An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
