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

CULTRA LANDSCAPING SUPPLY COMPANY, Plaintiff/Appellant. VS. DIRECTOR OF HIGHWAYS DEPARTMENT OF TRANSPORTATION AND W. L. SHARPE CONTRACTING COMPANY, INC. Defendants, AND CHARLES HILL, Individually and d/b/a C. H. HILL LANDSCAPE AND EXCAVATING, Defendant/Appellee.

Shelby County Circuit Court No. 28781 T.D.

HON. ROBERT L. CHILDERS, JUDGE

C. A. NO. 02A01-9512-CV-00275

AFFIRMED AND REMANDED

OPINION FILED:

FILED
December 5, 2001
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

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 When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 1

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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

The Director of Highways was named as a defendant pursuant to T.C.A.

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