Opinion · Colorado Court Opinions

FRANKMORE v. BOARD OF EDUC., 41 Colo. App. 416 (1978)

August Frankmore v. Bd. of Educ. of Adams County Sch. DistrictNo. 14 & Alfred G. Kreinberg, Manuel E. Padilla, Paul R. Wilson, Sr.,Robert Morise, & Alvin L. Franzen, individually & as members of theBoard of Educ. of Adams County Sch. Dist. No. 14 & J. RolandIngraham, Jr., 589 P.2d 1375 (Colo. App. 1978)

Type
Opinion
Court
Colorado Court Opinions
Jurisdiction
Colorado
Date
1978-10-19
Topic
general

FRANKMORE v. BOARD OF EDUC., 41 Colo. App. 416 (1978) (589 P.2d 1375) August Frankmore v. The Board of Education of Adams County School DistrictNo. 14 and Alfred G. Kreinberg, Manuel E.

Citator

UpLaw has not yet analyzed FRANKMORE v. BOARD OF EDUC., 41 Colo. App. 416 (1978). The absence of a flag is not a finding that it is good law.

FRANKMORE v. BOARD OF EDUC.,41 Colo. App. 416(1978)
(589 P.2d 1375)
August Frankmore v. The Board of Education of Adams County School District
No. 14 and Alfred G. Kreinberg, Manuel E. Padilla, Paul R. Wilson, Sr.,
Robert Morise, and Alvin L. Franzen, individually and as members of the
Board of Education of Adams County School District No. 14 and J. Roland
Ingraham, Jr.
No. 77-888
Colorado Court of Appeals.
Decided October 19, 1978. Rehearing denied November 16, 1978. Certiorari
denied January 29, 1979.
In action challenging the dismissal of a tenured teacher, trial court entered judgment sustaining the dismissal, and plaintiff appealed.Affirmed
1.SCHOOLS AND SCHOOL DISTRICTS—Complaint — Discharged Tenured Teacher— No Reference — Statute — Sought Only — Injunctive Relief — No ClaimStated — — Teacher Tenure Act — Proper Ruling.Where complaint of discharged tenured teacher contained no reference to the statutory provision for review of school board's order, and prayed only for injunctive relief, and where at the hearing the teacher agreed that the complaint was not one for review under the statute, the trial court properly held that the complaint did not state a claim for judicial review under the Teacher Tenure Act.
2.Failure — File Timely Action — Teacher Tenure Act — JurisdictionalDefect — Precludes — Relation Back.Failure to file an action for judicial review of termination of tenured teacher under the Teacher Tenure Act within applicable sixty day period is a jurisdictional defect which precludes any relation back of an amendment to a pleading under C.R.C.P. 15(c).
3.Teacher Tenure Act — Provides — Adequate Remedy at Law — EquitableRelief — Precluded.The proceedings available under the Teacher Tenure Act and subsequent judicial review are an adequate remedy at law for any wrongful termination of a tenured teacher, and thus they serve to preclude equitable relief.
Appeal from the District Court of Adams County, Honorable Jean J. Jacobucci, Judge.
Hobbs Waldbaum, P.C., Larry F. Hobbs, for plaintiff-appellant.

Good Stettner, P.C., Martin Semple, for defendants-appellees.Page 417
Division I.
Opinion by JUDGE BERMAN.
Plaintiff, a tenured teacher, was dismissed by the defendant Board of Education (board) on March 8, 1977, after formal charges were brought and a hearing was held under the Teacher Employment, Dismissal and Tenure Act of 1967, C.R.S. 1973, §22-63-101et seq. (Teacher Tenure Act). On April 5, 1977, plaintiff filed this action seeking a temporary restraining order and preliminary and permanent injunctions enjoining defendants from enforcing the dismissal order. Plaintiff filed an amended complaint on July 1, 1977, in which he sought, in addition, judicial review of the board's order under the statute, § 22-63-117(11), C.R.S. 1973.

The trial court held that: (1) The availability of review under the statute, § 22-63-117(11), C.R.S. 1973, was an adequate remedy at law which precluded any equitable relief; (2) plaintiff's claim for review under the statute was untimely filed because his original complaint did not seek review under the statute and his amended complaint, which was filed more than sixty days after the board's order, did not relate back under C.R.C.P. 15(c) to the date of the original complaint; and (3) on the merits, the board's order was proper. We affirm.

Plaintiff first contends that the trial court erred in holding that his original complaint did not state a claim for judicial review under § 22-63-117(11), C.R.S. 1973, of the Teacher Tenure Act. We disagree.[1]Plaintiff's original complaint contains no reference to the statutory provision for judicial review of the board's order, and prays only for a temporary restraining order and preliminary and permanent injunctions. Furthermore, at the hearing on the temporary restraining order, plaintiff expressly agreed with the court's statement that the complaint wasnotone for review under the statute or C.R.C.P. 106. On these facts we conclude that the trial court's ruling was proper.Cf.Richter v. City of Greenwood Village,40 Colo. App. 310,577 P.2d 776(1978).

Plaintiff next contends that C.R.C.P. 15(c) applies and, therefore, his amended complaint for judicial review under § 22-63-117(11), C.R.S. 1973, relates back to the date of the original complaint. We disagree.

In several recent cases, the failure to perfect an action to review an administrative decision within the applicable time period has been held to be a jurisdictional defect.E.g., Snyder v. City of Lakewood,189 Colo. 421,542 P.2d 371(1975);City County of Denver v. DistrictCourt,189 Colo. 342,540 P.2d 1088(1975);McCartney v. West AdamsCounty Fire Protection District,40 Colo. App. 330,574 P.2d 516(1978);Richter v. City of Greenwood Village, supra; Lorenz v. City ofLittleton,Page 41838 Colo. App. 16,550 P.2d 884(1976). In such cases, the jurisdictional defect has precluded the application of C.R.C.P. 15(c).Richter v. City ofGreenwood Village, supra; Lorenz v. City of Littleton, supra.[2]The rule of these cases applies equally to a proceeding for judicial review under the Teacher Tenure Act, § 22-63-117(11), C.R.S. 1973, and therefore, the failure to file under the statute within the sixty day period precludes the application of C.R.C.P. 15(c).See Richter v. City ofGreenwood Village, supra; Lorenz v. City of Littleton, supra.

Plaintiff next argues that, because the statutory provision limits review to the record before the board and review of the record would not be adequate here, the trial court erred in holding that the availability of review under § 22-63-117(11), C.R.S. 1973, bars equitable relief. Again, we disagree.[3]InUmberfield v. School District No. 11,185 Colo. 165,522 P.2d 730(1974), in discussing the Teacher Tenure Act, the court noted that the General Assembly provided for broad judicial review of any order of the board of education under the act. The court went on to hold that "the proceedings under the Teacher Tenure Act andsubsequent judicial reviewgive a tenured teacher contesting his dismissal an opportunity to raise all defenses, judicial, statutory, or constitutional available to him, before a panel with plenary power to consider and accept or reject such claims." (emphasis added) Accordingly, the trial court properly held that the review procedure under the Teacher Tenure Act is an adequate remedy at law which precludes equitable relief.See American Investors LifeInsurance Co. v. Green Shield Plan, Inc.,145 Colo. 188,358 P.2d 473(1960);Barocas v. Bohemia Import Co.,33 Colo. App. 263,518 P.2d 850(1974).

Because the trial court properly held that plaintiff had an adequate remedy at law and that he failed to file within the applicable time period, we are precluded from reaching plaintiff's contention regarding the merits of his claim.

Judgment affirmed.

JUDGE COYTE and JUDGE SMITH concur.Page 419