# FILED July 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ SOUTHERN TIN COMPRESS CORP., A Tennessee Corpor

ation, Plaintiff-Appellee, Shelby Chancery No. 101141-3 Vs. C.A. No. 02A01-9709-CH-00234 MARK HILLER An Individual Resident of Tennessee; R. L. GOODNER An Individual Resident of Tennessee; QUALITY MARINE SERIVCE, INC. A Tennessee Corpor

ation; HORIZON PRODUCTS UNL IMITED CO., INC., A Tenness

ee Corporation, Defendants-Ap

pellants.

__________________________________________________________________________ __ FROM THE SHELBY COUN TY CHANCERY COURT THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR

John R. Branson, Anthony Sammons Branson & Bearman

of Memphis For Plaintiff-Appellee Charles A. Sevier Sevier & Phillips of Me

mphis For Defendants-

Appellants

AFFIRMED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.
CONCUR: ALAN E. HIGHERS, JUDGE HOLLY KIRBY LILLARD, JU DGE This appeal involves a suit for fraud. Defendants, Mark Hiller, R. L. Goodne

r, Quality1 The individual defendants were principals in the corporations, and both

corporations were out of business at the time of trial. 2 Marine Service, Inc., and Horizon Products Unlimited, Co. Inc., 1 appeal the trial court’s jud gmen tawarding plaintiff, Southern Tin Compress Corp., compensatory and punitive damages. Southern Tin conte nds that it

was defrauded by the defendants out of more than $500,000.00 over a

28-month period. Southern Tin is a commercial dealer in scrap metal, and appellant Mark Hiller was a Southern Tin empl oyee until 1992, when his role

in the fraud with appellant R.L. Goodner was discovered. Hiller was one of two “scale men” who worked for Southern Tin. In that capacity, Hiller

was responsibl e for

weighing and grad

ing the scrap meta

l brought to Southern

Tin by its customers. Under the common practice, the scal e men woul d write a “scale ticket” for each transaction , which wou ld include the type and weight of the metal, the customer’s name and address, as well as the license number of the truck delivering the metal. Trucks bringing scrap metal to Southern Tin were weighed twice, once upon entry while fully l

oaded and again

after the trucks had unloaded the scrap metal. The difference represented the weight of the scrap metal, which was recorded on the scale ticket by one of the scale men. Typically, the c ustomer would immediately take the scale ticket to Southern Tin’s business office w here Mary Hallo ck, the cashier,

would input the info

rmation from the sc

ale ticket into a computer

and print a check for the amount of the purchase. Th

e position of scale

man is a trusted one because the scale man is often the only Southern Ti n employee who examines the scrap metal prior to purchase. On February 28, 1992, an anonymous cal ler, late r identified as Larry Wade, called Southern Tin and alerted th e company to

the appellants’ fraudulent scheme. Upon investigation, Souther n Tin discovered that it appeared that Mark Hiller and Robert L. Goodner had bee n defrauding Southern Tin for over two years. Barry Panitz, Southern Tin’s general manager, retrieved all the scale tickets and checks written to Goodner. Over the course of 28 months, Goodner, through his agents, had made what

was later determine

d to be fraudulen

t scrap metal sa

les t o Southern Tin on 128 separate occasions. A scale ticket is require d for every legitimate purchase of scrap metal and, as previously

no ted, there are two scale men at Southern Tin. However, in each of the 1 2 83

fraudulent transactions, Hiller had written the scale ticket. As Barry Panitz testified:

Q: A ll right. What can you tell us about the handwriting on the tickets? A: In each

instance, every ticket made out to R.L. Goodner were made out by Mark Hiller.

...... Q: Are there any tickets in there where mone y was paid

to R.L. Goodner where Mr. Hiller was not the scale man? A: No. In some instances, checks had been issued to Goodner w

ithout a correspo

nding scale ticke

t, and in every such instance Southern Tin’s cashier, Mary Hallock, had been absent from work, and Mark Hiller had assumed her responsibilities for the day. Panitz testified:

