1 The Trial Court permitt ed Plaint iffs to keep one t

iger on one

parcel of

land. 1 

### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

E1999-02277-COA-R3-CV JOE PARKER, et. al, ) NO. 03A01-9906-CH-00202 ) Plaintiffs/Appella

nts )

) Appeal As Of Right From The v. ) ROANE COUNTY CHAN CERY COURT ) Docket No. 13,252 BOARD OF COMMISSIONERS OF ) ROANE COUNTY, TENNESSEE, ) HON. F RANK V . WILLIAMS , III ) Defendant/Appellee ) and BOARD OF COMMISSIONERS OF ) ROANE COUNTY, TENNESSEE, ) ) ROANE COUNTY CHAN CERY COURT v. ) Docket No. 13,223 ) JOE PARKER, et. al, ) ) Defendants/App

ellants )

For the Appellan

ts : For the Appellees : Steven Douglas Drinnon Jack H. McPherson, Jr. Dandridge, Tennessee Kingston, Tennessee

VACATED and REMANDED Swiney , J. 

### O P I N I O N This is an appeal of a Roane Chancery Court order whichenjoined Appellants, Joe Parker, Mary Ly

nn Parker an d Tiger Haven, I nc., from maintain

ing any Cla

ss I, wild or exot

ic animals, on certain parc

els of land in

Roan e Co unt y, 1 and from expanding the operation of Tiger 

# FILED

February 4, 200

0 Cecil Crowson, Jr. Appellate Court Clerk2 See Technical Record, Vol. II, p. 238, para. 5: “The sti

pulati on of fact

s present ed to the Cou

rt omit ted a stipulat ion between the par

ties ‘There is no area zoned A-2 in Roane Count y, Tennessee’.

If Mr. McPherson denies this represen tation then I invite h im to obje ct to this represe ntation in writing.”

3 The test is required by Tennessee Wildlife Resources Agency Rule 1660-1-18-.06 and covers “basic knowledge of habits, health c are, diseases , diet, exercise n eeds, hous ing and han dling of the C lass I species to be posse ssed.” 2 Haven, Inc., except upon proper application and approval by the County. While not as exactly stated by the parties, the is sues raised on ap peal are whethe

r (1) Appellee’ s refusal to rezon e Appellants’ property was arbi tra ry and capricious, (2) Appellants’ use of parcel 22.06 is a pre-existing nonconforming use whichmay be expanded by Appellants, (3) Appellee’s affirmative representa tions

to Appellants and its f

ailure to enforc

e its zoning ordina

nce for over six y

ears estops it f

rom n ow enforcing the zoning ordinances, (4) the A-2 zoning regulations are unconstitutionally vague and/or overbroad, (5) the A-2 zoning regulations and Appellee’s actions in not rezoning Parcel 29.01 work

an unreasonable di

scrimination ag

ainst Appella

nts’ p roperty, and (6) the Trial Court erred in deny ing Ap pellants’ motion asking that the judgment be a

ltered or amende

d or a new trial h

ad based o n evidencediscovered after the trial. For the reasons herein stated, we vacate the judgment of the Trial Court and remand

the case to the TrialCourt for further proceedings consistent with this Opinion.

BACKGROUND The parties filed with the Trial Court a detailed Stipulation of Facts in this case. Appellants

raised an issue as to whether the stipulation as filed with the Trial Court was complete,

as will be discussed later in this Opinion. 2 Nevertheless, th at stipula tion an d the record together show the uncontested facts to be that on F e bruary 19, 1991, Mary L ynn Parker purchased a tiger from Kevin Antle of Sevierville. Antle removed the tiger from the State of Tennessee without Mary Lynn Parker’s permission, in the spring of 1991. On May 24, 1991, Mary L ynn Parker purchased Parcel 22.06, a

tract of land in Roane County which was zoned A-1 at that time. On May 29, 1991, she took the Class I

feline examination administered by the State of Tennessee 3 and, having passed the test, constructed a facility to house the tiger she had purchased f rom Antle on Parcel 22.06. On July 31, 1991, a personal possession permit for the possession of one Class I animal wasgranted by4 T.C.A. § 70 -4-402 D efinitions. - (10) “Personal possession permit ” means a noncommercial t ype permit is sued to private citize ns for owne rship or po ssession of no nbreedin g animals in sm all numbers

