                                      NO. 13-1375

                      NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 July 2014


GEOSCIENCE GROUP, INC.,

      Plaintiff,

      v.                                      Mecklenburg County
                                              No. 11 CVS 7680
WATERS CONSTRUCTION
COMPANY, INC.,

      Defendant.

      Appeal by defendant from orders entered 28 December 2012

and   22   February   2013     by     Judge     Lindsay   R.    Davis,    Jr.,    in

Mecklenburg County Superior Court. Heard in the Court of Appeals

8 April 2014.


      Keziah Gates,     LLP,     by    Andrew    S.   Lasine,    for     plaintiff-
      appellee.

      Goodman, Carr, Laughrun, Levine & Greene, PLLC, by Miles S.
      Levine, for defendant-appellant.


      STEELMAN, Judge.

      Where defendant failed to object to the trial court’s jury

instructions submitting a claim based upon quantum meruit, that

argument is not subject to appellate review. Where defendant

neither    objected   to   the   trial     court’s     jury    instructions      nor

requested special instructions, its challenges to the court’s

instructions were not preserved for appellate review. The court
                                             -2-
did    not     err        by    denying     defendant’s          motion       for     judgment

notwithstanding the verdict.

                     I. Factual and Procedural Background

       Waters Construction Company, Inc., (defendant) is the owner

of a tract of real estate located in Mecklenburg County known as

Lost Tree. In 1986 defendant’s owner, William Waters, obtained a

zoning permit for               Lost Tree    that allowed          construction of           49

houses. Defendant did not develop the land at that time. In 2008

defendant hired Frank Craig to prepare plans for Lost Tree, and

in January 2009            Mr. Craig submitted plans                   to the       Charlotte-

Mecklenburg         planning      department.       The    plans       were    reviewed      by

Steve Gucciardi, and were rejected because they did not include

the    required       wetlands       delineations          and    permits.          After   Mr.

Gucciardi reviewed the plans, he and Mr. Waters walked through

the property and Mr. Gucciardi showed Mr. Waters the wetlands

and streams that were subject to regulation.

       After the plans submitted by Mr. Craig were rejected, Mr.

Waters hired Wendell Overby to perform a preliminary wetlands

review of Lost Tree. In August 2009 Mr. Overby provided Mr.

Waters       with     a        preliminary    report        stating       that        in    his

“professional opinion that the stream features [in Lost Tree]

were     jurisdictional,”           meaning        that     they       were     subject      to

regulation.         Mr.    Overby    recommended          that    “a    detailed       wetland
                                         -3-
delineation be performed and jurisdictional features be surveyed

for permitting purposes if applicable[,]” and showed Mr. Waters

the jurisdictional wetlands and streams.

       In the fall of 2009 Mr. Waters met with Kevin Caldwell,

plaintiff’s senior vice president, about the possibility of Mr.

Caldwell’s revising the plans submitted by Mr. Craig. Mr. Waters

wanted plaintiff to produce a set of plans for development of

all 49 lots that were approved in 1986, although this would

require two stream crossings. After Mr. Caldwell and Mr. Waters

held several meetings to discuss “the layout of the subdivision”

“in    terms    of    these   stream   crossings       and    the    impact    of   the

buildable lots,” they signed a contract for plaintiff to “design

the roads, the water facility, [and] the storm drainage for

[the] 49 lots depicted on [defendant’s] rezoning petition.” The

parties agreed to a contract price of $24,000, with half to be

paid    when     plaintiff     submitted       plans   to     the    city     and   the

remainder when the plans were approved. the contract provided

that plaintiff was responsible for producing preliminary plans

depicting the location of roads, sewage and storm drains in the

subdivision, and for civil engineering plans for grading and

control    of    erosion,     and    that    defendant       was    responsible     for

surveying       and    delineating     any   “wetlands       with    jurisdictional

streams”       and    providing   plaintiff     with    this       information.     The
                                               -4-
contract stated that if “additional service work” were required,

“a work order (fee addendum) will be presented to [defendant]

for authorization prior to proceeding with the additional work.”

“Additional services” were defined in the contract as work that

was    “[b]eyond       the   scope    of       the   basic    civil   services       to   be

performed           for      this          proposal”           including           “wetland

delineation/investigation”               and    “[p]lan      revisions    initiated       by

[defendant]” after plaintiff had begun work.

       The contract was signed on 29 October 2009. Mr. Caldwell

met with Mr. Waters several times during November 2009, but Mr.

