text:
    Deborah Kay INGRAM, Respondent, v. Garry Bland INGRAM, Appellant.
    No. 48115.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.
    Michael W. Brown, Union, for appellant.
    William M. Wunderlich, High Ridge, for respondent.
   CLEMENS, Senior Judge.

Respondent-wife sued appellant-husband for temporary allowances pending the forthcoming submission of her petition for dissolution. The trial court awarded wife $300 a week and husband has appealed.

By his first point husband challenges the $300 weekly support allowance to his wife. He contends this was excessive in view of his $100 to $125 weekly salary.

Husband and wife had jointly owned and operated a grocery store. Accumulated debts soon exceeded both the store’s value and the net value of their mortgaged home. Upon separation the husband’s brother came to the rescue. He assumed their debts upon the husband selling him his interest in the store and taking a $20,000 second mortgage on the parties’ home. The brother kept husband on as a partner in the store. Husband drew $100 to $125 weekly, plus his groceries and room rent.

We note initially that the $300 weekly temporary allowance to the wife was based on her itemized testimony of $200 a week to cover household expenses and food for the children, plus a $490.53 monthly home mortgage payment.

In dissolution cases for maintenance orders the trial court weighs the witnesses’ credibility and we reverse only if the appellant shows a clear abuse of discretion. Nilges v. Nilges, 610 S.W.2d 58[1, 14] (Mo.App.1980).

We deny husband’s claim of excessive temporary allowance based on his alleged weekly earnings of $100 to $125. The trial court could also have considered husband’s admission that he. could earn $500 weekly in other available employment. In allowing the support the trial court did not err in considering husband’s anticipated earning capacity. Nunn v. Nunn, 644 S.W.2d 370[1, 2] (Mo.App.1982).

Husband’s other point challenges the trial court’s $300 weekly allowance to wife without allocating that amount between maintenance, child support and attorney fees. His cited case of Pettigrew v. Pettigrew, 619 S.W.2d 364 (Mo.App.1981) concerns modification of a child support award. It is clearly not in point.

Husband also relies on two statutes. Sect. 452.335 refers to motions following dissolution so it is clearly not in point. Sect. 452.315 permits but does not require a separate motion for child support.

If in any way the trial court erred in not separately granting child support, that error would affect only the mother, not the father.

Affirmed.

DOWD, P.J., and CRIST and CRAN-DALL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Odis WILLIAMS, Jr., Appellant.
    No. 48155.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.
    Howard Paperner, Clayton, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Defendant was tried without a jury and found guilty of two counts of perjury. On Count I, he was sentenced to pay a fifty dollar fine, and on Count II, he was granted a suspended imposition of sentence and placed on probation for five years. He appeals.

On appeal, defendant claims the state failed to make a submissible case for two reasons. He contends that the transcript of the previous trial in which he allegedly perjured himself was not properly authenticated, and that the judge who swore him in at that trial was not shown to have the authority to administer an oath.

Initially we note that the suspended imposition of sentence on Count II is not appealable. State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984). We have examined the record as to the conviction on Count I, and we find that defendant’s contentions are without merit and that the state made a submissible case. The appeal is dismissed as to Count II, and the judgment of the trial court on Count I is affirmed.


author: DOWD, Presiding Judge.

text:
    Ruby J. MERZ, Appellant-Plaintiff, v. FIRST NATIONAL BANK OF FRANKLIN COUNTY, Respondent-Defendant.
    No. 48220.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.
    Robert J. Gaddy, St. Louis, for appellant-plaintiff.
    David L. Baylard, Kenneth B. Dopuch, Briegel, Dempsey, Baylard & Patane, P.C., Union, for respondent-defendant.
   DOWD, Presiding Judge.

Appellant Ruby J. Merz appeals an adverse decree rendered in a declaratory judgment action. Merz filed such an action seeking a declaration of her rights and liabilities on a promissory note secured by a deed of trust held by the respondent First National Bank of Franklin County (hereinafter referred to as bank). The lower court declared that the bank was entitled to charge the rate of interest based upon changes in the real estate mortgage rates pursuant to and within the limits contained in the contemporaneously executed Federal Truth-in-Lending Statement (hereinafter referred to as FTLS). We affirm.

This appeal presents the single issue of whether as a matter of law the trial court erred in making the declaration stated above. The appellant offers many theories to sustain her contention that her note contains a fixed rate of interest which could not fluctuate with market interest rates on real estate mortgages. Appellant’s principal contention is that since both the note and FTLS were drafted by the bank and they contain ambiguous clauses, they are to be construed against it. Appellant asserts that the ambiguous clauses are those which permit the bank to vary the interest rate on the note. Conversely, the bank relies on these documents and its policies concerning them to negate any ambiguities. The promissory note and the FTLS were signed by the appellant and her late husband. A sueeint rendition of the facts will illuminate the controversy before this court.

In May 1978, Kenneth and Ruby Merz secured financing with the respondent to build a home in Franklin County, Missouri. The financing consisted of a construction and permanent loan. A commitment letter dated May 4, 1978, sent by the bank to the Merzes indicated that the terms of the permanent financing would be as follows: “The permanent loan in the amount of $65,-000.00 will be authorized over 20 years at 9.5% rate.” However, the promissory note and the FTLS, both dated December 15, 1978, indicated a 9.25% rate. Moreover, the promissory note contain a typewritten clause located just to the left of the maker’s signatures that read: “The Bank shall have the right to change the interest rate upon 30 days notice to the maker. The authorized payment will be accordingly.” Further, the FTLS contained a printed clause, to wit:

First State Bank reserves the right to change interest rates from time to time. Any change shall be at the discretion of the bank, but would be changed only at such time that Real Estate Mortgage rates have differed appreciably from rate being charged the borrower. The maximum amount of any such change shall be one percent and the minimum amount of one-half percent.

The bank’s former president, William Stuart, testified for the appellant. Stuart, who had personally handled the closing of the loan, testified that the ¼% difference between interest rate stated in the commitment letter and the other two documents arose out of an agreement. The Merzes induced the bank to lower the interest rate by ¼% by offering to deposit their business accounts with it. Stuart testified further that only the Merzes and he were present when the permanent loan was closed. At the closing, Stuart explained to the Merzes that the bank was reserving the right to change the interest rate from time to time. He also informed them of the bank’s policy to review the rate every three years and to possibly make an adjustment of 1% to the interest rate. After the discussion on this topic, the Merzes signed the promissory note, FTLS, and the deed of trust.

At the time of this closing, the bank was shifting from three-year balloon notes to a form of adjustable rate mortgages. Even though the form of financing changed, the substance did not. Substantively, the bank reviewed all notes every three years. Based upon that review, the bank would adjust the interest rate to reflect current market trends.

The bank’s current vice-president, Russel Kavsteiner, was called to testify for it. He corroborated Stuart’s testimony concerning the bank’s policy of periodically reviewing all notes. He also added that the bank only exercised its discretion when the interest rates in the local marketplace differed by at least two percent from the current rate on the note. This meant that the interest rate could decrease as well as increase depending on the trend in real estate mortgage rates in the area.

Initially, we note that Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) governs our review of this non-jury trial. Thus, we may only reverse the trial court if its judgment is unsupported by or against the weight of the evidence, or is based on erroneous declaration or application of the law. Considering the nature of the seminal issue in this case, our review will be limited to the law of the case.

A promissory note is a written contract for the payment of money. Sabine v. Leonard, 322 S.W.2d 831, 837-8 (Mo. banc 1959). See also Calamari and Perillo Contracts 17 (2d ed. 1979). When dealing with a promissory note, a court must first turn its attention to Article 3 of the Uniform Commercial Code, § 400.3-101 et. seq. RSMo 1978. However, it must remain cognizant that general principles of law and equity supplement the particular provisions of the Uniform Commercial Code. § 400.1-103.

The appellant contends that her promissory note contains an ambiguous clause permitting the respondent to alter the interest rate on the note upon 30 day’s notice. Since the bank drafted the note, the clause should be construed against it. Her argument must fail simply because the clause is not ambiguous. An ambiguity does not arise from a contract merely because the parties disagree as to how the contract should be construed. Buder v. Martin, 657 S.W.2d 667, 669 (Mo.App.1983). A contract is said to be ambiguous if its terms are susceptible of more than one meaning so that reasonable men may fairly and honestly differ in their construction of them. Friedman Textile Co. v. Northland Shopping Center, Inc., 321 S.W.2d 9, 15 (Mo.App.1959). A simple reading of the controversial provision of the note reveals no ambiguity to this court.