Q: Did you find any occasions where there was no scale ticket for a check? A: Yes, several. Q: Did you condu ct an investigation as to how that might have happened? A: I did. Q: What did you find

out? A: I noticed that on the days that there’s no ticket of original entry andno, there’s t

herefor e no scale tickets, there were checks written when Ms. Hallock w as absent a

n d Mark Hiller assumed the duties of Ms. Hallock. Q: Did you make any inve s tigations to determine if that was correct? A: Th at w as correct. We matched them with t

he days Ms. Hallock was abse

nt. Q: Did you check Ms. Hallock’s attendance records to find

out? A: Yes, sir. It is undisputed that five or six transactions with Goodner wer e legitimate . In fact the first transaction between Southern Tin and Goodner, dated October 27, 1989, indicates a total purchase of $884.47, including 73 pounds of aluminum, 947 pounds of copper and 57 pounds of brass. During the ensuing 28 months, 127 other transactions occurred between Southern Tin andGoodner. During thi s time, Goodner supposedly sold Southern Tin more than 10 million pounds of scrap metal for which Southern Tin

paid Goodner over $500,000.00. Southern Tin’s4

records revealed that on some days, Goodner, through his agents, allegedly delivered 140,000 to 150,000 pounds of scrap metal. By way of reference, a fully loaded tractor trailer ca rries about 40,000 pounds fully loaded; therefore, Goodner would ha ve had t o deliver four tractor trailer loads of scrap metal to Southern Tin in one d ay in order to deliver 140,000 to 150,000 pounds of scrap. Panitz testified that only a large manufacturing company or another scrap company as large as Southe rn Tin could have g

enerated such v

olumes o f s crap and that no customer had ever delivered that much metal to the company in one day. Panitz testified:

Q: Does it show on her

e [Exhibit 10] the total dollars of checks written to R.L. Goodner? A: Yes. Q: How much is that? A: Five hundred thousand, one hu nd red twenty-six dollars and fifteen cents.

...... Q: How many pounds total does it show Southern Tin su

pposedly bought from R.L. Goodner? A: Total about ten mi

llion pounds, over te

n million pounds.

....... A: Okay. Nobody has access to this amo unt, this weight of stee

l, cast iron, stai nless steel, on such a regular basis. Only the very largest industries in the C ity of M emphis, or in the State of Tennesseefor that matter, other scrap yards beside s mys elf or a brother or sister scrap yard related to ou r c ompany could have these amounts. There’s no other person could bring this amount of weight in. Q: Do you know any occasionwhere any individuals, other than another scrap y ard or factory l

ike you’re talkin

g about, would have done this volume of s crap volume in

twenty-eight

months? A: No. Q: You’ve got

about ten and a

half million pounds down here for material that was allegedl y sold to Southern Tin

by Mr. Goodner. Is that a lot? A: Tremendous. The Memphis Police Department requires Southern Tinto note the license tag number of all truc ks coming onto its site to deliver scrap metal. Of all the license numbers listed b y Hiller on all 128 of the scale tickets, only one vehicle was registered to Robert Goodner. In fact, when asked about these various license numbers, Goodner testified:

Q: An FDX 167 according to Sergeant Townsend is a 1987 Ford5 pickup registere

d to Mrs. Goodner; i

s that right? A: That was a Ford Bronco four-wheel drive, yes, sir. Q: What about 0967 PY? A: I am not sure. Q: WZ 1642? A: I have no idea. Q: PY 0967? A: I do not know. Q: 0967 PT? A: I don’t know. Q: PD 967 PY? A: I don’t know. Q: JKL 883? A : I have no idea what any of those numbers are or where they belong. Q: WZ 1265? A: I just testified that I did not only know my own tag number , but I don’t know any

of those numbers. Sgt. Marvin Townsend is

a twenty-threeyear veteran on the Memphis Police Department who also performs security work for Southern Tin. During the fraud investigation, Townsend

ran searches on the license tag numbers that Hiller recorded on the scale tickets. Townsend testified as to his f

indings as follows: Q: And what

did you r investigation reveal about those tag numbers? A: Out of all of the numbers

that were on ther

e, one of them ca

me back to Mr. G oodner , R.L. Goodner, I believe it was registered to....

...... Q: Take the first number down h ere in the lower left-hand corner. 0967 PY. A: Yeah. I run that number, which appeared numerous timeson the scale ticket. And that came back, never existed in Tennessee, Arkansas or Mississippi. Same as for PY 0967, 0869, PY -- Q: Hold on a second. I’ll ge t to that. That first

number 0967 PY, looking up and down through here, is that not th

e -- does th

a t number appear overwhelmingly more often than the other?6 A: Yes, it does.

