Creative v. LeRoux

23CA1382 Creative v LeRoux 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1382
Adams County District Court No. 22CV30165
Honorable Teri L. Vasquez, Judge

Creative Acres, Inc., and Maxine Mager,

Plaintiffs-Appellants,

v.

LeRoux Law, LLC; L. Paul LeRoux II; Geigle Law Firm, LLC; Anna Geigle; Phillip
Geigle; Lampert & Walsh, LLC; Brian J. Lampert; and Sean Walsh,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE MOULTRIE
Kuhn and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Paul Gordon PLLC, Paul Gordon, Denver, Colorado, for Plaintiffs-Appellants

Childs McCune LLC, Daniel R. McCune, Corinne C. Miller, Denver, Colorado,
for Defendants-Appellees LeRoux Law, LLC, and L. Paul LeRoux II

McConnel Van Pelt, LLC, Traci L. Van Pelt, Denver, Colorado, for
Defendants-Appellees Geigle Law Firm, LLC, Anna Geigle, and Phillip Geigle

Messner Reeves LLP, Douglas C. Wolanske, Matthew W. George, Denver,
Colorado, for Defendants-Appellees Lampert & Walsh, LLC, Brian J. Lampert,
and Sean Walsh
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Plaintiffs, Creative Acres, Inc., and Maxine Mager (jointly, the

neighbors), appeal the district court’s judgment dismissing the

neighbors’ malpractice lawsuit against defendants, LeRoux Law,

LLC, and L. Paul LeRoux II (jointly, the LeRoux lawyers); Geigle Law

Firm, LLC, Anna Geigle, and Phillip Geigle (collectively, the Geigle

lawyers); and Lampert & Walsh, LLC, Brian J. Lampert, and Sean

Walsh (collectively, the Lampert lawyers). We reverse and remand

for further proceedings.

I. Background

¶2 The neighbors’ malpractice action arose out of the lawyers

(collectively, the defendant lawyers) representing the neighbors in a

lawsuit for damages resulting from a property fire (the fire action).

Due to the complicated procedural history, we first outline the

relevant background in the fire action and then discuss the

malpractice action.

1
A. The Fire Action

1. The LeRoux Lawyers and Geigle Lawyers’ Representation of the
Neighbors

¶3 Creative Acres owned a parcel of land on which Mager resided.

James Hazlet and Monte Hazlet owned several parcels of land

surrounding Creative Acres’ property.

¶4 In 2018, a fire started on one of the parcels owned by James1

and Monte and spread onto the neighbors’ property. In March

2019, the neighbors filed a complaint (initial complaint) in district

court (the fire action court), Adams County Case No. 19CV30458,

against James, Monte, and others for damages resulting from the

fire. The initial complaint alleged in part that James and Monte

had negligently permitted their son, Robert Hazlet, to operate a

shooting range on their property, which in turn caused a fire that

spread onto the neighbors’ property causing the neighbors various

1 Because James Hazlet, Monte Hazlet, and Robert Hazlet share a

last name, to avoid confusion, we will refer to them by their first
names. We intend no disrespect in doing so.

2
damages.2 The LeRoux and Geigle lawyers simultaneously

represented the neighbors at the outset of the fire action.

¶5 Robert died in February 2019, one month before the neighbors

filed the initial complaint. The LeRoux and Geigle lawyers hadn’t

named Robert’s estate as a party to the initial complaint, but they

amended the complaint in January 2020 to name Robert’s estate as

a defendant (amended complaint). Before amending the complaint,

the LeRoux and Geigle lawyers asked the probate court to appoint a

special administrator on behalf of Robert’s estate to allow the fire

action to proceed against the estate. The probate court appointed a

special administrator, but the special administrator’s authority was

limited and didn’t include the capacity to be sued on behalf of

Robert’s estate. The LeRoux and Geigle lawyers didn’t ask the

probate court to appoint a personal representative for Robert’s

estate — a person who could be sued if made a party to the fire

2 The neighbors also asserted claims against several individual

users of the gun range, who they alleged contributed to the fire.
Those individuals and their actions are not at issue in this appeal.

3
action3 — before the one-year time limit to do so expired in

February 2020.4

¶6 In the amended complaint, the LeRoux and Geigle lawyers

asserted a claim for direct negligence against James, Monte, and

Robert’s estate (collectively, the Hazlets), and a claim for vicarious

liability against James and Monte.5 With respect to the vicarious

liability claim, the neighbors alleged that Robert was an agent and

employee of James and Monte who was acting “within the scope of

his employment and authority” when the events leading to the fire

occurred.