. T.C.A. § 70-4-404. Permits - Fees. - (c) Clas s I wil

dlife. (1) provi

des that “Persons l

egally possessi ng Class I wildl

ife pri or to June 25, 1991 shall obtain annually a personal possession permit to keep such Class I wildlife . .. After June 25, 1991, no new animals sh

all be brought i

nto possession u

nder authorit

y of a personal possession permit . Persons in l

egal possession of one (1) or more species of Class I wil

dlife as of

June 25, 1991, may mainta in the li neage of such species up to a maxi

mum of three (3) ani

mals per species .” Mary Lynn Parker’ s personal posses sion permit was renewed in

June 1992 and Jun

e 1993.

5 Minutes of the Ro ane County C ommission, Regular M eeting, August 12, 1991: “(8) HEARING OF DELEGAT ION: At this ti me Mr. Joe Parker spoke of the cons truction of

a pen he was buildi

ng in order to keep a pet tiger at his resi

dence on Graveyard Road in Roa ne County. Judy Grader spoke in favor of Mr. Parker keeping the tiger at his resi

dence.” There is no stipulation or evidence in the record indicat ing that the Commission took any action about th

e tiger at that meeti

ng after “Mr. Joe Park

er spoke.”

6 T.C.A . § 70-4-4 01 Def initions. - (9) “Permanent exhibitors” means those exhibits t hat are housed the entire year in fac

iliti es located wit

hin the Stat

e of Tennessee. 3 the State of Tennessee to Mary Ly nn Parker. 4 On August 12, 1991, Joe Parker appeared before the Roane County Board

of Commissioners and announced that he and Mary Ly nn Parker intended

to keep and maintain this “pet tiger” on Parcel 22.06. 5 On August 21, 1991, an application for an importation permit was approved by the State of Tennessee for the importation of the tiger purchased from Mr. Antle in order

for it to be reloca

ted from the State o

f Pennsylva

nia to Tennessee . On September 18, 1991, the Parkers placed the tiger on Parcel 22.06. On February 24, 1993, Mary

Lynn Par ker incorporate

d Tiger Haven,

Inc., as a pu

blic benefit corporationunder the Tennes see Nonprofit Cor poration Act,

for the purposes of studying the behavior of large cats in captivity and providing a sanctuary for animals that are abused, neglec ted, unwantedor in danger. O n March 5, 1994, Ma

ry Ly nn Parker took poss

e ssion of a sec ond wild animal, a lion cub, on Parc el 22.06. She did

not have the proper permit for the lion as required at that time from the State

of Tennessee. O

n July 1, 1994, Ma

ry Ly nn Parker was issu

ed a Class I Permanent

Exhibitor’s permit by the State of Tennessee. 6 Since September 1991, Parcel 22.06 has been used continuously to keep and maintain one or more Class I wildlife. There have been up to fifty (50) Class I animals on the property at one time. I t has been inspected at least twice, one visit being unannounced, by Zoning Officer Ka y Christopher. On

those occasions, Christopher found the premises to be clean, particularly in the food service areas, with no feces from the tigers found in the7 Tiger Haven l ater purc hased two a

dditiona l parcel s of lan

d, design

ated as par

cels 12 and 16,

which we n

eed not address as the Court was advised by the parties at oral ar gument that those two parcels have been sold and are no longer at issue in this appeal. 4 inspectedareas. On November 17, 1996, Christopher wrote a report in which she stated that “I find,

as of this date, Mr. Parker is in no violation of Roane County

zoning regulations.” The Tennessee Wildlife Resource Agency has published a memorandum which states that it has been noted on the inspection form that the facility meets or exceeds TWRA legal requirements

pertaining to cage and perimeter security. The parties have stipulated that neither the County Commission nor the Planning Commission possesses any evidence documented by any state,

federal, local or independent agency

or authority regarding contamination of ground water or soil in relation to the plaintiff’s caring for and maintaining Class I wildlife on Parcel 22.06.

