IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 23, 2015 Session

BILL BIVENS v. RANDY DWAINE WHITE, ET AL.

Appeal from the Chancery Court for Monroe County

No. 18651 Hon. Don R. Ash, Senior Judge1

No. E2014-02251-COA-R3-CV-FILED-SEPTEMBER 16, 2015

This appeal involves an incumbent candidate‟s attempt to challenge the election for the 

office of Sheriff of Monroe County based upon the ineligibility of the other candidate. 

The incumbent candidate sought to claim the office or void the election. The trial court 

voided the election following a bench trial. This appeal followed. We affirm. 

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL 

SWINEY and THOMAS R. FRIERSON, II, JJ., joined.

Jimmy W. Bilbo and Brent McIntosh, Cleveland, Tennessee, for the appellant, Bill 

Bivens.

Charles C. Burks, Jr., Knoxville, Tennessee, for the appellee, Randy Dwaine White.

E. Jerome Melson, Knoxville, Tennessee, for the appellee, Monroe County Election 

Commission.

OPINION

I. BACKGROUND

This action arose out of the August 2014 election for the office of Sheriff of

Monroe County. Pursuant to Tennessee Code Annotated section 8-8-102(b), the 

Tennessee Peace Officers Standards and Training (“POST”) Commission certified the 

 

1

Sitting by Supreme Court designation. 
- 2 -

following two candidates to the Monroe County Election Commission (“MCEC”): 

Democrat Bill Bivens (“Bivens”) and Republican Randy Dwaine White (“White”). 

Tennessee Code Annotated section 8-8-102 contains a number of requirements 

one must possess in order to qualify as a candidate for the office of sheriff. Prior to the 

election, Bivens received information indicating that White lacked the statutory 

qualifications to run as a candidate for the office of sheriff. As relevant to this case, 

White is alleged to lack the three years of full-time experience as a certified law 

enforcement officer within the previous ten years pursuant to section 8-8-102(a)(9)(A).2

The record reflects that White filed his application for candidacy on November 22, 2013; 

therefore, the time period in question is from November 21, 2003, through November 21, 

2013. During that time, White served as a police officer for the Monroe County Sheriff‟s 

Department (“MCSD”) from November 22, 2003, through January 23, 2004, and then 

from September 15, 2004, through April 1, 2007. He later served as a police officer for 

the Vonore Police Department (“VPD”) from March 28, 2012, through sometime in 

November 2012. While working for the VPD, White also acted as the Director of 

Emergency Medical Services (“EMS”) for Monroe County. 

On April 3, 2014, Bivens shared the information he received regarding White‟s 

lack of full-time experience with members of the POST Commission, including 

Executive Director Brian Grisham. On June 18, 2014, the POST Commission launched a 

formal investigation to verify the validity of White‟s affidavit in support of his candidacy. 

Citing Tennessee Code Annotated section 38-8-101(2),3the POST Commission 

determined that White did not have the requisite full-time experience because his primary 

source of income while working for the VPD was derived from his employment as the 

Director of EMS. The POST Commission decertified White as a candidate for the 

election and advised the MCEC of the decertification by letter, dated July 22, 2014. 

The MCEC did not remove White from the ballot prior to the election, which was 

held as scheduled on August 7, 2014. Bivens received 4,869 votes, while White received 

5,572 votes. The MCEC certified the election results on August 18. The next day, 

 

2 A candidate for the office of sheriff must “have at least three (3) years of full-time experience as a 

POST [C]ommission certified law enforcement officer in the previous ten (10) years or at least three (3) 

years of full-time experience as a state or federal certified law enforcement officer with training 

equivalent to that required by the POST [C]ommission in the previous ten (10) years[.]”

3

„“Full-time police officer” means any person employed by any municipality or political subdivision of 

the state of Tennessee whose primary responsibility is the prevention and detection of crime, and the 

apprehension of offenders, and whose primary source of income is derived from employment as a police 

officer.”
- 3 -

Bivens brought this action pursuant to Tennessee Code Annotated section 2-17-101(b)4as 

an election contest seeking to be declared the winner. He alternatively sought to void the 

election. Bivens sued both White and the MCEC, and its commissioners. 

