     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
                                                           February 22, 2018

                                2018COA25

Nos. 16CA1646 & 17CA0074, Scott v. Scott, — Torts —
Conversion — Unjust Enrichment

     In this tort case, a division of the court of appeals considers

the situation where a party to a court-ordered separation agreement

promised to maintain his first wife as the beneficiary of life

insurance proceeds, but then remarried and changed the named

beneficiary to his second wife before his death.

     The first wife filed a complaint against the second wife alleging

civil theft, conversion, and unjust enrichment. Second wife moved

to dismiss under C.R.C.P. 12(b)(5), arguing that first wife’s

complaint failed to state a claim for civil theft because it did not

allege intent to permanently deprive her of the proceeds, for

conversion because the husband was the “converter” and first wife

had only an expectancy interest in the proceeds, and for unjust
enrichment because husband was the wrongdoer. She also moved

to dismiss under C.R.C.P. 12(b)(6) because husband’s estate should

have been joined as a necessary party. The court summarily

dismissed the entire case based on the reasoning in the motion to

dismiss and then awarded second wife attorney fees and costs.

     Applying Warne v. Hall, 2016 CO 50, the division concludes

that the district court did not err in dismissing the civil theft claim

for lack of a plausible allegation of intent to permanently deprive.

However, the division further concludes that the district court erred

in dismissing the conversion and unjust enrichment claims under

C.R.C.P. 12(b)(5); first wife plausibly pleaded claims for relief under

those theories because she had a vested and irrevocable interest in

the insurance proceeds under the terms of the separation

agreement. The division also concludes that the district court erred

by dismissing the complaint under C.R.C.P. 12(b)(6), reasoning that

decedent’s estate was not a necessary party to this tort action.

     Accordingly, the division affirms the judgment in part and

reverses in part, vacates the order granting second wife’s motion for

attorney fees and costs, and remands the case to proceed on the

conversion and unjust enrichment claims.
COLORADO COURT OF APPEALS                                          2018COA25


Court of Appeals Nos. 16CA1646 & 17CA0074
Mesa County District Court No. 15CV30761
Honorable Thomas M. Deister, Judge


Roseann Scott,

Plaintiff-Appellant,

v.

Donna Scott,

Defendant-Appellee.


           JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
        ORDER VACATED, AND CASE REMANDED WITH DIRECTIONS

                                     Division A
                          Opinion by CHIEF JUDGE LOEB
                       Rothenberg* and Carparelli*, JJ., concur

                           Announced February 22, 2018


Reams & Reams, Charles F. Reams, Zachary T. Reams, Grand Junction,
Colorado, for Plaintiff-Appellant

Hoskin Farina & Kampf, P.C., Andrew H. Teske, Grand Junction, Colorado, for
Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶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.

               I.   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’


                                    1
            children, if [Roseann] has re-married, [Melvin]
            may change the beneficiary to whomever he
            wishes.

 The 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


                                   2
 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.1

¶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 enrichment/constructive trust.2

¶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


 1 The parties stipulated that Donna placed the funds in a trust
 account.
 2 Roseann pleaded unjust enrichment and constructive trust as

 separate claims in her amended complaint. However, the parties
 appear to concede that constructive trust is essentially a remedy for
 unjust enrichment and, thus, we analyze those two claims as one.

                                   3
  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 C.R.C.P. 12(b).

¶9     Roseann now appeals the district court’s orders granting

  Donna’s motion to dismiss and motion for attorney fees and costs.

                            II.   Jurisdiction

¶ 10   In her answer brief, Donna argues that this court lacks

  jurisdiction to review Roseann’s appeal because the district court


                                    4
  “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 argument.

¶ 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 (1977)).

¶ 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.


                                    5
  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.3 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

  3 As an example, Donna argued that Roseann’s claims against her
  failed because Roseann’s interest as a potential beneficiary of the
  policies was a mere expectancy.

                                     6
  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.

                     III.   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




                                        7
  consider her Rule 12(b)(5) assertions and those under Rule 12(b)(6)

  in turn.

