson facilities, combined with Ball and Linebarger’s contact with these Tyson
facilities on behalf of Advanced reasonably supported a tortious interference with a business
expectancy claim. Indeed, the undisputed facts establish Apex had probable cause to assert this
claim for tortious interference against Advanced. 5
For the reasons stated above, Apex’s motion for summary judgment as to Count I is
GRANTED.
II.

Count II – Abuse of Process
Apex also argues it is entitled to summary judgment on Count II, a claim for abuse of

process. Apex argues it is entitled to judgment as a matter of law because the undisputed facts
show Plaintiffs cannot establish that it misused the legal process in the Illinois Lawsuit or that
Plaintiffs suffered special damages, as required by Illinois law for an abuse-of-process claim.
Under Missouri law a claim for abuse of process requires evidence to establish: “(1) the
present defendant made an illegal, improper, perverted use of process, a use neither warranted nor
Plaintiffs also argue Apex is not entitled to summary judgment because it did not have probable
cause to believe the Illinois court could exercise personal jurisdiction over them. Plaintiffs cite no legal
authority in support of this argument, nor is this argument persuasive. Advanced did challenge the personal
jurisdiction of the Illinois courts in the initial proceeding – which the district court rejected. See Apex, 2017
WL 3923368, at *2-3 (S.D. Ill. Sept. 7, 2017). It does not appear Ball or Linebarger asserted a personaljurisdiction challenge. In malicious prosecution claims, the existence of probable cause is conclusively
established by “[a] judgment or finding in plaintiff’s favor in the underlying proceeding.” Wolff, 39 S.W.3d
at 63 (citing Ripley v. Bank of Skidmore, 198 S.W.2d 861, 864 (Mo. 1947)). Under this rationale, Apex had
probable cause to believe the Illinois courts had personal jurisdiction over Advanced, an issue conclusively
decided in Apex’s favor within the Illinois Lawsuit. Moreover, to the extent the Illinois Lawsuit was
determined in Ball and Linebarger’s favor, this outcome presumes and indeed rests on the court having
jurisdiction over Ball and Linebarger. Plaintiffs provide no legal authority or support for their argument
that a malicious prosecution claim may be brought on the basis of a lack of personal jurisdiction when the
initial lawsuit was decided on the merits (rather than, for instance, being dismissed for lack of personal
jurisdiction). At least one court has rejected the argument that lack of probable cause in a malicious
prosecution action can be inferred from jurisdictional error such as lack of personal jurisdiction, even where
the jurisdictional error was found to exist in the initial proceedings. See Tomai-Minogue v. State Farm Mut.
Auto Ins. Co., 770 F.2d 1228, 1237 (4th Cir. 1985) (applying Maryland law). The time to challenge the
personal jurisdiction of the Illinois courts over Plaintiffs in the initial lawsuit was then, not now in a
subsequent action for malicious prosecution after the initial litigation was decided on the merits.
5

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authorized by the process; (2) the defendant had an improper purpose in exercising such illegal,
perverted or improper use of process; and (3) damage resulted.” Nichols v. Harbor Venture, Inc.,
284 F.3d 857, 861 n.4 (8th Cir. 2002) (quoting Stafford v. Muster, 582 S.W.2d 670, 678 (Mo. banc
1979)). “The essence of a claim for abuse of process is the use of process for some collateral
purpose.” Vescovo, 628 S.W.3d at 662 (citation and quotation marks omitted). A plaintiff’s
motives in pursuing a lawsuit are relevant only to the second element of an abuse of process claim
(that is, “proof that use of process was employed for an improper purpose”); a plaintiff’s motives
are not relevant “to determining whether process was used in an unwarranted or unauthorized
manner.” Id. at 62-63. Stated differently:
An abuse of process claim is not appropriate where the action is confined to its
regular function even if the plaintiff had an ulterior motive in bringing the action,
or if the plaintiff knowingly brought the suit upon an unfounded claim. It is where
the claim is brought not to recover on the cause of action stated, but to accomplish
a purpose for which the process was not designed that there is an abuse of process.
Stone v. J&M Sec’y, LLC, No. 4:20 CV 352 SPM, 2020 WL 5909788, at *8 (E.D. Mo. Oct. 6,
2020) (citation and quotation marks omitted); see also Pipefitters Health & Welfare Trust v. Waldo
R., Inc., 760 S.W.2d 196, 198-99 (Mo. Ct. App. 1988) (“It must be shown that process has been
used to accomplish an unlawful end or to compel the defendant to do something which he could
not be compelled to do legally. No liability attaches where a party has done nothing more than
pursue the lawsuit to its authorized conclusion regardless of how evil a motive he possessed at the
time.”) (citation omitted); Herring v. Behlmann, 734 S.W.2d 311, 313 (Mo. Ct. App. 1987) (“the
foundation of a suit for abuse of process is that the previous claim was brought for a collateral
purpose”) (citation omitted). 6