...... Q: All right. Let’s go to the next number y ou wanted to say a minute ago.... A: WZ 1642 it never e

xisted either in Ar

kansa s , Tennessee, or Mississippi. Q: Okay. The next number is 0869 PY? A: It was registered to a lea sin g company in Chattanooga, Tennessee.

...... Q: Did they [leasing company] have any business in the Memp

his area? A: No, they didn’t. Q: And did

your investigation discover anything you knew about Leso [the leasing

company], the wa

y they do business? A: I dis covered from ch ecking that this co

mpany was in Chattanooga, Tennessee and that it only leased these vehicles to businesses in the Chattanooga area and not individuals, for the purpose of insura

nce purposes. Q: ... The next one of MT 8167. A: It was on the 1987 Ford. Q: Do you know who th

at was? A: It’s Charlotte Goodner. Q: What about the next, looks like a variation maybe 0967 PY? A: It never existed either. And the next one is PYZ 0967. It never existed. And the next one, 0967 PV, never existed. They usedanother number

on the scale

ticket, was GLR 270 was on a Plymouth Fairmontto a Daniel Free. And then another variation of that number, that number was used numerous times on the scale tickets which was 0967 PTY , the number that was used often and very often. It was altered, in my o pinion , again, to P 9673 Y. It never existed. We went t o another number on the scale tickets, that is YPL 883. It was registe red to Yvette Mobley. Q: What about the next one? A: The next one WZ 126 5. It never existed. And the final one was QFR 027. I t was to a Robert Goodner on a ‘78 Chevy pickup. And the tag expired on it on 6/ 30/90 and it was never renewed. Q: These scale tickets also that Mr. Pani tz pre viously presented to you, they also ha

d some addresses o

n them? A: Yes.7 Q: Did you investiga

te those addresse

s? A: Yes. I loo ked at the tickets . Each ticket, the se individuals who come in, they have

to give their name, addr

ess, license plat

e number, that’s how the license plate number got on the tick e t. And Mr. Goodner’s address appeared on the tickets earlier. And the rest of them was ju

st, I didn’t check int

o them because

all of them was to the same guy, R.L. Goodner. Q: So you just, did you disc over that a couple

of those -- what d

id you discover about a couple of those, were those true or -- A: Those were bog

us addresses. Q: They were bogu

s addresses? A: Right.
At trial, Robert Goodner testified that either he or his agents would loc

ateand haul scrap to Southern Tin. In fa

ct, he testified that on one occasion he delivered 14,000 pounds of scrap metal to the scrap yard in a Camaro automobile. He stated on cross-examination:

Q: How much scrap did you get in a Camaro? A: I didn’t put much.

I think one time I mig

ht have put a

motor in the Camaro is what you can drag with the Camaro or

the trailer that you can drag with the Camaro. Q: How much were you dragging with that Camaro? A: I drove fourteen thousand pounds with it one time. Q: You towed fourt

een thousand poun

ds? A: Absol utely, b ecause my front wheels were coming off the street when I pulled on the

lot w he n Mark Curland hel ped me unload it. Goodner testified that one of his age nts was a man name

d Raymond Shorter. A

t trial, Goodner claimed to have us ed Shorter f or only two or three months. However, Goodner was confronted with the following excerpt from his prior deposition testimony.

Q: ... Early on in that deposition I asked you Isaid, who drove the deliveries for you at Southern Tin? Page 9, you said Larry Wade, Raymond Shorter and he had three or four drivers. I p rima rily went through Raymond

. He felt he wasn’ t getting his share o f the process for

quantities and felt like if he went through us with what he had as far as

quantities he would

get better price

s, andhe did. And I am not real familiar with some of the guys he uses as far as drivers. Do you remember t

hat? A: Yes, sir8 Q: Okay, I asked you if you dealt with any of Raymond’s people. All right. Do you re

member that? A: Yes, sir. Q: I was asking you about how you paid

this Raymond Shorter on Page 31, Counsel, Line 8. Did you pay him with checks or cash? I paid him with cash. Did you pay -- answ er: He paid his dri

vers. I only dealt with Raymond. I t hought I will keep asking about that, so I did. Do you remember? A: Yes, sir. (Emphasis added).

...... Q: ... Qu esti on: But nobody worked directly for you other than Wade a nd S horter? Answer: No, sir. We didn’t establish a company and, you know. Que stion: I just want to

know. I don’t want to hear about somebody at tria l that I gave old Joe fifty bucks and he made a delivery. I want to hear abou t them all. Answer: No, that is all. That is all I am familiar with. Who they used I don’t know, you know, as it relates to different trucks , people or whatev

er. Do you rememb

er that?

