Zook v. El Paso Cnty.
| Decision Date | 27 May 2021 |
| Docket Number | Court of Appeals No. 19CA1712 |
| Citation | 494 P.3d 659,2021 COA 72 |
| Court | Colorado Court of Appeals |
| Parties | Rita M. ZOOK, Plaintiff-Appellant, v. EL PASO COUNTY, Colorado; and El Paso County Board of Commissioners, Defendants-Appellees. |
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
Opinion by JUDGE TOW
¶ 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.
¶ 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 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 , 2010 WL 4900809 (Colo. App. No. 09CA1686, Nov. 24, 2010) (not published pursuant to C.A.R. 35(f) ); Zook v. El Paso Cnty. Ret. Plan , 2013 WL 2099787 (Colo. App. No. 12CA0573, May 16, 2013) (not published pursuant to C.A.R. 35(f) ); Zook v. El Paso Cnty. Ret. Plan , 2018 WL 655146 (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.
¶ 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.
¶ 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
¶ 6 We consider de novo whether an issue is ripe for review. Youngs v. Indus. Claim Appeals Off. , 2012 COA 85M, ¶ 16, 297 P.3d 964.
¶ 7 Ripeness implicates subject matter jurisdiction. DiCocco v. Nat'l Gen. Ins. Co. , 140 P.3d 314, 316 (Colo. App. 2006) (). A court may not decide cases over which it does not have subject matter jurisdiction. Long v. Cordain , 2014 COA 177, ¶ 10, 343 P.3d 1061. "Subject matter jurisdiction cannot be conferred by 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, 383 P.3d 92. 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) ().
¶ 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 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) (). 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 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) ().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...
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