Edgar/Mary Mulrooney v. Town of Collierville ( 2000 )


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  •                 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-