dissenting.
I must respectfully dissent from the majority opinion. In light of our relevant standard of review in this case, I conclude that the decision of the trial court should not be disturbed.
The trial court specifically found the failure of the brake system of the Zirkels' Cadillac to be a "nonconformity," as defined by Ind.Code § 24-5-18-6. The majority rejects this finding as unsupported by substantial evidence. The testimony of Dorothy Zirkel, indicating periodic failures of the brake system, is dismissed as mere "opinion" or "belief" and thereby without probative value under the rule of Hum-phries v. State (1991), Ind. App., 568 N.E.2d 1033. Contrary to Zirkel's "opinion," the majority finds the record to only show that "the brakes were working at all times." Op. at 1072. The majority concludes that reversal is therefore mandated because the Zirkels presented no substantial evidence of a nonconformity pursuant to statute and the trial court's finding and judgment are thus clearly erroneous.
I disagree.
The record reveals service invoices and testimony indicating that: (1) the Zirkels repeatedly reported to Ed Martin that the brakes of the Cadillac would not stop the car, and (2) Ed Martin was unable to effect a permanent solution to their complaint with service on the brake system of the car. Dorothy Zirkel testified that on certain occasions the brakes would go to the floor without stopping the car. Her testi mony describing the operation of the Cadillac's brake system constitutes a matter of evidentiary fact, not opinion, and the rule of Humphries is without application so as to render the testimony inadmissible.
Indiana Code § 24-5-138-6 provides that a "nonconformity" includes "any specific or generic defect or condition or any concurrent combination of defects or conditions that ... substantially impairs the use, market value, or safety of a motor vehicle." The majority does not dispute that the trial court was entitled to find a brake *1074system which occasionally fails is within the statutory definition of "nonconforming." Rather, the majority finds a sufficient basis for reversal in the testimony of Ed Martin employees who described the brake system of the Cadillac as without defect and who also opined that the Zirkels' problems were solely a function of their own inability to adjust to the "feel" of the brakes.
However, the credibility of witnesses and the weight to be given their testimony are matters entrusted solely to the trier of fact and are not within the permissible scope of our review as an appellate tribunal. The trier of fact in this case was not required to accept the foregoing testimony, and thereby discount Dorothy Zirkel's testimony that the brakes did not reliably stop the car. Neither was the trier of fact required to credit the self-serving explanations of the Ed Martin employees with regard to why the dealership undertook extensive rehabili-tations of the Cadillac's brake system. There was substantial evidence to support the trial court's finding that the Cadillac's brake system was a nonconformity, pursuant to statutory definition.
When we review a case in which the trial court has rendered findings of fact and conclusions of law, our standard of review requires deference to the trial court's findings if there is evidence to support them, and in this determination we may consider only the evidence favorable to the judgment. - DeHaoan v. DeHaoan (1991), Ind. App., 572 N.E.2d 1815, trans. denied. The majority correctly articulates this rule but fails to follow it, instead substituting its own view of the evidence for that of the trial judge. I would affirm the trial court's finding and judgment as supported by substantial evidence.