¶7 In March 2020, Robert’s estate, through the special

administrator, filed a motion for summary judgment, asserting that

3 See § 15-12-804(1)(c), C.R.S. 2025 (requiring claims arising before

a decedent’s death to be filed against the personal representative for
a decedent’s estate).
4 See § 15-12-803(1)(a)(III), C.R.S. 2025 (barring claims against a

decedent’s estate that arose before a decedent’s death unless
brought within one year after the decedent’s death); C.R.C.P.
25(a)(1) (“If a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties. The motion
for substitution may be made by any party . . . .”); see also Sawyer
v. Kindred Nursing Ctrs. W., LLC, 225 P.3d 1161, 1164 (Colo. App.
2009) (a personal representative of a deceased party’s estate may be
substituted for a deceased party and participate in litigation).
5 The initial and amended complaints included additional claims for

relief against the Hazlets, none of which are at issue in this appeal.

4
it lacked the capacity to be sued and that a claim against it couldn’t

proceed without the appointment of a personal representative. That

same month, James and Monte filed a motion for summary

judgment and judgment on the pleadings, asserting that because

they had admitted vicarious liability for Robert’s conduct, the

neighbors’ negligence claim against them couldn’t proceed as a

matter of law.

¶8 The Geigle lawyers and LeRoux lawyers withdrew from

representing the neighbors in March and April 2020, respectively,

before a response to either motion for summary judgment was

submitted.

2. The Lampert Lawyers’ Representation of the Neighbors

¶9 In July 2020, the Lampert lawyers entered an appearance on

the neighbors’ behalf. Later that month, the Lampert lawyers filed

a motion asking the fire action court to dismiss the neighbors’

claims against Robert’s estate. Acknowledging — and agreeing with

— the arguments in the special administrator’s motion for summary

judgment, the Lampert lawyers asked the court to dismiss the

neighbors’ claims against Robert’s estate without prejudice to cure

the amended complaint’s “procedural deficiencies.” The fire action

5
court granted the motion and dismissed Robert’s estate from the

fire action.

¶ 10 In August 2020, the fire action court granted summary

judgment in favor of James and Monte on the neighbors’ direct

negligence claim. Noting that James and Monte had admitted that

Robert was their agent and they were therefore vicariously liable if

his actions were found to be negligent, the fire action court

determined that James and Monte couldn’t also be liable for direct

negligence.

¶ 11 Two months later, James and Monte also moved for summary

judgment on the neighbors’ vicarious liability claim. James and

Monte argued that because the neighbors couldn’t show that Robert

owed the neighbors a legal duty of care, the neighbors couldn’t

prove that Robert was negligent, and the neighbors’ vicarious

liability claim against them necessarily failed. James and Monte

also argued that the neighbors’ allegations only consisted of James

and Monte’s failures to act, but the neighbors couldn’t prove James

and Monte owed the neighbors a duty of care because the neighbors

hadn’t demonstrated the existence of a “special relationship”

necessary to support negligence claims based on nonfeasance. The

6
fire action court agreed that James and Monte didn’t owe the

neighbors a duty of care and granted the second motion for

summary judgment.

¶ 12 James died in October 2020, less than three weeks after the

second motion for summary judgment was filed. Monte died in

December 2020. The Lampert lawyers didn’t timely seek to

substitute representatives for James’s or Monte’s estates as parties

to the fire action. The Lampert lawyers withdrew as the neighbors’

counsel in October 2021. The fire action court entered a final

judgment in June 2022 that dismissed all of the neighbors’ claims

against the Hazlets with prejudice.

¶ 13 The neighbors filed a notice of appeal in this court seeking

review of both of the fire action court’s orders granting summary

judgment.6

6 That appeal, Court of Appeals Case No. 22CA2061, was pending at

the same time as the litigation in the malpractice action. A division
of this court dismissed the appeal as to the merits without issuing
an opinion. Mager v. Hazlet, (Colo. App. No. 22CA2061, Nov. 27,
2023) (unpublished order).

7
B. The Malpractice Action

1. Original Malpractice Complaint

¶ 14 In February 2022, the neighbors filed a legal malpractice

action against the defendant lawyers, asserting that they were

negligent and failed to act as “reasonably careful” attorneys because

they didn’t

• timely move for appointment of a personal representative for

Robert’s estate (as against the LeRoux and Geigle lawyers);

• withdraw the vicarious liability claim against James and

Monte (as against all defendant lawyers); or

• timely move for the appointment of personal representatives

for James’s and Monte’s estates (as against the Lampert

lawyers).7

¶ 15 The Geigle lawyers filed a counterclaim against the neighbors

for breach of contract. The Geigle lawyers asserted that between

August 2019 and March 2020, the neighbors failed to pay them for

7 The neighbors also alleged that the defendant lawyers negligently

failed to timely endorse certain expert witnesses. We deem that
issue abandoned because the neighbors haven’t raised it on appeal.
Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, ¶ 38 (arguments
not raised on appeal are abandoned).