On August 1, 1994, Tiger Haven, Inc. purchased a second parcel of land, designated as Parcel 29.01. 7 The Parkers have never kept or mai

ntained Class I

wildlife on parcel 29.01. On March 19, 1997, the Parkers announced a proposed expansion of Tiger Haven.

Roane County

first became subject to a general zoning plan on May 4, 1990, whe n the Roane County Commission adopted the Roane County Regional Zoning Regulations. That plan provides for five types of districts, including one agricultural district, designa ted General Agricultur

e (A-1), three residentia

l distric ts (R-1, R-2, R-3), three commercial districts (C-1, C-2, C-3), three industrial districts (I-1, I-2 , I-3) , and three floodplain districts (F-1, F-2, F-3). The Zoning Map which is a part of the Regulations provides for an A-1 zonin g for Parcel 22 .06. A-1 zoning is described in the R

egulations as: 1103.1 A-1, GeneralAgriculture Di strict. This district is intended for application to areas with ob vi ous rural and agricultural characteristic

s. It is the least restrictive of all zoning distri cts; it recognizes documented existing uses and structur

es a s legi timate, whether such uses and structures are either implied or specified as a permitted use within these regulations. [Emphasis added.] On November 19, 1991, the Roane County Commission amended its regional zoning regulations by adopting

an A-2 agricul

tural district. A-

2 zoning isdescribed in

the amendment as:5 1103.2 A-2, S pecial Agricu ltural District.

This district is intended for application to

rural areas intended for special agricultural uses and ares [sic] that are specifica lly or gene

rally similar to agricultural uses that are or generally perceived to be a threat to the social an d economic health,

safety, an

d welfare of the

county and i

ts citizens. 1103.2.1 District determination criteria. The fo llowing criteria are provi ded as a guide for determining the appropriateness of an A-2 designation.

a. The initial district s hould encomp ass no less than one acre of

land, but may be increased in size in increments of less than one acre. b. The di s trict should be adj acent toeithe r GeneralAgricultural or ind ustrially zoned properties a nd a t least a mile from res identially

zoned properti

es or an y properties used for residen tial purposes t

h at has a density of four (4) dwellings per acre.

* * * 1103.2.3 Permitted uses and structures.

a. Anima l shelters, preserves, reservations , kennels, livestock pens or yards and other places and u ses intended for the keeping of wild, exotic, and other

animals in a restrained or r e stricted space because [of] a potential thr eat to p ubl ic h eal th a nd s afet y. b. Single family residential uses wheresuch use is required as an accessory use to the keeping of animals. 1103.2.4 Special exceptions

a. Anyagr icultural or rela ted use not specifie

d above, that is de ter mined by the planning commission to be a threat to the public health andsafety or the ec on omic security of the cou nty. At a Roane County Planning Commission meeting in ea rly Septem

ber of 1996, several Roane County residents appeared and expressed concern that Tiger

Haven would expand off the original 9-plus acres (Parcel 22.06). In response to this concern, Ka y Christopher , Zon ing Officer for Roane County, wrote a letter to Joe Parker on September 18, 1996, informing him that6

Tiger Haven “is located in a special agricultural zone. Any expansion of the present operation must be approved by

the Roane County Planning Commission.” Joe Parker contacted Ms. Christopher by phone on O

ctober 3, 1996. She

wrote him a secon

d letter on Octobe

r 4, 1996, explaining

that: I am writing in res

ponse to your phone call of Oct. 3, 1996. Your property and surrounding properties are presently zoned A-1. If you expand your cu rrent operation of being a sanc

tuary for e xotic animals, you would have to have

th at parcel of land rezoned to A-2. (I have attached a copy of A-1 and A-2 zoning reg ulations). You are currently being allowe d to m aintain your present operation in A -1 because you were grandfa thered in, as you were already operating your facility when zoning was establishedin Roane County in 1990. If I can be of any f

urther assistanc

e, please call. On October 17, 1997, the Appellants, seeking to expand their operations, applied, as instructedby Christopher, to re-zone Parcel 29.01 from A-1 to A-2. The zoning board of the Roane County Planning Commission refused to appro ve the request

for rezoning. On November 13, 1997, the County Commission passed Resolution 11-97-02, authorizing and directing th e County Attorney

to file a lawsuit asking the Court to declar e whether the Ap

pellants are in c

ompliance with app

licable zoning regulations and, if not, asking the Court to enforce the same. On December 8, 1 9 97, the Roane County

