Zook v. El Paso Cnty

     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.


                                                                   SUMMARY
                                                                 May 27, 2021

                                2021COA72

No. 19CA1712, Zook v. El Paso Cnty — Employment Law —
Pensions — Survivor Benefits; Jurisdiction of Courts — Subject
Matter Jurisdiction — Ripeness

     A division of the court of appeals holds, as a matter of first

impression, that a spouse who is a contingent beneficiary of

survivor benefits from the other spouse’s pension plan cannot

pursue breach of contract claims alleging miscalculation of benefits

while the retiree-spouse is still alive. Because such claims are not

ripe, the division concludes that the district court lacked

jurisdiction to grant summary judgment against the spouse and in

favor of the employer.
COLORADO COURT OF APPEALS                                        2021COA72


Court of Appeals No. 19CA1712
El Paso County District Court No. 18CV33150
Honorable Timothy Schutz, Judge


Rita M. Zook,

Plaintiff-Appellant,

v.

El Paso County, Colorado; and El Paso County Board of Commissioners,

Defendants-Appellees.


                        JUDGMENT VACATED AND CASE
                         REMANDED WITH DIRECTIONS

                                   Division I
                           Opinion by JUDGE TOW
                         Dailey and Berger, JJ., concur

                           Announced May 27, 2021


David H. Zook, Colorado Springs, Colorado, for Plaintiff-Appellant

Diana K. May, County Attorney, Steven Klaffky, Senior Assistant County
Attorney, Mary Ritchie, Assistant County Attorney, Colorado Springs, Colorado,
for Defendants-Appellees
¶1    This appeal presents a question not yet answered by a

 Colorado appellate court: Can a spouse who is a contingent

 beneficiary of survivor benefits from the other spouse’s pension

 plan pursue breach of contract claims alleging miscalculation of

 benefits while the retiree-spouse is still alive? We answer that

 question in the negative. As a result, we hold that the claims

 asserted by plaintiff, Rita M. Zook (Rita),1 against El Paso County

 (County) and the El Paso County Board of Commissioners (Board of

 Commissioners) were not ripe, and thus the district court lacked

 jurisdiction to enter summary judgment against Rita. Accordingly,

 we vacate the district court’s judgment and remand with directions

 to dismiss for lack of subject matter jurisdiction.

                           I.    Background

¶2    This case arises from a dispute over the calculation and

 payment of retirement benefits. Daniel Zook (Daniel) was employed

 by the County for over twenty-five years. As part of his

 employment, Daniel was enrolled in the El Paso County Retirement




 1 Because two of the parties involved in this case share the same
 last name, we will refer to them by their first names. We mean no
 disrespect in doing so.

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 Plan (Plan). Daniel receives monthly payments from the Plan, and

 his wife, Rita, asserts that she is an intended third-party beneficiary

 of the Plan because she will receive survivor benefits if she outlives

 Daniel.

¶3    Daniel has brought four lawsuits against the Plan and the El

 Paso County Retirement Board (Retirement Board), all based on

 allegations that his monthly distributions are less than what he is

 owed. In the first three lawsuits, the district court granted

 summary judgment in favor of the defendants, ruling that Daniel’s

 claims were barred by either the statute of limitations or the

 doctrine of claim preclusion. Daniel appealed the district court’s

 orders in every case, and each time, a division of this court affirmed

 the district court’s ruling. See Zook v. El Paso Cnty. Ret. Plan, (Colo.

 App. No. 09CA1686, Nov. 24, 2010) (not published pursuant to

 C.A.R. 35(f)); Zook v. El Paso Cnty. Ret. Plan, (Colo. App. No.

 12CA0573, May 16, 2013) (not published pursuant to C.A.R. 35(f));

 Zook v. El Paso Cnty. Ret. Plan, (Colo. App. No. 16CA1624, Feb. 1,

 2018) (not published pursuant to C.A.R. 35(e)). The Colorado

 Supreme Court denied his petition for certiorari in all three cases.




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¶4    This appeal stems from Daniel’s fourth suit, in which Rita

 joined Daniel as a plaintiff. Rita and Daniel sued the County and

 the Board of Commissioners, as well as the Plan and the Retirement

 Board. Both Rita and Daniel brought claims of breach of contract

 based on the argument that Daniel’s monthly benefits are being

 miscalculated. The Plan and the Retirement Board filed a motion

 for summary judgment, arguing that Rita’s and Daniel’s claims are

 barred by the statute of limitations and the doctrine of claim

 preclusion. The district court agreed and granted their motion.

 The County and the Board of Commissioners filed a motion to

 dismiss, also on the grounds that the claims are barred by the

 statute of limitations and claim preclusion. The district court

 treated that motion as a motion for summary judgment and ruled in

 favor of the County and the Board of Commissioners, concluding

 that Rita’s and Daniel’s claims are barred by the statute of

 limitations.




