                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                    APRIL 2000 Session

 EDGAR AND MARY MULROONEY, ET AL. v. TOWN OF COLLIERVILLE,
                   TENNESSEE, ET AL.

             Direct Appeal from the Chancery Court for Shelby County
             No. 103683-1; The Honorable Walter L. Evans, Chancellor



                No. W1999-01474-COA-R3-CV - September 14, 2000


This appeal arises from a quo warranto action filed by the Mulrooneys (“Property Owners”) on
behalf of residents of subdivisions annexed by Collierville (“Town”). Property Owners claimed that
Town did not meet the statutory requirements needed to annex the subdivisions. The jury returned
a verdict on behalf of Town, finding that the annexation was proper. Thereafter, Property Owners
filed a motion for new trial which was denied by the court. Property Owners appeal.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which CRAWFORD , P.J., and LILLARD,
J., joined.

Dan M. Norwood, Memphis, for Appellants

Charles B. Welch, Jr., Jon F. Minkoff, Memphis, for Appellees
                                                         OPINION

Pursuant to Tenn. Code Ann. § 6-51-102,1 Town can annex nearby property despite objections of
property owners if Town can show there is a danger (1) to the prosperity of both areas, or (2) to the
safety and welfare of the inhabitants and property owners of both areas if the areas are not annexed.
Under this statute, there must be public notice and a hearing held on the matter before the property
can be annexed. In 1993, Town, acting through its legislative body, adopted an annexation ordinance
which provided for annexation of two neighboring subdivisions. The ordinance stated that
annexation was necessary for the welfare of the residents of the subdivisions as well as Town
residents.

        At a public hearing on the matter, Town presented evidence from a state annexation
feasibility study as well as a plan of services prepared by the town planner. According to the
feasibility study, Town would be able to offer better and quicker police, fire, and emergency services
than the county services available if the subdivision remained unannexed. Following a unanimous
vote on the matter, the annexation took place. In response, Property Owners filed a quo warranto
action as provided for in Tenn. Code Ann. §6-5-1032 to challenge the annexation.


         1
           Tenn. Code Ann. § 6-51-102 provides in relevant part (emphasis added):
          (a)(1) A municipality, when petitioned by a majority of the residents and property owners of the affected
territory, or upon its own initiative when it appears that the prosperity of such municipality and territory will be
materially retarded and the safety and welfare of t he inhabitants a nd prop erty enda ngered , after notice a nd pub lic
hearing, by ordin ance, m ay extend its corpora te limits by annexation of such territory adjoining its existing boundaries
as may be deemed necessary for the welfare of the residents and property owners of the affected territory as well as the
municip ality as a who le; provided, that the ordinance shall not become operative until thirty (30) days after final passage
thereof.

         2
           Tenn. C ode Ann . § 6-51-10 3 provid es in relevant p art:
          (a)(1)(A) Any aggrieved owner of property which borders or lies within territory which is the subject of an
annexation ordinance prior to the operative date thereof, may file a suit in the nature of a quo warranto proceeding in
accordance with this part, § 6-51-301 and title 29, chapter 35 to con test the validity thereo f on the groun d that it
reasonably may not be deemed necessary for the welfare of the residents and property owners of the affected territory
and the municipa lity as a whole and so constitutes a n exercise o f power no t conferred by law. Notw ithstanding th e
provisions of any other section in this chapter, for purposes of this section, an "aggrieved owner of property" does not
include any municipality or public corporation created and de fined under title 7, chapter 8 2 which ow ns prope rty
bordering or lying within the territory which is the subject of an annexation ordinance requested by the remaining
property owner or owners of the territory and whose property and servic es are to be allocated a nd conve yed in
accordance with § 6-51-111, § 6-51-112 or § 6-51-301, or any contractual arrangement otherwise providing for such
allocation and conveyance.
          (B) The provisions of this subdivision (a)(1) do not apply to the counties covered by subdivision (a)(2).
          (2)(A)Any aggrieved owner of property, lying within territory which is the subject of an annexation ordinance
prior to the operative date thereof, may file a suit in the nature of a qu o warranto proceed ing in accord ance with this pa rt,
§ 6-51-301 and title 29, chapter 35 to contest the validity thereof on the ground that it reasonably may not be deemed
necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole,
and so constitutes an exercise of power not conferred by law.
          (B) The provisions of this subdivision (a)(2) shall apply only in counties having a metropolitan form of
governm ent and in co unties having p opulations of:
                                                                                                                 (continued ...)

