v Zacheis , 2021 COA 74 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 27, 2021
2021COA74
No. 20CA0021, Froid v Zacheis — Attorneys and Clients —
Malpractice — Economic Damages; Family Law — Grandparents
— Visitation Rights
Distinguishing McGee v. Hyatt Legal Services, Inc., 813 P.2d
754 (Colo. App. 1990), the division holds that economic damages
are available in legal malpractice lawsuits involving grandparent
visitation rights.
COLORADO COURT OF APPEALS 2021COA74
Court of Appeals No. 20CA0021
Weld County District Court No. 19CV30511
Honorable Todd Taylor, Judge
Cheryl Froid and Brian Froid,
Plaintiffs-Appellants,
v.
Kristin Zacheis and Houtchens Greenfield Sedlak & Zacheis, LLC
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE GROVE
Fox and Harris, JJ., concur
Announced May 27, 2021
The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Plaintiffs-
Appellants
Gordon & Rees LLP, John M. Palmeri, John R. Mann, Margaret Boehmer,
Denver, Colorado, for Defendants-Appellees
¶1 Plaintiffs, Cheryl and Brian Froid, appeal the dismissal of their
complaint alleging legal malpractice against their former attorney,
Kristin Zacheis, and her law firm, Houtchens, Greenfield, Sedlak &
Zacheis LLC (collectively, Zacheis). We affirm in part, reverse in
part, and remand the case for further proceedings.
I. Background
¶2 We draw the following facts from the Froids’ amended
complaint (the complaint).
¶3 This case stems from a tragic automobile crash that killed
Jared and Genevieve Sommervold and orphaned their two-year-old
daughter (the child). The Froids are the child’s maternal
grandparents. Their daughter, Kathryn Arnold, is the child’s aunt.
¶4 The Froids cared for the child immediately after the crash; a
short time later, Cheryl Froid and the child’s paternal grandmother
were named co-guardians on a temporary basis.
¶5 The Froids then engaged Zacheis to represent both them and
the child’s aunt and her husband (the Arnolds). Zacheis filed a
petition for allocation of parental responsibilities (APR), naming the
Arnolds as petitioners and Cheryl Froid and the child’s paternal
grandmother (who were still temporary co-guardians) as
1
respondents. Shortly thereafter, Zacheis moved to intervene on
behalf of Brian Froid,1 and then, on behalf of all of her clients, filed
motions intended to modify the temporary co-guardianship and
place the child in the Froids’ primary care and custody.
¶6 Additional motions followed, but before a major legal battle
erupted over custody of the child, the parties decided to mediate
with the goal of agreeing on a permanent parenting plan. At the
mediation, Zacheis continued to represent both the Froids and the
Arnolds. The paternal grandmother had her own counsel, as did
other members of the paternal side of the family.
¶7 In their amended complaint, the Froids alleged that their
“main goal all through the litigation and mediation, which they
expressed to Ms. Zacheis on multiple occasions, was to be able to
spend the most time with [the child].” They were thus concerned
that the draft agreement created during the mediation did not
expressly provide them with visitation rights — an accommodation
that was included for the paternal grandmother, and that they
1The complaint does not state whether Brian Froid intervened as a
petitioner or respondent.
2
alleged would have likely been granted them had Zacheis insisted
on it. However, when they raised the issue with Zacheis, she
“incorrectly told the Froids that they did not need their visitation
rights expressly stated because they could go see [the child]
anytime she was with [the Arnolds].”
¶8 Zacheis’s prediction, the complaint alleged, turned out to be
inaccurate. At some point after the permanent parenting plan was
finalized and approved by the district court, the Arnolds cut the
Froids off from the child completely. With no visitation rights
reserved in the permanent parenting plan, the Froids had to hire a
new attorney to seek grandparent visitation rights. Had Zacheis
accurately advised them, the Froids alleged, they would not have
incurred these additional legal fees.
