Parks v. Edward Dale Parrish LLC

          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

          Edward Dale Parrish, PC, Dale Parrish, Wheat Ridge, Colorado, for Defendants-Appellees

          OPINION

          J. JONES JUDGE

         ¶ 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.

         I. Background

         ¶ 2 Parrish and the law firm represented Parks in two cases - a partition case and a dissolution case - against Parks' former, long-term girlfriend.^[1] 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, ^[2] 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 claim.

         ¶ 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 C.R.C.P. 59(j).

         II. Discussion

         A. 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 ...