Turk v. Franklin Special School District Court Opinion

    218 Tenn. 6{0 SOUTH WESTERN REPORTER,2d SERIES

ment. Finding that excuse inadequate the
court said:

"Should we infer good cause for noncom-
pliance mer"ely fiom a mistake in ealen-
daring or fiom inattendance to office
chorcs, we would seriously undermine the
policy of the rules." Id.

Counsel's good faith mistaken belief that
the filing of a petition for rehearing de-
layed the time for filing a cost bill has also
been held not to be sufficient to establish
"good cause" for an untimely filing. Laf-
fey v, Northwest Airlines, Inc,, 5Bl F.Zl
f22l (D.C.Cir.r9?8); Stnrn v. Unitd Srares
Gypsum, Inc., 6ffi F.zd 865 (?th Cir.l9??).
In SCern, supn aL 866, the only excuse
proffered was that "@unsel ,reasonably and
in good faith believe[d] it was timely . . .

when we attcmpted to file it.,', Moreover,
in Laffey, supra at 12\ the D.C. Circuit
stated that "the sincerity of counsel,s belief
as to timeliness . . . does not constitute
'good cause."'

t3] We neither approve or disappmve of
the result in the Federal cases cited, but we
are in accord with the proposition that a
showing of good cause requires more than a
mere good faith belief that a r.outine office
chore has been timely performed. The ser-
vice of a copy of the notice of appeal filed
in the trial court, on counsel of record and
the clerk of the appellate court may be
classified as a routine office chore.

t4] Thus we arc compelled to the conclu-
sion that the mere good faith intention and
belief that notices were sent at the appro-
priate time does not provide good cause
under Rule 2l(b) for permitting an act to be
done after the expiration of the time pre-
scribed in the rules.

The judgment of the Court of Appeals
dismissing the appeal is affirmed for the
reasono ststed hercin. Costs are adjudged
against Barrett Pruperties, Inc

COOPER, BROCK, HABBISON and
DROWOTA, JJ., concur.

Jane TUBIL Plalntiff-Appellec,

v.

FRANKLIN SPECIAL SCHOOL
DISTRICT, et al,

Defendants-Appellante.

Supreme Court of Tennessee.

Oct. 4, 1982.

Rehearing Denied Oct. ?i, L982.

Teacher appealed her dismissal by
school board. The Chancery Court, Wil-
liamson County, Henry Denmark Bell,
Chancellor, rever,sed that action and rein-
stated teacher, and school distilct appealed.
The Supreme Court, Fones, C.J., held that:
(l) it was fundamental eror for school
board to consider previous automobile acci-
dent, teacher's absentee record or superin-
tendent's charge that she had alcohol prob
lem that requir"ed her acknowledgement of
same and treatment therefore, where those
charges were not specified in writing prior
to hearing, and (2) tenured teacher,s arrest
and conviction for driving under the influ-
ence, accepting uncontradicted background
explanation by teacher, was insufficient to
support dismissal.

Affirmed and remanded.

1. Schools ef4l(5)
In hearing charge of conduct unbesom-

ing member of teaching profession, namely,
driving while intoxicated, it was fundamen-
tal enpr for school board to consider prcvi-
ous automobile accident, teacher's ab,sentee
record or superintendent's charge that she
had alcohol problem that required her ac-
knowledgement of same and treatment
therefor, where those charges were not
specified in writing prior to hearing.
T.C.A. S 49-1414.

2. Schoole €f4f(4)
Tenur.ed teacher's arest and conviction

for driving under the influence, accepting

TUR

uncontradicted backgror
teacher, was insufficient
al of t€acher of plaintifl

W. Henry Haile, Hai
Nashville, for defendant

James D. Petenen, P
Yost, Franklin, for plair

OPINI(

FONES, Chief Justict

This case involves th
the charge brought ag
tenured teacher, pt
grounds to support her
school system.

The school board dism
on her appeal to the
Williamson County, th
versed and she was nein

teacher.

On January 5, 1981,

School Superintendent, t

a statistical-type report
a DUI charge against
launched his own inve

closed that Mrs. Turk ht
DUI on September 13,

day sentence had beer

tioned upon her attenr
school, and that she ha
car automobile accident
was not charged with a

as a nesult of that incit
Mrs. Turk in for a conf
1981, and gave her a cl
quishing tenure and acc

status and counselling I
concluded was an alcol
signing her position as

She declined to do eithr
1981, Brown filed the fo
the school board:

"I charge Jane Turl
in the Franklin Spa
with conduct unbeco
the teaching prrfessi
while intoxiested on
13, 1980, on a public I



]ERIES

L Pblntiff-Appellee,

v.