¶9 The Froids sued Zacheis and her law firm and, in their
amended complaint, alleged a single count of legal malpractice.
Although not clearly differentiated in the complaint, that count was
based on two distinct theories: negligence and breach of fiduciary
duty. The negligence theory was straightforward, asserting that
Zacheis fell below the standard of care “by failing to consider the
possibility that the family would have a falling out, and that
3
therefore the visitation interests of the Froids needed to be
expressly protected in the Permanent Parenting Plan.” The
fiduciary duty theory was based on Zacheis’s representation of both
the Froids and the Arnolds. The complaint averred that Zacheis
breached her duty of undivided loyalty when she agreed to
represent both families despite the fact “that these parties had
conflicting interests,” and that this conflict came to a head when
Zacheis “protected the interests of the Arnolds at the expense of the
Froids’ interests . . . .”2
¶ 10 If Zacheis had insisted on incorporating their express
visitation rights into the plan, the Froids alleged, the “other parties
to that Plan likely would have agreed to those express visitation
rights.” And likewise, the Froids claimed, if express visitation rights
had been incorporated into the draft plan that was presented to the
2 Because the Froids do not assert on appeal that the district court
should have differentiated between the negligence and fiduciary
theories when considering the motion to dismiss, we consider only
their general claim for legal malpractice without distinguishing
between the two theories. In any event, we note that when a legal
malpractice claim and a breach of fiduciary duty claim arise from
the same material facts, the breach of fiduciary duty claim will
ordinarily be dismissed as duplicative. See Aller v. Law Off. of
Carole C. Schriefer, P.C., 140 P.3d 23, 27 (Colo. App. 2005).
4
court, “the trial court would likely have adopted” the plan as
written.
¶ 11 The Froids demanded both economic and noneconomic
damages. The alleged economic damages included (1) the fees that
they paid Zacheis “throughout the custody proceedings”; (2) the fees
paid for the mediation, during which Zacheis “had a conflict of
interest” and negligently represented them; and (3) the fees that the
Froids “paid to successor counsel in order to secure grandparent
visitation rights,” which could have been secured at the mediation
absent Zacheis’s alleged malpractice. The Froids’ alleged
noneconomic losses were those “associated with the complete loss
of contact with their beloved granddaughter.”
¶ 12 Zacheis filed a motion to dismiss. Relying primarily on McGee
v. Hyatt Legal Services, Inc., 813 P.2d 754 (Colo. App. 1990), she
argued that “[i]ssues of custody are best determined by the
domestic court in accordance with the best interests of the child,”
and that, as a result, “[noneconomic] damages arising from
custodial orders are not compensable and attorney fees related to
such orders are not recoverable.”
5
¶ 13 In their response, the Froids asserted that McGee was wrongly
decided insofar as it held that noneconomic damages could not be
recovered in child custody cases. And, as for economic damages,
the Froids maintained that McGee did not impose a general bar on
legal malpractice claims arising from custodial orders. Thus, the
Froids argued, even if they could not recover damages for loss of
grandparental consortium with the child, their claims for economic
damages — including recovery of fees paid to Zacheis and successor
counsel — remained viable.
¶ 14 The district court granted the motion to dismiss. Concerning
the Froids’ claim for noneconomic damages, the court agreed with
Zacheis that McGee controls. “[U]nder McGee,” the court concluded,
“the damages the Froids seek are unrecoverable.” Notably,
however, the court expressly declined to consider whether McGee
also bars the Froids’ claim for economic damages. Instead, the
court concluded that the complaint did not plausibly link Zacheis’s
alleged malpractice to the economic damages that the Froids
asserted. As the court put it, the Froids’
failure to allege facts from which it can be
reasonably inferred that they would have
successfully obtained visitation rights but for
6
the conflict of interest that they allege Zacheis
labored under, or but for her failure to predict
the falling out with their daughter and son-in-
law, is fatal to the Froids’ malpractice claim.