        A.    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


                                     8
  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 court announced the plausibility standard in Warne.

  Id. at ¶ 18 (citing cases where Colorado courts have found a

  complaint insufficient because the factual allegations were

  conclusory).

¶ 20   In this case, Roseann filed her amended complaint prior to

  Warne, but Donna’s motion to dismiss and the court’s order

  granting the motion occurred post-Warne. Neither party cited to or

  relied on Warne in their briefs in the district court or on appeal.

  Accordingly, we ordered the parties to file supplemental briefs

  addressing the applicability of Warne and the plausibility standard

  in this appeal.

¶ 21   Judicial decisions are generally applied retroactively. E.g.,

  Erskine v. Beim, 197 P.3d 225, 227 (Colo. App. 2008). In order for a


                                      9
  judicial decision to be given only prospective effect, the decision

  must, among other things, announce a new principle of law. Id. In

  Warne, the supreme court explicitly stated that the opinion did not

  result in an amendment to the rules of procedure and was only

  “interpretive gloss.” Warne, ¶¶ 24, 29. In her supplemental brief

  addressing the applicability of Warne, Roseann did not argue that

  Warne should only have prospective effect.4

¶ 22   Therefore, we perceive no reason why Warne should not apply

  in this case. The motion to dismiss was filed after Warne, and after

  the parties had already completed dismissal litigation of the veteran

  policies in the federal court, which used the plausibility standard in

  its analysis.

¶ 23   Accordingly, we apply the plausibility standard to Roseann’s

  claims in her amended complaint.

                         B.    Roseann’s Claims

¶ 24   Roseann’s complaint essentially alleged three claims for relief

  against Donna. We address each in turn.


  4Roseann argued instead that, because her complaint was filed
  pre-Warne, the plausibility standard announced in Warne should
  not apply to her pleading. She did not address the general rule that
  case law applies retroactively.

                                    10
                              1.    Civil Theft

¶ 25   A plaintiff has a civil cause of action (civil theft) against the

  taker of stolen property under section 18-4-405, C.R.S. 2017. This

  statute allows recovery of treble damages and serves a punitive

  rather than remedial purpose. In re Marriage of Allen, 724 P.2d

  651, 656 (Colo. 1986).

¶ 26   To state a claim for civil theft, a plaintiff must allege the

  elements of criminal theft: that the defendant “‘knowingly obtains,

  retains, or exercises control over anything of value of another

  without authorization or by threat or deception,’ and acts

  intentionally or knowingly in ways that deprive the other person of

  the property permanently.” Van Rees v. Unleaded Software, Inc.,

  2016 CO 51, ¶ 21 (quoting § 18-4-401(1), C.R.S. 2017). Thus, civil

  theft, like criminal theft, requires the specific intent of the

  defendant to permanently deprive the owner of the benefit of the

  property. Id.

¶ 27   Roseann alleged that Donna “knowingly misused her title as

  the second spouse of Melvin to obtain assets and funds from

  Roseann pursuant to the [separation agreement]. Donna is aware

  of the divorce decree.” Roseann further alleged that “Donna


                                     11
  intended to permanently deprive Roseann of the use and benefit of

  her assets,” that she sent a letter to Donna informing her of the

  separation agreement and demanding the return of the funds, and

  that Donna refused to transfer the funds to Roseann.

¶ 28   Roseann’s allegation regarding Donna’s mental state is a

  single, conclusory statement that Donna acted with the necessary

  mens rea. In fact, the only mention of Donna’s mental state in the

  amended complaint is a conclusory statement repeating the

  language in the statute. The complaint does not allege that Donna

  knew of the separation agreement before she received the insurance

  proceeds. Instead, it seems to assert that Donna knew of the

  separation agreement only after she received Roseann’s demand

  letter. We therefore conclude that Roseann’s allegation that Donna

  acted with the requisite intent is conclusory, and without more, it is

  not entitled to the assumption of truth. Warne, ¶¶ 9, 27.

