# Bernie Cheatham d/b/a Universal Builders v. The Federal Materials Company, LLC

> Court of Appeals of Tennessee · February 21, 2012

URL: https://www.frixlaw.com/law-library/cases/1047038

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** February 21, 2012
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge Alan E. Highers
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 16, 2011 Session

BERNIE CHEATHAM d/b/a UNIVERSAL BUILDERS, ET AL. v. THE
FEDERAL MATERIALS COMPANY, LLC, ET AL.

Direct Appeal from the Circuit Court for Weakley County
No. 4223 William B. Acree, Judge

No. W2011-01155-COA-R3-CV - Filed February 21, 2012

Builder was hired to construct a commercial building, and it purchased the concrete for the
building’s concrete slab from Supplier. The concrete slab developed major cracks, which
led to this lawsuit between Builder and Supplier. After a two-day bench trial, the trial court
found that Supplier had delivered defective concrete, and it entered judgment in favor of
Builder for $60,000. We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Damon E. Campbell, Union City, Tennessee, for the appellant, Federal Materials Company,
LLC

James B. Webb, Brandon L. Newman, Trenton, Tennessee, for the appellees, Bernie
Cheatham and Universal Builders, LLC
OPINION

I. F ACTS & P ROCEDURAL H ISTORY

In 2005, Bernie Cheatham d/b/a Universal Builders (“Builder”) was hired by Joe
Taylor d/b/a Taylor Home Works1 to construct a commercial building in Martin, Tennessee,
that was to be used as a building supply store. As part of the project, Builder was required
to construct a six-inch-thick concrete slab for the building. Builder purchased the concrete
for the job from Federal Materials Company, LLC (“Supplier”), and the concrete was
delivered to the job site and poured on December 30, 2005. Very significant and extensive
cracks developed in the concrete slab, and the owner of the building, Joe Taylor d/b/a Taylor
Home Works, eventually sued Builder due to the defects in the concrete. In turn, Builder
filed a third party complaint against Supplier, alleging that it had supplied defective concrete
for the job.

The suit between the owner of the building and Builder was settled at mediation for
$60,000. However, the suit between Builder and Supplier went to trial. The case was tried
over the course of two days, with the parties’ presenting testimony from numerous lay
witnesses and two expert witnesses, in addition to several exhibits. At the conclusion of the
trial, the judge made lengthy findings of fact and ultimately ruled in favor of Builder, finding
that Supplier had delivered defective concrete. Accordingly, the trial court entered a
judgment against Supplier for $60,000 plus prejudgment interest.

II. I SSUES P RESENTED

Supplier presents the following issues, as we perceive them, for review:

1. Whether the evidence supports the trial court’s finding that there was something
wrong with the concrete when documentary evidence and expert testimony suggested
that the concrete was not defective; and
2. Whether the trial court failed to make a finding as to the most probable cause of the
cracking of the concrete.

For the following reasons, we affirm the decision of the circuit court.

1
According to references in the record, Taylor Home Works was formerly known as Tuck’s Home
Works and/or Tuck’s Discount Paneling and Supply Company at some times relevant to this case. However,
for ease of reference, we will refer to the business simply as “Taylor Home Works.”

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III. S TANDARD OF R EVIEW

On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2011); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). When the resolution of the issues in a case depends upon the truthfulness of
witnesses, the fact-finder, who has the opportunity to observe the witnesses in their manner
and demeanor while testifying, is in a far better position than this Court to decide those
issues. Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643
(Tenn. Ct. App. 2002). “The weight, faith, and credit to be given to any witness's testimony
lies in the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court.” Id. We review a trial court’s conclusions of law under a de
novo standard upon the record with no presumption of correctness. Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.
Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

IV. D ISCUSSION

First, we will address Supplier’s contention that the evidence presented at trial does
not support the trial court’s conclusion that the concrete was defective. However, we must
first recount the contradictory testimony that was presented about the events of December
30, 2005, when the concrete slab was poured. Obviously, the date of the pour occurred
during the winter. The witnesses at trial agreed that it is common practice in the concrete
industry to add an accelerant, such as calcium chloride, to concrete that is poured during the
winter in order to speed up the setting or hardening process during cold weather. However,
the parties presented conflicting testimony about whether calcium chloride was actually
added to the concrete that was used for this job.