¶ 15 The Froids then filed a motion under C.R.C.P. 59, arguing that
the district court had overlooked the causation allegations laid out
in the complaint. After the court denied the motion for reasons that
we will discuss in further detail below, the Froids filed this appeal.
II. Standard of Review
¶ 16 We review de novo a district court’s ruling on a C.R.C.P.
12(b)(5) motion to dismiss for failure to state a claim. Bewley v.
Semler, 2018 CO 79, ¶ 14.
¶ 17 A claim may be dismissed under C.R.C.P. 12(b)(5) if the
substantive law does not support it, W. Innovations, Inc. v. Sonitrol
Corp., 187 P.3d 1155, 1158 (Colo. App. 2008), or if the plaintiffs’
factual allegations do not, as a matter of law, support a claim for
relief, Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011).
¶ 18 In resolving a motion to dismiss, a court may consider only the
facts alleged in the complaint, documents attached to or referenced
in the complaint, and matters of which the court may take judicial
notice, such as public records. Peña v. Am. Fam. Mut. Ins. Co.,
7
2018 COA 56, ¶ 14. We accept all factual allegations in the
complaint and attachments as true, viewing them in a light most
favorable to plaintiff. See Bewley, ¶ 14.
III. Analysis
¶ 19 The Froids contend that the district court erred by dismissing
their claims for noneconomic and economic damages. We affirm
the dismissal of their claim for noneconomic damages, but we
disagree with the district court’s conclusion that they failed to state
a plausible claim for relief for economic damages. We therefore
reverse the district court’s order dismissing the Froids’ claim for
economic damages and remand the case for resolution of that issue.
A. Noneconomic Damages
¶ 20 The Froids contend that we should decline to follow McGee
and hold that they are entitled to recover noneconomic damages
either because McGee is distinguishable or, in the alternative, is no
longer on sound legal footing. We are not persuaded on either
score. McGee applies to the facts here, is well reasoned, and is
consistent with subsequent supreme court precedent. We therefore
follow it and hold that the Froids cannot recover noneconomic
damages.
8
1. Preservation
¶ 21 At the threshold, we conclude that the Froids preserved their
challenge to McGee. In response to the motion to dismiss, they
appropriately acknowledged that the decision was binding but
argued that it was both wrongly decided and distinguishable.
Although the district court followed McGee, the Froids’ arguments
were sufficient to preserve the issue for our review. See Berra v.
Springer & Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010).
2. Discussion
¶ 22 In McGee, the plaintiff (McGee) sued her attorney for
malpractice stemming from a custody dispute that arose during a
divorce. As relevant here, McGee alleged that, “because of her
attorneys’ negligence, there was a wrongful interference in her
parental relationship with her child . . . for which she was entitled
to compensatory damages.” McGee, 813 P.2d at 758. A jury agreed
and awarded her $76,000 in damages. Id. at 757. On appeal,
however, the division rejected McGee’s claim for noneconomic
damages as a matter of law for two reasons: (1) the difficulty in
quantifying “the intangible character of the loss and . . . in
measuring damages to offset it,” id. at 758; and (2) concerns that
9
permitting a claim for noneconomic damages in this context “would
circumvent and undermine the statutory scheme which vests in the
domestic relations court the authority to regulate and supervise the
custody of minor children whose parents are involved in dissolution
proceedings.” Id. (citing In re Marriage of Segel, 224 Cal. Rptr. 591(Ct. App. 1986)).
¶ 23 McGee’s holding is consistent with Colorado’s general rejection
of noneconomic damages in legal malpractice actions based on
negligence. See 7 John W. Grund, J. Kent Miller & David S.
Werber, Colorado Practice Series: Personal Injury Torts And
Insurance § 22:20, Westlaw (3d ed. database updated Dec. 2020)
(“Damages recoverable in a legal-malpractice action are generally
limited to actual damages.”); see also Aller v. Law Off. of Carole C.
