Parks v. Edward Dale Parrish LLC

• Decision Date: 07 February 2019
• Docket Number: Court of Appeals No. 17CA1257
• Citation: 452 P.3d 141
• Parties: James D. PARKS III, Plaintiff-Appellant, v. EDWARD DALE PARRISH LLC, a Colorado Limited Liability Company; and Edward Dale Parrish, Individually, Defendants-Appellees.
• Court: Colorado Court of Appeals

452 P.3d 141

James D. PARKS III, Plaintiff-Appellant,

v.EDWARD DALE PARRISH LLC, a Colorado Limited Liability Company; and Edward Dale Parrish, Individually, Defendants-Appellees.

Court of Appeals No. 17CA1257

Colorado Court of Appeals, Division VII.

Announced February 7, 2019

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 by JUDGE J. JONES

¶ 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, 405 P.3d 424.

¶ 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 Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC , 2015 COA 85, ¶ 19, 412 P.3d 751.

2. Applicable Law and Analysis

¶ 11 Abuse of process provides a remedy for situations where litigation, though properly commenced, is misused to coerce or compel a result that couldn't normally be obtained via the ordinary use of process. Active Release Techniques, LLC v. Xtomic, LLC , 2017 COA 14, ¶ 8, 413 P.3d 210 ; Walker v. Van Laningham , 148 P.3d 391, 394 (Colo. App. 2006) ("The essence of the tort of abuse of process is the use of a legal proceeding primarily to accomplish a purpose that the proceeding was not designed to achieve.").³

¶ 12 An ulterior or even nefarious motive, alone, isn't enough to constitute an abuse of process. To prove an abuse of process, the claimant must show

(1) an ulterior purpose for the use of a judicial proceeding; (2) willful action in the use of that process which is not proper in the regular course of the proceedings, i.e., use of a legal proceeding in an improper manner; and (3) resulting damage.

Mackall v. JPMorgan Chase Bank, N.A. , 2014 COA 120, ¶ 39, 356 P.3d 946 (quoting Lauren Corp. v. Century Geophysical Corp. , 953 P.2d 200, 202 (Colo. App. 1998) ).

¶ 13 The second element is distinct from the first. "[T]here is no liability for abuse of process if the [party’s] ulterior purpose was simply incidental to the proceeding’s proper purpose." Mintz v. Accident & Injury Med. Specialists, PC , 284 P.3d 62, 66 (Colo. App. 2010), aff'd , 2012 CO 50, 279 P.3d 658. Put another way, "[i]f the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint[,] there is no abuse, even if the plaintiff had an ulterior motive in bringing the action or if he knowingly brought suit upon an unfounded claim." Colo. Cmty. Bank v. Hoffman , 2013 COA 146, ¶ 37, 338 P.3d 390 (quoting Sterenbuch v. Goss , 266 P.3d 428, 439 (Colo. App. 2011) ); see W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 121, at 898 (5th ed. 1984) (abuse of process requires a "definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process").

¶ 14 Defendants argue that Parks brought this case to coerce them "into reducing the legal fees or accepting payment in an unacceptable form." (The district court seems to have agreed that, if true, this was enough to support the counterclaim.) In support of this argument, they point to evidence presented at trial that Parks filed the dissolution case to gain leverage in the partition case, coerced his ex-girlfriend into adding him and his children to her health insurance, and threatened defendants with suit when attempting to negotiate a lower payment. But none of these acts is evidence of an improper use of the legal system in this case. See Active Release Techniques , ¶ 12 (the plaintiff’s "reputation for filing, or even [his] abuse of process in, other lawsuits should have no bearing on [his] alleged abuse of process here"; use of process in the case must be looked at objectively); see also Sterenbuch , 266 P.3d at 438-39 (court properly dismissed abuse of process counterclaim because alleging that the plaintiff had no lawful claims against the defendants and used the suit to "harass, embarrass, damage, burden and wrongfully obtain monies from defendants" didn't indicate improper use of process); cf. Aztec Sound Corp. v. W. States Leasing Co. , 32 Colo. App. 248, 252-53, 510 P.2d 897, 899 (1973) (party used writ of replevin not to obtain property, but to demand money not owed).⁴

¶ 15 Defendants seize on the statement in Walker that "[t]he legal proceeding must be used in an improper manner, for example, to accomplish a coercive goal." 148 P.3d at 394. But they take that statement out of context. As Walker itself makes clear, that "coercive goal" must be one "that the proceeding was not designed to achieve." Id.

¶ 16 One regular and legitimate function of a malpractice action is to contest attorney fees claimed by the attorney alleged to have committed malpractice. See Roberts v. Holland & Hart , 857 P.2d 492, 498 (Colo. App. 1993). That’s exactly what defendants allege Parks is doing in this case. But bringing a malpractice case and carrying it to its natural end to obtain a result such an action is designed to achieve doesn't constitute an improper use of process, no matter the motive.

See Sterenbuch , 266 P.3d at 439 ("[W]rongful use may not be inferred from the motive." (citing James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail , 892 P.2d 367, 373 (Colo. App. 1994) )); see also Walker , 148 P.3d at 395 ("filing complaints about barking dogs and cruelty to animals" under a county ordinance designed to address those issues isn't an abuse of process, even with an ulterior motive); cf. Aztec Sound Corp. v. W. States Leasing Co. , 32 Colo. App. 248, 510 P.2d 897 (1973) (leasing company commenced replevin action to repossess equipment to coerce payment under threat of removing equipment on which lessee’s business relied).

¶ 17 We therefore conclude that the district court erred in reasoning that the jury could find an abuse of process if it found merely that defendants didn't provide negligent representation. Given the lack of evidence of any improper use of process, the district court should have granted Parks' motion for a directed verdict or motion for JNOV on the abuse of process counterclaim....