                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   April 14, 2011 Session

      KENNETH W. TAYLOR v. LAWRENCE COUNTY, TENNESSEE
                 ELECTION COMMISSION ET AL.

                Appeal from the Chancery Court for Lawrence County
                  No. 1500610     Robert Lee Holloway, Jr. , Judge


                  No. M2010-02406-COA-R3-CV - Filed May 23, 2011


Unsuccessful sheriff candidate sued to void the August 5, 2010 Lawrence County sheriff’s
election based on the ineligibility of one of the five candidates. The trial court found the
challenged candidate ineligible but declined to void the election. On appeal, we find the
plaintiff guilty of gross laches in waiting to file suit to the prejudice of the defendants.
Therefore, we reverse the trial court’s order.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

John Russell Parkes and Charles McIver Molder, Columbia, Tennessee, for the appellant,
Kenneth W. Taylor.

John Christopher Williams, Lawrenceburg, Tennessee, for the appellees, Lawrence County,
Tennessee, Election Commission and June Davis.

Walter Charles Doerflinger, Lawrenceburg, Tennessee, for the appellee, Jimmy Brown.

                                          OPINION

       This matter arises from the Lawrence County sheriff’s election of 2010. The General
Assembly determines the qualifications for sheriffs. T ENN. C ONST., Art. VII, Sec. 1. Among
other things, in order to qualify for election to the office of sheriff, an individual must “[b]e
a qualified voter of the county.” Tenn. Code Ann. § 8-8-102(a)(3).
      On January 20, 2010, Michael Risner applied to be a registered voter of Lawrence
County. Tenn. Code Ann. § 2-2-120(a) states:

        The administrator of elections shall determine, from the registrant’s answers
        to the questions on the permanent registration record and other questions, if
        necessary, whether the registrant is entitled to register. If the administrator
        determines that the registrant is entitled to register, the administrator shall
        declare the registrant a registered voter.

In response to questions from Lawrence County Administrator of Elections June Davis,
Risner produced a Giles County driver’s license1 and a bill that had been mailed to him at his
Lawrence County address. Risner signed the voter registration application and swore that
the Lawrence County address on the application was his legal residence and that he intended
to remain there. Davis took the additional step of calling the post office and verifying that
Risner received mail in Lawrence County. Davis allowed Risner to register to vote and to
pick up a petition to run for sheriff of Lawrence County. He soon filed his nominating
petition.

        Not long after Risner filed his nominating petition, then-sheriff Kenneth Taylor
learned of Risner’s candidacy for sheriff. Taylor testified that he mentioned his concerns
about Risner’s residency to Davis twice2 and to the District Attorney once. Taylor said that
he contacted the Peace Officer Standards and Training (“POST”) Commission and asked that
it verify whether Risner was “qualified to run for sheriff.”3 The POST Commission told
Taylor to “take it up” with the Lawrence County Election Commission. Taylor never made
a formal complaint to the administrator of elections or the Lawrence County Election
Commission or even asked how to do so. Taylor testified that he did not have time during
the campaign to figure out how to file a formal complaint against Risner, yet he had time to
drive by the Lawrence County address where Risner claimed to live two or three times a
week to look for signs of residential activity. Taylor further testified that he raised the issue
of Risner’s residency during the campaign.



        1
            The driver’s license is produced for identification purposes.
        2
        Davis testified that she only remembered Taylor mentioning Risner’s residency once and that it was
more of a remark.
        3
         Candidates for sheriff are required to file an affidavit and a certified confirmation of psychological
evaluation form with the POST Commission. Tenn. Code Ann. § 8-8-102(b)(1)(A) & (B). The affidavit must
affirm that the candidate meets the requirements for serving as sheriff. Tenn. Code Ann. § 8-8-102(b)(1)(A).
Those requirements include being “a qualified voter of the county.” Tenn. Code Ann. § 8-8-102(a)(3).

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       During the campaign, Davis received some phone calls asking about Risner’s
residency. She stated that:

        I was referring them to the DA, that I was satisfied with his registration and his
        residency. But people were calling me, and I just referred them to the DA.
        And, yes, I spoke with the election commission about it, my election
        commission.4 And we discussed it and I just referred them to the DA because
        I did not have concerns.