Under Illinois law, an abuse of process claim is established upon a showing (1) a plaintiff
“possessed some ulterior purpose or motive, and (2) performed some act in the use of the legal process not
proper in the regular prosecution of the proceedings.” Neil v. Nesbit, No. 13-cv-03809, 2014 WL 4897315,
at *4 (N.D. Ill. Sept. 27, 2014) (citation omitted). That is, a plaintiff must establish the proceedings were
instituted “for an improper purpose, such as extortion, intimidation, or embarrassment” and that “the
process was used to accomplish some result that is beyond the purview of the process.” Neurosurgery &
Spine Surgery, S.C. v. Goldman, 790 N.E.2d 925, 930 (Ill. App. Ct. 2003) (citations omitted). “When
process is used only for its intended purpose, there has been no misapplication of process.” Id. (citation
omitted). Even if, as Apex claims, Illinois law differs from Missouri law by requiring a showing of “special
injury,” see also Neil, 2014 WL 4897315, at *4, the Court need not undertake a choice-of-law analysis here,
either, where there is no conflict as to the relevant issue – that is, whether process was used to accomplish
an unlawful end or a result beyond the purview of the process.
6

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Apex argues the undisputed facts fail to show it misused process to accomplish an unlawful
or improper end because the “process” underlying Plaintiffs’ claim – the summonses, subpoenas,
and order appointing a process server – were used for their intended purpose.
Plaintiffs first argue the process was used to accomplish an unlawful purpose by forcing
them to defend themselves in the State of Illinois, where the court could not properly exercise
personal jurisdiction over them. Missouri law is clear that “there is no liability for abuse of process
when a party has done nothing more than pursue a lawsuit to its authorized conclusion” and “‘the
action is confined to its regular and legitimate function in relation to the cause of action in the
complaint,’” even if the plaintiff “‘knowingly brought suit upon an unfounded claim.’” Schlafly
v. Cori, __ S.W.3d __, 2021 WL 3729655, at *3 (Mo. Ct. App. 2021) (quoting Wells v. Orthwein,
670 S.W.2d 529, 532 (Mo. Ct. App. 1984)) (other citation omitted). “The difference between a
claim for malicious prosecution and abuse of process is not the commencement of an action
without justification but the misuse of process for an end other than that which it was designed to
accomplish.” Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 320 (Mo. Ct. App. 2010) (citation
omitted). This argument is without merit.
The record in this case is devoid of evidence that would permit a jury to conclude Apex
filed suit against Plaintiffs for an improper purpose. More importantly, even if the court had found
it lacked personal jurisdiction, such finding does not itself satisfy either element of a claim for
abuse of process. A case being dismissed for lack of jurisdiction or, as is the case here, the court
rejecting a jurisdictional challenge and the case being resolved on its merits (indicating the court
had jurisdiction over the parties), represents nothing more than the pursuit of a lawsuit to its natural
conclusion; in either case, a conclusion entirely within the court’s regular and legitimate function.
Were Plaintiffs’ argument correct, it would mean every time a court dismissed a cause of action
for lack of personal jurisdiction, an abuse of process claim would lie. Clearly the law requires
something more. See Pipefitters Health, 760 S.W.2d at 198-99. A tort claim for abuse of process
is not an avenue through which a party can challenge personal jurisdiction of the initial court. This
argument does not show Apex did anything other than “pursue the lawsuit to its authorized
conclusion.” Filing the lawsuit and pursuing it to summary judgment after Advanced challenged