¶ 29   Even considering the allegation that Donna refused to turn

  over the Prudential funds after Roseann sent a demand letter

  informing Donna of the separation agreement, we conclude this

  does not plausibly allege an intent by Donna to permanently

  deprive Roseann of those funds. Donna received the proceeds of


                                    12
  the Prudential policy because she was the named beneficiary.5 Her

  refusal to return the funds was simply based on her assertion that

  she was legally entitled to the funds as the named beneficiary under

  the policy; we do not view her conduct as articulating her intent to

  permanently deprive Roseann of the proceeds, or steal them from

  her. Indeed, Roseann’s allegation arises from the fact that Melvin

  changed the named beneficiary of the Prudential policy, and thus

  does not support any inference as to Donna’s intent. Moreover, the

  parties stipulated that Donna placed the insurance proceeds in a

  trust account with her attorney pending the outcome of any

  litigation over the funds, indicating that she had no intent to

  permanently deprive Roseann of the proceeds, but only to have a

  court determine the rights of the parties as to those funds.

¶ 30   Because Roseann failed to sufficiently plead the requisite

  intent to state a claim for civil theft, we conclude that the district




  5 The Prudential policy beneficiary designation was referenced in
  the amended complaint and is included as part of the record. In
  that designation, Donna is named as beneficiary by name, not as
  the spouse of the decedent. Accordingly, Roseann’s allegation that
  Donna “knowingly misused her title” as Melvin’s second wife is
  ambiguous at best.

                                     13
  court did not err in dismissing Roseann’s claim for civil theft under

  C.R.C.P. 12(b)(5).

                             2.   Conversion

¶ 31   Conversion under Colorado law is “any distinct, unauthorized

  act of dominion or ownership exercised by one person over personal

  property belonging to another.” Itin v. Ungar, 17 P.3d 129, 135 n.10

  (Colo. 2000) (quoting Byron v. York Inv. Co., 133 Colo. 418, 424,

  296 P.2d 742, 745 (1956)). To state a claim for conversion,

  Roseann was required to allege in her complaint that “(i) [Donna]

  exercised dominion or control over property; (ii) that property

  belonged to [Roseann]; (iii) [Donna’s] exercise of control was

  unauthorized; (iv) [Roseann] demanded return of the property; and

  (v) [Donna] refused to return it.” L-3 Commc’ns Corp. v. Jaxon Eng’g

  & Maint., Inc., 863 F. Supp. 2d 1066, 1081 (D. Colo. 2012) (citing

  Glenn Arms Assocs. v. Century Mortg. & Inv. Corp., 680 P.2d 1315,

  1317 (Colo. App. 1984)).

¶ 32   Unlike civil theft, conversion does not require that the

  converter act with the specific intent to permanently deprive the

  owner of his or her property. Itin, 17 P.3d at 135 n.10.




                                    14
            An action for conversion does not rest on the
            defendant’s knowledge or consciousness of the
            wrongdoing, nor the wrongful intent of the
            defendant. . . .

            The act constituting “conversion” must be an
            intentional act, but it does not require
            wrongful intent. . . .

            Conversion is a species of strict liability in
            which questions of good faith, lack of
            knowledge, and motive are ordinarily
            immaterial. . . .

            . . . A person who mistakenly believes that his
            or her conduct is legal may nonetheless
            commit conversion.

  18 Am. Jur. 2d Conversion § 3 (2017) (footnotes omitted). Thus,

  even a good faith recipient of funds who receives the money without

  knowledge that it belonged to another can be held liable for

  conversion. See Itin, 17 P.3d at 135 n.10.

¶ 33   Conversion takes place when the converter takes dominion

  over the property at issue. Glenn Arms Assocs., 680 P.2d at 1317.

  A person in lawful possession of property may commit conversion

  when he or she refuses the legal owner’s demand for return of the

  property. See Davis v. Am. Nat’l Bank of Denver, 149 Colo. 34, 37,

  367 P.2d 325, 326 (1961); Emp’rs’ Fire Ins. Co. v. W. Guar. Fund

  Servs., 924 P.2d 1107, 1111 (Colo. App. 1996).