Schriefer, P.C., 140 P.3d 23, 26 (Colo. App. 2005) (“Generally,
damages for noneconomic losses from negligence are not
recoverable unless the person claiming them is subjected to an
unreasonable risk of bodily harm.”). Like the majority of states,
Colorado follows the rule “that damages for emotional injuries are
not recoverable if they are a consequence of other damages caused
by the attorney’s negligence or a fiduciary breach that was not an
10
intentional tort.” 3 Ronald E. Mallen, Legal Malpractice § 21:19,
Westlaw (2021 ed. database updated Jan. 2021).
¶ 24 The division’s reasoning in McGee, and particularly its
reluctance to put a price tag on custody issues, also accords with
our supreme court’s refusal to recognize claims of filial and parental
consortium in Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999), and Lee
v. Colorado Department of Health, 718 P.2d 221 (Colo. 1986). While
both cases are distinguishable on their facts from the situation
here, their reasoning mirrors the McGee division’s concerns about
the difficulty in quantifying the damages arising from the loss of
custody caused by an attorney’s malpractice. In Elgin, for example,
the court explained that it had declined to recognize a child’s claim
for filial or parental consortium because of “concern[s] about the
efficacy of monetary compensation as a substitute for
companionship, the intangible character of the loss, the difficulty of
measuring damages to offset the loss, and the risk of overlapping
and multiple awards for the different interests of those affected by
the injury.” 994 P.2d at 418.
¶ 25 The Froids contend that McGee does not apply because, by
noting that “some jurisdictions have permitted a claim for the total
11
loss of custody,” the division seemingly left the door open for a
claim like the one that they assert. 813 P.2d at 758-59 (citing
Talbot v. Schroeder, 475 P.2d 520 (Ariz. Ct. App. 1970), and McEvoy
v. Helikson, 562 P.2d 540 (Or. 1977)). But we do not read McGee as
suggesting that a parent’s eligibility for noneconomic damages in a
legal malpractice case depends on the amount of custody that the
parent receives. To the contrary, McGee distinguished McEvoy and
Talbot by focusing on the attorneys’ egregious conduct (fraud in
Talbot and failure to comply with court orders in McEvoy) in those
cases.
¶ 26 Alternatively, the Froids urge us to abandon McGee in light of
what one law student wrote — in 1990 — about “an emerging
trend . . . that allows a client to recover for emotional distress” in
legal malpractice cases. Joseph J. Kelleher, Note, An Attorney’s
Liability for the Negligent Infliction of Emotional Distress, 58
Fordham L. Rev. 1309, 1319 (1990). But they cite only a
smattering of decisions following any such trend in the intervening
thirty-one years. None of these rulings is from Colorado, none
endorses a grandparent’s (as opposed to a parent’s) claim for
noneconomic damages for legal malpractice, and none undermines
12
the weighty public policy concerns animating McGee’s holding.
Accordingly, we conclude that the district court appropriately
dismissed the Froids’ claims for noneconomic damages.
B. Economic Damages
¶ 27 The Froids also contend that the district court erroneously
dismissed their claim for economic damages after concluding that
they did not adequately plead causation or damages. We agree.
1. Background
¶ 28 In her motion to dismiss, Zacheis argued that McGee was
dispositive of all of the Froids’ claims, including those for economic
damages. The district court declined to address this argument, and
instead dismissed the Froids’ economic damages claim for failure to
plausibly plead that their economic damages were caused by
Zacheis’s alleged malpractice. The Froids argued in their C.R.C.P.
59 motion that they had, in fact, pleaded causation, but the district
court disagreed. In its order declining to reinstate the case, the
district court stated that, “[e]xcept as to the fees paid to successor
counsel to obtain grandparent visitation rights, the economic
damages [that the Froids] seek to recover were not caused by any
alleged malpractice,” and that, “because the complaint alleges that
13
the plaintiffs are ‘in the process’ of obtaining grandparent visitation
rights, their allegations as to damages and causation are
speculative.”
