author: TODD, Presiding Judge, Middle Section.

text:
    THIRD NATIONAL BANK IN NASHVILLE, Plaintiff-Appellant, v. James T. McCORD and Roberta McCord, et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Jan. 10, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.

      Richard Dance, Dance & Lincoln, Nashville, for plaintiff-appellant.
    James A. Martin, Matthew J. Sweeney, Dearborn & Ewing, Nashville, Jane B. Forbes, Franklin, for defendants-appellees.
   OPINION

TODD, Presiding Judge, Middle Section.

The background of this suit involves three banks and a number of individuals. However, the remaining issue on appeal is between Third National Bank and Commerce Union Bank as to the right to proceeds of the sale of mortgaged property. The Chancellor rendered summary judgment disallowing the claim of Third National which has appealed.

The uncontradicted evidence shows the following pertinent facts:

On July 11, 1979, Mr. and Mrs. McCord borrowed $64,800.00 from First Tennessee Bank secured by a duly recorded trust deed upon certain land.

On September 2, 1981, the McCords borrowed $32,500.00 from Commerce Union secured by duly recorded trust deed upon the same land.

On November 19, 1982, the McCords renewed and increased the Commerce Union loan to $42,161.91 secured by an amended trust deed to the same land which trust deed was duly recorded.

On January 28, 1983, Third National filed this suit to collect a note and a dishonored check from the McCords.

On February 22, 1983, the McCords entered into a contract to sell the same land to the Johnsons free of encumbrances.

On March 31, 1983, Commerce Union purchased from First Tennessee Bank the note of $64,800 due from the McCords.

On April 18, 1983, Third National obtained a judgment against the McCords for $14,740.74.

On the same date, April 18, 1983, the judgment was duly recorded in the Register’s office.

On July 12, 1983, the property was sold at foreclosure sale by J.H. Ockerman, trustee under the trust deed dated September 2, 1981 securing the debt of $32,500.00 to Commerce Union Bank. The property was purchased at the foreclosure sale by Commerce Union Bank for $36,500.00.

On the same date, July 12, 1983, Third National filed a supplemental complaint for discovery of assets of the McCords, adding as defendants, Ockerman, Trustee, Commerce Union, and the Johnsons.

On September 13,1983, Commerce Union Bank sold the property to the Johnsons for $110,000.00. On that date, the McCords total debt to Commerce Union, including the first mortgage purchased from First Tennessee, the $32,500 borrowed on September 2,1981, and the $9,661.91 additional loan on November 19, 1982, was $112,-354.93. Commerce Union released all its outstanding liens on the land.

On the same date, an agreed order was entered transferring Third National’s lien claim from the property to an escrow fund of $15,140.78 derived from the sale of the property to the Johnsons.

The chancellor rendered summary judgment disallowing the claim of Third National to the escrow fund.

Third National presents the issues for review as follows:

The Trial Court erred in granting the Motion for Summary Judgment filed by Commerce Union Bank because the foreclosure of the deed of trust did not extinguish the inferior judgment lien of the Plaintiff, Third National Bank.
The Trial Court erred in granting the Motion for Summary Judgment filed by Commerce Union Bank because the Record shows there were excess proceeds left from the foreclosure that are owing to Plaintiff.

Third National relies upon certain circumstances not related above, which are:

1. The Johnsons lived in the McCord house from May 16, 1983, until September 13, 1983, without any payment to the McCords or Commerce Union.
2. The closing of the sale to the John-sons was delayed because of the various lien claims and a representative of Commerce Union told the Johnsons that a foreclosure would “wipe the slate clean.”
3. After the foreclosure, Commerce Union sold to the Johnsons on the same terms as the McCord-Johnson contract.

Third National argues that Commerce Union, the McCords and the Johnsons “conspired” to go through the foreclosure procedure to “wipe away” the lien of Third National and that “this type of action should not in equity and good conscience take place.”

No authority is cited to support the foregoing argument, and none is known to this Court. There is no reason in logic, law or equity why the holder of a mortgage debt, or a series of mortgage debts may not with propriety arrange the most advantageous disposition of property acquired by foreclosure of one of the mortgages. There is no hint of fraud or impropriety in the acquisition of the first mortgage, the foreclosure of the second mortgage, or the use of the price ultimately obtained for the property to reduce the mortgage debts which were prior in right to that of the judgment lien of Third National. The evidence shows that the debts secured by the first and second mortgages have never been fully satisfied, even by the private sale to the Johnsons. Until the prior mortgages are satisfied, Third National, as junior lien holder, has no rights.

Where a foreclosure sale does not produce proceeds in excess of the mortgage, junior liens are extinguished. Prichard Brothers v. Causey, 158 Tenn. 53, 12 S.W.2d 711 (1929).

Appellant insists that, where a mortgagor becomes the purchaser at a foreclosure, his purchase of a prior mortgage will not defeat a subsequent encumbrance. This is a well established rule of law, but it is not applicable to the present case.

A mortgagor is one who pledges his property as security for debt. Black’s Law Dictionary, Fourth Edition, p. 1163. A mortgagee is one who takes or receives a mortgage. Ibid. In the present case, the McCords were the only mortgagors involved in any of the mortgages. There is no evidence that they or either of them ever became a purchaser at foreclosure. Commerce Union, which did become a purchaser was a mortgagee, not a mortgagor, hence the stated rule is inapplicable to Commerce Union.

In Loan Corporation v. Guaranty Title Trust Co., 168 Tenn. 118, 76 S.W.2d 109 (1934), cited by appellant, the above rule is stated as to mortgagors. However, the Court said:

The conditions as to which a declaration is sought, as set forth in the bill, may be illustrated:
A, owning land unincumbered, makes and records a first mortgage thereon with power of sale, to secure a debt to B. He thereafter makes and records a second mortgage on the same land to secure a debt to C. (It does not appear, in the case presented, whether or not the second mortgage contained warranties against incumbrances; the pertinency of this being hereafter made to appear. Following default, the land is lawfully sold under the power of sale in the first mortgage and bought in by, or for, B. Subsequently, complainant corporation, upon the consent of B to accept securities issued by it in satisfaction of its original mortgage debt, takes from A a mortgage of the same land to secure said debt — in effect a redemption — the land being conveyed to A by B in order that he may so mortgage it, pursuant to and in execution of this plan, the conveyances by- B to A, and by A to secure complaint being practically contemporaneous in execution and registration. May C assert a claim against the title thus conveyed to complainant, based on his unsatisfied second mortgage, superior to that of complainant corporation?
However, conceding that the mortgagor, for reasons indicated, might not himself hold the reacquired property against his second mortgagee in certain cases, we think it clear that the complainant herein, acquiring title under the conditions set forth in the bill, illustrated in the foregoing part of this opinion, is entitled to hold free from all mortgage or other liens created subsequent to the registration of the foreclosed first mortgage. Having regard to the substance of the transaction, its true effect, and giving due consideration to the relative equities, we have here a debt originally secured by first mortgage which has never been paid. No release or satisfaction of the first lien on the land securing it has ever been made. No such result has been at any stage in the contemplation of the parties. On the contrary, the forms of transfers of title employed have been directed solely toward an extension of the debt for the benefit of the original mortgagor. The complainant becomes a beneficial intermediary, a substitute mortgage creditor, entitled in all good conscience and equity to the first lien originally created in favor of the original creditor. By analogy, this general rule has application — “Where the holder of a senior mortgage discharges it of record, and contemporaneously ... takes and registers a new mortgage, he will not,' in the absence of paramount equities, be held to have subordinated his security to an intervening lien — whether mortgage, vendor, mechanic, or judgment — unless this appears to have been his intention.” Shanks v. Phillips, 165 Tenn. 401 at page 405, 55 S.W.(2d), 258, 260, citing notation in 33 A.L.R., 149.

It is seen that the cited case is not controlling in the present case.

Nevertheless, appellant urges that the Johnsons were the equitable owners of the land under their purchase contract and that they conspired with Commerce Union to defeat the rights of Third National “so that Commerce Union could pass clear title to the Johnsons.”

No conspiracy was necessary. A prospective purchaser has every right to require the title to land to be cleared before purchase. A holder of a prior mortgage has every right to exercise all of the powers granted in the mortgage in order to perfect a title acceptable to a prospective customer and thereby realize upon the security for the debt. The exercise of such rights is no conspiracy. It is the nature of the infirmity of a junior mortgage or lien that it may be extinguished in the enforcement of a superior mortgage or lien.

Appellant cites authorities that purchase at foreclosure by one cotenant is for the benefit of all tenants. The principle has no application to the present facts.

Appellant seeks to connect the Johnsons and Commerce Union in some sort of relationship whereby the bank was acting as the alter ego of the Johnsons in the purchase of the property. The facts simply do not support such an assumption. Commerce Union was acting in its own interest to acquire and to clear the title to property on which it had three mortgages, so that the land might be sold to satisfy the claims of the bank.

