                    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



CHARLES D. SUSANO, JR., dissenting with respect to the majority’s decision denying the
appellant’s petition for rehearing.


        I have concluded that our original opinion released January 27, 2003, arrived at the wrong
result. I reach this conclusion based upon my belief that, in our earlier opinion, we erroneously
concluded that the trial court had before it a Tenn. R. Civ. P. 59 motion for 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 only addressed 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
                construed as also challenging Chancellor Williams’ liability finding.
                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.

(Emphasis added). My review 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 liability, the court, in the same order, went on to recite the relief that it was granting with
respect to that motion:
               The Court finds Anderson County’s challenge to that portion of the
               Judgment entered December 21, 1998 . . . , that awarded monetary
               damages for an unconstitutional taking to be well taken and the
               motion is SUSTAINED. The Court hereby grants a new trial on the
               issue of monetary damages. At such new trial, the Court will
               consider all issues raised in Anderson County’s Motion to Alter or
               Amend, or other issues that may be timely raised hereafter, to the
               extent that such issues may bear on the grant of monetary damages.
               Further, at such new trial the Court will consider damages to the date
               of such new trial.

(Capitalization in original).

       After concluding its decree regarding the Rule 59 motion, the trial court, in its order, turned
to a new section entitled “New Trial under Tenn. R. Civ. P. 63.” The court’s decree, expressly
promulgated under Rule 63, provides, in pertinent part, as follows:

               Nevertheless, the Court finds that a new trial on all issues is
               warranted for another reason. When there is a change in judges after
               the trial or hearing in a case has commenced, Tennessee Rule of Civil
               Procedure 63 requires the successor judge to certify his familiarity
               with the record and determine whether he can complete the
               proceedings in the case without prejudice to the parties. The Court
               has certified its familiarity with the record, but has determined that it
               cannot complete these proceedings without prejudice to the parties.
               The Court finds that the parties would be prejudiced if it held a new
               trial on damages only, rather than a new trial on all issues.

                After the conclusion of the May 4, 2001, hearing, 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 reasons that follow, the Court has concluded that it is not
                comfortable that it can finish this trial without prejudice to the parties.
                ...

                The court is troubled by the procedural status of this case, and has
                previously expressed this concern at the November 28 hearing. . . .
                Further, if this Court grants the County a new trial on damages, it is
                effectively giving Rogers Group another chance to prove its damages
                as well. If there is going to be a new trial on the issue of damages,


                                                    2
                there should be a new trial on all issues, including liability. . . .
                Additionally, the Court is concerned that Chancellor Williams had the
                opportunity to see the property in making his ruling.

                Because of all these matters that trouble the Court, the Court has
                concluded that a new trial is necessary under Tennessee 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’s reading of the appellees’ Rule 59 motion.
However, I disagree with what I perceive to be the court’s perception of its role and responsibility
under Rule 63. When Chancellor Forgety succeeded Chancellor Williams, the liability 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 the case. Liability had been determined by Chancellor Williams and the losing parties – the
appellees – had not sought a new trial on this issue. The case was then at a clear point of
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 trial on damages, it is
                effectively giving Rogers Group another chance to prove its damages
                as well. If there is going to be a new trial on the issue of damages,
                there should be a new trial on all issues, including liability.

Chancellor Forgety does not provide any factual findings to support his conclusion that there should
be a new trial on liability. He seems to be saying that if he was going to try damages, then in fairness
to the appellees, he should re-open the question of liability and try that issue as well. There is no
explanation for this conclusion in the record before us. I believe the chancellor misconstrued the
discretionary power granted to him in Rule 63. I do not believe it is enough to say, in the language
of Rule 63, that the case cannot “be completed without prejudice to the parties.” There has to be
some factual predicate for this conclusion, and in this case, there is none. Rule 63 is not intended
to give the new judge carte blanche to start all over again. If there is no reason to commence the
proceedings anew, the new judge should pick up the proceedings where he or she finds them and
conclude that which was not concluded by his or her predecessor. I would hold that Chancellor
Forgety should have picked up where Chancellor Williams left off and concluded this case on the
remaining issue of damages.




                                                   3
         I believe the trial court erred in its interpretation and application of Rule 63. Accordingly,
I would grant the appellant’s petition, vacate our earlier ruling, reverse the trial court’s grant of a new
trial on the issue of liability, and remand for a new trial on damages only. Once the matter has been
finally concluded below, the parties would then be at liberty to appeal any aspect of the case with
which they disagreed, be it liability or damages.


                                                 _______________________________
                                                 CHARLES D. SUSANO, JR., JUDGE




                                                    4