Waters did not provide Mr. Caldwell with Mr. Overby’s report or

with    any     documentation        delineating        the     wetlands      or     stream

crossings      in    Lost    Tree.       Plaintiff     submitted      plans    in    early

December 2009, which were again rejected because they failed to

delineate      the     wetlands     or    address     related     issues.     After       the

plans were rejected,           Mr. Waters told Mr. Caldwell                   about Mr.

Overby’s report           and defendant hired Mr. Overby                  to prepare a

detailed       report     delineating          the   jurisdictional        streams        and

wetland areas, so that Mr. Caldwell could develop revised plans.

       After     Mr.      Overby     delineated        the     Lost   Tree     wetlands,

plaintiff      identified      five       alternative        approaches    for      revised

plans that addressed wetland issues, and provided defendant with

a memo setting out these alternatives and indicating the effect
                                         -5-
on construction costs of each choice. After meeting to discuss

which   approach      defendant      preferred,        Mr.   Waters      directed     Mr.

Caldwell to prepare plans that would allow development of all 49

building lots, and to first submit the least expensive option.

When these plans were rejected, Mr. Caldwell prepared another

set of plans using the second least expensive option. He also

prepared new plans for the development that adjusted the road

elevation, storm water drainage, and sewer pipes to accommodate

the revised approach to wetlands and stream crossings. These

plans were ultimately approved by “both the City and Charlotte-

Mecklenburg Utility Department.”

    After the plans were approved, Mr. Caldwell sent Mr. Waters

an invoice for the additional cost of preparing revised plans.

Plaintiff had been paid $12,000 at the outset of the project,

and sought an additional $38,000. Plaintiff contended that the

additional     work    was     not   within      the    scope       of   the    parties’

contract, but constituted “additional services” as defined in

the contract. Mr. Waters refused to pay the additional amount,

claiming that the work performed was within the scope of their

agreement.

    On    26   April     2011     plaintiff      filed       a   complaint       against

defendant,     seeking       damages     based    upon       breach      of    contract,

implied   contract,      and    unjust    enrichment.         The    case      was   tried
                                      -6-
before a jury at the 5 November 2012 session of Superior Court

for Mecklenburg County. The trial testimony of Mr. Caldwell and

Mr. Waters agreed with respect to the general sequence of events

described above, but differed sharply in regards to the scope of

work covered by the contract.

      Mr. Caldwell testified that he had asked Mr. Waters for

documentation      regarding     delineation          of   wetlands     before     he

prepared the first set of plans, but that Mr. Waters had told

him   that    he   had    “a   letter”    that    exempted          defendant    from

compliance with wetlands regulations, and told him to “go ahead

and submit the plans,” promising that he would provide plaintiff

with the letter “while the plans were being reviewed.” However,

Mr. Waters never showed Mr. Caldwell such a letter. Mr. Waters

denied   telling    Mr.    Caldwell      that    he    had    a     letter   waiving

wetlands requirements.

      Mr. Waters conceded that (1) after Mr. Craig’s plans were

rejected because they failed to delineate wetlands, he had hired

Mr. Overby to produce a preliminary report; (2) Mr. Overby’s

preliminary    report     concluded      that    there       were    jurisdictional

streams and wetlands areas on the Lost Tree property; (3) Mr.

Overby gave him this report in August 2009; (4) Mr. Waters did

not show Mr. Caldwell the report until after the first set of

plans plaintiff produced were rejected for failure to delineate
                                     -7-
wetlands, and (5) Mr. Waters did not hire Mr. Overby to prepare

a   detailed   report   with   the   required   delineation       of    wetlands

until   December   2009,   after     plaintiff’s    plans    were      rejected.

However, Mr. Waters denied that he had withheld any information

from Mr. Caldwell.

      Mr.   Caldwell    testified     that   when   he      and   Mr.    Waters

discussed the additional cost of revised plans, Mr. Waters told

him “that money’s no problem, you just get the plans approved.”

Mr. Caldwell considered Mr. Waters’s statement to constitute “a

handshake agreement” and testified that he “didn’t see the need

for a written agreement[.]”

            Q. . . . [D]id you ask for a written
            amendment to the contract or written change
            order for the contract?

            A. At that time we were going through
            various . . . options. I couldn’t put a
            number on how much it would cost, but he’s
            sitting across the table from me saying
            money is not a problem, you just get the
            plans approved, and I took the man at his
            word.

      Mr. Waters admitted making the statement that “money is no

problem,” but testified that:

            A. . . . I made that comment. He asked me if
            money was a problem. At the time we was
            right in the depth of a recession and there
            was hardly any work going on, and I thought
            he meant was we going to finish the
            project[.] . . . I said money’s not the
            problem. . . . I didn’t even understand what
            he was talking about. . . .
                                              -8-


               Q. So there was never a handshake agreement
               between you Mr. Caldwell that you were going
               to pay whatever additional expenses he
               incurred above the 24,000?

