Pistey v. Lake Developers Partnership et al (TV3)

RESPONSE to Motion re MOTION to Alter Judgment and in the Alternative, for a New Trial Judgment

E.D. Tenn.March 15, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE NORTHEASTERN DIVISION FRANCES H. PISTEY, Plaintiff, v. No. 2:17-CV-00008-TAV-MCLC LAKE DEVELOPERS PARTNERSHIP, LAKE DEVELOPERS II, LLC, and DAYTONA CONSTRUCTION COMPANY, INC., Defendants. RESPONSE TO MOTION TO ALTER OR AMEND Comes the plaintiff and for response to the Motion to Alter or Amend the Judgment and in the Alternative for a New Trial would show unto the Court as follows: 1. It is denied that the Court used the incorrect standard when determining damages awarded to the plaintiff. The Court filed a detailed Memorandum Opinion outlining the legal basis for its ruling (Doc. 39). The Court applied the correct standard in cases of rescission (the remedy stipulated by the parties as being the appropriate remedy) – placing the parties in the position they would have occupied had the transaction not occurred. 2. It is disputed that the plaintiff is not entitled to damages for her mortgage interest. The defendant’s argument on this point has been previously submitted and rejected by the Court. 3. It is asserted that the plaintiff is entitled to prejudgment interest on the mortgage interest she paid. Such an award is not “double-dipping” as it merely grants Case 2:17-cv-00008-TAV-MCLC Document 42 Filed 03/15/19 Page 1 of 3 PageID #: 366 the plaintiff prejudgment interest on an expense she incurred and paid as a result of the rescinded transaction. 4. It is agreed that the parties have been unable to agree upon a figure for the monetary award to the plaintiff. In part, that inability results from the parties’ differing positions on the interest awarded. In part, the inability is due to a disagreement on the law applicable to prejudgment interest. The defendant, as set out in its Memorandum of Law, asserts that prejudgment interest is governed by federal law. The plaintiff, as asserted in her accompanying Memorandum of Law asserts prejudgment interest is controlled by state law, specifically T.C.A. § 47-14-123 which provides that prejudgment interest may be awarded at any rate not in excess of 10% per annum. In support of this response, the plaintiff submits an accompanying Memorandum of Law. Now having fully responded, the plaintiff requests that the Motion to Alter or Amend the Judgment and in the Alternative for a New Trial be denied and that plaintiff be awarded prejudgment interest on her elements of damage at a rate to be fixed by this Court. FRANCES H. PISTEY BY: s/ H. Scott Reams H. SCOTT REAMS (BPR #000436) Attorney for Plaintiff TAYLOR, REAMS, TILSON & HARRISON 116 East Main Street Morristown, TN 37814 (423) 586-9302 Case 2:17-cv-00008-TAV-MCLC Document 42 Filed 03/15/19 Page 2 of 3 PageID #: 367 s/ Charles G. Fisher Charles G. Fisher (BPR #018648) Attorney for Plaintiff GRANT, KONVALINKA & HARRISON, P.C. 633 Chestnut Street, Suite 900 Chattanooga, TN 37450-0900 (423) 756-8400 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was filed electronically with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to counsel of record, on this 15th day of March, 2019. s/ H. Scott Reams H. SCOTT REAMS, ATTORNEY Case 2:17-cv-00008-TAV-MCLC Document 42 Filed 03/15/19 Page 3 of 3 PageID #: 368