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¶5    Rita now appeals.2 She argues that the district court

 erroneously granted summary judgment in favor of the County and

 the Board of Commissioners. Although the issue of subject matter

 jurisdiction was not raised below, we conclude that Rita’s claims

 are premature and thus precluded by the doctrine of ripeness.3

                    II.   Rita’s Claims Are Not Ripe

                          A.   Applicable Law

¶6    We consider de novo whether an issue is ripe for review.

 Youngs v. Indus. Claim Appeals Off., 2012 COA 85M, ¶ 16.

¶7    Ripeness implicates subject matter jurisdiction. DiCocco v.

 Nat’l Gen. Ins. Co., 

, 316 (Colo. App. 2006) (“A court

 lacks subject matter jurisdiction to decide an issue that is not ripe

 for adjudication.”). A court may not decide cases over which it does

 not have subject matter jurisdiction. Long v. Cordain, 

, ¶ 10. “Subject matter jurisdiction cannot be conferred by




 2 Daniel does not appeal. Additionally, Rita does not appeal the
 district court’s judgment pertaining to the Plan and the Retirement
 Board.
 3 Prior to oral argument, we ordered the parties to submit

 supplemental briefs on the question of whether Rita’s claims were
 ripe when filed in the district court or are ripe now.


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 waiver or consent of the parties; lack of subject matter jurisdiction

 requires dismissal.” 

 The plaintiff bears the burden of

 establishing jurisdiction. Id.; DiCocco, 

.

¶8     Whether the district court had subject matter jurisdiction is

 an issue that can be raised at any time in a proceeding. People v.

 Sandoval, 

, ¶ 47. We may raise and resolve it on our

 own motion. Archuleta v. Gomez, 

, 283-84 (Colo. App.

 2006).

¶9     Ripeness tests whether an issue is real, immediate, and fit for

 adjudication. Olivas-Soto v. Indus. Claim Appeals Off., 

, 1180 (Colo. App. 2006). We should “refuse to consider

 uncertain or contingent future matters that suppose a speculative

 injury that may never occur.” Bd. of Dirs., Metro Wastewater

 Reclamation Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 

, 656 (Colo. 2005); see also Robertson v. Westminster Mall Co.,

 

, 628 (Colo. App. 2001) (“A court has no jurisdiction . . .

 to decide a case on a speculative, hypothetical, or contingent set of

 facts.”).

                             B.    Analysis




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¶ 10   The Plan is Daniel’s retirement plan and he alone receives the

  monthly benefits from it. Rita asserts that she is an “intended third

  party beneficiary” of the Plan, as she is “entitled to the identical

  continuing benefit upon Daniel’s death.” Because Daniel is still

  alive, Rita does not currently receive — and is not contractually

  entitled to receive — any benefits directly from the Plan. Indeed, at

  this time, she has no right whatsoever to distributions from the

  Plan — her benefits are “potential” and “contingent” upon Daniel’s

  death preceding hers. As Rita herself wrote in an affidavit

  submitted to the district court, she is not a current beneficiary of

  the Plan; rather she is merely “the beneficiary of Daniel’s retirement

  benefit should he predecease me.”

¶ 11   A court cannot adjudicate an uncertain or contingent future

  claim. Metro Wastewater Reclamation Dist., 105 P.3d at 656. That

  is precisely what Rita’s claim is. Even if Rita were to prevail on her

  claims, she would not be entitled to anything. She does not

  currently receive benefits from the Plan. In fact, should she

  predecease Daniel, she would never receive any such benefits.

¶ 12   We are not persuaded by Rita’s reliance on her

  characterization of Daniel’s benefit as marital property under


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  section 14-10-113(3), C.R.S. 2020. The statutory definition of

  marital property applies only in the context of a dissolution of

  marriage. See § 14-10-113(2) (providing that the definition of

  marital property set forth in that provision is “[f]or purposes of this

  article only”). In other words, that pension benefits may qualify as

  marital property for purposes of a dissolution of marriage does not

  give one spouse the ability to enforce the other spouse’s claim

  related to them, any more than it would give one spouse the right to

  pursue a wage claim, wrongful discharge claim, or personal injury

  claim on the other spouse’s behalf — or give others the right to sue

  one spouse personally to recover on a debt that is (for all purposes

  other than dividing marital assets and debts upon dissolution of the

  marriage) solely the other spouse’s. Indeed, if Daniel had not

  named Rita as a beneficiary of a survivor benefit under the Plan,

  she would never have a claim against the Plan, regardless of the

  fact that Daniel’s benefit would still be marital property.

