Hairston v. Collins
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. In February 2011, We affirm. plaintiff filed a complaint against defendant alleging that defendant committed intentional fraud and misrepresentation, negligent misrepresentation, and unfair -2and deceptive trade practices against plaintiff when, on or about 1 August 2010, defendant sold plaintiff a 2000 BMW 338CI automobile alleged for that the two purchase days price after she of $5,000.00. purchased the Plaintiff 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 negligent misrepresentation, or practices against when plaintiff commit unfair he intentional and sold deceptive her the fraud, trade vehicle. -3Plaintiff court s appealed judgment to this and Court, remanded which the vacated matter the for trial further proceedings, because the judgment d[id] not contain findings of fact sufficient to support [it] in accordance with N.C.G.S. ยง 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 conclusions of law, and taxed costs to plaintiff. of fact, 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)), 572 S.E.2d 428 (2002). disc. review denied, 356 N.C. 434, Findings of fact are binding on appeal if there is competent evidence to support them, even if there is evidence to the 551 S.E.2d at 163. contrary. Sessler, 144 N.C. App. at 628, -4In trial her brief, court s plaintiff findings of does fact not challenge support its whether conclusions the that defendant did not conceal a material fact and [that defendant] did not make a representation reasonably calculated to deceive [plaintiff]. the court s Nor does plaintiff challenge on appeal whether 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 -5diagnosed 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 arguments challenged merely findings urge this of fact, Court to and that reweigh plaintiff s 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 -6reasonable inferences to be drawn therefrom. In re Whisnant, 71 N.C. App. (1984) Knutton v. (1968)). 439, 441, Cofield, If 322 S.E.2d 273 N.C. different 355, inferences 434, 359, may 435 (quoting 160 S.E.2d be drawn 29, from 33 the evidence, [the trial judge] determines which inferences shall be drawn and which shall be rejected. 160 S.E.2d at 33. evidence in disturb the Knutton, 273 N.C. at 359, Thus, despite plaintiff s disputation of the defendant s trial favor, court s we decline findings her because entreaty there is to ample competent evidence in the record to support them, and they are, therefore, binding on appeal. 628, 551 S.E.2d at 163. argument court s appeal that the are without Accordingly, and in the absence of any challenged conclusions, we See Sessler, 144 N.C. App. at findings conclude merit and we that Affirmed. Judges ERVIN and McCULLOUGH concur. to support plaintiff s affirm judgment. Report per Rule 30(e). failed the issues trial the on court s
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