Mucci v. Falcon School Dist. No. 49, El Paso County, 79CA1099
Decision Date | 12 August 1982 |
Docket Number | No. 79CA1099,79CA1099 |
Parties | Tod MUCCI and Rochelle Weiss, Plaintiffs-Appellees, v. FALCON SCHOOL DISTRICT # 49, EL PASO COUNTY, Colorado, Defendant-Appellant. . II |
Court | Colorado Court of Appeals |
Law Offices of Larry F. Hobbs, Larry F. Hobbs, Denver, for plaintiffs-appellees.
Miller & Swearingen, Reese Miller, Richard B. Wagner, Denver, Gary F. Dailey, Colorado Springs, for defendant-appellant.
Plaintiffs, Tod Mucci and Rochelle Weiss, were employed as non-tenured teachers by defendant, Falcon School District # 49 (District). When the Falcon School Board (Board) declined to renew the plaintiffs' teaching contracts, the plaintiffs brought an action under 42 U.S.C. § 1983, claiming that their union activities were a substantial factor in the Board's decision. The District appeals from a jury verdict in favor of plaintiffs. We affirm.
The District first contends that the trial court erred in denying its motion for summary judgment, which was based on the theory that the plaintiffs' claims are barred by their failure to comply with the notice provisions of the Colorado Governmental Immunity Act (GIA), § 24-10-101 et seq., C.R.S.1973. We disagree.
Section 24-10-109(1), C.R.S.1973, requires that:
The nonrenewal of plaintiffs' teaching contracts occurred on March 24, 1977, and their action was filed on November 7, 1977. It is uncontroverted that plaintiffs sent no formal notice to the District prior to November 7.
The District asserts that the "injury" claimed by plaintiffs is a tort for the purpose of the GIA. See §§ 24-10-102 and 24-10-103(2), C.R.S.1973. While it is true that plaintiffs have alleged a "constitutional tort," Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Hampton v. Chicago, 484 F.2d 602, 607 (7th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974), cited in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); see McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir.1968) ( ).
While the District correctly asserts that § 1983 actions are governed by state statutes of limitation, Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), the applicable state statute of limitations is § 13-80-106, C.R.S.1973, McKinney v. Armco Recreational Products, 419 F.Supp. 464 (D.Colo.1976), and not the time limit found in the GIA. Section 13-80-106 provides that:
"All actions upon a liability created by a federal statute ... shall be commenced within two years ... after the cause of action accrues."
Hence, since plaintiffs' action was brought within the applicable two-year period, it is not barred.
The District contends that the trial court should have granted...
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ARTICLE 80 LIMITATIONS - PERSONAL ACTIONS
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