8
costs and expenses that the Geigle lawyers incurred while

representing the neighbors in the fire action, as required by the fee

agreement.

¶ 16 The Lampert lawyers moved to dismiss the neighbors’

complaint under C.R.C.P. 12(b)(5) and supported the motion with

over 200 pages of documents from the fire action, including the

initial complaint, amended complaint, and various orders. The

Lampert lawyers asserted that the neighbors couldn’t prove the case

within a case required to prevail in their malpractice action because

they couldn’t demonstrate that the Hazlets owed them a legal duty

of care, such that the neighbors would have prevailed in the fire

action “but for” the Lampert lawyers’ negligence.

¶ 17 The court agreed with the Lampert lawyers’ reasoning and

granted the motion to dismiss (first Lampert judgment). The court

concluded that neither the Lampert lawyers’ failure to timely move

for appointment of personal representatives for the Hazlets nor their

failure to withdraw the vicarious liability claim against James and

Monte caused the neighbors to lose the fire action. Rather, the

court reviewed the fire action court’s findings and conclusions and

determined that the neighbors’ direct negligence and vicarious

9
liability claims would have been dismissed regardless of the

Lampert lawyers’ alleged malpractice because the fire action court

had concluded that the Hazlets didn’t owe the neighbors a legal

duty.

¶ 18 The neighbors filed a motion for “reconsideration or

clarification” of the first Lampert judgment, arguing that the court

had relied on the fire action court’s “inherently unreliable” findings.

Thus, the neighbors sought clarification of whether the court had

concluded “that the Hazlets owed no duty to [the neighbors] or,

instead, conclude[d] that the [fire action court’s] conclusion (right or

wrong) was a superseding cause or, further, both.”

¶ 19 The court declined to reconsider its judgment and affirmed its

finding that the Lampert lawyers’ alleged acts of malpractice “were

not the proximate cause of [the neighbors’] alleged damages

because the [fire action court’s] determinations were a superseding

cause.” The court said,

Because the underlying court determined that
[the neighbors] could not have succeeded on
[their negligence] claim as a matter of law even
if a personal representative was appointed, the
[c]ourt finds that this was a superseding cause
of [the neighbors’] alleged damages. As such,
[the Lampert lawyers’] failure to move for

10
appointment of a personal representative . . .
did not proximately cause injury to [the
neighbors] as a matter of law.

2. Amended Malpractice Complaint

¶ 20 The court authorized the neighbors to amend their complaint

in July 2022 (amended malpractice complaint). The amended

malpractice complaint asserted that the defendant lawyers were

negligent and breached the applicable standard of care by failing to

• timely seek the appointment of and move for substitution of

the personal representatives for each of the Hazlets’ estates; or

• preserve for appeal the neighbors’ arguments that (1) the

Hazlets owed the neighbors a “duty not to set [the neighbors’]

property on fire and a duty to prevent fire on the Hazlets’

property from spreading [onto] the [neighbors’] property” and

(2) the Hazlets’ estates were liable for the neighbors’ damages.

With respect to the Lampert lawyers, the neighbors argued that the

failure to timely substitute representatives for James’s and Monte’s

estates caused the neighbors to lose their appeal of the fire action

because they couldn’t have “file[d] an appeal against [parties] that

were never substituted into the case.”

11
¶ 21 The Lampert lawyers moved to dismiss the neighbors’

amended malpractice complaint under Rule 12(b)(5). As to the

neighbors’ appeal-related malpractice allegations, they argued that

(1) the record in the fire action demonstrated that they had

preserved the neighbors’ arguments related to the Hazlets’ duty and

liability; (2) they withdrew “as attorneys of record almost eight

months before judgment entered and therefore could not have

pursued an appeal” on the neighbors’ behalf; and (3) the neighbors’

assertion that they couldn’t file an appeal because the estates

weren’t substituted was an unsubstantiated legal conclusion.

¶ 22 The court granted the Lampert lawyers’ motion and dismissed

the neighbors’ claims against them (second Lampert judgment). As

relevant here, the court again found that because the Hazlets didn’t

owe a legal duty to the neighbors, the Lampert lawyers’ failure to

substitute the estates’ personal representatives couldn’t have

proximately caused any damages the neighbors suffered as a result

of losing the fire action or the subsequent appeal.

¶ 23 Between the court’s issuance of the first and second Lampert

judgments, the LeRoux lawyers filed a motion requesting dismissal

under Rule 12(b)(5) or for judgment on the pleadings under Rule

12
12(c). The Geigle lawyers joined the motion, noting that the claims

against both attorney groups were identical. The LeRoux and

Geigle lawyers argued that because the court had already

determined in the first Lampert judgment that the Hazlets didn’t

owe a legal duty to the neighbors, the attorneys’ actions, even if

negligent, couldn’t have changed the outcome of the fire action.