Even though a contract is not ambiguous, the intent of the contracting parties may be unascertainable from the face of the document. Here the appellant contends that the FTLS does not affect the validity or enforceability of any term or provision of the promissory note citing 15 U.S.C. 1610(d) (1982). However, this court seeks a determination of the contracting parties’ intent concerning their use of this clause. In searching for the intent of the parties the entire instrument, subsidiary agreements between the parties and external circumstances which cast light on the intent are considered. Tri-State Gas Co. v. Kansas City Southern Ry Co., 484 S.W.2d 252, 254 (1972). Several instruments made at the same time, and relating to the same subject matter may be read together as one contract and recitals in one may be explained by reference to the other. Massachusetts Bonding and Insurance Co. v. Feutz, 182 F.2d 752, 757 (8th Cir.1950). See also § 400.3-119. Since evidence was adduced indicating that both FTLS and the promissory note were executed contemporaneously, the trial court properly construed the controversial clause of the note in light of the information contained in the FTLS.

Appellant’s witness, Stuart, handled the loan negotiations for the bank. His testimony indicated that he explained to the Merzes the affect of these clauses on their loan’s interest rate. In view of these facts and the law of the case, we cannot say that the trial court erred as a matter of law. The trial court correctly found that the Merzes negotiated for an adjustable rate loan. The interest rate of such a loan was susceptible to a maximum fluctuation of one percent every three years.

The judgment is affirmed.

CRIST and CRANDALL, JJ., concur.

      . Kenneth R. Merz, the appellant's late husband. died after the trial in this action.

      . All statutory references are to RSMo 1978.


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Karryl Lee HANSON, Appellant.
    No. 48364.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.

      Mark L. Willens, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant, Karryl Lee Hanson, appeals from his conviction, after a jury trial, of possession of more than thirty-five grams of marijuana, a schedule I controlled substance. § 195.020 RSMo. (Supp.1984). The jury assessed punishment at, and the court imposed a sentence of two years’ imprisonment. We affirm.

Defendant’s only point on appeal challenges the sufficiency of the evidence. Specifically, he alleges that the state failed to prove that he knowingly possessed the requisite amount of marijuana.

In our review of the record, we accept as true all the evidence supporting the verdict, and the reasonable inferences arising therefrom, and we disregard all evidence contrary to the verdict. State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981). Where, as here, the evidence is circumstantial, the facts and inferences relied upon to establish guilt must be consistent with each other and with the hypothesis of defendant’s guilt. The facts and circumstances must also be inconsistent with and exclude every reasonable hypothesis of defendant’s innocence. State v. Moss, 622 S.W.2d 292,295 (Mo.App.1981).

Within this scope of review, we now review the evidence.

The investigation which culminated in defendant’s arrest began in July 1982. At that time, two law enforcement officers, engaged in aerial surveillance in connection with another investigation, flew over a field in Randolph County. One of the officers noticed that the corn which was growing in the field appeared to have been cut in places, and that marijuana appeared to be growing in those places. There was testimony that this is a common practice among marijuana growers, because the corn serves to hide the illicit plant from view from the ground.

As a result of this observation, police began to keep a constant watch on the field, which was actually composed of three tracts, a northern field, a middle field, and a southern field. No activity occurred there until September 7,1982. On that day police observed an orange pickup truck parked near the field. The license plates on the truck showed that it was registered to defendant. The police also saw four people in the field. The four were wearing camouflage clothing with some type of netting over their faces. Defendant was seen in the field, wearing the same type of clothing, but without the netting over his face. A later search of the field revealed that the stems and “blooms” of the marijuana, the parts of plant possession of which is illegal, had been cut and removed. A machete or corn knife, apparently used to cut the plants, was found sticking into the ground nearby.

No other relevant activity took place at the site until October 4, 1982. There was testimony that daily inspections were made and that the area remained completely unchanged except for natural growth. On October 4 police again became aware of the presence of people in the field. Upon investigation, the police discovered that the plants in the north field had been cut. They proceeded to the south field, where they heard people moving and loud chopping noises. Near this field the police found a large plastic trash bag, containing, among other things, an open box of trash bags. The police waited in this vicinity until they were approached by two men, defendant and a companion. The men were wearing the same type of camouflage clothing that had been worn by the group of four in September. The two men were arrested, and upon questioning admitted that the bag and its contents belonged to them.

At the time of his arrest, defendant was carrying a pair of scissors or cutters, the blades of which were covered with tetrahy-drocannabinol (THC), the active substance in marijuana, which is found in the plant’s resin. Defendant’s hands were also covered with a sticky green substance which analysis showed to be THC. He had a small plastic bag, containing about one gram of marijuana, in his pants pocket. Testing of his jacket revealed an unknown quantity of marijuana in those pockets also.

A search of the area led to the discovery of two trash bags containing about 30 pounds of marijuana. The machete, which had remained undisturbed in the ground since September, was found stuck in a tree near where the bags were found.

Defendant maintains that the evidence, taken in the light most favorable to the verdict, fails to show that he had possession of over 35 grams of marijuana. He asserts that the marijuana found on his person did not total 35 grams and that he did not possess the two bags, which he concedes contained the requisite amount.

To sustain a conviction for possession of a controlled substance under § 195.-020, RSMo. (Supp.1984) the State must prove that defendant knowingly and intentionally possessed the proscribed substance. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982).

“Possession” as that term is used ... in its legal sense, means knowingly having the actual control and dominion of the [drug] to the exclusion of others .... [I]t is sufficient if the thing possessed is either carried on [defendant’s] person or is in his presence and custody if the possession is immediate, accessible and exclusive to him, (provided, however, that two or more persons may have joint possession of a [drug] if jointly and knowingly they have the dominion, control and exclusive possession described.)

State v. Sledge, 471 S.W.2d 256, 260 (Mo.1971). Under this definition the question here is whether the State proved defendant, either alone or with his companion, had actual control and dominion of the marijuana to the exclusion of others.

Our review of the record finds that the evidence is sufficient to support the verdict. The evidence excluded the presence of people other than defendant and his companion. The marijuana was freshly cut and defendant’s hands were covered with THC, as were the cutters that were in his possession. Finally, the marijuana was found in bags that were similar to the ones defendant admitted were his. This evidence is sufficient to establish, albeit circumstantially, that defendant had actual control and dominion over the marijuana in the bags. Defendant’s point is therefore denied.

The judgment is affirmed.

CLEMENS, Senior Judge, and CRIST, J., concur.


author: TOMLIN, Judge.

text:
    Ben W. HOOPER II, Executor of the Estate of Finley Noah Holt, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, at Knoxville.
    June 19, 1984.
    Application for Permission to Appeal to Supreme Court Denied by Supreme Court Oct. 1, 1984.
    William 0. Shults, Newport, for plaintiff-appellant.
    J. William Myers, Newport, for defendant-appellee.
   TOMLIN, Judge.

The executor of the estate of Finley Holt, deceased (hereinafter “executor” or “plaintiff”) has appealed to this Court from the judgment of the Circuit Court of Cocke County granting the motion for summary judgment of the defendant State Farm Mutual Insurance Company (hereinafter “insurance company”) and dismissing the executor’s suit. The defendant insured the automobile of the plaintiff's decedent. The policy contained the standard uninsured motorist provisions, with minimum limits. The executor’s decedent died from a heart attack some fifteen days following an automobile collision with an uninsured motorist in which he suffered abdominal and chest injuries. The complaint was filed more than one year after the date of this accident. The singular issue presented to this Court on appeal is the contention of the executor, notwithstanding procedural irregularities and the running of the statute of limitations, that the insurance company is liable to the plaintiff’s estate on the grounds of equitable estoppel. We are of the opinion that this issue is without merit, and we affirm the action of the trial court.

The basic facts as presented in the pleadings and depositions filed by the parties are not in dispute. The plaintiff’s decedent, while operating his automobile, received serious injuries when struck by an uninsured motorist on March 24, 1979. The uninsured motorist clearly crossed the center-line and struck the decedent’s automobile head on causing the plaintiff’s decedent to suffer severe trauma to the upper abdomen and chest. He was hospitalized for approximately ten days, when he was discharged and allowed to return to his home. Five days following his discharge, on April 8, 1979, the decedent died from a pulmonary embolism. The certificate of death reflected that the embolism was a thrombosis probably due to the trauma sustained in the automobile accident on March 24, 1979. The deceased, who was divorced, had one of his minor children as a passenger in the automobile at the time of the accident. His ex-wife, the mother of the child, had legal custody of the child at that time.

