Knox County Election Commission v. Shelley Breeding

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 13, 2012 Session

KNOX COUNTY ELECTION COMMISSION v. SHELLEY BREEDING

Appeal from the Chancery Court for Knox County

No. 182753-1 W. Frank Brown, III, Chancellor

No. E2012-01094-COA-R3-CV-FILED-JUNE 14, 2012

This case addresses the issue of whether an announced, and otherwise qualified, candidate

for the District 89 (Knox County) seat in the State House of Representatives satisfies the

residency requirement to run in the Democratic primary on August 2, 2012. The trial court

held that she was not eligible to run because the court found that she was a resident of

Anderson County. She appeals. We affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL

S WINEY and J OHN W. M CC LARTY, JJ., joined.

Billy J. Stokes, Jon M. Cope, and Hudson T. Ellis, Knoxville, Tennessee, for the appellant,

Shelley Breeding.

Joseph G. Jarret, Knox County Law Director, Knoxville, Tennessee, for the appellee, Knox

County Election Commission.

James G. Stranch, III, J. Gerard Stranch, IV, and Michael J. Wall, Nashville, Tennessee, for

the amicus curiae, Tennessee Democratic Party.

OPINION

I.

Shelley Breeding (“the Candidate”) filed a nominating petition with the Knox County

Election Commission seeking to become a candidate for the District 89 seat in State House

of Representatives in the Democratic primary to be held in August 2012. District 89 is solely

within Knox County. Her petition fully qualifies her as a candidate provided she meets the

requirement of Article II, Section 9 of the Tennessee Constitution, that she be “a resident in

the county [s]he represents one year, immediately preceding the election.” The Knox County

Administrator of Elections, Cliff Rodgers (“the Administrator”), telephoned the Candidate

and informed her that she might not be qualified to be a candidate and that she might not be

entitled to vote in Knox County because she may, in fact, reside in Anderson County. The

Candidate informed the Administrator that his predecessor had determined that she lives in

Knox County. The Administrator requested an opinion from Mark Goins, the Tennessee

Coordinator of Elections (“the Coordinator”), as to whether the Candidate met the residence

requirement for qualification. Based upon information furnished to him by the parties, the

Coordinator “indicated that Ms. Breeding was a resident of Anderson County” but he advised

the Administrator to file this declaratory judgment action. The parties stipulated numerous

facts and the authenticity and admissibility1 of several exhibits. In addition, they stipulated,

in effect, that, were the Candidate to be called to testify in person, her testimony would be

as recited in the parties’ stipulation. There was no oral testimony. The trial court held that

the Candidate is a resident of Anderson County. The Candidate appeals. We expedited the

appeal at the Candidate’s request.

II.

The Candidate lives in a house she and her husband, John Payne, built sometime after

February 2, 2007.2 It is located on lot 11 in the Elizabeth Downs subdivision. The house is

situated to the rear of the lot with the driveway running from the house to a cul-de-sac onto

which the lot fronts. The cul-de-sac and the street to which it connects are situated in Knox

County. Her mail box is in Knox County at or near the cul-de-sac. Her mailing address is

3805 Elizabeth Downs, Knoxville, Tennessee, 37931.

The 2007 deed3 to Ms. Breeding and her husband states that lot 11 is located partially

in Anderson County and partially in Knox County. The deed incorporates a “final plat” of

the subdivision. The plat shows the Knox Count/Anderson County line traversing the front

of the Candidate’s lot, near the cul-de-sac. As previously noted, the house is situated to the

rear of the lot. The plat contains the following statement in the surveyor’s notes:

1

The parties’ stipulation “reserve[d] the right to object to any stipulated exhibit on the grounds of

relevance or any other objection under the Tennessee Rules of Evidence.” None of the exhibits were

objected to at the trial court level, and we have considered all of them.

2

They purchased their lot on or about February 2, 2007.

3

The deed was recorded in both Anderson County and Knox County.

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The Surveyor has made no attempt to locate the Anderson

County - Knox County Boundary Line and the line shown

hereon was provided by others and is approximate only.

If the county line as drawn on the plat is correct, or approximately so, the Candidate’s house

is located in Anderson County. A licensed surveyor reviewed the plat for the Candidate and

addressed the above disclaimer. He explained that it is customary for surveyors to

approximate the location of county lines; he stated that it would cost tens of thousands of

dollars to recreate the lines according to acceptable surveying standards. The surveyor

offered opinions in letter form that the Candidate’s house “may” sit on the county line and

that it is “possible” the house is in Knox County.

The Candidate’s real property taxes are paid by the mortgage holder to Anderson

County. The taxes are based upon an assessed value of $55,400 for the land and $242,900

for the improvements. After receiving the telephone call from the Administrator, the

Candidate attempted to have Knox County assess and collect real property taxes. Thus far,

her efforts in this regard have been unsuccessful.

