Yadon v. Lowry, No. 04CA1681.

• Docket Nº: No. 04CA1681.
• Citation: 126 P.3d 332
• Case Date: November 17, 2005
• Court: Supreme Court of Colorado

126 P.3d 332 Kenneth E. YADON, Natalie Yadon, and the Natalie Yadon Living Trust, Plaintiffs-Counterdefendants-Appellants, and
Linus L. Baker, Third-Party Plaintiff and Third-Party Defendant-Appellant,
v.
Michael R. LOWRY, a/k/a Mike Lowry; Lowry Ranches, LLC; South River Real Estate, Inc.; Fred Lowry; Lowry Contracting, Inc.; and Unknown Drivers, Defendants-Counterclaimants-Appellees, and
Pete CORDOVA, Third-Party Defendant-Appellee. No. 04CA1681. Colorado Court of Appeals, Div. II. November 17, 2005.

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Kenneth E. Yadon and Natalie Yadon, Pro Se.

Kenneth E. Yadon and Natalie Yadon for Plaintiff-Counterdefendant-Appellant Natalie Yadon Living Trust.

Linus L. Baker, Pro Se.

J. Terry Wiggins, LLC, J. Terry Wiggins, Salida, Colorado, for Defendants-Counterclaimants-Appellees.

Law Office of M. Stuart Anderson, PC, M. Stuart Anderson, Salida, Colorado, for Third-Party Defendant-Appellee.

DAILEY, J.

In this tort action, plaintiffs-counterdefendants, Kenneth E. Yadon, Natalie Yadon, and the Natalie Yadon Living Trust (collectively, the Yadons), and third-party-plaintiff and third-party defendant, Linus L. Baker, appeal various orders entered in favor of defendants-counterclaimants, Michael R. Lowry, Lowry Ranches, LLC, South River Real Estate, Inc., Fred Lowry, Lowry Contracting, Inc., and Unknown Drivers (collectively, the Lowrys), and third-party defendant, Pete Cordova. We dismiss the appeal in part, affirm the judgment, and remand for further proceedings.

Baker, an attorney licensed to practice law in Missouri and Kansas, helped the Yadons draft two, overlapping lawsuits against the Lowrys; Baker never entered an appearance on behalf of the Yadons, however. Cordova represented the Lowrys in the lawsuits.

In the first lawsuit, Kenneth E. Yadon brought claims of civil theft, conversion, trespass, civil conspiracy, and unjust enrichment against the Lowrys, alleging that they had trespassed upon his property and removed $250,000 worth of boulders from it. The trial court determined, however, that Kenneth Yadon had described the wrong parcel of property in his "petition" and that, with respect to the right parcel of property, it was owned not by Yadon but by the Natalie Yadon Living Trust. Consequently, on motion for summary judgment, the trial court dismissed the action because of Kenneth Yadon's lack of standing to pursue it. (The Yadons appeal of this determination was dismissed as untimely, and is not before us.)

In the second lawsuit — the subject of this appeal — the Yadons refiled a substantially identical "petition" against the Lowrys. The only difference between the two petitions was that this time Natalie Yadon and the Natalie Yadon Living Trust were identified as having ownership interests in the parcel of property from which the boulders were allegedly taken.

In their answer, the Lowrys denied the Yadons' allegations and asserted a variety of affirmative defenses. In addition, they alleged counterclaims against the Yadons for malicious prosecution and civil conspiracy and third-party claims against Baker of negligence per se arising from unauthorized practice of law in violation of § 12-5-101, C.R.S.2005, civil conspiracy, and "tortious embroilment" in a lawsuit. In response, the Yadons and Baker alleged a claim for abuse of process against the Lowrys and Cordova for asserting the counterclaims and third-party claims.

The parties filed cross-motions to dismiss, and the trial court dismissed the abuse of process claim brought by the Yadons and Baker against the Lowrys and Cordova. It also awarded Cordova $1067 in attorney fees and, under C.R.C.P. 54(b), certified that there was no just reason for delay in entering final judgment in his favor.

I. Issues on Appeal

The Yadons and Baker appeal a variety of the trial court orders or determinations. They appeal the trial court's (1) refusal to require Cordova and his attorneys to show cause why they should not be sanctioned for disclosing, in connection with the Lowrys' negligence per se (unauthorized practice of law) counterclaim, confidential matters related to Colorado's attorney discipline

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process; (2) refusal to rule that collateral estoppel bars some of the Lowrys' counterclaims as well as the Lowrys' attempt to recover in this lawsuit attorney fees incurred in connection with the first lawsuit; (3) dismissal of their abuse of process claim against the Lowrys and Cordova; and (4) award of attorney fees to Cordova.

We conclude that we lack jurisdiction to address most of these matters.

In Pham v. State Farm Mutual Automobile Insurance Co., 70 P.3d 567 (Colo.App.2003), a division of this court noted:

Generally, an entire case must be resolved by a final judgment before an appeal can be brought. A final judgment "ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceeding."

However, C.R.C.P. 54(b) creates an exception to the general requirement that an entire case be resolved by a final judgment before an appeal is brought.

Pham, supra, 70 P.3d at 571 (citations omitted; quoting D.H. v. People, 192 Colo. 542, 544, 561 P.2d 5, 6 (1977)).

C.R.C.P. 54(b) provides, in pertinent part:

[W]hen multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

Here, the trial court certified as final under C.R.C.P. 54(b) only that part of the case dismissing the action against Cordova and awarding him attorney fees. A motions division of this court previously determined, and we agree, that the trial court's C.R.C.P. 54(b) certification was proper. Consequently, we conclude that we have jurisdiction to review only those rulings. Accordingly, we dismiss the appeal with respect to all other issues.

II. Dismissal of Abuse of Process Claim Against Cordova

The Yadons and Baker contend that the trial court erred, in two respects, in dismissing their abuse of process claim against Cordova. First, they assert that the court improperly relied upon matters outside the complaint in granting Cordova's C.R.C.P. 12(b)(5) motion to dismiss for failure to state a...