Seba v. LucidPoint

• Court: Colorado Court of Appeals
• Decided: July 9, 2026
• Docket: 25CA1380
• Status: Unpublished

Opinion

25CA1380 Seba v LucidPoint 07-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1380 Douglas County District Court No. 24CV31212 Honorable Robert Lung, Judge

Kevin Seba,

Plaintiff-Appellant,

v.

LucidPoint, Inc., a Colorado corporation (purportedly through Mr. Fontaine), and Michael Fontaine,

Defendants-Appellees.

APPEAL DISMISSED

Division VI Opinion by JUDGE GROVE Gomez and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 9, 2026

T. Walsh Law Firm Ltd., Thomas P. Walsh, III, Greenwood Village, Colorado; Moriarty Underhill LLC, Colin E. Moriarty, Matthew H. Knaster, Greenwood Village, Colorado, for Plaintiff-Appellant

Merchant & Gould P.C., Peter A. Gergely, Ryan J. Fletcher, Kristen M. Souther, Alana L. LeFebvre, Denver, Colorado; Merchant & Gould P.C., Rachel Zimmerman Scobie, Minneapolis, Minnesota, for Defendants-Appellees ¶1 Plaintiff, Kevin Seba, appealed the district court’s order

denying his preliminary injunction motion and granting the

preliminary injunction requested by defendants, LucidPoint, Inc.1

and Michael Fontaine. While his appeal was pending, the parties

engaged in arbitration, and following a final arbitration award,

Fontaine moved to dismiss Seba’s appeal as moot. After

considering Seba’s response to the motion, Fontaine’s reply, the

parties’ merits briefing, and the record on appeal, we conclude that

the issues raised in the opening brief are indeed moot and therefore

dismiss Seba’s appeal.

I. Background

¶2 LucidPoint, an information technology consulting firm, was

founded by Seba and Fontaine. Seba and Fontaine were the

company’s only board members and shareholders, and the two also

had day-to-day positions. In November 2023, Seba resigned from

1 Because this dispute involves a battle over control of LucidPoint,

Seba and Fontaine both purport to be acting on behalf of the company in some capacity. Who actually controls LucidPoint has no bearing on the disposition of this appeal, however, so we do not consider that question.

1 his day-to-day responsibilities, but he remained a board member

and shareholder.

¶3 The parties have different views about why Seba resigned, but

they generally agree that there was conflict between Seba, Fontaine,

and other LucidPoint employees. After Seba’s resignation, the

conflict continued to escalate.

¶4 What followed, according to Seba, was a scheme where

Fontaine “was plotting to harm LucidPoint and shut [Seba] out.”

Seba discovered this alleged scheme by monitoring LucidPoint’s

systems, including other employees’ calendars and emails.

Specifically, Seba found emails between Fontaine and LucidPoint’s

accountant that, according to Seba, proved Fontaine sought to

devalue LucidPoint.

¶5 After more than a year of conflict, Seba sought to dissolve

LucidPoint. Seba argued that the board was “deadlocked on

various issues,” that LucidPoint had suffered irreparable harm from

Fontaine’s scheme, and that Fontaine’s conduct was oppressive

toward Seba as a shareholder. Seba also moved for a preliminary

injunction and requested the appointment of a receiver or custodian

to manage LucidPoint’s affairs.

2 ¶6 Fontaine denied the allegations and brought various

counterclaims against Seba, including seeking removal of Seba from

the board, extreme and outrageous conduct, abuse of process,

invasion of privacy by intrusion and disclosure, and breach of

fiduciary duty. Fontaine also moved for a temporary restraining

order (TRO) and a preliminary injunction.

¶7 After a hearing, additional motions practice, and several

rulings on other issues, the court denied Seba’s motion for a

preliminary injunction and granted Fontaine’s motion for a TRO

and preliminary injunction. Under these orders, Seba was to

refrain from accessing LucidPoint’s systems and bank account and

return LucidPoint documents and system access to other

employees.

