Hairston v. Collins ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-850
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
GLORIA T. HAIRSTON,
Plaintiff,
v. Forsyth County
No. 11 CVS 851
JOHN W. COLLINS, JR.,
Defendant.
Appeal by plaintiff from judgment entered 12 April 2013 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals 6 January 2014.
Gloria T. Hairston, pro se, for plaintiff–appellant.
J.E. Thornton, P.A., by Jack E. Thornton, Jr. and J. Alex
Thornton, for defendant–appellee.
MARTIN, Chief Judge.
Plaintiff Gloria T. Hairston appeals from a judgment
denying any recovery against defendant John W. Collins, Jr. and
taxing her with the costs. We affirm.
In February 2011, plaintiff filed a complaint against
defendant alleging that defendant committed intentional fraud
and misrepresentation, negligent misrepresentation, and unfair
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and deceptive trade practices against plaintiff when, on or
about 1 August 2010, defendant sold plaintiff a 2000 BMW 338CI
automobile for the purchase price of $5,000.00. Plaintiff
alleged that two days after she purchased the vehicle from
defendant, the vehicle failed inspection “for major defects that
make the vehicle unsafe to be on the road.” She further alleged
that, after taking the vehicle to the Autobahn Service Center in
Clemmons, North Carolina, plaintiff “discovered that the vehicle
had major problems, requiring major repair at a substantial
cost,” that “the vehicle’s major deficiencies and repair needs
were known by Autobahn prior to her purchase on August 1, 2010,
and were known by [d]efendant prior to the purchase on August 1,
2010,” and that defendant “purposely and willfully made
misrepresentations of material facts concerning the condition of
the vehicle to [p]laintiff with the intent to deceive
[p]laintiff concerning the actual defective condition of said
vehicle.” Plaintiff sought compensatory, punitive, and treble
damages, as well as costs and fees, from defendant.
After hearing the matter without a jury, on 15 March 2012,
the trial court entered a judgment in defendant’s favor, after
concluding that defendant did not commit intentional fraud,
negligent misrepresentation, or unfair and deceptive trade
practices against plaintiff when he sold her the vehicle.
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Plaintiff appealed to this Court, which vacated the trial
court’s judgment and remanded the matter for further
proceedings, because the judgment “d[id] not contain findings of
fact sufficient to support [it]” in accordance with N.C.G.S.
§ 1A-1, Rule 52(a)(1). Hairston v. Collins, __ N.C. App. __,
737 S.E.2d 191, slip op. at 2, 4 (2013) (unpublished). Upon
remand, on 12 April 2013 the trial court entered a new judgment
in defendant’s favor in which it made findings of fact,
conclusions of law, and taxed costs to plaintiff. Plaintiff
appeals.
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“The standard of review on appeal from a judgment entered
after a non-jury trial is ‘whether there is competent evidence
to support the trial court’s findings of fact and whether the
findings support the conclusions of law and ensuing judgment.’”
Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176
(quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d
160, 163, disc. review and supersedeas denied, 354 N.C. 365,
556 S.E.2d 577 (2001)), disc. review denied, 356 N.C. 434,
572 S.E.2d 428 (2002). “Findings of fact are binding on appeal
if there is competent evidence to support them, even if there is
evidence to the contrary.” Sessler, 144 N.C. App. at 628,
551 S.E.2d at 163.
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In her brief, plaintiff does not challenge whether the
trial court’s findings of fact support its conclusions that
defendant “did not conceal a material fact and [that defendant]
did not make a representation reasonably calculated to deceive
[plaintiff].” Nor does plaintiff challenge on appeal whether
the court’s findings of fact support its conclusions that
defendant “did not act intentionally or with recklessness to
deceive [plaintiff],” that defendant “exercised reasonable care
in ascertaining the operability of the BMW and in communicating
such to [plaintiff],” or that defendant “did not commit an
unfair or deceptive act upon [p]laintiff” and “did not act in
willful and wanton disregard of the rights of [plaintiff] in the
transaction in question.” Instead, plaintiff purports to
challenge only whether the evidence in the record supports the
trial court’s findings of fact:
4. During the time that Collins owned the
BMW, multiple repairs were identified
and completed including a problem with
a wheel bearing of which Collins was
aware at the time he purchased the
vehicle.
5. Collins had all problems with the BMW
that either existed at the time of
purchase, or that arose during its
daily use, repaired by mechanics.
6. The final and latest repair made to the
BMW was performed by Autobahn Service
Center on July 14, 2010. At that time,
the engine light was on and was
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diagnosed by the mechanics at Autobahn
as a problem with the exhaust cam
sensor.
7. The sensor was replaced by Autobahn.
After repairs were completed,
everything was operable on the BMW
including the engine light, and no
other repairs were needed.
8. . . . Collins informed Hairston that he
had done a lot of work to the BMW and
that there were no problems with the
vehicle of which he was aware. Collins
also informed Hairston that he had all
the maintenance records for the BMW.
. . . .
12. At the time Collins sold the BMW to
Hairston, there were no apparent
problems with the BMW nor was Collins
aware of any problems with the BMW.
However, a careful examination of the evidence in the record
before us, especially in the context of plaintiff’s arguments on
appeal, reveals that there is competent evidence to support each
of the challenged findings of fact, and that plaintiff’s
arguments merely urge this Court to reweigh the evidence
presented to the trial court and to give greater consideration
to testimony that is favorable to her claims. When a trial
judge sits “as ‘both judge and juror,’ as he or she does in a
non-jury proceeding, it is that judge’s duty to weigh and
consider all competent evidence, and pass upon the credibility
of the witnesses, the weight to be given their testimony and the
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reasonable inferences to be drawn therefrom.” In re Whisnant,
71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (quoting
Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33
(1968)). “If different inferences may be drawn from the
evidence, [the trial judge] determines which inferences shall be
drawn and which shall be rejected.” Knutton, 273 N.C. at 359,
160 S.E.2d at 33. Thus, despite plaintiff’s disputation of the
evidence in defendant’s favor, we decline her entreaty to
disturb the trial court’s findings because there is ample
competent evidence in the record to support them, and they are,
therefore, binding on appeal. See Sessler, 144 N.C. App. at
628, 551 S.E.2d at 163. Accordingly, and in the absence of any
argument that the challenged findings failed to support the
court’s conclusions, we conclude that plaintiff’s issues on
appeal are without merit and we affirm the trial court’s
judgment.
Affirmed.
Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).