The defendants filed motions to dismiss. The MCEC argued that its role was 

limited to a ministerial capacity and that it was statutorily required to place qualified

candidates on the ballot, tabulate the votes cast, and certify the results. The MCEC 

claimed that it did not receive information concerning White‟s alleged disqualification 

until after early voting had commenced. The commissioners argued that they were not 

individually liable because they acted in their official capacity as commissioners. 

White argued that the action was barred by the doctrine of laches because Bivens 

“knowingly and intentionally waited through the time frame in which the [MCEC] can 

remove a name for cause . . . and did not file [suit] until after the election was 

completed.” He asserted that he was prejudiced by the delay in filing suit as evidenced 

by the expense and time spent on his campaign. He also alleged that he did not lack the 

statutorily prescribed qualifications as a candidate as evidenced by the fact that he had 

accumulated more than three years of full-time experience as a law enforcement officer

within ten years of filing his application on November 22, 2013. He asserted that the 

POST Commission erroneously relied upon the income qualification in Tennessee Code 

Annotated section 38-8-101(2). He provided that the General Assembly‟s prescribed 

qualifications for the election of sheriff do not contain an income qualification and that 

the POST Commission defines a full-time law enforcement officer as 

any person commissioned, sworn, appointed, and/or otherwise lawfully 

enjoined to uphold the laws of the State of Tennessee, and/or laws or 

ordinances of any municipality or political subdivision of the State of 

Tennessee; and who is employed by any municipality or political 

subdivision of the State of Tennessee or as a railroad police officer pursuant 

to § 65-6-133 and whose primary responsibility is (whether directly or as an 

experienced, certified, supervised/administrator of such persons), the 

prevention and detection of crime, and the apprehension of offenders, and 

specifically assigned duties and/or job descriptions reflect said primary 

responsibilities for the prevention and detection of crime[.]

He claimed that he was properly certified by the POST Commission as having the 

requisite full-time experience as a POST Commission certified law enforcement officer. 

 

4

The incumbent office holder and any candidate for the office may contest the outcome of an election for 

the office. Any campaign committee or individual which has charge of a campaign for the adoption or 

rejection of a question submitted to the people may contest the election on the question.
- 4 -

The trial court denied both motions to dismiss, and the case proceeded to a bench 

trial, at which several witnesses testified. Mark Allen Hall, a training supervisor for the 

Tennessee Law Enforcement Training Academy (“the Academy”), testified that he was 

assigned to investigate White‟s qualifications in June 2014. He submitted his findings in 

July 2014. He first determined that White had not falsified any documents in applying 

for the office of Sheriff of Monroe County because the required documentation simply 

requested affirmation as to whether White was “POST Certified” or had three years of 

“POST Certified or equivalent state or federal experience in the last ten (10) years.” He 

noted that White is a POST Commission certified law enforcement officer and had 

maintained that status since 1993. 

Mr. Hall testified that despite White‟s maintenance of his POST certification, 

White was not a statutorily qualified candidate for the office of Sheriff of Monroe 

County. Mr. Hall explained that White‟s employment with the VPD did not qualify as 

full-time experience pursuant to Tennessee Code Annotated section 38-8-101(2) because 

White‟s primary source of income during that time period was not derived from his 

position with the VPD. He admitted that the POST Commission classifies officers who 

work more than 20 hours per week as full-time and does not list an income qualification 

as a requirement for attaining full-time status. However, he noted that the POST 

Commission rules specifically refer to section 38-8-101 as an authoritative statute. 

Mr. Hall testified that White received nominal income from March 28, 2012, 

through September 2012, as an officer for the VPD. He found that White worked fulltime in April, May, and June of 2012. He could not find documentation concerning 

White‟s employment after June 2012. He acknowledged that he reviewed three affidavits 

from officers who worked with White during that time period but asserted that the 

affidavits were clearly blanket statements that had been prepared for the officers. He 

explained that White did not document a single call, write a single ticket, or provide a 

time sheet after June 2012. He recalled that Chief Randy Kirkland of the VPD admitted 

instructing White “to be seen and not heard” in preparation for the election. 

Bivens testified that he was elected to serve as Sheriff of Monroe County in 

August 2006 and that he held the office until August 2014. He recalled that White

worked for him as a patrol officer from September 2006 until April 2007. He related that 

he received a packet of information concerning White‟s qualifications in March 2014. 