                                    15
¶ 34   On appeal, Donna makes several arguments as to why

  Roseann’s conversion claim fails as a matter of law. She primarily

  argues that it was Melvin who converted the funds when he

  changed the named beneficiary; that Roseann did not have any

  vested right in the Prudential policy; and, therefore, that the

  proceeds did not “belong” to Roseann. We reject these arguments.

¶ 35   We first address the argument that Roseann had no

  recognizable interest in the Prudential policy proceeds. In Great

  American Reserve Insurance Co. v. Maxwell, 38 Colo. App. 305, 307,

  555 P.2d 988, 989-90 (1976), a division of this court held that a

  divorce decree requiring an insurance policyholder to maintain a

  policy for a certain beneficiary transforms that beneficiary’s

  expectancy interest in the policy proceeds into an irrevocable

  “vested right.” See also Rudolph v. Pub. Serv. Co. of Colo., 847 F.

  Supp. 152, 155 (D. Colo. 1994) (citing Maxwell for the rule that, in

  Colorado, “the designation of children as beneficiaries of a life

  insurance policy in a divorce decree is irrevocable”).

¶ 36   Colorado is not alone in adopting this rule:

             Most courts have concluded that a promise,
             made as part of a separation agreement, to
             maintain a policy of insurance designating


                                    16
            either spouse or children as beneficiaries vests
            in such spouse or children an equitable
            interest in the policy which is superior to that
            of a stranger to the agreement who was
            subsequently named gratuitously as
            beneficiary.

  Torchia v. Torchia, 499 A.2d 581, 583-84 (Pa. Super. Ct. 1985)

  (emphasis added) (collecting numerous cases, including Maxwell).

  We find Maxwell and these other cases persuasive and applicable

  here. Accordingly, we conclude that Roseann has a protectable

  interest as the designated beneficiary of her former spouse’s life

  insurance policy because of the language contained in the

  separation agreement between her and Melvin, which was, as

  conceded by the parties, made an order of the court.

¶ 37   We are not persuaded by Donna’s argument that Maxwell is

  distinguishable because that case was filed by the insurance

  company as an interpleader action. In our view, this is a distinction

  without any meaningful difference. Many cases since Maxwell have

  been filed by the promisees of separation agreements against the

  recipients of the insurance proceeds, and the courts in these cases

  have recognized that the promisees have an irrevocable and legally

  protectable interest in the insurance proceeds. See id.



                                    17
¶ 38   We next address and reject Donna’s argument that Roseann’s

  claim fails because Melvin was the converter, not Donna. Although

  the parties have stipulated that Melvin was the person who changed

  the beneficiary designation on the Prudential policy, under the

  circumstances here, we conclude that act did not make him a

  “converter” of the funds. Conversion takes place at the time that

  the converter takes possession of the converted property. Glenn

  Arms Assocs., 680 P.2d at 1317. Here, the property converted was

  the Prudential policy proceeds. Melvin never had possession of the

  Prudential proceeds because those funds became available only

  after his death, and Donna received and possessed those funds.

¶ 39   In any event, a lawful possessor of property may become a

  converter once he or she refuses a demand for return of the

  property from the lawful owner. Davis, 149 Colo. at 37, 367 P.2d at

  326; Emp’rs’ Fire Ins. Co., 924 P.2d at 1111. Indeed, under

  Colorado law, a claim for conversion does not require the specific

  intent to deprive another of property. A good faith recipient of

  funds can commit conversion. Itin, 17 P.3d at 135 n.10. This type

  of conversion is called “technical conversion” or “innocent

  conversion.” Black’s Law Dictionary 407 (10th ed. 2014)


                                    18
  (“Technical conversion” is “the taking of another’s personal property

  by one who acts in good faith and mistakenly believes that he or

  she is lawfully entitled to the property. ― Also termed innocent

  conversion . . . .”).

