                          IN THE COURT OF APPEALS OF TENNESSEE
                                        AT JACKSON
                          ________________________________________

        THOMAS H. FOWLER,        FILED                     Shelby Chancery No. 98-0737-1
                                                           The Hon. Floyd Peete, Jr., Chancellor
              Plaintiff-Appellant,
                                December 27, 1999
                                                           C.A. No. W1998-00567-COA-R3-CV
       Vs.                                                 AFFIRMED AND REMANDED
                            Cecil Crowson, Jr.
                          Appellate Court Clerk
       MAXINE MIDDLECOFF, BILL YANCY,                      James D. Causey; Jean E. Markowitz
       ERNESTINE BROWN, ALICE                              of Memphis, For Appellant
       MCLANAHAN, MIKE THOMAS,
       Commissioners of Elections of                       William E. Frulla; David A. McLaughlin
       Fayette County, Tennessee,                          of Memphis, For Appellee, Wilson
       LANITA MCGRAW, Register-at-Large,
       and MYLES WILSON,                      Leo Bearman, Jr., Lea H. Speed;
                                              Baker, Donelson, Bearman & Caldwell
             Defendants-Appellees.            of Memphis, For Appellees,
                                              Middlecoff, Yancy, Brown ,
                                              McClanahan, Thomas, and McGraw
       _____________________________________________________________________

                              MEMORANDUM OPINION1
       ____________________________________________________________________

       CRAWFORD, J.

              This appeal involves an election contest. Plaintiff-appellant, Thomas H. Fowler,

       appeals the order of the trial court confirming the election of defendant-appellee, Myles

       Wilson to the Fayette County Commission.

              Both parties were elected Fayette County Commissioners in 1990 and 1994. In

       the 1998 election, Fowler and Wilson were opponents, and Wilson won the election.

              On August 14, 1998, Fowler filed suit in Fayette County, Tennessee and in

       Shelby County, Tennessee contesting Wilson’s election and requesting an injunction

       against Defendants, Maxine Middlecoff, Bill Yancy, Ernestine Brown, Alice

       McClanahan, Mike Thomas, Commissioners of Elections of Fayette County, and Lanita

       McCraw, Register-at-Large. Fowler alleged that Wilson was not a resident of Fayette

       County and therefore not eligible for election to the Fayette County Commission.

               The parties subsequently stipulated that an injunction was not necessary to


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          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated "MEMORANDUM
OPINION," shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.
prevent Wilson from taking the oath of office and agreed that the trial would be held in

Shelby County. After a non-jury trial, the trial court found that Wilson was a resident

of Fayette County and confirmed his election to the Fayette County Commission.

       The issues for our review, as stated in the Fowler’s brief, are as follows:

              1. Whether the trial court erred in not applying the missing
              witness rule due to the failure of the Defendant’s wife and
              children to appear and testify in his behalf.

              2. Whether the evidence presented rebutted the
              presumption created by T.C.A. § 2-2-122(5) that a person’s
              residence is where his spouse and children have their
              habitation.

              3. Whether the preponderance of the evidence supports
              the trial court’s findings that the Defendant W ilson was a
              resident of Fayette County.

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

de novo upon the record with a presumption of correctness of the findings of fact by

the trial court. Unless the evidence preponderates against the findings, we must affirm,

absent error of law. T.R.A.P. 13(d).

       We will address Fowler’s second and third issues together. Wilson agrees that

his wife is a resident of Shelby County, but contends that he is a resident of Fayette

County. Briefly, the evidence established the following: Wilson was born and raised

in Fayette County, Tennessee. After high school, Wilson attended college at Lane

College in Jackson, Tennessee. Upon completion of college in 1967, Wilson returned

to Fayette County where he registered to vote and was employed as a teacher and

coach at the local school. In approximately 1969, Wilson was fired from his job after

a Memphis federal judge ordered all schools to be desegregated.                  Wilson

subsequently moved to Memphis, began selling encyclopedias, and registered to vote

in Shelby County. In January of the following year, Wilson and several other teachers

won a racial discrimination lawsuit and were returned to their teaching positions.