Appellant next argues that the McCords were benefitted by the foreclosure sale to defeat the lien of Third National. It is true that, when a holder of a mortgage enforces his debt by foreclosure, the debtor benefits to the extent of the reduction or satisfaction of the debt. However, a debtor to a junior lienor is not benefitted by the elimination of the junior lien, because the debtor remains liable for his unsatisfied debt to the junior lienor.

Appellant relies upon authorities wherein the debtor purchased his own property at a tax sale to defeat other liens on the property, but the facts of this case have no relation to tax sales or purchases by a debtor.

Finally, appellant argues as follows: It is not disputed that the Johnsons paid Commerce Union Bank $110,000.00 for the McCord property. The Deed of Trust of First Tennessee Bank at maximum could secure only the sum of $64,-800.00. (R. p. 74-77) However, the exact balance is not known. Mr. Newbill had no way to compute the balance due on the note that Commerce Union Bank purchased from First Tennessee. (New-bill deposition, pp. 7 and 34) The commerce Union Bank second deed of trust at most secured $32,500.00 (R. pp. 71-72, Exhibit 6 to Newbill deposition) making a total possible maximum secured amount of $97,300.00. Admittedly the property sold at the foreclosure sale for $36,-500.00. The deed of trust under which it sold, only secured $32,500.00 leaving $4,000.00 unexplained. At the foreclosure sale Commerce Union Bank had a contract to sell the house for $110,000.00 but only made a bid which, when added to the maximum possible outstanding first mortgage of $64,800.00, made an aggregate price of $97,300.00 or $12,-700.00 less than the known sale price.

It is true, as insisted by appellant, that this record is deficient in certain details, especially the amount due upon the various claims at the time of the foreclosure and the application of the proceeds of the sale. However, sufficient details are in the record to conclusively exclude appellant from participation in the proceeds of the foreclosure sale or the subsequent private sale to the Johnsons.

At the time of the foreclosure sale, the principal amount of the $64,800 first mortgage was outstanding, but it was not involved in the foreclosure or proceeds because the property was sold subject to the prior mortgage of $64,800 which remained a first lien on the property even after the sale of the equity of the McCords in the property.

The foreclosure sale was held to satisfy the $32,500 second mortgage to Commerce Union Bank. The amount of accrued interest, fees and expenses of sale is not shown. Thus, the $36,500 sale price did produce a surplus of $4,000 over the principal amount to be satisfied.

With respect to the rights of junior encumbrances entitled to the surplus, it is generally held that the senior mortgagee, realizing more than his debt at a foreclosure sale is to be regarded as trustee for their benefit. 59 C.J.S. Mortgages, § 596, p. 1034.

It is axiomatic that the rights of successive junior lien holders are in their order of priority. That is, as between two successive junior lien holders, the prior junior lien holder is entitled to satisfaction in full before any payment to a lien holder of lesser priority.

In the present case, Commerce Union chose to foreclose on its September, 1981 mortgage of $32,500.

The next junior lien on the property was the November 1982 trust deed securing the increase from $32,500 to $42,161.91 an increase of $9,661.91.

Thus, after satisfaction of the 1981 debt of $32,500, the next debt in priority was the 1982 debt of $9,661.91 due Commerce Union. By priority of time, it was entitled to satisfaction before any payment to Third National on its 1983 lien.

In other words, if there was a $4,000 surplus from foreclosure, Commerce Union was entitled to apply it as a credit on the next in priority among liens, the 1982 mortgage of $9,661.91, which would exhaust the $4,000 surplus and leave nothing for Third National on its 1983 lien.

When property is sold at foreclosure, the purchase price is substituted for the debtor’s interest in the property, and the purchaser takes debtor’s interest in the property free of any liens junior to the lien being enforced by foreclosure.

The holder of the senior mortgage, who has purchased the property for the amount of his debt is not required to surrender the property to a junior encum-brancer on receipt of the amount of his claim. 59 C.J.S. Mortgages, § 502, p. 1015.

Accordingly, the mortgagee who has bid more than his debt is required only to account for the disposition of the surplus of his bid over his debt, and not for any amount received from a future sale of the property to others. That is to say, Commerce Union is not accountable to Third National for any surplus of the amount received from the sale to the Johnsons. Even if Commerce Union derived a profit on the sale after satisfying all debts due Commerce Union, this would be immaterial, for a purchaser at foreclosure is entitled to sell at a profit if he can do so.

In any event, the uncontradicted evidence shows that the amount received from the Johnsons ($110,000) was less than the total of the mortgage liens held by Commerce Union ($112,354), all of which were prior in time to the lien of Third National.

Thus, by any measure, there was no surplus for application to the debt of Third National.

No merit is found in any of the arguments made on behalf of appellant.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against appellant. The cause is remanded to the Trial Court for collection of costs and any other proceedings which may be necessary and proper.

Affirmed and Remanded.

CANTRELL and KOCH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    David ARTRIP and Diane Artrip, Plaintiffs-Appellees, v. David CRILLEY and Shelley Ford Crilley, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section, at Knoxville.
    Jan. 11, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.

      Mindy Norton Seals, Morristown, for plaintiffs-appellees.
    Carl R. Ogle, Jr., Jefferson City, for defendants-appellants.
   NEARN, Presiding Judge, Western Section.

This is an appeal from a judgment in favor of plaintiffs in a boundary line dispute.

Eight issues are suggested for our consideration by counsel for appellants. Three of these have to do with the record on appeal and it is conceded that if appellants cannot prevail on the “record” issues, the other issues are moot. Appellants cannot prevail on the “record” issues and the judgment below will be affirmed.

Present counsel for defendants-appellants did not represent them at trial. Defendants elected to defend pro se. A full trial was had and judgment rendered in favor of plaintiffs as aforesaid. Defendants then decided to obtain counsel. In attempting to prepare his appeal counsel learned that plaintiffs had engaged the services of a Court Reporter who had taped the proceedings but had not transcribed the proceedings as counsel for plaintiffs had no desire to appeal. Appellants’ counsel then sought to have the Court order the tape turned over to him. The Court denied the request. That denial is one of the “record” issues. Then, appellants prepared a statement of the evidence with information provided by his clients. That statement was objected to by counsel for plaintiffs-appel-lees who filed her version of a statement of the evidence. By order of the Court, appellants’ statement was rejected and appel-lees’ statement was approved by the Court. That approval is the subject of the remaining “record” issues.

The Trial Court is the final arbiter of the transcript or statement of the proceedings. Rule 24(b)-(f), T.R.A.P. Whether the proceedings be memorialized by a stenographer, tape or by counsel’s memory, it is subject to correction. Stenographers may err, tapes may be altered and memories may fail. When a dispute arises, the one who directed the proceedings, the Trial Judge, is not only the best one, but is the only one who can resolve such disputes absent extraordinary circumstances, such as the death of the Trial Judge. See 24(e), T.R.A.P. Whether or not counsel, who was not at the trial, feels that he could or might have been able to file a more “complete” transcript of the evidence with the aid of the tapes is now completely immaterial. The Trial Judge has approved a statement of the evidence and by the act of such approval certifies that such record is true, fair and, for appellate purposes, complete. In addition, we note that when counsel for appellant filed his statement of the evidence, which was after access to the tapes was denied, counsel listed his issues for appeal. None of those issues remotely refer to the denial of access to the tapes and we do not believe he is even entitled to raise the issue now, although we to some extent consider it.

Next, counsel insists that we may not review the approved statement of the evidence because the Trial Judge approved it by separate signed order and did not “verify” the actual statement of the evidence by affixing his signature on the face of the statement itself. Of course, no part of the Tennessee Rules of Appellate Procedure is cited as authority for such proposition because the Rules contain no such provision. Instead, counsel cites us to 50 year-old cases concerning “Bills of Exceptions” under long ago repealed statutory procedure. This issue is without merit.

The last “record” issue falls in the same category as the previous one. The gist of the issue is that appellant should

have been allowed 15 days after the appel-lee filed his statement of the evidence to file objections thereto. Appellant’s counsel admits that Rule 24(c) does not so provide, but feels that he has some how been injured by the failure of the Rules to provide him the 15 days. As stated in counsel for appellee’s brief, “Such a rule would be nonsensical; it is unnecessary for the appellants to file objections when they had previously filed their statement of the evidence.” We would add to that observation this query — What could he file, other than refile what he had already filed as his version?

There is no merit to any issue and the judgment below is affirmed with costs of appeal adjudged against appellant and surety.

Done at Knoxville in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

TOMLIN and CRAWFORD, JJ., concur.


author: HIGHERS, Judge.

text:
    Grady O. WESTBROOK, Jr. and Wife, Sherry E. Westbrook, Plaintiffs-Appellants, v. ILLINOIS CENTRAL GULF RAILROAD, A Corporation, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Jan. 16, 1985.
    Permission to Appeal Denied by Supreme Court March 25, 1985.