Builder had hired Mr. Robert Jackson and his concrete finishing crew to spread,
smooth, and “finish” the concrete at the Taylor Home Works site. Mr. Jackson had been in
the concrete finishing business for fifty-four years. He had worked with Builder on
numerous jobs over the past fifteen years. Mr. Jackson testified that it was he who made the
decision about whether to use an accelerant in the concrete for the Taylor Home Works job.
Mr. Jackson said that he discussed the issue with Scotty Warren, the sales representative at
Supplier, and told Mr. Warren that he wanted to use calcium chloride, at the level of two
percent, and that he wanted the bagged form of the substance brought to the job site and

-3-
poured directly into the concrete trucks there (as opposed to adding the liquid form at the
concrete plant).2 Mr. Jackson testified that when he arrived at the job site on the day of the
pour, Mr. Warren said that the calcium chloride could not be added to the trucks at the job
site because it would slow the job down and “holdup the process.” So, according to Mr.
Jackson, he told Mr. Warren to use “High-Early,” which is another accelerant that can be
added to the concrete at the concrete plant, in liquid form, as a substitute for calcium
chloride. Mr. Jackson said he knew that the High Early “wasn’t going to set it like calcium,”
but he told Mr. Warren to use it because he wanted to ensure that he could finish the job on
time.
Supplier delivered twenty-one truckloads of concrete to the job site that day,
beginning at around 7:30 a.m. Mr. Jackson explained that it is necessary to “work” the
concrete before it “sets up,” but he said that this concrete set up faster than he could keep up
with it. According to Mr. Jackson, each load of concrete would set up and harden to the
point that a man could walk on it within twenty to thirty minutes of being poured. Mr.
Jackson said that concrete with calcium chloride will normally set up within four hours, and
that this concrete set up within about 45 minutes. Mr. Jackson explained that he expected
to start using his machines to finish the concrete at about 11:30 or 12:00 that day, but that he
had to start using them immediately because the concrete was setting up so fast. Mr. Jackson
said that he had never seen concrete set up that fast before in over fifty years of finishing
concrete, and that it was as if someone had added calcium chloride to concrete on a 90 degree
summer day. Mr. Jackson said that the concrete started cracking as soon as his crew started
working on it and that the cracks were “all over” and “going everywhere” in a manner that
he had never seen.3 Mr. Jackson testified that if Supplier had been adding calcium chloride
to the concrete trucks at the job site, as he had originally requested, he could have responded
to such a problem by asking them to reduce the amount of calcium chloride or discontinue
its use altogether.

Mr. Robert Rowan worked as the superintendent for Builder on the Taylor Home
Works job, and he similarly testified that the concrete delivered by Supplier got “harder,

2
An employee of Supplier later testified that the travel time involved in a concrete delivery impacts
the effect of the calcium chloride because “the longer it’s on there, the more heat it’s going to generate.” He
said that calcium chloride added at the concrete plant would heat up more than it would when added at the
job site. The distance from the concrete plant to the job site in this case was about seventeen miles. Mr.
Jackson explained that the concrete is delivered in large trucks with rolling barrels on the back, and that in
order to add calcium chloride at the job site, it is necessary to carry the forty to fifty pound bags of calcium
chloride up a step ladder on the truck and pour them into the drum.
3
Mr. Jackson explained that he knew something was wrong with the concrete after the first
truckload was poured, but that he basically had no choice but to continue because he would not recommend
stopping a concrete pour and then coming back later to try to pour more concrete on top of it.

-4-
quicker than what it should.” Mr. Rowan testified that he had never seen concrete set up that
quickly before, and that a man could stand on the concrete within fifteen to twenty minutes
of it being poured when it would normally take about two hours for that to happen. Mr.
Rowan said he believed that there was something wrong with the concrete and that there was
nothing that anyone could have done “to save that slab.”

Mr. Bernie Cheatham, the owner of Universal Contractors (“Builder”), testified that
he was at his office on the day of the pour when he got a call from the job site supervisor,
Mr. Rowan, about the problem with the concrete. Mr. Cheatham said he drove to the Taylor
Home Works job site and arrived sometime “before lunch,” and that the concrete had already
begun to crack by that time. Mr. Cheatham said that he had never seen concrete set up as fast
as this concrete did. Mr. Cheatham said he believed that Supplier delivered bad concrete that
was improperly mixed. Mr. Cheatham explained that the cracking of this slab is not typical
concrete cracking. He said that concrete will often have shrinkage cracks, into which a knife
could barely fit, but these cracks now measure up to 7/8" wide and are nearly the width of
a quarter.