¶8 Seba filed a motion pointing out that, in reaching its decision

on the competing motions for preliminary injunctions, the court

had seemingly not considered certain emails between Fontaine and

LucidPoint’s accountant that Seba believed were a “smoking gun” in

his favor. Seba had some support for the inference that the court

had not considered the emails given that it had previously ruled it

3 would not review them due to a claim of accountant-client privilege

asserted by Fontaine. But the court never ruled on Seba’s motion.

¶9 Seba then appealed the court’s injunction orders, arguing the

court erroneously (1) issued a preliminary injunction without first

ruling on the admissibility of the emails; (2) granted Fontaine’s

requested injunctive relief and denied Seba’s requested injunctive

relief; and (3) converted a TRO to a preliminary injunction without a

hearing.

¶ 10 While Seba’s appeal was pending, however, the case proceeded

to arbitration. And before we could issue an opinion, an arbitrator

issued a final award in the case. While the arbitrator largely

rejected both parties’ claims, she did find that Seba had breached

his fiduciary duties to LucidPoint. As a result, the arbitrator

removed Seba as a director. The arbitrator also found that Seba did

not establish a director deadlock or shareholder oppression

warranting LucidPoint’s dissolution and instead ordered Fontaine to

buy out Seba’s interest in the company. Finally, the arbitrator

found that “Seba’s prior unauthorized access to LucidPoint’s

systems, surveillance of corporate communications, interference

with payroll administration, and unilateral control over corporate

4 banking authority demonstrate a substantial risk of ongoing harm

absent injunctive relief.” Consequently, the arbitrator permanently

enjoined Seba from accessing LucidPoint’s systems and bank

account and ordered him to return LucidPoint’s documents.

¶ 11 Following arbitration, Fontaine filed a motion in this court

requesting that we dismiss Seba’s appeal as moot. Seba opposed

the motion, arguing that we should still reach the merits of his

appeal because (1) the issues raised in his appeal are not covered

by the arbitration award; (2) the court’s preliminary injunction

orders caused him harm; and (3) exceptions to the mootness

doctrine apply.

II. Standard of Review and Applicable Law

¶ 12 “Colorado courts invoke their judicial power only when an

actual controversy exists . . . .” People in Interest of Vivekanathan,

2013 COA 143M, ¶ 20. A controversy becomes moot when “any

relief granted by the court would have no practical effect.” DePriest

v. People, 2021 CO 40, ¶ 8. And “[i]f an event occurs while a case is

pending on appeal that makes it ‘impossible for the court to grant

“any effectual relief” . . . to a prevailing party,’ the appeal must then

be dismissed as moot.” Id. (citations omitted). We review de novo

5 whether an issue on appeal is moot. Colo. Mining Ass’n v. Urbina,

2013 COA 155, ¶ 23.

III. Analysis

¶ 13 We conclude that the arbitrator’s final award resolving the

merits of the parties’ dispute has rendered moot the issues that

Seba raised on appeal.

A. Scope of the Preliminary Injunction and Final Arbitration Award

¶ 14 Seba contends that we should reach the merits of his appeal

because the issues he raised are not covered by the final arbitration

award. We disagree.

¶ 15 The court’s preliminary injunction prohibited Seba from

accessing LucidPoint’s systems and bank account and ordered him

to return LucidPoint documents. The arbitrator’s award enjoined

practically the same conduct. It removed Seba as a director of

LucidPoint, permanently enjoined him from accessing and

monitoring LucidPoint’s systems and bank account, and ordered

him to return all LucidPoint documents.

¶ 16 To the extent that Seba maintains that the preliminary

injunction order was erroneous because the court did not take the

6 so-called “smoking gun” emails into account, we conclude that no

relief is available to Seba for that alleged error. Indeed, the

permanent injunction enjoining the same conduct covered by the

preliminary injunction is still in effect. See Depriest, ¶ 8.

B. Concrete Harm

¶ 17 Seba next contends we should reach the merits of his appeal

because the court’s injunction orders caused him concrete harm.