Commissi on met. At t hat meetin g, Joe Parker’s request to re-zone Parcel 29.01 from A-1 general agricultural to A-2, special agricultural was discussed. The parties have stipulated that Parcel 29.01 satisfies the criteria provided as a guide for determining the appropriateness of an A-2 designationin § 1103.2 of the Roane County Zoning Code. Various Commissioners proffered thei

r opinions, and citizens who live near the proper

ty proposed

for re-zoning sp

oke both for and against the re-zoning at the December 8, 1997 meeting. The Com mission took notice of the fact that the Planning Commission had de nied Parker’s request to re-zone Parcel 29.01 and therefore 10 votes would be require

d to override a Pla

nning Commission de

cision. The vote

being 3 yes

and 12 no, the re-zoning request was denied.

On December 3, 1997, the Board of Commissioners of Roane County filed the first suit, a Petition in Roane Ch ancery Cou

rt, pursuant to T.C.A. § 13-7-111, see king an order to7

“prevent,enjoin and abate [the allegedly

unlawful] uses of the Parker properties and for the removal of any Class I animals thereon except for one tiger placed

on Parcel 22.06 on September 18, 1991.” The petition also sought a Temporary Restraining Ord er, Te mporary Injunction and Permanent Injunction

pursuant to Rule 65.03 of the Tennessee Rules of Civil Procedure enjoining and

rest raining Ap pellants from placing additional Class I animals on any of the par cels at issue. The Board of Commissioners also filed a Motion for Restraini ng Order as king the

court to enjoin and restrain the Appellants from placing additional Class I animals on the parcels of land at issue. Appellants answered that the use of Parcel 22.06 as a haven for tigers was legal under A-1 zoning and was grandfathered when A-2 zoning was add ed to the county zoning plan, as evidenced

by the County’s admission of that fact in the County attorney’s letter of July 15, 1996

to the Roane County

Planning Commission,

which stated, in pa

rt: With regard to

the holding of exoti

c animals, Roane County has not expressly or by implication barred this use on land zoned for agriculture. The County may enact zoning to bar a State-permitted use of this type . Ho wever, any present use of land for holding of exotic animals would not be barred becaus e it is used for this purpo

se prior to the enactment of local regulation. * * * Despite the fact that an act

ivity is permi

tted by the Sta

te, the County still ha s the aut hority to re gulate the uses o

f land. See gene

rally Mensi v. Walker, 26 S.W.2d 132, 134 (1930) and OAG 85-288, 1985 Tenn. AG LEXIS 5. However, because the use of this land for the h olding of exotic animals would predate

any future attempts at zoning regulation, that use would be grandfathered in. Th e Ap pellants also answ ered that their a

pplication to expand

Tiger Haven f

rom Parcel 22.06 to Parcel 29.01 should

not have been denied because the use is authorized under Parcel 29.01's current A-1 zoning, since that zoning classification must be strictly construed. Further, they answered that the Board of Commissio ners’ Petition shou

ld be dismi s sed because the Roane County Zoning Regulations and C

ounty Commissio

n Resolution #2101 ad

opting the zoning

plan provide that:

. . . no pro vision con tained herein is in tended or shall be

applied in such a way as to c

reate or cause

a hardship on any existing industry or business or place any restrictions on private property ow ne rs, either8 present or future, or infringe upon the constitutional rights of any individual to use or

dispose of his prope

rty as he de

ems reasonable. They also pointed out the

ir “exemplary

record with

the Tennessee Wildlife Resource Agency which is charged with the duty of supervising facilities that operate within the State of Tenne ssee where Class I wildlife are kept.”

