County District Court No. 15CV30761 Honorable Thomas M.
AFFIRMED IN PART, REVERSED IN PART, ORDER VACATED, AND CASE
REMANDED WITH DIRECTIONS Division A
& Reams, Charles F. Reams, Zachary T. Reams, Grand
Junction, Colorado, for Plaintiff-Appellant
Farina & Kampf, P.C., Andrew H. Teske, Grand Junction,
Colorado, for Defendant-Appellee
Rothenberg * and Carparelli [*] , JJ., concur
1 In this civil action, plaintiff, Roseann Scott (Roseann),
appeals the district court's order and judgment granting
the motion of defendant, Donna Scott (Donna), to dismiss
under C.R.C.P. 12(b)(5) for failure to state a claim upon
which relief could be granted, and under C.R.C.P. 12(b)(6)
for failure to join a necessary party. Roseann also appeals
the court's postjudgment order granting Donna's
motion for attorney fees and costs. We conclude that Roseann
failed to state a claim for only one of her claims and that
she did not fail to join a necessary party. We, therefore,
affirm the district court's judgment in part, reverse in
part, vacate the court's order granting attorney fees and
costs, and remand with directions.
Background and Procedural History
2 Roseann was married to Melvin Scott (Melvin), and the
couple dissolved their marriage in 1978. As part of that
dissolution, the couple entered into a separation agreement
that provided as follows:
The parties agree that [Melvin] is presently insured under
several life insurance policies as listed below. These
policies will be maintained in their current status until
such time as [Roseann] re-marries, and at that time the
beneficiaries may be changed to the children of the parties.
Upon emancipation of the parties' children, if [Roseann]
has re-married, [Melvin] may change the beneficiary to
whomever he wishes.
policies listed in the separation agreement, as relevant
here, included several policies provided to veterans (the
veteran policies) and a life insurance policy through
Prudential (the Prudential policy). The Prudential policy is
the only insurance policy at issue in this appeal.
3 Sometime after Melvin and Roseann dissolved their marriage,
Melvin married Donna; Roseann never remarried. Melvin and
Donna remained married until Melvin's death. A few years
prior to his death, and decades after the separation
agreement was executed, Melvin changed the named beneficiary
on the veteran policies and the Prudential policy to Donna.
4 Melvin died on August 2, 2015. Donna, as the named
beneficiary on the veteran policies and the Prudential
policy, received the proceeds from all of these policies.
Roseann attempted to apply for the benefits of these policies
and discovered they had already been disbursed to Donna.
Roseann, through counsel, sent a demand letter to Donna on
September 1, 2015, informing Donna of the separation
agreement and requesting that the proceeds from the life
insurance policies be transferred to her. Donna did not
transfer the funds to Roseann, but she eventually put the
money from the policies in a trust account pending the
outcome of any litigation.
5 Roseann filed a complaint in the Mesa County District Court
naming Donna as the sole defendant in November 2015, and she
filed an amended complaint a month later. The amended
complaint alleged that Roseann was entitled to receive the
money from Donna based on the 1978 separation agreement under
theories of civil theft, conversion, and unjust
6 Instead of filing an answer, Donna removed the case to
federal district court based on administration of the veteran
policies by the federal government. After the case was
accepted by the federal district court, Donna filed a motion
to dismiss Roseann's claims based on several theories,
including federal preemption law as to the veteran policies.
Ultimately, the federal district court concluded that federal
legislative intent preempted the 1978 separation agreement,
and it dismissed Roseann's claims with prejudice as to
the veteran policies only. The federal court remanded
Roseann's remaining claims to the Colorado state court
for resolution of the claims as to the Prudential policy.
7 After the case was returned to state court, Donna filed a
motion to dismiss under both C.R.C.P. 12(b)(5) and C.R.C.P.
12(b)(6), arguing that Roseann's claims failed to state a
claim upon which relief could be granted, and that Roseann
had failed to join a necessary party - namely, Melvin's
estate. After full briefing, the district court summarily
granted the motion to dismiss "for the reasons stated by
[Donna] in her motion and reply."
8 Donna subsequently filed a motion for attorney fees and
costs, which the court granted in total based on its
dismissal of the entirety of Roseann's case under
9 Roseann now appeals the district court's orders
granting Donna's motion to dismiss and motion for
attorney fees and costs.
10 In her answer brief, Donna argues that this court lacks
jurisdiction to review Roseann's appeal because the
district court "did not adjudicate the merits of
Roseann's claims or preclude further proceedings"
and, therefore, its order was a dismissal without prejudice,
not a final judgment for purposes of appeal. We reject this
11 A final judgment is a jurisdictional prerequisite to
review on appeal. Brody v. Bock, 897 P.2d 769, 777
(Colo. 1995). A final judgment for purposes of appeal
"ends the particular action in which it is entered,
leaving nothing further for the court pronouncing it to do in
order to completely determine the rights of the parties
involved in the proceeding." Harding Glass Co. v.