The packet contained White‟s time sheets and a newspaper clipping of a story concerning 

a candidate who had been disqualified for the office of Sheriff of Loudon County. He 

provided the information to members of the POST Commission on April 3, 2014. He 

also periodically spoke with members of the POST Commission concerning White‟s 

qualifications. He admitted that he never contacted the MCEC but explained that he 

believed the POST Commission was responsible for determining whether a candidate 
- 5 -

was qualified to receive the requisite certification for inclusion on the ballot. He asserted 

that he also spoke with someone on the State Election Commission. He agreed that he 

did not participate in a lawsuit to remove White from the ballot or contact the Attorney 

General for the 10th Judicial District.

Chief Kirkland testified that White worked for him on a part-time basis from 2010 

until 2012. White later requested a full-time position in an effort to maintain POST

Commission certification and qualify as a candidate for the office of Sheriff of Monroe 

County. Upon receiving approval from the POST Commission, he hired White as a fulltime POST Commission certified officer on March 28, 2012. He provided White with 

nominal pay to maintain liability insurance coverage. 

Chief Kirkland testified that White never served as a primary officer for any shift 

and always maintained his employment as the Director of EMS while working for him. 

He explained that White agreed to work 30 to 32 hours per week and arrived for work

“around 4:30 in the afternoon” and worked “until 11 or 12” at night. He assigned White

a plain black cruiser, commonly referred to as the “black slip top.” He related that White

was responsible for slowing traffic on Highway 411 and assisting other officers. He 

recalled advising White not to write tickets but to assist other officers and “[b]e seen” by 

the community. He stated that White helped with road blocks, monitored traffic as 

requested, and wrote a total of seven tickets, six in April 2012 and one in June 2012. 

Chief Kirkland believed that White gained full-time experience as a result of his 

position with the VPD. He identified White‟s time sheets from March 2012 through 

September 2012, some of which were completed by him and some of which were 

completed by White. He believed that White was present for the hours reflected but 

acknowledged that he usually left the office before White arrived and could not 

independently verify White‟s presence. He stated that White never turned in another time 

sheet or reported his time after September 2012 and that White quit working at some 

point in December 2012. He provided that despite the lack of documentation, he believed

that White worked every Sunday after church from September 2012 through December 

2012. He explained that he often passed White, who was usually parked in the black 

slick top on Highway 411, on his way to visit his mother every Sunday. 

Courtney Dalton Viar testified that she is responsible for processing payroll and 

time sheets in the Town of Vonore as the city recorder. She identified White‟s payroll 

record and stated that he received his first regular payroll check on April 5, 2012, and that 

he was paid each pay period until he received his last regular payroll check on September 

21, 2012. He also received a supplement payment on February 22, 2013. 
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White testified that he worked full-time for the VPD from March 28, 2012, 

through sometime in November 2012. He received a salary of approximately $20 per 

week from the VPD, but his primary source of income was derived from his employment 

as the Director of EMS. White explained that he sought employment with the VPD to 

maintain his POST Commission certification and to qualify as a candidate for the office 

of Sheriff of Monroe County. He asserted that his time records were accurate but agreed 

that he only occasionally worked on Sunday, despite Chief Kirkland‟s testimony to the 

contrary. He agreed that he did not have time records documenting his employment 

beyond September 21, 2012. He explained that he was not concerned about documenting 

his time because he was working for experience, not payment. 

White agreed that he only wrote seven tickets throughout his tenure with the VPD 

and that he did not arrest anyone. He agreed that from April 2012 through June 2012, he 

was responsible for stopping vehicles, writing tickets, working accidents, providing 

assistance to other officers, and investigating methamphetamine laboratories. He 

acknowledged that he never had the opportunity to assist with an accident and that after 

June 2012, he essentially worked as a “back-up officer” and was not tasked with 

personally apprehending offenders or writing tickets. He asserted that he monitored

traffic, interacted with the community, and provided assistance to other officers. 

