Bottoms v. Strum

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 14-75
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.

NO. COA14-75 NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

BRENDELL BOTTOMS, Plaintiff,

vs. Nash County No. 11-CVD-1697 EDWARD EARL STRUM and, DALE GRIFFIN STRUM, Defendants

Appeal by Plaintiff from judgment entered 7 May 2013 by

Judge John J. Covolo in Nash County District Court. Heard in

the Court of Appeals 19 May 2014.

Curtner Law Firm, by Tracy C. Curtner, for Plaintiff.

W. Michael Spivey for Defendants.

DILLON, Judge.

Brendell Bottoms (Plaintiff) appeals from a judgment

decreeing, inter alia, that Plaintiff had entered into a valid

binding contract with Edward Earl Strum and Dale Griffin Strum

(Defendants) to swap Plaintiff’s motorcycle for Defendants’

boat. For the following reasons, we affirm.

I. Factual & Procedural Background -2- Plaintiff and her husband, Steve Bottoms, have known

Defendants for many years. On multiple occasions – prior to the

transaction now at issue – they had discussed trading

Plaintiff’s 2002 Harley-Davidson motorcycle for Defendants’ 2001

Chaparral boat. On or about 24 July 2011, the parties again

discussed such a trade. Plaintiff inspected Defendants’ boat

that day, and Defendants inspected Plaintiffs’ motorcycle the

following day. The parties physically exchanged these items a

few days later, though the parties dispute whether a permanent

trade of the vehicles was conditioned upon Plaintiff’s

satisfaction with a test run of the boat; Plaintiff insists it

was, while Defendants maintain that the trade was completed and

not conditioned on any further inspections.

The boat failed Plaintiff’s test run. In Plaintiff’s

words, “Within fifteen minutes of pulling away from the dock,

the boat ran hot.” The boat subsequently failed a second test

run the following weekend, when it again “ran hot.” Plaintiff

telephoned Defendants to inform them of the problems with the

boat, and Earl Strum instructed Plaintiff to bring the boat to

Defendants’ residence. Plaintiff transported the boat to

Defendants’ residence, but, finding that Defendants were not at

home, left the boat on Defendants’ property without retrieving -3- the motorcycle. Defendants have not returned the motorcycle to

Plaintiff and remain in possession of both vehicles.

On 13 October 2011, Plaintiff filed a complaint against

Defendants, alleging, inter alia, breach of contract, and

seeking an injunction requiring Defendants to return the

motorcycle to Plaintiff. On 13 February 2012, Defendants filed

an answer and counterclaim, requesting a ruling “that there

[was] a fully executed Contract between the parties” and that

title to the “Boat [] be issued to [Plaintiff] and [] title to

the Motorcycle [] be issued to the Defendants.”

The matter came on for a bench trial in Nash County

District Court on 19 February 2013. After hearing testimony

from both sides, the trial court entered a judgment, filed 7 May

2013, in which it determined, inter alia, that “[t]he parties

entered into a contract for the trade of the boat for the

motorcycle on or about Monday July 25, 2011 and executed the

contract on or about July 27, 2011 when Plaintiff took

possession of the Boat and Defendant’s [sic] took possession of

the Motorcycle”; that “Defendant’s [sic] did not breach the

contract with Plaintiff”; that there were no grounds for

rescission of the contract; and that “Defendants are the

rightful owners of the [motorcycle] and the Plaintiff is the -4- owner of the [boat].” The court found meritless and/or

dismissed Plaintiff’s claims and ordered that Plaintiff transfer

title to the motorcycle to Defendants and obtain title to the

boat from Defendants. From this order, Plaintiff appeals.

II. Analysis

Our standard of review on appeal from a bench trial in

which the court sits without a jury “is whether there was

competent evidence to support the trial court’s findings of fact

and whether its conclusions of law were proper in light of such

facts. Findings of fact by the trial court in a non-jury trial

are conclusive on appeal if there is evidence to support those

findings.” Hanson v. Legasus of N.C., LLC, 205 N.C. App. 296,

299, 695 S.E.2d 499, 501 (2010). The “trial court’s conclusions

of law, however, are reviewable de novo.” Id.

A. Meeting of the Minds

Plaintiff first contends that “[t]he trial court erred in

concluding as a matter of law that an enforceable contract

existed between the parties as there was no meeting of the

minds.” We disagree.

