Zook v. El Paso Cnty , 2021 COA 72 ( 2021 )

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., 140 P.3d 314, 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, 2014 COA
177, ¶ 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.” Id. The plaintiff bears the burden of
establishing jurisdiction. Id.; DiCocco, 140 P.3d at 316.
¶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, 2016 COA 57, ¶ 47. We may raise and resolve it on our
own motion. Archuleta v. Gomez, 140 P.3d 281, 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., 143 P.3d
1178, 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, 105 P.3d
653, 656 (Colo. 2005); see also Robertson v. Westminster Mall Co.,
43 P.3d 622, 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, 759 P.2d 720, 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.
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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., 230 P.3d 1186 (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.
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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
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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, 828
P.2d 218, 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,
672 F.2d 146, 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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