¶ 40    Thus, even though Donna may have received the policy

  proceeds from Prudential in good faith and believed she was

  lawfully entitled to the funds as the named beneficiary, under the

  specific circumstances here, and certainly in the procedural context

  of a C.R.C.P. 12(b)(5) motion, we believe Roseann should be allowed

  to proceed with her conversion claim against Donna.

¶ 41    We now turn to the allegations in Roseann’s amended

  complaint to determine whether the facts she pleaded were

  sufficient to satisfy the plausibility test. Warne, ¶ 24. We conclude

  that, under the circumstances here, the amended complaint

  sufficiently alleged facts to state a plausible claim for relief based on

  conversion.

¶ 42    Roseann alleged in her amended complaint that, under the

  separation agreement, Melvin was obligated to maintain Roseann as

  the beneficiary of the Prudential policy and that his remarriage to

  Donna did not eliminate that obligation. She further alleged that,


                                     19
  after Melvin’s death, the funds from the Prudential policy were

  distributed to Donna, that she sent Donna a letter demanding that

  Donna transfer the funds to her as the beneficiary under the

  separation agreement, and that Donna declined to do so. Having

  incorporated all of her previous allegations by reference, we

  conclude that Roseann adequately alleged that Donna’s dominion

  and control were unauthorized because of the language in the

  separation agreement and because of Donna’s refusal to return the

  allegedly converted funds.

¶ 43   Thus, Roseann plausibly alleged that Donna had dominion

  and control over the Prudential policy proceeds; the proceeds belong

  to Roseann pursuant to the terms of the separation agreement;

  Donna was not authorized to have dominion and control over the

  proceeds; Roseann demanded in a letter that Donna return the

  proceeds; and Donna refused to return the proceeds. Roseann

  pleaded each element of conversion sufficiently for that claim to be

  plausible, Warne, ¶ 24, and the district court thus erred in

  dismissing that claim under C.R.C.P. 12(b)(5).

¶ 44   We emphasize that our holding is limited to the procedural

  context of this case, which is the summary dismissal of a case on a


                                   20
  C.R.C.P. 12(b)(5) motion. Our holding regarding the conversion

  claim is further limited to the specific circumstances here —

  namely, a plaintiff whose claim is based on a vested and irrevocable

  promise in a court-approved separation agreement to maintain the

  plaintiff as the beneficiary of proceeds under an insurance policy.

            3.    Unjust Enrichment and Constructive Trust

¶ 45   We also conclude that the district court erred in dismissing

  Roseann’s claim for unjust enrichment and constructive trust.

¶ 46   Unjust enrichment is a quasi-contractual, equitable remedy

  designed to undo a benefit conferred on one party at the unfair

  expense of another party. Pulte Home Corp. v. Countryside Cmty.

  Ass’n, 2016 CO 64, ¶ 63. A constructive trust is “a ‘flexible

  equitable remedy that may be imposed to prevent unjust

  enrichment’ by ‘enabl[ing] the restitution of property that in equity

  and good conscience does not belong to the defendant.’” Meadow

  Homes Dev. Corp. v. Bowens, 211 P.3d 743, 748 (Colo. App. 2009)

  (quoting Lawry v. Palm, 192 P.3d 550, 562 (Colo. App. 2008)).

¶ 47   Generally speaking, “a person who is unjustly enriched at the

  expense of another is subject to liability in restitution.”

  Restatement (Third) of Restitution and Unjust Enrichment § 1 (Am.


                                     21
  Law Inst. 2011) (hereinafter RST). “To prevail on an unjust

  enrichment claim, a party ‘must prove that (1) the defendant

  received a benefit (2) at the plaintiff’s expense (3) under

  circumstances that would make it unjust for the defendant to retain

  the benefit without commensurate compensation.’”6 Pulte Home

  Corp., ¶ 63 (quoting Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo.

  2008)).