               A. I had no reason to. He was supposed to do
               the job for $24,000. . . . When you’re
               contractor, that ain’t the way it works. You
               take it for a fixed price and that’s what
               you deliver at.

       Mr.     Waters    testified          that    Mr.   Caldwell       “said   he    would

finish    up    the     plans   and     submit      it    and     get   it   approved    for

$24,000,       so   I   took    the    deal.”       He    never    discussed     with    Mr.

Caldwell the procedure that would be followed if additional work

was required, testifying that:

               He had a contract to do all the work for
               $24,000. It didn't make any difference to me
               what he had to do. At the time he signed the
               contract, I didn’t know what he had to do
               other than get the plan finished and get it
               approved.

       Mr. Waters admitted meeting with Mr. Caldwell in January

2010   to    discuss      options      for     addressing       wetlands     issues,     but

testified that they never discussed additional costs, and that

he “didn’t know anything about any additional costs” until Mr.

Caldwell sent him a bill in June 2010. There was a conflict in

the parties’ evidence concerning the scope of their contract and

whether      the    provision         for    written       change       orders   had    been

abandoned.
                               -9-
    On 8 November 2012 the jury returned verdicts finding in

relevant part that:

         1. Defendant breached       its contract    with
         plaintiff by failing        to pay the      full
         contract price.

         2. Defendant owed     plaintiff   $12,000   for
         breach of contract.

         3. The parties abandoned the provision of
         their   contract  requiring   prior written
         agreement for additional services.

         4. Plaintiff was entitled to recover $26,410
         from defendant for additional services.

    On 28 December 2012 the trial court entered judgment for

plaintiff in accord with the jury’s verdict. On 4 January 2013

defendant filed a motion for entry of judgment notwithstanding

the verdict (JNOV), pursuant to N.C. Gen. Stat. § 1A-1, Rule

50(b). The trial court denied defendant’s motion in an order

entered 22 February 2013.

    Defendant appeals from the judgment and the denial of its

motion for JNOV.

                      II. Jury Instructions

                      A. Standard of Review

    When a challenge to the trial court’s instructions to the

jury raises a legal question, it is subject to review de novo.

See, e.g. Jefferson Pilot Fin. Ins. Co. v. Marsh USA, Inc., 159

N.C. App. 43, 53, 582 S.E.2d 701, 706-07 (2003) (“The trial
                                      -10-
court erred in giving the incorrect re-instruction to the jury

as a matter of law. Questions of law are reviewable de novo.”)

(citing In re Appeal of the Greens of Pine Glen Ltd. P’ship, 356

N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). However, a challenge

to a matter within the court’s discretion is reviewed for abuse

of discretion. “The form and phraseology of issues is in the

court’s discretion, and there is no abuse of discretion if the

issues   are    sufficiently    comprehensive     to    resolve    all   factual

controversies..” Barbecue Inn, Inc. v. CP & L, 88 N.C. App. 355,

361, 363 S.E.2d 362, 366 (1988) (citing Pinner v. Southern Bell,

60 N.C. App. 257, 263, 298 S.E. 2d 749, 753 (1983)).

           B. Preservation of Defendant’s Challenges to Jury
                           Instructions

    Rule       10(a)(1)   of   the   North   Carolina   Rules     of   Appellate

Procedure states the general rule that “to preserve an issue for

appellate review, a party must have presented to the trial court

a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired the court to make” and

must “obtain a ruling upon the party’s request, objection, or

motion.” Rule 10(a)(2) specifically addresses challenges to jury

instructions and provides that:

           A party may not make any portion of the jury
           charge or omission therefrom the basis of an
           issue presented on appeal unless the party
           objects thereto before the jury retires to
           consider its verdict, stating distinctly
                                           -11-
                that to which objection is made and the
                grounds of the objection; provided that
                opportunity was given to the party to make
                the objection out of the hearing of the
                jury, and, on request of any party, out of
                the presence of the jury.

       As   a    result,    a    party     waives     appellate    review     of    jury

instructions to which no objection is made at trial:

                “Rule 10[(a)](2) of our Rules of Appellate
                Procedure requiring objection to the charge
                before the jury retires is mandatory and not
                merely directory.”    “[W]here a party fails
                to object to jury instructions, it is
                conclusively presumed that the instructions
                conformed to the issues submitted and were
                without legal error.”