                                                              -2-
        In September 1997, a jury trial on the matter was held in the Shelby County Chancery Court.
Town presented the following evidence regarding the added benefits to the annexed area. Town’s
mayor testified about the growing size and industry of Town and the positive effects of the
annexation. In addition, the mayor testified that most of the residents of the annexed areas were in
favor of annexation and the areas were “better off” annexed. Town’s city planner testified about the
annexation feasibility study and the plan of services for the annexed area. The plan of services
indicated that Town’s emergency response system, police department, and fire department would
be expanded. In addition, Town’s fire and police chiefs, city engineer, and director of public works
presented testimony to the same effect. A board member of one of the annexed subdivisions’ Home
Owners Association testified that the majority of residents and the entire board supported the
annexation.

        Following the presentation of evidence, the jury returned a verdict in favor of Town. A final
order to this effect was entered by the chancellor3 on October 9, 1997. Property Owners filed a
motion for new trial, alleging that the jury verdict was contrary to the clear weight of the evidence
because Town had failed to present the proof required under Tenn. Code Ann. §6-51-102. After the
motion for new trial was denied, Property Owners filed this appeal.

       On appeal, Property Owners assert that the trial court erred in failing to grant the motion for
new trial. In addition, Property Owners claim that Town failed to present the evidence required for


          2
            (...continued)
not less than                             nor more than
-------------                           -------------

 4,000                                   4,300
 14,940                                  15,000
 43,700                                  44,700
 49,400                                  49,500
 58,000                                  59,000
 67,300                                  67,400
 74,500                                  74,600
100,000                                  250,000
475,000                                  480,000
700,000

according to the 1980 federal census or any subsequent federal census, and in any county with a population of not less
than two hundre d eighty-five thou sand (28 5,000) a nd not mo re than two-hu ndred nine ty thousand (290,000) based upon
the 1980 federa l census.
         (b) The municipality shall have the burden of proving that an annexation ordinance is reasonab le for the over all
well-being of the communities involved.

          3
           Chancellor Neal Small served as judge for the trial below and entered a final order approving the jury verdic t.
Small was subseq uently replace d by W alter Evans. C hancellor E vans ruled o n Prope rty Owners’ m otion for new trial.
Prope rty Owners assert that the new chancellor was not qualified to rule on the motion for new trial because he did not
preside o ver the actual tria l. We find this a rgument is witho ut merit.

                                                           -3-
annexation under Tenn. Code Ann. § 6-51-102 and that therefore the jury verdict is not supported
by material evidence.

                                             ANALYSIS

        Upon review, this court does not reweigh the evidence and consider where the preponderance
lies. Instead, we determine whether there is any material evidence to support the verdict, and, if
there is, we must affirm the judgment. TENN . R. APP . P. 13(d); Overstreet v. Shoney's, Inc., 4
S.W.3d 694, at 718 (Tenn. Ct. App. 1999) citing Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d
822, 823 (Tenn.1994). Even if we would have reached conclusions different from those reached
by the jury, if there is some material evidence to support the verdict, it must be affirmed. Mason v.
Tennessee Farmers Mut. Ins. Co., 640 S.W.2d 561, at 564 (Tenn. Ct. App. 1982) With the foregoing
in mind, we now turn to the case at bar.

                                      A. Motion for New Trial

       On appeal, Property Owners assert that the trial court erred in failing to grant the motion for
new trial. Property Owners claim the jury verdict was contrary to the great weight of evidence and
accordingly the trial court should have set aside the verdict. We do not agree. Based on the
following, we find that the court did not err in denying the motion for new trial.

