Ebke v. Julesburg School Dist. No. RE-1, in Sedgwick County, RE--1

• Decision Date: 19 February 1976
• Docket Number: IN,RE--1,No. 75--006,75--006
• Citation: 550 P.2d 355,37 Colo.App. 349
• Parties: Ruth EBKE et al., Plaintiffs-Appellants, v. JULESBURG SCHOOL DISTRICT NO.the COUNTY OF SEDGWICK and State of Colorado, Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 355

550 P.2d 355

37 Colo.App. 349

Ruth EBKE et al., Plaintiffs-Appellants, v. JULESBURG SCHOOL DISTRICT NO. RE--1, IN the COUNTY OF

SEDGWICK and State of Colorado, Defendant-Appellee.

No. 75--006.

Colorado Court of Appeals, Div. II.

Feb. 19, 1976.

Rehearing Denied March 18, 1976.

Certiorari Granted June 1, 1976.

Hobbs & Waldbaum, P.C., William E. Brayshaw, Denver, for plaintiffs-appellants.

Yegge, Hall & Evans, Donald A. Thorpe, Reese Miller, Denver, for defendant-appellee.

ENOCH, Judge.

Plaintiffs appeal from a summary judgment in favor of the defendant school district. We reverse.

The plaintiffs are 18 teachers employed by the Julesburg School District. In 1972 the school board voted to freeze longevity increments for the 1972--73 school year as a result of the Federal Wage Freeze. In 1973 the Board refused to adjust the salary schedules for the 1973--74 school year so as to place the teachers affected by the freeze on the step on the schedule where they would have been had there been no freeze. The plaintiffs instituted legal action based on the Teacher Employment Dismissal and Tenure Act, § 22--63--101 et seq., C.R.S.1973, (Tenure Act) and requested damages and injunctive relief. The trial court determined that the exclusive remedy available to the teachers was under C.R.C.P. 106 and that since the action had not been commenced within the time provided by that rule, the defendant's motion for summary judgment should be granted.

It appears from the plaintiffs' bill of particulars that they are actually alleging two separate claims for relief which need to be analyzed separately. The first claim alleges that the Board acted improperly in freezing the longevity increments in 1972. The second claim alleges that the School Board improperly refused to adjust the salary schedules in 1973. Both claims appear to allege a breach of contract on the premise, with which we agree, that the Tenure Act creates a contract between the teachers and the School District. Marzec v. Fremont County School District No. 2, 142 Colo. 83, 349 P.2d 699.

The trial court did not designate which section of C.R.C.P. 106 provided an exclusive remedy for plaintiffs' claims. An analysis of Rule 106 would indicate, however, that there are only two possible sections that could have been considered applicable; (a)(4) and (a)(2).

C.R.C.P.(a)(4), review in the nature of certiorari, is applicable where a party is attacking an action taken by a board, Sheeley v. County Commissioners, 137 Colo. 350, 325 P.2d 275. However, that section is directed to an action against the Board for exceeding its jurisdiction or abusing its discretion, but permits relief only where there is no 'plain, speedy and adequate remedy,' See Kizer v. Beck, 30 Colo.App. 569, 496 P.2d 1062, and thus does not apply to the first claim where, as here, the plaintiffs allege a breach of a pre-existing contract. Additionally, since it appears that no hearing was held by the Board before it made its decision to freeze the longevity increments, C.R.C.P.106(a) (4) is clearly not plaintiffs' exclusive remedy. Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223.

The second claim alleges the refusal of the Board to take a requested action and seeks to compel such action, so if brought under C.R.C.P. 106, only section (a)(2), review in the nature of mandamus, would be applicable. Sheeley, supra. Although C.R.C.P. 106(a)(2) does not specifically state that there must be no other adequate remedy, Colorado case law establishes such a requirement for relief in the nature of mandamus. Potter v. Anderson, 155 Colo. 25, 392 P.2d 650. And in Sorensen v. Echternacht, ...