                      IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT JACKSON




JOHN TIMOTHY ENOCHS,                 )
                                     )
       Plaintiff/Appellant,          )     Dyer Equity No. 9179
                                     )
vs.                                  )
                                     )
DR. GEORGE N. NERREN,                )     Appeal No. O2A01-9505-CH-00113
Superintendent of Dyersburg          )
City Schools, and THE DYERSBURG      )
BOARD OF EDUCATION                   )
                                     )
                                                         FILED
       Defendants/Appellees.         )                       Dec. 17, 1996

                                                        Cecil Crowson, Jr.
                                                             Appellate Court Clerk




               APPEAL FROM THE CHANCERY COURT OF DYER COUNTY
                          AT DYERSBURG, TENNESSEE



                THE HONORABLE J. STEVEN STAFFORD, CHANCELLOR



For the Plaintiff/Appellant:         For The Defendants/Appellees:

Charles Hampton White                Nicholas E. Bragorgos
Richard L. Colbert                   James F. Horner
Nashville, Tennessee                 Memphis, Tennessee




                                    AFFIRMED



                                     HOLLY KIRBY LILLARD, JUDGE



CONCUR:


W. FRANK CRAWFORD, P.J., W.S.


ALAN E. HIGHERS, J.
                                             OPINION

       This case involves the dismissal of a tenured teacher. Appellant John Timothy Enochs

(“Enochs”) challenges his discharge by Appellee Dyersburg Board of Education (“Board”) from his

position as a tenured teacher in the Dyersburg City School System. After a hearing, Enochs’

dismissal was affirmed by the trial court.     In this appeal, Enochs claims that the trial court’s

hearing and review of the Board’s dismissal violated the Teacher Tenure Act and his right to due

process. We affirm the decision of the trial court.

       In 1987, Dr. Wade Roby (“Roby”), Superintendent of the Dyersburg City School System,

notified Enochs, a tenured teacher assigned to Dyersburg Middle School, that he was suspended with

pay as a result of charges against him. Three weeks later, Roby sent Enochs a letter informing him

of the charges against him and giving him notice that he had been recommended for dismissal.

Under Tenn. Code Ann. § 49-5-501, Enochs was generally charged with conduct unbecoming a

teacher, and the five specific charges brought against him involved the improper touching of several

female students.1 Roby’s letter informed Enochs of his right to a hearing under Tenn. Code Ann.

§ 49-5-512.

       In 1988, Enochs was convicted of violating Tenn. Code Ann. §§ 39-2-606 (aggravated sexual

battery) and 39-2-607 (sexual battery).2 Subsequently, Appellee Dr. George Nerren (“Nerren”), the



       1
           The Board charged Enochs with the following five specific offenses:

              1. On Friday, September 4, 1987 and again on Tuesday, September 8,
       1987, Mr. Enochs deliberately rubbed his arm against the breast of [Student 1], a
       14-year old student at Dyersburg Middle School;

             2. During the Fall of 1986, on at least one occasion and perhaps more, Mr.
       Enochs touched, caressed, or rubbed [Student 2], then a sixth grade student at
       Dyersburg Middle School on the breast;

              3. During the 1985-86 school year, Mr. Enochs repeatedly embarrassed
       [Student 3], then a sixth grade student at Dyersburg Middle School, by touching
       her back with his body, bumping his body into her and brushing across her breast
       with his elbow and forearm;

             4. During September of 1987, on more than one occasion, Mr. Enochs
       improperly patted, touched, and rubbed [Student 4], a sixth grade Dyersburg
       Middle School student, on the buttocks and the chest;

               5. During September of 1987, on several occasions, Mr. Enochs
       embarrassed [Student 5], and [Student 6], both students at Dyersburg Middle
       School, by improperly touching them or standing unnecessarily and suggestively
       close to them.
       2
           Both statutes have since been repealed.
new superintendent succeeding Roby, informed Enochs that the charges against him had been

amended to include an additional charge: “conduct unbecoming to a member of the teaching

profession because of his conviction of a felony involving moral turpitude on or about May 17, 1988

in the Dyer County Circuit Court.” Enochs requested a pre-termination hearing. Nerren was the

only witness to testify at the hearing. Nerren read into evidence Enochs’ convictions by the Dyer

County Circuit Court. Enochs apparently neither testified on his behalf nor offered any evidence at

the hearing. At the conclusion of the hearing, the Board voted unanimously to dismiss Enochs,

adopting the following resolution:

               BE IT RESOLVED, that after a hearing conducted before the Board of
       Education sitting in special session on August 29, 1988, Timothy Enochs was shown
       to be guilty of conduct unbecoming to a member of the teaching profession because
       of his conviction of a felony involving moral turpitude, to wit sexual battery against
       female students in his charge, it is the determination of this Board that Mr. Enochs
       should be and is hereby dismissed as a teacher in the Dyersburg City School System.