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personal jurisdiction (and lost) or waived it altogether by not raising it does nothing to demonstrate
Apex filed the lawsuit to accomplish an improper collateral purpose.7
Second, Plaintiffs argue the subpoenas issued to third parties in this case were used to
accomplish an unlawful end. Specifically, Plaintiffs argue, at the time the subpoenas were
employed (and before some were issued), discovery had been limited to breach of the nonsolicitation provision (by operation of the district court’s first summary judgment order in favor
of Ball and Linebarger, holding the confidentiality provision as unenforceable). Plaintiffs argue
in support of summary judgment the persons and businesses to whom these subpoenas were
directed only had discoverable evidence or information related to the confidentiality provision.
Effectively, Plaintiffs assert the subpoenas were employed or issued regarding evidence that was,
at that time, not discoverable. Apex argues, like the summonses, the subpoenas were issued in
accordance with the law and procedures and were not used in a manner outside their designed
purpose or use. The record is devoid of evidence – indeed Plaintiffs do not attempt to argue – the
subpoenas were used in an unlawful manner to accomplish a collateral purpose outside the course
of litigation. That Apex may have had an improper purpose to the extent that any one of these
subpoenas were issued after the scope of discovery was limited to the non-solicitation provision
of the employment agreements and any of the depositions then occurred is not enough without
facts showing the subpoenas were used to accomplish some improper collateral purpose.
Therefore, Apex’s motion for summary judgment as to Count II (Doc. 122) is GRANTED.
III. Count III – Missouri Computer Tampering Act
Finally, Apex argues it is entitled to summary judgment on Count III of the Amended
Complaint, asserting a claim under the Missouri Computer Tampering Act (“MCTA”). In Count
III, Plaintiffs allege Apex violated the MCTA by accessing, examining, modifying, and taking data
from Linebarger’s email account, including a marketing log he had created, and taking and using
Linebarger’s password to access his email account.
Plaintiffs’ argument that, in the course of the ensuing litigation they were required to engage in
exchange of discovery they would otherwise not have been required to produce to Apex fails for the same
reason. Filing a lawsuit and pursuing it to its authorized conclusion (whether dismissal for lack of
jurisdiction, judgment on the merits, etc.) and the incidents of such litigation, including discovery, do not,
without something more, establish a claim of abuse of process. In essence, Plaintiffs’ argument is not that
Apex sought discovery from Plaintiffs for an improper purpose but simply that the discovery itself would
not have occurred but for the lawsuit. In all civil cases, discovery exchanged may not ordinarily be obtained
but for the civil lawsuit and the Federal Rules of Civil Procedure under which such discovery is had. A
claim for abuse of process requires something more.
7

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In the Amended Complaint in this case, Plaintiffs allege Apex produced in the course of
discovery in the Illinois Lawsuit a marketing log Linebarger had prepared. Plaintiffs allege
Linebarger had created the marketing log on his personal computer for Advanced and had emailed
the marketing log only to Ball and his wife, Jaimie Ball. The Amended Complaint further alleges
after the marketing log had been produced by Apex in discovery, Linebarger reviewed his email
account and discovered his personal email account had been accessed, including the email to Ball
and his wife containing the marketing log. Plaintiffs allege the email containing the marketing log
had been forwarded on December 2, 2016, to an email address (“[e-mail]”) which
Linebarger was not familiar with, and that Linebarger had not forwarded the email himself.
The summary judgment record establishes that at some point, Linebarger prepared a
marketing log on his personal computer documenting efforts he had made to introduce himself and
Ball to businesses in northwest Arkansas. Linebarger forwarded the marketing log to Ball and
Ball’s wife at their “@advancedptonline.com” email addresses from his personal email account.
On December 2, 2016, the marketing log was forwarded from Linebarger’s email to another email
address, “[e-mail].” Apex later produced the marketing log Linebarger had created
in discovery conducted during the Illinois Lawsuit.
Section 569.095, RSMo, establishes “the offense of tampering with computer data” as:
“knowingly and without authorization or without reasonable grounds to believe that he has such
authorization:
(1) Modifies or destroys data or programs residing or existing internal to a
computer, computer system, or computer network; or
(2) Modifies or destroys data or programs or supporting documentation residing or
existing external to a computer, computer system, or computer network; or
(3) Discloses or takes data, programs, or supporting documentation, residing or
existing internal or external to a computer, computer system, or computer network;
or
(4) Discloses or takes a password, identifying code, personal identification number,
or other confidential information about a computer system or network that is
intended to or does control access to the computer system or network;
(5) Accesses a computer, a computer system, or a computer network, and
intentionally examines information about another person;

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(6) Receives, retains, uses, or discloses any data he knows or believes was obtained
in violation of this subsection.
Mo. Rev. Stat. § 569.095.1. Section 537.525 creates a civil cause of action for, in part, the violation
of § 569.095 by “the owner or lessee of the computer system, computer network, computer
program, computer service or data.” Mo. Rev. Stat. § 537.525.1. The statute authorizes recovery
of “compensatory damages, including any expenditures reasonably and necessarily incurred by the
owner or lessee to verify that a computer system, computer network, computer program, computer
service, or data was not altered, damaged, or deleted by the access.” Id.
A.

