Maxey v. Jefferson County School Dist. No. R-1

• Citation: 408 P.2d 970,158 Colo. 583
• Decision Date: 20 December 1965
• Docket Number: No. 20864,R-1,20864
• Parties: Lena J. MAXEY, Administratrix of the Estate of Clyde A. Maxey, Deceased, Plaintiff in Error, v. JEFFERSON COUNTY SCHOOL DISTRICT NO., in the County of Jefferson and State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 970

408 P.2d 970

158 Colo. 583

Lena J. MAXEY, Administratrix of the Estate of Clyde A.

Maxey, Deceased, Plaintiff in Error, v. JEFFERSON COUNTY SCHOOL DISTRICT NO. R-1, in the County of

Jefferson and State of Colorado, Defendant in Error.

No. 20864.

Supreme Court of Colorado, In Department.

Dec. 20, 1965.

Flowers & McKevitt, Denver, for plaintiff in error.

Harold D. Lutz, Arvada, for defendant in error.

SUTTON, Justice.

The sole issue on this writ of error is whether Clyde A. Maxey, now deceased was entitled to be paid as a tenured teacher under teacher salary schedules in force from September 1, 1953 to the date of his death on or about April 8, 1960.

The case was heard by the trial court without a jury on an agreed statement of facts. The court thereafter dismissed the complaint on the grounds of laches and estoppel since the deceased, during his employment, had neither complained about nor sought to enforce payment of the salary differential which, admittedly, totals the sum of $8,984.09, plus interest.

In essence, the written 'Agreed Statement Of Facts' sets forth the following pertinent points, viz.:

(1) That Maxey 'from on or about September 1, 1951 to the date of his death * * * was employed by the defendant on a regular full time basis continuously and without interruption in an administrative capacity as a County-Wide Supervisor; that during the period of time * * * he held a Master of Arts Degree and a Graduate Life Teaching Certificate * * * duly registered in the Office of the County Superintendent of Schools of Jefferson County, Colorado.'

(2) 'That during the period of time the deceased was employed by the defendant he had stable and continuous tenure as a teacher in the defendant school district within the meaning of the teacher tenure laws of Colorado.'

(3) That defendant had regularly published teacher tenure schedules during the period in question, and that plaintiff in error contends that these schedules encompass Maxey both in fact and in law, although defendant denies such coverage.

We further note that although defendant's Answer admits the employment and denies the claimed coverage, yet it fails affirmatively to plead laches or estoppel as required by Rule 8(c), R.C.P. Colo. Nor does this record show any waiver by plaintiff in error of her right to object to defendant raising these issues at a later time. In this connection, the record discloses that such defenses were first urged upon the court orally at the trial. Not having been pled, as required, we hold that the trial court erred in considering such defenses, especially over the objections of counsel for plaintiff in error. Bernklau v. Stevens, 150 Colo. 187, 371 P.2d 765, 95 A.L.R.2d 905 (1962); McPherson v. McPherson, 145 Colo. 170, 172, 358 P.2d 478 (1960). Defenses and objections not presented as required by our rules are deemed waived. Rule 12(h),...