Papachristou v. University of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FILED

MARK ANDREW PAPACHRISTOU, ) February 29, 2000

) Cecil Crowson, Jr.

Petitioner/Appellee, ) Appellate Court Clerk

) Appeal No.

) M1999-00960-COA-R3-CV

VS. )

) Davidson Chancery

) No. 98-3187-I

THE UNIVERSITY OF TENNESSEE, )

)

Respondent/Appellant. )

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

JOHN E. ELDRIDGE

606 W. Main Street, Suite 350

P. O. Box 84

Knoxville, Tennessee 37901-0084

Attorney for Petitioner/Appellee

BEAUCHAMP E. BROGAN

General Counsel

The University of Tennessee

RONALD C. LEADBETTER

Associate General Counsel

719 Andy Holt Tower

Knoxville, Tennessee 37996-0170

Attorney for Respondent/Appellant

REVERSED AND REMANDED

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

KOCH, J.

COTTRELL, J.

OPINION

The Chancellor of the University of Tennessee suspended the appellee

indefinitely for violating the College of Law honor code. The Chancery Court

of Davidson County reversed the suspension because of insufficient material

evidence. For the reasons stated below, we reverse the trial court’s ruling.

I.

In the fall of 1997, the appellee was a first year law student at the

University of Tennessee College of Law. In December of 1997, the appellee

attended his first law school exam. A cover sheet included the instructions for

the exam and a brief statement referencing the University’s honor code. While

Professor Kennedy was going over the instructions for the exam, but before the

professor gave the class permission to begin, the appellee opened his booklet and

began reading the exam. According to the appellee, after realizing that other

classmates still had their exams closed, he closed his booklet also. While going

over the instructions, the professor stated that the exam was three hours long and

wrote “END 4:30" on the board at the front of the classroom. The classroom was

equipped with a clock on the back wall. At approximately 1:20 p.m. the students

were given permission to begin. Although the professor did not stay in the room

during the exam, she wrote her office phone number on the board in the event a

student needed to reach her.

During the exam, another student, Robin Flores, had a problem with his

glasses. Mr. Flores called the professor to discuss the problem and she obtained

a glasses repair kit from another professor. After an employee of the Student

Records Office helped Mr. Flores repair his glasses, the professor allowed Mr.

Flores an extra fifteen minutes to finish his exam. Although the proctor was

made aware of the extra time allotted to Mr. Flores, there was no general

announcement made to the rest of the class.

At 4:30 p.m. the proctor called time. Although witnesses differed in their

accounts of the proctor’s exact words, the proctor testified that she said

something to the effect of “it’s time to quit.” In any event, after the proctor’s

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statement, the majority of the students remaining in the classroom began to form

a line to turn in their exams or sat in their seats waiting for the line to shorten.

However, several students, including the appellee, continued to work on their

exams. A group formed outside the classroom, and several students in the group

noticed that there were students continuing to write. Approximately ten to

fifteen minutes after the proctor called “time,” one of the students standing in the

hallway, Molly Hudgens, went back in the classroom and asked the proctor if

this was not a timed exam. Although directed at the proctor, Ms. Hudgens’

statement was loud enough for everyone in the room to hear. The proctor

responded that she had called time but some students still did not turn in their

papers. Ms. Hudgens stated that this was not fair and left the room.

At this point, several of the students who had continued to work after the

proctor called time, gathered their belongings, turned in their exams, and left the

room. All of the evidence, other than the appellee’s own testimony, indicates

that the appellee continued to work after Ms. Hudgens’ and the proctor’s

comments. In addition, when Ms. Hudgens made her comments, the appellee

simply shrugged his shoulders and resumed work on his exam.

After Ms. Hudgens left the room, Mr. Flores asked the proctor how much

time he had left. The proctor responded that he had five minutes. According to

Mr. Flores, at this point the appellee stated that if Mr. Flores had time remaining,

then the appellee also had time remaining. The proctor and Mr. Flores explained

to the appellee that Mr. Flores was given extra time within which to complete his

exam. According to the appellee, he then immediately turned in his exam and

returned to his seat to wait for another student, Katrina Shepherd, who was still

working. However, Ms. Shepherd testified that she did not remember seeing the

appellee after the exam and that the appellee did not wait for her while she

finished. In addition, according to the testimony of other witnesses, the appellee

was the last student, other than Mr. Flores, to continue working. It is undisputed

that Mr. Flores was the last student to finish his work. However, Mr. Flores

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testified that the appellee turned in his exam only moments before Mr. Flores

turned in his exam at 4:45 p.m. According to the proctor, Justin Martin, not the

appellee, was the next to last student to turn in his exam. However, Mr. Martin

and Christie Kiser, a student standing outside the classroom, both testified that

when Mr. Martin left the room, the appellee was still there.

After several student complaints, the law school investigated the

allegations of student misconduct and the appellee was charged with violating

the honor code. Such charges stated:

Violation of Rule 1720-4-9-.04 (College of Law Honor

Code - with respect to an examination, intentionally

engages or attempts to engage in any other form of

cheating, i.e., conduct specifically intended to secure an

unfair advantage or to subject another to an unfair

disadvantage.)

