Colobro v. Mercer County Board of Ed.
Annotate this CaseJanuary 1996 Term
___________
No. 23066
___________
JACKSON COLOBRO,
Plaintiff Below, Appellant,
v.
MERCER COUNTY BOARD OF EDUCATION,
Defendant Below, Appellee
_______________________________________________________
Appeal from the Circuit Court of Mercer County
Honorable David W. Knight, Judge
Civil Action No. 94-CV-733-K
AFFIRMED
_______________________________________________________
Submitted: January 10, 1996
Filed: February 15, 1996
Mary E. Griffith
Bell & Griffith
Princeton, West Virginia
and
James McNeely
Greenville, West Virginia
Attorneys for the Appellant
Kathryn Reed Bayless
Bayless, McFadden & Cyrus
Princeton, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "The writ of mandamus will be refused when the
petitioner has unreasonably delayed his application for such
writ and by reason of the delay the rights of the defendant or
innocent third parties will be prejudiced by the issuance of
the writ." Syllabus point 3, State ex rel. Waller Chemicals,
Inc. v. McNutt, 152 W.Va. 186, 160 S.E.2d 170 (1968).
2. "A question not fairly presented or arising upon
the record, though made a point of error in this court, will
not be considered or regarded as ground for reversal."
Syllabus point 4, Morrison v. Smith-Pocahontas Coal Co., 88
W.Va. 158, 106 S.E. 448 (1921).
Per Curiam:
This is an appeal by Jackson Colobro from an order of
the Circuit Court of Mercer County denying the appellant's
petition for mandamus relief in a controversy involving the
filling of a vacant teacher position in the Mercer County
school system. The circuit court denied relief on the ground
that the appellant had unreasonably delayed in filing his
application for a writ of mandamus. On appeal, the appellant
claims that the circuit court, in effect, denied him relief on
the ground of laches and that such a denial was improper since
the defendant, named in this action as the Mercer County Board
of Education,(1) did not affirmatively plead laches and since the
facts of the case showed that there was reasonable
justification for his delay in filing. After reviewing the
issues raised and the record filed, we disagree with the
appellant's assertions. The judgment of the Circuit Court of
Mercer County is, therefore, affirmed.
On June 30, 1992, the Mercer County Board of Education terminated the employment of the appellant, Jackson Colobro, as a classroom teacher due to a reduction in force. At the time, W.Va. Code 18A-4-7a provided that Mr. Colobro was entitled to have his name placed upon a "preferred recall list." The statute also provided that the party in the most senior position on the recall list was entitled to a later posted position, provided such senior person was qualified for the posted position. Specifically, the relevant portion of the Code section stated:
As to any professional position opening
within the area where they had previously
been employed or to any lateral area for
which they have certification and/or
licensure, such employee shall be recalled
on the basis of seniority if no regular,
full-time professional personnel, or those
returning from leaves of absence with
greater seniority, are qualified, apply for
and accept such position.
In August, 1992, the Mercer County Board of Education notified Mr. Colobro, who was a professional teacher with specializations in health and physical education for grades seven through twelve, of the posting of two positions for which he was qualified. One was at Princeton Junior High School, and the second was at Bluefield Junior High School. Each of the positions was for a girls' physical education teacher, and the postings indicated that the jobs included ". . . responsibility for supervision of girls' locker, dressing and shower rooms."
Mr. Colobro applied for each of these positions. It
appears that a male teacher, James Constantino, was the most
senior person on the recall list who applied for the position
at Princeton Junior High School. Mr. Colobro was the most
senior person on the recall list who applied for the position
at Bluefield Junior High. School. The Board of Education did
not hire Mr. Constantino or the appellant, Mr. Colobro, for
either of the two physical education openings. Instead, the
Board hired a female, Evelyn Gross, for the Princeton Junior
High School position, effective November 2, 1992, and another
female, Karen Barber, for the Bluefield Junior High School job,
effective September 14, 1992.
At the time of the hirings, appellant was prosecuting
a grievance arising from his reduction in force termination,
a proceeding which was not completed until May, 1993, when the
grievance was denied at Level IV, with a finding that reduction
in force termination was proper.
On September 7, 1994, approximately two years after
the two physical education openings became available, Mr.
Colobro filed a petition for a writ of mandamus with the
Circuit Court of Mercer County. In that petition, he prayed
that he, in effect, be placed in one of the two physical
education positions filled by the Board of Education in 1992.
He also prayed for back pay and applicable benefits retroactive
to the date he was denied the position, court costs and
attorney fees.
