Stansbury v. OMH

• Court: Colorado Court of Appeals
• Decided: April 30, 2026
• Docket: 25CA0981
• Status: Unpublished

Opinion

25CA0981 Stansbury v OMH 04-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0981 Jefferson County District Court No. 25CV63 Honorable Ryan P. Loewer, Judge

Dean Stansbury,

Plaintiff-Appellant,

v.

OMH, Inc., and Steven Boatright, Esq.,

Defendants-Appellees.

APPEAL DISMISSED IN PART, JUDGMENT AFFIRMED, AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE GOMEZ Pawar and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 30, 2026

Dean Stansbury, Pro Se

Overturf McGath & Hull, P.C., Steven W. Boatright, Denver, Colorado, for Defendant-Appellee OMH, Inc.

Overturf McGath & Hull, P.C., Jason P. Rietz, Denver, Colorado, for Defendant- Appellee Steven Boatright, Esq. ¶1 Plaintiff, Dean Stansbury, brought this case alleging a legal

malpractice claim and related theories against defendants, a law

firm (Overturf McGath & Hull, P.C., also known as OMH Inc.) and

an attorney (Steven Boatright), relating to their work in a previous

case Stansbury had pursued against their client, Colorado Natural

Gas, Inc. (Colorado Natural). Defendants moved to dismiss this

case under C.R.C.P. 12(b)(5), arguing that Stansbury hadn’t stated

a plausible claim because there was no attorney-client relationship

between the parties. The district court agreed; dismissed the case

with prejudice; and awarded attorney fees and costs to defendants

under section 13-17-201(1), C.R.S. 2025, and C.R.C.P. 54(d).

¶2 Stansbury now appeals, challenging the judgment of dismissal

and the order awarding attorney fees and costs. We affirm the

judgment, concluding that the district court properly dismissed the

case under Rule 12(b)(5). But we dismiss the appeal to the extent

that Stansbury challenges the order awarding fees and costs

because that issue is not properly before us. Finally, we conclude

that defendants are entitled to an award of their reasonable

appellate attorney fees, and we remand the case to the district court

to determine and award those fees.

1 I. Background

¶3 Stansbury previously filed a case against Colorado Natural, his

natural gas provider, regarding damage it allegedly caused to his

property.1 Boatright, an attorney at Overturf McGath & Hull, P.C.,

represented Colorado Natural in that case.

¶4 While his appeal of the district court’s adverse ruling in that

earlier case was pending, Stansbury filed this case.2 In his

complaint, he cited the district court and court of appeals case

numbers from the earlier case and alleged theories of “malpractice,

malfeasance, misrepresentations of material fact[,] and denial &

delay of insurance benefit without cause,” as well as “negligence,

breach of contract, failure to disclose material information, failure

of duty to be truthful and factual, etc. by a lawyer during the

provision of legal services.” Stansbury later filed an amended

complaint, asserting the same allegations but adding as

attachments documents from the earlier case.

1 Stansbury and his son were both plaintiffs in the earlier case.

Stansbury’s son is not a party to this case. 2 Stansbury’s appeal in the earlier case was ultimately

unsuccessful. See Stansbury v. Colo. Nat. Gas, Inc., (Colo. App. No. 24CA1147, May 29, 2025) (not published pursuant to C.A.R. 35(e)).

2 ¶5 Defendants filed a motion to dismiss under Rule 12(b)(5),

asserting that Stansbury had failed to state a plausible claim for

relief. The district court granted defendants’ motion and dismissed

the case with prejudice. In doing so, the court expressed that it

“under[stood] the crux of [Stansbury’s] claim to be one of [legal]

malpractice.” The court then concluded that there were no alleged

facts to support an attorney-client relationship between defendants

and Stansbury and, therefore, that Stansbury had not asserted a

cognizable claim.

¶6 Stansbury filed a timely notice of appeal seeking review of the

judgment of dismissal.

¶7 A few days later, defendants filed a motion to recover their

attorney fees and costs. The district court then entered an order

awarding defendants attorney fees under section 13-17-201(1) and

costs under C.R.C.P. 54(d). Stansbury did not amend his notice of

appeal or separately appeal the attorney fee and cost order.

¶8 On appeal, Stansbury challenges both the judgment of

dismissal and the attorney fee and cost order. We consider each

challenge in turn. As to both challenges, we keep in mind that,

while we liberally construe arguments advanced by self-represented

3 parties like Stansbury, see Al-Hamim v. Star Hearthstone, LLC, 2024

COA 128, ¶ 11, a self-represented party still must comply with the

same procedural rules that apply to parties represented by counsel,

see Adams v. Sagee, 2017 COA 133, ¶ 10.

II. Dismissal for Failure to State a Claim

¶9 Stansbury first challenges the district court’s judgment

dismissing his case for failure to state a claim. We discern no error.

A. Legal Standards

¶ 10 We review de novo a district court’s order granting a motion to

dismiss under Rule 12(b)(5). Miller v. Crested Butte, LLC, 2024 CO

30, ¶ 21. In doing so, “we apply the same standards as the district

court, and we accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.” Id.

