Summary
stating that the GIA does not apply to contractual claims and thus plaintiffs are not required to provide notice under the GIA for breach-of-contract claims
Summary of this case from City of Raton v. Arkansas River Power AuthorityOpinion
No. 75-006
Decided February 19, 1976. Rehearing denied March 18, 1976. Certiorari granted June 1, 1976.
A group of teachers challenged the school board's salary freeze order and its subsequent refusal to alleviate effects of the freeze by readjusting salary levels, and summary judgment was entered for school on grounds that the teachers had not complied with C.R.C.P. 106. The teachers appealed.
Reversed
1. SCHOOLS AND SCHOOL DISTRIS — Action by Teachers — Alleged Breach of Contracts — Longevity Increments Freeze — Refusal to Adjust Salaries — C.R.C.P. 106 Action — Not Exclusive Remedy — Entry of Summary Judgment — Error. In action by teachers alleging that the school board breached their employment contracts by imposing a freeze on longevity increments in teachers' salaries and by refusing to adjust salary schedules at the conclusion of the 1972 Federal Wage Freeze, the teachers' remedy was not exclusively a C.R.C.P. 106 action, and thus the trial court's entry of summary judgment based on the teachers' noncompliance with C.R.C.P. 106 was error.
2. Action by Teachers — Alleged Breach of Contracts — Recovery Not Barred — Failure to Comply — Governmental Immunity Act. In action by teachers alleging that the school board breached their employment contracts by imposing a freeze on longevity increments in teachers' salaries and by refusing to adjust salary schedules at the conclusion of the 1972 Federal Wage Freeze, the teachers were not precluded from recovery for failing to comply with the notification provisions of the Governmental Immunity Act, since that Act governs tort, rather than contract actions.
Appeal from the District Court of the County of Sedgwick, Honorable Francis L. Shallenberger, Judge.
Hobbs Waldbaum, P.C., William E. Brayshaw, for plaintiffs-appellants.
Yegge, Hall Evans, Donald A. Thorpe, Reese Miller, for defendant-appellee.
Division II.
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 of 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. Sheely, 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, 74 Colo. 91, 218 P. 1046, a suit for breach of contract by a teacher against the school board was held to constitute a plain, speedy and adequate remedy. Hence, C.R.C.P. 106(a)(2) cannot be the exclusive remedy available to plaintiffs in this case, since their second claim also is based on an alleged breach of contract.
[1] Therefore it was error for the trial court to grant summary judgment on the basis that the time limits prescribed by C.R.C.P. 106(b) had not been complied with for either claim.
Defendant argues that the summary judgment should be upheld on the alternative ground that the plaintiffs are barred by failing to give timely notice as required by the Governmental Immunity Act, § 24-10-109, C.R.S. 1973. We disagree.
[2] Although § 24-10-105, C.R.S. 1973, states that the Governmental Immunity Act is intended to cover all actions "which lie in or could lie in tort regardless of whether that may be the type of action chosen by the claimant," in Newt Olson Lumber Co. v. School District No. 8, 83 Colo. 272, 263 P. 723, the court indicated that only a violation of a non-contractual duty by a school district is actionable as a tort. Here, the trial court found that the act did not apply since the plaintiffs' claim was based on breach of contract, and under our analysis, plaintiffs are alleging two claims for relief, both of which appear to arise out of a breach of the contract created by the Tenure Act. Thus, even though the contract in the case at bar is created by statute, the violation is a contractual one and not covered by the Governmental Immunity Act. Therefore, plaintiffs were not required to give the notice provided for in § 24-10-109, C.R.S. 1973.
The judgment is reversed and the cause remanded for trial on the merits.
JUDGE RULAND and JUDGE STERNBERG concur.