White testified that he would have simply taken a leave of absence from his 

position as Director of EMS while working for the VPD if he had known of the income 

qualification in Tennessee Code Annotated section 38-8-101(2). He agreed that he had 

knowledge of the POST Commission investigation but testified that he was surprised to 

learn that the POST Commission revoked his certification in July 2014, after early voting 

had already begun. He identified a press release, dated July 30, 2014, in which he 

advised the community that he would serve as Sheriff of Monroe County if he received 

the majority of the votes. 

James Riley Brown, an administrator for the MCEC, testified that early voting 

started on July 18, 2014. He received a letter, dated July 22, 2014, from the POST 

Commission that provided, in pertinent part, as follows: 

[White] is not a full-time police officer with the City of Vonore Police 

Department since his employment with the city did not comply with the 

requirements of T.C.A. § 38-8-101(2). Subsequently, [White] does not 

possess three (3) years of full-time experience as a certified law 

enforcement officer within the previous ten (10) years pursuant to T.C.A. § 

8-8-102(a)(9)(A). Based on the results of the investigation, on July 18, 

2014, the POST Commission rescinded [White‟s] certification to appear on 
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the ballot for the office of Sheriff of Monroe County. This action does not 

affect [White‟s] POST certification as a law enforcement officer. 

The POST Commission realizes that the withdrawal deadline to remove 

[White‟s] name from the ballot has passed and that voting is currently 

underway. The POST Commission has sent a copy of this letter to the 

Office of the Secretary of State, Division of Elections and to the District 

Attorney General for the 10th Judicial District for review and further 

investigation, if necessary. 

Mr. Brown testified that he was unable to remove White‟s name from the ballot because 

early voting had already commenced. He was unaware of any statute that would provide 

authority to remove someone from the ballot once voting had commenced. Accordingly, 

he prepared a press release for dissemination that provided, in pertinent part, as follows: 

After [r]eviewing the POST Commission Letter and discussions with the 

Coordinator of Elections Office in Nashville, it has been determined it is 

too late for [White‟s] name to be removed from the Ballot. The letter 

received from the POST Commission was received after the withdrawal 

deadline for a candidate‟s name to be removed from the ballot. Therefore, 

[White‟s] name will remain on the Ballot and as a Candidate for Sheriff of 

Monroe County and if elected to this office by the voters of Monroe 

County, can serve as Sheriff. 

A Candidate cannot be elected by default and a candidate who receives the 

majority vote will be the winner. If [White receives the majority vote, he] 

will be sworn in and take office on September 1. 

Following the presentation of the above evidence, the trial court granted the 

MCEC‟s renewed motion to dismiss but denied White‟s renewed motion to dismiss. The 

case continued with testimony from Larry Summey, who served as the Mayor of Vonore

in 2012. Mayor Summey confirmed that Chief Kirkland hired White as a full-time 

officer in 2012. He agreed to remit a nominal salary to secure liability insurance. 

Michael David Bledsoe, the administrative captain for the MCSD, confirmed that 

White was employed with the MCSD from November 2003 until January 23, 2004, and 

from September 15, 2004, until April 1, 2007. 

Michael Bruce Miller testified that he worked for the VPD as a patrol officer when 

White was hired in March 2012. His shift was from 2 p.m. to 2 a.m. each week. He 

claimed that White was present on a fairly consistent basis in the evening until 12 a.m. or 
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1 a.m. for approximately six or eight months until Fall 2012. He recalled interacting with 

White throughout his shift either by telephone or in person approximately every 30 

minutes. He claimed that White assisted him on a regular basis. He related that White

also patrolled Highway 411 and participated in one roadblock. He was aware that White

was not responsible for writing tickets or apprehending offenders. 

Sergeant Eric Watson of the VPD testified that he also worked with White. He 

related that he was assigned to the 2 p.m. to 2 a.m. shift but did not work on the same 

days as Mr. Miller. He recalled that White slowed traffic on Highway 411 and assisted 

him with calls. He claimed that White was the first responder to at least one call 

involving an altercation. He stated that he communicated with White by telephone or in 

person throughout his shift. He agreed that he did not actually know how many hours 

White worked each week. He recalled that White often worked until 12 a.m. but did not 

know when White arrived for work. He identified an affidavit in which he attested that 

White worked as a full-time patrol officer until November 2012. He acknowledged that 

he did not prepare the affidavit but asserted that he recalled working with White until 

some point in Winter 2012. 