The owner of the Taylor Home Works business, Joe Taylor, testified as well. He said
that he tried to observe as much of the construction of his building as possible, so he was
present at the job site on the day that the concrete slab was poured. Mr. Taylor said he was
there from approximately 9:00 to 11:00 and that “the first thing [he] noticed was how fast the
cracking of the concrete was taking place.” Mr. Taylor explained that he had “poured
driveways and stuff like that” in the past, and that he had never seen concrete crack as
quickly as it did on this occasion. He said that the concrete “was setting up extremely fast.”
Mr. Taylor said he immediately expressed his concern to Mr. Cheatham about the fact that
the concrete did not “seem right” to him. Mr. Taylor described the cracks on the day of the
pour as “superficial” or “spider cracks,” but he said that they had grown over time and
“haven’t stopped as of today.”

Mr. Scotty Warren testified that he was the sales representative for Supplier who “sold
the job” to Mr. Cheatham, the owner of Builder. Mr. Warren explained that he was in the
office at the concrete plant in Union City on the morning of the pour when the
superintendent, Mr. Rowan, called to tell Supplier exactly what to put in the concrete. Mr.
Warren said that Mr. Jackson (the concrete finisher) was with Mr. Rowan when he called.
Mr. Warren testified that he was not involved in the decision to add calcium chloride to the
concrete. However, he said that when he heard that the order was for “straight cement mix
with two percent calcium flake and hot water,” he immediately told the acting plant manager
who was taking the order that “they do not need to put all of that stuff in there that day,
because [he] knew it was going to be up in the 50s and sunny. And that was too much, in
[his] opinion, to put in it, under the weather conditions that day.” Mr. Warren testified that

-5-
adding calcium chloride on such a warm day when the wind is blowing “pretty hard” will
make the concrete set “excessively quick,” which can cause cracking. According to Mr.
Warren, the acting plant manager “tried talking them out of it,” but Mr. Jackson wanted the
calcium chloride, and “that was pretty much the end of the story.” Mr. Warren said “we put
every bag of flake calcium that we had in the [company] pickup, and it was driven to the job
site.”

Although Mr. Warren was employed as a sales representative at Supplier, he testified
that he delivered concrete in one of the concrete trucks on the day of the pour at the Taylor
Home Works site. Mr. Warren testified that calcium chloride was added at the job site to all
four of the loads that he delivered that day. When asked who dumped the calcium chloride
into his truckloads, he replied, “I can’t exactly remember, it’s been so long, but I knew it was
put in on every load. I’m almost – most of the time, I’m the one who put it in.” Mr. Warren
said he could not remember whether he went over to the pickup truck and picked up the bags
for each of his loads.

Mr. Warren testified that the best way of adding calcium chloride to concrete at the
job site is to mix it with water and let it dissolve, then pour the solution into the drum.
However, he explained that the “normal procedure,” and the one preferred by most concrete
finishers, is to “just take the bag, dump it in the drum, have your drum in full-mix and wash
your hopper down and wash your blades down and let it mix, you know, about 8 to 10
minutes; 8 to 10 minutes is what I have always been told; about 8 minutes to mix it; that’s
what we recommend.” Mr. Warren said that for the Taylor Home Works job, the calcium
chloride was not mixed with water but was simply added to the trucks. The delivery tickets
filled out by each of the concrete truck drivers that day listed the exact times when each truck
left the plant, arrived at the job, started discharging concrete, finished discharging concrete,
left the job, and arrived back at the plant.4 According to those delivery tickets, thirteen of
the twenty-one trucks were at the job site for only ten minutes or less before they started
discharging concrete. Some of the delivery tickets indicated that trucks began discharging
concrete within five, four, three, or zero minutes of arriving on site. Mr. Warren conceded
that it would have been impossible to take the necessary steps to add the bagged calcium
chloride to the trucks and let it mix for the proper duration within such short periods of time.
Nevertheless, he testified that sometimes the times listed on the delivery tickets are not

4
Mr. Warren acknowledged that his name was not listed on any of the delivery tickets under
"Operator," but he said that was because he does not usually drive a concrete truck and the tickets were
printed with the regular driver's name on them. Mr. Jackson, the concrete finisher, testified that he had
known Mr. Warren for a long time and that he did not see him driving a concrete truck that day. Mr.
Cheatham also testified that Mr. Warren did not come to the job site while he was there for an hour before
lunch, even though a delivery ticket indicated that the truck Mr. Warren claimed to have driven was at the
job site from 11:10 to 11:45.