The LeRoux and Geigle lawyers thus argued that the neighbors’

malpractice claims failed because the neighbors couldn’t prove their

case within a case. The court agreed and dismissed the neighbors’

malpractice claims against the LeRoux and Geigle lawyers

(LeRoux-Geigle judgment).

¶ 24 The neighbors asked the court to reconsider the LeRoux-Geigle

judgment, arguing that the court didn’t consider the amended

malpractice complaint. The court denied the request for

reconsideration in a written order that incorporated its legal

conclusions from the second Lampert judgment, noting that

because the Hazlets didn’t owe the neighbors a duty, any failure by

the LeRoux and Geigle lawyers to preserve the neighbors’

13
arguments for appeal would still fail under the case within a case

standard for legal malpractice causation.8

¶ 25 In August 2023, the court granted the parties’ stipulated

dismissal of the Geigle lawyers’ counterclaim without prejudice

(August 2023 judgment).

¶ 26 The neighbors appeal.

II. Appellate Jurisdiction

¶ 27 We first consider whether we have jurisdiction to consider the

neighbors’ appeal. See Harding Glass Co. v. Jones, 640 P.2d 1123,

1126 (Colo. 1982). This court only has jurisdiction over appeals

from final judgments. § 13-4-102(1), C.R.S. 2025; C.A.R. 1(a). A

final judgment is one that “ends the particular action in which it is

entered, leaving nothing further for the court pronouncing it to do

except to execute the judgment.” Musick v. Woznicki, 136 P.3d 244,

249 (Colo. 2006) (citation omitted). We consider the legal effect of

8 This order resolved the last of the substantive motions in the

malpractice action. A division of this court dismissed the
neighbors’ direct appeal of the fire action approximately one week
later. Mager v. Hazlet, (Colo. App. No. 22CA2061, Nov. 27, 2023)
(unpublished order).

14
an order rather than its form to determine its finality. Good Life

Colo., LLC v. WLCO, LLC, 2025 COA 8M, ¶ 26.

¶ 28 In a joint motion to dismiss this appeal, the defendant lawyers

argue that there is no final, appealable order vesting this court with

jurisdiction because (1) the August 2023 judgment dismissed the

counterclaim without prejudice, and the counterclaim is subject to

the six-year statute of limitations in section 13-80-103.5, C.R.S.

2025, which has not yet run; and (2) the neighbors failed to certify

as final judgments any of the orders they are asking us to review.

We aren’t persuaded.

¶ 29 In their counterclaim, the Geigle lawyers asserted they were

entitled to payment of litigation-related costs and expenses incurred

under the terms of two fee agreements with the neighbors. The fee

agreements stated that the Geigle lawyers would provide the

neighbors with periodic billing statements detailing the incurred

costs and expenses, which the neighbors were required to pay in

full within thirty days of receipt. The agreements contained

“examples of such costs and expenses,” provided a price range of

estimated future costs and expenses, and informed the neighbors

that “actual costs may be higher or lower.”

15
¶ 30 Section 13-80-101(1)(a), C.R.S. 2025, says that contract

claims must be brought within three years after a claim accrues.

But section 13-80-103.5(1)(a) contains an exception for claims that

seek to “recover a liquidated debt or an unliquidated, determinable

amount of money due to the person bringing the action.”

¶ 31 In Rotenberg v. Richards, 899 P.2d 365, 367 (Colo. App. 1995),

a division of this court reviewed whether a lawyer’s claim for breach

of contract based on a fee agreement obligating the lawyer’s client to

pay $100 per hour for the lawyer’s services was subject to section

13-80-101(1)(a)’s three-year statute of limitations or section

13-80-103.5(1)(a)’s six-year statute of limitations. The division

concluded that, for purposes of section 13-80-103.5(1)(a), an

amount owed is either liquidated or determinable “if the amount

due is capable of ascertainment by reference to an agreement or by

simple computation.” Rotenberg, 899 P.2d at 367. The division

further concluded that regardless of whether the client contested

the reasonableness of the hours expended on his behalf, the

amount owed was determinable because the fee agreement set forth

the “specific method” for determining what was due. Id. at 368.

Stated differently, the Rotenberg division concluded that a debt is

16
determinable for purposes of section 13-80-103.5(1)(a) if the terms

of the agreement governing the debt provide a formula for

calculating it.

¶ 32 The defendant lawyers assert that section 13-80-103.5(1)(a)’s

six-year statute of limitations applies in this case because the

Geigle lawyers’ counterclaim was for a “specific, determinable debt.”

