1 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 ac tions 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 When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED

December 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON

________________________________________ THOMAS H. F

OWLER, Shelby Chancery No. 98-0737-1 The Hon. Floyd Peete, Jr., Chancellor Plaintiff-Appellant, C.A. No. W1998-00567-COA-R3-CV Vs. AFFIRMED AND REM ANDED MAXINE MIDDLECOFF, BILL YANCY, James D. Causey; Jean E. Markowitz ERNESTINE BROWN, ALICE of Memphis, For Appellant MCLANA

HAN, MIKE THOMAS, Commissioners

of Elections of William E. Frulla; David A. McLaughlin Fayette Coun

ty, Tennessee, of Memphis, For Appellee, Wilson LANITA MCGRAW, Reg ister-at-Large, and MYLES WILSON, Leo Bearman, Jr., Lea H. Speed; B aker, Don elson, Bearman & Caldwell Defendants-Appellees. of Memphis, Fo r Appelle es , Mid dlecoff, Yanc y, Brown , McClanahan, Thomas, and McGraw

__ ______________________________________________ ____________________ _ MEMORANDUM OPINION 1

_______________________________________________________________ _____ CRAWFORD, J. This appeal involves

an election contest. Plaintiff-appellant, Th omas H. Fowler, appeals the order of the trial court c onfirming the election of defendant-appellee, Myles Wilson to the Fayette County Commissi on. Both parties were elected Fayette County

Commissioners in 1990 and 1994. In the 1998 election, Fowler and Wilson were opponents, and Wilson won the electi on. On August 14, 1998, Fowler file d s uit in Fayette County, Tennessee and in Shelby County, Tennessee c ontesting Wilson’s election and requestingan injunction against Defendants, Maxine Middlecoff, Bill Yancy, Er nesti ne Brown, Alice McClanahan, Mike Thomas, Commissioners of Elections of F ayette County, and

Lanita McCraw, Register-at-Larg e. Fowler alleged that Wilson was not a resident of Fayette County and therefore not elig ible for election to the Fay ette County Commission. The parties subsequently stipulated that an injunction was not neces sary to2

prevent Wilson from taking the oath of office and agreed that the trial would be held in Shelby Coun ty. After a non-jury trial , the trial court found that Wilson was a resident of Fayette County and confirmed his election to the Fayet te County Commission. The issues for our review, as stated in the Fowler’s brief, are as follows: 1. Whether the trial court erredin notapplying the missing witness rule due to the failure of the Defendant’s wife and childr en to appear and t

estify in his behalf. 2. Whet herthe evidence presented rebut ted the presumption created by T.C.A. § 2-2-122(5) that a person’s residence is where his spo use and children have their habitation. 3. Whether th e prepo nderance of the evidence supports the trial court’s findings that the Defendant W ilson was a resident of Fayett e County. Since this case was

tried by the court sitting without a jury, we review the case de novo upon the record with a pr esumption ofcorrectness of the findings of fact by the trial court. Unless the evidence preponderates against the findings , we must affi rm, absent error of law. T.R.A.P. 13(d). We will address Fow

ler’s second and third issues together. Wilson agrees that his wife is a resident of Shelby County, but

contends t hat he is a resident of Fayet te County. Briefly, the

evidence established the following: Wilson was born and raised in Fayett e Cou nty, Tennessee. After high s chool, Wilson attended college at Lane College in Jackson, Ten nessee. Upon co mpletion of college in 1967, Wilson returned to Fayette County w

here he registered to v ote and was employed as a teacher and coach at the local school. In appr oximately 1969, Wilson was fired from his job after

a Me mphis federal judge ordered al l schools to be desegreg ated. Wilson subsequently moved to Memphis, began selling ency clopedias, and register

ed to vote in Shelby County. In January of the following year, Wilson and several other teache rs

won a racial discrimination lawsuit and were returned to their teachin g positi ons. Wilson returned to Fayette County, began teaching again, and buil t the house on Neal Road. In December of 1970, Wilson married Arlene Wilson. Ms. Wilson wasa school teacher for the City of Memphis. Wilson testified that Ms. Wilson had an apartment in3