On February 3,1998, Appellants filedthe second suit, a Petition for Certiorari in the Roane County Chancery

Court, pursuant to T.C.A. § 27-9-101 et seq., asking the Court to “review the actions or inactions of the respondents [Roane County Board of Commissioners] and determine whether these actions were an abuse of discr

etion by act

ing arbitrarily

, capriciously

and illegally.” The Petition also asked the Court to grant A-2 zoning to Parcel 29.01.

On February 10, 1999, the Boa rd of Commissioners answered thePe tition fo r Certiorari. The Board stated that the Petitioners “are housing wild and exotic an imals on the property contained in the petition or other property owned by the petitioners” and asserted that the Board had “made a

finding that the community would not be well served by allowing such a use of the property when all the surrounding properties are utilized for domestic and agriculturaluses.” The Board asserted that the

Petitioners’ “ keeping 50 wild o r exotic animals upon

Parcel 22.06 is a violation of the zoning ordinance,” and that the Petitioners “can no t and should not be a llowed to ‘bootstrap’ t hei r way i nto obtaining a judicial rezoning of the property by showing that they are currently using the property in violation of zoning regulations.” On February 11, 1999, the Chancery Court ordered the consolidation of the Board of Commissioners’ suit and the Appellants’ suit in the interest of judicial economy. The consolidated

cases were heard on

February 12, 1999, upon the pleadings, a Stipulation of Facts, trial briefs and oral arguments of counsel. The Trial Court then took the case under advisement. The Trial Court’s written Opinion and Decree were filed on February 23, 1999. The Trial Court found, as pertinent to the issues appealed:

. . . the Court

holds that there wa

s no pre-existing n

on-conforming

use of the property as a business or commercial ente

rprise for the rescue a nd maintenance of Class I animals prior to the amendment of th e9 zoning code. * * *

. . . because Mr. and Mrs. Park er brought a pet tig

er into the East Roane County area

, which was zoned A

-1, . . . it was recognized that there was a need for the creation of a district clas sification to be used when a property ow

ner wanted to pro

vide for wild

or exotic animals. * * * The Parkers placed

a single tiger

, described as a

pet, on Parcel 22.06 on September 18, 1991. The County amended its zoning code to add the A-2 zone on November 19 of that same

year. The question then becomes: Is the acquisition and maintenance of

a single pet tiger by the Parkers on Parcel 22.06, prior to November 19, 1991, an existing “industrial, comme

rcial, or busines s establishment in operation,” as those terms are used i n T.C .A. § 13-7-208(b) ? If so, they not only have the right to keep that single Class I animal, but have the right pursuant to subsectio

n (c) of the statute to “expand operations and construct additional facilities which involve actual continuance and expansion of the activities of the industry and business which were permitted and being conducted prior to the change in zoning. . . . It should be noted tha

t the right of the

Parkers to

keep this first tiger is not in issu e. The Coun ty has not attempted to amend its zoning code to abate

any activity which was previously legal. Rives v. City of Clarksville, 618 S.W.2d 502 (Tenn. Ct. App. 1981). The real issue betweenthose parties has to do with subsection (c ) of the statute which permits certain operations to be expande d and additional facilities constructed for the additional Class I animals. The first tiger may s tay. The Parkers do not den y th at Joe Parker represented to the Commission that

the first tiger was a pet, but nevertheless insist that the acquisition of that first tiger was a “rescue.” Assuming that to be true, can a

resc ued a nimal not al so be a pet? Does the rescue of a single animal, describe

d by its owner as a

pet, become an “

industrial, commercial,

or business establ

is hment” within the meaning of the statute? And can the act

of rescuing be considered a commercial or business activity separate and apart from the phy sical maintenance of the animals within the area regulated by the zoning code? The Courtconsiders that me rely posing

these questions is

sufficient to provide the answers to them. Consequently, the Court finds, from the stipulated facts that prior to November 19, 1991 there existed no “industrial,

commercial, or business establishment in operation” by an yof t he defendants within the meaning of T.C.A. § 13-7-208(b). Prior to that date, the Parkers kept one pet tiger, which they contended