'SPECIAL SCHOOL
IBICT, ct el"
ents-Appellants.

)ourt of Tennessee.

et. 4, 1982.

)enied Oct. ?5,198P,.

realed her dismissal by
he Chancery Court, Wil-

Henry Denmark Bell,
rcd that action and rcin-
d school district appealed.
rrt, Fones, C.J., held that:
rmental error for school
prcvious automobile acci-
sentee rccord or superin-
,hat she had alcohol prob
her acknowledgement of

nt therefore, where those
specified in writing prior
) tenured teacher's arest
'driving under the influ-
rcontradicted background
rcher, was insufficient to

remanded.

5)

rge of conduct unbecom-
ching prufession, namely,
:icated, it was fundamen-
bosrd to consider previ-

rident, teacher'e aboentee
:ndent's charge that she
m that rrcquired her ac-
I same and trcatment
hoae charges were not
ing prior to hearing.

l)
r'a anegt and conviction
the influence, accepting

uncontradicted background explanation by

teacher, was insufficient to support dismiss-

al of teacher of plaintiffs caliber.

W. Henry Haile, Haile & Martin, P.A.,

Nashville, for defendants-appellants.

James D. Petersen, Petensen, Buerger &
Yost, Franklin, for plaintiff-appellee.

OPINION

FONES, Chief Justice.

This case involves the issue of whether
the charge brought against Mrs. Turk, a

tenured teacher, provided sufficient
grounds to support her dismissal from the
school system. //

The school board dismissed Mrs. Turk and
on her appeal to the Chancery Court of
Williamson County, that action was re-
versed and she was reinstated as a tenured
teacher.

On January 5, 1981, James D. Brcwn,
School Superintendent, read in a newspaper
a statistical-type report of the disposition of
a DUI charge against Mrs. Turk. Brown
launched his own investigation that dis-
closed that Mrs. Turk had been arrested for
DUI on September 13, 1980, and a thirty
day sentence had been suspended condi-
tioned upon her attendance at a driving
Echool, and that she had had a serious one

car automobile accident on June 6, 1979, but
was not charged with any violation of law
as a rcsult of that incident. Brown ealled
Mrr. Turk in for a conference in February,
1981, and gave her a choiee between relin-
quishing tenure and accepting probationary
status and counselling for what Brown had
concluded was an alcohol problem, or re-
signing her position as s tenured teacher.
She declined to do either. On February 9,

1981, Brown filed the following charge with
the school board:

"I charge Jane Turk, a tenured teacher
in the Franklin Special School District,
with conduct unbecoming a member of
the teaching profession, namely, driving
while intoxicatcd on or about September
18, 1980, on a public highway in William-

son County in violation of the laws of the
State of Tennessee."

Pursuant to Mrs. Turk's demand in ac-

cord with T.C.A. S 49-1416, a hearing on
that charge was held by the school board on
March 23, 1981.

Mrs. Turk had been a tenured teacher for
about ten years and had recently gone

thrrugh a separation and divorce from her
husband, after approximately twenty years

of marriage. She explained the events of
Saturday, September 13, 1980, leading up to
the DUI charge as follows: she had re-
ceived a distress call from an old friend who
also had a domestic problem, packed an
overnight bag, and went to her friend's
home. She had one strong vodka drink
during a period of several hours while she

visited her friend. Contrary to Mrs. Turk's
understanding it developed that her friend's
husband might return home that night, so

Mrs. Turk departed to rcturn to her home
after 9:fi) p.m. She had been on a crash
diet, and on the way home she began to feel
dizzy and pulled off the road. She miscal-
culated and her right wheels ended up in a
ditch. She remained in her vehicle in the
ditch until two officers came by and upon
investigation they charged her with driving
while intoxicated.

At the hearing before the board Mrs.
Turk's attorney stated that Mrs. Turk
would admit that she was driving under the
influence of alcohol on September 13, 1980,

as she had admitted to the Court when she

was given a suspended sentence of thirty
days with no fine. However, she took the
position that that one incident that occurred
on Saturday, not involving any third parties
and having no nexus with her per{ormance
as a third grade teacher, did not constitute
conduct unbecoming a member of the
tcaching profession in the legal sense, so as

to justify dismissal.