      Carroll C. Johnson, Carroll C. Johnson, III, Johnson & Bateman, Memphis, for plaintiffs-appellants.
    John W. Chandler, Jr., Burch, Porter & Johnson, Memphis, for defendant-appellee.
   HIGHERS, Judge.

On January 4, 1982, near 6:00 p.m., the plaintiff, Grady 0. Westbrook, Jr., struck an empty railroad flatcar in defendant’s train at a crossing on Channel Avenue in Memphis. The flatcar was part of a string of empty flatcars being pushed through the crossing at the time of the accident. The crossing was marked only by a cross buck, but plaintiff was familiar with the crossing, having passed this point twice each working day for at least two years.

The plaintiff suffered amnesia as a result of the collision and gave no testimony concerning the details of the accident. Other witnesses said, however, that the headlights of oncoming traffic on Channel Avenue were visible over the tops of the flatcars and that there were no railroad flagmen or flares signaling the presence of the train on the crossing. Photographs of the site show streetlights immediately on either side of the crossing, but at least one witness stated that he did not recall whether any streetlights were operating.

The plaintiff averred that the defendant violated T.C.A. § 65-12-108 and § 34-8 of the Memphis Municipal Code. The ordinance requires that the railroad or railroads using a crossing install automatic or manual signal lights “for the purpose of giving warning and notice of the approach of locomotives....”

At the close of the plaintiff’s proof, the trial court granted defendant’s motion for directed verdict. The court in its judgment stated that plaintiff was guilty of contributory negligence as a matter of law. In explaining his ruling to the jury, the trial court pointed out that the statute was inapplicable to the ease.

The plaintiffs chief argument is that the circumstances of the accident created an ultrahazardous crossing by giving the impression that there was no obstruction on the tracks because the flatcars were so low that lights from traffic opposite the crossing were plainly visible. The defendant contends that the plaintiff was not only contributorily negligent as a matter of law but also that the defendant was not guilty of any negligence.

Before addressing the arguments, we take note of the fact that this appeal comes to us from a judgment based on a directed verdict. With the case in such a posture, we must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary. The trial court’s action may be sustained only where the evidence is uncontradicted and a reasonable mind could draw but one conclusion. Bowers v. Potts, 617 S.W.2d 149 (Tenn.App. 1981).

The defendant argues that the railroad is simply not guilty of any negligent act. Indeed, as held in McCampbell v. Central of Georgia Ry. Co., 194 Tenn. 594, 253 S.W.2d 763 (Tenn.1952), the statute cited by the plaintiff is inapplicable to a case of an automobile running into the side of a train. The Court stated “that this subsection did not apply to the case of an automobile running into the side of a train at a road crossing ... [it was] designed to prevent persons from entering upon the track.” (Emphasis added). 253 S.W.2d at 764. Likewise, the ordinance relied upon by the plaintiff expressly states that it is “for the purpose of giving warning and notice of the approach” of a train upon the crossing (emphasis added).

Even if the defendant had been negligent, however, contributory negligence on the part of the plaintiff will bar recovery. See McCampbell v. Central of Georgia Ry. Co., supra. Under normal circumstances, one who collides with the side of a moving train at a railroad crossing, with which the plaintiff was familiar, would be guilty of contributory negligence as a matter of law. Bachman v. Illinois Central Railroad Company, 132 Ill.App. 277, 268 N.E.2d 42 (1971).

In Jeffreys v. Louisville & Nashville Railroad Company, 560 S.W.2d 920 (Tenn.App.1977), Judge Nearn, writing for this Court in a factually similar case, held the plaintiff to have been guilty of contributory negligence as a matter of law where the plaintiffs automobile was struck by defendant’s train as the vehicle crossed the tracks. When the train had already reached the crossing, as here, however, an even more compelling case is made out for a finding of contributory negligence in that the presence of a moving train upon the crossing is itself notice and a warning of danger. See, e.g., Waits v. St. Louis-San Francisco Railway Company, 216 Kan. 160, 531 P.2d 22 (1975).

An exception to the general rule is one in which the conditions of the crossing create an ultrahazardous situation. An ultrahazardous situation or a trap exists where the conditions at a railroad crossing are such that the railroad employees knew or should have known that a motorist might not be able to see the railroad in time to avoid a collision. See Illinois Central Railroad Company v. Williams, 135 So.2d 831 (Miss.1961). In the case at hand, however, we find that an ultrahazardous condition did not exist as a matter of law.

Although empty flatcars and hopper cars are sometimes said to present a danger, in Wright v. Illinois Central Gulf Railroad Co., 550 S.W.2d 489 (Ky.1977), the plaintiff ran into the side of a train of empty, black coal hoppers. The court said that “moving railroad cars on their tracks, though the cars be black as pitch, and in the darkness of night, do not create an extra hazardous crossing. The train in such a case is rightfully occupying the crossing. The fact that it is there is sufficient warning to the traveler upon the highway.” 550 S.W.2d at 491. In a Missouri case involving a flatcar, the trial court sent the matter to the jury, declining to find contributory negligence as a matter of law. Carson v. Baldwin, 144 S.W.2d 184 (Mo.1940). In that case, however, the crossing was unlighted and unmarked and the train was not in motion. The courts have generally regarded moving trains as significantly more visible than standing trains. See 84 A.L.R.2d 818. We, therefore, hold that the conditions existing at this crossing were insufficient to create an ultrahazardous situation.

In McCampbell v. Central of Georgia Ry. Co., supra, plaintiffs decedent had driven his automobile into the side of defendant’s train at night while the train was moving through a crossing. The court found that these facts presented “conduct upon the part of the deceased which, in the absence of any explanation, forces all reasonable minds to conclude that he was guilty of proximate contributory negligence barring his recovery ...” 253 S.W.2d at 764. In Bachman v. Illinois Central R.R. Co., supra, the plaintiff was held to be contributorily negligent as a matter of law for running into the side of a moving train in patches of fog at night at a crossing with which the plaintiff was familiar and which was marked by a crossbuck. Significantly, in that case, as here, the plaintiff was familiar with the crossing. “Whether one is familiar with the railroad crossing seems to be a factor in determining whether he is guilty of contributory negligence.” Note, Negligence—Failure to Stop at Railroad Crossing—Contributory Negligence as a Matter of Law, 34 Tenn.L. Rev. 709, 711 (1967).

For the reasons stated, we hold that the proximate cause of the accident was the negligence of the plaintiff, and that he would be barred from recovery by contributory negligence as a matter of law even in the event of negligence by the defendant.

The judgment of the trial court is affirmed. Costs are assessed against the plaintiff-appellant.

NEARN, P.J. (W.S.), and CRAWFORD, J., concur.


text:
    J.H. EDWARDS, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY, Gallatin Truck Sales, Inc., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Jan. 24, 1985.
    Application for Permission to Appeal Denied by Supreme Court March 25, 1985.

      Gary D. Copas, Lebanon, for plaintiff-appellant.
    Noel F. Stahl, Nashville, for Intern. Harvester Co.
    William P. Sutherland, Nashville, for Gal-latin Truck Sales, Inc.
   NEARN, Presiding Judge, Western Section.

Plaintiff filed suit against International Harvester Company, a manufacturer of trucks and its dealer, Gallatin Truck Sales, Inc. The complaint, in essence, charged that plaintiff purchased a new International Truck for use in his business that was not as represented and, in short, turned out to be a “lemon.” On motion of the defendants at the close of the plaintiffs proof, the Trial Judge directed verdicts for all defendants and plaintiff has appealed.

Counsel for appellant lists five issues on appeal. They are redundant. As we perceive the case there are only two issues, viz.:

1. Whether there is material evidence presented by the record of misrepresentations of the defendants so as to withstand a motion for directed verdict, and, if so,
2. Whether the Trial Judge erred in excluding evidence of damages proferred by the plaintiff?

In part, we answer both issues in the affirmative.

In ruling on a motion for a directed verdict made at the close of the plaintiff’s proof, it is the duty of the Trial Court and this Court to

take the strongest legitimate view of the evidence in favor of the plaintiff, allow all reasonable inferences to be drawn therefrom in his favor, discard all countervailing evidence and deny the motion if there is any doubt as to the conclusions to be drawn from the whole evidence; a verdict should be directed only if reasonable minds could draw but one conclusion. Sauls v. Evans, (1982 Tenn.) 635 S.W.2d 377, 379.

The record reveals that plaintiff is in the business of hauling rock and/or asphalt for hire. He had been self employed in that business for approximately thirty-three years prior to purchasing the truck in question. Previously, plaintiff had been financially able to purchase only used trucks for his one man business. However, over the years, by operating frugally and developing a decent credit rating with the bank, he finally found himself, with the aid of bank credit, in a position where he could buy his first new truck. Having heard from others in the rock hauling business that International Harvester manufactured a “good” truck for his purposes, he obtained brochures published by International Harvester and went to its dealer, Gallatin Truck Sales, to see about purchasing a truck.

