2021 COA 74. No. 20CA0021. Froid v. Zacheis.
Economic Damages—Family Law—Legal Malpractice—Grandparent Visitation Rights.
May 27, 2021
The child’s parents were killed in an automobile crash. Froid, the maternal grandmother, and child’s paternal grandmother were named the child’s co-guardians on a temporary basis. Arnold is the child’s aunt.
Froid and her husband Brian engaged Zacheis and her law firm, Houtchens, Greenfield, Sedlak & Zacheis LLC (collectively, Zacheis), to represent them and Arnold and her husband (Arnolds). Zacheis filed a petition for allocation of parental responsibilities (APR) naming the Arnolds as petitioners and Froid and the child’s paternal grandmother as respondents. Shortly thereafter, Zacheis moved to intervene on behalf of Brian Froid. Zacheis then filed various motions on behalf of all of her clients intended to modify the temporary co-guardianship and place the child in the Froids’ primary care and custody. The parties decided to mediate to agree on a permanent parenting plan, and Zacheis continued to represent both the Froids and the Arnolds at the mediation. The Froids expressed concerns to Zacheis about losing their visitation rights, but no visitation rights were included for them in the permanent parenting plan. Ultimately, the Arnolds cut the Froids off from the child completely. The Froids then hired another attorney to seek grandparent visitation rights.
The Froids sued Zacheis alleging malpractice based on negligence and breach of fiduciary duty and demanded both economic and noneconomic damages. The alleged economic damages were legal fees throughout the custody proceedings and the mediation, and the fees for successor counsel. Noneconomic losses were those associated with the complete loss of contact with their granddaughter. Zacheis moved to dismiss relying on McGee v. Hyatt Legal Services, Inc., 813 P.2d 754 (Colo.App. 1990), arguing that noneconomic damages arising from custodial orders are not compensable, and attorney fees related to such orders are not recoverable. The district court granted the motion. The Froids then filed a CRCP 59 motion, which the court also denied.
On appeal, the Froids argued that they are entitled to recover noneconomic damages either because McGee is distinguishable or is no longer on sound legal footing. However, McGee is well-reasoned and consistent with subsequent Supreme Court cases. Accordingly, the district court appropriately dismissed the noneconomic damages claims.
The Froids also argued that the district court erred in dismissing their claim for economic damages after concluding they did not adequately plead causation and that damages were speculative. Here, the Froids’ allegations provide enough of a factual foundation to support a plausible claim that had Zacheis provided adequate representation, the permanent parenting plan that resulted from the mediation would have protected their visitation rights. Further, Colorado law recognizes the remedy of recovery of damages for fees paid to an attorney accused of malpractice, so the Froids may seek an award of fees they paid to Zacheis, and their damages claim for fees they paid to successor counsel is not speculative. Therefore, the district court erred.
The judgment was affirmed as to dismissal of the noneconomic damages claim. The dismissal of the economic damages claims was reversed and the case was remanded for resolution of those claims.