2. Plausibility Standard
¶ 29 “To survive summary dismissal for failure to state a claim
under [C.R.C.P.] 12(b)(5), a party must plead sufficient facts
that . . . suggest plausible grounds to support a claim for relief.”
Patterson v. James, 2018 COA 173, ¶ 23 (citing Warne v. Hall, 2016
CO 50, ¶ 24). “[W]e view the factual allegations in the complaint as
true and in the light most favorable to the plaintiff . . . .” Peña,
¶ 15. But “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Warne, ¶ 9 (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). And “[t]he plausibility standard emphasizes that facts
pleaded as legal conclusions (i.e., conclusory statements) are not
entitled to the assumption that they are true.” Scott v. Scott, 2018
COA 25, ¶ 19 (citing Warne, ¶¶ 9, 27).
3. Elements of a Legal Malpractice Claim
¶ 30 To prevail on a legal malpractice claim, a plaintiff must
establish that (1) an attorney owed the plaintiff a duty of care;
14
(2) the attorney breached that duty of care; (3) the breach
proximately caused an injury to the plaintiff; and (4) damages
resulted. Gibbons v. Ludlow, 2013 CO 49, ¶ 12; Boulders at
Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC, 2015
COA 85, ¶ 27. We address only the third and fourth of these
elements because the relevant orders concluded both that the
Froids failed to adequately allege that Zacheis’s alleged malpractice
was the proximate cause of their injuries and that those injuries
were in any event speculative.
a. Causation
¶ 31 Establishing whether an attorney’s negligence caused a
plaintiff’s injury requires two distinct determinations: (1) whether
the attorney’s negligence was the actual cause (cause in fact) of the
plaintiff’s injury; and (2) whether the attorney’s negligence was the
proximate cause (legal cause) of the plaintiff’s injury. Boulders at
Escalante, ¶ 31.
¶ 32 The test for causation in fact is the “but for” test — whether,
but for the attorney’s alleged negligence, the harm would not have
occurred. Id. at ¶ 32 (quoting Reigel v. SavaSeniorCare L.L.C., 292
P.3d 977, 985-86 (Colo. App. 2011)).
15
¶ 33 In the legal malpractice context, several Colorado appellate
decisions have held that to prove causation in fact, the plaintiff
must prove a “case within a case.” That is, the plaintiff must show
that the case underlying the malpractice action would have
succeeded but for the attorney’s negligence. Id. at ¶ 33 (collecting
cases). But when the plaintiff’s claimed injury does not depend on
the merits of the underlying case, the plaintiff need not prove a
“case within a case.” Id. at ¶ 49. In this circumstance, the plaintiff
must prove that the attorney’s negligence “caused him or her to
suffer some financial loss or harm by applying the generally
applicable test for cause in fact in negligence actions: that the
plaintiff would not have suffered the harm but for the attorney’s
negligence.” Id.
¶ 34 The test for proximate cause is whether “a reasonably careful
person, under the same or similar circumstances, would have
anticipated that injury to a person in the plaintiff’s situation might
result from the defendant’s conduct.” Id. at ¶ 51 (quoting
Vanderbeek v. Vernon Corp., 50 P.3d 866, 872 (Colo. 2002)).
¶ 35 In its order granting Zacheis’s motion to dismiss, the district
court concluded that the Froids had failed to adequately plead
16
causation because they “ma[d]e no allegation . . . that (1) the other
parties in the APR case would have agreed to them being granted
visitation rights, (2) that the APR court would have consented to
these visitation rights, or (3) that the APR court would have granted
visitation rights to the Froids over the other parties’ objection.”
Without these allegations, the court concluded, the Froids could not
show that they would have successfully obtained visitation rights
“but for” Zacheis’s alleged malpractice.