Memphis and that he maintained his residence in Fayette County. After th e birth of the Wilso n’s second child, they boug ht a home on Kirby Meadow s in M emphis , Tennessee. Wilson registered to vote in Fay ette County again in 1987.In 1990, he

was elected to his first term as Commissioner of Fayette Cou nty. Wilson has consistently voted in Fayette Count y since 1987, his driv

er’s license lists the Fayette County ad dress, he maintai ns his ban k account at the Faye tte Coun ty bank, h e pays property taxes in Fayette County, and he lists his Fayette County address on his federal income tax returns. Fur ther, Wilson is the principal of the only high school i n Fayette County, and he co ntinues to be acti ve in va rious c ommunity activities.Wilson has exhibited a definite intent to make Fayet te County his home and an intent to return to Fayette Co unty, even when he occ asionall y and temp orarily lef t Fayette county. In order to determine Wilson’s residenc e, we look to T.C.A. § 2-2- 122: 2-2-122. Principles for determination of residence - Factors involved. - (a) The determinationof whether a person is a resident or where the person resides or has residence for purposes of the election codeshall be made in the light of the following principles: (1) The residence of a person is that place in which the person’ s h abitation is fixed, and to w hich, whenever the person is absent, the person has a defini te 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) r esidence; (3) A person does not beco me a resident of a place solely byintending to make it the person’s residenc e. There must be appropriate action consis tent with the intention; (4) A person does not lose residenc e if, with the defini t e intention of returning, the person leaves home and goes to another country, state or plac e within this state for temporary purposes, ev en 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 ma rried person who takes up or continues abode with the intention of remaining at a place other than wh ere the person’s family r esides is a resident where the person abides;

. . . (b)(1) The following factors, among other relev ant matters, maybe considered in the determination of where a person is a resident: (A) The person’s possession, acquisi tion o r surrender of inhabit able prop erty; (B) Location of the person’s oc cupation; (C) Place of lice nsi ng or registration of the person’s persona l propert y;4 (D) Pl ace of payment of taxes which ar e governed by residence; (E) Purpose of the person’s presence in a par ticular place; and (F) Place of the person’s licens ing for activities such as driving; The fact that

Wilson’s w

ife is a resident

of Shelby county does not automatically make Defendant a resident of such. W ilson admits that he makes visits t o 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 determin ed by “intent” and “acti on” and

one standing alone is no t e no ug h to e stab li sh re si de nc y. We believe that Wilson has “taken up residence” with th e intention of remaining in Fayette County even though part of his family resides in Memphis. This appear s 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 N eal Road in Fayette County With regard to Fowler’s remainin g issue, h e argues th at Wi lson shou ld have called his wife and children to testify asto his residence, and the fact that he did not, creates the inference that his residenc e is in Shelby

County. We find this argument to be without

merit. The general rule is that fai lure to call a witnes s who has (1) peculiar knowledge of the facts, and (2) would natur ally favor the party

’s contention raises an inference that the testimony woul d have been unfavorable to the party

who failed to call the witness. N. Cohen, S. Sheppeard & D. Pai ne, Tennessee Law of Evidence , Sec. 401.9 (3d ed. 1995). However, in Tennessee the missing witness rule ha s been described as a permissive inferenc e rather than a presumption. Roberts v. Traughber

, 84 4 S .W. 2d 192 (Tenn. App. 1991). Therefore, the chancel lor was permitted but not required to draw this inference. In any event, the extent of the effect of the inference is to impair the w eight of the evidence of the part y affected an d t o enhance the weight

of his adversary’s evidence. See McReynolds v. Cherokee Ins. Co. , 815 S.W.2d 208, 210 (Tenn. Ct. App. 1991). Accordin gly, the evidence does not preponderate against the factual finding of the chancellor, and the order of the trial court is affirmed. The c ase is remanded to the5

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. FA

RMER, JUDGE

___________________________________ HOLLY KIRBY LI LLARD, JUDGE