The school board attorney took the posi-

tion that since Mrs. Turk had pled guilty to
the factual portion of the charge, it was
then appropriate on the issue of punishment
to go into the details of the automobile
accident that Mrs. Turk had in June, 1979,

her absentee rccond, and whether or not she

TURK v. FRANKLIN SPECLAL SCHOOL DIST. Tenn. 219
Clt. rs, T.nn- Clo S.wzd 2lt



220 Tenn. 640 SOUTH WESTERN REPORTE& 2d SERIES

was an alcoholic or had a sufficient alcohol
problem to reguire trcatment or counsel-
ling. Despite continuous objections by Mrs.
Turk's attorney that those charges wete not
properly before the board, the chairman
ignored his objections and allowed the
board attorney full reign. As a result, the
details of the June, 1979, accident were
fully explored and the board's attorney
thereafter rcferrcd to Mrs. Turk's "two
DUI's." Brown was allowed to testify
about Mn. Turk's absenteeism, which he

described as the worst in the system, with-
out noting that part of her absenteeism was

attributable to the injuries she received in
the 1979 accident and part as a r€sult of her
not knowing her status following Brown's
lodging of the charge on June 7, 1981.

Brown was also allowed to testify as fol-
lows:

"But as I told Mrs. Turk in our second

conference that anytime you have two
charges . . . two accidents that are di-
rectly related to a DUI, particularly with
a penon that is as bright, as intelligent as

Jane Turk, she has got a problem. And
the only way that she can deal with that
problem and the only way I can help her
deal with that problem is that firtt she

has to admit she has a prnoblem. But she

was not willing to do that."
The learned chancellor was of the opinion

that the Board gave substantial considera-
tion to the June, 1979, accident, but he

concluded that even if the written charges
had included that incident, there was no
showing of a substantial adverse affect
upon Mrs. Turk's capacity and fitness as a
tcacher which would have justified her dis-
charge.

tU We are of the opinion that it was
fundamental emor for the board to consider
the June, 1979, accident, or her absentee

rccord, or the superintendent's charge that
she had an alcohol prublem that required
her acknowledgement of same and treat-
ment therefor, because those charges were
not specified in writing prior to the hearing.

T.C.A. S 49-1414 provides that when
cherges arc made to a board of edueation
seeking dismissal of a teacher, "the charges

shall be made in writing specifically stating
the offenses which arc charged." In Potts
v. Gibson, % Tenn. 321, 469 S.W.2d 130
(197f) Special Justice McAmis writing for
the Court interpretcd that statutory re-
quirement as follows:

"[t]he charges must be'specifically statcd
with substantial certainty; yet the tech-
nical nicety required in indictments is not
necessary'.

The procedure prescribed by the stat-
ute is designed to insure the teacher a
full hearing before the Boatd upon every
issue under consideration by that body.
To accomplish this the first essential is a
notice sufficient in substance and form to
fairly apprise the teacher of the charge
against him and enable him to prepare his
defense in advance of the hearing.

'Where the contents of the notice are
ambiguous and obscurc, so that the teach-
er is not clearly informed of the naturc of
the charge, the notice is generally held
insufficient.' City of Knoxville Board of
&lucation v. Markelonis (1970), Tenn.
App., 460 S.W.2d 362.

To comport with notions of fair play
and due process and to constitute notice
in the legal sense the means employed
should equal or exceed that which one

desirous of actually informing the oppo-
site party would employ. Mullane v.

Central Hanover Bank & Trust b.,339
U.S. 306, 70 S.Ct. 6512,94 L.&1. 865, cited
in Burden v/ Burden, 44 Tenn.App. 312,

313 S.W.zd 566." Id. at 3?f,469 S.W.ZI
at 13i|.

IVe find that the board acted in flagrant
disregard of the statutory rcquirement and
fundamental fairness in considering mat-
ters that should have been specifically
charged in writing.

l2l St"ipp"d of those charges, the Sep
tember 13, 1980, incident, accepting as we
must the uncontradicted background expla-
nation of Mrs. Turk, was insufficient to
support the dismissal of a tenurrcd teacher
of Mrs. Turk's ealiber, as found by the
chancellor, in which we @ncur.

In that regard the chancellor found as

follows:

vol

"It is further unool

fore the June, 1fr19, a

after through the SePt

ing event and to the d
petitioner discharged

teacher capablY. Thn
she was considercd to
er by the suPerintend
teacherc. She was v
her students and thei
spirational teacher.

conviction in the news

licity attendant to the
charge her have so

shows, had no adver
capacity to maintain
spect in her classes."

The result in this cas

strued as a ruling tht
while intoxicated convir

cumstances be deemec

matter of law to suPl

tenured teacher under I

The judgment is affir
is remanded to the Cha

liamson County for anY

that may be approPrir
adjudged against tht
School District.

COOPER, BROCK,
DROWOTA, JJ., concur

-/-O\-[o I rntull\r
VOLUNTEEB S

INC" AP

v.