¶ 36 We conclude, however, that the Froids’ complaint included
enough factual averments to nudge the question of causation
“across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The crux of their complaint
was that, if it had been proposed at the mediation conference, the
other parties and the court would have “likely” agreed to the
inclusion of a provision guaranteeing their visitation rights. Had
these allegations been presented on their own, without factual
support, they would have been conclusory and thus subject to
dismissal. But they were buttressed by ample factual allegations,
including that
 “the Froids played an important role in [the child’s] life”;
17
 after the accident, “[t]he Froids . . . became [the child’s]
de facto primary caretakers”;
 the Froids had previously been granted “primary
temporary decision-making authority for [the child],” and
“[the child] . . . stay[ed] with the Froids most of the time”;
 the parenting plan that was ultimately approved by the
court “expressly stated the visitation rights of [the
child’s]” paternal grandmother; and
 Zacheis “incorrectly told the Froids that they did not need
their visitation rights expressly protected because they
had a good relationship with the Arnolds.”
¶ 37 Crediting these allegations, as we must at this stage of the
proceedings, we conclude that they provide enough of a factual
foundation to make plausible the Froids’ claim that, had Zacheis
provided adequate representation, the permanent parenting plan
that came out of the mediation would have protected their visitation
rights. Specifically, given the Froids’ close relationship with the
child and the parties’ amenability to expressly protecting the
visitation rights of the paternal grandmother, it is entirely plausible
that, had Zacheis insisted on it, the parties would have also agreed
18
to expressly protect the Froids’ visitation rights. For the same
reasons, it is also entirely plausible that, had the parties presented
the court with a fully executed and agreed-to permanent parenting
plan that expressly provided the Froids with visitation rights, the
court would have approved it without further question. In fact, that
is precisely what the court did with the parenting plan that the
parties submitted — it signed an order approving that plan on the
same day that the parties executed it, without holding a hearing.
¶ 38 Nor is our conclusion that the complaint plausibly alleged
causation undermined by the fact that, rather than making a more
definitive statement, the Froids alleged that different actions by
Zacheis would have “likely” changed the outcome. Elsewhere in the
complaint, the Froids asserted that they lost visitation rights to the
child “[a]s a direct and proximate result of the negligent conduct of
Ms. Zacheis.” And, in any event, as the Froids point out, their
choice of words corresponds with the burden of proof —
preponderance of the evidence — that they would need to satisfy to
prove their “case within a case” at trial.
19
b. Damages
¶ 39 To prevail on a legal malpractice claim, a plaintiff must prove
that he or she suffered damages because of an attorney’s
negligence. Boulders at Escalante, ¶ 55. Damages must be proven
with “reasonable certainty.” Id. “[R]easonable certainty” does not
mean “mathematical certainty,” but the plaintiff “must prove the
fact of damage and provide evidence sufficient to allow a reasonable
estimate of the loss sustained.” Id. (quoting Hoff & Leigh, Inc. v.
Byler, 62 P.3d 1077, 1079 (Colo. App. 2002)).
¶ 40 The Froids demanded relief for three different categories of
damages in their complaint: (1) the fees that they paid to Zacheis
throughout the custody proceedings;3 (2) the fees paid to successor
counsel to pursue grandparent visitation rights that they maintain
should have been secured at the mediation; and (3) noneconomic
damages. Because we have already concluded that the district
3 The Froids’ complaint listed a putative fourth category of damages:
“the fees paid for representing the Froids at the . . . mediation,
when [Zacheis] had a conflict of interest, and also negligently failed
to consider the possibility of a family rift in the future.” These
damages, however, are a mere subset of the Froids’ general demand
for a refund of the fees that they paid Zacheis “throughout the
custody proceedings.”
20
court correctly rejected the Froids’ claim for noneconomic damages
as a matter of law, we only consider their economic damages
claims.
¶ 41 Because it had already concluded that the Froids had not
adequately alleged causation, the district court did not address
damages in its original dismissal order. In its order denying the
Froids’ C.R.C.P. 59 motion, however, the court ruled that the Froids
were not entitled to recover the fees that they had paid to Zacheis
because “the economic damages they seek to recover were not
caused by any alleged malpractice.” As for the fees that the Froids
allegedly paid to successor counsel, the court ruled that “their
allegations as to damages and causation [were] speculative” unless
and until the Froids succeeded in their efforts to secure
grandparent visitation rights.