The Board of Education filed a reply to the petition
for mandamus in which it, among other things, denied that Mr.
Colobro was qualified for the positions and also denied that
he was the most senior applicant for the Princeton Junior High
position. It also prayed that, in the event the court granted
Mr. Colobro relief, back wages ordered paid to Mr. Colobro be
offset by any sums that he had earned during the relevant
period.
Following the filing of the pleadings, the parties submitted memoranda to the court in support of their respective positions. In its reply to the petition of mandamus, the Board did not affirmatively plead that Mr. Colobro's petition was untimely filed or that it was barred by laches or any other legal or equitable doctrine.
However, in its brief filed after the pleadings were closed, the County Board alleged that Mr. Colobro's claim was barred by laches. The County Board said:
Mr. Colobro filed his petition on
September 15, 1994, approximately two years
after the BOE [Board of Education] acted to
fill the physical education positions at
issue. Mr. Colobro knew these positions
were vacant and had been posted and admits
that he learned of the vacancies in August
1992 when he received from the BOE the
notices of the vacancies . . . And yet he
took no action to challenge the award of
these positions to others until he filed
this petition. No doubt, due to his
interest in both positions, Mr. Colobro
would have known of the BOE's action to
fill each position soon after such public
notice was taken. He certainly knew he had
certain rights under the recall provision
of the statute since it was that provision
which required the BOE to mail notices of
vacancies to him which he has acknowledged
receiving. Mr. Colobro has delayed too
long the filing of any petition in mandamus
to challenge the BOE's action; by reason of
that delay, the rights of both the BOE and
the teachers selected for these positions
will be prejudiced if a writ were to issue.
The County Board also asserted in its brief that Mr.
Colobro was not entitled to either of the two physical
education positions. It pointed out that a Mr. Constantino was
more senior on the recall list than Mr. Colobro in regard to
the Princeton Junior High position and that Mr. Colobro did not
thus have special recall rights with regard to that position.
It further argued that the Bluefield Junior High position
entailed supervision of girls' locker, dressing, and shower
rooms and that being a female was therefore a bona fide
occupational requirement for the position, a necessary
requirement that Mr. Colobro clearly did not meet.
Consequently, the Board argued, Mr. Colobro was not entitled
to the position.
On March 6, 1995, after the parties submitted additional documents, the circuit court rendered its decision. The court said:
The Court, having reviewed all
pleadings and briefs filed in this matter
and having heard the argument of counsel,
does hereby find that the relator, Jackson
Colobro, has unreasonably delayed his
application for a writ and the Court
further finds that there is no reasonable
justification for the delay.
Accordingly, the Court ORDERS that the
application for a writ be denied and that
this matter be discussed from the docket of
this Court.
On appeal, Mr. Colobro claims that the circuit court
erred in dismissing his petition for a writ of mandamus on the
basis of laches because the County Board failed to plead laches
as an affirmative defense and because his delay in filing for
the writ of mandamus was justified and did not cause
unreasonable harm to the County Board.
In support of his argument that the County Board was
precluded from asserting laches and the Circuit Court was
therefore precluded from considering the defense, Mr. Colobro
points out that Rule 8 of the West Virginia Rules of Civil
Procedure require that the defense of laches be pled
affirmatively.(2) As noted, the County Board did not
affirmatively plead laches in its response to Mr. Colobro's
petition.
This Court believes that Mr. Colobro's argument on
this point is without merit, since Rule 8 of the West Virginia
Rules of Civil Procedure does not apply to mandamus
proceedings. Specifically, under the provisions of Rule
81(a)(5) of the West Virginia Rules of Civil Procedure, Rule
8 does not apply to mandamus proceedings.(3)
Further, in Staton v. Hrko, 180 W.Va. 654, 379 S.E.2d 159 (1989), we stated that the procedures in effect before adoption of the Rules of Civil Procedure in 1960 were generally applicable to extraordinary proceedings such as mandamus proceedings. We note that W.Va. Code 53-1-6, which involves a procedure in mandamus in West Virginia, provides some flexibility by which a respondent in mandamus may reply to a petition. That statute states:
If the defendant appear and make
defense, such defense may be by demurrer,
or answer on oath, to the petition, or
both, such answer to be subject to demurrer
by the petitioner or relator. Reply may be
made when proper. The court or judge may
permit amendments as in other cases.