was rescued fr

om harm or death, and which has been appropriately

enclosed and maintained

by them as required by T.C.A. § 70-4-401 et seq. These facts do not give them theright by sta tute to expand their operations after the amendment of the zonin g code to now include approximat

ely fifty (50) class I animals maintained on10 land zoned for general agricultural uses. Indeed, the c orporation, Tiger Haven, Inc., was

not even created until February 24, 1993 and the second Class I animal was not placed on the property

until March 5, 1994. Consequently , the Parkers’ co

mmercial o r business o perations cannot be said to have begun prior to the amendment o f the zoning code, and there was no pre-existing, n on-conforming

use for those purpose

s. * * * Defense counsel argue

s vigorously

that to allow the County’s zoning officer to represent to th

e Parkers that th

ey were “grandfathered in” as a non-conforming use, and, in effect, induce them to “s pen d hundreds of thousands of dollars to properly secure their property and continues to r escue these magnificent creatures” is unfair and inequitable. Though not precisely stated, they arg ue that the County should be estopped to enforce its ordinance. The stipulated fa

cts, however, fail to support this argument. It does notappear from the stipulations that any money was expended

by the Parkers subsequent to the letter of October 4, 1996 from K ay Christopher

to Joe Parker. Neither do the facts show that they relied to their detriment

upon any representations by any official of Roane County . . . . all the facts indicate that the y acted on their own initiative a nd began conducting their activities as a commercial enterprise without any

inducement from the County prior to the letter from the Zoning Officer of October 4, 1996. * * * The final issue . . . [t]he Parkers allege that the actions on the part of Roane County Commissionin failing to approve their ap

plication to rezone a proper

ty from A-1 t

o A-2 was arbitra

ry and cap

ricious.

. . . The latest pronounce

ment from th

e Court of Appeals is to be found in the case of D ay v. City of Decherd, 1998 WL 684533 (T enn. Ct. App. 1998) . . . . The Court, following the pronouncements in Fallin, noted that as long as the question of whether the property should have been rezoned is fairly debatable, the Court should not inter fere in the deci sio n of the legi sla tiv e bo dy. * * * A review of the proceedings of the Roane County Commission shows t hat the Commission reas

onably cons

idered both sides o

f th e issu e andthat the question of whe

ther or not to

rezone the Parke

rs’ property was fairly debatable. Therefore, the County did not act arbitrarily or capriciously

in denying the

request to rezone the property to the A-2, Special Agricu

ltural District. Acco rdi ngly, all issu es are res olv ed i n fav or o f Ro ane C oun ty, Tennesseeand against the original Defendants, who shall beenjoined from maintaini

ng all Cla

ss I anim als, exc e pt the original tiger, and may not expand their operations in the future ex cept as otherwise11 providedin the Roane County Zoning Regulat ions u pon proper app lic ati on a nd a ppr ova l by t he C oun ty. The Trial Court stayed the enforcemen t of its injunction pending this appeal, but restrained the Appellants from taking posses sion or maintaining additional Class I wildlife from February 26, 1999 until the Appellate process is concluded.

After the Trial Court’s d

ecision, Appella

nts filed a Motion to a

lt er or amend the judgment, and/or for

new trial and/or to modify or amend the record, and/or stipulation of facts and findings of facts. One of the grounds for Appellants’ motion was the post trial discovery by Appellants

that, contrary to the

stipulation presented to the Court that there was no area zoned A-2 in Roane County, certain parcels in Roane County were zoned A-2. The Trial Court held that this newly discovered evid

ence was not suff

icient to warran

t a new trial and den

ied Appellants’ motion. DISCUSSION Appellants contend, among other issues, that the Trial Court erred in refusing to grant

a new trial and/or alter or amend the judgment based on new evidence. We think the resolution of that issue is dispositive o

f this a ppe al. Our standard of review on that issue is whether the Trial Courtabused its discretion. Seay v. City of K noxville , 654 S.W.2d 397, 400, 401 (Tenn. Ct. App. 1983). The discretion of

a Trial Court to grant or not grant a new trial on newly discovered evidence is very broad. Discretion denotes the absence of a hard and fast rule. When invoked as a guide for judicial action, it requires that the Trial Court view the factual circumstances in light of the relevant legal principles and exercise considered discretion before reaching a conclusion. Discretion should

notbe arbitrarily

exercised. The a

pplicable facts and law must

be given due consideration. Ballard

v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996), quoting Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520, 526 (1931).