         “The purpose of a motion for a new trial is to call the trial judge's attention to errors of the
jury in deciding a case and to his own errors in presiding over a jury trial, all in the hope that he can
correct them without the necessity for appellate review.” Bryant v. Central Motor Exp., Inc., 404
S.W.2d 513, at 518 (Tenn. 1966). A trial court is given wide latitude in granting a motion for new
trial, and a reviewing court will not overturn such a decision unless there has been an abuse of
discretion. Loeffler v. Kjellgren, 884 S.W.2d 463, 468 (Tenn. Ct. App. 1994). In other words, the
refusal to grant a motion for new trial is a discretionary decision of the trial judge. Esstman v. Boyd,
605 S.W.2d 237, 240 (Tenn. Ct. App. 1979); Seay v. City of Knoxville, 654 S.W.2d 397, 398-399
(Tenn. Ct. App. 1983); Miller v. Altman Const. Co., 666 S.W.2d 466, 468 (Tenn. App. 1983). On
appeal, our review is limited to determining whether the trial court abused its discretion in making
this decision. Herbert v. Brazeale, 902 S.W.2d 933, 936 (Tenn. Ct. App.1995); Ladd by Ladd v.
Honda Motor Co., Ltd., 939 S.W.2d 83, 104 (Tenn. App. 1996).

         The abuse of discretion standard involves two considerations. Primarily it indicates that the
trial court has the authority to choose among several legally permissible, sometimes even conflicting,
answers. In addition, it indicates that the appellate court will not interfere with the trial court's
decision simply because it did not choose the alternative the appellate court would have chosen.
BIF, a Div. of General Signals Controls, Inc. v. Service Const. Co., Inc., No. 87-136-II, 1988 WL
72409, at *2-*3, (Tenn. Ct. App. 1988) citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 242 (Tex.1985); Southern Fire & Cas. Co. v. Cooper, 200 Tenn. 283, 286, 292 S.W.2d 177, 178
(1956). Under this standard, Property Owners must prove that the lower court abused its discretion
by failing to grant their motion for new trial.


                                                  -4-
        Property Owners focus on Town’s failure to use the specific terms “the prosperity of such
municipality and territory will be materially retarded and the safety and welfare of the inhabitants
and property endangered” as provided in Tenn. Code Ann. §6-51-102. However, the overwhelming
evidence supported Town’s argument that annexation was beneficial to the welfare of both Town
and the affected subdivisions. Therefore, while Town may not have couched its argument and
presentation of evidence in the precise statutory terms, Town’s trial proof reflected the welfare
benefits produced by annexation.4 Accordingly, we find that the trial court did not abuse its
discretion in denying the motion for new trial.

                                                B. Material Evidence

        Property Owners also assert there is no material evidence to support the jury’s verdict.
Again, Property Owners rely on the failure of Town’s witnesses to use the terms provided by the
annexation statute. As stated above, the failure to use these precise terms is not in and of itself error
and does not prevent the jury, the trial judge, or this Court from understanding the evidence. Town’s
evidence about the positive effect of the annexation on the welfare of the residents included
testimony by Town’s mayor, Town’s city planner, Town’s fire and police chiefs, city engineer, and
director of public works. Accordingly, the evidence presented at trial indicates that Town complied
with the statutory requirements for annexation of the affected subdivision. Therefore, there is
material evidence supporting the jury’s verdict.




                                                     CONCLUSION




         4
           Factors to be consid ered in testing re asonable ness of annex ation ordin ance includ e: necessity for, or u se of,
municipal services; present ability and intent of municipality to render municipal services when and as needed; and
whether annexation is for sole purpose of increasing municipal revenue without ability and intent to benefit annexed area
by rendering municipal services. City of Kingsport v. State ex rel. Crown Enterprises, Inc., 562 S.W.2d 808 (Tenn. 1978)
The primary test is the planned and orderly growth and development of the city, taking into consideration the
characteristics of the existing city and those of the are a propo sed for anne xation. State ex rel. Collier v. City of Pigeon
Forge, 599 S.W.2d 545, 548 (Tenn. 1980)

                                                             -5-
         For the foregoing reasons, the lower court’s denial of Property Owners’ Motion for New
Trial is affirmed. Costs of this appeal are taxed to Edgar and Mary Mulrooney, et al, for which
execution may issue if necessary.




                                                    ___________________________________
                                                    ALAN E. HIGHERS, JUDGE




                                              -6-