It is uncontradicted that the insurance company carried uninsured motorist coverage on the deceased’s automobile. Following some preliminary contacts with the plaintiff, as executor of the estate, a claims representative of the insurance company wrote the following letter to the executor on June 20, 1979:

Re: Finely Holt
42-4257-222
Dear Mr. Hooper:
Before we can do anything on the claim of Mr. Finley Holt, the following information is needed:
1. Copies of all medical bills.
2. Copies of all medical reports on
Mr. Holt’s injuries.
3. Copy of death certificate.
4. Copy of funeral bill.
5. Names of each ex-wife and names of each child by each marriage.
Mr. Holt’s daughter, Alma Lee Holt, is represented by Terry Hurst. Mr. Hurst is also representing Sharrion Holt, ex-wife of Mr. Holt.
As I have indicated to you, the limits of Mr. Holt’s uninsured motorist coverage are $10,000. If the medical reports and death certificate indicate Mr. Holt’s death was attributed to the accident, I do not forsee (sic) any problems concluding this claim for the policy limits. However, if his death was not a result of the accident, we would have to evaluate the injury report and make our offer of settlement accordingly.
Very truly yours,
/s/ Ronald H. Dotson
Field Claim Specialist

Almost two years after the insurance company denied the executor’s claim on the grounds that the one-year statute of limitations for personal injuries had run, the executor filed this action directly against the insurance company as defendant, asserting that he had taken all the steps necessary to recover under the policy, and that the insurance company owed the deceased’s estate the policy limits. Subsequently, the executor filed an amendment to his complaint to enlarge upon his theories of liability. Motions for summary judgment and a combined motion to dismiss were filed both as to the original complaint and to the complaint as amended. Both motions set forth as grounds for dismissal, first, the fact that the complaint showed on its face that it was a suit by an insured directly against the insuror seeking to recover under the uninsured motorist provisions of the automobile policy in contravention of the provisions of the uninsured motorist statute and second, that the complaint showed on its face that the automobile accident from which the decedent’s injuries arose took place more than one year preceding the filing of the complaint. Discovery depositions of the executor, an attorney, and the claims specialist for the insurance company who wrote the June 20th letter, were filed in support of and in opposition to the motion for summary judgment.

These depositions included as exhibits the accident report, hospital records, and death certificate pertaining to the injury and subsequent death of Mr. Holt.

In his deposition the defendant’s claim representative testified that following the writing of the June 20th letter, he diaried his file on a thirty-day basis, and for five of the next six months he personally telephoned the executor seeking to obtain the specific information requested in the June 20th letter. The executor did not furnish the information requested. After failing to get the information with a letter and five telephone calls, he simply diaried his file for the one-year anniversary of the date of injury.

He further testified that an attorney other than the executor herein represented the ex-wife of the decedent in connection with the personal injury claim of decedent’s minor daughter. The defendant’s claim representative testified that this claim was settled by the company with the minor’s mother some six to nine months following the accident.

The executor telephoned the defendant’s representative sometime after March 24, 1980, and before April 8, 1980, stating in essence that he was ready to wind up the deceased’s claim. The information requested in the defendant’s June 20, 1979 letter was not actually furnished to the company until mid-April, 1980.

I. PROCEDURAL PROBLEMS.

Notwithstanding the fact that a part of the plaintiff’s claim is based upon equitable estoppel, this is clearly a suit on behalf of an insured seeking to collect on the uninsured motorist provisions of his policy for personal injuries sustained in an accident involving an uninsured motorist. In accordance with the provisions of Tennessee Code Annotated § 56-7-1206, it is incumbent that suit be instituted against an uninsured motorist, with service thereafter upon the insured’s uninsured motorist carrier. A suit directly against the insurance company under these circumstances cannot be brought. Glover v. Tennessee Farmers Mutual Insurance Co., 225 Tenn. 306, 468 S.W.2d 727 (1971). However, notwithstanding this procedural defect, there is a more compelling reason for our affirming the judgment of the trial court.

II. STATUTE OF LIMITATIONS.

Where one suffers personal injuries in an accident and death later occurs, whether directly or indirectly caused by those injuries, the one-year statute of limitations runs from the date of the injury; not from the date of death. Fowlkes v. Nashville & D.R.R., 56 Tenn. 829 (1872); and Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131 (Tenn.1899). The material dates in this case, all uncontradicted, are: (1) March 24, 1979—date of accident; (2) April 8, 1979—date of death; (3) April 7, 1980— telephone call from plaintiff to defendant’s representative; and (4) March 22, 1982— date of suit.

Notwithstanding the fact that the plaintiff claims equitable estoppel in his complaint, his testimony in no way supports such a claim. The plaintiff bases his claim of equitable estoppel upon the defendant’s letter of June 20, 1979. A dissecting of this letter shows that it told the plaintiff this: “Before we can do anything on the claim of Mr. Finley Holt, the following information is needed." (emphasis supplied). What did the company need? They requested copies of medical bills, medical reports on the decedent’s injuries, a death certificate, a funeral bill, names of the deceased’s children, and the name of his ex-wife.

What did the letter say as to the posture of the company? “If the medical reports and death certificate indicate that Mr. Holt’s death was attributed to the accident, I do not forsee (sic) any problems concluding this claim for the policy limits.” (all emphasis supplied). This vital information is what the defendant sought from the executor by five telephone calls and a letter. In honest candor, in his deposition the executor testified to the effect that he did rely on the June 20th letter only to the extent that when “I received the letter I felt it was a routine matter of getting together the items that were listed there.” This concept was entirely correct, but what he failed to do was to “get together” the information “needed” by the insurance company which it had repeatedly sought.

The executor conceded that when he called the insurance company’s representative on April 7, 1980, stating that he was ready to wind up the case, he assumed that the statute of limitations would run on April 8th, rather than on March 24th. He was under the impression that he was calling within the one year, and that notwithstanding the June 20th letter, he was still conscious of the statute of limitations, which he thought would run on April 8, 1980. While most unfortunate, it is clear to this Court that due to the press of other business and legislative matters, as testified to by plaintiff, he erroneously assumed that the statute of limitations ran on April 8, 1980, rather than on March 24, 1980.

While the gathering of the data requested by the company in the June 20th letter was a routine matter, the opening paragraph of that letter put the executor on notice that nothing could be done on the claim of his decedent until this information was furnished. It was not furnished, in fact, until mid-April, 1980. The clincher, insofar as testimony of the executor is concerned, that no controverted issue of material fact pertaining to equitable estop-pel existed is borne out by this single question and answer in his deposition:

Q. But even though you had this letter of June 20, 1979, from Ron Dotson, you were still conscious of a Statute of Limitations date which you thought to be April 8th, 1979, and which you wanted the matter concluded before that time or you would file suit?
A. That’s right.

The judgment of the trial court granting summary judgment for the defendant is affirmed. Costs in this cause are taxed to the plaintiff, for which execution may issue, if necessary.

NEARNS, P.J. (W.S.), and CRAWFORD, J., concur.


author: CRAWFORD, Judge.

text:
    Richard W. PATTERSON, Plaintiff-Appellee, v. Chancellor James C. HUNT and University of Tennessee, Defendants-Appellants. Edward E. SHAW and Joseph W. Melton, Plaintiffs-Appellants, v. Chancellor James C. HUNT and University of Tennessee, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    July 13, 1984.
    Application for Permission to Appeal Denied By Supreme Court Oct. 29, 1984.

      Robert M. Friedman, Memphis, for Patterson and Melton.
    William W. Heaton, Memphis, for Shaw.
    Beauchamp E. Brogan and Ronald C. Le-adbetter, Knoxville, for defendants-appellants.
   CRAWFORD, Judge.

