Michael A. MARINO, Plaintiff-Appellant, v. E. L. WILLOUGHBY and the City of Pueblo, Defendants-Appellees.
No. 79CA1187
Colorado Court of Appeals, Div. III.
Aug. 14, 1980
Rehearing Denied Sept. 11, 1980
Certiorari Denied Oct. 27, 1980.
After a default consisting of the debtor‘s failure to make a required payment or payments, a creditor may not accelerate maturity of the unpaid balance of the note nor take possession of or enforce a security interest in the collateral unit twenty days after a notice of the debtor‘s right to cure is given.
In the instant case, it is undisputed that a notice in proper form was mailed by the creditor to the debtor at her correct address, see
Werner v. Commonwealth Casualty Co., 109 N.J. 119, 160 A. 547 (1932), relied on by the majority, is distinguishable on its facts from the present case. There a notice of cancellation of an insurance policy was sent registered mail, return receipt requested, addressee only. The court held that by directing the letter “in a manner requiring a personal receipt, it is obvious it could not be delivered unless that person were available and the receipt personally given.” In the instant case, however, although the notice was sent certified mail, return receipt requested, there was no request for “addressee only.”
Even if the creditor here had required a receipt signed by addressee only, in my view the statutory requirement of mailing was met. “When the provision . . . is that notice by mail is sufficient, that provision is broad enough to cover all the kinds of mail which are commonly used to convey messages. Registered mail is just as much mail as ordinary mail.” Westmoreland v. General Accident Fire and Life Assurance Corp., 144 Conn. 265, 129 A.2d 623 (1957) (in which the court considered and did not agree with the reasoning in Werner, supra). In Gerard v. Massachusetts Bonding & Insurance Co., 106 N.H. 1, 203 A.2d 279 (1964), the court refers to Werner as being the “minority authority,” states that the view in Werner does not “rest on a sound and logical basis,” and concludes that “[t]he fact that it was sent by registered mail, which is ordinarily considered a safer method than ordinary mail, should not militate against it.” Cf. Ledbetter v. School District Number 8, 163 Colo. 127, 428 P.2d 912 (1967).
To hold, as does the majority, that, since the creditor chose not to effect actual delivery, it “must use a method of mail likely to insure that the notice is actually delivered to the debtor‘s residence,” is rewriting the statute. This we cannot do.
Although the defaulting debtor did not receive notice of her right to cure, the creditor used an accepted form of mailing and thereby complied with the statute. See Westmoreland, supra; Gerard, supra. Under the statute, the notice was given to the debtor when the letter was properly addressed, registered, and mailed.
Accordingly, I would reverse and reinstate the complaint.
William E. Kenworthy, Denver, Edwin K. McMartin, Pueblo, for plaintiff-appellant.
KIRSHBAUM, Judge.
Plaintiff, Michael A. Marino, appeals the trial court‘s summary judgment dismissing his complaint for damages against defendants, E. L. Willoughby and the City of Pueblo. We reverse.
The record discloses the following undisputed facts. On April 14, 1974, Marino, then a Pueblo police officer, attempted to commit suicide. In June of 1974, Willoughby, then Pueblo‘s Chief of Police, terminated Marino‘s employment, primarily because of the April incident.
Marino appealed his discharge to the Pueblo Civil Service Commission. Marino appeared and was represented by counsel at an evidentiary hearing conducted by the Commission. He did not challenge his discharge on federal grounds. The Commission upheld the termination in August of 1974. Marino did not exercise his right to seek review of that decision in the district court.
On October 23, 1978, Marino filed the complaint in this case alleging two claims for relief. The first claim seeks damages on the ground that his 1974 discharge violated his civil rights as protected by federal law. Although the first claim also refers to certain Colorado statutory provisions, Marino has indicated on appeal that his first claim is “an action for enforcement of his civil rights, specifically his right to a pre-termination hearing prior to discharge from his employment, pursuant to
The sole issue on appeal is whether Marino‘s complaint is barred by the doctrine
Marino contends that the Commission could not have determined his federal claims in 1974. We agree.
