1 Mr. Gasparro did not file a brief in this act ion. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON SUBMITTED

ON BRIEF AP

RIL 20, 2001 PYRAMID CO

MPUTERS, IN

C. v. BEN GAS

PARRO, d/b

/a PROFESSIONAL TAX AND BOOKEEPING Direct Appeal from the Circuit Court for Henderson County No. 97-110; The Honorable Roger A. Page, Judge

No. W1999-01784-COA-R3-CV - Filed July 26, 2001

This case involves a business relationship between Pyramid C o mputers, Inc., and Ben Gasparro. Mr. Gaspa rro purchased computer equipment and related services from Pyra mid for use in his businesses

. Mr. Gasparro also so

ld Pyramid co

mputers to his clien

ts. Pyramid

sued and alleged that Mr. G asparro owed it $14,446.32. The trial court entered judgment for Pyramid in the amount of $11,989.32. Pyramid appe als, alleging that the trial court erred in reducing the amount it sought and that the trial cour

t erred in deny

ing prejudgme

nt interest Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part, Reversed in Part and Remanded A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined. Danny P. Dyer, Knoxville, TN, for Appellant No Brief filed for Appellee OPINION Facts and Procedural History Plaintiff Pyramid Computers, Inc. (Py ramid), is a Tennessee Cor poration with

its principal place of business in Lexington, Tennessee. The president of Pyramid is Jeffrey Dyer (Mr. Dyer)

. At all times relevant to this appeal, Defendant Ben Gasparro 1 (Mr. Gasparro) owned and operated Professional Tax and Bookkeeping in Linden, Tennessee. At certain times relevant to this ap peal, Mr. Gasparro was a

lso a partner wit

h Janet Ma

rshall in Marshall Insurance. Additionally, at the time of trial, Mr. Gasparro owned a business named Two Rivers Realty.-2-

Mr. Gasparro met with Mr. Dyer late i n 1993 to discuss the potential purchase of computer equipment. Not only did

Mr. Gasparro need computer equipment for his own businesses,

but he also told Mr. Dyer that he had customers who needed computers and he inquire d into an arrangement whereby he could sell his clients computers obtained from Pyramid. As a result, the parties agreed that Mr. Gasparr

o could sell Py

ramid computers to

his third-party

clients. In late 1993, Mr. Gasparro began purchasing computer equipment and related services from Pyramid. Throughout the course of the parties’ b usiness re lationship, Mr. Gasparro purchased fourteen computer sy

stems from Pyr

amid: seven for us

e in his businesses and s

even that he reso

ld to his clients. Numerous upgrades and other computer related services were performed by Pyr amid after the computers were purcha sed. The to tal amount billed to Mr. Gasparro for the fourteen computers and related services was $30,730.52. Mr. Ga sparro made pay

ments to Pyra

mid totaling $16,284.20, leaving an unpaid balance, according to Pyr amid, of $14,446.32. At trial, there was

a dispute regarding the structure of the parties’ business relationship. Mr. Gasparro claime

d that he was suppos

ed to have received a twenty percent commission on sales to third parties and that purchases by third parties should not have been billed to his acc ou nt. Moreover, Mr. Gasparro argued that he should have received a twenty percent di scount o n computers purchased

for personal use. In contrast, Mr. Dyer testified that the par ties’ agreement was that

Mr. Gasparro would pay

twenty percent above Pyra mid’s cost, regardless of whether he was purchasing the computer for his own use or for resale to third parties. The trial court found the testimony of Mr. Dyer more credible, and found that the parties’ agreement was that Mr. Gasparro wa s to receive computer equipment at twenty percent over Pyr amid’s cost rathe

r that a commission o

f twenty percent. Mr. Gasparro also claimed that there were numerous discrepancies in the bills he received from Pyramid. Furthermore, Mr. Gasparro argue d that Pyramid wrongfully billed him $1,185.00 for a laser printer delivered to Marshall Insurance. Trial in this matter was held on August 17, 1999. The trial court found discrepancies in the billing in favor of Mr. Gasparro in the amount of $1,272.00. In addition, the court found that Mr. Gasparro should not have been billed for the printer that Pyramid delivered to Marshall Insurance. Therefore, the court fou nd in favor of Pyramid and against Mr. Gasparro in the amount of $11,989.32. The court refus ed to award Pyramid prejudgment interest because “the a mount owed by Defendant was reasonably disputed because of the c onfus ing invoices sent to Defendant.” Pyramid appeals, and raises the following issues, as we perceive them, for our review: I. Whether there should have been any reduction of the amount sought by the Plaintiff. II. Whether the Plaintif f should have bee

n awarded preju

dgment interest

. We will address each issue in turn. Standard of Review-3-

When a civil action is heard by a trial judge sitting without a jury, our review of

the matter is de novo on t he re cord , acc omp ani ed b y a presumption of correctness of the findings below. See Foster v. Bue , 749 S.W.2d 736, 741 (T enn. 1988); T

ENN . R. A PP . P. 13(d). We may not reverse the findings of fact made by the trial judge unless they ar e contrary to the preponderance of the evidence. See Jahn v. Jahn , 932 S.W.2d 939, 941 (T enn. Ct. App. 1996) . This presump tion of correctness, however, does not

attach to the trial judge’s legal determinations or the trial court’s conclusions that are based on undisputed facts. See NCNB Nat’l Bank v. Thrailkill , 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993).

