           IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                    AT JACKSON
               _______________________________________________________

                                             )
CULTRA LANDSCAPING SUPPLY                    )       Shelby County Circuit Court
COMPANY,                                     )       No. 28781 T.D.
                                             )
   Plaintiff/Appellant.                      )
                                             )       HON. ROBERT L. CHILDERS, JUDGE
VS.                                          )
                                             )
DIRECTOR OF HIGHWAYS                         )       C. A. NO. 02A01-9512-CV-00275
DEPARTMENT OF                                )
TRANSPORTATION AND W. L.                     )
SHARPE CONTRACTING                           )       AFFIRMED AND REMANDED
COMPANY, INC.                                )
                                             )
   Defendants,                               )
                                             )       OPINION FILED:
AND

CHARLES HILL, Individually and
                                             )
                                             )
                                             )
                                                                 FILED
d/b/a C. H. HILL LANDSCAPE                   )
                                                                   December 5,
AND EXCAVATING,                              )                        2001
                                             )
   Defendant/Appellee.                       )                   Cecil Crowson, Jr.
                                                                  Appellate Court Clerk

Andrew H. Owens, LAW OFFICES OF DON OWENS, P.A., Memphis, Tennessee,
for Plaintiff/Appellant.

Jeffery D. Parrish, BOROD & KRAMER, P.C., Memphis, Tennessee,
for Defendant/Appellee Charles Hill.
______________________________________________________________________________

                          MEMORANDUM OPINION1
______________________________________________________________________________


                                                     FARMER, J.



               This is an action by the appellant, Cultra Landscaping Supply Company (Cultra),

seeking to recover the balance allegedly due on an open account. Cultra’s complaint, as amended,

was filed against the Director of Highways, Department of Transportation, W. L. Sharpe Contracting

Company, Inc. (Sharpe) and Charles Hill, individually and d/b/a C. H. Hill Landscape and



       1
          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a
subsequent unrelated case.

                                                 1
Excavating (Hill). For purposes of this appeal, however, the only other party before us is Hill, the

appellee.2 A bench trial resulted in a judgment for Hill. Cultra appeals on the sole basis that the

evidence presented at trial preponderates against the trial court’s findings. For reasons hereinafter

stated, we affirm.



                The following evidence was adduced at trial: In 1986, Sharpe was the general

contractor on a road construction project for the State of Tennessee. Sharpe subcontracted with Hill

to provide and install the sod required for the project. Hill, in turn, obtained Cultra to supply the sod.

Cultra claims that it was never paid for the total amount of sod it delivered on the project.



                Edwin Cultra testified that his “arrangement” with Hill was to simply supply the sod

for the project. Cultra was not responsible for seeing that the sod lived or that it was properly

installed. Mr. Cultra stated that Hill contacted him regarding the job and that “I agreed on the price

of the sod per square yard to be delivered . . . .” He continued, “I sold [Hill] the sod by the square

yard and gave [Hill] delivery tickets on each particular load, and that was signed by [Hill] people that

we brought those loads to [the] project.” He related that certain delivery tickets introduced into

evidence represented “each and every delivery of sod made” on the project and that, based on those

tickets, the balance due and owing from Hill is $18,250.77. He stated that the amount owed

represented approximately 30 to 40 semi-trailer loads of sod. Mr. Cultra said that once delivered to

the job site, Hill employees would unload the sod and a Cultra employee would return with a signed

copy of a delivery ticket. Cultra made its last delivery of sod in August 1988, refusing to deliver

anymore sod because of Hill’s nonpayment.



                Mr. Cultra testified that no one from Hill ever notified him that the sod delivered was



        2
         The Director of Highways was named as a defendant pursuant to T.C.A. § 54-5-124
(civil actions against contractors by claimants). Cultra’s complaint states that it “seeks no
remedies” against Sharpe, but acts to put the latter “on notice” of said claim having been filed
with the Department of Transportation. Prior to trial, a summary judgment was entered in favor
of Sharpe. The order granting summary judgment provided that the State of Tennessee and the
Department of Transportation were to retain certain funds to satisfy Cultra’s claim in the event it
proved meritorious at trial, in accordance with T.C.A. § 54-5-123. After trial, an agreed order
was entered with this Court dismissing the Department of Transportation, Director of Highways
as a party.

                                                    2
of inferior quality, improper quantity or that it had been rejected by Hill or the State, for whatever

reason. He declared that usually the variance between the State’s estimate and sod actually delivered

is “real close . . . within 1 or 2 percent.” Some of the “possible” reasons as to why the amount

approved for payment by the State was substantially less than that actually delivered were if the sod

died, had to be relaid, or if the State “missed some areas of measurements.”