They thus argue that the August 2023 judgment wasn’t a final

appealable order because “[t]he last invoice submitted to [the

neighbors] by the [Geigle lawyers] was on March 26, 2020, with

payment due within 30 days . . . . [;] [t]herefore, the statute of

limitations does not run until on or about April 25, 2026.” We

disagree.

¶ 33 Unlike the fee agreement in Rotenberg, the Geigle lawyers’ fee

agreements only gave examples of the types of costs and expenses

to which the lawyers were entitled, rather than providing a formula

for calculating them. Thus, the Geigle lawyers’ counterclaim was

subject to section 13-80-101(1)(a)’s three-year statute of limitations

because it didn’t seek to recover a determinable amount of money

owed. Accordingly, even assuming April 26, 2020, as the latest

possible date on which the Geigle lawyers’ breach of contract claim

17
could have accrued, the three-year statute of limitations expired as

of April 26, 2023, and the court’s August 2023 judgment was

therefore final once the court issued it. SMLL, L.L.C. v. Daly, 128

P.3d 266, 268 (Colo. App. 2005) (dismissal without prejudice

constitutes a final judgment when the applicable statute of

limitations period has expired).

¶ 34 We also reject the defendant lawyers’ argument that we lack

jurisdiction because the neighbors failed to certify under C.R.C.P.

54(b) any of the orders they are asking us to review.

¶ 35 Rule 54(b) provides in pertinent part:

When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim or third-party
claim, . . . the court may direct the entry of a
final judgment as to one or more but fewer
than all of the claims or parties only upon an
express determination that there is no just
reason for delay and upon an express direction
for the entry of judgment. In the absence of
such determination and direction, any
order . . . which adjudicates fewer than all the
claims or the rights and liabilities of fewer than
all the parties shall not terminate the action as
to any of the claims, or parties . . . .

¶ 36 While the neighbors didn’t seek to certify the first Lampert

judgment, the second Lampert judgment, or the LeRoux-Geigle

18
judgment, Rule 54(b) didn’t require them to. The malpractice action

didn’t become final until August 2023 when the Geigle lawyers’

counterclaim was resolved. Kempter v. Hurd, 713 P.2d 1274, 1278

(Colo. 1986) (“[L]itigation involving multiple claims or multiple

parties is treated as a single action which is not final and

appealable until all of the issues in the litigation are adjudicated.”).

¶ 37 Accordingly, we have jurisdiction over this appeal.

III. Discussion

¶ 38 The neighbors contend that the court erred by (1) concluding

that they couldn’t win the case within a case necessary to prove

causation in their malpractice action because they couldn’t

demonstrate that the Hazlets owed them a legal duty;

(2) determining as a matter of law that the neighbors couldn’t prove

the causation element of their malpractice claim because the fire

action court’s “judicial error” was a superseding cause of the

neighbors’ damages; and (3) concluding that any negligence by the

defendant lawyers in failing to join the Hazlets’ estates was not the

proximate cause of the neighbors’ unsuccessful appeal of the fire

action.

19
¶ 39 We conclude that the court erroneously reached the merits of

the neighbors’ malpractice claim by conclusively determining that

the neighbors couldn’t demonstrate their ability to prevail in the fire

action. During the pleading phase of the proceedings, the

neighbors only needed to plausibly allege the causation element of

malpractice — which they did, as we discuss below. Because we

reverse on that basis, and because the neighbors’ second and third

contentions concern the merits of their malpractice claim, we

decline to address them.

A. Standard of Review and Applicable Law

¶ 40 “We review a [Rule] 12(b)(5) motion to dismiss de novo and

apply the same standards as the trial court.” Norton v. Rocky

Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7. In doing so, we

accept all factual allegations in the complaint as true and view them

in the light most favorable to the plaintiff; however, we are not

required to accept as true bare legal conclusions. Id.

¶ 41 A plaintiff must allege a plausible claim for relief to survive a

Rule 12(b)(5) motion to dismiss. Scott v. Scott, 2018 COA 25, ¶ 19;

see also Warne v. Hall, 2016 CO 50, ¶ 24 (adopting plausibility

standard in Colorado). Whether a complaint states a plausible

20
claim for relief is context-dependent and “requires the reviewing

court to draw on its judicial experience and common sense.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A claim is plausible

when its factual allegations raise a right to relief above the

speculative level, allowing us to draw reasonable inferences that the

defendant is liable for the misconduct alleged. Woodall v. Godfrey,

2024 COA 42, ¶ 7.

¶ 42 While motions to dismiss under Rule 12(b)(5) are generally

disfavored, we will uphold a court’s grant of a motion to dismiss

when the plaintiff’s factual allegations don’t, as a matter of law,

support the claim for relief. Id. at ¶ 9.