Standing as to Ball and Advanced to Assert a Claim under the MCTA

First, Apex argues it is entitled to summary judgment because neither Ball nor Advanced
have standing to bring a claim under the MCTA. Apex argues Ball cannot establish standing
because he is not an “owner or lessee” of Linebarger’s private email account or the marketing log,
which Apex also argues is not “data” under the MCTA. Apex also argues Advanced cannot
establish standing because the marketing log is not “data” under the MCTA.
As defined under Missouri law, “data” in the context of the MCTA means “a representation
of information, facts, knowledge, concepts, or instructions prepared in a formalized or other
manner and intended for use in a computer or computer network,” and includes “any form . . . as
may be stored in the memory of a computer.” Mo. Rev. Stat. § 556.061(21). In part, when data is
modified, destroyed, disclosed, taken, received, retained, used or disclosed in violation of
§ 569.095, § 537.525 authorizes a civil lawsuit by the “owner or lessee of the . . . data.”
As a document attached to an email, the marketing log is “intended for use in a computer
or computer network” and is in a form that “may be stored in the memory of a computer.” Apex
argues in its reply brief, without citation, that Advanced cannot establish standing because “there
is no evidence the marketing log was intended, by Advanced, for use on a computer or computer
network.” (Doc. 161 at 14.) This argument, presented without any citation to legal authority,
bears little persuasive value in light of the statutory language set forth above. Whether something
is “data” under the MCTA is independent from whether an individual person or entity is authorized
to bring a civil lawsuit for a violation of the MCTA. Apex concedes Advanced is an “owner” of
the marketing log created by Linebarger and emailed to Ball at his “@advancedptonline.com”
email address. Advanced has standing to pursue a claim under the MCTA.

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Apex also argues Ball does not have standing in his individual capacity to pursue a claim
under the MCTA. This argument is also unpersuasive. Linebarger emailed the marketing log to
Ball at his “@advancedptonline.com” email address. The email and its attached marketing log are
“data” within the context of the MCTA. See, e.g., W. Blue Print Co., LLC v. Roberts, 367 S.W.3d
7, 21 (Mo. banc 2012) (finding substantial evidence defendant violated the MCTA by deleting or
copying “computer data” consisting of documents and emails from a computer). It is undisputed
Linebarger sent the email and its attachment to Ball, Advanced’s owner, at an email account,
“@advancedptonline.com.” The Court finds, viewing the evidence in a light most favorable to
Plaintiffs and giving Plaintiffs the benefit of all reasonable inferences, Ball also has standing under
the MCTA to assert a claim.
For these reasons, Apex’s motion for summary judgment as to Count III based on Ball and
Advanced’s standing to assert a claim under the MCTA is DENIED.
B.