Marthe B. OIllEN,
Revenue for thc Si

et el" A1

Supreme C,ourt

OcL 18,

Taxpayer sought
Commissioner of Reve



ERIES

rriting specifically stating
h arc charged." In Potts
rnn. 821, 469 S.W2d 180
rtice McAmis writing for
rcted that statutory re-
w8:

rust be'apecifically stated
certainty; yet the tech-

rired in indictments is not

: prescribed by the stat-
to insure the teacher a
re the Board upon every
sideration by that body.
ds the first essential is a
in aubetance and form to
Le teacher of the charge
enable him to preparr his
rce of the hearing.
ntents of the notice are
bscure, so that the teach-
nformed of the nature of
notice is generally held
ty of Knoxville Bufi of
larkelonis (1970), Tenn.
862.

ith notions of fair play
and to constitute notice
se the means employed
exceed that which one
rlly informing the oppo-
I employ. Mullane v.
Bank & TYust b.,339
652,94 L.&1. 865, cited

den, 4,[ Tenn.App. 812,
Id. at 329, 469 S.W.zd

board acted in flagrant
rtutory requirement and
ss in considering mat-
have been specifically

thooe charges, the Sep
eident, accepting as we
ictcd background expla-
rk, was insufficient to
rl of a tenured teacher
iber, as found by the
we ooncur.

ire chancellor found as

*"It i. further uncontradicted that be'
fore the June, l9?9, accident and there-
after through the September drunk driv'
ing event and to the day of her discharge
petitioner discharged her duties as a

teacher capably. Thrtughout this period

she was considered to be a capable teach-

er by the superintendent and her fellow
teachers. She was viewed bY manY of
her students and their parents as an in'
spirational teacher. The notice of her
conviction in the newspaper and the pub-

licity attcndant to the proceedings to dis'
charge her have so far as the record

shows, had no adverse effect upon her
capacity to maintain discipline and re-

spect in her classes."

The result in this case is not to be con-

strued as a ruling that a single driving
while intoxicated conviction will in all cir'
cumstances be deemed insufficient as a
matter of law to support dismissal of a

tenured teacher under the statute.

The judgment is affirmed and this cause

is remanded to the Chancery Court of Wil-
liamson County for any further proceedinp
that may be appropriate. The costs are

adjudged against the Franklin Special

School District.

COOPER, BROCK, HARBISON and

DROWOTA, JJ., concur.

VOLUNTEER STRUCTURES,
INC., Alpellant,

Martha B. OISEN, Commiseloner of
Revenue for the State of Tenneesee,

et al, APPelleee.

Supreme C,ourt of Tennegsee.

Oct. 18, 1982.

Taxpayer sought review of denial by
Commissioner of Revenue of claim for re-

VOLUNTEER STRUCTURES, INC. v. OISEN
CltGrr, Tcntl'O{,SWrdzll

Tenn. nl
fund of sales and us€ taxes. The F4uity
Court, Davidson Crcunty, Irvin H. Kilcrease,
Jr., Chancellor, entercd judgment dismiss'
ing taxpayer's petition, and appeal was tak-
en. The Supreme Court held that denial by
the Commissioner of claim for refund of
sales and use taxes paid was not subject to
judicial rcview under Tennessee Uniform
Administrative Prccedures Act.

Affirmed.

Taxation c=l3llS
Denial by Commissioner of Revenue of

claim for refund of sales and use taxes paid

was not subject to juflicial review under
Tennessee Uniform Administrative Proce'
dures Act. T.C.A. SS a-$-f19(c), 67-2301,

67-2303 tn 67 -%112, 67-303i|'

Hugh C. Howser, Sr., Hugh C. Howser,
Jr., Edmund W. TurnleY, III, Howser,

Thomas, Summers, BinkleY & Archer,
Nashville, for appellant.

Kathryn Behm C,elauro, Asst. Atty. Gen.,

William M. Leech, Jr., Atty. Gen., Nashville,
for appellees.

OPINION

PER CURIAM.

This appeal presents the primary ques-

tion: Is the action of the Commissioner of
Revenue denying a claim for rnefund of sales

and use taxes paid subject to judicial re-
view under the Tennessee Uniform Admin'
istrative Procedures Act? The chancellor
held it wa8 not and dismiss€d appellant'a
petition. We affirm the action of the chan'
cellor.

Volunteer Structures, Incorporatcd filed
a claim with the Commissioner of Revenue

for refund of sales and use tax allegedly
paid as "a Itsult of a miscalculation as to
which of Volunteer's products wele subject

to a gales tax." The claim was denied by

the commissioner becauge no refunds had

been made and no credits iseued to return