This case was commenced by plaintiffs, Richard W. Patterson (hereinafter Patterson), Edward E. Shaw (hereinafter Shaw), and Joseph W. Melton (hereinafter Melton), in the Chancery Court of Shelby County by complaint against Chancellor James C. Hunt (hereinafter Hunt) and the University of Tennessee Center for the Health Sciences College of Dentistry (hereinafter UT). Patterson, Melton and Shaw alleged in the complaint that they are students at UT in academic good standing, are near completion of their first year of dental school and have paid all necessary fees; on April 27, 1983, they received notice from the President of the Student Honor Council alleging they violated the Honor Code of UT regarding a pathology exam on April 22, 1983; they were told to appear before the Honor Council at a certain time, at which time they did appear and were told they had a right to a hearing before the Honor Council or before an administrative board and they signed a document to allow the Honor Council to conduct the hearing. They were isolated prior to the hearing, did not hear any other witnesses that appeared before the Honor Council, and were not informed of their right to counsel. Subsequent to the hearing they were each expelled by the Dean of UT and forbidden to attend classes. Patterson, Melton and Shaw further allege that on May 18, 1983, they filed a timely notice of appeal from the decision, sought copies of the records of the Honor Council proceedings, and averred that a subsequent complaint would be filed to set aside the adverse ruling of the Honor Council because of inadequacies and procedural due process violations. They aver they were not accorded rights as set out in the student handbook of UT, they received no notice as required in the handbook, they were not advised of right to counsel as provided in the handbook, and they were not allowed to discuss the proposed hearing with anyone else, and, therefore, they could not present witnesses at the hearing. Patterson, Melton and Shaw contend that while the appeal from their dismissal is pending, they will be unable to attend classes the final two weeks of the school year as a result and they will be irreparably damaged. Consequently, they pray for a temporary restraining order, and, then, after a hearing, that they be returned to a full status at UT until they receive a full, fair and impartial hearing consistent with due process. On May 19, 1983, a temporary restraining order was issued by the trial court requiring UT to allow plaintiffs to attend classes, take exams, and be given such credit as earned. Also, the trial court restrained the defendants from denying plaintiffs their rights until a full hearing on the case.

The defendants, Hunt and UT, filed a motion to dissolve the restraining order and to deny the injunctive relief sought, but no action was taken on this motion prior to a hearing on the merits. On June 10, 1983, plaintiffs filed another pleading entitled, “Complaint to Have Termination from the University of Tennessee, Center for the Health Sciences, College of Dentistry, Set Aside and for Petitioners/Plaintiffs be Afforded a Hearing Pursuant to the Tennessee Uniform Administrative Procedures Act, Tennessee Code Annotated, Section 4-5-108, et seq.” in which they allege, in addition to the allegations of the original complaint, that the notices they received from the Honor Council were not adequate, they were not informed of the difference between a hearing before the Honor Council and a hearing before an administrative board, they were told their chances would be better before the Honor Council, and thus, they were not cognizant of the rights waived when they signed the waiver document. They also allege that the waiver document was inadequate to waive their rights to an administrative hearing. On May 18, 1983, they met with the Dean of UT who advised them that they were dismissed from school and forbidden to attend classes. Patterson, Melton and Shaw pray for a permanent injunction to prevent the defendants from dismissing plaintiffs as students and from taking further action against them. They also pray the decision to terminate plaintiffs as students be set aside and a full, fair, impartial and constitutional hearing pursuant to the Tennessee Administrative Procedures Act, T.C.A. § 4-5-108 et seq. be granted.

Defendants filed an answer to the complaint, denied they violated any constitutional rights of the complaint and averred that plaintiffs were given proper notice and were handled in a procedurally proper manner.

After a hearing, a judgment was entered by the trial court that the administrative decision of the defendants be affirmed and judgment entered in favor of the defendants as to Shaw and Melton, and that the administrative decision of the defendant regarding Patterson be reversed and judgment entered for Patterson with the temporary injunction heretofore issued made permanent. The trial court filed written findings of fact and conclusions of law which we quote as follows:

In this case the Court has heretofore handed down an oral opinion in the case of Richard W. Patterson, but in order to complete the record, makes the following findings in the Patterson case and deals with the Shaw and Melton cases hereinafter. In the Patterson case the Court finds that the procedure may be lacking in due process requirements in the following respects:
1. There is a question as to whether an adequate explanation was made to Patterson as to the difference in the two types of hearings to which he was entitled to elect under the options provided in the University rules.
2. The President of the Honor Council, Black, wrongfully assumed what he termed as an “executive privilege” to advise a member of the student counsel [sic], whom he thought friendly with the defendants, that that member of the Council should not vote or participate in the proceeding.
3. Lack of confrontation by Patterson of his accusers.
4. The President of the Honor Council assumed that no vote should be taken in the Patterson case because of the guilty plea, when in fact thére was a “not guilty” plea as to the more serious charge.
5. The three-fourths vote was not taken on the verdict of the Patterson case, and there was no explanation made that there would be no vote if the guilty plea was entered.
6. That the defendants were advised and told not to mention the proceedings to anyone.
There is practically no dispute in the facts of this case. There is no contention that Patterson actually cheated, although he did go to the professor to inquire if the answers to the questions would be posted and passed this information on to one of the accused. He acknowledged that he knew about the arrangement, but contended that he did not actually cheat. Patterson was in the upper 10% of his class and was President of his class. It is uncontroverted that he knew about the arrangement, but there is no proof at all that he actually engaged in cheating. There is no dispute that he pled “not guilty” to cheating.
While the Court does not condone what the defendants did and feels that the University should be able to operate under its rules with a minimum of interference by the courts, the Court finds that the University did not comply with its own rules and did not comply with due process insofar as Patterson was concerned. Accordingly, it is the opinion of the Court that the injunction should be left in force with respect to Patterson so as to permit him to continue his career in dental school without further penalty to him or his parents.
With respect to Melton and Shaw, there was a “guilty” plea to the charges of cheating, and there is uncontroverted proof that they participated in the plan or scheme. Further findings of fact in their cases seem unnecessary. The case of Ellison v. State, 549 S.W.2d 691 (Tenn.Crim.App.1976) holds, “The guilty plea waived all non-jurisdisctional [sic] and procedural defects and constitutional infirmities.” Substantially the same is supported by Garret v. State, 534 S.W.2d 325 (Tenn.Crim.App.1975); Crum v. State, 530 S.W.2d 103 (Tenn.Crim.App.1975); Little v. State [4 Tenn.Cr.App.175], 469 S.W.2d 537 (Tenn.Crim.App.1971); Shephard v. Henderson [1 Tenn. Cr.App. 694], 449 S.W.2d 726 (Tenn.Crim.App.1969); Shapiro and Ames, Tennessee Criminal Procedure, § 13-3 at p. 155; and other cases cited in Yol. 7 of Tennessee Digest under the heading “Criminal Law” at section 273 at pp. 250-251. For the foregoing reasons, the court holds in the cases of Melton and Shaw their guilty plea waives their right to object to lack of due process.
The Court commented from the bench that in the case of Shaw, the proceedings seemed to be moot since he did not make the required grades for re-entry in the Fall, 1983. Accordingly, an appropriate order may be entered which continues the injunction in force as to Patterson so that he may re-enter the dental college in the Fall, 1983, but the ruling of the school is upheld in the cases of Melton and Shaw.

Both plaintiffs and defendants appealed from the judgment of the trial court. Shaw and Melton have presented six issues for review by this court, which we have consolidated as follows:

1. Whether the due process rights of the plaintiffs/students were violated?
2. Whether the equal protection rights of the plaintiffs/students were violated because of the disparity of punishment between these plaintiffs and other equally situated students for the past five years.

In addition, plaintiffs have filed a motion to strike from defendants’ brief that part of the appendix containing records or exhibits which were never introduced in the trial court as being the records of proceedings at UT.

UT presents three issues for review, but the primary issue is whether Patterson was denied procedural due process. UT contends all three of the plaintiffs were treated similarly and that Patterson’s dismissal should likewise be affirmed.

We agree with the trial court that the material facts are not disputed.

