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., 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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