On March 19, 1999, Appellants filed a “Motion to Alter or Amend the Judgments, and/or For New Trial and/or To Modify or Amend the Record and/or Stipulation of Facts or Finding of Facts.” I

n that motion, they

asserted:12

3. That

pursuant to Rule 52 and/or Rule 60 of the T ennessee Rules of Civil Procedure

and/or equity, the Stipulation of Facts an d /or the record and/or Findings

o f Fa ct should be modifie d and amended to re flectth at there is property in Roane County zoned A-2 (more particularly

described below). The Honorable O. Dua ne Slo ne notified this Honorable Court that the Stipulation of Facts presented to the Court omitted a s

tipulation betwee

n the parties that “

There is no area zoned A-2 in Roane County, Tennessee” in a l ette r dated Februar y15, 1999 (attached hereto as exhibit #1) and invited Mr. McPherson to respond to this co ntention in

wr iting. This fact i

s further evidenced

by an excerpt of the deposition testimony of Allen Williams, Chai rman of the Roane County Planning Commission (attached hereto as exhibit #2). Rec ent ly, it

has come to the attention of counseland the Parkers and T.H. that certain

property in

Roane County

(Parcels 38 and 39, Group B, Roan e Co unty Tax Map 47) is zoned A-2. (Affidavits attached hereto as Exhibits #3 and #4.) This information came to the attention of Joe Parke r on March 17, 1999 who provided it to counsel on March19, 199 9. T his inf orm ati on c ons tit ute s ne wly dis covered evidenceand is an additional basis for the Parkers and T.H.’s Rule 59 Motion(s) to

Alter or Amend the Judgments and/or for a New Trial. Notwithstanding the motion with exhibits and affidavits, the Trial Court ordered: The record and stipul

ation of facts ar

e not amended to re

flect: “There is pro perl y [si c-pr ope rty] zoned A-2 in Roane County (parcels 38 and 19 [sic-39] Group B, Tax Map 47 - m ore particular ly describe

d in Defendants/Counter

Plaintiffs Affidavit andAffidavit of Counsel.).” The granting or denial of a motion to alter or amend or for a new trial based on new

ly discove red evide nce is within the discretion of the Trial Court. Seay, 654 S.W.2d at 400, 401. Newly discovered evidence must be of such character as to convince the Court that an injustice has been done and that a new trial will change the result. Travis v. Bacher ig, 7 Tenn. Ct . App. 638 (1928). A further requirement is that by exercise of “reasonable diligence” the evidence could not have been procured for trial. Frazier v. McFerren, 402 S.W.2d 467, 472 (Tenn. Ct. App. 1964). A

mere statement of due d

iligence is not su

fficient, but the f

acts constit

uting diligence must appear, andthe facts must be specifically set out. Mere general state ment that affian t inquired among persons likely to know, is not sufficient, the particulars must be shown. Seay at 400.

We have carefully reviewed the record be fore us. From the record

, it appears that there exists A-2 property in Roane County. Such a fact is relevant a nd material. Information

about13

the circums ta nces of that A-2 zoning may well be critical to the resolution of many of the issues raisedat trial by Appellants. Appellants raised the issues of whether the Board’s refusal to grant themA-2 zoning was arbitrary and capr ici ous, whether the A