Officer Melinda Jane Fowler, the school resource officer for the VPD, recalled 

observing White parked on Highway 411 in his assigned car on the weekends. 

Captain Travis Jones of the MCSD testified that he worked as a patrol captain in 

2012. He recalled observing White‟s unmarked car on Highway 411 and interacting with 

White while on duty on at least one occasion in October 2012. He also observed White

in uniform at little league football practice from August 2012 through October 2012. He 

did not know how many hours White worked per week. 

Drill Sergeant Ray Haynes of the MCSD testified that he observed White working 

as a patrol office in Vonore in 2012. He recalled interacting with White while on duty on 

at least one occasion in Fall 2012. He did not know when White began working full-time 

or how many hours White worked per week. 

White‟s relative, Deputy Franklin Steele of the MCSD, testified that he observed 

White in uniform at little league football practice on Mondays, Tuesdays, and Thursdays 

through the end of October 2012. He did not know when White began working full-time 

or how many hours White worked per week. He acknowledged that his testimony 

conflicted with evidence establishing that White did not work on Tuesdays or Thursdays. 

Daniel Boothroyd, the fleet manager for the MCSD, also testified that he observed 

White in uniform at little league football practice in Fall 2012. He recalled that White

patrolled the area in an unmarked police car throughout that same time period. He could 
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not recall which days he observed White. He too did not know how many hours White

worked per week or when White last worked for the VPD. 

The deposition of the Honorable Stephen Crump, Attorney General for the 10th 

Judicial District was provided to the court as an exhibit. General Crump testified that he 

was asked to review the POST Commission‟s report concerning White‟s qualifications 

for the office of Sheriff of Monroe County. He reviewed the provided information and 

determined that neither White nor Chief Kirkland committed any criminal acts. He 

explained that the evidence was insufficient to establish that either party acted with the 

intent to deceive the POST Commission. 

Following the presentation of the above evidence, the trial court denied White‟s 

renewed motion to dismiss based upon the doctrine of laches, finding that “Bivens took 

all reasonable and appropriate steps to raise the issue of White‟s lack of qualification(s) 

prior to the election.” The trial court found that White lacked the statutorily prescribed 

qualifications to hold the office of Sheriff of Monroe County because he did not possess 

three years of full-time experience as a POST Commission certified law enforcement

officer. The court found no ambiguity or conflict between the statutory qualifications 

required by section 8-8-102 and the definition of “full-time” in section 38-8-101(2). The 

court alternatively found that even if the income qualification contained in section 38-8-

101(2) did not apply, White lacked sufficient proof to establish that he worked full-time 

for the statutorily required three-year standard. Relying upon section 2-17-113, the trial 

court declared the election void. This timely appeal followed. 

II. ISSUES

We consolidate and restate the issues raised on appeal as follows: 

A. Whether the trial court erred in granting the MCEC‟s motion to 

dismiss. 

B. Whether the trial court abused its discretion by not applying the 

doctrine of laches to bar the election contest. 

C. Whether the trial court erred in finding that White was not qualified 

to run as a candidate for the office of Sheriff of Monroe County. 

D. Whether the trial court erred in voiding the election instead of 

declaring Bivens the winner. 
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E. Whether the trial court erred in assessing the costs to Bivens. 

III. STANDARD OF REVIEW

After a bench trial, we review a trial court‟s findings of fact de novo with a 

presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. 

R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). Because the trial 

court is in the best position to observe witnesses and evaluate their demeanor, we afford 

great deference to a trial court‟s credibility determinations. Hughes v. Metro. Govt. of 

Nashville and Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011). We review questions 

of law de novo with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665, 

670 (Tenn. 2006).

This appeal also involves the interpretation of statutes. Statutory construction is a 

question of law that is reviewed de novo without any presumption of correctness. In re 

Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This court‟s primary objective is to 

carry out legislative intent without broadening or restricting a statute beyond its intended 

scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In 

construing legislative enactments, we presume that every word in a statute has meaning 

and purpose and should be given full effect if the obvious intention of the legislature is 

not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a 

statute is clear, we should apply the plain meaning without complicating the task. 

Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

Application of the doctrine of laches and the assessment of costs are matters 

generally within the trial court‟s discretion. See Perdue v. Green Branch Min. Co., 837 

S.W.2d 56, 60 (Tenn. 1992) (“Adjudging costs is within the reasonable discretion of the 

trial court[.]”); Progressive Cas. Ins. Co. v. Chapin, 243 S.W.3d 553, 561 (Tenn. Ct.

App. 2007) (providing that an award of costs lies within the discretion of the trial court);

Brown v. Ogle, 46 S.W.3d 721, 727 (Tenn. Ct. App. 2000) (providing that the application 

of the doctrine of laches lies within the discretion of the trial court). A trial court abuses 

its discretion only when it “applies an incorrect legal standard, or reaches a decision

which is against logic or reasoning or that causes an injustice to the party complaining.” 

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); State v. Shirley, 6 S.W.3d 243, 247 

(Tenn. 1999). If a discretionary decision is within a range of acceptable alternatives, we 

will not substitute our judgment for that of the trial court simply because we may have 

chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.

App. 1999).

IV. DISCUSSION
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A.

While not raised as an issue on appeal by Bivens, the MCEC argues that the trial 

court did not err in dismissing the complaint against it and its commissioners. We agree 

with the MCEC. The MCEC operates in a ministerial capacity and does not have the 

discretion to remove candidates from the ballot without statutory authority.

5

 Tenn. Code 

Ann. § 2-5-204; see City of Memphis v. Shelby Cnty. Election Comm’n, 146 S.W.3d 531, 

535 (Tenn. 2004) (discussing the ministerial role of an election commission); see also

Moss v. Evans, No. E2014-02277-COA-R3-CV, 2015 WL 4366498, at *8 (Tenn. Ct. 

App. July 16, 2015) (acknowledging the ministerial role of an election commission). 

White never filed a request to withdraw from the election. Tenn. Code Ann. § 2-5-

204(b). Accordingly, we affirm the dismissal of the MCEC and its commissioners as 

parties to this suit. 

B.

White argues that the trial court abused its discretion by denying his motion to 

dismiss based upon the doctrine of laches. Citing Taylor v. Lawrence County, No.

M2010-02406-COA-R3-CV, 2011 WL 2015524 (Tenn. Ct. App. May 23, 2011), perm. 

app. denied (Tenn. Sept. 21, 2011), he claims that he was prejudiced by Bivens‟ delay in 

filing suit as evidenced by his expenses and use of vacation time to campaign. Bivens 

does not respond on appeal to White‟s claim of laches. 

“Generally, the doctrine of laches applies to actions not governed by a statute of 

limitations. It may be applied, however, even where the action is governed by a statute of 

limitations when the plaintiff is guilty of gross laches.” Gleason v. Gleason, 164 S.W.3d 

588, 592 (Tenn. Ct. App. 2004) (citing Dennis Joslin Co. v. Johnson, 138 S.W.3d 197, 

201 (Tenn. Ct. App. 2003)). “„The defense of laches is based [up]on the doctrine of 

equitable estoppel, and is only applied where the party invoking it has been prejudiced by 

the delay.‟” Brown, 46 S.W.3d at 726 (quoting Freeman v. Martin Robowash, Inc., 457 

S.W.2d 606, 611 (Tenn. Ct. App. 1970)). Thus, the doctrine of laches “requires more 

than mere delay.” Dennis Joslin Co., LLC v. Johnson, 138 S.W.3d 197, 200 (Tenn. Ct.

App. 2003). “It requires an unreasonable delay that prejudices the party seeking to 

employ laches as a defense, and it depends on the facts and circumstances of each 

individual case.” Id. (citing Brister v. Estate of Brubaker, 336 S.W.2d 326, 332 (Tenn.

Ct. App. 1960)). “The courts are reluctant to sustain the defense of laches, and in a case 

where the delay in filing the suit can be reasonably explained or justified, such a defense 

 

5

Tennessee Code Annotated section 8-8-102 was amended, effective July 1, 2015, to provide a procedure 

for the removal of a candidate‟s name on the ballot in the event that the POST Commission determines a 

candidate is no longer qualified for the office of sheriff. 
- 12 -

will not be heard.” Freeman, 457 S.W.2d at 611. “[A]pplication of the doctrine . . . lies 

within the discretion of the trial court.” Brown, 46 S.W.3d at 727.