From the record, it appears that purchasing heavy duty trucks for hauling is not ordinarily accomplished in the same manner as buying an automobile or a simple pick-up truck, that is to say, one does not usually walk out to a lot full of trucks designed for a particular purpose and choose the finished product. Because of the various particular uses to be made by the user of the product, International builds the cabs and frames of the vehicles with various numbers of rear axles so that the user may select the proper vehicle for the load required and then have someone else build and install the type of truck bed best suited for the items to be hauled or transported. The brochure, published by International, upon which plaintiff testified he relied, provided, after touting several models of its trucks:

You’ll get more than a good deal on a cost-cutting truck. You get the help of a dealer who’s an expert at matching the right truck to your specific needs — and after the sale, you’ve got the largest, most complete, most experienced parts and service system in the industry.

Plaintiff testified that he did as the brochure suggested and went to the “expert” dealer to help him match the right truck to his needs. He took with him a form furnished by the state of Tennessee for licensing purposes which pictured in diagram form trucks with various numbers of axles and bed configurations indicating maximum gross weight for each style. Plaintiff testified that he showed this form to the salesman and indicated he desired to purchase a truck with a 68,000 pound capacity. The diagram for such a truck indicated one with three axles under the bed. Gallatin did not have in stock such a three axle vehicle, but did have a two axle vehicle. Plaintiff testified that Gallatin’s salesman informed him that an additional axle and a rock/asphalt type and size bed could be installed by Rogers Manufacturing Company, which was in the business of doing such work. Gallatin then called Rogers to determine the size bed needed for the intended use. Plaintiff agreed to purchase the diesel truck from Gallatin with alterations made by Rogers. The alteration contract was a separate contract between plaintiff and Rogers, which is not a party to this action.

The truck as altered suffered numerous breakdowns and the plaintiff testified to a lengthy litany of woes with the truck following its purchase. Plaintiff’s proof shows that International, through Gallatin, performed much warranty work on the engine and power steering to no avail. The proof shows that the truck, after its last mishap, had no value other than as salvage or junk. Plaintiff testified that because of the numerous repairs, he suffered much “down time” and was unable to use the truck for hauling when it was either in for repairs or simply not operable; plaintiff testified the truck’s problems caused him considerable loss of income.

The record clearly shows that the Trial Judge directed a verdict for the defendants on the ground that plaintiff had not properly proved any ascertainable damages.

Regardless of the proof of damages issues, it is the insistence of International that the action of the Trial Judge was correct because the only misrepresentations with which the plaintiff charged International were regarding the expertise of the dealers who sold International products and the alleged agency relationship between Gallatin and International. International was not charged with breach of warranty actual or implied. Its liability was sought to be established through its alleged misrepresentation regarding the expertise of its alleged agent, Gallatin. We must agree with the position taken by International Harvester. There is absolutely no proof in the record that the salesmen working for Gallatin Truck Sales were not experts as represented in International’s brochure. What plaintiff’s evidence tended to prove was that, in this instance, a Galla-tin salesman failed to match plaintiff with the right truck for his needs. Even experts are capable of error and the fact that an expert has erred does not of itself render the erring party a non-expert or unqualified. See McElroy v. Boise Cascade Corp., (1982 Tenn.App.M.S.) 632 S.W.2d 127, 131.

Nor is there any proof in this record that Gallatin Truck Sales was the agent of International. Both defendants admit that there is a dealership relationship, but that does not equal an agency relationship. An important element of an agency relationship is that “the object of the contract be for the benefit of the principal.... [T]he principal test of agency is whether the principal has the right to control the conduct of the agent with respect to matters entrusted to the agent.” Nidiffer v. Clinchfield Railroad Co., (1980 Tenn.App.E.S.) 600 S.W.2d 242, 245. Plaintiff failed to put on any proof that Gallatin Truck Sales sold International Trucks for the sole benefit of International Harvester and, indeed, plaintiff would have found it impossible to do so. As long as Gallatin paid International for its trucks, Gallatin could have destroyed the trucks or put them on a back lot forever.

This case is distinguishable from American Buildings Co. v. White, (1982 Tenn.App.W.S.) 640 S.W.2d 569, in that the dealer in White was found to be an agent of the manufacturer because first, the manufacturer’s brochure represented him as such and second, the brochure promised that the manufacturer would design the proper product with the information furnished by its dealer and with his assistance. Further, the brochure in White promised that the manufacturer would design a product that would custom fit the buyer’s needs. In this case there is no proof that International ever represented that it would design anything for plaintiff’s particular use. Therefore, we must affirm the dismissal as to International Harvester.

As to Gallatin Truck Sales, plaintiff alleged that the dealer was guilty of negligent misrepresentation, breach of express warranty and breach of implied warranty of fitness for a particular purpose. Plaintiff testified that Jake Warden, an employee of Gallatin, assisted him in choosing and buying the International truck and that after plaintiff had informed him that he needed a three axle truck with a custom bed to haul crushed stone, Mr. Warden replied that the International truck he was purchasing would go anywhere and do anything he wanted, within reason. Plaintiff testified that he relied on this representation and that, further, Mr. Warden made the arrangements with Rogers Manufacturing Company to install the custom bed.

T.C.A. § 47-2-315 (Supp.1984) provides, in relevant part:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is ... an implied warranty that the goods shall be fit for such purpose.

We conclude that, based on plaintiff’s proof, reasonable minds could differ on the issue of Gallatin’s alleged breach of implied warranty of fitness for a particular purpose.

Turning now to the issue of damages, the Trial Judge’s conclusion was that the plaintiff’s offer of proof on damages was speculative and uncertain. Because of this conclusion, the Trial Judge denied the plaintiff’s motion to admit into evidence proof of what money he made when he owned a fully operational truck and what he made during the period he owned this International truck in order to show a loss of $32,000.00.

The appellant in the case of Ford Motor Company v. Taylor. (1969 Tenn.App.M.S.) 60 Tenn.App. 271, 446 S.W.2d 521, complained that similar evidence presented in that case was too speculative to support a verdict just as the appellee in this case insists that such evidence is too speculative to warrant admission. The Court’s observations about the proof regarding damages in the Ford v. Taylor case apply, in like manner, to plaintiffs proof of damages in this case:

Plaintiff supported his estimate with factual information from his own experience and that of others. Testimony about prospective profits must to some degree be the result of estimation, but where, as in this case, it is supported by factual information and uncontradicted, it is sufficient to justify a recovery.

Just as in Ford, the appellee in this case insists that all elements of profit and loss were not taken into consideration in the proof proffered by plaintiff and, therefore, plaintiffs proof was inadmissible. Again, we concur with the Ford Court that such an argument is meritless.

This complaint goes to the weight and not the admissibility of the evidence. The finder of fact is under a duty to make its own estimate of the actual damages sustained rather than to mechanically accept the estimate of a particular witness.

Also, in Cummins v. Brodie, (1983 Tenn.App.M.S.) 667 S.W.2d 759, at 765 the Court held:

Uncertain and speculative damages are prohibited only when the existence of damage is uncertain, not when the amount is uncertain. When there is substantial evidence in the record and reasonable inferences may be drawn from that evidence mathematical certainty is not required.

The existence of damages to the plaintiff is shown by this record and the evidence should have been admitted.

The result is that we affirm the dismissal of International but reverse the judgment of the Trial Court dismissing with prejudice plaintiffs claim against Gallatin Truck Sales, Inc., and remand the case for a new trial consistent with this opinion. The judgment for International Harvester is affirmed.

Costs are assessed against Gallatin Truck Sales, Inc.

Done at Nashville in the two hundred and ninth year of our Independence and in the one hundred and eighty-ninth year of our Statehood.

TOMLIN and CRAWFORD, JJ., concur.


author: O’BRIEN, Judge.

text:
    STATE of Tennessee, Appellee, v. James WEBSTER, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Nov. 7, 1984.
    Permission to Appeal Denied by Supreme Court March 11, 1985.

      William M. Leech, Jr., Atty. Gen. & Reporter, Ann Lacy Johns, Asst. Atty. Gen., Nashville, Phyllis Gardner, Asst. Dist. Atty. Gen., Memphis, for appellee.
    Walker Gwinn, Asst. Public Defender, Memphis, for appellant.
   OPINION

O’BRIEN, Judge.

Defendant was indicted by the Shelby County Grand Jury on separate indictments for common assault, and for malicious mischief. In a jury trial he was acquitted on the assault charge and found guilty of malicious mischief. The trial judge fixed his sentence at nine months to be served in the Shelby County Correctional Center, plus a Fifty Dollar ($50) fine.