-6-
accurate, and also, he said, the concrete finishers sometimes get in a hurry and insist that the
drivers start pouring the concrete before the mixing process is completed. Mr. Warren
testified that poor mixing could cause discoloration, lumps, or “hot spots” where one area
sets up more than the other, but to his knowledge, it would not cause cracking. Mr. Warren
testified that he got a phone call from Mr. Cheatham during the afternoon of the date of the
pour about the cracks forming in the concrete, so he went back to the job site to look at them.

The delivery ticket from the very first truck to arrive at the job site on the day of the
pour listed Scott Dennison as the operator, and he was the driver who was allegedly replaced
by Mr. Warren. That first delivery ticket lists, in addition to the concrete delivery, 38 fifty-
pound bags of calcium chloride. The space on the delivery ticket labeled “taken by” was
signed, “Bear,” who was an employee of the finishing crew. Mr. Warren testified that two
bags of calcium chloride were added to each of the first nineteen trucks, and then when they
ran out of bags, liquid calcium chloride was added at the concrete plant to each of the last
two trucks. When asked whether it was possible that liquid calcium chloride could have been
added to all of the trucks in addition to bagged calcium chloride, Mr. Warren said he did not
think so, and that he assumed that someone simply called and asked for the liquid calcium
chloride toward the end of the job. However, he said that he really could not say what
happened because he was driving a truck and not in the office that day.

Mr. Robert Jackson, the concrete finisher, testified that he never saw any bags of
calcium chloride at the job site that day, whether on a concrete truck, a palate, or a company
pickup. He said he knew that no calcium chloride was added at the job site because of how
fast the trucks were coming and the fact that he did not see the drivers get out of the trucks
“to turn the mix around before discharging the mix.” Mr. Jackson said he did not know how
the drivers could have added calcium chloride without him noticing it.

Mr. Cheatham, the owner of Builder, testified that during the hour that he was at the
job site before lunch, he walked around the entire job site and did not see any empty bags or
unopened bags of calcium chloride. Mr. Rowan, the superintendent on the job for Builder,
testified that he was the first person to arrive at the job site that morning and the last one to
leave that evening, and he said that he did not see any bags of calcium chloride on the job site
that day, nor did he see the drivers mixing it in the trucks.

Finally, Mr. Taylor, the owner of the Taylor Home Works business, who visited the
site for two hours that day, said he did not see any fifty-pound bags at the job site. Mr.
Taylor said he saw five to ten concrete trucks come and go while he was there, and he did
not see anyone tearing open sacks and pouring them into the back of the concrete trucks.

-7-
Two expert witnesses testified as well. Dr. Ashraf Elsayed testified for Builder. Dr.
Elsayed had a Ph.D in civil engineering and was licensed as a professional engineer in fifteen
states. He was a professor of civil engineering at Arkansas State University and also the
chief engineer of geotechnology at a geotechnical firm in Memphis that does soil and
foundation engineering. Dr. Elsayed testified that he deals with the materials that go into
making and mixing concrete on a daily basis. He was also involved in concrete evaluation
and construction at his previous job in the engineering department of a company that did
highway and airport construction.

Dr. Elsayed testified that he had reviewed numerous documents and tests in
preparation for testifying in this case. He explained that calcium chloride is heavily used in
the concrete industry, and that if used correctly, it normally will not cause any problems. He
stated that the maximum recommended dosage of calcium chloride is two percent of the dry
weight of the cement. He testified that an “overdose” of calcium chloride can cause
problems like the ones in this case. Dr. Elsayed explained that he could not be 100% certain
as to the cause of these cracks because he was not at the job site on the day of the pour, “but,”
he added, “what I’ve seen indicates an overdosage of calcium chloride.” Dr. Elsayed said
that the cracks at the Taylor Home Works site are indicative of drying shrinkage, and that an
overdose of calcium chloride can accelerate and increase the amount of drying shrinkage and
cause shrinkage cracks. Dr. Elsayed testified that an overdose of calcium chloride can cause
rapid stiffening, rapid increase in drying shrinkage, and loss of strength at later ages. He also
said that improper mixing of calcium chloride can lead to concentrations of calcium chloride
in the mix which can also increase the chance of having cracks.

