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
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
¶ 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.