Lack of Recoverable Damages under the MCTA

Next, Apex argues it is entitled to judgment as a matter of law because Plaintiffs present
no evidence of recoverable damages under the MCTA. Apex asserts Plaintiffs’ “sole theory of
damages” for this claim is that but for Apex’s discovery of the marketing log, it would not have
filed the Illinois Lawsuit against Plaintiffs, and therefore Plaintiffs’ damages are damages resulting
from the Illinois Lawsuit itself. (Doc. 125 at 8.) Plaintiffs do not dispute this is its theory of
damages. At a minimum, a question of fact exists as to the extent of the role the marketing log
played in Apex’s decision to file the Illinois Lawsuit against Plaintiffs. It is not the role of the
Court at summary judgment to weigh the evidence and determine whether the marketing log
caused or contributed to Apex’s decision to file the Illinois Lawsuit against Plaintiffs. At a
minimum, the record shows Apex obtained the marketing log shortly before the Illinois Lawsuit
was filed and Steven Oravec (as corporate representative for Apex) testified the marketing log in
particular formed the basis, at least in some part, for Apex’s belief Plaintiffs breached a duty owed
the company. (Doc. 151-10 at 24.)
Apex also argues it is entitled to summary judgment because the damages Plaintiffs seek
are not recoverable under the MCTA. Section 537.525.1 authorizes recovery in a civil action for
“compensatory damages.” See Roberts, 367 S.W.3d at 20 (“Section 537.525.1 permits the owner
or lessee of the computer system or network [or data] to bring a civil action . . . for any
compensatory damages incurred and attorney’s fees.”). Apex argues Plaintiffs’ theory of damages
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as those connected to the subsequent Illinois Lawsuit (including attorney’s fees expended in that
initial lawsuit, lost profits, lost salary, and mental anguish, among others) is too attenuated from
the alleged violation of the MCTA. Thus, to the extent the claim for compensable damages on
which Plaintiffs’ MCTA claim rests is wrapped up in the issue of causation, it is best left to a factfinder to weigh the evidence and conclude whether (1) Apex violated the MCTA concerning the
marketing log and (2) the marketing log caused Apex to file the Illinois Lawsuit against Plaintiffs.
Because the MCTA allows for “compensatory damages,” the Court finds the question of
reasonable damages is best left to a jury.
For these reasons, Apex’s motion for summary judgment as to Count III based on the
damages Plaintiffs seek to recover under the MCTA is DENIED.
C.

Lack of Evidence to Support Specific Damages

Finally, Apex argues it is entitled to summary judgment on Count III because Plaintiffs
have failed to (1) present admissible evidence Ball or Linebarger incurred attorney’s fees and lost
profits as a result of the Illinois Lawsuit, (2) establish Advanced’s lost profits with a reasonable
degree of certainty, and (3) present sufficient evidence to establish Ball and Linebarger suffered
financial damages as a result of Advanced’s payment of attorney’s fees in the Illinois Lawsuit.
1.

Ball and Linebarger’s Claims for Damages of Attorney’s Fees, Lost
Profits, and Financial Damages

First, there is no dispute that neither Ball nor Linebarger paid attorney’s fees regarding the
Illinois Lawsuit. Plaintiffs concede neither Ball nor Linebarger “seek recovery for those damages
nor . . . of Advanced[’s] lost profits.” (Doc. 144 at 102.) Second, Apex argues Ball and Linebarger
have failed to present sufficient evidence to establish financial damages they suffered because of
Advanced’s payment of attorney’s fees regarding the Illinois Lawsuit including lack of pay
increases, not taking a salary, and Ball’s sale of land because of the expenses Advanced had to
bear to defend against the Illinois Lawsuit.
Generally, “[t]he amount of damages is a question of fact.” Randy Kinder Excavating, Inc.
v. J.A. Manning Constr. Co., Inc., 899 F.3d 511, 520 (8th Cir. 2018) (citing High Life Sales Co. v.
Brown-Forman Corp., 823 S.W.2d 493, 502 (Mo. banc 1992)). “Under Missouri law, the plaintiff
[is] not required to prove the exact amount of his damages, but only to produce evidence which
established [the fact of damages] with reasonable certainty.” Margolies v. McCleary, Inc., 447
F.3d 1115, 1121 (8th Cir. 2006) (citation and quotation marks omitted). Ball testified he had to
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sell a parcel of land he owned to “keep the business afloat” because of the Illinois Lawsuit. (Doc.
36 at 15.) Additionally, Ball testified he was unable to take a salary during the pendency of the
Illinois Lawsuit. (Doc. 17 at 15; see also Doc. 143 at 94, ¶ 258 (admitting this fact for purposes
of summary judgment)). Finally, it is undisputed Linebarger testified he did not receive pay
increases as quickly as he would have as a result of the financial burden of the Illinois Lawsuit on
Advanced. (Doc. 143 at 94, ¶ 94.) Given the summary judgment record at this point, Apex’s
motion for summary judgment on Count III as to Ball and Linebarger’s failure to present evidence
as to certain claimed damages is DENIED.
2.