The Court is unaware of any rule of law which requires that
laches be affirmatively pled in a mandamus proceeding in West
Virginia, and counsel for Mr. Colobro has pointed to no
authority other than the inapplicable Rule 8 of the West
Virginia Rules of Civil Procedure. Given these circumstances,
this Court cannot conclude that Mr. Colobro has shown that the
circuit court committed reversible error in its consideration
of laches or the delay question.
In State ex rel. Waller Chemicals, Inc. v. McNutt, 152 W.Va. 186, 160 S.E.2d 170 (1968), this Court did recognize that unreasonable delay in filing a petition for a writ of mandamus could serve as a basis for the denial of the writ. Specifically, the Court stated, in syllabus point 3 of that case:
The writ of mandamus will be refused
when the petitioner has unreasonably
delayed his application for such writ and
by reason of the delay the rights of the
defendant or innocent third parties will be
prejudiced by the issuance of the writ.
See also White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470
(1984); State ex rel. Musick v. Londeree, 145 W.Va. 630, 115 S.E.2d 96 (1960); State ex rel. Kay v. Steinmetz, 144 W.Va.
802, 111 S.E.2d 27 (1959).
In the case before us, the record reflects that the
actions of the Mercer County Board of Education giving rise to
the case occurred in the fall of 1992, specifically, the award
of the Bluefield Junior High School position to Karen Barber
rather than Mr. Colobro, effective September 14, 1992, and the
award of the Princeton Junior High School position to Evelyn
Gross rather than Mr. Colobro, effective November 2, 1992. Mr.
Colobro did not file his petition for a writ of mandamus until
almost two years later, on September 7, 1994.
With respect to the effect of this delay in initiating the mandamus action on the rights of the Mercer County Board of Education and the rights of innocent parties, the County Board of Education said in this action below:
Given that no timely objection was made by
Mr. Colobro, the BOE [Board of Education]
certainly had no reason to think, much less
believe, that it had committed an error in
awarding these positions to others; the
fact that it has not budgeted amounts for
back pay and benefits will come as no
surprise. Furthermore, the reinstatement
of Mr. Colobro to a position would
necessarily mean the removal of the teacher
currently holding that position. Both
teachers hired for these positions were on
the recall list when they were hired, so
the "removed" teacher may very well have
passed up other opportunities for recall to
other vacancies because she believed, in
good faith, that she had been awarded a
position and that award was not challenged.
And, if Mr. Colobro were to be reinstated
and the "removed" teacher were to remain on
the payroll for this school year, the BOE
would exceed the number of positions
allowed by the funding formula, thus
causing a further drain on local monies
since no state funding would be received
for the extra employee.
From the record presented to this Court, it clearly
appears that the appellant knew in 1992 that the positions
which he sought had been filled by persons other than himself.
He was aware then that he had the recall rights under the
provisions of W.Va. Code 18A-4-7a which he seeks to enforce
in this action. Nonetheless, he waited almost two years before
taking legal action to assert those rights. As suggested by
the County Board it appears that innocent individuals, Ms.
Gross and Ms. Barber, were hired for the positions in question.
Having occupied those positions for almost two years, they
doubtless developed expectations of continued employment in the
positions. Further, not having been informed that legal action
would be taken regarding its filling of the positions, the
County Board reasonably did not budget for an additional
position for Mr. Colobro. If the circuit court had granted the
mandamus relief which Mr. Colobro sought it would have been
necessary for the County Board of Education to displace either
Ms. Gross or Ms. Barber or to place Mr. Colobro in a new
position and provide monies for his back pay. It likely had
made no provision in its budget for such eventualities.
In sum, the record suggests that the delay of Mr.
Colobro in filing his petition potentially prejudiced the
rights of the Board of Education as well as those of one of the
individuals who were placed in the positions which Mr. Colobro
sought. In State ex rel. Kingsbury v. Caperton, 190 W.Va. 699,
441 S.E.2d 662 (1994), we held that a delay by State employees
of more than one year in bringing a mandamus action to
challenge a classification plan involving certain employment
positions was unreasonable where other innocent parties had
been affected by the classification plan and where they would
be affected by the granting of mandamus.
Under the circumstances of this case, this Court
believes that the circuit court reasonably could have
concluded, and apparently did conclude, that Mr. Colobro had
unreasonably delayed in applying for the writ of mandamus and
that his delay potentially affected the rights of the Board of
Education and innocent third parties. In effect, the court
below found circumstances equivalent to those set forth in
syllabus point 3 of State ex rel. Waller Chemicals, Inc. v.
McNutt, supra, which this Court has found justify the refusal
of the issuance of a writ of mandamus.
