### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
THE ROGERS GROUP, INC. v. ANDERSON COUNTY,

TENNESSEE, ET AL 

### . Appeal from the Chancery Court for Anderson County No. 95CH3256 Telford E. Forgety, Chancellor

FILED APRIL 1, 2003
No. E2002-00409-COA-R9-CV

C HARLES D. S USANO , J R ., dissenting with respect to the majority ’s decision denying the appel lant’ s peti tion for reh earing.

I have concluded that our original opinion released January 27, 2003, arrived at the wrong result. I re ach this c onclusion based up on my

belief th at, in

our earlier op inion, we

errone ously concluded

that the trial court had before it a Tenn. R. Civ. P. 59 motion f or a new trial on all issues and that it acted pursuant to Tenn. R. Civ. P. 63 to address that Rule 59 motion on all issues . The record before us reflects that this is not what happened.
It is clear to me, beyond any

doubt, that the trial court concluded that the appellees’ Rule 59 motion onlyaddressed the issue of damages. I reach this conclusion based upon what the trial court said in its order entered February 11, 2003:
The County

has argued that its Motion to Alter or Amend should be construedas also cha

llengin g Chanc ellor Willia ms’ liabi lity fin ding. Having reviewed Anderson County’s motion, the Court finds that the motion timely challenged only that portion of the Judgment awarding monetary damages for an unconstitutional taking. (Emphasi s added). My r

eview of the appellees’ Rule 59 motion and the record

in this case persuades me that the trial court was correct in its interpretation of the import of this motion.
In addition to concluding that the appellees’ Rule 59 motion had not sought a new trial on the issue of li ability , the cour t, inthe same

order, w ent on torecite t

he relie f that it wa s grant

ing with respect to that motion:2 The Court find s Anders on County ’s challe ng e to that portion of the Judgmententered December 21 , 19 98 . . . , that awarded monetary damages for an unconstituti onal taking to be well t ak en and the motion is SUSTAINED. The Court her

eby grantsa new trial on the issue of monetary da

mages. At such new trial, t h e Court wi ll consider all issues raised in Anderson Cou nt y’ s Motion to Alter or Amend, or other

issues tha

t may be ti mely raised he

reafter, to the extent that su c h issues ma y be ar on the

grant o f moneta

ry damage s. Further, at such new trial the Court will consi der dama

ges to th e date of such ne

w trial. (Capitalization in original).
After concluding its de cree r

egard ing the R ule 59 motion, the trial court, in its order, turned t o a new section entitled “ New Tria l under Te

nn. R. Civ. P. 63.” The

court’sdecree , expressl

y promulg ated unde

r Rule 63, provides , in pertin ent part , as follo ws: Neverth eless, the Court f

inds that a

new tria

l on all issu es is warranted for another reason. When there is a change in judges after the trial or hearing in a case has c ommenced, Tennessee Rule of Civil Procedure 63 requir

es the suc cessor j udge to certify his familia

rity withthe record and determine whether he can complete the procee dings in the case without prejudice to the parties. The Court has certifi ed its fam

iliarity withthe record, but has determined that it cannot complete these proceedings wi thout prejudic e to the pa rties. The Court finds that the parties would be prejudiced if it held a new trial on da

mages o nly , rather

than a new trial on

all issues

. After the conclusion of the May 4, 2001, hear ing, the Court continued thinking about this matter and considering all of

the things that have happened and have not happened in this case.
* * *
For the rea so ns that follow, the Court has concluded that it is not comforta ble that it can finish this trial without prejudic e to the pa rties.

. . . The c ourt is troubled by the procedural status of this case, and h a s prev iously

expressed this concern at the November 28 hearing

. . . . Further, if this Court grants the County a new trial ondamage s, it is effec tively

giving RogersGroup an other ch ance to p rove its damages as well. If there is g oing to be a new trial on the issue o f damages ,3 there should be a new trial on all issues, including liability. . . . Additiona

ll y, the Court i s concerned that Chancellor Williams had the oppor tuni ty to see t he pro perty in m aking h is rul ing.
Becau se of all these matters that trouble the Court, the Court has concluded

that a new trial is neces sary under Te nnessee Rule of Civil Procedure 63. Anderson County’s motion for a new trial on

all issues under Tennessee Rule of Civil Procedure 63 is hereby GRANTED. (Capitalization in original).
As previously noted, I

agree with the trial

court’sreading

of the ap pellees ’ Rule 59 motion. However, I disag

ree with what I per

ceive to be the court’sperception of its r ole and r esponsibi lity under Rule 63. Whe

n Chancellor For

gety succee ded Chanc ellor Willia ms, th e liabil ity feature

of this case had been concluded. There is no explanation in the record as to why

the trial court, under new leadership, could not try the damage feature of the case unless it also re-tried the liability aspect of th e c as e. Lia bi li ty h ad be en de te rm in ed by Chancel lor Will iams and the losing parties – the appellees – had not sought a new trial on this issue. The case was then a t a cl ear pointof demarcation. This is when the new chancellor came into the picture. The remaining issue was that of damages. At that juncture, he was at liberty to hear any

and all evidence relating to this remaining issue. I am not persuaded by the trial court’s core explanation: Further, if this Court grants the County a new tri al on dama

ges, it i s effec tively

giving Rogers Group another chance to prove its damag es as w ell. If there is g oing to be a new trial on the issue of damages , th er e s ho ul d b e a ne w t ri al on al l i ss ue s, in cl ud in g l ia bi li ty. Chancellor

Forgety doe s not provi de any fact ual fi ndin gs to support his conclusion thatthere sh ould be a n ew tr ia l o n l ia bi li ty. He seems to be say ing that if he was going

to try damage s, then in f

airness to the appellees, he should re-open the question of liab ility and t ry that issue as we

ll. There is no explanation for this c onclusion in the record before us. I believe the chancellor

misconstrued the discretionary

power granted to him in Rule 63. I do n ot believ e it is eno ugh to say, in th e langu age of Rule 63, th at th e case cannot “be completed without prejudice to the parties.” There has to be some factual predicate for this conclusion, and in this cas e, there

is none. Rule 63 is not intended to give the new judge carte blanche to start all over again. I f there is no reason to commence t h e procee dings anew, the new judge should pick up the proceedings where he or she f inds them and conclude that which was not c oncluded by h is or her predecessor. I

would hold that Chancellor Forge ty s hould have picked up where Chancellor Williams left off and concluded this case on the remaining issue o f damag es.4

I believe the trial court

erred in it s i nt er pr et at io n a nd ap pl ic at io n o f R ul e 6 3. Ac co rd in gl y, I would grant the appellant’s petition, vacate our e arlier ruling, reverse the trial c ourt’s grant of a new trial on the issue of liability, and remand f or a new trial on damages only . Once the matter has been finally concluded below, t

he parti es would th

en be at l iberty to appe al any

aspect o f the ca se with which the y di sagre ed, be it liability or damag es.

_______________________________ CHARLES D. SUSANO, JR., JUDGE