¶ 13   To the extent Rita’s argument is based not on the statutory

  definition of marital property, but instead on the fact that she is a

  part of a domestic unit that is economically dependent on the

  pension payments, we are still unconvinced. The mere fact that


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  Rita, through her husband and through their marital estate, enjoys

  the fruits of the retirement benefit does not give her standing to

  challenge the Plan’s calculation of the retirement benefit. Again,

  were Rita to be afforded standing solely because of her interest in

  Daniel’s income as a member of his household, she could then

  claim standing to assert any claim he might have that would

  ultimately inure to the benefit of the household. We are aware of no

  case — and Rita cites none — in which such an indirect benefit was

  sufficient to confer standing.4

¶ 14   Rather, any standing she may have would flow from her

  alleged status as a contingent beneficiary as a result of Daniel

  contracting for a survivor benefit. See Peterson v. Fire & Police

  Pension Ass’n, 

, 723 (Colo. 1988) (holding that

  surviving spouses of police officers who died while still employed by




  4 Indeed, we have not located a single case anywhere in the country
  in which a spouse designated to receive survivor benefits from a
  pension was permitted — or even attempted — to sue the
  employee-spouse’s employer or the pension plan for breach of
  contract before the employee-spouse died.


                                     8
  the city had standing as third-party beneficiaries to the pension

  contract).5

¶ 15   But even if we assume she has such standing, ripeness is a

  separate, though related, doctrine. And the contingent nature of

  her benefit means that she does not yet have a right to any funds.

  Rita is not entitled in her own right to any payment from the Plan

  unless and until she survives Daniel. At this time, any injury to

  Rita is uncertain and speculative, not real and immediate. We

  therefore conclude that Rita’s claims are not ripe for adjudication

  and were not ripe when they were filed.

¶ 16   The County agrees that the issue is not ripe, yet it argues that

  we may nevertheless affirm the grant of summary judgment, forever

  barring Rita from pursuing her claims. In essence, the County

  argues that Rita’s claims were both too early and too late. We reject

  this paradoxical argument.

¶ 17   The County’s reliance on Smith v. Executive Custom Homes,

  Inc., 

 (Colo. 2010), is misplaced. In Smith, the



  5In light of our determination that Rita’s claims are not ripe, we
  need not, and do not, decide whether Rita actually is a contingent
  beneficiary or whether she has standing.

                                    9
  plaintiffs brought a claim against a homebuilder for personal

  injuries alleged to have been caused by a construction defect in the

  home. Id. at 1188. The district court concluded that the claim was

  untimely under the two-year statute of limitations established in

  the Construction Defect Action Reform Act (CDARA), section 13-80-

  104(1)(a), C.R.S. 2020. Smith, 230 P.3d at 1188. On appeal, the

  plaintiffs argued that their claims did not accrue until they suffered

  an injury, not when the construction defect was discovered, and to

  hold otherwise could result in claims being time barred before any

  injury occurred. Id. at 1190.

¶ 18   The supreme court disagreed, holding that the plain language

  of CDARA provides that “a claim for personal injury arises not at

  the time of injury, but ‘at the time the claimant . . . discovers or in

  the exercise of reasonable diligence should have discovered the

  physical manifestations of a defect in the improvement which

  ultimately causes the injury.’” Id. at 1188 (quoting

  § 13-80-104(1)(b)(I)). Rejecting the plaintiffs’ argument that this

  interpretation “produces an absurd and unfair result by

  encouraging homeowners to file unripe lawsuits because they will

  be forced to file suit before the injury happens,” id. at 1190, the


                                     10
  supreme court observed that “incentivizing homeowners to resolve

  construction defect issues at the time the defect is first noticed

  rather than waiting until the defect later causes an injury directly

  serves the purpose of streamlining litigation that underlies the

  CDARA.” Id.

¶ 19   Smith is inapposite to this case because it did not involve

  unripe claims. The plaintiffs had suffered an injury (in the sense

  that their home had an actionable defect) as of the moment they

  discovered the defect. The fact that the defect later caused an

  additional actionable injury — this one a physical injury — did not

  change the fact that their claim had already accrued. Perhaps more

  importantly, unlike in the CDARA, the legislature has not

  statutorily defined when a cause of action accrues in the context of

  a contingent beneficiary’s claims against a pension plan.

¶ 20   Unlike the plaintiffs in Smith, Rita has suffered no actionable

  injury at this time. Thus, contrary to the County’s contention,

  Rita’s unripe claims cannot yet be time barred because they have

  not yet accrued. A cause of action is commonly understood to

  accrue “when a suit may be maintained thereon.” Jones v. Cox, 

, 224 (Colo. 1992) (citing Black’s Law Dictionary 19 (5th


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  ed. 1979)); see also Balt. Gas & Elec. Co. v. Interstate Com. Comm’n,

  

, 149 (D.C. Cir. 1982) (noting that time limitations

  “can run only against challenges ripe for review”).

¶ 21   Because Rita’s claims had not accrued when she filed her

  complaint, the district court lacked subject matter jurisdiction to

  entertain these unripe claims. Consequently, it could not resolve

  the claims by entering summary judgment, and that judgment must

  be vacated.

                             III.   Conclusion

¶ 22   The judgment is vacated. The matter is remanded to the

  district court with instructions to dismiss the action for lack of

  subject matter jurisdiction.

       JUDGE DAILEY and JUDGE BERGER concur.




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