Dr. Elsayed testified that it normally takes two to four hours before a man can walk
on concrete after it is poured, and if calcium chloride is added, it could, depending on the
dosage, shorten that time to one hour. However, he said that if a man could walk on the
concrete at the Taylor Home Works site after thirty minutes, that would not be typical of
normal concrete and “[t]hat would be a case of an overdosage of calcium chloride.”

Supplier presented the testimony of its own expert witness, Mr. John McCord, who
held a bachelor’s degree in civil engineering and was employed as Director of Engineering
for the Kentucky Ready Mixed Concrete Association. Mr. McCord had previously worked
for the Kentucky Department of Highways as Director of Division Materials. Mr. McCord
testified that he teaches classes that allow certification for concrete testing technicians for
the American Concrete Institute. Based upon his inspection of the slab and review of various
exhibits, Mr. McCord opined that the excessive cracking of the Taylor Home Works floor
was caused by a combination of factors that created “a perfect storm.” He discussed the
preparation of the ground before the slab was poured, the design of the building, the type of
footers used for the foundation, the spacing and depth of the saw joints in the concrete, the

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depth of the wire mesh reinforcement used in the concrete, the temperature of the concrete,
and the wind speed and temperature on the day of the pour as possible contributing factors
to the cracks in the concrete.

Mr. McCord said he did not believe that calcium chloride had anything to do with the
cracking; however, he based that opinion upon his belief that two percent calcium chloride
was added at the job site as requested, and he clarified that a two percent addition of calcium
chloride would not cause the floor to crack. When asked about the possibility that a “double
dose” of calcium chloride was used, Mr. McCord said that he did not see any evidence to
suggest that a double dose was added here, and that if the calcium chloride was “doubled
up,” it would have likely caused the concrete to set up in the concrete truck before it could
be poured. However, when questioned further about this testimony, Mr. McCord conceded
that he did not know what would happen if calcium chloride was added twice because he had
never heard of anyone adding that much accelerant to concrete. He said that concrete with
a double dose of calcium chloride would have such a short set up time that no one would
want to use it.5

Upon questioning by Builder’s counsel, Mr. McCord conceded that Supplier is one
of the “top ten members” of the Kentucky Ready Mixed Concrete Association, Mr.
McCord’s employer, “in terms of yards of production and equipment.” He explained that
members of the association pay annual dues based upon factors such as how many plants and
trucks they have. He also testified that the first time he went to observe the cracks at the
Taylor Home Works site, he did so as a favor to Supplier. He explained that he was in town
that day teaching a class that Supplier’s employees attended, and for which Supplier paid
attendance fees to Mr. McCord’s employer. Mr. McCord also acknowledged that “one of
the folks from [Supplier]” is on the Board of the Kentucky Ready Mixed Concrete
Association.

The trial judge made lengthy findings of fact in this case and specifically stated that
he had “a problem with Mr. McCord’s testimony.” The trial judge noted Mr. McCord’s
opinion that there was a design error involved, yet Mr. McCord admitted that he had not seen
the design plans, which were drawn up by a professional structural engineer and submitted
in accordance with local ordinances to the City of Martin. The judge said that fact “severely
impeache[d] Mr. McCord’s testimony.” The judge also discussed and rejected some of Mr.
McCord’s numerous other theories about possible causes, finding that Mr.

5
Mr. McCord acknowledged that when asked during his deposition about what would happen if
calcium chloride was added once at the plant and then again at the job site, he simply said, "the more calcium
chloride you put in, the more chance you have for . . . . probably some conditions that would be found on the
job, that kind of condition being more – again, I think being something related to a cosmetic situation."