The record reveals the following uncon-troverted material facts: The University of Tennessee College of Dentistry operates under a Honor Code, and the Honor Code and By-Laws of the Honor Council are published in the Tenn.Admin.Comp. § 1720-3-3; that Article XI of the By-Laws is as follows:

ARTICLE XI
Publication
Section 1. Upon his acceptance for admission to the University of Tennessee College of Dentistry, each student shall be sent a copy of the Honor Code, along with the following statement which he must sign before his registration shall be considered complete:
“I, the undersigned, signify that I have read the Honor Code and By-Laws of the Honor Council and hereby pledge my support of them. I understand what is expected of me as a student of the University of Tennessee College of Dentistry and realize that a plea of ignorance will not be acceptable by Honor Council. If I have reason to suspect that a breach of the Honor Code has been committed, I will take action in one of the following ways:
1. Issue a personal warning to the suspect with the knowledge of a member of the Honor Council.
2. Issue a personal warning to the suspect through a member of the Hon- or Council.”
The course of any further action to be taken, i.e., report of the violation to the Honor Council for investigation and possible hearing, shall be determined by the Honor Council representatives in the class of the accused, adhering to the guidelines outlined in Article III.
Section 2. Before classroom work begins, the entering dental class shall have a meeting at which members of the Hon- or Council shall read the Honor Code and By-Laws of the Honor Council. A faculty representative shall be present to render any assistance desired. A full explanation of all provisions shall be made, and any questions answered. All students shall be required to sign acceptance of the Honor Code at this meeting or prior to beginning classroom work. Section 3. Each class shall call a special meeting at least once a year for the purpose of discussing and clarifying the provisions of the Honor Code.

Pursuant to Article XI, each of the plaintiffs, Patterson, Melton and Shaw, signed the necessary statement, which is a part of their official record at UT.

On April 22, 1983, plaintiffs, along with other members of their class, took a pathology examination. Melton was unprepared for the exam and asked Shaw to make a copy of the answer key and slip it back into the classroom for Melton to use to answer the questions correctly. Shaw agreed to help him. When Shaw finished his examination, he left the classroom, copied the answers from the posted answer key, put it inside a hollow ballpoint pen, and gave it to Melton who was in the classroom. Melton thereupon used the answers to complete the exam. Patterson’s involvement was somewhat different in that he was president of the class and was asked by Melton to find out if and when the answer key would be posted. Patterson learned the answer key would be posted during the exam and relayed this information to Melton. Before the exam Patterson stated he did not want to see the copy of the answer key and during the exam he declined to use the answer key. Subsequently, a letter dated April 27,1983, was addressed to each of the plaintiffs from the President of the Honor Council which stated:

It has been drawn to the attention of the Honor Council that you may have acted in violation of the Honor Code of the University of Tennessee College of Dentistry. The specific charge is cheating (Article III of Honor Code) and the incident concerns a pathology exam dated April 22, 1983.
I hereby summons [sic] you to appear before the Honor Council on Wednesday, May 4, at 6:00 p.m. in the Dean’s Conference Room, adjacent to room S-102 of the Dunn Dental Building. Please wait in the Dean’s reception area.
Noteworthy is the fact that mention of this meeting to any member of the student body, faculty or administration will be viewed as an additional violation of the Honor Code.

Pursuant to the letter, the plaintiffs appeared for the meeting and were separately brought before the Honor Council. Pri- or to the commencement of any proceeding, plaintiffs were advised they could have a hearing before the Honor Council or before an administrative procedures board. Plaintiffs were told separately that students sat on the Honor Council and faculty members sat on the board. Each of the plaintiffs signed a waiver which stated: “I hereby waive my right for hearing before the APA board.”

Both Melton and Shaw entered guilty pleas before the Honor Council to the charge of cheating. Patterson entered a not guilty plea before the Honor Council to the charge of cheating, but guilty to knowledge of cheating on the part of others. As to Patterson we quote from his testimony:

Q. (By Mr. Leadbetter) My question was this, are you denying that you made the statement I have knowledge of cheating?
A. To be quite honest with you, without some type of recording of everything I said during that hearing, I couldn’t tell you what my exact wordage was. I’d be lying if I said I was sure.
Q. Did you later on — But you did plead guilty, you did say for whatever words you used—
A. I don’t know if you’d say I pleaded guilty. I said I was guilty of having knowledge that someone intended to cheat, but I was not guilty of cheating on the exam.
Q. Did you go on and in the same statement say, and not reporting it, I was guilty of not—
A. Yes, sir, that’s correct.
Q. And then later on I believe you were asked to explain exactly what you did on this particular test date, and I believe at one point in time you were asked, you understand that what you did violated the Honor Code, and you responded yes, didn’t you?
A. Yes, sir.

Subsequent to the Honor Council hearing each of the plaintiffs were interviewed separately by Dean Slagle, the Dean of the College of Dentistry, and they each basically reaffirmed their plea and statement made before the Honor Council. By letter of May 16, 1983, Dean Slagle notified each of the plaintiffs of his decision as follows:

Mr. D. William Black, President of the Honor Council, University of Tennessee College of Dentistry, has advised me that at a hearing on May 4,1983, you entered a plea of guilty to a charge of violation of Article III Honor Code of the University of Tennessee College of Dentistry. The incident involved a pathology examination on the date of April 22, 1983. In light of the seriousness of the offense in which you have entered a plea of guilty, it is my decision that you are hereby terminated as a student in the University of Tennessee College of Dentistry effective this date. I regret that you have placed me in the position of having to make this decision.
Should you choose to reapply for admission as a first year student to the College of Dentistry for the entering dental class of September 1984, an ad hoe committee composed of faculty members will be appointed to review your request. A letter requesting review for possible readmission to the college must be received by my office no later than January 1, 1984.

On May 18, 1983, each of the plaintiffs filed a notice of appeal from this decision which was acknowledged by the Chancellor of the University of Tennessee Center for the Health Sciences, James C. Hunt, by letter of May 19th, as follows:

This is to acknowledge receipt of your notice of appeal dated May 18, 1983. Your complete file will be obtained from the College of Dentistry for my review. By a copy of this letter to the Dean of the College of Dentistry, I will request that a copy of the permanent record of the proceedings held of May 4, 1983, be sent to you.
I will consider any written arguments or explanations which you desire to make to me, provided they are presented to me within ten days of your receipt of this letter.
As soon as I have completed my review of your file, together with any arguments presented by you, I will advise you of my decision.

None of the plaintiffs presented any further arguments or explanation or made any further contact with Chancellor Hunt, and by letter of June 13, 1983, the Chancellor advised each of the plaintiffs:

On May 19, 1983, by certified mail, I acknowledged your appeal of May 18, 1983. At that time, I noted that “I will consider any written arguments or explanations which you desire to make to me, provided they are presented to me within ten days of your receipt of this letter”. I have received no response from my May 19, 1983, communication.
Having received no response from you with additional written arguments or explanations, I have reviewed the entire file concerning your problem which resulted in your termination as a student in the UTCHS College of Dentistry on May 16, 1983, by Dean William F. Slagle.
Your file indicates that at a hearing before the Honor Council of the College of Dentistry on May 4, 1983, you entered a plea of guilty to a charge of violation of Article III or the Honor Code of the University of Tennessee College of Dentistry. This is a most serious offense and the action taken by the Honor Council and by Dean Slagle resulting in your termination at this University is entirely appropriate. Your appeal is denied.
I note that in his letter of May 16, 1983, Dean Slagle outlines steps which you might take should you desire to apply for readmission as a first year student at the College of Dentistry. I am also in concurrence with this action and hereby inform you that you will have the privilege of applying for readmission under the conditions outlined by Dean Slagle.
We will now consider the issues:
Issue No. 1. Whether the due process rights of the plaintiffs/students were violated?

Each of the plaintiffs assert that they were denied due process because the notice of the charge against them was not sufficient, they had no informed explanation concerning the two types of hearings available, the President of the Honor Council advised a member of the Honor Council friendly to plaintiffs not to participate, the plaintiffs were not allowed to confront their accusers, no vote was taken by the Honor Council, and the plaintiffs were advised that the proceedings should remain secret. Insofar as Shaw and Melton are concerned, clearly, Shaw gave aid and Melton received aid. Article III states in part:

The Honor Council is entrusted with the responsibility of taking cognizance of dishonest practices which have a direct bearing upon the student in his relationship to the faculty, to his fellow students, and to the College of Dentistry. These offenses are lying, cheating, and stealing. It shall be an infraction of the Honor Code for a student to give or receive aid on any quiz, any examination. ...