Enochs then filed a complaint in chancery court seeking review of his dismissal as set forth in Tenn.

Code Ann. § 49-5-513.

       Enochs also appealed his criminal conviction, which was affirmed by the Court of Criminal

Appeals. The Tennessee Supreme Court granted permission to appeal and, in 1991, reversed and

remanded for a new trial. See State v. Enochs, 823 S.W.2d 539 (Tenn. 1991). Enochs has never

been retried on any of the charges for which he was convicted.

       In 1994, after resolution of the appeal of his criminal conviction, Enochs’ lawsuit for review

of his dismissal was tried in chancery court. During the trial, the chancery court allowed the Board

to present evidence not presented at the pre-termination hearing. The new evidence supported the

five charges originally brought against Enochs. The chancery court issued a memorandum opinion

in which it reviewed the testimony and assessed the credibility of the witnesses. The court noted that

several former students testified regarding incidents of improper touching. It observed that Enochs

testified but presented “no evidence . . . regarding the allegations made by his former students.” The

chancery court found that “ample evidence existed for the Board to terminate Enochs’ employment”

and dismissed Enochs’ complaint. From this dismissal Enochs now appeals.

       On appeal, Enochs contends that the trial court violated the Teacher Tenure Act, Tenn. Code

Ann. §§ 49-5-501 et seq., by considering evidence against him on charges not heard by the Board

at his pre-termination hearing. Because this issue is a question of law, our review is de novo upon


                                                  2
the record with no presumption of correctness. Tenn. R. App. P. 13(d); Marriott Employees’ Fed.

Credit Union v. Harris, 897 S.W.2d 723, 727 (Tenn. App. 1994).

       The applicable standard for the chancery court in a hearing to review a school board’s

dismissal of a teacher is set forth in Tenn. Code Ann. § 49-5-513(g). In 1988, when Enochs filed

his complaint, the statute provided: “The hearing shall be de novo and may be on deposition and

interrogatories, or on oral testimony.” Tenn. Code Ann. § 49-5-513(g) (1990). The parties do not

dispute that the standard for the hearing is the statute in effect in 1988.3 Therefore, the hearing in

the chancery court in this case was to be de novo.4

       Both parties agree that under the de novo standard the trial court was allowed to hear

evidence not presented at the pre-termination hearing. However, Enochs maintains that the only

charge considered by the Board at the hearing was the charge that he was convicted of crimes

involving moral turpitude. He notes that the resolution dismissing him refers only to that charge.

Enochs contends that the trial court’s de novo review should have been limited to the single charge

actually considered by the Board at the hearing, the charge of a criminal conviction. He argues that

it was error for the court to consider evidence regarding the five charges of improper touching of

students.

       The parameters of a de novo hearing in chancery court of a teacher dismissed under the

Teacher Tenure Act are thoroughly discussed in Cooper v. Williamson County Board of Education,

746 S.W.2d 176 (Tenn. 1987). In Cooper, the Court examined the difference between the common



       3
            Currently, the statute provides:

       The review of the court shall be limited to the written record of the hearing before
       the board and any evidence or exhibits submitted at such hearing. Additional
       evidence or testimony shall not be admitted except as to establish arbitrary or
       capricious action or violation of statutory or constitutional rights by the board.

Tenn. Code Ann. § 49-5-513(g) (1996).
       4
        De novo review in the chancery court under Tenn. Code Ann. § 49-5-513(g) differs from
the de novo review this Court applies under Tenn. R. App. P. 13(d). Cooper v. Williamson
County Bd. of Educ., 746 SW.2d 176, 179 n.3 (Tenn. 1987). The chancery court does not attach
any presumption of correctness to a school board’s findings of fact, nor is it confined to deciding
whether the evidence preponderates in favor of the school board’s determination. Cooper, 746
S.W.2d at 181-82. In appellate review, the trial court’s findings of fact are accompanied by a
presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Williams v. Pittard, 604 S.W.2d 845, 846 (Tenn. 1980); see Cooper, 746 SW.2d at 182 n.6. In
addition, appellate review is limited to the facts established in the trial court and included in the
record. Tenn. R. App. P. 13(c).

                                                  3
law writ of certiorari and the statutory writ of certiorari. The Court noted that review under the

common law writ of certiorari is generally limited to determining “whether the administrative body

acted within its jurisdiction, or acted arbitrarily, capriciously, or illegally.” Id. at 179. The common

law writ does not involve redetermining the facts found by the administrative body. Id. The

statutory writ of certiorari, on the other hand, involves some type of trial de novo. The extent of the

review depends on the language and context of the statute, the type of administrative body, the

decision, and the procedure involved. Id. The Court concluded that Tenn. Code Ann. § 49-5-513(g)

is a form of the statutory writ of certiorari, with a de novo review. Id.