Advanced’s Claim for Damages of Lost Profits

Finally, Apex argues it is entitled to summary judgment on Count III inasmuch as
Advanced seeks damages for lost profits. In support of Advanced’s claim for lost profits resulting
from the Illinois Lawsuit, Apex relies solely on expert testimony and an expert report prepared by
Advanced’s retained expert, Brittany Hopp. Hopp calculated the “value of damages to Advanced
Physical Therapy LLC related to the lawsuit brought by Apex Physical Therapy LLC as of March
29, 2021,” at $368,809. The parties appear to agree resolution of this argument on summary
judgment turns on the admissibility of Hopp’s expert testimony in light of a motion to exclude that
Apex has filed under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). (Doc. 128). Advanced does not contest the only evidence as to
Advanced’s lost profits is Hopp’s expert testimony. Accordingly, the Court will now turn to
Apex’s motion to exclude, which is fully briefed. (Docs. 129, 136, 153.)
Federal Rule of Evidence 702, amended after Daubert, provides the standard for the
admission of expert testimony:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. Based on Rule 702, the Eighth Circuit relies on a three-part test to determine
the admissibility of expert testimony:
First, evidence based on scientific, technical, or other specialized knowledge must
be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic
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rule of relevancy. Second, the proposed witness must be qualified to assist the
finder of fact. Third, the proposed evidence must be reliable or trustworthy in an
evidentiary sense, so that, if the finder of fact accepts it as true, it provides the
assistance the finder of fact requires.
Lauzon v. Senco Prod. Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations
omitted). The rules for the admissibility of expert testimony favor admission over exclusion. Id.
Here, Apex challenges only the reliability of Hopp’s expert testimony and report. “To
satisfy the reliability requirement, the proponent of the expert testimony must show by a
preponderance of the evidence both that the expert is qualified to render the opinion [8] and that the
methodology underlying h[er] conclusions is scientifically valid.” Marmo v. Tyson Fresh Meats,
Inc., 457 F.3d 748, 758-59 (8th Cir. 2006). The traditional method for challenging the conclusions
of an expert is through cross-examination. Lipp v. Ginger C, L.C.C., 2017 WL 277579, at *14
(W.D. Mo. Jan. 19, 2017). “Attacks on the foundation of an expert’s opinion and conclusions, and
the completeness of the expert’s methodology, go to the weight rather than the admissibility of the
expert’s testimony.” Id. (citation and quotation marks omitted). However, expert testimony must
be excluded when the opinion “is so fundamentally unsupported that it can offer no assistance to
the jury.” Meterlogic, Inc. v. KLT, Inc., 368 F.3d 1017, 1019 (8th Cir. 2004) (citation and quotation
marks omitted). “Expert testimony is inadmissible if it is speculative, unsupported by sufficient
facts, or contrary to the facts of the case.” Marmo, 457 F.3d at 759.
After review of the motions and their supporting materials, the Court concludes that the
reasoning and methodology underlying Hopp’s methodology can be applied to the facts of this
case. To calculate lost profits, Hopp reviewed Advanced’s tax and financial records, including
monthly income and expense data for each of Advanced’s six locations (other than the Rogers,
Arkansas, location). She calculated a monthly operating profit for each location by subtracting
from that location’s net income certain non-operating expenses (interest income, legal fees for the
Illinois Lawsuit, and charitable contributions) for December 2016 (the first month of the Illinois
Lawsuit) through March 2020 (a year after the lawsuit was concluded). The operating profit of
each location (encompassing the particular location’s opening and operating costs, as well as
profits) was shifted to an earlier time based on when Advanced’s Chief Financial Officer, Jaimie

8

Apex does not argue Hopp is not qualified to render an expert opinion.