As applicable in 1974, the City Charter of Pueblo § 8-4 contained the following pertinent provisions:
“It shall be the duty of the Civil Service Commission in compliance with rules established by the council:
a. To hear appeals from any action . . . dismissing any employee in the Classified Service as hereinafter provided, and to report in writing to the superior taking the action appealed from, its findings and decisions. Any superior taking action such as above mentioned shall present such an employee, in writing, a statement as to what action is being taken and for what reason. If the employee desires, he may take the complaint to the Chairman of the Civil Service Commission and be given a hearing by the Commission within five (5) days . . . . The decisions of the Civil Service Commission on appeals shall be final unless reversed by the District Court;
b. To provide for reinstatement of any employee found innocent of preferred charges. . . .”
In addition, the City Charter of Pueblo § 6-12-1(b) required the Commission to grant hearings to employees who appeal any disciplinary action involving dismissal.
These provisions do not authorize the Commission to grant monetary relief for violations of federal rights established by
Willoughby and Pueblo contend that the decision in Umberfield v. School District No. 11, 185 Colo. 165, 522 P.2d 730 (1974) controls this case. Umberfield held that the doctrine of res judicata constituted a bar to a petition filed with the Colorado Civil Rights Commission by a teacher who previously had been discharged pursuant to Colorado‘s Teacher Tenure Act, had appealed his termination, and had not sought judicial review of an administrative decision rejecting his appeal. The petition alleged a violation of
Because Umberfield did assert some claims of discrimination during the prior administrative proceedings, a majority of the court concluded that all his employment discrimination claims were barred by the doctrine of res judicata. The court concluded that the teacher tenure panel there involved had jurisdiction to consider all of Umberfield‘s discrimination claims. Furthermore, the Civil Rights Commission had no authority to award damages. Thus, had Umberfield raised his discrimination claims as defenses to his dismissal, and prevailed, he would have resolved completely all claims against the employer that could have been resolved by the Civil Rights Commission.
Here Marino did not raise either of his federal claims during the administrative proceedings, and the Commission did not have jurisdiction to resolve such claims. Moreover, even if Marino had presented to the Commission the grounds underlying the federal claims here asserted as defenses to his dismissal, a decision by the Commission to reinstate Marino could not have resolved
In the circumstances of this case, we conclude that the doctrine of res judicata does not bar Marino‘s federal claims. Therefore, we do not consider Marino‘s argument that, pursuant to Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), the state doctrine of res judicata is inapplicable to the particular federal claims asserted.
Judgment reversed and cause remanded for further proceedings.
RULAND, J., concurs.
VAN CISE, J., dissents.
VAN CISE, Judge, dissenting:
At the inception, I note that the motion for summary judgment was based on three grounds, (1) res judicata, (2) failure to comply with the notice provisions of
Based on Umberfield v. School District No. 11, 185 Colo. 165, 522 P.2d 730 (1974) and Colorado Springs Coach Co. v. State of Colorado Civil Rights Commission, 35 Colo. App. 378, 536 P.2d 837 (1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed. 355 (1976), I would affirm the judgments in favor of both defendants on the basis of res judicata.
In June 1974, Marino was discharged because of emotional instability which rendered him unfit for the job of police officer. He appealed his discharge to the Pueblo Civil Service Commission. Marino and Willoughby (and through him the City) appeared and were represented by counsel, and there was a full hearing on the basic question of whether Marino‘s discharge should be sustained or rejected.
At the hearing, Marino did not raise, but could have raised, the issues on which he has based his present lawsuit—whether his discharge was illegal because it was prohibited by certain state and federal statutes and was in violation of his constitutional rights. Had he raised these issues and prevailed, the Commission could have reversed the discharge, in which event he could have been reinstated and given back pay and benefits—which is the relief he is asking for in the present action.1 Or, if for any reason (and I can think of none) he was prevented from raising these issues at the Commission hearing, he could have appealed the decision of the Commission to the district court and raised these issues there. This he did not do, and, instead, commenced this separate action four years later.
This case is analogous to the situation in Umberfield, supra, where, instead of appealing the administrative agency‘s decision to terminate his employment, the plaintiff filed a complaint with the Colorado Civil Rights Commission. In that case, after first holding that the doctrine of res judicata may be applied to administrative proceedings, the Court held that “the doctrine of res judicata operates as a bar to the relitigation of issues which Umberfield raised or could have raised in the hearing before the [teacher tenure panel] and on judicial review.” See also Norby v. City of Boulder, 195 Colo. 231, 237, 577 P.2d 277, 281 (1978).
The issues, and the claims for damages, in Marino‘s complaint are the identical issues and claims which he could have raised before the Commission or before the district court had the Commission‘s decision been appealed. Hence, the doctrine of res judi-