Jones, 640 P.2d 1123, 1125 n.2 (Colo. 1982) (quoting
D.H. v. People, 192 Colo. 542, 544, 561 P.2d 5, 6
12 Ordinarily, the dismissal of a complaint without prejudice
is not a final and appealable order because the factual and
legal issues underlying the dispute, the merits of the case,
have not been resolved. E.g., Brody, 897
P.2d at 777; Harris v. Reg'l Transp. Dist., 155
P.3d 583, 585 (Colo.App. 2006). However, a motion to dismiss
under C.R.C.P. 12(b)(5) is an assertion that the
plaintiff's complaint is legally insufficient and
therefore "mandates that the court analyze the merits of
the plaintiff's claims." Hemmann Mgmt.
Servs. v. Mediacell, Inc., 176 P.3d 856, 858
(Colo.App. 2007); see also Brody, 897 P.2d at 777
("If a judgment in fact completely resolves the rights
of the parties before the court with respect to a claim and
no factual or legal issues remain for judicial resolution,
the judgment is final as to that claim.");
Harris, 155 P.3d at 585 (noting that the dismissal
of a complaint without prejudice is a final and appealable
order where the circumstances of the case indicate that the
action cannot be saved by an amendment).
13 In her motion to dismiss, Donna argued that Roseann had
failed to state a claim upon which relief could be granted
because her claims were inapplicable to the procedural and
factual circumstances of this case; in other words, they were
insufficient as a matter of law. In granting the motion, the
district court, without any analysis or findings, simply
adopted Donna's arguments and ruled that Roseann's
claims failed on their merits as a matter of law. And,
indeed, in her reply brief on appeal, Roseann admitted that,
if she had been ordered to file a further amended complaint,
she would have simply realleged the exact same claims for
relief at issue here. Thus, this action would not (and could
not) have been saved by an amended pleading. See
Harris, 155 P.3d at 585.
14 The order granting the motion to dismiss based on C.R.C.P.
12(b)(5), thus resolved the rights of the parties as to the
claims in the amended complaint and left nothing for the
court to do. Indeed, the register of actions shows that the
district court closed the case the day after entering its
order granting the motion to dismiss; the district court was
required to reopen the matter only when Donna filed her
motion for attorney fees.
15 Because the district court's order granting the motion
to dismiss was a ruling on the merits of Roseann's case
and left nothing for the court to do to resolve the rights of
the parties, we conclude the order was final and appealable,
and this court has jurisdiction to hear the appeal.
C.R.C.P. 12(b)(5) Dismissal
16 The district court did not specify whether it was granting
the dismissal based on Donna's C.R.C.P. 12(b)(5)
arguments or her argument based on C.R.C.P. 12(b)(6). Because
the district court adopted all of the reasoning in
Donna's motion to dismiss, we consider her Rule 12(b)(5)
assertions and those under Rule 12(b)(6) in turn.
Standard of Review and Warne v. Hall, 2016 CO 50
17 We review a trial court's determination on a motion to
dismiss for failure to state a claim upon which relief can be
granted de novo. E.g., Norton v. Rocky Mountain
Planned Parenthood, Inc., 2018 CO 3, ¶ 7. In our
review, we accept all factual allegations contained in the
complaint as true and view them in the light most favorable
to the plaintiff. Id.
18 Until recently, the standard in Colorado on which to judge
whether a complaint stated a claim upon which relief could be
granted was the "no set of facts" standard: "a
complaint should not be dismissed unless it appears beyond a
doubt that the plaintiff can prove no set of facts in support
of the claim which would entitle him [or her] to
relief." Colo. Med. Soc'y v. Hickenlooper,
2012 COA 121, ¶ 29, aff'd, 2015 CO 41.
19 In June 2016, the Colorado Supreme Court replaced that
standard with the federal "plausibility" standard
announced in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). Warne, ¶ 24. Under the plausibility
standard, "to survive a motion to dismiss for failure to
state a claim, a plaintiff must allege a plausible claim for
relief." N.M. v. Trujillo, 2017 CO 79, ¶
20 (citing Warne, ¶ 9). The plausibility
standard emphasizes that facts pleaded as legal conclusions
(i.e., conclusory statements) are not entitled to the
assumption that they are true. Warne, ¶¶
9, 27. Notably, Colorado courts have upheld dismissals
because a complaint was conclusory in its allegations long
before the supreme ...