               On cross-examination, Cultra was further questioned regarding whether the State ever

informed him that some of the sod delivered was unacceptable, to which he replied, “I don’t

remember them telling me that at all.” He continued, “[s]od is a perishable item, though. It can sit

out there for four or five days, and it can become unacceptable.” When asked, however, “[i]s it

possible that the State of Tennessee said some of this sod was unacceptable because it was too

thin?”, Mr. Cultra responded, “[i]t’s possible.”



               Allen Carey, a supervisor at Sharpe, testified that Sharpe “subcontract[ed] out . . . the

sod and the seed and various roadway items.” The parties engaged in the project were paid monthly

by the State. Carey explained that once a month the State would send Sharpe an estimate of the work

performed the preceding month along with a check. Sharpe, in turn, would send the estimates to the

various subcontractors “with a check to cover payment for whatever that subcontractor had done

during that monthly estimate.” Carey stated that he contacted Cultra “in regard to making payments

directly from the estimates as they came in from the State” and that Mr. Cultra “agreed to accept

whatever amounts the State paid as full payment for the sod . . . .” Mr. Cultra denies ever

communicating with Carey regarding his agreement with Hill as to how he would be paid. He

testified, “[a]ny conversation that Mr. Carey and I have had wouldn’t have been about [payment]

terms, but would have been with regard to why I wasn’t getting paid or where my money was or why

hadn’t Mr. Hill paid me for the sod that we had delivered.”



               Carey agreed that generally the State’s estimate equals or closely approximates the

actual work performed. He agreed that if, in fact, as much sod as Cultra contends was actually

delivered, then there was a “large difference” in the State’s estimate. The last payment Sharpe made

for sod was on October 11, 1988. Each payment was by check issued jointly to Hill and Cultra.

                                                   3
Carey declared that Sharpe had paid Cultra all amounts that the State paid it for the sod delivered

by Cultra to the project. Carey had no knowledge of any sod being delivered to the project that was

improperly installed or perished.



                Charles Hill testified that the “payment terms” under his agreement with Cultra was

“[w]hatever the State’s estimate was on the sod.” Hill confirmed that he paid Cultra the entire

amount that his business received from the State for the sod Cultra delivered. Hill stated that the sod

used on the project was required to be a certain thickness and that some of the sod delivered by

Cultra was deemed “unacceptable” after being measured for thickness and, therefore, not used by

Hill on the project. He confirmed that it was necessary for him to change sod suppliers in order to

complete the job. Hill agreed that Cultra delivered sod to the project until August 1988, but that its

sod started being “turned down” in July. He estimated that approximately 15 to 20 loads of sod

delivered by Cultra were determined unacceptable.



                Hill also stated that certain tickets presented by Cultra employees upon delivery were

signed by Hill employees even though those particular loads were later rejected. Two Hill

employees, Craig Tate and Antonio Martin, confirmed that they had, on occasion, signed certain

tickets for sod delivered that Cultra later removed.



                We review this matter in accordance with Rule 13(d) T.R.A.P., which provides for

a de novo review, accompanied by a presumption of correctness of the trial court’s findings of fact,

unless the evidence preponderates otherwise. See, e.g., Tenn-Tex Properties v. Brownell-Electro,

Inc., 778 S.W.2d 423, 425 (Tenn. 1989). In ruling from the bench, the trial court found that Mr.

Cultra never denied informing Carey that he would accept as full payment whatever the State paid

for the sod. While we do not find the evidence to support this particular finding, we, after a de novo

review of the record, find a preponderance of the evidence to support the result reached by the trial

court.



                Cultra’s argument that it was inadequately compensated appears based on its position

that it never agreed to bear the risk of loss for sod delivered, but not properly maintained or installed

                                                   4
by Hill. Mr. Cultra testified as to “possible” reasons as to why the State’s estimates for the sod

would have been so at odds with that actually delivered; all involved inadequacies or mistakes on

behalf of the State or Hill. We do not find the record, however, to establish that any of the sod was

rejected for any reason other than inadequate measurement. Mr. Hill testified that the sod delivered

by Cultra was rejected for being cut too thin and Mr. Cultra agreed that it was possible that some of

the sod delivered was determined unacceptable because of improper thickness. We note also that

various Hill employees testified that some tickets presented by Cultra employees upon delivery were

signed by them even though the sod was ultimately rejected. This testimony is unrefuted. Thus, the

proof establishes that although certain tickets indicate a delivery of sod to the project, that sod was

later removed by Cultra as unacceptable and required no compensation.



               Accordingly, we affirm the judgment of the trial court. Costs are assessed against

Cultra Landscaping Supply Company, for which execution may issue if necessary.



                                                       ________________________________
                                                       FARMER, J.



______________________________
HIGHERS, J. (Concurs)



______________________________
LILLARD, J. (Concurs)




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