James D. Parks III, Plaintiff-Appellant,
Edward Dale Parrish LLC, a Colorado limited liability company; and Edward Dale Parrish, individually, Defendants-Appellees.
Jefferson County District Court No. 15CV31645 Honorable
Randall C. Arp, Judge
Westerfield & Martin, LLC, Zachary S. Westerfield, Logan
R. Martin, Denver, Colorado, for Plaintiff-Appellant
Dale Parrish, PC, Dale Parrish, Wheat Ridge, Colorado, for
1 Plaintiff, James D. Parks III, appeals from an unfavorable
outcome in his malpractice case against his former attorney,
defendant Edward Dale Parrish, and Parrish's limited
liability company/law firm, Edward Dale Parrish LLC (the law
firm). He contends that the district court erred by (1)
denying his motion for directed verdict (and subsequent
motion for judgment notwithstanding the verdict (JNOV)) on
defendants' abuse of process counterclaim; (2) dismissing
his breach of fiduciary duty claim; (3) denying his motion
for directed verdict on defendants' breach of contract
counterclaim; and (4) awarding defendants their costs for an
expert witness. We agree with Parks' first contention,
but disagree with his second, third, and fourth contentions.
Accordingly, we affirm in part and vacate in part.
2 Parrish and the law firm represented Parks in two cases - a
partition case and a dissolution case - against Parks'
former, long-term girlfriend. Neither case was resolved to
Parks' liking. He told Parrish to appeal the award of
attorney fees against him in the dissolution case. Parrish
said, "Not unless you pay me," and after failed
payment negotiations, filed a notice of attorney's lien
in the partition case.
3 In response, Parks filed this case against defendants,
alleging that defendants provided negligent representation
and breached their fiduciary duty to Parks in the partition
and dissolution cases. More particularly, and as now
relevant, Parks alleged that Parrish failed to present
evidence that would have avoided an award of attorney fees
against Parks in the dissolution case, and that Parrish
entered into a stipulation in the partition case without
authority. Defendants counterclaimed for breach of contract
(seeking an award of fees incurred in previously representing
Parks) and abuse of process (based on Parks bringing this
4 Parks moved for summary judgment on the abuse of process
counterclaim. The district court denied the motion,
concluding that "if a jury found that Defendants did not
provide negligent representation, then the jury could find
that Plaintiff brought this action for the sole purpose of
avoiding paying his legal fees by attempting to coerce
Defendants into either reducing the fees or accepting payment
in an unacceptable form."
5 The case went to trial. At the close of Parks'
evidence, defendants moved for directed verdicts on all of
Parks' claims. At first, the district court denied the
motion in toto. But the next trial day, the court
reconsidered defendants' motion as to the breach of
fiduciary duty claim. The court heard additional argument
from both sides, concluded that the breach of fiduciary duty
claim was duplicative of the negligence claim, and dismissed
6 Parks later moved for directed verdicts on defendants'
counterclaims. The court denied that motion.
7 The jury returned verdicts for defendants on all claims and
counterclaims, awarding defendants $33, 580 on the breach of
contract counterclaim and $46, 314 on the abuse of process
counterclaim. Defendants also moved for an award of costs for
their expert witness. The court awarded $8, 000. Parks moved
for JNOV. By rule, that motion was deemed denied when the
district court didn't timely act on it. See
Abuse of Process
8 Parks first contends that the district court erred in
denying his motion for directed verdict and motion for JNOV
on defendants' abuse of process counterclaim. We agree
and vacate the judgment on that counterclaim. 1. Standard of
Review ¶ 9 We review de novo a district court's
denials of a motion for directed verdict and a motion for
JNOV. Int'l Network, Inc. v. Woodard,
2017 COA 44, ¶ 8.
10 We view the evidence, and all inferences that may
reasonably be drawn therefrom, in the light most favorable to
the nonmoving party. Id. A court shouldn't grant
either motion unless there is no evidence that could support
a verdict against the moving party on the claim.
Id.; accord Boulders at ...