The record includes information about the location of the county line from several

maps. One is the Knox County Geographic Information System (“the KGIS map”). It shows

the Knox County/Anderson County line running across the front of the lot. It places the

house entirely within Anderson County. The county line, as reflected on the KGIS map, is

based upon 1985 property map information. The KGIS map is accessible through a website.

The website advises users that “[t]he geographic positioning of the Knox County boundary

does not meet formal map accuracy standards.” The meaning of the language “formal map

accuracy standards” is not addressed in the record before us. The KGIS map also carries a

disclaimer of any warranty of accuracy and states that “[a]ny user of this map product accepts

the same AS IS, WITH ALL FAULTS, and assumes all responsibility for the use thereof . . .”

(Capitalization in original.)

The state tax assessor map, which is included in the same exhibit as the KGIS map,

also depicts the county line running across the front of the Candidate’s yard, with the house

entirely within Anderson County. The record contains no information as to the accuracy of

the state tax assessor map or the method by which it was prepared. The trial court conducted

its own research as to the weight to be given to the state tax assessor map, and found, among

other things, that: (1) the state board of equalization has the jurisdiction to determine the

location of county boundaries, see Tenn. Code Ann. § 5-2-114 (2011); (2) the board’s

determination is final and binding subject to judicial review and reversal, see Tenn. Code

Ann. § 5-2-117 (2011); (3) where a parcel of property is located in two counties, the board

of equalization must determine the proper location of the boundary and the amount of

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property that is in each county, see Tenn. Code Ann. § 5-2-115 (2011); and (4) the state

property assessor must prepare and file maps with the register of deeds of the several

counties that reflect the county boundary lines as determined by the board of equalization.

See Tenn. Code Ann. § 67-5-806 (2011).

The State of Tennessee GIS Services map, which is accessible through the

Tennessee.gov website, shows the county line crossing the front yard between the cul-de-sac

and the house. According to the State GIS map, the house is situated entirely in Anderson

County. Although there is no evidence in the record as to the accuracy of the map and how

it was prepared, we take judicial notice that, as stated online in the “FAQs,” or answers to

frequently asked questions, the map was prepared to “support the business functions of State

and local government.” See Tenn. R. Evid. 201(b)(c)(may take judicial notice of facts not

subject to reasonable dispute and capable of accurate and ready determination).

The Candidate produced two maps from online resources. One is a “Bing” 4 map and

the other is a National Geographic map which is nothing more than a reproduction of the

Bing map.5 There is no information in the record as to the accuracy of these maps or how

they are generated. Both maps are oriented so that the user is looking at the property at an

angle that makes the maps hard to read and understand. Both maps appear to show a faint,

broken line crossing the property at or near the front of the house. The Candidate argues that

the broken line represents the county line.

There is abundant evidence in the record of the Candidate’s many connections to

Knox County and her lack of connections to Anderson County, other than the possible

location of her house in, and the payment of property taxes to, that county. She works in

Knox County; her mail is delivered to a mailbox in Knox County; the vehicles of her and her

husband are registered in Knox County; and she has, until now, voted in Knox County. She

served on a jury in Knox County in April 2012. She has volunteered in several community

and charitable events associated with Knox County. The trial court did not discount the

Candidate’s intention to be a Knox County resident or her belief that she is a Knox County

resident. However, the trial court made a finding of fact, based on the evidence presented

by stipulation, that she “is a resident of Anderson County.”

4

“Bing” is a computer search engine.

5

The Candidate has asked us to consider another “screen” shot of the maps by judicial notice. The

motion was not opposed. Accordingly, it is granted.

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III.

Although the Candidate raises numerous issues, we find that the factual question of

whether the Candidate resides in Knox County to be the dispositive issue in this expedited

appeal. Accordingly, that issue will be our focus.

IV.

A trial court’s factual determinations made without a jury are reviewed

de novo upon the record accompanied by a presumption of

correctness unless the preponderance of the evidence is

otherwise. Tenn. R. App. P. 13(d). Questions of law, including

issues of statutory interpretation, are reviewed de novo with no

presumption of correctness.

In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010)(case citations omitted). The Candidate

contends that, since there was no oral testimony, the presumption of correctness normally

accorded to factual findings by Tenn. R. App. P. 13(d) does not apply. The Candidate is

mistaken; the lack of oral testimony affects only the degree of deference that we show to the

trial court’s evaluation of testimony as we explained in Rivers v. Northwest Tennessee

Human Resource Agency, No. W2009-01454-COA-R3-CV, 2010 WL 1539838 at *4-5

(Tenn. Ct. App. W.S., filed April 19, 2010):

Since this case was tried by the trial court sitting without a jury,

we review the trial court’s findings of fact de novo affording

[sic]6 a presumption of correctness unless the evidence

preponderates to the contrary. . . .

We note the level of deference accorded to the trial court’s

determinations regarding the credibility of the witnesses:

When the resolution of the issues in a case

depends upon the truthfulness of witnesses, the

fact-finder, who has the opportunity to observe

the witnesses in their manner and demeanor while

testifying, is in a far better position than this

Court to decide those issues. However, when the

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We believe the proper word is “according.”