¶ 48   Unjust enrichment claims are legally sustainable where third

  parties, such as Prudential, make a payment to the ultimate

  defendant in the case. Generally speaking, “[i]f a third person

  makes a payment to the defendant to which (as between the


  6 As a general rule, a party cannot recover for unjust enrichment as
  a matter of law where there is an express contract addressing the
  subject of the alleged obligation to pay. Pulte Home Corp. v.
  Countryside Cmty. Ass’n, 2016 CO 64, ¶ 64; Restatement (Third) of
  Restitution and Unjust Enrichment § 2 (Am. Law Inst. 2011)
  (hereinafter RST). In this case, there are arguably two express
  contracts: the separation agreement and the Prudential policy and
  beneficiary designation in that policy. However, neither of these
  contracts is between the parties to this civil action, Roseann and
  Donna. Therefore, this general bar to an unjust enrichment claim
  is not applicable here. See RST § 2 cmt. c (“Considerations of both
  justice and efficiency require that private transfers be made
  pursuant to contract whenever reasonably possible, and that the
  parties’ own definition of their respective obligations . . . take
  precedence over the obligations that the law would impose in the
  absence of [an] agreement.”) (emphasis added).

                                     22
  [plaintiff] and the defendant) the [plaintiff] has a better legal or

  equitable right, the [plaintiff] is entitled to restitution from the

  defendant as necessary to prevent unjust enrichment.” RST § 48.

  More specifically, a claim for unjust enrichment is proper where

  each of the parties has a claimed independent right to a payment

  that has been received by the defendant from a third party. Id. § 48

  cmt. d.

¶ 49   As illustrated by the cases collected in Torchia, 499 A.2d at

  583-84, many cases have involved competing claims to a decedent’s

  life insurance proceeds after a dissolution of marriage. Indeed, the

  Restatement specifically notes that “[c]ompeting claims to [a]

  decedent’s assets after family dissolution” is a common theme for

  third-party unjust enrichment claims. RST § 48 cmts. d, g. The

  Restatement explicitly articulates the exact circumstances of this

  case as an example of a proper claim for unjust enrichment:

             The more frequent source of disputes . . . is
             the breach of a contractual undertaking, made
             in the context of family dissolution, to cause
             former family members to take a beneficial
             interest in specified financial assets (typically
             life insurance . . . ) remaining within the legal
             control of the promisor. At the death of the
             promisor, the assets in question are payable
             instead to other named beneficiaries: typically,


                                      23
            to surviving family members from a
            subsequent marriage. . . . The promisees
            accordingly claim the disputed assets from the
            named beneficiaries . . . , asserting that their
            entitlement is paramount. . . . [T]he
            [promisee]’s remedy is typically via
            constructive trust.

  RST § 48 cmt. g & illus. 22.

¶ 50   We again turn to the allegations in the amended complaint to

  determine whether Roseann stated facts sufficient for a plausible

  claim of unjust enrichment and constructive trust. Roseann alleged

  that Donna received a benefit that was promised to Roseann in the

  separation agreement; that Roseann attempted to apply for the

  Prudential policy proceeds, but the proceeds had already been paid

  to Donna; and that, given the promise made to her in the

  separation agreement, it would be inequitable under the

  circumstances for Donna to retain the funds. Roseann sought

  imposition of a constructive trust, alleging that Donna had received

  the funds from Prudential and that she was not entitled, under the

  terms of the separation agreement, to receive those funds. Roseann

  asked the court to impose a constructive trust on the assets held by

  Donna and to declare that Donna held those assets in constructive

  trust for Roseann’s benefit. We conclude these allegations stated a


                                   24
  plausible claim for unjust enrichment and the imposition of a

  constructive trust.

¶ 51   As with the conversion claim, Donna’s primary argument is

  that the district court’s dismissal of the unjust enrichment claim

  should be affirmed because Melvin was the main wrongdoer in this

  situation. However, claims for unjust enrichment and constructive

  trust do not require wrongdoing on the part of the person receiving

  the benefit. E.g., Mayer v. Bishop, 551 N.Y.S.2d 673, 675 (N.Y. App.