¶ 43 We also review de novo a court’s order granting judgment on

the pleadings under Rule 12(c). Melat, Pressman & Higbie, L.L.P. v.

Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 16. In doing so, we “must

construe the allegations in the pleadings strictly against the movant

[and] . . . consider the allegations of the opposing parties’ pleadings

as true.” Redd Iron, Inc. v. Int’l Sales & Servs. Corp., 200 P.3d 1133,

1135 (Colo. App. 2008); see also BSLNI, Inc. v. Russ T. Diamonds,

Inc., 2012 COA 214, ¶ 13 (noting that the standard used to resolve

21
a motion for judgment on the pleadings is consistent with the

standard used to resolve a Rule 12(b)(5) motion to dismiss).

¶ 44 To establish a legal malpractice claim based on negligence, a

plaintiff must prove that (1) the attorney owed a duty of care to the

plaintiff; (2) the attorney breached that duty; (3) the breach caused

an injury to the plaintiff; and (4) damages resulted. Boulders at

Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC, 2015

COA 85, ¶¶ 27, 31.

¶ 45 Establishing whether an attorney’s negligence caused a

plaintiff’s injury requires determining whether the alleged

malpractice was the actual cause (cause in fact) and legal cause

(proximate cause) of the plaintiff’s injury. Id. at ¶ 31. The parties’

arguments focus solely on the cause in fact determination

necessary to prove malpractice.

¶ 46 Cause in fact is measured by the “but for” test — that is,

“whether, but for the alleged negligence, the harm would not have

occurred.” Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977, 985

(Colo. App. 2011) (citation omitted). To establish causation in fact

in cases such as this where a plaintiff claims their attorney’s

malpractice prevented them from prevailing in a lawsuit, a plaintiff

22
must prove a case within a case. LeHouillier v. Gallegos, 2019 CO

8, ¶ 19. In other words, to succeed on a malpractice claim, a

plaintiff must prove that the claim underlying the malpractice

action would have been successful but for the attorney’s negligence.

Id.; Boulders at Escalante, ¶ 33.

¶ 47 When, as here, a defendant moves under Rule 12(b)(5) to

dismiss a malpractice claim that requires the plaintiff to prove their

case within a case, the plaintiff’s factual allegations, accepted as

true, must plausibly support the plaintiff’s malpractice claims and

the claims in the complaint from which the plaintiff’s malpractice

claims arose to survive dismissal. See Froid v. Zacheis, 2021 COA

74, ¶¶ 36-38 (noting that to defeat a Rule 12(b)(5) motion to

dismiss, plaintiffs need only plausibly allege the causation element

of malpractice, but they must prove their case within a case by a

preponderance of the evidence at trial).

B. Analysis

¶ 48 To survive the motions to dismiss, the neighbors needed to

plausibly allege — but not conclusively prove — that they would

have prevailed in the fire action but for the defendant lawyers’

negligence. Accepting the neighbors’ factual allegations as true, we

23
conclude that the neighbors’ amended malpractice complaint

plausibly alleges that (1) the Hazlets owed them a legal duty, such

that they could have prevailed in the fire action; and (2) but for the

defendant lawyers’ actions, their claims in the fire action wouldn’t

have been dismissed.

1. The Neighbors Plausibly Alleged that the Hazlets Owed Them a
Duty

¶ 49 To have succeeded in the fire action, the neighbors were

required to establish in relevant part that the Hazlets breached a

legal duty owed to them. Casebolt v. Cowan, 829 P.2d 352, 356

(Colo. 1992). “Generally, every individual owes a duty of ordinary

care not to create an unreasonable risk of harm to others.”

Laughman v. Girtakovskis, 2015 COA 143, ¶ 11. And landowners

have a duty to prevent activities and conditions on their land from

creating an unreasonable risk of harm to others. State, Dep’t of

Health v. The Mill, 887 P.2d 993, 1002 (Colo. 1994).

¶ 50 The defendant lawyers argue that the neighbors’ ability to

prove their case within a case was doomed because the neighbors’

fire action claims were based solely on the Hazlets’ alleged

nonfeasance, and the Hazlets and the neighbors didn’t have a

24
“special relationship” that established a legal duty. See Univ. of

Denv. v. Whitlock, 744 P.2d 54, 57-58 (Colo. 1987) (noting that in

negligence cases alleging nonfeasance, Colorado has only

recognized a legal duty of care for the following relationships:

carrier/passenger, innkeeper/guest, possessor of land/invited

entrant, employer/employee, parent/child, and hospital/patient).

¶ 51 We disagree that the neighbors’ complaint solely contained

allegations about the Hazlets’ nonfeasance.

¶ 52 The neighbors made the following general allegations about

the circumstances related to the fire:

• In March 2018, a fire began near a shooting range on the

Hazlets’ property that spread onto the neighbors’ property.