Undoubtedly, Shaw and Melton were specifically advised of the charge against them in the initial notice from the President of the Honor Council. The testimony of Shaw and Melton in the court below is abundantly clear that they were not confused in any manner concerning charges against them and entered a plea of guilty to those charges. Patterson, on the other hand, takes the position that because the notice to him from the President of the Honor Council stated, “The specific charge is cheating (Article III of Honor Code),” he did not have notice of a charge against him, because he did not cheat as such, but merely knew that cheating was going on and did not report it. We find this difficult to absorb in view of the record in the case which clearly shows that Patterson knew that cheating was taking place and he was in fact asked to aid and abet the cheaters. Not only did he assist by contacting the professor to ascertain if the key would be posted, but he also failed to take steps to control this unfortunate incident. Article III of the Honor Code goes further and states, “It is encumbent upon each student who observes an infraction of the Honor Code to take action at once on said infraction in the ways set forth in Article XI hereof, and failure to do so shall in itself constitute an infraction of the Honor Code.” Under Article XI, as heretofore indicated, one with knowledge of cheating must take action in one of the following ways: (1) issue a personal warning to the suspect with the knowledge of a member of the Honor Council, or (2) issue a personal warning to the suspect through a member of the Honor Council. As for Patterson, he declined to plead guilty to cheating, according to his interpretation, but did concede that he was guilty of the offense of failing to report cheating. This admitted failure is clearly an Honor Code violation.

Without prolonging this opinion and considering all of the assertions of the plaintiffs, we find the situation remarkable in that none of the plaintiffs have recanted in any manner the extent and nature of their participation in the incident surrounding the pathology examination which resulted in their dismissal from UT. What the plaintiffs have failed to realize is that their dismissal from school was not final until the decision was made by Chancellor Hunt, and therefore Hunt’s dismissal was the final agency decision from which the plaintiffs should have perfected their appeal. Although this case reached the courts in a rather unusual manner for proceedings of this type, we have considered the case on the merits. Regardless of any lack of notice of the charges or any lack of knowledge of the various hearings available, all plaintiffs subsequently conceded to Dean Slagle that they had violated Article III of the Honor Code. The matter was then carefully considered by the Chancellor and each of the plaintiffs was granted the opportunity to make further argument or explanation to the Chancellor; however, none of the plaintiffs took advantage of the opportunity.

Counsel for the plaintiffs have repeatedly asserted throughout this voluminous record that the due process rights of the plaintiffs were violated, because they unknowingly waived their rights to an administrative board hearing. Concerning this issue, we note two points: firstly, as provided by Tenn.Admin.Comp. § 1720-1-5, the ultimate decision from an administrative board hearing rests with the Chancellor of UT, because he represents the last resort on appeal. Similarly, the Chancellor also possessed the power to make the final decision on the appeal from the Honor Council. By either method of appeal, the Chancellor possessed the power for de novo review. See Sullivan v. Houston Independent School District, 475 F.2d 1071 (5th Cir.1973). Secondly, we note the procedure provided by Tenn.Admin.Comp. § 1720-l-5.01(8)(e):

The respondent is asked how he pleads to the charges; if he pleads guilty, no further hearing may be necessary; if he pleads not guilty, the hearing proceeds.

Once these students plead guilty, the hearing would conclude before the Board as the hearing concluded before the Honor Council. Again, as to guilty pleas, we can discern no real difference between the two methods of procedure.

Consequently, with these two points in mind, we ask the question, what rights did the plaintiffs waive unknowingly? Assuming the plaintiffs would continue in their truthful testimony and plead guilty before the administrative board, we cannot conceive of any rights waived. Since the initial procedures would be very similar before the Honor Council and the administrative board and the appeals process to Chancellor Hunt would be identical, we hold no rights were waived and any procedural due process rights violated were cured.

As noted by the trial court in the Findings of Fact, the uncontroverted proof demonstrates that Melton and Shaw participated in the plan or scheme to cheat. We concur in this finding of fact.

The Chancellor further found that Patterson, “did go to the professor to inquire if the answers to the questions would be posted and passed this information to one of the accused. He acknowledged that he knew about the arrangement, but contended that he did not actually cheat. Patterson was in the upper 10% of his class, and was president of his class. It is uncontro-verted that he knew about the arrangement, but there is no proof at all that he actually engaged in cheating. There is no dispute that he pled ‘not guilty’ to cheating.”

We concur in the finding of fact of the Chancellor that Patterson participated to the extent that he asked a professor whether the answers would be posted, and he passed this information along to one of the other plaintiffs. We concur in the finding of the trial court that Patterson knew of the arrangement that involved the scheme or plan or the others to cheat. The trial court apparently felt that Patterson’s actions were excusable, and in this regard, we disagree. The Honor Code is clear, and Patterson’s actions are a violation of Article III.

The trial court found Patterson’s due process rights were violated, but also found the due process rights of Shaw and Melton were not violated. On the basis of the record before us, we cannot perceive any difference in the treatment accorded to the three plaintiffs, and as heretofore noted, we do not feel that due process was denied any of these plaintiffs under the circumstances of this case.

We also note the judgment of the trial court as set out above provides that the administrative decision as to Shaw and Melton is affirmed, and that the administrative decision as to Patterson is reversed. Apparently, the trial court considered this case as an appeal from the administrative decision, although the appellate procedure was not properly followed by either party to bring the matter to the Chancery Court. Also, the record of the administrative proceedings offered into evidence by UT was objected to by plaintiffs and the court refused to accept the administrative record into evidence. With the evidentiary exclusion of the administrative record coupled with the substantial testimony received, the trial court apparently conducted a trial de novo. Needless to say, this situation is somewhat confusing, because to properly proceed, the plaintiffs should have appealed from their administrative dismissal by the Chancellor of UT pursuant to the Administrative Procedures Act, T.C.A. § 4-5-101, et seq. Since the evidence introduced at trial established the procedures followed by UT in reaching the administrative decision, we will consider the record of the administrative proceeding as established by the trial proof and rule accordingly.

In its final analysis, this case presents simply that the plaintiffs, upon entering dental school, agreed to be bound by the Honor Code, they breached that agreement, they admitted they breached that agreement, and, now, they say they should not be punished under the Honor Code. The plaintiffs complain of the secret proceedings of the Honor Council, the inability to confront witnesses, the lack of the administrative board hearing, and in sum, the miscarriage of justice in the denial by UT to grant them a trial. We have carefully reviewed the record and find that plaintiffs have not attempted in any way to refute the clear facts of the situation, i.e., they violated the Honor Code. In State ex rel. v. Hyman, 180 Tenn. 99, 171 S.W.2d 822 (1942), cert. denied, 319 U.S. 748, 63 S.Ct. 1158, 87 L.Ed. 1703 (1943), the court said:

We are not unmindful of the fact that the governing authority in both public and private schools should have and does have the widest discretion in the matter of discipline, to the end that the honor and integrity of the school, as well as its scholastic standards, be preserved and maintained. The authority should, however, recognize its responsibility to students whose honor and future destiny is within its keeping. We cannot agree with the contention of counsel for the relators that a fair hearing contemplates a trial as in a Chancery Court or court of law. State v. Clapp, 81 Mont. 200, 263 P. 433, 436. We concur in the rule laid down by the Court in Koblitz v. Western Reserve University, 21 Ohio Cir.Ct.R. 144, as follows:
“Custom, again, has established a rule. That rule is so uniform that it has become a rule of law; and, if the plaintiff had a contract with the university, he agreed to abide by that rule of law, and that rule of law is this: That in determining whether a student has been guilty of improper conduct that will tend to demoralize the school, it is not necessary that the professors should go through the formality of a trial. They should give the student whose conduct is being investigated, every fair opportunity of showing his innocence. They should be careful in receiving evidence against him; they should weigh it; determine whether it comes from a source freighted with prejudice; determine the likelihood, by all surrounding circumstances, as to who is right, and then act upon it as jurors, with calmness, consideration and fair minds. When they have done this and reached a conclusion, they have done all that the law requires of them to do.”

Id. 171 S.W.2d at 826.

In the case before us, each plaintiff was accorded a hearing before Dean Slagle, whose actions were reviewed by Chancellor Hunt. In addition to reviewing Dean Sla-gle’s action, Chancellor Hunt accorded the plaintiffs the opportunity to present any further defense in their behalf. The plaintiffs did not take advantage of this offer. Accordingly, from the record as a whole, we cannot find that these plaintiffs’ due process rights were violated, and consequently we find plaintiffs’ assertions in this regard without merit.

Concerning the second issue, plaintiffs assert that they were denied their Fourteenth Amendment Equal Protection rights, because of the disparity in the punishment meted out to them as opposed to that punishment meted out to other students who had committed Article III Honor Code violations. This assertion is made actually on behalf of Shaw and Melton only, but since we have heretofore found that these three students stand in the same position, we consider this assertion on behalf of all of the plaintiffs.