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Ball, determined the location would have been opened but for the burden (financial and otherwise)
of the Illinois Lawsuit.
This methodology seems to fairly encompass what Apex posits as the correct methodology
for calculating lost profits in Missouri. (See Doc. 129 at 9) (citing Ameristar Jet Charter, Inc. v.
Dodson Int’l Parts, Inc., 155 S.W.3d 50, 55-56 (Mo. banc 2005) (holding lost profits are generally
calculated by deducting overhead expenses (including fixed and variable expenses; and in tort
actions only variable expenses, not fixed expenses) from estimated lost revenues)). To the extent
Apex challenges the completeness of Hopp’s expert analysis, this is a topic to be pursued on crossexamination and is an issue that goes to the weight of her testimony rather than its admissibility.
Apex also argues Hopp’s expert testimony is inherently unreliable due to her use of
terminology that is more appropriate in a “business valuations” context than a litigious calculation
of lost profits analysis. In addition, Apex points to Hopp’s stated reliance on the Statement for
Standards of Valuation Services that, Apex contends, by its terms does not apply when determining
economic damages including lost profits. These are issues of credibility that go to the weight of
Hopp’s expert testimony, not its reliability or admissibility under Daubert and the Federal Rules
of Evidence. This is particularly so because it does not appear the “standards” Hopp referenced
and those Apex contends she should have referenced otherwise prescribe a particular methodology
for calculating lost profits, but more so concern issues of professional responsibility. While a topic
for cross-examination, this does not go to the admissibility of Hopp’s expert testimony and report
either.
Apex also argues Hopp’s testimony should be excluded because it is not based on sufficient
facts and data. “As a general rule, the factual basis of an expert opinion goes to the credibility of
the testimony, not the admissibility . . . [It is o]nly if the expert’s opinion is so fundamentally
unsupported that it can offer no assistance to the jury [that] such testimony must be excluded.”
Children’s Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004) (citation and
quotation marks omitted). Apex argues Hopp’s expert testimony is fundamentally unsupported as
a factual matter because she lacked sufficient data for Advanced’s income and expenses prior to
the lawsuit, her analysis rests on unsupported and unverified assumptions by Advanced that a
location would have opened earlier but for the Illinois Litigation, and she failed to consider
alternative explanations for Advanced’s lost profits.

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Generally, under Missouri law “anticipated profits of a commercial business are too remote
and speculative to warrant recovery.” Tipton v. Mill Creek Gravel, Inc., 373 F.3d 913, 918 (8th
Cir. 2004) (citation omitted). Anticipated profits – or more accurately, based on Advanced’s
theory of damages here, profits that could have been received earlier but for Defendant’s violation
of the MCTA – “may be recovered when ‘they are made reasonably certain by proof of actual
facts, with present data for a rational estimate of their amount.’” Indep. Bus. Forms, Inc. v. A-M
Graphics, Inc., 127 F.3d 698, 703 (8th Cir. 1997) (quoting Coonis v. Rogers, 429 S.W.2d 709, 714
(Mo. 1968)) (other citations omitted). Generally, “‘loss of profits’ refers to the amount of net
profits that the plaintiff would have realized in the usual course of business” but for defendant’s
unlawful actions. Refrig. Indus., Inc. v. Nemmers, 880 S.W.2d 912, 920 (Mo. Ct. App. 1994)
(citation omitted). To recover, a plaintiff must establish (1) defendant’s tortious conduct caused
the lost profits, and (2) the amount or extent of the lost profits. Id.
Here, Advanced’s theory of lost profits is not “forward-focused” in the sense that Apex’s
alleged tortious conduct caused Advanced to lose out on a future profit it otherwise would have
obtained. Rather, Advanced’s theory of lost profits is a “back-in-time” theory that, but for Apex’s
alleged tortious conduct in violating the MCTA (which, in turn, caused Apex to file the Illinois
Lawsuit against Plaintiffs), it would have opened the other locations earlier thus receiving profits
from the operation of those location earlier. In this way, the profits Advanced asserts it lost are
not so much “anticipated profits” in the traditional sense, see Wash Solutions, Inc. v. PDQ Mfg.,
Inc., 395 F.3d 888, 893 (8th Cir. 2005) (noting the rule in Missouri “expected future profits may
be extrapolated with reasonable certainty from historical evidence of the income and expenses of
the business prior to the damaging event”) (citing Tipton), but rather Advanced asserts as damages
actually realized profits it could have earned (and been earning) earlier. The Court finds in the
specific factual context of this case Hopp’s expert testimony is not fundamentally unsupported
because it does not rest on Advanced’s income and expenses prior to the Illinois Lawsuit. Instead,
Hopp’s expert testimony rests on the actual profits each location earned after it had been opened,
and to determine Plaintiffs’ “lost profits” shifts them to an earlier time when, according to
Advanced’s Chief Financial Officer, the locations would have been opened but for the burdens of
the Illinois Lawsuit.
Apex further argues Hopp’s expert testimony is fundamentally unsupported because it
relies on unsupported projections from Advanced’s Chief Financial Officer, Jaimie Ball, as to
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when each particular location or program would (or could) have been opened but for the Illinois
Lawsuit. “An expert is permitted to rely on assumptions that are supported by the record.” Donner
v. Alcoa Inc., 2014 WL 12600281, at *5 n.10 (W.D. Mo. Dec. 19, 2014) (citation omitted). Stated
differently, “[a]n expert’s opinion, where based on assumed facts, must find some support for those
assumptions in the record.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000)
(citing Shaw v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990)). “The district court must exclude
expert testimony if it is so fundamentally unsupported that it can offer no assistance to the jury,
otherwise, the factual basis of the testimony goes to the weight of the evidence.” Meterlogic, 368
F.3d at 1019 (citation and quotation marks omitted).
The factual assumption on which Hopp’s lost-profits analysis admittedly rests is the point
in time at which Advanced would have opened the other locations and programs but for the burdens
(financial and otherwise) of the Illinois Lawsuit (itself a product of Apex’s alleged violation of
MCTA). Hopp indicated in her deposition testimony that she relied on projections from Advanced
and looked only for a positive – or more specifically a “not negative” – cash flow for the company
at the given projected time in performing her analysis. For support in the record, Advanced points
to deposition testimony by Jaimie Ball, Advanced’s Chief Financial Officer. Jaimie Ball testified
at her deposition that, at least for a few of the locations, she looked at the cash flow that existed
(taking out the attorneys’ fees for the Illinois Lawsuit) and whether it would have been possible to
open those locations at that time but for the Illinois Lawsuit cost. 9 (See Doc. 136-10 at 8-10.)
Hopp testified she did a “reasonableness check” on these assumptions based on what Jaimie Ball
told her the earlier opening timeframe would have been, the cash flow that existed at that time, and
the expense of opening the particular location.
“[A party]’s mere disagreement with the assumptions [on which the analysis is performed
or the assumptions underlying the expert’s opinion] . . . does not warrant exclusion of expert
testimony.” Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir. 2007) (citing Daubert, 509
U.S. at 596) (other citation omitted). The underlying assumptions on which Hopp’s expert opinion
and report are based – particularly, Jaimie Ball’s determination as Chief Financial Officer when