Three issues are raised on this appeal for our consideration: (1) the sufficiency of the evidence; (2) the effectiveness of defendant’s privately retained trial counsel; (3) whether defendant’s pro se motion indicates plain, prejudicial error. We first consider the sufficiency of the evidence.

James Webster and his wife, Gladys, were divorced in 1978 after an apparently stormy marriage of many years duration. The divorce did not settle their differences. On June 13,1982 Gladys Webster was staying, at least temporarily, at the home of Allen Edward Simmons. Well on toward midnight Mr. Webster called the Simmons residence, inquiring if his ex-wife was there. The record indicates that he and Simmons engaged in a somewhat heated conversation. The following morning James Webster and Gladys Webster had a telephone conversation which he concedes was instigated by him. After some talk about a recording he had taped on his telephone, she first agreed, then subsequently declined, to go to her own residence, where he was staying, to listen to the tape. This conversation, too, developed into a rather argumentative exchange between the two and, according to her, which he denied, he informed her he was coming to the Simmons residence. When the phone call was concluded she left the house. Shortly thereafter, an across-the-street neighbor, John Wiles, observed an individual, whom he identified as defendant, drive up in a jeep, walk into the Simmons’ yard, and slash the tires on a pick-up truck parked there. He then picked up an object from the yard and proceeded to beat in an air conditioner located in the house window. He walked around behind the house where he was out of sight for a few minutes, re-appeared, got in his vehicle, and drove away. According to Simmons when he returned home that evening he observed the four tires on his pick-up truck had been slashed, the back of his air conditioner had been knocked in, and the tires on a boat trailer had been slashed. It was not until he received a subsequent phone call from Mr. Webster that he became aware that his boat motor had been damaged also. James Webster made a general denial of the charges against him and offered an explanation of the turbulent relationship which had existed between him and Gladys Webster both before and subsequent to their divorce.

When the sufficiency of the evidence is challenged the determinative question is whether a rational fact finder could find an accused guilty beyond a reasonable doubt. There is no requirement that the State’s proof be uncontroverted or perfect. State v. Williams, 657 S.W.2d 405, 410 (Tenn.1983). It is the duty of the jury to reconcile conflicts in the testimony, if they can do so with reason and truth. If there are irreconcilable conflicts in the testimony, the jurors are to say who and what is to be believed. Withers v. State, 523 S.W.2d 364, 369 (Tenn.Cr.App.1975). It is not the function of this Court to reweigh the evidence at a criminal trial. A guilty verdict, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in the testimony in favor of the theory of the State. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978). The evidence was sufficient in this case to allow a rational trier of fact to find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). T.R.A.P. Rule 13(e).

On the effectiveness of defendant’s trial counsel, it is argued that counsel was ineffective because he did not take the stand to say he had seen the witness, John Wiles, in the courtroom during a prior court proceeding. In the motion for new trial defense counsel declared he was ineffective because he did not understand at trial that he could have testified for his client. The argument is made that Wiles was able to identify defendant only because his wife had pointed him out to the witness in the courtroom on the prior occasion and this was a material fact about which counsel’s failure to testify constituted ineffective assistance under the standards of Baxter v. Bose, 523 S.W.2d 930 (Tenn.1975). We disagree with that assessment. The testimony of defense counsel at trial was neither professionally nor factually appropriate. Tennessee Supreme Court Rule 8, Canon 5, EC 5-9, states what we consider to be the proper approach to the issue:

“Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.”

Although there is no prohibition against an attorney testifying in a case, Bowman v. State, 598 S.W.2d 809, 811 (Tenn.Cr.App.1980), it is a practice which should not be engaged in except under the most exceptional circumstances. It is a matter which is discretionary with the trial judge. Defendant testified that at his City Court arraignment he was pointed out to the witness, John Wiles. Wiles, on the otherhand, testified that he had not seen defendant in City Court. Defense counsel filed an affidavit to defendant’s motion for new trial that he had seen Mr. Wiles in the City Courtroom on June 28,1982, in company with at least one of the complaining witnesses. There was nothing in the affidavit to indicate he had observed any of the witnesses pointing out defendant to Wiles, or anything of that nature. Under the circumstances his evidence was not material and its omission was not error. The trial judge expressed a similar view and it is not the function of this Court to second guess him in that regard. The trial judge found defense counsel’s representation to be thorough and capable throughout the trial, and we concur in that conclusion.

We are asked to consider defendant’s pro se statement which is incorporated in a brief filed by him in this Court. We have read this document at length. It contains a prolonged attack setting forth many examples of what defendant terms to be perjury on the part of his ex-wife, and the other witnesses who testified against him. These charges are not supported by the record. He has made an orchestrated attack against his retained trial counsel, the member of the Public Defender’s staff who represented him at trial, the prosecuting attorney, each of the witnesses who testified against him, and the trial judge. We have examined each of these charges, and after due consideration we find them to be without merit.

The judgment of the trial court is affirmed.

DAUGHTREY and CORNELIUS, JJ., concur.


text:
    STATE of Tennessee, Appellee, v. Ronald Lin JAMES, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Dec. 27, 1984.

      William M. Leech, Jr., Atty. Gen. & Reporter, John P. Southworth, Jr., Asst. Atty. Gen., Nashville, Charles E. Hawk, Dist. Atty. Gen., Roger Delp, Asst. Dist. Atty. Gen., Kingston, for appellee.
    Charles B. Hill, II, Kingston, for appellant.
   OPINION

O’BRIEN, Judge.

The case comes from Roane County. The defendant, Ronald Lin James, was found guilty on eight charges of uttering a forged instrument, and eight charges of forgery, four counts of each offense over $200, and four counts under $200. He was sentenced to imprisonment for one (1) year on each of the eight counts under $200, for three (3) years on each of four counts over $200, and six (6) years on the remaining four counts over $200. The trial court ordered some of the sentences to be served concurrently, and some consecutively, effectively sentencing defendant to fourteen (14) years imprisonment.

The record shows Robert Branson either lost or had his wallet stolen in the summer of 1982. Contained in the wallet at the time were a Proffitt’s charge card and his driver’s license, No. 44081229, showing his address to be 602 Peachtree Lane, Kingston, among other things. Mr. Branson testified he had no post office box in Harri-man, Tennessee, no accounts with the Bank of Roane County, and did not know defendant.

On December 1, 1982, Post Office Box 1332, Harriman, Tennessee, was obtained in the name of Robert Branson, of 602 Peachtree Lane, Kingston. On the same day, defendant opened a checking account at the Bank of Roane County in the name of Robert Branson. The address on the checks was P.O. Box 1332, Harriman, the residence shown on the account application is 602 Peachtree Lane, Kingston. Identification used in obtaining both the checking account and the post office box was Tennessee Driver’s License No. 44081229.

On December 17, 1982, defendant wrote checks on the Roane County bank account to the Rockwood Outlet, K-Mart; Pruitt’s Food Town, Kroger’s and White’s Auto Store. On December 18,1982 he wrote one check to Radio Shack and two checks to TG & Y. Defendant was identified by witnesses as the person who wrote the checks to the Rockwood Outlet and Pruitt’s Food Town. For each of the eight checks, two forms of identification were used; a Prof-fitt’s charge card and Tennessee Driver’s License No. 44081229. Seven of the checks were returned for insufficient funds. The check made to Radio Shack was not presented for payment.

In his first issue, defendant contends the trial court erred in imposing consecutive sentences and in failing to indicate a reason for doing so, as required by Tenn.R.Crim.P. No. 32. The record indicates at the time of sentencing, defendant had criminal charges pending in two Tennessee counties; an extensive criminal history in Florida; and was wanted by the State of Florida for violation of probation and leaving the scene of an accident in which a death was involved.

Whether sentences are to be served concurrently or consecutively is a matter addressed to the sound discretion of the trial court. State v. Cannon, 661 S.W.2d 893, 900 (Tenn.Cr.App.1983). The trial court erred in failing to state his reasons for imposing consecutive sentences, however we find the error harmless. The record clearly shows defendant to be both a persistent and a multiple offender under the guidelines of Gray v. State, 538 S.W.2d 391, 393 (Tenn.1976). Where the reasons for the ruling are both obvious and sufficient, remand is unnecessary. State v. Mosley, 667 S.W.2d 767, 771 (Tenn.Cr.App.1983), also Anderson v. State, 553 S.W.2d 85, 88 (Tenn.Cr.App.1977).

Defendant next complains the trial court erred in allowing certain exhibits into evidence, to wit: Exhibit 1 — check # 142, drawn on the Bank of Roane County, account #408 500 for $161.64, by Robert Branson, Rockwood Outlet, payee; Exhibit 6 — check # 141, drawn on the Bank of Roane County, account #408 500, for $284.23, by Robert Branson, Kroger, payee; Exhibit 11 — application for post office box by Robert Branson; Exhibit 12— signature card for Bank of Roane County. Defendant contends the prosecution failed to provide him with discovery of the handwriting tests on Exhibits 1 and 6, and failed to properly identify or show the relevancy of Exhibits 11 and 12.