...... A: Yes, sir, I do recall that.

...... Q: How much money did you pay Raymond Shorter? A: I could only g uess to how much money I paid Raymond Shorter. Probably in the fifteen to twenty thousand dollars total.

...... Q: All right. Well, now, if you don ’t know where Mr. Shorter li vedand you don’t know where his office was, and you d on’ t know his phone number and you nev er knew any of tho

se things, how did Mr. Shorter get his money? A: He would call me and we would run t hrough and meet. Sometimes he would

meet me at

the bank when he w

ould call me andlet me know there was a load that had been h auled in or a load coming in, and he would inform me of t he type of metals. He woul d in form me of roughly how many loads. He

would informme of the mileage back and forth because I was paying him 14 cents a mile for

his gasoline. And we were also paying him a p remiu m for his labor, a small premium but we were paying him. Q: He was like a su

bcontractor of y

ours? A: Yes, sir. Q: You paid him a check? A: No, sir. I did not pay him in ch eck. I paid him in c

ash so that he could pay for his

expenses or in some cases actually the deal he had cut for the purpose of the scrap. Th e fir st of the transactions under review occurred on October 27, 1989. Goodner9

testified t hat he primarily used Raymond Shorter to make the deliveries to Southern Tin. However, at trial Southern Tin i ntroduced into ev

idence Raymond Sho

rter’s death ce

rtificate establishing that Raymond Shorter had diedon August 5, 1989, nearly three months before the first transaction eve

n occurred. The

refore, So

uthern Tin proved that there was no way for Shorter to have made the deliveries in question as Goodner had claimed. Goodner testified that Larry Wade was his only other agent. At trial, Wade testified that his job for Goodner was to pick up a check for Goodner at Southern Tin. In fac t, when questioned about the services he provided to Goodner, Wade testified:

Q: What did he [Goodner] ask you that he wanted you to do? A: To pick up a che

ck for him. Q: Did you ask him what else was involved? A: He simply stated that he would like for me to, you know, pick it up for him.

....... Q: ...Where did you go to pick up the check? A: Southern Tin Compr

ess. Q: Is that where Mr. Goodner told you to go? A: Yes, it is. Q: Did he tell you what to do when you got to Southern Tin? A: Yeah. I was to go i

n and to the scale

s there and pick up a ticket and turn it into

the lady that does the paperwork. And then she would fix

up a check and put it in an envelope and gave it to me.

....... Q: What would you d o when you pulled into Southern Tin, and what did you do? A: I just pulled up fro

nt there, get out a

nd walk in, and get t

heir ticket, and turn right arou nd and hand it to Ms. Mary. And she would make up th e check and put it in the envelope a

nd hand it to me with a piece of candy, and I was on my way. Q: Who did you see a

bout getting the tick

et? A: Mark Hiller.

....... Q: How many times wo

uld you say it was? A: Well, it was probably, it was nearly a weekly thing. It went on for over a year that I know.10 ...... Q: Did you go by and pick up a check from Southern Tin to Mr. Goodner more than once a week? A: There was probably a couple occasions where I went twice. Q: Twice a week? A: Yes, probably a couple different weeks I did. Q: How did

you find out each time you needed to go to Southern Tin for Mr. Goodner? A: He would call me. Q: Call you at the boat shop? A: No. Usually it wou

ld be at home at nigh

t he would call. Q: What did he say when he called you? A: That I would nee

d to go over and pic

k up a check for h

im. Q: And how much was he paying you -- well, let me ask you this, how, basically, did he p

ay you? He paid yo

u every time

you went over there or by

the week or what

? A: Ye ah, usually two hundred dollars a week is what he w a s paying me. Q: Did that make a difference whether you went there once a week or twice a week? A: It didn’t make any difference. Q: Butyou got two hundred dollars a week from Mr. Goodner either way? A: Yes, sir, that’s

right. Q: Did you ever get paid two hundred dollars a week in which you didn’t pick up a check for Mr. Goodner? A: No, I didn’t, I don’t think.

...... Q: When you got to Sout her n Tin to pick up the sc ale tickets, were those tickets alre

ady ready or did y

ou have to wait on th

em? A: No. I never had to wait on an ything. I had to wait in line behind some other people , but I never had to wait on the tic

kets. Q: The tickets were filled out when you got there? A: That’s right.