-9-
McCord failed to provide an “adequate explanation” to support the theories. The judge
described Mr. McCord as “quite reluctant to answer a number of questions” and said he
“seemed quite evasive.” We will not belabor this discussion by explaining in detail why it
was proper for the trial judge to reject each of the many theories mentioned by Mr. McCord.
Suffice it to say that the trial judge was “‘best situated to determine the credibility of the
witnesses and to resolve factual disputes hinging on credibility determinations.’” ARC
LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 25 (Tenn. Ct. App. 2005) (quoting
Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998)). We will not
“‘second-guess a trial court's credibility determinations unless there is concrete, clear, and
convincing evidence to the contrary.’” Id. We find no such evidence to contradict the
judge’s credibility determination here.

The trial judge also made an express finding that calcium chloride was not added at
the job site. The judge listed several reasons for his finding, including the fact that Mr.
Jackson (the finisher), Mr. Cheatham (the owner of Builder), and Mr. Rowan (Builder’s
superintendent) all testified that they did not see any bags of calcium chloride being added
to the nineteen truckloads of concrete. The judge also noted Mr. Jackson’s testimony that
Mr. Warren (Supplier’s sales representative) told him that he could not add the calcium
chloride as requested because it would take too long. Although Mr. Warren had testified that
calcium chloride was added at the job site, the judge explicitly stated, “I do not believe Mr.
Warren’s testimony. I do not think he is credible.” Because the factual dispute regarding
whether calcium chloride was added at the job site hinged on credibility determinations, we
will defer to the trial court’s finding that calcium chloride was not added at the site as
requested. The evidence certainly does not preponderate against such a finding.

Regarding the cause of the cracks in the concrete, Supplier claims that “the trial court
did not make a determination as to the most probable cause for the condition[.]” Supplier also
insists that “the trial court did not specifically find that [Supplier] had improperly mixed the
concrete.” We disagree with both of these assertions. Early in the trial court’s findings, the
judge did state:

In short, The Court finds that the calcium chloride was not added at the site,
which, that means no one knows exactly how it was added, whether or not it
was added properly, how much was added or whether or not that mixture was
proper. We do not know.

However, the Court went on to discuss the fact that it was undisputed that the concrete set
up very quickly and that cracks formed in the concrete extremely quickly at numerous
locations, and that the witnesses testified they had never seen that happen before. The judge
noted the testimony that a man could stand on the concrete within fifteen to twenty minutes,

-10-
and that the concrete eventually developed “really significant” cracks. The judge then stated,
“The Court concludes that from the testimony of the cracks appearing so quickly and so
severely and the fact that the concrete setup so quickly, that there was something wrong with
the concrete.” After again noting that the concrete set up “way too fast” and cracked much
more quickly and extensively than it should have, the judge recounted the testimony from
Builder’s expert witness that “an improper mixture likely caused the problem.” The judge
then stated his conclusion that Builder had proven by a preponderance of the evidence that
“the concrete was defective,” and that “it was because of the improper mixture of [the]
concrete.” As such, we find no merit in Supplier’s contentions that the trial court “did not
make a determination as to the most probable cause for the condition” and “did not
specifically find that [Supplier] had improperly mixed the concrete.”

Supplier argues on appeal that the trial judge should have given more weight to the
“reports and documents” in the record that suggested that calcium chloride was not the cause
of the cracks. Specifically, Supplier points to a report prepared by Construction Materials
Laboratory, Inc., who visited the job site and inspected the cracks in the floor slab just a few
days after the pour, at the request of Builder. The report states, in relevant part:

The slab had several areas of cracking. We were not on site at the time of the
placement of the concrete and can only list some possibilities causing the
cracking problems.

1) Windy conditions often cause these problems by allowing the concrete
to dry on the surface while the underlying mix is still in a plastic
condition.
2) Pouring the mix at a high slump.
3) Not getting the control joints sawn immediately after the finishing was
completed.

Most of the cracks appeared to be of the plastic shrinkage variety. These do
not usually present a problem as long as the reinforcement is embedded in the
concrete slab. Special attention should be given in watching for areas where
spalling of the surface of the slab might occur.