The record shows two identical discovery requests filed by defendant. Neither motion contains a request for the re-suits of tests or examination as provided for in Rule 16(a)(1)(D), Tenn.R.Crim.P. The State’s request and response indicates some of the checks to be presented at trial had been examined by the Memphis Crime Laboratory. The results were made available to defendant. Exhibits 1 and 6 were examined by a document analyst from the Memphis Crime Laboratory in the office of the District Attorney just prior to trial. The other checks were examined by the same analyst in Memphis. The State insists defendant made no request for the test results, therefore there can be no compliance. The record supports the position of the State.

Assuming, arguendo, there was non-compliance, the trial court has great discretion in fashioning a remedy. Rule 16(d)(2), Tenn.R.Crim.P. The sanction applied must fit the circumstances of the individual case. State v. Cadle, 634 S.W.2d 623, 625 (Tenn.Cr.App.1982). Evidence should not be excluded except when it is shown that a party is actually prejudiced by the failure to comply with discovery and that the prejudice cannot be otherwise eradicated. State v. Garland, 617 S.W.2d 176, 185 (Tenn.Cr.App.1981); State v. Briley, 619 S.W.2d 149, 152 (Tenn.Cr.App.1981). The record shows defendant was fully aware a handwriting expert had examined some of the proposed exhibits and would be called at trial. Under these circumstances, defendant could hardly have been surprised the prosecution would make full use of this witness. Exclusion was not called for.

Exhibits 11 and 12 were introduced by a United States Postal Inspector for identification purposes; he had submitted these and other exhibits to the Memphis Crime Laboratory. The expert witness testified both exhibits were penned by the same hand as Exhibit 10, which was several handwriting exemplars made by defendant. Defendant insists these exhibits were not properly identified and were not relevant.

We agree neither exhibit was properly identified. Both were admitted for identification with the promise of the prosecutor to “connect-up”; neither was connected and both should have been stricken. See Delk v. State, 590 S.W.2d 435, 438-9 (Tenn.1979). The error was harmless.

Defendant next argues the trial court erred in allowing improper identification evidence to be admitted. Witnesses Annette and Nancy Hamby were shown a photographic array from which each chose defendant’s picture. Each identified defendant in court. We have examined the photographs and find them to portray persons reasonably similar in appearance. We are therefore unable to agree with defendant’s argument that the procedure was so unreasonably suggestive as to lead to the likelihood of irreparable misidentification. State v. Hall, 632 S.W.2d 565, 567 (Tenn.Cr.App.1982).

Finally, defendant contends the evidence is insufficient to support the verdict. Specifically, he contends there was no evidence to show defendant wrote the check to White’s Auto, and that there was no evidence tending to show defendant intended to deceive and defraud Robert Branson as alleged in the forgery indictments, thus a fatal variance exists and these counts should be dismissed.

The witness from White’s Auto Store could not identify defendant as the passer of the check; this check was not presented to the handwriting expert for testing. However, this check is drawn on the same account and is in the same number series as those which were identified. This circumstantial evidence is sufficient. See State v. Crabtree, 655 S.W.2d 173, 176 (Tenn.Cr.App.1983).

Forgery is the fraudulent making or alteration of any writing to the prejudice of another’s rights. T.C.A. § 39-3-802. The offense is complete by the forgery with fraudulent intent, whether any third person be actually injured or not. It is sufficient the instrument forged with the fraudulent intent, might have been prejudicial to the rights of another. Ratliff v. State, 133 S.W.2d 470, 471,175 Tenn. 172 (1939). There is sufficient evidence in the record to indicate defendant knowingly-represented himself to be Robert Branson in order to deceive and defraud others. We find no variance here. See generally, State v. Moss, 662 S.W.2d 590 (Tenn.1984).

Finding no reversible error, the judgment is affirmed.

WALKER, P.J., and DWYER, J., concur.


text:
    STATE of Tennessee, Appellee, v. Raymond Eddie HAWK, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Jan. 3, 1985.

      William M. Leech, Jr., Atty. Gen. & Reporter, John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevierville, for appellee.
    Gordon Ball, Ball & Dunn, Newport, for appellant.
   OPINION

O’BRIEN, Judge.

Defendant was brought to trial on a four count indictment in the Cocke County Criminal Court. He was found guilty on Counts 3 and 4 of the indictment on charges of receiving and concealing stolen property over the value of $200. He was sentenced to serve six (6) years in the penitentiary as a Range I offender.

For his first issue defendant says there was a variance between the indictment and the proof in this case. He seems to say in his brief that the State entered a nolle prosequi on the indictment against him, then procured a second indictment on which they took him to trial. He insists this placed him in double jeopardy.

The first problem defendant faces in establishing these contentions is that we have no record of any first trial before us. All we have are the allegations made in the brief, which of course is not evidence and cannot be considered. As nearly as can be gleaned from this record the jury was unable to reach a verdict on the earlier indictment. A mistrial was declared. The charges brought against defendant involved the larceny, receiving and concealing of two automobiles. Apparently a question was raised at the beginning of the first trial relating to the ownership of the stolen vehicles as set forth in the indictment. Subsequent to the mistrial the District Attorney General either recommitted the indictment to be amended, or obtained another, which is in actual fact a presentment. The record is too confused for any clear determination of this issue. The trial judge was of the opinion that either of the indictments was good and we are inclined to agree. We are, however, only concerned with the third and fourth counts of the second indictment for the purposes of this investigation. Defendant was found guilty of receiving and concealing a 1979 white Camaro automobile owned by Paul I. Taylor. The vehicle identification number of the automobile was recited in the indictment. The proof at trial substantiated the allegations in the indictment. There was no variance. Defendant says the variance between the first indictment and the State’s proof justified an acquittal. The jury could not reach a verdict at the first trial. There was a mistrial which created no impediment to defendant’s retrial for the offense.

Defendant says it was error to allow the State to enter a nolle prosequi on the first indictment. There is nothing in this record to show the disposition of that indictment. If it was dismissed, as alleged in defendant’s brief, that is precisely the action which should have been taken before moving to trial on Indictment No. 2. If Indictment No. 1 has not been dismissed that action should be taken.

We are told that Indictment No. 1 laid the ownership of the two vehicles involved in the names of Timothy Ray and Scott Taylor in whose possession they were at the time they were stolen. Indictment No. 2, which is in this record, shows the owners of the respective vehicles to be James W. Ray and Paul I. Taylor, to whom the vehicles were titled. They are the respective parents of Timothy Ray and Scott Taylor. The vehicle identification numbers of both vehicles described in the indictments are included in the description in both Indictment No. 1 and Indictment No. 2. There is no way the defendant could be subjected to double jeopardy under the facts in this case. In State v. Moss, 662 S.W.2d 590 (Tenn.1984), our Supreme Court has clarified the policy followed in this jurisdiction to be that before a variance will be held to be fatal it must be deemed to be material and prejudicial. A variance between an indictment and the proof in a criminal case is not material where the allegations and proof substantially correspond, the variance is not of a character which could have misled the defendant at trial, and is not such as to deprive an accused of his right to be protected against another prosecution for the same offense. Unless substantial rights of a defendant are affected by a variance, he has suffered no harm, and a variance does not prejudice the defendant’s substantial rights if the indictment sufficiently informs him of the charges against him so that he may prepare his defense and not be misled or surprised at trial, and if the variance is not such that it will present a danger that he may be prosecuted a second time for the same offense; all other variances must be considered to be harmless error. See Moss at p. 592. As we have noted there was no such variance between the proof and Indictment No. 2 upon which this defendant was tried. The issue is without merit.

Defendant says the trial court erred in overruling a motion to suppress because a warrantless search was conducted in the absence of exigent circumstances.

After an extended hearing on a motion to suppress the evidence, the trial court found that a Corvette automobile had been stolen in Knoxville, Tennessee. The theft was reported to the police at 11:29 p.m., on July 7, 1982. The police caught the thief. The thief told the officers he had taken the vehicle to the residence of defendant in Cocke County. He told the officers there was another automobile, a white Chevrolet Camaro, on the premises which he also believed to be stolen. He told them these vehicles were to be taken to Roanoke, Virginia in the morning. He led the officers from Knoxville to the vicinity of defendant’s residence in Cocke County. He told them the red Corvette would be in the garage and the white Camaro would be in the driveway. When the police arrived at defendant’s residence it was approximately 4:30 a.m. They were not actually aware they were on defendant’s property until they saw the white Camaro standing in plain view. They confirmed it had been stolen. They asked defendant for, and were denied, permission to search. Some of the officers stayed on the scene to prevent the departure of the stolen Camaro. Another officer left to obtain a warrant to search for the red Corvette. When he returned with the warrant some three and one-half hours later, the red Corvette was found in the garage.