Law and Analysis First, Pyramid argues that there should not have been any reduction in the $14,446.32 that it sought. Specifically, Pyramid takes issue with the $1,272.0 0 r eduction the court made for “discrepancies in the billing.” Pyramid argues that, under the law of Sales, Mr. Gasparro a ccepted the goods for purposes of

the Uniform Commercial Code. Therefore, Pyramid claims, Mr. Gasparro was requir

ed by law to pa

y for the goods at the contract rate. See T ENN . C ODE A NN . § 47-2-607 (1996). Section 47 -2-606 of the Ten nessee Code state

s the following, in

pertinent part: (1) Acceptance of goods occurs when the buy er: (a) after a reasonable oppo rtuni ty to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or (b) fails to make an e

ffectiv e reje ction (§ 47-2-602(1)), but s uch acceptance does not occur until the buyer h as had a reasonable opportunity to inspect them; or (c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratif

ied by him. T ENN . C ODE A NN . § 47-2-606 (1996). We find that Pyr

amid’s reliance

on section 47-2-6

06 of the Tennesse

e Code is m

isplaced . In this case, Mr. Gasparro’s “discrepancies” include receiving bills

for equipment tha

t he allegedly

never received and overbilling b

y Pyra mid. Mr. Gasparro ’s discrepancie s d o not sq uarely fit within the aforementioned

code section, as he is not solely claiming that he received goods which

later turned out to be nonconforming. Mr. Gasparro’s “discrepancies” mainly concern billing and accoun tin g issues. After a thorough review of the record, we find that, under the unique circumstances of this cas e, the trial court’s reductions for discrepancies in billing do not preponderate against the evidence

. Therefore, we

find that this issue i

s without merit. Next, Pyramid arg

ues that the tria

l court’s reduction of $1,185.00 for the printer delivered to Marshall Insurance was contrary to the law of par

tnersh ips and contrary to the weight of the-4-

evidence. Pyramid asse

rts that t h e trial court mistakenly focused on whether or not Mr. Gasparro authorized or knew of the printer that was delivered to Janet Marshall at Marshall Insurance. We not e that Janet Marshall and Mr. Gasparro were partners in Marshall Insuranc e f or a t least some period of time. Section 61-1-108(a) of the Tennessee Code stat es the follow ing, in relevant part: Every

partner is an agent of the partner s hip for the purpose of its business, and the act of every partner, including the execution in the partnership

name of any

instrument, for ap

parently carrying on in the usual way the business of the partners hip of which he is a member, binds the partnership, u n less the partner so acting has in fact no authority to act for th e partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no s uch aut hor ity. T ENN . C ODE A NN . § 61-1-108(a) (1989). We also note that “[a]ll partners are liable, jointly and severally for everything chargeable to the partnership.” T ENN . C ODE A NN . § 61-1-114 (Supp. 2000). Mr. Gasparro admitted at trial that the seven computer systems used by his businesses included the ones installed at Marshall Insurance and that he was re sponsible for paying for that equipment. Additionally, w e note that Mr. Dyer repeatedly

testified at trial that

he was not notified of the termination of the partnership between Mr. Gasparro and Ms. Marshall until after the printer was delivered to Marshall Insurance. Moreover, it is evident that the disputed printer was on the invoices reviewed by Mr. Gasparro and Mr. Dyer, and Mr. Gasparro made no objection to the printer delivered t o Marshall Insurance at th is meeting. Furthermore, w hile t he record is replete with correspondence from Mr. Gasparro to Mr. Dy er, we fail to find one document containing any reference to the disputed printer being wrongfully billed to Mr. Gasparro’s account or an y document communicating that the partnership had been terminated. After a thorough review of the record, we find that the termination of the partnership between Mr. Gasparro and Mrs. Marshall had not been communicated to Pyramid when the printer was delivered to Marshall Insurance. Since we a lso find that the purchase of the printer by Mrs. Marshall was “carrying on in the usual way

the business of

the partnership, ” we find that Mr. G asparro is jointly and severally

liable with Mrs. Marshall for the cost of the printer. T ENN . C ODE A NN . § 61-1-108(a) (1989); see also

T ENN . C ODE A NN . § 61-1-114 (Supp. 2 000). Therefor

e, we reverse

the trial court on this issue. Fin all y, Pyramid argues that the trial court erred in its denial of prejudgment interest. Section 47-14-123 of the Tennessee Code provides that prejudgment interest “may be awarded by courts or juries in accordance

with the principles of equity. . . .” T ENN . C ODE A NN . § 47-14-123 (1995). “The award of pre-judgmen

t interest is within

the sound discretion of the trial court and the decision w

ill not be disturb ed by an appellate court unless the record revea ls a manifest and palpable abuse of discretion.” Spencer v. A-1 Crane Serv., Inc. , 880 S.W.2d 938, 944 (Tenn. 1994) (citations omitted). This standard

of review

does not a

uthorize an appellate cou

rt to merely substitute its judgment for-5-

that of the trial co urt. See My int v. Allstate Ins. Co. , 970 S.W.2d 920, 926 (Tenn. 1998). After examination of the record, we find that the tr ial court did not ab

use its discretion i

n declining to award Pyra

mid prejudgment i

nterest. Theref

ore, this issue is wi

thout merit. Conclusion For the aforementioned

reasons, we aff

irm in part, reverse in part , and remand this c

ase to the trial court for further p roceedings consistent with this opinion. Costs on appeal are taxed one hal f to Pyra mid and one hal f to Mr. Gas parr o, f or w hic h ex ecut ion may i ssu e if nece ssa ry.

___________________________________ ALAN E. HIGHERS, JUDGE