For other locations, Jaimie Ball testified only speculatively when they would have opened earlier
but for the time and emotional burdens of the Illinois Lawsuit, as well as the opening of other locations that
were not impacted by the burdens of the Illinois Lawsuit. Nonetheless, the question at this stage is not a
matter of quantifying a specific amount of lost-profits damages Advanced may or may not ultimately be
entitled to, but whether it has presented evidence of some amount of lost-profits damages.
9

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specific locations would have opened earlier but for the burdens of the Illinois Lawsuit – are
certainly a topic for cross-examination and adversarial testing at trial. The Court does not find,
however, that Hopp’s reliance on Jaimie Ball’s analysis (which is supported by deposition
testimony in the record) renders her expert testimony and expert opinion so fundamentally
unsupported that it would offer no assistance to the jury. Cf. US Salt, Inc. v. Broken Arrow, Inc.,
563 F.3d 687, 691 (8th Cir. 2009) (holding district court did not abuse its discretion in excluding
expert testimony as to a company’s lost profits that relied on “speculative estimates” provided by
the company’s president in deposition that he had been given “different estimates” as to the volume
of salt the customer expected to buy from the company, admitted he had “no way of verifying
those estimates” until he started production, and “testified that he was not able to obtain a written
commitment from any customer regarding how much they would pay for solar salt”).
Finally, to the extent Apex argues Hopp’s analysis must be excluded because she did not
consider alternative explanations for Advanced’s lost profits, the Court notes Hopp’s expert report
and testimony opine on the amount of lost profits Advanced suffered, rather than whether the
Illinois Lawsuit caused Advanced to suffer lost profits (a key assumption on which her analysis
necessarily relies).
For the reasons explained above, Apex’s motion to exclude the expert testimony of Hopp
(Doc. 129) is DENIED.
Because Hopp’s expert testimony is not excluded at this time, Apex’s motion for summary
judgment as to Count III based on the evidence Advanced has presented to prove its claim for lost
profits is without merit and is DENIED.
Conclusion
Accordingly, for the reasons above, it is ORDERED that (1) Defendant’s motions for
summary judgment as to Counts I and II (Docs. 120, 122) are GRANTED; (2) Defendant’s motion
to exclude expert testimony of Brittany Hopp (Doc. 128) is DENIED; and (3) Defendant’s motion
for summary judgment as to Count III (Doc. 124) is DENIED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: November 16, 2021
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