And, like the district court, we consider only the facts alleged in the

complaint, documents attached as exhibits to or referenced in the

complaint, and matters of which we may take judicial notice.

802 E. Cooper, LLC v. Z-GKids, LLC, 2023 COA 48, ¶ 12.

¶ 11 To survive a Rule 12(b)(5) motion to dismiss under the

applicable “plausibility” standard, a plaintiff must allege a plausible

claim for relief. Miller, ¶ 22. This means that “‘the factual

4 allegations of the complaint must be enough to raise a right to relief

“above the speculative level”’ and ‘state a claim for relief that is

plausible on its face.’” 802 E. Cooper, ¶ 11 (quoting Warne v. Hall,

2016 CO 50, ¶¶ 1, 9).

B. Discussion

¶ 12 Although in the amended complaint Stansbury alludes to a

broad variety of theories, his factual allegations all relate to

defendants’ alleged legal malpractice during the previous case.

¶ 13 To state a legal malpractice claim based on an attorney’s

negligence, a plaintiff must allege sufficient facts to establish 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. See Boulders at Escalante LLC v. Otten

Johnson Robinson Neff & Ragonetti PC, 2015 COA 85, ¶ 27.

¶ 14 To satisfy the first element — establishing a legal duty — a

plaintiff generally must allege sufficient facts to show “the existence

of an attorney-client relationship between the [plaintiff] and the

lawyer.” Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denv.,

N.A., 892 P.2d 230, 239 (Colo. 1995). “Conversely, when no

attorney-client relationship exists between the plaintiff and the

5 attorney, a court may properly dismiss a legal malpractice action.”

Brown v. Silvern, 45 P.3d 749, 752 (Colo. App. 2001).

¶ 15 The need to anchor legal malpractice claims to an attorney-

client relationship arises out of “the duty that an attorney owes ‘to

[their] client to employ that degree of knowledge, skill, and

judgment ordinarily possessed by members of the legal profession

in carrying out the services for [their] client.’” Mehaffy, 892 P.2d at

240 (quoting Temple Hoyne Buell Found. v. Holland & Hart, 851

P.2d 192, 198 (Colo. App. 1992)). Because attorneys don’t owe

such a duty to people who aren’t their clients — such as opposing

parties — “attorney malpractice cannot extend to non-clients.” Id.;

see also Stone v. Satriana, 41 P.3d 705, 709 n.6 (Colo. 2002)

(“[A]ttorneys do not generally owe a legal duty to their client’s

adversary . . . .”).

¶ 16 The relationship between an attorney and a client is based on

the law of contracts and may, in some instances, be implied by the

parties’ conduct. Klancke v. Smith, 829 P.2d 464, 466 (Colo. App.

1991). But “to establish such a relationship based upon conduct

requires a showing that a person seeks and receives legal advice

6 from an attorney regarding the legal consequences of the person’s

past or contemplated actions.” Id.

¶ 17 In his amended complaint, Stansbury acknowledged that, in

the earlier case, he was unrepresented and defendants represented

his opponent, Colorado Natural. Nevertheless, he alleged that he

had an attorney-client relationship with defendants:

A simple property damage claim was placed with [Colorado Natural] . . . . Steven Boatright was assigned to handle the case . . . . Therefore, Stansbury [and his wife] are technically clients of Steven Boatright and [Overturf McGath & Hull, P.C.]. Because . . . Stansbury was unrepresented by counsel in th[e] case, Steven Boatright owes a duty of care to . . . Stansbury [and his wife]. In all pleadings of the case[,] Counsel Boatright enforced authority over Stansbury for compliance to C.R.C.P. rules. Therefore[,] an attorney-client relationship is established by the fact that . . . Stansbury [and his wife] paid for [n]atural [g]as [s]ervices[,] which paid for the attorney’s contract [through] multiple pathways.[3]

¶ 18 These allegations do not establish that an attorney-client

relationship existed between defendants and Stansbury. While

Stansbury alleged that he paid Colorado Natural for natural gas

3 Although Stansbury referenced his wife in his amended complaint,

she wasn’t a party to the earlier case, nor is she a party to this case.

7 services and that Colorado Natural in turn paid defendants for legal

services, this does not in fact establish the existence of an express

contract for legal representation directly between Stansbury and

defendants. Nor did Stansbury allege that he had sought or

received legal advice from defendants, such that an attorney-client

relationship could be implied. See id. Rather, Stansbury conceded

that defendants represented his opponent. And, as the district

court explained, “[s]uch a circumstance is the opposite of an

attorney-client relationship.”

¶ 19 Because Stansbury didn’t allege sufficient facts to establish an

attorney-client relationship, defendants didn’t owe a duty of care to

him that could support a claim for legal malpractice. Moreover,

Stansbury didn’t allege in his amended complaint that defendants

owed him any other duty of care such that they could be liable to

him under another theory of negligence.

