                    IN THE COURT OF APPEALS
                          AT KNOXVILLE                  FILED
                                                        March 31, 2000

                                                      Cecil Crowson, Jr.
                                                     Appellate Court Clerk

R. E. SHARP, JR.,                )   CAMPBELL COUNTY CHANCERY
                                 )   E1999-00397-COA-R3-CV
     Plaintiff-Appellee          )
                                 )
                                 )
     v.                          )   HON. BILLY JOE WHITE
                                 )   CHANCELLOR
                                 )
CAMPBELL COUNTY BOARD OF         )
EDUCATION and CAMPBELL COUNTY,   )
TENNESSEE,                       )
                                 )
     Defendant-Appellant         )   AFFIRMED AND REMANDED




J. STEPHEN HURST OF LAFOLLETTE FOR APPELLANT

MICHAEL G. HATMAKER OF JACKSBORO FOR APPELLEE



                           O P I N I O N



                                                 Goddard, P.J.

          The Campbell County Board of Education appeals from a

decision of the Chancellor, who found that the plaintiff, R. E.

Sharp, Jr., was tenured in his position of assistant principal
and therefore the Campbell County Board of Education erroneously

reduced his salary when he was placed in a teaching position.


              I. FACTS AND HOLDING OF THE CHANCELLOR


           The facts as found by the Chancellor are the following:


     (1)   That Plaintiff has been hired and placed annually
           by the Campbell County, Tennessee Board of
           Education in a professional capacity, either as a
           classroom teacher or assistant principal, since
           1968.
     (2)   That plaintiff was hired and placed for three
           consecutive hirings in the positions of assistant
           principal, first at Campbell County Comprehensive
           High School and then at Jacksboro Middle School.
     (3)   That therefore Plaintiff is a tenured employee
           within the meaning of the general tenure law, and
           within the meaning of the Private Acts of 1949 and
           1980 applicable to Campbell County, Tennessee.
     (4)   That, as such, while plaintiff could be placed in
           positions other than assistant principal, neither
           the board of education nor the superintendent
           could take any action to change plaintiff from one
           position to another at a reduced salary, absent
           filing a specification of charges against
           plaintiff.
     (5)   That no such charges were filed.
     (6)   That Plaintiff met the eligibility endorsements to
           serve in the position of assistant principal.
     (7)   That any action to reduce Plaintiff’s salary from
           that earned by him as assistant principal was
           improper, and therefore Plaintiff is entitled to
           receive, from and after the school year 1992-1991
           an annual salary commensurate with that he would


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           have earned as assistant principal at Campbell
           County Comprehensive High School.
     (8)   That, although Plaintiff through the Campbell
           County Federation of teachers had heretofore filed
           a grievance with regard to his reduction in
           salary, and although the arbitrator ruled
           adversely to Plaintiff in that grievance, the
           arbitrator’s decision is not binding on this Court
           and is not to be Plaintiff’s exclusive remedy
           since the arbitrator ruled on an incorrect or
           erroneous set of facts.


           The Chancellor then ordered that the Plaintiff should

receive from and after the school year 1992-1993 an annual salary

commensurate with that he would have received as an assistant

principal and awarded Plaintiff past salary benefits in an amount

equal to the difference between the amount he would have earned

as an assistant principal and that paid to him as a classroom

teacher.


           The Campbell County Board of Education appeals the

decision of the Chancellor.


                              II.   ISSUE


           The sole issue for our determination is whether the

trial court erroneously overruled the arbitrator’s decision

denying Mr. Sharp the salary of an assistant principal.


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                       III.   LAW AND DISCUSSION


           This is a non-jury case and, therefore, our scope of

review is de novo upon the record in the trial court.   The

findings of the trial judge are presumed to be correct and must

be affirmed by us, unless we find the preponderance of the

evidence to be otherwise. Rule 13(d), Tennessee Rules of

Appellate Procedure.    Summit Hill Associates v. Knoxville

Utilities Board, 667 S.W.2d 91, 96 (Tenn. Ct. App. 1983).


           The record before us in this matter is sparse.     It

consists of the following: a complaint filed on March 12, 1997; a

notice of appearance by defendant’s attorney; a motion to assign

a trial date filed on November 16, 1998; an answer filed on March

15, 1999, along with two exhibits, filed on the date of trial;

and, the judgment of the trial court filed on May 6, 1999.      There

was no copy of any bargaining agreement entered into between the

teacher’s union and the school board during the relevant periods

of time.   There was no transcript or statement of the evidence

filed by the parties.


           This case triggers a well-settled legal principle.      The

absence of a transcript of the hearing held before the Chancellor


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or a proper statement of the evidence means the facts found by

the trial court are conclusively presumed to be correct. See

generally, J. C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d

586 (Tenn. 1979).    Furthermore, in the absence of a transcript

or statement of the evidence, we must conclusively presume that

every fact admissible under the pleadings was found or should

have been found favorable to the appellee.    Wilson v. Hafley, 189

Tenn. 598, 226 S.W.2d 308 (1949); McDonald v. Onoh, 772 S.W.2d

913 (Tenn. Ct. App.1989); Irvin v. City of Clarksville, 767

S.W.2d 649 (Tenn. Ct. App.1988); Gotten v. Gotten, 748 S.W.2d 430

(Tenn. Ct. App.1987); In re: Rockwell, 673 S.W.2d 512 (Tenn. Ct.

App.1983); Kyritsis v. Vieron, 53 Tenn. App. 336, 382 S.W.2d 553

(1964).   Appellate courts may only review what is in the record

and not what might have been or should have been included.

Dearborne v. State, 575 S.W.2d 259 (Tenn. 1978).


           Campbell County Board of Education argues that the

appellant had submitted to “binding arbitration” the issue of his

salary reduction and the Chancellor should not be allowed to

overturn the decision of the arbitrator.   As we stated earlier,

this argument is without merit because there was no bargaining

agreement included in the record before us.

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          Therefore, we hold that in the absence of a transcript

a determination of the Court depending upon fact will not be

overturned unless the findings of fact are antithetical to the

judgment entered.   Moreover, the absence of the bargaining

agreement being an exhibit in this record before us is fatal to a

determination in favor of the Campbell County School Board’s

binding arbitration argument.


                         IV.    CONCLUSION


          For the foregoing reason the Trial Court is affirmed

and the cause remanded for collection of costs below. Costs of

appeal are adjudged against the appellant, Campbell County Board

of Education.




                                _______________________________
                                Houston M. Goddard, P.J.



CONCUR:


________________________________
Herschel P. Franks, J.




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________________________________
Charles D. Susano, Jr., J.




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