¶ 42 With respect to the Froids’ demand for an award of fees
already paid, Zacheis argues that the district court’s ruling accords
with the holding in McGee, in which the division rejected the
plaintiff’s claim for economic damages because there was “no
evidence that any attorney fees incurred by Ms. McGee in the
preparation for final orders would not have had to have been
21
incurred in any event.” 813 P.2d at 759. It is true that, irrespective
of whether there was any malpractice during the early stages of the
case, McGee needed representation for final orders. The division
rejected her claim for economic damages arising from that
representation because McGee did not show that her previous
attorney’s negligence made that phase of the case any more
expensive than it otherwise would have been.
¶ 43 This case is on a different footing because the Froids are
seeking an award of fees that they paid to Zacheis rather than
asking to be compensated for having to hire a new attorney to
represent them in proceedings that would have occurred
irrespective of the quality of their prior representation. Accordingly,
we do not read McGee as addressing, much less resolving, whether
plaintiffs in the Froids’ position may seek damages for the fees paid
to the attorney they accuse of malpractice. But that is one form of
relief that the Froids demand, and it is a remedy recognized under
Colorado law. See, e.g., Parks v. Edward Dale Parrish, LLC, 2019
COA 19, ¶ 16 (“One regular and legitimate function of a malpractice
action is to contest attorney fees claimed by the attorney alleged to
have committed malpractice.”); Roberts v. Holland & Hart, 857 P.2d
22492, 498-99 (Colo. App. 1993).4 Notably, Zacheis does not appear
to argue otherwise in her answer brief, but instead turns back to
the question of causation, asserting that “Plaintiffs’ argument that
they are entitled to a refund of their fees . . . simply ignores the
element of causation that must nevertheless exist before a client
can seek a refund of fees.” Because we have already concluded that
the Froids adequately alleged that malpractice by Zacheis harmed
their interests, we need not address this argument further.
¶ 44 As for the Froids’ demand for fees they paid to successor
counsel, we disagree that any claimed damages are speculative.
Whether the Froids adequately alleged damage due to Zacheis’s
alleged malpractice does not turn on the actual success of any
subsequent efforts to gain grandparent visitation rights.5 To the
4 Assuming the Froids are able to prove the other elements of their
legal malpractice claim, they would not be eligible to recover all of
the fees that they paid to Zacheis, but instead only those that they
paid for “services that were performed incompetently.” Roberts v.
Holland & Hart, 857 P.2d 492, 498 (Colo. App. 1993).
5 In addition, the Froids’ engagement of successor counsel is
distinguishable from the situation in McGee v. Hyatt Legal Services,
Inc., 813 P.2d 754 (Colo. App. 1990). In McGee, the division held
that the plaintiff could not seek reimbursement for fees associated
with the permanent orders hearing because those fees would have
been incurred regardless of the earlier attorney’s malpractice. Here,
23
contrary, all that the Froids needed to do to survive a motion to
dismiss was plausibly allege that Zacheis’s alleged malpractice
caused them to have to hire successor counsel in the first place.
Because that is exactly what the complaint asserted, it stated a
claim upon which relief could be granted and should not have been
dismissed under C.R.C.P. 12(b)(5).
IV. Conclusion
¶ 45 We affirm the district court’s judgment to the extent that it
dismissed the Froids’ claim for noneconomic damages. We reverse
the court’s dismissal of the Froids’ claims for economic damages
and remand the case for resolution of those claims.
JUDGE FOX and JUDGE HARRIS concur.
because the Froids hired successor counsel to initiate new
proceedings that were not an inevitable part of the custody dispute,
the fees that they paid to that attorney “would not have had to have
been incurred in any event.” Id. at 759.
24