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issues involve expert medical testimony that is

contained in the record by deposition,

determination of the weight and credibility of the

evidence necessarily must be drawn from the

contents of the depositions, and the reviewing

court may draw its own conclusions with regard

to those issues.

Thus, we accord great deference to the trial court’s assessment

of the testimony of witnesses who testified in open court. As to

the deposition testimony of the experts in this case, the appellate

court may draw its own conclusions on the witnesses’

credibility.

Id. (citations and internal quotation marks and brackets omitted). Thus, the presumption of

correctness is still attached to the trial court’s findings of fact; but our review – looking for

the preponderance of the evidence – is not tempered by credibility determinations with

respect to oral testimony since there was no such testimony in this case.

V.

Before we reach what we have determined to be the dispositive issue, we find it

necessary to comment on a couple of the Candidate’s arguments. The Candidate contends

that the trial court erred in placing the burden of proof on her. We agree, but we do not find

that this argument changes the result in this case. In Jones v. United Propane Gas, Inc., No

E2009-00364-COA-R3-CV, 2009 WL 5083476 at * 12-13 (Tenn. Ct. App. E.S., filed Dec.

28, 2009) we held that the plaintiff in a declaratory judgment action has the burden of

proving what he, she or it asks to be declared. We relied upon and quoted at length from the

Supreme Court case of Blake v. Plus Mark, Inc., 952 S.W.2d 413 (Tenn. 1997) for the

proposition that the burden of proof does not change just because the plaintiff is attempting

to prove a negative - in this case that the Candidate does not reside in Knox County.

However, in Jones, we ultimately affirmed the trial court because we found that the evidence

did not preponderate against the trial court’s findings. Id. at 13. We must take the same

approach in the present case.

We also note the Candidate’s contention that the trial court followed a bright-line rule

of equating residence with the “footprint” of the house. We are not aware that the court used

the term “footprint” in its opinion and order. Since the trial court ultimately treated the

location of the Candidate’s residence as a question of fact, we do not agree that the trial court

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established a bright-line rule and we do not intend our holding to be an endorsement of any

bright-line rule.

We now consider whether the evidence preponderates against the trial court’s factual

determination that the Candidate is a resident of Anderson County and not of Knox County.

The issue of where a person resides is a question of fact. Id. at *2 (citing Huskey v. Crisp,

865 S.W.2d 451, 454 (Tenn. 1993)). The deed by which the Candidate and her husband

acquired the property incorporates a plat which places the house in Anderson County. Three

governmental maps place the house in Anderson County. We are aware that the KGIS map

is accompanied by a disclaimer and that it states “[t]he geographic positioning of the Knox

County boundary does not meet formal map accuracy standards.” However, there is no such

disclaimer in the state GIS map or the state tax assessor map, both of which are consistent

with the KGIS map in that they reflect the Candidate’s house is situated completely inside

Anderson County and outside Knox County. The State GIS map is – at least according to the

stated purpose for making the map available through the state website – intended to support

the business of local government which would include the election commission. The tax

assessor’s map is consistent with an obligation to pay real property taxes to Anderson

County. The Candidate paid real property taxes solely to Anderson County until the

Administrator called her and questioned her qualifications. Only then did she seek to pay

property taxes to Knox County. These facts show by a preponderance of the evidence (1)

that the Candidate’s house is situated entirely within Anderson County and (2) that she is a

“resident” of Anderson County and not a resident of Knox County.

The Candidate wants to challenge the maps, but she has not produced any credible

evidence that the line is other than as reflected on the plat and the government maps. The

surveyor’s statement as to what “may” be or what is “possible” is no evidence at all. The

Bing map, at best, reflects that the line may cross the front porch. At worst, the angle of view

of the faint broken line merely creates an illusion that the line crosses the front of the house.

Moreover, there is no evidence in the record to allow any assessment of the accuracy of the

Bing map.

We hold that the evidence does not preponderate against the trial court’s ultimate

finding that the Candidate is a resident of Anderson County and not a resident of Knox

County. The fact that the trial court erroneously assigned the burden of proof to the

Candidate does not change the result. It does not change the fact that the evidence does not

preponderate against the trial court’s findings.

We have considered other arguments advanced by the Candidate, including that the

“curtilage” places her in Knox County. The curtilage argument comes from annexation cases

where it is clear that a person should be able to challenge annexation of land that borders his

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or her home. It is not applicable to this case. We have likewise considered the brief filed by

the amicus curiae and find nothing there that persuades us there is reversible error in the

judgment entered by the trial court.

VI.

In summary, when the evidence before us is viewed in the light of the state

constitutional language – “resident in the county” – and the statutory test for residence found

at Tenn. Code Ann. § 2-2-122 (Supp. 2011), we conclude that the evidence does not

preponderate against the trial court’s ultimate determination that the Candidate is not a

resident of Knox County.

VII.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,

Shelley Breeding. This matter is remanded to the trial court, pursuant to applicable law, for

collection of costs assessed by the trial court.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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