Wilson returned to Fayette County, began teaching again, and built the house on

Neal

Road. In December of 1970, Wilson married Arlene Wilson. Ms. Wilson was a school

teacher for the City of Memphis. Wilson testified that Ms. Wilson had an apartment in

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Memphis and that he maintained his residence in Fayette County. After the birth of the

Wilson’s second child, they bought        a home on Kirby Meadows in Memphis,

Tennessee. Wilson registered to vote in Fayette County again in 1987. In 1990, he

was elected to his first term as Commissioner of Fayette County. Wilson has

consistently voted in Fayette County since 1987, his driver’s license lists the Fayette

County address, he maintains his bank account at the Fayette County bank, he pays

property taxes in Fayette County, and he lists his Fayette County address on his federal

income tax returns. Further, Wilson is the principal of the only high school in Fayette

County, and he continues to be active in various community activities. Wilson has

exhibited a definite intent to make Fayette County his home and an intent to return to

Fayette County, even when he occasionally and temporarily left Fayette county.

       In order to determine Wilson’s residence, we look to T.C.A. § 2-2-122:

              2-2-122. Principles for determination of residence - Factors
              involved. - (a) The determination of whether a person is a
              resident or where the person resides or has residence for
              purposes of the election code shall be made in the light of
              the following principles:
              (1) The residence of a person is that place in which the
              person’s habitation is fixed, and to which, whenever the
              person is absent, the person has a definite intention to
              return;
              (2) A change of residence is generally made only by the act
              of removal joined with the intent to remain in another place.
              There can be only one (1) residence;
              (3) A person does not become a resident of a place solely
              by intending to make it the person’s residence. There must
              be appropriate action consistent with the intention;
              (4) A person does not lose residence if, with the definite
              intention of returning, the person leaves home and goes to
              another country, state or place within this state for
              temporary purposes, even if of years duration;
              (5) The place where a married person’s spouse and family
              have their habitation is presumed to be the person’s place
              of residence, but a married person who takes up or
              continues abode with the intention of remaining at a place
              other than where the person’s family resides is a resident
              where the person abides;
               ...
              (b)(1) The following factors, among other relevant matters,
              may be considered in the determination of where a person
              is a resident:
              (A) The person’s possession, acquisition or surrender of
              inhabitable property;
              (B) Location of the person’s occupation;
              (C) Place of licensing or registration of the person’s
              personal property;

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              (D) Place of payment of taxes which are governed by
              residence;
              (E) Purpose of the person’s presence in a particular place;
              and
              (F) Place of the person’s licensing for activities such as
              driving;

       The fact that Wilson’s wife is a resident of Shelby county does not automatically

make Defendant a resident of such. W ilson admits that he makes visits to his wife’s

home on Kirby Meadow Road. However, this is not enough to refute his proof that he

is a resident of Fayette County. Residency is determined by “intent” and “action” and

one standing alone is not enough to establish residency. We believe that Wilson has

“taken up residence” with the intention of remaining in Fayette County even though part

of his family resides in Memphis. This appears to be the very situation the statute

attempts to address. Based on the record, we cannot say that the trial court erred in

finding that Wilson was a resident of 130 Neal Road in Fayette County

       With regard to Fowler’s remaining issue, he argues that Wilson should have

called his wife and children to testify as to his residence, and the fact that he did not,

creates the inference that his residence is in Shelby County. We find this argument to

be without merit. The general rule is that failure to call a witness who has (1) peculiar

knowledge of the facts, and (2) would naturally favor the party’s contention raises an

inference that the testimony would have been unfavorable to the party who failed to call

the witness. N. Cohen, S. Sheppeard & D. Paine, Tennessee Law of Evidence, Sec.

401.9 (3d ed. 1995). However, in Tennessee the missing witness rule has been

described as a permissive inference rather than a presumption.               Roberts v.

Traughber, 844 S.W.2d 192 (Tenn. App. 1991). Therefore, the chancellor was

permitted but not required to draw this inference. In any event, the extent of the effect

of the inference is to impair the weight of the evidence of the party affected and to

enhance the weight of his adversary’s evidence. See McReynolds v. Cherokee Ins.

Co., 815 S.W.2d 208, 210 (Tenn. Ct. App. 1991).

       Accordingly, the evidence does not preponderate against the factual finding of

the chancellor, and the order of the trial court is affirmed. The case is remanded to the



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trial court for such other proceedings as are necessary. Costs of appeal are assessed

to appellant, Thomas H. Fowler.

                                                      _________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE,W.S.

CONCUR:

___________________________________
DAVID R. FARMER, JUDGE

___________________________________
HOLLY KIRBY LILLARD, JUDGE




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