-2 zoning classif

ication is unconstitutionally

vague and/or overbroad, and whether the Boa

rd’s refusal to r

ezone their prope

rty to A-2 unreasonab

ly discriminates. The existence of and circumstances surrounding the zoning of other property as A-2 in Roane County is materia l to the resolution of those issues. In this case, Appellants deposed Allen Williams, the Chairman of the Board of Commissioners of Roane County, on January 29, 1999, two weeks before trial, a nd asked: Q: There’s not an a

rea in Roane County

that’s zoned A-2 at the present time, correct? A: Correct. * * * Q: Do you know of any other reque sts, other than Mr. Parker’s, to be zoned A-2? A: I’m unaware of

any requests that has made it to the Planning Commission of an A-2 classification. Appellants

were certainly entitled to rely on the sworn testimony of the Chairman of the Board of Commissioners that no property in Roane County had be en zoned as A-2. Appellee, which prevailed in this la

wsuit, is the entity

ultimately

responsible for zo

ning in Roane County and should have known wheth

er other A-2 zone

d property e

xist ed there. Wi lliams’ sworn response when deposed, that no other prope rty in Roane

County had be

en zoned A-2, satis

fied Appellants’ duty to use due diligence to discover this information. We think the facts and circumstances surrounding the zoning of other property as A-2 in Roa ne County, wh

en properly

developed, may

change the Tri

al Court’s result in

this case . Further, we think Appellants exercised due diligence in their efforts to discover this infor mation when they relied on the sworn testimony of the Chairman of the Board of Commissioners that there

was no o the r pr ope rty zo ned A-2 in Roane County. We find no suggestion in the record that Appellee or its agents inte ntionally misr

epresented to Ap

pellantsand the Trial Court that no Roane County property had been zoned A-2. However, the recor d beforeus does indicate th at it is more14

likely than not that other property in Roane County has been zoned A-2, and that Appellants were told otherwise in disco

very by Appellee, who sho

uld have known. We a

lso note that Appell ants discussedthe issue of this ne wly discove

red evidence in

their brief, but

Appellee did not address the issue in its brief. It is difficult for us to see how Appellee could object to the consideration by the Trial Court of

the apparently correct fact that there was oth er pr ope rty z one d A- 2 in Roa ne C oun ty, especially so in this trial based not upon live testimony but u pon stipulations. The

refore, we hold the Trial Court erred in refusing to grant Appellants’ motion.

T.C.A. § 27-3-128 p

rovides: Remand for correction of record. The court shall also, in all cases, where, in its opinion, complete justice cannot be had by reason of somedefect in the record, want of proper parties, or oversight

without culpable negligence, remand the

cause to the court below for further p roceedings,

with proper directions to effectuate the objects of th e order, and upon such terms as may be deemed right. This Court has pre viousl y applied T.C.A. § 27-3-128 in situations where justice requires a remand for a hearing to develop facts c

ritical to a deter

mination of one or m

ore issues. See Murvin v. C ofer, 968 S.W.2d 304 (Tenn. Ct. App. 1997); Sims v. Stewart, 973 S.W.2d 597 (Tenn. Ct. App. 1998); The case now before us presents just such a situation.

We are aware that Appellants have askedthat only parcel 29.01and not parcel 22.06 be rezoned from A-1 to A-2. However, as we are remanding this case for further proceedings, and in order to avoid a p iecemeal appea l, we decline at this time to address the other issues raised by Appel lan ts. All parties will have an opportunity to appeal and raise any issue they believe appropriate

on the entry of the Trial Court’s final judgment after the procee dings necessitated

by our order of remand. CONCLUSION

For the reasons stated, we vacate the judgment of the Trial Court and remand

this case

to the Trial Court for the taking of evidence or supplementation of the stipulations of fact by the parties conc ern ing other A-2 pr operties in Roane

County, for f

urther proceed

ings consistent w

ith this15

Opinion, and for decision b y the Tria

l Co urt after receipt and consideration of this additional evidence. Costs of this appeal are assessed one-half against the Board of Commissioners of Roane Cou nty, Tennessee, and one-half ag a inst Appellants, Joe Parker, Mary Ly nn Parker, and Tiger Haven, Inc.

__________________________________________ D. MI CHAEL SWINE Y, J.

CONCUR :

_________________________________________ HOUSTO

N M. GOD

DARD, P .J.

__________________________________________ HERSCH EL P. F RANKS, J.