Bivens filed the election contest within the applicable statute of limitations 

pursuant to Tennessee Code Annotated section 2-17-105. Thus, White was tasked with 

establishing that Bivens was guilty of gross laches. The record reflects that Bivens 

received information concerning White‟s lack of qualifications at some point in March 

2014. He relayed the information he received to members of the POST Commission on 

April 3, 2014. White alleges that Bivens should have initiated a complaint with the 

MCEC or pursued a quo warranto suit with the State of Tennessee instead of simply 

relying on the POST Commision. The POST Commission is the entity responsible for 

verifying a candidate‟s qualifications for the office of sheriff. Tenn. Code Ann. § 8-8-

102(b). Unlike the situation presented in Taylor, the POST Commission actually initiated 

an investigation, and at some point, White was notified of the investigation and 

interviewed concerning his qualifications. With these considerations in mind, we 

conclude that it was reasonable for Bivens to pursue relief through the POST 

Commission and that the trial court did not abuse its discretion by not applying the 

doctrine of laches to bar the election contest. 

C.

White argues that the trial court erred in finding that he was not qualified as a 

candidate for the office of Sheriff of Monroe County when he was a POST 

Commissioned certified law enforcement officer while working for the MCSD and the 

VPD. He argues that consideration of the General Assembly‟s definition of “full-time” in 

section 38-8-101(2) creates an impermissible restriction on the qualifications for the 

office of sheriff to the extent that it contains an income qualification. He explains that 

the General Assembly did not include an income qualification in its requirements for 

candidacy in section 8-8-102. 

As pertinent to this appeal, Tennessee Code Annotated 8-8-102 provides as 

follows: 

(a) After May 30, 1997, to qualify for election or appointment to the 

office of sheriff a person shall:

* * *

(9)(A) [H]ave at least three (3) years of full-time experience as a POST 

commission certified law enforcement officer in the previous ten (10) years 

or at least three (3) years of full-time experience as a state or federal 
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certified law enforcement officer with training equivalent to that required 

by the POST commission in the previous ten (10) years; provided, that any 

person holding the office of sheriff on May 30, 2011 shall be deemed to 

have met the requirements of this subdivision (a)(9).

The record reflects that White was a POST Commission certified law enforcement officer 

on the date he filed his affidavit in pursuit of the office of Sheriff of Monroe County. 

However, the record also reflects, and the parties appear to agree, that White did not have 

the requisite three-years of “full-time” experience unless approximately three and a half 

months of his employment with the VPD qualified as “full-time” experience as a POST 

Commission certified law enforcement officer.

The General Assembly‟s definition of “full-time” and the POST Commission‟s 

definition of “full-time” are different. White urges this court to use the POST 

Commission‟s definition and claims that the General Assembly‟s use of the term “law 

enforcement officer” in section 8-8-102 as opposed to the use of the term “police officer” 

in 38-8-101(2) lends further credence to his assertion that the POST Commission‟s 

definition of “full-time” is applicable. A cursory review of the pertinent statutes reveals 

that the General Assembly uses the terms “police officer” and “law enforcement officer” 

interchangeably without distinction. 

The General Assembly defines a full-time police officer as

any person employed by any municipality or political subdivision of the 

state of Tennessee whose primary responsibility is the prevention and 

detection of crime, and the apprehension of offenders, and whose primary 

source of income is derived from employment as a police officer. 

Tenn. Code Ann. § 38-8-101(2) (emphasis added). White‟s employment with the VPD 

cannot be classified as “full-time” experience pursuant to section 38-8-101(2) because his 

primary source of income was derived from his employment as the Director of EMS. 

Unlike section 38-8-101(2), the POST Commission classifies all law enforcement 

officers who work in excess of 20 hours per week as “full-time” and further defines a

“law enforcement officer” as 

any person commissioned, sworn, appointed, and/or otherwise lawfully 

enjoined to uphold the laws of the State of Tennessee, and/or laws or 

ordinances of any municipality or political subdivision of the State of 

Tennessee; and who is employed by any municipality or political 

subdivision of the State of Tennessee or as a railroad police officer pursuant 
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to § 65-6-133 and whose primary responsibility is (whether directly or as an 

experienced, certified, supervised/administrator of such persons), the 

prevention and detection of crime, and the apprehension of offenders, and 

specifically assigned duties and/or job descriptions reflect said primary 

responsibilities for the prevention and detection of crime[.]

