An unpublished opinion of the North Carolina Court of Appeals does not constitute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