Mr. Cheatham testified that when this inspection was performed, the worst cracks were only
about 1/8" wide, and there were many other smaller, superficial “plastic cracks.” He said that
at the time of the inspection, “they didn’t dream these cracks would get as wide as they
did[.]” Regarding the possible causes listed in the report, Dr. Elsayed testified that the wind
speed on the day of the pour, which was five to fifteen miles per hour, was “not going to be
much of a factor” and was “unlikely” to cause cracks such as these. With regard to the saw

-11-
joints, there was testimony from several witnesses that the crew started cutting saw joints
before the finishing was even completed, which was earlier than usual, and that the cracking
had already begun by that time. Finally, there was no testimony presented about anyone
pouring the mix at a high slump in this case. Thus, we find no error in the trial court’s
implicit decision to give little to no weight to this report.

Next, Supplier claims that the trial court failed to give appropriate weight to a
petrographic examination of a sample of the concrete that indicated that the sample was
“good concrete.” Dr. Elsayed testified that he did not give the petrographic examination
much weight in forming his opinion because he was unable to discern where the sample was
removed from the concrete. He explained that it was possible to take good samples and bad
samples from the same concrete. The report itself states that the test was performed on one
concrete core sample that was approximately 7" in length and 2.75" in diameter. The report
also stated that “due to damage during the core extraction process, no portion of the top
surface of the core was evident; core damage extended to a depth of at least 1 ½".” The
report further stated that due to the lack of a top surface on the sample, the laboratory was
unable to evaluate “any near-surface features” such as “shrinkage cracks, etc.” The
“conclusion” section of the report lists three findings, which appear to indicate that no
problems with the concrete sample were discovered, and then it states, “Given the lack of a
top surface, . . . [we] cannot draw any other conclusions at this time.” Due to the limitations
of the petrographic examination, we cannot say that it was error for the trial court to conclude
that something was wrong with the concrete despite the results of this test.

Finally, Supplier argues that a report prepared by another expert, Mr. Richard
Chesteen, Jr., does not support the trial court’s conclusion that the concrete was defective.
Mr. Chesteen had prepared a written report for Supplier four years prior to trial, and it was
introduced as an exhibit to Dr. Elsayed’s testimony because it was one of the documents that
he had reviewed in preparation for testifying in this matter. However, Mr. Chesteen did not
testify at trial. Mr. Chesteen’s report describes him as a “Consulting Engineer.” Mr.
Chesteen’s report stated his opinion that two things “attributed to the cause of the random
cracking, spalling and joint opening of the existing floor slab.” First, he opined that it was
improper to use calcium chloride on a day when the high temperature was forecast to be 53
degrees with a wind speed of 10-15 miles per hour.6 However, as previously explained, Dr.
Elsayed testified that it was unlikely that the wind caused the cracking at issue. Dr. Elsayed
further testified that a temperature of 53 degrees would not cause the concrete to cure rapidly,
and that 53 degrees was an allowable temperature for working the concrete. The second
contributing cause listed in Mr. Chesteen’s report was that the saw joint layout and

6
At another point in Mr. Chesteen’s report he lists the wind speed on the day of the pour as 5-10
mph.

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construction did not comply with industry recommendations. Mr. Chesteen said that the saw
joints were basically cut too far apart and not deep enough. However, as we have previously
mentioned, several witnesses testified that the cracking began before the saw cuts were made,
even though the crew started making the saw cuts earlier than usual. Mr. Chesteen’s report
states that “[c]ontrol joints are typically saw cut within 4 hours of fin[a]l finishing
operations,” but the number 4 is marked through, and the number 24 is handwritten beside
it. Regardless of whether the control joints are typically cut within 4 or 24 hours of final
finishing operations, however, the evidence was undisputed that the crews started the saw
cuts on this slab before the finishing crews completed their work, as soon as the cracking
began. Furthermore, as Dr. Elsayed noted, the cutting of the saw joints had absolutely
nothing to do with the concrete setting up too fast.

Even after reviewing Mr. Chesteen’s report, Dr. Elsayed continued to believe that the
main cause of the cracking was due to the addition of an improper amount of calcium
chloride. The trial court clearly agreed. We find no error in that decision.

V. C ONCLUSION

Having reviewed the entire record in this case, we find that the evidence supports the
trial court’s conclusion that Supplier delivered defective concrete that was improperly mixed.
Consequently, we affirm the trial court’s decision in its entirety. Costs of this appeal are
taxed to the appellant, Federal Materials Company, LLC, and its surety, for which execution
may issue if necessary.

_________________________________
ALAN E. HIGHERS, P.J., W.S.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1047038. Public record. Not legal advice.