Specifically, it is alleged that:

During the Fall Semester of 1997, in taking the final

examination in Civil Procedure I, Mr. Papachristou

commenced work on the examination before the

examination commenced and continued work on the

examination after time had expired, with the intent to

disregard the time constraints of the examination and

thereby secure an unfair advantage over students who had

not violated the examination’s time constraints.

After a hearing, the hearing officer entered an initial order dismissing the

charges against the appellee. The Chancellor of the University, however,

reversed the hearing officer and found the appellee guilty of the charges. The

Chancellor made the following findings of fact:

1. Mr. Papachristou was familiar with the College

of Law Honor Code and understood that any

act(s) resulting in an unfair advantage to him in

taking an examination would be an act of

cheating under the College of Law Honor Code.

2. The class was told not to turn over the exam

until instructed to do so by the examination

proctor. Mr. Papachristou knowingly disobeyed

these instructions by the proctor and, prior to

receiving approval to begin the examination,

turned over his test papers and began looking

through the pages.

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3. The class was instructed that the examination

would end at 4:30 p.m., and the ending time of

4:30 p.m. was written on the board in large

numerals. The proctor called time at 4:30 p.m.,

and Mr. Papachristou continued to work an

additional ten minutes or longer after time was

called, knowing that time had been called.

On appeal to the Chancery Court for Davidson County, the trial court

found that the Chancellor’s findings were not supported by substantial and

material evidence. Therefore, the trial court reversed the University Chancellor’s

order. The University now appeals from the trial court’s decision.

II.

Tenn. Code Ann. § 4-5-322(h) states that upon judicial review of an

agency’s findings

(h) The court may affirm the decision of the agency or

remand the case for further proceedings. The court may

reverse or modify the decision if the rights of the

petitioner have been prejudiced because the

administrative findings, inferences, conclusions or

decisions are:

(1) In violation of constitutional or statutory

provisions;

(2) In excess of the statutory authority of the

agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted exercise of

discretion; or

(5) Unsupported by evidence which is both

substantial and material in the light of the entire record.

In determining the substantiality of evidence, the court

shall take into account whatever in the record fairly

detracts from its weight, but the court shall not substitute

its judgment for that of the agency as to the weight of the

evidence on questions of fact.

“Substantial and material evidence” has been defined as “‘such relevant

evidence as a reasonable mind might accept to support a rational conclusion and

such as to furnish a reasonably sound basis for the action under consideration.’”

Clay County Manor, Inc. v. State of Tennessee, 849 S.W.2d 755, 759 (Tenn.

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1993) (quoting Southern Railway Co. v. State Board of Equalization, 682 S.W.2d

196, 199 (Tenn. 1984)).

This Court’s review of the trial court’s decision is essentially a

determination of whether or not the trial court properly applied the foregoing

standard of review. James R. Bryant v. Tennessee State Board of Accountancy,

No. 01A01-9303-CH-00088, Davidson County (Tenn. Ct. App. filed September

1, 1993 at Nashville) (citing Metropolitan Gov’t. of Nashville v. Shacklett, 554

S.W.2d 601, 604 (Tenn. 1977)).

The appellant first contends that the trial court erred in finding that the

University Chancellor’s findings were not supported by substantial and material

evidence. In light of the applicable law and the facts set out in the record, we

agree with the appellant. There was substantial and material evidence from

which the University Chancellor could find that the appellee violated the honor

code.

The testimony in this record is in conflict. Therefore, what really

happened in that classroom and what motivated Mr. Papachristou to do what he

did requires the fact finder to assess the credibility of the many witnesses. Mr.

Papachristou’s credibility may have been seriously affected by his denial of ever

hearing anyone say that time had been called. It is clear, however, that he knew

time was a problem, because he said to Mr. Flores, in effect, “If you have more

time, then so do I.”

When reviewing administrative decisions, the courts do not make de novo

decisions about the credibility of witnesses. Crass v. Tennessee Valley

Authority, 460 F. Supp. 941 (D.C. Tenn. 1978), aff’d 627 F.2d 1089 (6th Cir.

1978). Neither the trial court nor this court may review issues of fact de novo or

substitute the court’s judgment for that of the agency as to the weight of the

evidence. Reece v. Tennessee Civil Service Commission, 699 S.W.2 808 (Tenn.

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Ct. App. 1985). With substantial and material proof in the record on which the

University Chancellor’s findings could be based, the action taken must be

affirmed.

The appellee argues that the University’s decision to prosecute the

appellee but not to prosecute the other students who exceeded the time limit of

the exam was arbitrary and capricious and represented an unwarranted exercise

of discretion in light of the evidence. However, for the same reasons concerning

the credibility of the witnesses and the conflicts in the testimony, we are unable

to conclude that the University’s actions were arbitrary or capricious or that they

constituted an unwarranted exercise of discretion.

We reverse the decision of the trial court and the cause is remanded to the

Chancery Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellee, Mark Andrew Papachristou.

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

WILLIAM C. KOCH, JR., JUDGE

PATRICIA J. COTTRELL, JUDGE

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