James D. PARKS III, Plaintiff-Appellant,
EDWARD DALE PARRISH LLC, a Colorado Limited Liability Company; and Edward Dale Parrish, Individually, Defendants-Appellees.
[Copyrighted Material Omitted]
Jefferson County District Court No. 15CV31645, Honorable
Randall C. Arp, Judge
& 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 Parrishs
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 attorneys 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 case).
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 that
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 ...