  Div. 1990) (“[I]t is not a prerequisite of an unjust enrichment claim

  that the one enriched commit a wrongful or unlawful act . . . .”);

  Faulknier v. Shafer, 563 S.E.2d 755, 759 (Va. 2002) (“[C]onstructive

  trusts can arise even when property has been acquired fairly and

  without any improper means.”); 66 Am. Jur. 2d Restitution and

  Implied Contracts § 11 (2017) (“Although unjust enrichment may

  arise from fraud or several other predicates, the element of fraud or

  tortious conduct on the part of a defendant is not necessary in an

  action for unjust enrichment.”) (footnote omitted).

¶ 52   We recognize that Donna’s good faith receipt of the Prudential

  policy proceeds may be considered by the fact finder in determining

  whether the circumstances make it unjust for her to retain the


                                    25
  funds and whether the proceeds in equity and good conscience

  should go to Roseann as required for imposition of a constructive

  trust. See Faulknier, 563 S.E.2d at 760 (listing circumstances that

  may be considered by the fact finder in determining whether the

  plaintiff is entitled to a constructive trust); RST § 48 cmt. i (“Proof

  merely that the defendant has received a windfall, that the claimant

  has been ill-treated, and that the third party’s payment to the

  defendant . . . violates rules of good faith, basic fairness, or

  common decency, does not suffice to make out a claim in

  restitution . . . .”). Here, we have a particularly difficult case in

  which two arguably innocent parties assert legal claims to the same

  insurance proceeds. However, resolution of these claims should not

  be decided on a motion to dismiss under C.R.C.P. 12(b)(5), but,

  rather, should be left to a fact finder’s determination of equity

  under the totality of the circumstances.

       IV.   Failure to Join a Necessary Party — C.R.C.P. 12(b)(6)

¶ 53   Donna also argued that Roseann’s complaint should be

  dismissed under C.R.C.P. 12(b)(6) because Roseann failed to join a

  necessary party ― namely, Melvin’s estate. The district court may

  have adopted this reasoning as well when it dismissed the case for


                                      26
  “the reasons stated” in Donna’s motion and reply. Because we

  conclude that the amended complaint properly stated claims for

  conversion and unjust enrichment, we must now decide whether

  the complaint was nonetheless properly dismissed under C.R.C.P.

  12(b)(6) because it failed to join Melvin’s estate. We conclude that

  Melvin’s estate was not a necessary party. Therefore, the district

  court erred in dismissing the case under C.R.C.P. 12(b)(6) as its

  basis as well.

¶ 54   Under C.R.C.P. 12(b)(6), a case may be dismissed if the

  plaintiff fails to join a party under C.R.C.P. 19. The relevant portion

  of C.R.C.P. 19(a) provides as follows:

             A person who is properly subject to service of
             process in the action shall be joined as a party
             in the action if: (1) In his absence complete
             relief cannot be accorded among those already
             parties, or (2) he claims an interest relating to
             the subject of the action and is so situated
             that the disposition of the action in his
             absence may: (A) As a practical matter impair
             or impede his ability to protect that interest or
             (B) leave any of the persons already parties
             subject to a substantial risk of incurring
             double, multiple, or otherwise inconsistent
             obligations by reason of his claimed interest.

  Under C.R.C.P. 19, generally all parties having an interest in the

  property at issue must be joined. Clubhouse at Fairway Pines,


                                    27
  L.L.C. v. Fairway Pines Estates Owners Ass’n, 214 P.3d 451, 454

  (Colo. App. 2008).

¶ 55   However, we conclude that Melvin’s estate was not required to

  be joined as a party under C.R.C.P. 19. Under the remaining

  claims for relief in Roseann’s amended complaint, complete relief

  can be accorded between Roseann and Donna because Donna has

  possession of the proceeds at issue. Moreover, Melvin’s estate will

  not be harmed in any way if it is not a party to this action because

  the life insurance proceeds were never part of the estate assets, but

  were instead disbursed directly to Donna by Prudential. Melvin’s

  estate has no interest in those proceeds that would necessitate its

  joinder in this action.