        When the election for sheriff was held, the results were as follows:

                 Jimmy Brown              3516 votes
                 Kenneth W. Taylor        3398 votes
                 Michael Risner           2497 votes
                 Lee England               332 votes
                 Pete Schrader             175 votes
                 Total                    9918 votes

       On August 20, 2010, Taylor filed an election contest pursuant to Tenn. Code Ann. §
2-17-101 et seq., alleging that Risner was not a qualified voter of Lawrence County and,
therefore, was not a proper candidate and should not have appeared on the ballot. He
subsequently filed an amended complaint and sought a temporary restraining order to prevent
Brown from taking the oath of office for sheriff of Lawrence County. The request for the
temporary restraining order was denied. A bench trial was held on October 8, 2010. On
November 15, 2010, the chancellor filed findings of fact and conclusions of law that found
Risner was not a qualifed voter of Lawrence County and, therefore, not a qualified candidate
for sheriff. However, the chancellor did not find sufficient proof of fraud or illegality to void
the election. Taylor appealed.

                                         S TANDARD OF R EVIEW

       This court reviews the findings of fact of the trial court de novo with a presumption
of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). The trial

        4
          Although not raised by any party, we note that Tenn. Code Ann. § 2-2-120(c)(1) states that, “At least
quarterly at a regularly scheduled county election commission meeting, every new voter registration form
which has been filed since the last regularly scheduled meeting of the county election commission shall be
inspected by a county election commission member of the majority party and the minority party.” Thus,
Risner’s registration was presumably examined by members of the election commission in the late winter
or early spring of 2010. The record does not reflect any concern about the registration on the part of the
Lawrence County Election Commission or any action taken by that body regarding the registration.

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court's conclusions of law are reviewed de novo without a presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                                                 A NALYSIS

        The defendants maintain that the doctrine of laches prevents Taylor from pursuing this
litigation. Laches “is an equitable defense which requires the finder of fact to determine
whether it would be inequitable or unjust to enforce the claimant’s rights.” Gleason v.
Gleason, 164 S.W.3d 588, 592 (Tenn. Ct. App. 2004). Laches is established when there has
been “neglect or omission to assert a right which, taken in conjunction with the lapse of time,
causes prejudice to the adverse party.” First Am. Bank of Nashville, N.A. v. Woods, 734
S.W.2d 622, 632 (Tenn. Ct. App. 1987). “Laches is actually based on equitable estoppel and
is dependent upon the facts and the equities of each individual situation.” Clark v. Am. Nat'l
Bank & Trust Co. of Chattanooga, 531 S.W.2d 563, 572 (Tenn. Ct. App. 1974). The
doctrine of laches may apply even though a statute of limitations has not run if the plaintiff
is guilty of gross laches. Gleason, 164 S.W.3d at 592; Dennis Joslin Co., LLC v. Johnson,
138 S.W.3d 197, 201 (Tenn. Ct. App. 2003). Besides a lengthy and unreasonable delay,
gross laches requires serious prejudice to the defendant, such as loss of evidence or
significant financial cost. Finova Capital Corp. v. Regel, 195 S.W.3d 656, 660 (Tenn. Ct.
App. 2005); Dennis Joslin Co.,138 S.W.3d at 201.

        Taylor knew of Risner’s candidacy not long after Risner filed his nominating petition
in late January, so Taylor had concerns about Risner’s residency for approximately six
months before the August 2010 election. He filed no formal complaint about Risner’s
residency with the Lawrence County administrator of elections, the Lawrence County
Election Commission, the District Attorney, the POST Commission or the Secretary of
State’s Division of Elections. He did not seek the advice of an attorney. Instead, he made
Risner’s residency a campaign issue.

       All the while, the candidates were spending money on the election, citizens were
donating money and time to the candidates of their choice, presumably including Risner, and
Lawrence County was preparing for and, eventually, holding the election.5 Davis testified
that holding a new election would require Lawrence County to spend over $30,000. That
amount does not include the money the candidates would have to raise and spend.

       Based on Taylor’s months-long delay in filing suit and the resulting prejudice to the
county, the current sheriff, and others, we find that Taylor is guilty of gross laches and should
not be allowed to pursue this litigation.

       5
           Of course, elections for other county offices were held as well.

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       The trial court’s order is reversed since it was not necessary to reach the issue of
Risner’s eligibility. Costs of appeal are assessed against the appellant, for which execution
may issue if necessary.


                                                      ______________________________
                                                           ANDY D. BENNETT, JUDGE




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