¶ 20 Finally, to the extent that Stansbury alleged any intentional

misconduct — such as by asserting in his amended complaint that

defendants “intentionally made several false representations of

material fact” and “failed to provide cause to object to payment of

[his] claims” — his allegations are too vague and conclusory to state

8 a claim. It is true that an attorney may be liable to a non-client in a

“narrow set of circumstances in which the attorney has committed

fraud or a malicious or tortious act, including negligent

misrepresentation.” Allen v. Steele, 252 P.3d 476, 482 (Colo. 2011).

But Stansbury failed to allege any specific facts as to any particular

misrepresentation or other act that would “‘raise a right to relief

“above the speculative level”’ and ‘state a claim for relief that is

plausible on its face.’” 802 E. Cooper, ¶ 11 (quoting Warne, ¶¶ 1, 9).

¶ 21 Therefore, we conclude the district court properly dismissed

Stansbury’s amended complaint for failure to state a claim.

C. Remaining Arguments

¶ 22 Stansbury also raises four other issues regarding the district

court’s dismissal order. First, he argues that the court made

clerical errors in its caption by listing him as the “petitioner” rather

than the “plaintiff” and listing defendants in the opposite order from

how he’d listed them in his amended complaint. Even if these were

clerical errors, they have no bearing on the propriety of the district

court’s dismissal of the case.

¶ 23 Second, Stansbury asserts that he didn’t receive the district

court’s civil procedure order and wasn’t contacted by the court clerk

9 regarding any issues with the service of process. But he doesn’t

offer, and we don’t perceive, any connection between either of these

assertions and the district court’s decision regarding the sufficiency

of his amended complaint. Thus, these assertions don’t provide any

basis to reverse the dismissal order.

¶ 24 Third, Stansbury contends that the district court misstated or

misrepresented portions of his amended complaint. We disagree.

The court accurately set forth the gist of that pleading and correctly

concluded that it didn’t state a plausible claim for relief.

¶ 25 And fourth, Stansbury says the district court didn’t apply the

correct legal standard and took an “unsympathetic” and “negative”

position toward him. But the court correctly set forth and applied

the standards of Rule 12(b)(5). And our review does not reveal any

bias by the court. We see no indication that the court did anything

other than act impartially in determining the case before it, and the

fact that the court’s ruling was adverse to Stansbury does not

establish a bias against him. See In re Marriage of Hatton, 160 P.3d

326, 330 (Colo. App. 2007) (“Adverse rulings, standing alone, do not

constitute grounds for claiming bias or prejudice.”).

10 III. Award of Attorney Fees and Costs

¶ 26 Stansbury next challenges the district court’s order awarding

defendants their attorney fees and costs. We don’t review this

challenge, as we have no jurisdiction to consider it.

¶ 27 An order awarding attorney fees and costs is distinct and

“separately appealable from the judgment on the merits.” Oster v.

Baack, 2015 COA 39, ¶ 20; accord L.H.M. Corp., TCD v. Martinez,

2021 CO 78, ¶ 23. Failure to separately appeal the award of fees

and costs deprives this court of jurisdiction to consider the issue.

See Dawes Agency, Inc. v. Am. Prop. Mortg., Inc., 804 P.2d 255, 257

(Colo. App. 1990).

¶ 28 Defendants sought and the district court awarded attorney

fees and costs after Stansbury had already filed his notice of appeal

concerning the judgment of dismissal. Stansbury needed to

separately appeal the fees and cost order after that order was

entered. Because he didn’t do so, we have no jurisdiction to

consider his challenge to the fee and cost award. Accordingly, we

11 dismiss that portion of the appeal. See Oster, ¶ 20; Dawes, 804

P.2d at 257.4

IV. Appellate Attorney Fees

¶ 29 Lastly, defendants request an award of attorney fees incurred

in this appeal. They are entitled to such an award because they

successfully defended the district court’s Rule 12(b) dismissal of

Stansbury’s amended complaint, which alleged a claim that

sounded in tort. See § 13-17-201(1) (“In all actions brought as a

result of . . . an injury to person or property occasioned by the tort

of any other persons, where any such action is dismissed on motion

of the defendant prior to trial under [Rule 12(b)], such defendant

shall have judgment for [their] reasonable attorney fees in defending

the action.”); State Farm Fire & Cas. Co. v. Weiss, 194 P.3d 1063,

1069 (Colo. App. 2008) (the statute applies to attorney fees spent

successfully defending a Rule 12(b) dismissal on appeal); see also

Allen, 252 P.3d at 485 (referring to the “tort of legal malpractice”).

4 We do not consider the documents Stansbury attached to his

opening brief that were not part of the record on appeal. To have us consider those documents, Stansbury needed to file a motion to supplement the record, see C.A.R. 10(f)(2), but he didn’t do so.

12 ¶ 30 We accordingly grant defendants’ request. Pursuant to C.A.R.

39.1, we exercise our discretion to remand the case to the district

court to determine the amount of reasonable appellate attorney fees

to be awarded to defendants.

V. Disposition

¶ 31 The judgment is affirmed. The appeal is dismissed to the

extent that Stansbury challenges the district court’s order awarding

defendants attorney fees and costs. The case is remanded to the

district court to determine and award defendants’ reasonable

appellate attorney fees.

JUDGE PAWAR and JUDGE JOHNSON concur.