....... Q: So if I understandyou right, you would go to Southern Tin and there would already be a ticket ready.11 A: That’s right. Wade did testify that one day he had hauled two loads of scrap aluminum with a pickup truck and a small

trailer. Otherwise, Wade testified that he never inspected any source for scrap
on b ehalf of Goodner, never purchased or sold scrap for Goodner, and that neither he nor hi s agents ever made deliveries of scrap for Goodner. Furthermore, Wade testified that he never saw Goodner in possession of a truck that could haul 40,000 pounds of scrap metal, as Hiller’s bogus scale tickets had indicated. Specifically, Wade testified:

Q: Did you ever go out and inspect a placethat was supposed t o have some scrap to look at for Mr. Goodner? A: Nothing else to do

with the scrap met

al business. Q: Did you ever go out and negotiate with anybody about buying scrap on behalf of Mr. Goodner? A: No, I didn’t. Q: Did you ever go out and

arrange other p

eople to drive scrap for Mr. Goodner? A: No, I didn’t. Q: Did you ever

see Mr. Goodner in possessionor control of any vehicle that would

haul forty thousan

d pounds of scrap m

etal? A: No. Mary Hallock was Southe rn Tin’s cashier

throughout the rel

evant t ime period. She testified that on the morning of February 28, 1992, she received two anonymous telepho

ne calls at Southern Tin. Through her dealings with customers, H allock was familiar with Southern Tin’s regular customers and was able to recogniz e them from both voi

ce and sight. She testified that she recognized the caller as Larry Wade when he made refe rence to a joke the two had shared. She testified: Q: In your posi tio n, did you have the o pportunity to becom

e familiar with the various customers that would come in? A: Yes. Q: And did

you get to the point where you could recognize many on sight? A: Yes. Q: And did you get be

come familiar wit

h themon an individual basis?12 A: Yes. I knew them when they came in.

......... Q: Did you become familiar enough with -- did you become familiar enough with the various customer s that you would recognize them by their voice alone? A: Some of them, yes

.

...... Q: ...Did you receive an anonymo us telephone call on February 28th, 1992? A: Yes.

...... Q: Ms. Hallock, did you recognize the voice on the telephone? A: At first I did not. He called twice. When he called back again, because Barry [Panitz] was not there, the voice was familiar but I couldn’t put a

place, or couldn’t put a picture in my brain as to who it was. And during the conversationhe said, remember you told the dr iver that he would get caught by the DOT for an overload, and then I knew who it was. The voic e and the face ju

st came together. It was Larry Wade.

...... Q: And then what did he sa y when you told

him that Barry, Mr. Panitz, was not there? A: He told me that the company was being ripped off, that’s his words, by someone we would not ever dre am of him doing it. And I said well, who do y ou think it is?

He said, I can’t tell you the name but it’s a black

headed boy on the scales -- black headed man on the scales. Q: And with that description of a black headed man

on the scales, were you able to i

dentify which emp

loyee that was? A: Y es. It was only one black headed person on the scales. It was Mark Hiller. During trial, Larry Wade, himself, referred to the occasion when he and Mary Hallock had joked about the heavy loads he supposedly was bringing into Southern Tin. He stated:

Q: Were you ever

questioned about anything when you would go to pick up the check? A: No. Ms. Mary asked me, said, made a remark once about the trailer being loaded heavy. Q: Did you reply anything? A: I just, you know, I laughed at her. I didn’t know

how to take her about it. I didn’t kn ow, real ly know what she was talking about. I mean, she was smiling and, you know, cutting up. So I just kind of shrugged it off, you know, smiled back at her and that was the end of it. Mark Curland, Hiller’s cousin, was Southern Tin’s non-ferrous metals manager during13

the relevant time per

iod and, in that cap

acity, he was on si

te nearly every working day. At trial, Curl andtestified that he would have noticed if Goodner or his agents had been ha uling larg e quantities on metal into the scrap yard. Specifically, Curland stated:

Q: You’re saying you’re down at the scrap yard dayto day. Did you see, like tractor trailer s or large dump tru

cks coming in with scrap on a daily b

asis? A: I didn’t s ee anything unusua l as far as grea

t big amounts because something like that would have been noticeable. I mean, it’s not, let me say, it’s not unusual to see a large truck come in, butyou would notice it.