Wilson v. Burch Farms, Inc., 176 N.C. App. 629, 633, 627 S.E.2d

249, 254 (2006) (quoting Wachovia Bank v. Guthrie, 67 N.C. App.

622,    626,      313   S.E.2d      603,      606    (1984)    (internal     quotation

omitted), and Madden v. Carolina Door Controls, 117 N.C. App.

56, 62, 449 S.E.2d 769, 773 (1994) (internal quotation omitted).

       In   addition,      Rule     21   of    the   General    Rules   of    Practice

provides in pertinent part that in every jury trial, “the trial

judge   shall      conduct      a   conference        on   instructions      with    the

attorneys of record[,]” that an “opportunity must be given to

the attorneys . . . to request any additional instructions or to

object to any of those instructions proposed by the judge[,]”

and that if “special instructions are desired, they should be
                                      -12-
submitted in writing to the trial judge at or before the jury

instruction conference.” Rule 21 also requires that:

            At the conclusion of the charge and before
            the jury begins its deliberations, and out
            of the hearing, or upon request, out of the
            presence of the jury, counsel shall be given
            the opportunity to object on the record to
            any portion of the charge, or omission
            therefrom, stating distinctly that to which
            he objects and the grounds of his objection.

    If the trial court complies with Rule 21, a party who fails

to object to jury instructions or to submit proposed special

instructions may not raise the issue on appeal:

            Defendant failed to object to the trial
            court’s instructions [and] . . . did not
            object after the trial court instructed the
            jury. Defendant was expressly given the
            opportunity to object on both occasions in
            accordance with the provisions of Rule 21 of
            the General Rules of Practice for the
            Superior and District Courts.        . . .
            Defendant has not properly preserved this
            issue for appellate review.

State v. Storm, __ N.C. App. __, __, 743 S.E.2d 713, 716 (2013).

                     C. Instruction on Quantum Meruit

    Defendant      argues      that    “the     trial      court     erroneously

submitted   the   issue   of   quantum       meruit   to   the     jury”   on   the

grounds that “an express contract governed the relationship of

the parties and thus precluded recovery under a quantum meruit

claim.” We hold that defendant failed to preserve this issue for

appellate review.
                                        -13-
      At trial, defendant objected to the admission of evidence

concerning     the   reasonable       value      of    the   additional        services

provided by plaintiff, on the grounds that                        recovery under a

theory   of    quantum     meruit    was       not    allowed    where    an     express

contract      governed     the   same      subject       matter.      Following          the

presentation of evidence, the trial court held a conference on

proposed jury instructions. The court informed the parties that

it intended to instruct the jury on two issues pertaining to

plaintiff’s breach of contract claim. The court also informed

the parties that it intended to submit three issues concerning

plaintiff’s     quantum     meruit    claim      for    payment     for    additional

services: (1) a special interrogatory asking whether the parties

had   abandoned      the    requirement          in    the   contract        that        all

additional work be approved in writing; (2) whether plaintiff

had performed additional work; and (3) if so, the amount to

which plaintiff was entitled.

      Plaintiff      objected    to     the      court’s        submission     of        the

“preliminary issue” of whether the parties had abandoned the

contract      provision    requiring       a     written     change      order      as     a

prerequisite to plaintiff’s entitlement to recovery under the

theory of quantum meruit. Plaintiff argued that under Yates v.

Body Co., 258 N.C. 16, 128 S.E.2d 11 (1962), it was entitled to

an instruction on quantum meruit because there was evidence to
                                           -14-
support recovery under that theory. Defendant proffered Keith v.

Day, 81 N.C. App. 185, 343 S.E.2d 562 (1986), directing the

court’s attention to           its holding that the plaintiff was not

entitled to recover under quantum meruit in the absence of a

jury    finding       that     the       parties      had    abandoned        particular

provisions       of   their        express       contract.       The     court    denied

plaintiff’s      request      to     submit     the     issue    of     quantum   meruit

without predicating recovery on a finding that the parties had

abandoned the written change order requirement. The trial court

then    asked    defendant         for    any     requests      or    objections,      but

defendant       neither      requested        any     special    instructions,         nor

objected to the trial court’s proposed instructions:

            THE COURT: Yes. And I haven’t heard from
            [defense counsel] the things that he wants.

            [DEFENSE COUNSEL]: I didn’t have any changes
            in what you had.

After the trial court instructed the jury, but before it began

its    deliberations,        the     court      again    offered       the   parties    an

opportunity to state specific objections to its instructions, or

to request special instructions:

            THE COURT: The jury has retired, and I will
            hear from counsel regarding any objections
            or requests for additional instructions.
            [Your] exceptions and objections during the
            charge conference are already [p]reserved.