After reviewing the record in this case, we conclude that these plaintiffs did not demonstrate they were deprived of their equal protection rights, because each case involving Article III Honor Code violations must be evaluated in the light of that particular student’s actual conduct. In any event, however, we do not find anything under the circumstances of this case to warrant a finding of a denial of equal protection rights. As pointed out by the U.S. Supreme Court in Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962):

Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

Id. at 456, 82 S.Ct. 507.

Accordingly, we do not find any violation of the equal protection rights of these plaintiffs, and the assertions of plaintiffs in this regard are without merit.

Plaintiffs have also filed a motion to strike from the brief of the defendant copies of the administrative record. As we have heretofore noted, UT attempted to get the administrative record into evidence, but upon objection of plaintiffs, the court would not admit it. Without properly creating an issue concerning the record, UT has attached copies of same to its brief. No offer of proof was made in the trial court, and the record on appeal does not have authenticated copies of the administrative record enabling a reviewing court to determine the correctness of the trial court’s decision.

Certainly, evidence not admitted at trial, should not be included in the appendix to a brief, and, accordingly, for what it is worth, we grant the motion of plaintiffs. We point out, however, we did not consider the record as contained in the appendix to UT’s brief. Both sides introduced sufficient evidence concerning the administrative procedures utilized for our review.

Regretably, these young men have placed themselves in the position which they now occupy. Hopefully, they will be able to avail themselves of the opportunity presented by Dean Slagle to apply for readmission to the school. Professional schools should be commended for installing and adhering to the Honor Code. However, if clear violations of honesty under whatever circumstances, are excused, the Honor Code would be transformed into a mockery. This situation should not be allowed in our society.

Accordingly, on the record before us, we affirm the judgment of the trial court upholding the dismissal from the dental school of plaintiffs, Shaw and Melton, and we reverse the decision of the trial court as to plaintiff, Patterson, and affirm his dismissal from school. The injunction heretofore issued on behalf of Patterson is dissolved, and this case is remanded to the trial court for any further proceedings necessary. The costs are assessed equally to plaintiffs.

TOMLIN and HIGHERS, JJ., concur.


author: LEWIS, Judge.

text:
    The PHENIX SQUARE, LIMITED, Plaintiff-Appellee, v. Ted N. WRIGHT, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Oct. 2, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 10, 1984.

      Thomas E. Schoenheit, Manier, White, Herod, Hollabaugh & Smith, P.C., Nashville, for plaintiff-appellee.
    J. Michael Jacobs, Michael J. Flanagan, J. Michael Jacobs & Associates, Nashville, for defendant-appellant.
   OPINION

LEWIS, Judge.

This is an appeal by defendant Ted N. Wright from a judgment awarding plaintiff, The Phenix Square, Limited (Landlord), the sum of $48,568.08 for the breach of a lease on certain commercial property.

The facts out of which this case arose are as follows:

In August, 1978, defendant entered into a lease with P.C. Properties, Limited, whereby defendant leased space in The Phenix Square Shopping Center in Phenix City, Alabama, for the purpose of operating a health spa. Ownership of the shopping center was subsequently transferred from P.C. Properties to The Phenix Square, Limited.

The lease was for a term of five years commencing December 4, 1978, at a rental of $1,687.50 per month. Defendant was current with his rental payments as of August, 1979. Defendant made a charitable donation of his stock in several health spas, including the one located in The Phenix Square Shopping Center, to The New Image Foundation.

Defendant made a written request to the Landlord that the lease be assigned to The New Image Foundation. The Landlord agreed to the assignment but refused to release defendant from his personal liability under the lease.

The New Image Foundation commenced operating the health spa on August 9,1979. However, from September, 1979, through January, 1980, The New Image Foundation failed to make any of the rental payments due under the lease.

The Landlord then instituted suit against defendant for the rental arrearage in Alabama. On January 11, 1980, the Landlord and defendant entered into an agreement to compromise and settle the suit for rental arrearage. The pertinent part of the agreement is as follows:

WHEREAS, by written Lease Agreement dated the 23rd day of August, 1978, the TENANT is in possession of the premises; and
WHEREAS, a dispute has arisen between the parties concerning the TENANT’S rental payments and the LANDLORD has filed suit for the payment of rent and possession of the premises; and as a compromise and settlement of said matter; IT IS MUTUALLY AGREED AS FOLLOWS:
WITNESSETH:
1. That for and in consideration of the sum of Eight Thousand Four Hundred Thirty-Seven and 50/100 Dollars ($8,437.50) representing the September, October, November, December, 1979 and January, 1980 rental on the demised premises, and in further consideration of One Thousand Six Hundred and no/100 Dollars ($1,600.00) LANDLORD’S attorneys’ fees, collectively totalling Ten Thousand Thirty-Seven and 50/100 Dollars ($10,037.50), to be paid by TENANT as follows: Three Thousand Three Hundred Seventy-Five and no/100 Dollars ($3,375.00) cash upon execution of this Agreement, receipt of which is hereby acknowledged, balance of Six Thousand Six Hundred Sixty-Two and 50/100 Dollars ($6,662.50) by TENANT’S Promissory Note, (a true and accurate specimen copy of said Note is attached hereto and incorporated herein by reference as Exhibit A), the parties agree to compromise and settle said dispute.
2. LANDLORD covenants to continue its lawsuit for rent and possession of the premises, pending timely payment of the Note set forth in Exhibit A and timely payment of monthly rental on the premises in the approximate amount of One Thousand Six Hundred Eighty-Seven and 50/100 Dollars ($1,687.50). At the conclusion of the payment schedule set forth in said Note, and on the condition that monthly rental is current, and TENANT has complied with lease, the LANDLORD agrees to cause said suit to be dismissed.

To secure the payment of the arrearage, the Landlord was also granted a security interest in all equipment located within the spa.

Defendant made all payments due under the January, 1980 agreement to compromise and settle the Alabama lawsuit. He also made the rental payments of $1,687.50 per month through June, 1980. The July, 1980 lease payment was not made, and the Landlord learned from another tenant that the defendant had removed a part of the equipment and vacated the leased premises. The Landlord took possession of the premises and re-leased in order to mitigate its damages.

Defendant testified that at the beginning of the lease term, he had placed improvements in the leased premises of some eighteen or nineteen thousand dollars. A part of these were removed when he vacated the premises.

Defendant, by his first issue, contends that the Chancellor erred in holding that the 1978 lease agreement and the 1980 agreement to compromise and settle the Alabama lawsuit were separate and distinct agreements. At trial, defendant insisted that the January, 1980 agreement modified the 1978 lease agreement and that both agreements must be construed together. He correctly states that “where an executed agreement refers to other documents and makes their conditions part of the executed agreement, the documents must be interpreted together as the agreement of the parties.” Engert v. Peerless Insurance Co., 53 Tenn.App. 310, 323, 382 S.W.2d 541, 547 (1964).

Defendant insists that the Landlord breached the provisions of the 1980 agreement by failing to dismiss the Alabama lawsuit and that because the two instruments must be construed together, he was justified in vacating the leased premises and declaring the 1978 lease “null and void.”

We disagree. The Chancellor correctly held that the January, 1980 agreement was “in no sense a modification of the [August, 1978] lease.... It was nothing more than an agreement to settle a lawsuit arising from the delinquency. [The 1980 agreement] does not modify the original lease nor does it in any way relieve the defendant from his obligation under the lease contract.”

The Landlord brought suit to collect the rental payments due under the 1978 lease agreement which had accrued and were owed by defendant. In consideration of the Landlord’s not going forward with the lawsuit, defendant did nothing more than to agree to pay what he owed. While the 1980 agreement does refer to the 1978 lease, the two are in no way dependent on each other. They are separate and distinct agreements.

If in fact the Landlord breached the 1980 agreement by failing to dismiss the lawsuit, that breach in no way affected defendant’s obligations in the 1978 lease. Defendant was not justified in breaching the August, 1978 lease agreement.

Defendant’s first issue is without merit.

Defendant’s second issue is premised on the assumption that the 1980 agreement modified the 1978 lease. We have determined otherwise and, therefore, pretermit the second issue.

Defendant’s third issue is as follows: “The Trial Court erred in dismissing the counterclaim of the appellant, Wright, on the theory that the appellant’s remedy was to have instituted legal action in the State of Alabama.”

