### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 13, 200 2 Session THE ROGERS GROU P, INC., v. ANDERSON C OUNTY, TENN ESSEE, and JOHN RICE IRWIN, CLIFT ON STEPHENS, RICHARD DYER, M.D., RONNELL WEAVE R, JAMES PYA TT, RALPH SA WYER, and BETHEL BAPTIST CHURCH Direct Appeal from the Chancery Court for Anderson County No. 95CH3256 Hon. Telford Forgety, Judge

FILED JANUARY 27, 2003 No. E2002-00409-COA-R9-CV

After case was tried, the Trial Judge recused and another Judge wa s designated who granted a ne w trial on a ll issues. O n appea

l, we aff irm. Tenn. R. App.P.9 Appe al by Per mission; Judgment

of the Chanc

ery Cour t Affirme d.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.

Bruce D. Fox, Clint

on, Tenne ssee, an d H. Way ne Phear s, Norcr

oss, Geor gia, fo r Appella nt. David L. Hill, Knoxville, Tennessee, and Dav id S. Clar k, Oak Ridge, Tennessee, for Appe llee, Anderson County, Tenne ssee. Dail R. Can

trell, Clin ton, Tenn essee, f

or Appel lees, John Ri ce I rwin, et a l.

OPINION

This is the sec ond appe al to this Co urt in this case, wherein plaintiff sought damages from defendant for an unconstitutional taking of plaintiff’s pr operty by zoning classification.-2- Ini ti al ly, the Chancellor found that a taking had occurred, and ordered

defenda nt to either rezone the property

or pay dama

ges to plaintiff. After a Notice of Appe al was filed, defendant filed a po s t-trial motion seeking vacation of the damage award, and the Trial Court granted the Motion. In the first appeal, we determined that there wa s no final judgment, and remanded the case for further proceedings on the issue of damages. After remand, de fendant sou g ht Recusal of the Trial Judge, and the Trial Judge recused himself and a nother Judge was assigned to hear the case. The designed Chancellor initially granted a new trial with r esp ect to the issue of damages only , but ther

eafter conclude d that he c ould not co mplete the case without pr

ejudice to the parties, and ordered a new trial on all issues.

He then cer

tified an interlocutory

appeal p ursuant t o Tenn. R. App. P. 9, w

hich this Court granted. The issue on appeal is whether the Trial Court promptly granted a new trial pursuant to Tenn. R. Civ. P. 63? Tenn. R. Ci v. P. 63 pro vides (in pertine nt part): If a trial or hea ring has been commenced and the judg e is unable to proceed, any other judge may

proceed uponcertify

ing fam iliarity with the record and determining that the proceedings in the case may be completed

without prejudice to the parties. The Advisory

Commission Co mments to th e rule state that it is “similar to the federal version” and “is needed to cov er the v ariou s sit uatio ns whe re a jud ge starts but cannot complete a trial or hearing or the post-trial motion proceedings.” The parties agree that the proper standa rd of review is whether the Trial Cour

t abused its discre

tion. We ha

ve been refer red to no controlling Tennessee case law on this issue, but we consider federal law construing F ed. R. Civ. P. 63 which i s s imilar, as persuasive. See Harr

is v. Chern , 33 S.W.3d 741 (Tenn. 2000). Federal case decisions before and after the 1991 Amendment to the Rule, make clear that the Trial Court has the discretion of whether or not to order a new trial, after assuming c ontrol of the case. See Golf

City, Inc. v. WilsonSporting Goods , 555 F. 2d 426 (5 th Cir. 1977) ; Thompson v. Sawyer , 678 F.2d 257 (D.C. Cir. 198 2) ; In re: Allied Supermarkets, Inc. , 951 F.2d 718 (6 th Cir. 1991); Canseco v. United States of America , 97 F.3d 1224 (9 th Cir. 1996); Zand v. Commission of IRS , 143 F.3d 1393 (11 th Cir. 1998).

When a successor

judge steps into the shoes of the original judge, he must consider any post -tria l mot ions which the or iginal judge would have been obligated to consider. Mergentime Corp. v. Washington Metro Area Transit Auth. , 166 F.3d 1257 (D.C. Cir. 1999). In this case, there was a post- trial motion pending to alter/amend the judgment, and while there is some dispu t e-3-

regardi ng wheth er the or iginal w ritten mot ion soug ht altera

tion of the

finding of liabili ty o

r only damage s, defendant correctly points out that an oral motion was made seeking a new trial on a ll issues. Thus, pursuant to Fed. R. Civ. P. 63 and the cases construing same, the Chancellor had the discretion in this case to order a new trial.

The issue thus becomes whether the Chancellor abused his d iscre tion in gran ting a new trial. The Chancel lor found that a new trial was necessary

to avoid prejudice to the parties. “A trial court acts within its discretion when it applies the correct legal standard a nd reaches a decision that is not cle arly unre asonable.” Bogan v. Bogan , 60 S.W.3d 72 1, 733 (Te nn. 2001) . It ha s also been held that “[a]n abuse of discretion occurs when the decision of the lower court has no basis in law or fact and is therefore arbitra ry, illogica

l, or unconscionable.” Boyd v. P rime Foc us, Inc

. , 2001 Tenn. App. Lexis 885 (Tenn. Ct. App. Dec. 5, 2001). In this case, the Trial Court applied the legal standardset out in the Rule, and its decision was not unreasonable, arbitrary , or unconscionable. The Trial Court gave valid reasons for its decisi on, and th

is Court ha s said

that appe llate cou rts should permit a discretionary

decision to stand if reasonable minds can differ conce rning its soundness." Buckner v. Hasse ll , 44 S.W.3d 78, 83 (Tenn. Ct. App. 2000). Thus, “[t]he abuse of discr eti on standarddoes not permit the appellate court to sub stitute its jud gment for that of the trial court.” Myint v. Allstate Ins. Co. , 970 S.W.2d 920, 927 (Tenn.1998).

Ac co rd in gl y, we affirm the decision of the Chancellor, and remand with the cost of the appeal assessed to the appellants, Rogers Gr oup, Inc.

_________________________ H ERSCHEL P ICKENS F RANKS , J.