Defendant insists the officers’ intrusion upon his property violated his Fourth Amendment rights. The evidence does not sustain that contention. They were led there by the automobile thief who also had been used in the past by the police as a confidential informant. Information they had received from him previously had been true, accurate, and had led to arrests in at least two cases. It is clear that exigent circumstances existed, as found by the trial judge, which warranted their going on defendant’s property, and would have justified an instant search after they came upon the stolen white Camaro automobile. See generally Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). Exercising an abundance of caution the officers secured the premises while they obtained a search warrant. Defendant relies on this Court’s opinion in State v. Myers, No. 81-266-III, Nashville, February, 1982, for his authority that the intrusion on his property amounted to a Fourth Amendment search and seizure. The distinguishing feature between the facts in the Myers case and the facts here are the unquestioned existence of both probable cause and the need for immediate action to prevent the departure of the stolen automobiles from the jurisdiction. The police had not only the fact of the theft, but information from the thief about where the Corvette had been concealed, coupled with the prior establishment of his credibility as a reliable informant on matters of a similar nature. They were informed the cars were to be taken out of State in the morning. Time was of the essence. Having discovered the Cama-ro, and established it to be stolen, nothing could have been more foolish than to believe the automobiles would have remained at the location where they were found had the police departed the scene. It is not imperative that informants used by the police be infallible. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2335, n. 14, 76 L.Ed.2d 527 (1983). We are satisfied the police here had sufficient exigent circumstances to warrant the temporary seizure of the premises, as well as, under the authority of Gates, supra, probable cause for the issuance of the warrant for the search of the property. Moreover, if truly exigent circumstances exist no warrant is required under general Fourth Amendment principles. United States v. Karo, — U.S. —, 104 S.Ct. 3296, 3305, 82 L.Ed.2d 530 (1984). The issue is overruled.

Defendant has charged that the trial judge should have recused himself because of prejudicial comments made by him prior to trial and prior to sentencing. We note at the outset that defendant has not made reference in his brief to the pages of the record where the purportedly prejudicial comments of the trial judge occurred. We also note that he has attached to his brief certain documents including a copy of a motion, an order denying a motion, and a transcript which makes no reference to this defendant. While an appendix to a brief is authorized by T.R.A.P. Rule 28, the rule also sets out a prescribed procedure for making reference to the record. Failure to follow the prescribed procedure must constitute a waiver of an issue which is raised in the manner employed here.

A motion to recuse is addressed to the sound discretion of the trial judge. In re Cameron, 151 S.W. 64, 126 Tenn. 614 (1912); State v. Henderson, 423 S.W.2d 489, 492, 220 Tenn. 701 (1968). The issue to be determined is not the propriety of the judicial conduct of the trial judge, but whether he committed an error which resulted in an unjust disposition of the case. Wiseman v. Spaulding, 573 S.W.2d 490, 493 (Tenn.App.1978). This case was tried before a jury who determined guilt based upon the evidence presented. We find no remarks or actions of the trial judge before the jury, or any expression of opinion which would infer he favored or was against the defendant. See Leighton v. Henderson, 414 S.W.2d 419, 420, 220 Tenn. 91 (1967). The court’s comments that defendant was a professional criminal were made after conviction, at the sentencing hearing, and were based upon charges in other counties pending against him. In sentencing, any evidence the court deems to be trustworthy and probative may be received, regardless of its admissibility under the rules of evidence. If the evidence is materially false, defendant must attack the reliability, not the admissibility of that evidence. State v. Cadle, 634 S.W.2d 623, 627 (Tenn.Cr.App.1982). The issue is without merit.

Defendant next contends the court improperly admitted evidence of other crimes. He fails to mention in his brief the nature of the crimes on which evidence was purportedly admitted. The State points out in its brief that in an oral motion in limine defense counsel mentioned a University of Tennessee parking permit registered to Timothy Ray Miller. Apparently, during the first trial this receipt was introduced, and there was testimony that the receipt was in Mr. Miller’s car when it was stolen and it was found by the police in defendant’s garage. In this trial, the receipt was introduced as having been found in defendant’s garage. There was no mention of Mr. Miller’s car or whether it was stolen. The State insists the receipt was admissible to show guilty knowledge or intent under the authority of Bunch v. State, 605 S.W.2d 227, 229 (Tenn.1980). Evidence of other crimes may be admissible to show intent to commit the offense at issue in the case on trial if its probative value is not outweighed by its prejudicial effect. See Bunch at p. 229. If the defendant here had been convicted of a crime which related to Mr. Miller’s vehicle, and the parking receipt was evidence of that crime, it may have been properly admitted. There is no indication from the record whether or not this was so, however, under the circumstances, if any error existed in its introduction it was harmless.

The defendant next argues it was error to allow TBI Agent Haynes to give an opinion concerning the uses of certain punches and dies found in defendant’s garage. He cites no authority to support his contentions as required by Tenn.R. Crim.P. 10. No objection was made in accordance with T.R.A.P.Rule 36(a). See Bryant v. State, 549 S.W.2d 956, 957 (Tenn.Cr.App.1977). Accordingly the issue is waived although we have examined the record and find it to be without merit. Agent Haynes identified the items and stated he had seen them used to change identification numbers on automobiles. Defendant testified he used the items to put identification numbers on rebuilt car parts for his personal use. Generally speaking, a witness may testify about facts on which he has firsthand knowledge. State v. Wiseman, 643 S.W.2d 354 (Tenn.Cr.App.1982). The decision to admit or exclude evidence is left to the sound discretion of the trial judge and his decision will not be disturbed unless it has been arbitrarily exercised. Wiseman, supra at 364. The testimony was admissible.

Defendant contends the court erred in allowing the State to establish guilt by association with an individual by the name of Leonard Hutchinson who was an associate of defendant’s and was incarcerated at the time of trial. In examining the record we find it was defendant who brought up the name of Hutchinson. The jury was instructed that Mr. Hutchinson was not anyone’s witness and they were not to be concerned about the reliability of any person not on the witness stand. We find this issue to be without merit.

Defendant complains of the jury instruction in reference to an inference which arises from the possession of recently stolen goods. He argues correctly that it is improper to instruct a jury that a presumption of guilt arises, that if unexplained, is conclusive, or any words of similar import. He charges the trial court instructed the jury that guilt could be inferred merely from the possession of recently stolen goods, and says the court did not instruct the jury that this presumption was not in any sense conclusive.

The jury instructions given in this case are included in the record. While it is possible to look at some phrases or clauses in isolation and reach the conclusion defendant has drawn in this case, it is the obligation of a jury, as instructed by this trial judge, “to consider each instruction in connection with all the other instructions and in the light of the proof.” The jury instructions in this case were extensive about inferences which may be drawn by the jury. The import of the instructions in that regard was that guilty knowledge must be shown by direct evidence, or might be established by inference when the circumstances surrounding the receipt of the property were such as would charge a reasonable person with notice or knowledge, or put a reasonable person upon inquiry which, if pursued, would disclose its stolen character. The jurors were told it was for them to determine whether such an inference was proper and if proper, how much weight it should receive. They were instructed that in making this determination they were to look to any explanation given or any explanation apparent from the evidence. The judge further instructed them that if they found beyond a reasonable doubt from the evidence, that the property in question had been stolen and that soon thereafter, the same property was discovered in the exclusive possession of the defendant, this possession, unless satisfactorily explained, is ordinarily a circumstance from which they might reasonably draw an inference that the defendant had knowledge that the property had been stolen. They were specifically told they were never required to make this inference and that it was their exclusive province to determine whether the facts and circumstances shown by the evidence in the case warranted any inference which the law permitted the jury to draw from the possession of recently stolen property. The instructions explicated that when evidence is offered that a defendant was found in possession of recently stolen property, he had the right to introduce evidence that he. came into possession of the property lawfully, or possession may be satisfactorily explained through other circumstances or other evidence, independent of his testimony or evidence offered by him. The jury was informed at least seven times that it was the State’s burden to prove the defendant’s guilt beyond a reasonable doubt. They were informed at least four times that it was their duty to determine the weight to be given any inference which could be drawn, and that it was their exclusive province to determine whether the facts and circumstances warranted any inference. We conclude that no reasonable jury could have interpreted the challenged instructions to be mandatory, or conclusive, or shifting to the defendant the burden of persuasion. See State v. Bolin, 678 S.W.2d 40 (Tenn.1984).

Defendant says it was error for the trial judge to instruct the jury that clear and convincing evidence of other crimes could be considered. He then goes on to argue such an instruction is in direct contravention with the principle that the State has the burden of proving guilt beyond a reasonable doubt.