Our reading of the record fails to disclose that the Chancellor dismissed defendant’s counterclaim on the “theory” that defendant should have brought suit in Alabama. The Chancellor first held that the two agreements were not dependent. He then held that even if the Landlord breached the 1980 agreement by failing to dismiss the Alabama lawsuit, damages arising from that breach would be speculative at best. We agree. Defendant could have moved the Alabama court to dismiss the rental arrearage suit on the basis that the suit had been compromised and settled. He did not do so. There is no showing that notwithstanding the lawsuit and the security agreement, defendant could not have sold the spa as a going business. He did, in fact, sell a great deal of the equipment which was the subject of the security agreement. As found by the Chancellor:

It’s inconceivable that he couldn’t sell his business because of this defunct lawsuit and defunct security agreement which could have been released. He could have easily demonstrated to the Alabama court that he had to have that done because of the Landlord’s breach of the agreement and he would have been entitled to having the lawsuit dismissed and the security agreement removed.

Defendant failed to prove any damages under his counterclaim. This issue is without merit.

Defendant next complains that “[t]he Trial Court erred in failing to award a sett [sic ] off in favor of the defendant/appellant for valuable leasehold improvements to the leased premises.”

Defendant’s proof was that at the beginning of the lease in 1978, he made improvements of between eighteen and nineteen thousand dollars to the leased premises. These improvements included a whirlpool with pumps and filters, an eighty-gallon gas hot water heater, a dry sauna, carpets, drains, wall mirrors, chandeliers, and track lighting. Defendant testified that most of these improvements were improvements that were of a special design for a health spa. He testified that while the carpets and drapes were not specifically designed for his business, the carpets had been damaged by mildew.

The proof on behalf of the Landlord was that the improvements were of no value to the premises.

The Trial Court, after seeing and hearing the witnesses, found that the “improvements were worthless to the plaintiff.” This Court reviews findings of fact by the Chancellor in civil actions de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn.R.App.P. 13(d). The preponderance of the evidence in this case is not otherwise.

By his fifth issue, defendant complains that the Chancellor erred in awarding interest on the damages recovered by plaintiff.

The Chancellor awarded interest of $7,933.03 upon the rental deficiency of $42,-082.12.

Section 2.05 of the 1978 lease provides:

If Tenant shall fail to pay, when the same is due and payable, any rent or any additional rent, or amounts or charges of the nature described in Section 2.04 hereof, such unpaid amounts shall bear interest from the due date thereof to the date of payment at the rate of ten percent (10%) per annum.

In this case the defendant had a specific contractual obligation to pay interest if he failed to pay the rent when it was due and payable. The Chancellor did nothing more than to enforce the contract between the parties.

Defendant also insists that the doctrine of laches barred the Landlord’s entitlement to interest on the unpaid rent. He states that the “Landlord had failed to offer any explanation for the delay in bringing suit and that this delay, along with the fact that he was misled to his detriment by the actions of the Landlord, make the doctrine of laches applicable.” See State v. Abernathy, 159 Tenn. 175, 17 S.W.2d 17 (1929). This was a contract action, and the statute of limitations is six years. Suit was filed seven months after defendant’s breach of the lease agreement. Laches requires that the delay be prejudicial to the defendant. Thompson v. Coates, 627 S.W.2d 376, 380 (Tenn.App.1981). Here, there has been no showing that the defendant was prejudiced. He was able to retain the money he owed the Landlord during the pendency of this litigation. He could have stopped the running of interest at any time by tendering the amount of the delinquent rent. This issue is without merit.

The Landlord presents one issue, that it should be awarded additional attorney’s fees incurred in defending this matter on appeal.

Section 23.01 of the 1978 lease provides for an award of attorney’s fees to the successful party. On remand, the Chancellor shall take such proof as is necessary to determine the amount of attorney’s fees to which the Landlord is entitled for defending this matter on appeal.

The judgment of the Chancellor is affirmed with costs assessed to defendant and the cause remanded to the Chancery Court for the collection of costs, determination of the additional amount of attorney’s fees to which the Landlord is entitled, and for any further necessary proceedings.

TODD, P.J., and CANTRELL, J., concur.

      . The judgment is made up in the following manner: Award of damages for delinquent rent $42,082.12, interest $7,933.03, litigation expense $1,179.80, and attorney’s fees $7,373.13.


author: FRANKS, Judge.

text:
    David M. ROUSE, Executor of the Estate of Seth Churchill, Plaintiff-Appellee, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 11, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 17, 1984.

      David M. Tilson, Taylor, Tilson, Inman & Reams, Morristown, for defendant-appellant.
    Ralph H. Noe, Jr., Morristown, for plaintiff-appellee.
   OPINION

FRANKS, Judge.

In this suit to recover for the loss of a barn on a fire policy issued by defendant to deceased, the jury returned a verdict in favor of the estate and the trial judge entered judgment for $4,500.00. The trial judge submitted the issues to the jury on the theory the provisions of the policy were ambiguous.

The insurance company has appealed, insisting no ambiguity exists and it was entitled to a directed verdict. We agree, and reverse and dismiss the suit for the reasons given.

Deceased owned approximately 572 acres outside the corporate limits of Morristown in Hamblen County, fronting on Old Witt Road. At the time the insurance was purchased, defendant’s agent went to deceased’s property to determine the size and description of the house and size of its lot. He testified that he stepped off the portion around the house which was mowed or 250 feet along Old Witt Road and 150 feet back from the road. The policy issued describes the premises as: “The premises covered by this policy is located 150 x 250 lot on Old Witt Road 4 miles South from Morristown Tenn.” The barn which was destroyed by fire was approximately 36 by 36 feet in size and was located 299 feet from Old Witt Road and 199 feet from the “corner of the barn to the corner of the dwelling.” The evidence is undisputed that the described lot of 250 x 150 feet contained a dwelling and two small utility buildings, but the barn was not physically located on the lot.

The coverages for the dwellings and structures as provided in the policy are:

COVERAGE A We cover: DWELLING
a. The dwelling on the residence premises shown in the Declarations used principally as a private residence, including structures attached to the dwelling; and ....
COVERAGE B We cover other structures on OTHER the residence premises, sepa-STRUCTURES rated from the dwelling by clear space. Structures connected to the dwelling by only a fence, utility line, or similar connection are considered to be other structures.
We do not cover other structures:
a. used in whole or in part for business purposes; or
b. rented or held for rental to any person not a tenant of the dwelling, unless used solely as a private garage. [Emphasis supplied.]

As to structures other than the dwelling, the policy clearly states: “We cover other structures on the residence premises....” Residence premises is defined in the policy as:

“residence premises” means the one or two family dwelling, other structures, and grounds or that part of any other building where you reside and which is shown as the “residence premises” in the Declarations.

This definition creates no ambiguity as the residence premises shown in the declarations is the “150 x 250 lot on Old Witt Road.”

It is plaintiff’s theory that the definition of “insured location” renders the coverage provisions ambiguous. The provision contained in the Definitions section of the policy is:

4. “insured location” means:
a. the residence premises;
b. the part of any other premises, other structures, and grounds, used by you as a residence and which is shown in the Declarations or which is acquired by you during the policy period for your use as a residence;
c. any premises used by you in connection with the premises included in 4a or 4b.

The plaintiff insists the barn was located on the premises described under “insured location”, 4c. This may be true, but it is not material to the issue before the court. The fire coverage does not extend to all premises included in “insured location”, but is limited to the “resident premises”. “Insured location” is not mentioned in Coverage B, but the term is utilized in describing other coverages, notably “Coverage F, Medical Pay to Others.”

While the policy language is not identical to the standard policy provisions, it is not ambiguous. The standard policy provisions extending coverage to other structures usually refers to the structures as “appurtenant structures”. For discussion of these policy provisions, see Crouch on Insurance 2d, (Rev.ed.) § 42:3. Also cf. Bow-lin v. Fed. Mut. I. & H. Ins. Co., 210 Tenn. 205, 357 S.W.2d 337 (1962) (wherein the Supreme Court, in considering a fire policy which provided for limited coverage for “private structures appertaining to the premises described for that dwelling and located thereon”, observed: “[T]his barn being located on a different tract of land to that' on which the dwelling was located, it cannot be said to be appertaining thereto and certainly not located thereon.” Id., at 210, 357 S.W.2d 337).

We find no ambiguity in the fire coverage provisions of the policy; therefore, a directed verdict in favor of the insurance company will be entered. Accordingly, the judgment is reversed and the cause remanded to the trial court for entry of a judgment dismissing the suit. The costs are assessed to plaintiff.

SANDERS and GODDARD, JJ., concur.