Lastly, Mr. Colobro argues that there was reasonable justification for his delay in filing his petition for mandamus. In developing this point, Mr. Colobro has been rather inconsistent. First, it does not appear from the record below that Mr. Colobro adduced evidence to support his claim of justification. Secondly, in his brief before this Court, Mr. Colobro argues, in essence, that he was ignorant of the law and that he did not know that he had rights by way of mandamus. He argues that when the Board of Education refused to place him in the Princeton Junior High and Bluefield Junior High positions in 1992, he was prosecuting a grievance over his initial termination from employment and that "[o]n September 24, 1992, at a hearing on the grievance Mr. Colobro filed on the Reduction in Force (RIF) decision of June, 1992, he was told by the Respondent's attorney, Kathryn Bayless, that he had no further rights since he was no longer an employee." In support of his argument in his brief here, Mr. Colobro has submitted an affidavit to this Court from which he argues that he did not appreciate his right to petition for a writ of mandamus. In the affidavit, Mr. Colobro indicates that the remark of Ms. Bayless was not made directly to him, and that he simply overheard it in the course of a conversation between Ms. Bayless and his own attorney. The affidavit states:
3. On September 24, 1992, at my level
4 grievance hearing, during a break in the
proceedings, at about 10:30 a.m. in
Administrative Law Judge Wright's office, I
heard Ms. Kay Bayless, attorney for the
Board of Education, and Mr. Don Pitts, my
attorney, talking.
4. Mr. Pitts said to Ms. Bayless, "If
we don't win this one, Mr. Colobro has 2 or
3 more grievances to file."
5. Ms. Bayless responded to Mr. Pitts,
"No, Mr. Colobro is no longer in the
system, he can not do anything else."
It appears to this Court that the remarks of Ms.
Bayless were made in the context of the grievance procedure,
and it appears from the context of the remarks that their
meaning was that Mr. Colobro had no further rights under the
grievance procedure since the procedure was for employees and
he was no longer an employee. There is nothing to suggest that
the remarks were made to mislead Mr. Colobro or to dissuade him
from pursuing any other legal remedy that he might have. In
fact, the remarks were not made directly to Mr. Colobro.
Additionally, it appears that Ms. Bayless was representing Mr.
Colobro's opponent in the grievance procedure, and it may be
inferred from the fact that he continued to prosecute the
grievance that he did not wholly rely on her opinion as to the
nature of his legal rights. This conclusion is buttressed by
the fact that at the time Mr. Colobro apparently had
representation in the grievance process and was relying upon
that representation in dealing with his employment problems.
The record does show that Mr. Colobro knew that he
had, or reasonably should have known that he had, recall rights
under W.Va. Code 18A-4-7a in August or September, 1992, at
the time the notices of the Princeton Junior High and Bluefield
Junior High openings were sent to him. We are not persuaded
that Mr. Colobro had reasonable justification to delay nearly
two years in filing his petition for a writ of mandamus. He
failed to seek out competent advice on the nature of proper
legal procedures for enforcing those recall rights.
The Court also believes that Mr. Colobro had an obligation to assert his position on the reasons for the delay when that became an issue before the circuit court. It is axiomatic in this State that:
A question not fairly presented or
arising upon the record, though made a
point of error in this court, will not be
considered or regarded as ground for
reversal.
Syllabus point 4, Morrison v. Smith-Pocahontas Coal Co., 88
W.Va. 158, 106 S.E. 448 (1921).
The circuit court properly based its decision on the
facts before it. Those facts showed that the appellant knew
or should have known in 1992 that he had recall rights. He did
not file his mandamus petition until almost two years later.
Mr. Colobro has not adduced facts which justify his delay in
filing a petition for a writ of mandamus. Further, it appears
that certain rights of the County Board of Education and
innocent parties would be prejudiced if the court granted the
mandamus relief that Mr. Colobro sought.
For the reasons stated, this Court cannot conclude
that the circuit court erred in refusing to issue the writ of
mandamus which Mr. Colobro sought. The judgment of the Circuit
Court of Mercer County is, therefore, affirmed.
Affirmed.
1. 1The proper name of the defendant is "The Board of Education of the County of Mercer". W.Va. Code 18-5-5 (1933).
2. 2Rule 8(c) of the West Virginia Rules of Civil Procedure provides:
Affirmative defenses. -- In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
3. 3Rule 81(a)(5) provides:
Extraordinary Remedies. -- Rules 5(b), 5(e) and 80 apply, but the other rules do not apply, to proceedings under the writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and upon an information in the nature of a quo warranto.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.