          The Court noted that Tenn. Code Ann. § 49-5-513(g) does not limit the trial court to a review

of the record of the school board’s hearing but instead provides for a de novo hearing which can be

based on depositions, interrogatories, or oral testimony. Cooper, 746 S.W.2d at 181. The Court then

stated:

          We think that a hearing de novo requires the Chancellor to redetermine both the facts
          and the law from all the evidence before the court. While not fully analogous, this
          type of review is more akin to an appeal from General Sessions Court . . . than to the
          review of the findings of a trial court in a nonjury case by an appellate court under
          Rule 13, T.R.A.P. Under Rule 13, T.R.A.P., an appellate court does

                  “not try a case de novo as does a Circuit Judge on an appeal from the
                 General Sessions Court. In a de novo trial the Circuit Judge does not
                 review the action of the General Sessions Judge and is not concerned
                 with what took place in the General Sessions Court nor the propriety
                 of the lower Court’s action; and no presumption of correctness
                 attaches to the General Sessions judgment. The matter is tried as if
                 no other trial had occurred.”

Id. (quoting Hohenberg Bros. v. Missouri Pac. R.R. Co., 586 S.W.2d 117, 119 (Tenn. App. 1979).

The Court noted that, under the Teacher Tenure Act, the trial court may, but is not required to,

consider a record of the proceedings in the school board hearing as part of the evidence on appeal.

Id. The Court stated that “review under T.C.A. [§] 49-5-513 manifestly requires the Chancellor to

reconsider and redetermine all issues of fact as well as law as if no such determination had been

previously made.” Id. The Court concluded that, “[u]nder this statute, the Chancellor completely

substitutes his judgment for that of the school board.” Id. at 182. Therefore, under Cooper, it was

not error for the court to hear evidence at trial that was not heard at Enochs’ hearing before the

Board.

          Enochs, however, argues that in reality there was only one charge before the Board --the

charge that he had been convicted of a crime involving moral turpitude, a conviction that was later

                                                    4
reversed. He maintains that this was the only charge on which evidence was heard, and the only

charge upon which his dismissal was based. Enochs contends it was error to hear evidence on

charges on which he, in effect, never had a pre-termination hearing.

        However, the record is clear that all six of the charges were before the Board at the pre-

termination hearing. While evidence was only heard on the sixth charge, there was no indication that

the other charges had been dismissed. Indeed, the Amended Charges and Notice of Dismissal

explicitly states:

        I, Dr. George N. Nerren, . . . hereby amend the charges previously preferred by my
        predecessor . . . against Timothy Enochs . . . to include the following additional
        charge and recommend that a hearing be held on said charge at the same time the
        hearing is held on the previous charges, and, if any of the charges, as amended,
        proved to be true, that Timothy Enochs be dismissed from his position as a tenured
        teacher in the Dyersburg City School System. (Emphasis added.)

Both the criminal conviction and the other five charges were based on improper sexual contact with

several female students in his charge. The trial court refused to allow testimony regarding Enochs’

alleged improper touching of other students not mentioned in the original five charges. Enochs had

notice of all six charges and had the opportunity to present evidence regarding them. In the hearing

before the Board as well as the hearing in chancery court, Enochs failed to present any exculpatory

evidence regarding any of the charges. The trial court acted properly in allowing evidence about

all six charges in the de novo hearing.

        Enochs argues that allowing evidence relevant to the original five charges is a violation of

his due process rights. However, he clearly had notice of all of the charges against him and had the

opportunity to present evidence in his favor on any or all of them. See Phillips v. State Bd. of

Regents, 863 S.W.2d 45 (Tenn. 1993). Enochs suffered no deprivation of his due process rights.

        Enochs argues further that, under Cleveland Board of Education v. Loudermill, 470 U.S.

532, 546, 105 S. Ct. 1487, 1495, 84 L. Ed. 2d 494 (1985), he was entitled to and did not receive an

explanation of the Board’s evidence against him. However, the record demonstrates that the original

charges against him were specific, naming the students involved and his alleged improper conduct

in relation to each. Loudermill does not require a full evidentiary hearing before an administrative

body takes adverse action against an employee. Id. at 545, 105 S. Ct. at 1495.




                                                 5
       The decision of the trial court is affirmed. Costs are assessed against Appellant, for which

execution may issue if necessary.




                                             HOLLY KIRBY LILLARD, J.


CONCUR:


W. FRANK CRAWFORD, P.J., W.S.



ALAN E. HIGHERS, J.




                                                6