Specifically, Seba maintains that he suffered damages “by virtue of

the fact that he was prohibited from partaking in his corporate

duties due to the erroneously issued orders from the district court.”

In support of this proposition, he cites International Brotherhood of

Teamsters, Local Union No. 639 v. Airgas, Inc., 885 F.3d 230 (4th

Cir. 2018), and Grupo Mexicano de Desarrollo S.A. v. Alliance Bond

Fund, Inc., 527 U.S. 308 (1999). Neither case supports his

argument.

¶ 18 In International Brotherhood of Teamsters, the Fourth Circuit

posited that “if [a] preliminary injunction was improper, the party

against whom it operated would be entitled to damages for the

period during which it was restrained.” 885 F.3d at 236. However,

this proposition applies only to circumstances where a party suffers

7 damages after the court enjoins it from doing something that it has

a legal right to do. Id. Here, the arbitrator found that Seba engaged

in “dishonest conduct and gross abuse of authority” by “exercis[ing]

unilateral control over corporate systems,” “enabl[ing] and us[ing]

monitoring tools without disclosure,” “interfer[ing] with payroll

administration during an active governance dispute,” and

“exercis[ing] control over corporate funds without authorization.”

Based on these findings, among others, the arbitrator issued a

permanent injunction enjoining the same conduct that had been

enjoined by the preliminary injunction.

¶ 19 Grupo Mexicano does not support Seba’s position either.

Indeed, in that case, the Supreme Court affirmed that an appeal of

a preliminary injunction is moot if “[t]he final injunction establishes

that the [party] should not have been engaging in the conduct that

was enjoined,” even if preliminary injunction was “not procedurally

correct.” 527 U.S. at 315.

¶ 20 Accordingly, we reject Seba’s argument that we should reach

the merits of his appeal on the grounds that the court’s injunction

orders allegedly caused him harm.

8 C. Mootness Exceptions

¶ 21 Finally, Seba argues that two exceptions to the mootness

doctrine apply: (1) the matter involves an issue that is capable of

repetition, yet evades review; and (2) the matter involves a question

of great public importance. See People in Interest of Ofengand, 183

P.3d 688, 691 (Colo. App. 2008); Gresh v. Balink, 148 P.3d 419, 422

(Colo. App. 2006). We disagree.

¶ 22 Issues are capable of repetition when they could, or are likely

to, reoccur in the future, Ofengand, 183 P.3d at 692; and issues

“evad[e] review” when the “time required to complete the legal

process will necessarily render each specific challenge moot,” Rocky

Mountain Ass’n of Credit Mgmt. v. Dist. Ct., 565 P.2d 1345, 1346

(Colo. 1977) (citation omitted). Here, there is no possibility that the

same controversy will recur because Seba is no longer a director or

shareholder of LucidPoint, and he has been permanently enjoined

from accessing LucidPoint’s systems and accounts. As a result, the

issues raised by Seba on appeal are not capable of repetition. See

Anderson v. Applewood Water Ass’n, 2016 COA 162, ¶ 30.

¶ 23 Likewise, we do not find the issues raised by Seba to be of

great public significance. Seba’s case is a party-specific, private

9 dispute that has been resolved through arbitration. It does not

affect the public at large. Cf. People v. Garcia, 2014 COA 85, ¶ 23

(issue only concerned one defendant without implicating matters of

public importance). Further, the evidentiary and notice rules for

injunctive relief are well established in the rules of procedure and in

case law. See C.R.C.P. 65 (rules governing injunctive relief); see

also Network Telecomms., Inc. v. Boor-Crepeau, 790 P.2d 901, 903

(Colo. App. 1990) (a trial court’s injunction decision must be

“predicated upon its examination of substantial competent evidence

presented”).

¶ 24 Accordingly, neither mootness exception applies to the issues

raised in Seba’s appeal.

IV. Disposition

¶ 25 The appeal is dismissed as moot.

JUDGE GOMEZ and JUDGE MOULTRIE concur.