We note, first of all, defendant cites no authority in support of his position. This issue has been waived. T.R.A.P. Rule 27(a)(7); State v. Scott, 626 S.W.2d 25, 28 (Tenn.Cr.App.1981); State v. Eberhardt, 659 S.W.2d 807, 811 (Tenn.Cr.App.1983). Moreover, defendant’s interpretation of the principle of reasonable doubt in conjunction with the jury instruction as delivered is totally erroneous. After properly instructing the jury on the law of circumstantial evidence, in the course of which the jury was expressly advised they must be satisfied of defendant’s guilt beyond a reasonable doubt the trial judge then delivered the following instruction on evidence of other crimes:

“If from the proof you find that the defendant has committed a crime other than that for which he is on trial, you may not consider such evidence to prove his disposition to commit the crime for which he is on trial. The evidence may only be considered by you for the limited purpose of determining whether it proves (1) motive, that is, such evidence may be considered by you if it tends to show a motive of the defendant for a commission of the offense presently charged; (2) the defendant’s intent, that is, such evidence may be considered by you if it tends to establish that the defendant actually intended to commit the crime with which he is presently charged. The evidence may be considered for this purpose only. The evidence must be clear and convincing before you may consider it even for this limited purpose. It may not be considered to reflect on the character of the defendant. If it has any value, which you alone must determine, it may only be considered for the limited purpose of determining intent. You may not presume or infer that the defendant is probably [guilty] of this offense merely because there is present clear and convincing evidence. If you should find there is, that another offense of a similar nature was committed about the same time, you are reminded again that the defendant is presumed innocent and the burden of proof is on the State to prove every element of the offense including the specific intent already defined....”

The questioned instruction properly states the purposes for which evidence of other crimes may be considered. To be consistent with due process, the other crime must be rationally connected with the crime charged, but need not be proven beyond a reasonable doubt. Manning v. Rose, 507 F.2d 889, 894 (6th Cir.1974).

There was no error in the denial of probation. It is apparent at the sentencing hearing that the trial judge considered the various factors including the appropriate sentencing alternatives in the Criminal Sentencing Reform Act to determine the specific sentence to be imposed on the defendant. He found defendant to be engaged in pervasive criminal activity in a professional capacity which it was the court’s duty to inhibit by placing him in incarceration. In considering the evidence at trial he found that evidence indicated defendant was engaged in a livelihood of processing stolen vehicles. It was obvious from the trial court’s findings that he did not intend to place defendant on probation. Defendant was not entitled to probation under the circumstances of the case. He has failed to carry the burden required of him to establish suitability for probation and we find no abuse of discretion.

The judgment of the trial court is affirmed.

WALKER, P.J., and DWYER, J., concur.


author: SCOTT, Judge.

text:
    James ROWELL, Appellant, v. Michael DUTTON, Warden, Tennessee State Penitentiary, et al., Appellees.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Jan. 9, 1985.
    Permission to Appeal Denied by Supreme Court March 25, 1985.

      Daniel B. Eisenstein, Nashville, for appellant.
    W.J. Michael Cody, Atty. Gen., David M. Himmelreich, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Victor S. Johnson, III, Asst. Dist. Atty. Gen., Nashville, for appellees.
   OPINION

SCOTT, Judge.

This is an appeal of the denial of the appellant’s petition for the writ of habeas corpus. Finding merit to his position, the judgment of the trial court is reversed and remanded with directions.

On May 20, 1974, in Shelby County, the appellant was convicted of seven counts of armed robbery. He received sentences of twenty years in the state penitentiary to be served concurrently. The expiration date of his original sentence, taking into account good time and honor time, was originally calculated as January 3, 1985. The appellant has never lost any of his good and honor time.

On November 26, 1979, Governor Lamar Alexander extended Executive Clemency to the appellant, and his sentence was commuted as follows:

NOW, THEREFORE, I, Lamar Alexander, Governor, by virtue of the power and authority vested in me by Article III of the Constitution of the State of Tennessee do hereby commute the sentences of James Edward Rowell to ten to twenty years, which commutation will make Mr. Rowell immediately eligible for regular parole.

This grant of Executive Clemency was, by its terms, effective on December 5, 1979. Of course, the appellant was released from the penitentiary that day.

Subsequently, on September 17, 1982, a warrant of arrest was issued by the Director of Paroles, alleging that the Governor had received information that the appellant was charged with possession of a controlled substance for resale and possession of a .32 caliber revolver on or about September 2,1982. On March 31,1983, the appellant entered a plea of guilty of possession of marijuana for resale and received a sentence of one year in the state penitentiary. Then on April 27, 1983, the Board of Paroles held a commutation revocation hearing, found the appellant to be in violation of his commutation, and recommended to the Governor that his commutation be revoked, his twenty year sentence restored and the loss of eight hundred seven days of street time credit.

On November 22,1983, Governor Alexander issued the revocation of clemency and followed precisely the board’s recommendation. The new expiration date of his sentence was fixed as June 21, 1986.

At the hearing on the petition for the writ of habeas corpus, the appellant introduced the testimony of Donald W. Wilks, a records clerk at the Tennessee State Penitentiary, and Betty Stiddum, the senior records clerk at the Central Records Division of the Department of Correction. Their testimony revealed that the appellant had also received two hundred sixty (260) days of Program Participation Sentence Credits (PPSC) as of the date that his sentence was commuted in December 1979. After he returned to the penitentiary under the warrant of arrest issued by the Director of Paroles, the appellant began to accumulate PPSC at the rate of twelve per month, beginning in October 1982. He received these credits at that rate for thirteen months for a total of one hundred fifty-six (156) additional days of PPSC. These days added to his two hundred sixty (260) days yielded a credit of four hundred sixteen (416) days which are subtracted from the January 3, 1985 expiration date. This is calculated by counting backward on the calendar four hundred sixteen (416) days. The calculation includes the starting day, January 3, 1985, and, according to their testimony, yielded an expiration date of November 15, 1983. All of these calculations were in the computer and were known to the correction officials who advised Governor Alexander. However, there was a twelve day error because the PPSC credits for October 1982 had not been properly entered. Adding these twelve days to the November 15, 1983 date would yield an expiration date of the appellant’s sentence on November 27, 1983.

According to Ms. Stiddum, when the records were properly calculated, the appellant’s original sentence expired on November 15, 1983. Furthermore, the additional one year sentence received by the appellant for the marijuana conviction had already expired on September 2, 1983.

Thus, the net result of all of these calculations is that at the time that Governor Alexander signed the revocation of clemency on November 22, 1983, the appellant’s sentence had already expired. There simply was no sentence to revoke.

The writ of habeas corpus is the proper vehicle by which an imprisoned person may obtain relief where the term of imprisonment has expired. Adams v. Russell, 179 Tenn. 428, 167 S.W.2d 5, 6 (1942).

. [3-6] The power of the Governor to pardon, after conviction, is constitutional power. Article 3, § 6, Tennessee Constitution. His power to grant reprieves, commutations, and pardons, in all criminal cases, is also specifically set forth in TCA § 40-27-101. But the power is derived from the Constitution, not the statutes. State ex rel. Bedford v. McCorkle, 163 Tenn. 101, 40 S.W.2d 1015, 1016 (1931). The power resides in the Governor and can be exercised without reference to the Board of Paroles or anyone else. Smith v. Thompson, 584 S.W.2d 253, 257 (Tenn.Cr.App.1979). The Governor can grant conditional pardons upon such conditions and with such restrictions and limitations as he deems proper. TCA § 40-27-102. The same principle applies to the lesser grant, the commutation. Furthermore, the Governor has the power to revoke a commutation and recommit the prisoner upon the violation of one of the conditions, restrictions or limitations. State ex rel. Bedford v. McCorkle, supra.

However, we have found no authority for the proposition that the Governor can exercise his revocation authority over a commutee after the expiration of his sentence. Thus we hold that the Governor’s authority to revoke exists only so long as the commutee’s sentence has not expired. Any other result would mean that the Governor and his successors in office would retain the power to revoke a commutation throughout the balance of a commutee’s life, regardless of the offense, and could lead to absurd results.

The state argues that once the parole board made its recommendation to revoke the appellant’s commutation in April 1983, the appellant was placed on notice and that the Governor’s signature was merely a formality, and that it did not matter when he signed the revocation order.

However, the decision of the parole board to recommend revocation is only that. As heretofore noted, the power to commute sentences resides only in the Governor. The concomitant power to revoke commutations likewise resides only in the Executive.

That the Governor could have taken the action that he did had the matter been brought to his attention in a timely manner is clear. What is unclear is why the Board of Paroles waited almost eight months from the date of the commutation hearing to present the matter to the Governor.

The appellant’s sentence having expired at the time the commutation was revoked, the judgment must be reversed and the cause remanded with directions to issue the writ of habeas corpus, directing the appellant’s release from the penitentiary forthwith.

DAUGHTREY, J., and RUSSELL, Special Judge, concur.