An unpublished opinion of the North Carolina Court of Appeals does not constitute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