v Zacheis

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

22
492, 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