The POST Commission also specifically references section 38-8-101 as an authoritative 

statute, thereby indicating inclusion of the income qualification in section 38-8-101(2). 

The POST Commission derives its authority from Tennessee Code Annotated 

section 38-8-102, which tasks the POST Commission with “[e]stablish[ing] uniform 

standards for the employment and training of police officers, including preemployment 

qualifications and requirements for officer certification[.]” However, the General 

Assembly determines the qualifications for the office of sheriff. Tenn. Const. Art., VII, 

Sec. 1. Accordingly, we agree with the trial court that the General Assembly‟s definition 

of “full-time” controls the issue. With all of the above considerations in mind, we affirm 

the trial court‟s determination that White was not qualified as a candidate for the office of 

Sheriff of Monroe County pursuant to Tennessee Code Annotated section 8-8-

102(a)(9)(A). 

D.

Bivens argues that the trial court erred in voiding the election. He claims that he is 

the duly elected winner pursuant to Tennessee Code Annotated section 2-17-112(a)(4). 

White and the MCEC respond that the trial court did not err in voiding the election 

pursuant to Tennessee Code Annotated section 2-17-113.

Following an election contest hearing, the trial court must give judgment either 

(1) Confirming the election;

(2) Declaring the election void;

(3) Declaring a tie between persons who have the same number of votes if 

it appears that two (2) or more persons who have the same number of votes 

have, or would have had if the ballots intended for them and illegally 

rejected had been received, the highest number of votes for the office; or
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(4) Declaring a person duly elected if it appears that such person received 

or would have received the highest number of votes had the ballots 

intended for such person and illegally rejected been received.

Tenn. Code Ann. § 2-17-112(a) (emphasis added). A plain reading of the statute reveals 

that Bivens is not entitled to relief pursuant to Tennessee Code Annotated section 2-17-

112(a)(4). Ballots intended for Bivens were not illegally rejected. On the contrary,

White was disqualified as a candidate because he did not have the requisite experience 

pursuant to section 8-8-102(a)(9)(A). Thus, the trial court was authorized to void the 

election pursuant to section 2-17-113, which provides as follows: 

If the person whose election is contested is found to have received the 

highest number of legal votes, but the election is declared null by reason of 

constitutional disqualifications on that person‟s part or for other causes, the 

election shall be declared void.

Bivens argues that section 2-17-113 does not apply because the votes cast for White were 

illegal; however, he does not allege any illegality in the manner and form of the election 

or the way in which the votes were tabulated. Instead, he argues that White was not 

entitled to any votes because White was not a qualified candidate. In such cases, section 

2-17-113 controls the issue. We affirm the trial court‟s judgment voiding the election. 

E.

Bivens argues that the trial court erred in assessing costs against him when he was 

the prevailing party at trial. As relevant to this appeal, Rule 54.04(1) of the Tennessee 

Rules of Civil Procedure provides, 

Costs included in the bill of costs prepared by the clerk shall be allowed to 

the prevailing party unless the court otherwise directs[.] 

Likewise, Tennessee Code Annotated section 20-12-119 provides, in pertinent part, as 

follows: 

(a) In all civil cases, whether tried by a jury or before the court without a 

jury, the presiding judge shall have a right to adjudge the cost.

(b) In doing so, the presiding judge shall be authorized, in the presiding 

judge‟s discretion, to apportion the cost between the litigants, as in the 

presiding judge‟s opinion the equities of the case demand.
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Bivens was not the prevailing party on all issues at the trial court level as evidenced by 

the court‟s dismissal of the MCEC and its commissioners from the election contest. In 

deference to the trial court‟s discretion in such matters, we affirm the assessment of costs 

against Bivens.

V. CONCLUSION

The judgment of the trial court is affirmed. We remand this case to the trial court 

for further proceedings as may be necessary. Costs of the appeal are taxed one-half to the

appellant, Bill Bivens, and one-half to the appellee, Randy Dwaine White.

_________________________________ 

JOHN W. McCLARTY, JUDGE