“To constitute a valid contract, the parties ‘must assent

to the same thing in the same sense, and their minds must meet

as to all the terms. If any portion of the proposed terms is -5- not settled, or no mode agreed on by which they may be settled,

there is no agreement.’” Boyce v. McMahan, 285 N.C. 730, 734,

208 S.E.2d 692, 695 (1974) (citations omitted); Creech v.

Melnik, 347 N.C. 520, 527, 495 S.E.2d 907, 911-12 (1998) (“It is

essential to the formation of any contract that there be ‘mutual

assent of both parties to the terms of the agreement so as to

establish a meeting of the minds.’” (Citation omitted)).

Plaintiff argues that there was never a “meeting of the

minds” with respect to the parties’ agreement to exchange their

vehicles permanently, since Plaintiff believed that the

permanency of trade was conditioned upon her satisfaction with

the boat following a “test run,” whereas Defendants believed it

was a “done deal” at the time the vehicles were physically

exchanged. This issue of whether a meeting of the minds in fact

occurred was the focus of the parties’ testimonies at trial.

The parties maintained their respective, contrary positions, and

the court, upon considering the totality of the evidence,

essentially accepted Defendants’ version of the events over the

version of the events offered by Plaintiff and Mr. Bottoms.

As indicated in our standard of review, supra, this Court

is not at liberty to re-weigh the evidence presented at trial.

Hanson, 205 N.C. App. at 299, 695 S.E.2d at 501; Coble v. Coble, -6- 300 N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980) (“The trial

court must itself determine what pertinent facts are actually

established by the evidence before it, and it is not for an

appellate court to determine de novo the weight and credibility

to be given to evidence disclosed by the record on appeal.”).

Accordingly, in the instant case, we must uphold the trial

court’s judgment if there was any competent evidence to support

the court’s findings – even if there was also evidence offered

that tended to contradict those findings, Blackwell v. Butts,

278 N.C. 615, 619, 180 S.E.2d 835, 837 (1971) – and if those

findings, in turn, support the court’s conclusion that a valid

contract existed between the parties. Nationwide Mut. Ins. Co.

v. Allison, 51 N.C. App. 654, 657, 277 S.E.2d 473, 475 (1981).

The trial court’s judgment includes the following pertinent

findings:

7. That on or about, Monday, July 25, 2013 [sic], Defendants went to Plaintiff’s home and inspected the Motorcycle and the parties agreed that they would trade the Boat for the Motorcycle. At that time, Plaintiff gave to Defendants the unsigned title to the Motorcycle, the owner’s manual for the Motorcycle, leather jacket, leather chaps, leather saddle bags, helmets, and keys for the Motorcycle. At that time, Defendants gave to Plaintiff the owner’s manual and other documentation for the Boat as well as the unsigned title for the Boat. Plaintiff’s husband, Steve Bottoms, and -7- Defendant, Edward Earl Strum, shook hands[;] at that point the parties entered into a contract to trade the Boat for the Motorcycle.

8. The parties agreed to physically exchange the Boat and the Motorcycle within the next several days.

9. The parties agreed they would meet some point that week at a Notary Public to sign the titles to officially transfer titles each to the other. Defendant, Dale Griffin Strum, who has significant health problems, fell ill and could not meet Plaintiff to do so.

. . . .

11. That on or about, July 27, 2011, Defendant, Edward Earl Strum, delivered the Boat, trailer (and accessories such as life jackets and etc.) to Plaintiff’s residence at which time she took possession of the Motorcycle. At this time the parties executed the contract.

27. The parties entered into the contract for the trade of the Boat and the Motorcycle on or about Monday, July 25, 2011, and executed the contract on or about July 27, 2011, when Plaintiff took possession of the Boat and Defendants took possession of the Motorcycle.

31. No credible evidence was offered that Defendants knew or should have or had reasonable grounds to know the Boat’s engine was experiencing problems or other evidence of fraud. In fact, the evidence indicated -8- that Defendants were forthright with Plaintiff that the Boat had not been run in some time and needed to be checked and serviced prior to use. There was no evidence presented that either party had any licensed mechanic inspect the boat or any attempt of servicing the Boat prior to Plaintiff using or taking possession of the Boat.

Plaintiff specifically challenges each of the foregoing

findings, thus requiring that we delve into the record to

determine whether there was any competent evidence to support

them. Our review of the trial transcript reveals that these

findings are adequately supported by Defendants’ testimony,

which, again, serves as competent evidence for purposes of our

review, notwithstanding testimony from Plaintiff and Mr. Bottoms

to the contrary. Although Plaintiff does not appear to argue

otherwise, we further conclude that these same findings, supra,

support the court’s legal conclusion that a contract existed

between the parties to exchange the vehicles.

