                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

                                             -3-
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

       6
           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



                                               -6-
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

                                               -7-
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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