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.

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.
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 PlaintiffsAppellants

Gordon & Rees LLP, John M. Palmeri, John R. Mann, Margaret Boehmer, 

Denver, Colorado, for Defendants-Appellees
1

¶ 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 
2

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 

 

1 The complaint does not state whether Brian Froid intervened as a 

petitioner or respondent.
3

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 
4

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). 
5

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.”
6

¶ 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 
7

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-inlaw, 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., 
8

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. 
9

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 
10

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 
11

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 
12

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 
13

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 
14

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; 
15

(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)). 
16

¶ 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 
17

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”;
18

 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 
19

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.
20

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.” 
21

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 
22

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 
23

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, 
24

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.