I mean, it would be something that you would see. Q: You’re saying a great big amount. What would that be? A: Well, if you see a seventy foot truck come in, I mean in order to haul forty thousand pou nds of gr ade, it would have to be a truck lon ger th an this room. I mea n, there’s no way

you could possibly haul it on anything smaller. Q: Did you see Bob Go

odner bring in truc

ks in like that? A: I never saw that Mr. -- I never saw a nyone at all, that I can recall, ever bringing in any trucks or even coming in. Q: Do you know of a Mr. Larry Wade ever bringing in trucks that size? A: No, sir. I never

saw him. Q: Do you know of anybody working for Mr. Goodner wh o would bring in loads that large?

...... A: No, sir. Q: Would you have noticed any one entity or individualbringing in those amounts of s

teel? A: Yes, sir. As many ti

mes as thiswas reported, th is supposedly coming in, yes, sir, after a

period of time it would have been quite noticeable. One reason, our inv entory would have just jumped way up. It would have been something I would have seen. You couldn’t help but notice. On March 3, 1992, Southern Tin filed a verified complaint for money damages andfor

an injunction against the defen dants in the Shelby County Chancery Court. Following discovery, the case was tried without a jury. The Chancellor entered an order of judgment on February 14, 1997, that awarded Southern Tin

a judgment against t

he Defen dants, jointly and severally, for compensatory damages in the amount of $490,000 and fo

r punitive damage

s in the amount of $200,000. Appellants Hiller and14

Goodner have appealed and the only issue for review is whether the evidence prepon de rates against the findin

gs of the trial cou

rt. Since this case was tried by thecourt sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the f indings, w e must affirm, absent error of law. T.R.A.P. 13 ( d). V

arley v. Varley , 934 S.W.2d 659, 667 (Tenn. App. 1996); Beacon Hill Propert y Owners Assoc., Inc. v. Palmer Properties, Inc. , 911 S.W.2d 736, 737 (Tenn. App. 1995). Review of questions of law is likewise de novo but with no presumpti on of correctne

ss. City of Tullahoma v. Be

dford County , 938 S.W.2d 408, 412 (Tenn. 1997). Central to this case is a finding that Southern Tin did not receive the scrap metal in return for the checks it issued to Goodner. Witness credibility is a determinative factor in cases such

as this. After hearing all the proof, the Chancellor concluded that Southern Tin’s witnesses were credible and that Hiller and Goodner lacked credibility.

I n this Court’s opinion the key is did the scrap come in. In evaluating that the Court has had the opportuni ty to h ear the testimony of Mr. Curland. Mr. Curland in this Co urt’s opinion is an honest man. He i s a tru thful witness. He h as got nothing to gain or lose the Court believes by his telling the truth. He seemed very uneasy and so stat

ed about having to t

estify against a c

ousin [Mark Hiller] whom

he expresses a great deal of affection for. It did not seem insincere to this Court at all. Now, Mr. Curland’s j ob was very different than that of Mrs. Hallock’s job. Mrs

. Hallock in this Court’s opinion was an exceptionally

honest person as well. And she seemed very clear about what she had to say, and in this Court’s opinion was very truthful. And both of these witnesses when theywere uncertai n about things, came acr

oss to the Court as no

t trying to embellish or diminish their lack of certainty. NowMrs. Hallock’s job was very simple. The people who are doing the wei ghing the tickets are turned over

to her and she cuts out the checks and she pays the people. Mr. Curland is not involved in that. He wouldn’t know about all of that. The on e t hing Mr. Curland doe s know that if this volume of

material were coming in during this period, he said quote, it would

have stuck out like a

sore thumb, closed

quotes to him. This Court believes that. He said that if a truck was large -- a large truck anything bigger than one ton than [sic] he woul d have been called over, but not on small peddler s, and he would have noticed these largetransactions. In fact on his own if

he had seen big eighteen w h eeler trucks and didn’t know whose they were, he would have questioned it. That was part of his duty. It is his job was one that hadaccomplished the se responsibilitie

s in his mind. And as he said aft er a s hort time, this volume and numbe rof trips would have come to his attention. Mr. Curland in this Court’s opinion is credible as I have said.15 Now the question is, is he believed over the

defendants who say it was all brought in. This Court does not find, and much to its regret,for the Court

always hates to reach a conclusion such as the following, but the Court does not find that Mr. Hiller and Mr. Goodnerare credible witnesses. It does not find that they have been truthful on thi s issue or many others