• The area on and around the Hazlets’ property contained

extremely dry vegetation, and it was windy on the date of the

fire.

• The Hazlets “knew or should have known” that there were

“dry, windy and drought conditions” existing on the date of the

fire.

The neighbors also alleged the following affirmative actions by the

Hazlets:

25
• The Hazlets were each responsible for the operation of the

shooting range located on their property and had conducted

activities on their property for years.

• James and Monte granted Robert the authority to operate and

control access to the shooting range.

• Robert was acting within the scope of the authority James and

Monte granted to him at the time of the fire.

• The Hazlets each allowed individuals to discharge firearms at

the shooting range on their property.

¶ 53 To decide the existence and scope of a duty based on

affirmative actions, courts consider the following nonexclusive

factors: the risk involved, the foreseeability and likelihood of injury,

the “social utility” of the actor’s conduct, the magnitude of the

burden of protecting against injury, and the consequences of the

burden on the actor. Id. at 57.

¶ 54 Accepting as true the neighbors’ allegations, viewing them in

the light most favorable to the neighbors, and drawing all inferences

in the neighbors’ favor, we conclude that the neighbors have

plausibly alleged that (1) the Hazlets and the neighbors were

adjoining property owners; (2) the Hazlets owned and operated a

26
shooting range on their land for an extended period of time; (3) the

portion of the Hazlets’ property that had been used as a shooting

range was in operation on the date of the fire; (4) on the date of the

fire, the Hazlets allowed and authorized several individuals to

engage in firing weapons despite being aware that vegetation on and

around their property was extremely dry and weather conditions

were windy; and (5) a fire started in the area of the shooting range

and spread onto the neighbors’ property after the Hazlets allowed

and authorized the individuals to engage in shooting.

¶ 55 Certainly, there is at least some risk of injury that arises from

shooting weapons, see generally, Hilberg v. F.W. Woolworth Co., 761

P.2d 236, 241 (Colo. App. 1988) (noting that it’s common knowledge

that guns are potentially dangerous), overruled on other grounds by,

Casebolt, 829 P.2d at 360, and defendants need not foresee the

exact nature or extent of harm to another to be held liable for their

negligent actions, Garcia v. Colo. Cab Co., 2023 CO 56, ¶ 22

(foreseeability is based on common sense perceptions of the risks

created by various conditions and circumstances). See also Taco

Bell, Inc. v. Lannon, 744 P.2d 43, 48 (Colo. 1987) (foreseeable injury

“includes whatever is likely enough in the setting of modern life that

27
a reasonably thoughtful person would take account of it in guiding

practical conduct.” (quoting 3 Fowler V. Harper, Fleming James, Jr.

& Oscar S. Gray, The Law of Torts § 18.2, at 658-59 (2d ed. 1986))).

¶ 56 Allowing people to shoot weapons on private land arguably has

limited social utility. Additionally, because the Hazlets admitted

that they didn’t use the shooting range as a commercial business,

disallowing people to use their property as a shooting range would

likely minimally burden the Hazlets while preventing risk of

significant injury to nearby property owners. And given the dry and

windy conditions when the Hazlets allowed shooting on their

property, a brush fire was within the realm of likely and foreseeable

consequences.

¶ 57 Thus, the neighbors have plausibly alleged that the Hazlets

owed them a legal duty because the factual allegations in the

amended complaint are sufficiently detailed to allow us to

reasonably infer that the Hazlets engaged in activities on their land

that created an unreasonable risk of harm to the neighbors.

28
2. The Neighbors Plausibly Alleged They Could Have Prevailed in
the Fire Action “But For” the Defendant Lawyers’ Negligent
Actions

¶ 58 In support of their assertion that the defendant lawyers’

negligent representation caused them to lose the fire action, the

neighbors alleged the following in their amended malpractice

complaint:

• The LeRoux and Geigle lawyers filed a lawsuit that named

James and Monte as defendants, asserting that they

negligently owned and operated a private firing range that

ultimately led to a fire that spread to the neighbors’ property,

causing the neighbors damages.

• James’s and Monte’s negligent actions included allowing

Robert to manage and operate the firing range under unsafe

conditions.

• Robert died before the lawsuit was filed. The LeRoux and

Geigle lawyers later named Robert’s estate as a defendant.

• The LeRoux and Geigle lawyers asked the court to appoint a

special administrator for Robert’s estate.

29
• The probate court appointed a special administrator but

expressly limited the special administrator’s ability to be sued

on behalf of Robert’s estate.

• The LeRoux and Geigle lawyers withdrew and were succeeded

by the Lampert lawyers.

• None of the defendant lawyers asked the probate court to

appoint a personal representative or other person who could

be sued on behalf of Robert’s estate and the probate court

didn’t otherwise appoint any such person.

• The Lampert lawyers asked the fire action court to dismiss the

claims against Robert’s estate. The court dismissed the claims

against Robert’s estate as requested.

• The Hazlets moved for dismissal of or summary judgment on

the neighbors’ claims against them, arguing that they didn’t

owe the neighbors a duty and that the neighbors couldn’t

simultaneously assert direct liability and vicarious liability

claims.

• The LeRoux and Geigle lawyers withdrew from the case after

that motion was filed, and the Lampert lawyers joined the case

while that motion was pending.

30
• Despite being placed on notice by that motion that James’s

and Monte’s admission of vicarious liability for Robert’s

conduct conflicted with the neighbors’ ability to pursue direct

negligence claims against James and Monte, none of the

defendant lawyers asked to withdraw the neighbors’ vicarious

liability claims.

• The court entered summary judgment in favor of James and

Monte on the neighbors’ direct negligence and vicarious

liability claims.

¶ 59 Accepting these allegations as true, we can reasonably infer

that if the LeRoux and Geigle lawyers had timely sought to have a

personal representative appointed for Robert’s estate, the Lampert

lawyers wouldn’t have asked the fire action court to dismiss

Robert’s estate for “procedural deficiencies.” In turn, if the Lampert

lawyers hadn’t asked to dismiss Robert’s estate — a request they

made without having secured a personal representative for Robert’s

estate, several months after the deadline to bring claims against his

estate had passed — the neighbors’ direct negligence claim against

Robert’s estate would have survived. And because we’ve concluded

that the neighbors plausibly alleged that the Hazlets owed them a

31
duty of care, the neighbors’ direct negligence claim against Robert

was a plausible claim for relief. Thus, as pleaded in the complaint,

but for the defendant lawyers’ actions, the neighbors wouldn’t have

lost their only viable claim against Robert’s estate.

¶ 60 Similarly, the neighbors’ direct negligence claims against

James and Monte were viable because the neighbors plausibly

alleged that the Hazlets owed them a duty of care. And the

neighbors could have pursued their plausible direct negligence

claims against James and Monte but for the defendant lawyers’

failure to withdraw the alternative vicarious liability claims. See

Brown v. Long Romero, 2021 CO 67, ¶¶ 28-29 (holding that a

plaintiff may not bring both a direct negligence claim and a

vicarious liability claim against a defendant — regardless of whether

the defendant acknowledges vicarious liability — because bringing

both claims is redundant).

¶ 61 The neighbors have plausibly alleged that the Hazlets owed

them a duty, such that they could potentially prove their case

within a case at a trial for legal malpractice, and they plausibly

alleged that but for the defendant lawyers’ actions, their claims in

the fire action wouldn’t have been dismissed. See Froid, ¶¶ 36-38.

32
Accordingly, we reverse the district court’s judgments dismissing

the neighbors’ malpractice claims against the defendant lawyers. In

doing so, we express no opinion on the ultimate success of those

claims on remand.

IV. The Parties’ Requests for Fees and Costs

¶ 62 All parties request their attorney fees and costs related to the

defendant lawyers’ motion to dismiss the appeal for lack of

appellate jurisdiction. The neighbors seek costs and fees against

the defendant lawyers under section 13-17-102, C.R.S. 2025; the

defendant lawyers seek their costs and fees against the neighbors

under C.A.R. 38(a) and (b).

¶ 63 Section 13-17-102(4) authorizes a court to award attorney fees

against a party who brought an action lacking substantial

justification. Similarly, we are authorized to impose sanctions

under C.A.R. 38 “in clear cases” where a proponent hasn’t

presented a rational argument based on the evidence or law in

support of their claims, or when an appeal is prosecuted for the sole

purpose of harassment or delay. Mission Denv. Co. v. Pierson, 674

P.2d 363, 366 (Colo. 1984). While we weren’t persuaded by the

defendant lawyers’ arguments, they didn’t lack substantial

33
justification. And because we have concluded that we have

jurisdiction over this appeal, we decline to sanction the neighbors.

Accordingly, we deny the parties’ requests for attorney fees related

to the defendant lawyers’ motion to dismiss the appeal. However,

the neighbors are entitled to their appellate costs under C.A.R.

39(a)(3), which provides, “[I]f a judgment is reversed, costs are taxed

against the appellee.” The neighbors may pursue those costs in the

district court by following the procedure set forth in C.A.R. 39(c)(2).

V. Disposition

¶ 64 The judgment is reversed, and the case is remanded to the

district court with instructions to reinstate the neighbors’ amended

malpractice complaint.

JUDGE KUHN and JUDGE BERNARD concur.

34