B. Conditions Precedent

Plaintiff further contends that even “[i]f an enforceable

contract existed between the parties, the trial court erred in

failing to conclude as a matter of law that the contract was

conditional and that all conditions precedent were not met.” We

disagree with Plaintiff’s contentions on this issue for the same -9- reasons discussed in part II(A), supra. While it is true that

testimony offered by Plaintiff and Mr. Bottoms tended to show

that the parties’ agreement was subject to a condition precedent

– namely, that the boat perform to Plaintiff’s (and her

husband’s) satisfaction on a test run – it is likewise true that

that testimony was contradicted by testimony offered by

Defendants, who maintained that their agreement was not subject

to any such condition precedent. The trial court’s findings

reflect its acceptance of Defendants’ account of the

transaction, and this Court is bound to accept such findings, as

they are supported by competent evidence in the form of

Defendants’ testimony. Coble, 300 N.C. at 712-13, 268 S.E.2d at

189. This argument is accordingly overruled.

C. Conduct of the Trial Court

In her final argument on appeal, Plaintiff contends that

“[t]he trial court created prejudicial error and exceeded its

authority by virtue of its conduct during the trial.” More

specifically, Plaintiff asserts that the trial judge, inter

alia, repeatedly interrupted Plaintiff’s counsels during her

examination of the witnesses; assisted the defense in its

examination of the witnesses by “telegraph[ing] to defense

counsel where his questions should lead”; “elicited -10- objectionable testimony by virtue of its questions to Mr.

Bottoms and then sustained an objection by defense counsel to

that very testimony”; and in short, prevented Plaintiff’s

counsel from “zealously represent[ing] her client” to the point

that the court’s actions “were so prejudicial to the Plaintiff

that a reversal and remand for trial before a different trial

judge are appropriate.”

Plaintiff cites State v. Majors for the proposition that

“some comments by trial judges . . . are so prejudicial that not

even curative instructions can right the wrong.” 73 N.C. App.

26, 27, 325 S.E.2d 689, 689 (1985). In Majors, this Court held

that the defendant was entitled to a new trial after two members

of the jury panel overheard the trial judge remark “that defense

counsel ‘had excused five whites’ from the jury panel and that

‘the court did not know what in the hell [defense counsel] was

doing’ or ‘what in the hell was going on with this case.’” Id.

at 26-27, 325 S.E.2d at 689 (alteration in original). In

reaching our holding, we expressed concern regarding “the

probable effect of the comments on the jury.” Id. at 27, 325

S.E.2d at 689 (emphasis added); see also State v. Holden, 280

N.C. 426, 429-30, 185 S.E.2d 889, 892 (1972) (“[R]emarks from

the bench which tend to belittle and humiliate counsel, or which -11- suggest that counsel is not acting in good faith, reflect not

only on counsel but on the defendant as well and may cause the

jury to disbelieve all evidence adduced in defendant’s behalf.

Any remark of the presiding judge, made in the presence of the

jury, which has a tendency to prejudice the jury against the

unsuccessful party is ground for a new trial.” (Citations and

quotation marks omitted)).

Here, there was no jury – but instead a bench trial – and

thus the concerns raised in Majors were not present. Moreover,

we have reviewed the trial transcript and conclude that the

trial court’s conduct was within its authority. For instance,

the first “interruption” to which Plaintiff directs this Court –

reflected on page five of the trial transcript – consists of the

following exchange:

[Plaintiff’s counsel]: All right. And were you involved in picking out the boat?

[Ms. Strum]. Uh ----

THE COURT: Okay. Um . . . is that relevant? Let’s stick to what’s relevant ---

[Plaintiff’s counsel]: I can move past that.

THE COURT: [U]nless that’s relevant, let’s . . . . Who cares who picked out the boat?

This exchange is representative of the trial court’s

interjections, which appear motivated primarily by the court’s -12- intention to reduce the “he said, she said” testimony to the

relevant facts underlying the transaction at issue. “It is the

trial judge’s . . . duty to . . . ascertain the truth[,]” N.C.

State Bar v. Talman, 62 N.C. App. 355, 362, 303 S.E.2d 175, 179

(1983) (emphasis added), whether it be through asking additional

questions for clarification, through confining the scope of

witness testimony and/or counsel’s line of questioning, or

through any other reasonably tailored means of unearthing the

facts pertinent and necessary to a complete understanding of the

issues at hand. The conflicting testimony presented in the

instant case required that the trial court remain active and

press the parties and their attorneys in order to get to the

bottom of their dispute. Plaintiff’s contentions on this issue

are overruled.

III. Conclusion

For the foregoing reasons, the trial court’s judgment is

hereby

AFFIRMED.

Chief Judge MARTIN and Judge STEELMAN concur.

Report per Rule 30(e).