Hairston v. Collins

• Court: Court of Appeals of North Carolina
• Decided: February 4, 2014
• Docket: 13-850
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 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 -2- 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. -3- 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.

_________________________

“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. -4- 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 -5- 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 -6- 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).