. The Court finds that i

t is easily reconciled why Mr. Cur land would not have known of this absence becaus e Mr
. Curland didn’t know of

this effort by thes

e defendants

until after the investigation begi

ns. But after it

begins, and after all of

this is brought to his attention about this is what this record shows that they supposedly brought

in, his testimony is very clear. It didn’t happen. This Court finds that to be credible. (Emphasis added). The trial judge as the trier of fact had the opportunity to observe the manner and d emeanor of all the witnesses as they testified from the witness stand. The weight, faith, an d credit to be given

to any witness’s te

stimony lies in the fir

st instance with the trier

of fact, and the credibility accorded will be given great weight by the appellate court. Haverlah v. Memphis Aviation, Inc. , 674 S.W.2d 297, 302 (Tenn. App. 1984) . The credibility d etermi na tion of the trial court is binding on the appellate court unless, from other real evidence, the appellate court is compelled to concludeto the contrary. State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 ( 1968); Hudson v. Capps, 651 S.W.2d 243 (Tenn . App. 1983). Fromth e reco rd before us, we find that the evidence does not preponderate against the chancellor’s findings that defendants defrauded the plaintiff. Hillerand Goodner also asse rt that Southern Tin

failed to prove its

damages wit

h a reasonable

degree of certainty. In calculating damages, Southern Tin’s manager, Barry Panitz, testified that during the r eleva nt time period Southern Tin issued checks to Goodner for $500,136.15. Southern Tin recognized and admitted that Goodner may have brought in som e scrap, including a small amount of aluminum and a load of batteries. In fact, Larr y Wade, Goodner’s bag man, testified that he brought in, on occasion, some small amount of alum

inum. Therefore, Southern Tin deducted those amounts that might have been paid for legitim ate transactions from the total paid to Goodner over the 28 months of the fraud. To refute Southern Tin’s ca

lculations, the de

fendants introduced the testimony of Don C arpenter, acertified public accountant with a specialty in fraud investigation. On direct examination, Carpenter testified that based on his study of the records furnished to him he saw

no indication that Hiller

and Goodner committed the theft of $500,000.00. He further stated that16

to prove the loss a physical inventory was necessary and a time-lapse between the inventories would give more opportun

ity for discrepa

ncies. Carpenter opined that the plaintiff’s method of calculating its loss was not a legitimat e met hod. However, on cross-examination, Carpenter testified that if one ac cepts Southern Tin’s proof of non-delivery of the scrap metal, then Southern Tin’s calculation of da mages is legitimate. Specif ically, Carpente

r testified as fol

lows: Q: ...Assume there w

as a legitimate transaction by Mr. Goodner. A: The first five or six, okay. Q: Could we not deduct the first five and deduct the aluminum and get the total of the rest? Yes or no, please.

...... A: Yes, I mean -- yes, if yo u decided all the r

est were legitima

te andthese six were legitimate and you subtracted those from the gross total but yes -- assuming all of the others are illegitimate. Q: I have got more to t

his. Assume

Mr. Pantiz [sic] said that the rest of the transactio

ns are impossible to have occurred and Mr. Curland said tha t the transactions were impossible to have occurred because they are there everyday and they know they didn’ toccur. Then you can take out the aluminum and you c a n take out the first five , and then if you accept Mr. Panitz’s testimony and Mr. Curland’s testimony, and if

you accept

it, then you know the r est were not legitimate transactions, wouldn’t you? A: I would say if you accepted that testimony on its face, that would be true. In determining the amount of damages, the trial court generously gave Hiller and Goodner a credit in exce

ss of $10,000 for le

gitimate s ales to Southern Tin during the relevant time period. That amount was deducted from the $500 ,13 6.15 in actual damages proved, and the trial court entered a judgment in favor of Southern Tin for $490,000.00. Contrary to the ap pellants’ assertions, mathematical certainty is not required to support an award where there is substantial evidence in the record from which reasonable inferences may be drawn regarding the amount of damages. Cummins v. Brodie , 667 S.W.2d 759, 765 (Tenn. App. 1983). From the record before

us, we conclude th

at there is ample e

vidence to suppor

t th e chancello

r’s determination of $490,000.00 in compensatory damages and $200,000.00 in punitivedamages.
The judgment of the trial court is affirmed, and this case is remanded to the

trial cou rt for such further proceedings as may be necessary. Costs of the appeal are asse ssed17

against the appel

lants.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE