2021 COA 74
Colo. Ct. App.2021Background
- A car crash killed a child’s parents; Cheryl and Brian Froid (maternal grandparents) became temporary co-guardians and primary caregivers for the two-year-old.
- The Froids and the child’s aunt/uncle (the Arnolds) were represented by attorney Kristin Zacheis; Zacheis continued to represent both families through mediation to finalize a permanent parenting plan.
- The Froids asked that express grandparent-visitation language be included in the plan; Zacheis told them it was unnecessary because they could see the child when she was with the Arnolds.
- The court approved a plan that expressly protected the paternal grandmother’s visitation but not the Froids’; subsequently the Arnolds cut off the Froids’ contact and the Froids retained successor counsel to seek grandparent visitation.
- The Froids sued Zacheis for legal malpractice (negligence and breach of fiduciary duty), seeking economic damages (fees paid to Zacheis and to successor counsel) and noneconomic damages (loss of consortium); the district court dismissed noneconomic damages under McGee and dismissed economic damages for failure to plausibly plead causation.
- The Court of Appeals affirmed dismissal of noneconomic damages but reversed the dismissal of economic damages and remanded for resolution of those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recoverability of noneconomic damages in custody/visitation malpractice | McGee is wrong or distinguishable; Froids seek emotional/consortium damages for loss of contact | McGee controls: noneconomic custody-related damages are unrecoverable; custody matters reserved to domestic court and damages hard to quantify | Affirmed: noneconomic damages barred under McGee and related precedent |
| Whether McGee bars economic damages (attorney fees) in this context | Economic damages (refund of fees paid to Zacheis and fees paid to successor counsel) remain viable and not categorically barred by McGee | McGee and public policy counsel against recovery; fees would have been incurred anyway | Reversed: McGee does not categorically bar economic damages here; such claims can proceed |
| Adequacy of pleaded causation for economic damages ("case within a case") | Complaint alleges factual basis (primary caregivers, temporary decision-making authority, court approved similar visitation for paternal grandmother, Zacheis’ advice) making it plausible other parties and the court would have approved express Froid visitation | Complaint fails to allege other parties or court would have agreed or granted visitation; damages speculative | Reversed: factual allegations sufficiently plead causation and plausibly support economic-damages claim at pleading stage |
| Recoverability of fees paid to original and successor counsel | Seeks refund of fees paid to Zacheis for incompetently performed services and recovery of fees paid to successor counsel incurred because of malpractice | Fees to original counsel may have been inevitably incurred; successor fees speculative unless eventual success | Reversed as to both: refund/fee claims legally recognized and sufficiently pleaded to survive 12(b)(5); any recovery later limited to incompetent services and proven damages |
Key Cases Cited
- McGee v. Hyatt Legal Services, Inc., 813 P.2d 754 (Colo. App. 1990) (barred noneconomic damages in custody-related legal malpractice and emphasized policy/measurement concerns)
- Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999) (refused to recognize filial/parental consortium; monetary recovery inadequate for companionship loss)
- Lee v. Colorado Department of Health, 718 P.2d 221 (Colo. 1986) (similar limits on consortium/emotional damages)
- Roberts v. Holland & Hart, 857 P.2d 492 (Colo. App. 1993) (malpractice plaintiff may recover fees for services performed incompetently)
- Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977 (Colo. App. 2011) (discusses causation and the "case within a case" concept)
- Vanderbeek v. Vernon Corp., 50 P.3d 866 (Colo. 2002) (standard for proximate cause in negligence)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (legal conclusions are not entitled to a presumption of truth for plausibility analysis)