¶ 56   Importantly, this is not an action for enforcement of the

  separation agreement.7 Rather, this is essentially an action in tort,

  seeking legal and equitable relief against a person (Donna) who has

  possession of funds to which Roseann claims she is legally entitled.

  Therefore, Melvin’s estate, while perhaps a proper and necessary


  7 Under section 14-10-112(5), C.R.S. 2017, Roseann would not be
  allowed to sue in contract for breach of the separation agreement;
  she can only seek enforcement of the separation agreement as a
  judgment of the domestic court.

                                   28
  party in an enforcement action, is not a necessary party to this

  action that alleges claims in tort and equity directly against Donna.

  Donna points to no Colorado cases, and we have found none, that

  would require Roseann to sue Melvin’s estate under an enforcement

  theory instead of pursuing her claims against Donna.

¶ 57   Thus, because complete relief can be accorded to Roseann,

  and the disposition of this action will not harm the interests of

  Melvin’s estate, we conclude the estate is not a necessary party to

  the action under C.R.C.P. 19. Accordingly, the district court’s order

  dismissing the case under C.R.C.P. 12(b)(6) must be reversed.

                      V.   Attorney Fees and Costs

¶ 58   After the court granted her motion to dismiss, Donna moved

  for attorney fees under section 13-17-201, C.R.S. 2017, and for

  costs under sections 13-16-113(2) and 13-16-107, C.R.S. 2017, and

  C.R.C.P. 54(d) based on the district court’s dismissal of Roseann’s

  complaint under C.R.C.P. 12(b). After a hearing, the district court

  granted Donna’s motion for reasonable attorney fees and costs in

  total, stating that “the statutes under which [Donna] has made her

  claims for attorney fees and costs are applicable and appropriate.”




                                    29
¶ 59   Roseann contends that Donna is not entitled to attorney fees

  and costs because the court erred in granting Donna’s motion to

  dismiss. We agree.

¶ 60   Sections 13-17-201 and 13-16-113(2) require a court to award

  reasonable attorney fees and costs, respectively, to the defendant

  when the court has dismissed the action pursuant to a defendant’s

  motion under C.R.C.P. 12(b). Section 13-16-107 allows for the

  recovery of costs to the prevailing party on a motion to dismiss.

  And, C.R.C.P. 54(d) allows for reasonable costs to be recovered by

  the prevailing party in a civil action.

¶ 61   However, section 13-17-201 “does not authorize recovery [of

  attorney fees] if a defendant obtains dismissal on some, but not all,

  of a plaintiff’s tort claims.” Colo. Special Dists. Prop. & Liab. Pool v.

  Lyons, 2012 COA 18, ¶ 60. Because we conclude that the district

  court improperly granted Donna’s motion to dismiss under C.R.C.P.

  12(b)(5) (as to the claims for conversion and unjust enrichment) and

  12(b)(6), we conclude that the court’s order granting attorney fees

  and costs must be vacated. An award of costs under section 13-16-

  113 is no longer appropriate because the entire “action” has not

  been dismissed under C.R.C.P. 12(b).


                                      30
¶ 62   Further, any costs awarded under section 13-16-107 and

  C.R.C.P. 54(d) are also inappropriate because Donna is no longer a

  prevailing party. E.g., Gonzales v. Windlan, 2014 COA 176, ¶ 50

  (“[A] prevailing party is one who ‘prevails on a significant issue in

  the litigation and derives some of the benefits sought by the

  litigation.’” (quoting Archer v. Farmer Bros. Co., 90 P.3d 228, 230

  (Colo. 2004))).

                             VI.   Conclusion

¶ 63   The judgment is affirmed in part and reversed in part, and the

  case is remanded with directions. The district court’s order

  granting Donna’s motion for attorney fees and costs is vacated.

       JUDGE ROTHENBERG and JUDGE CARPARELLI concur.




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