            [PLAINTIFF’S COUNSEL]: Yes, sir. Those are
            my objections and exceptions.
                                       -15-


            [DEFENSE COUNSEL]: My objections I think
            were on the whole issue of quantum meruit
            with respect to both cases.

            THE COURT: All right. I’ve considered the
            arguments previously given on both of those
            issues or questions that were raised. Your
            objections are noted.

Because   defendant     had    not   objected       to    the    court’s    proposed

instructions, the reference to an objection to “the whole issue

of quantum meruit with respect to both cases” can only refer to

his   objection       during     trial     to    testimony        concerning     the

reasonable    value     of    plaintiff’s       services.       Defense    counsel’s

reference to an earlier objection to the introduction of certain

testimony does not constitute an objection to a specific jury

instruction    and    does     not   “stat[e]     distinctly       that    to   which

objection is made and the grounds of the objection” as required

by Rule 10 of the Rules of Appellate Procedure. We hold that

defendant failed to preserve the challenge to the trial court’s

instruction on quantum meruit for appellate review.

      Moreover, even if this issue were properly preserved, we

would hold that the trial court did not err. Defendant notes the

general rule that “[t]here cannot be an express and an implied

contract for the same thing existing at the same time.” Campbell

v. Blount, 24 N.C. App. 368, 371, 210 S.E. 2d 513, 515 (1975)

(internal    citation    omitted).       However,    it    is    long   established
                                            -16-
that “[a] written contract may be abandoned or relinquished [by]

. . .    conduct clearly indicating such purpose[.]”                    Bixler v.

Britton, 192 N.C. 199, 201, 134 S.E. 488, 489 (1926) (citations

omitted).

              The heart of defendant’s argument is that
              plaintiff’s own evidence showed an express
              contract, and that where there is an express
              contract, no implied contract can exist. We
              recognize   the   validity  of   defendant’s
              argument as to this principle of contract
              law. [However,] . . . plaintiff’s evidence
              clearly showed that as plaintiff’s work on
              the project progressed, plaintiff . . . was
              assured that it would be paid for its work.
              Thus, [because the parties’] . . . conduct
              clearly      indicat[ed]     a     different
              understanding, an implied contract could
              arise between them.

John D. Latimer & Assoc. v. Housing Authority of Durham, 59 N.C.

App. 638, 642, 297 S.E. 2d 779, 782 (1982) (citing Campbell v.

Blount) (other citations omitted).

      Defendant does not acknowledge that even when parties have

an express contract recovery based on quantum meruit is possible

if there is evidence that the parties abandoned the contract,

and does not attempt to distinguish the cases addressing this

issue.   Nor       does       defendant     contest   the   sufficiency     of   the

evidence on the issue of abandonment. “[T]he evidence warranted

a   finding    .    .     .    that   the   conduct   of    the   parties   clearly

indicated that they were not adhering to the written provision

of the contract relative to desired changes in construction.
                                         -17-
Upon abandonment of the quoted provision by the parties, it was

proper for the court to allow recovery for the changes on the

basis of quantum meruit or an implied contract.” Campbell, 24

N.C. App. at 371, 210 S.E. 2d at 515-16. Therefore, if we were

to review this issue we would hold that the trial court did not

err by instructing the jury that, if it found that the parties

had   abandoned    the    contractual      requirement       of   written     change

orders, it could then consider whether plaintiff was entitled to

recover   based    on     the   reasonable      value   of    its      services   to

defendant.

             D. Other Challenges to Jury Instructions

      In addition to challenging the trial court’s instruction on

quantum meruit, defendant contends that the court made a variety

of other errors in its instructions to the jury. However, none

of defendant’s appellate challenges to the court’s instructions

were the subject of an objection or of a request for a special

instruction before the trial court. “A party who is dissatisfied

with the form of the issues or who desires an additional issue

should raise the question at once, by objecting or by presenting

the   additional    issue.      If   a     party   consents       to   the    issues

submitted, or does not object at the time or ask for a different

or an additional issue, he cannot make the objection later on

appeal.   Because        defendant   neither       objected       to    the    issue
                                           -18-
submitted to the jury nor asked for a different issue, as the

record unequivocally reveals, it cannot do so on this appeal.”

Hendrix v. Casualty Co., 44 N.C. App. 464, 467, 261 S.E.2d 270,

272-73 (1980) (citing Baker v. Construction Corp., 255 N.C. 302,

121 S.E. 2d 731 (1961) (other citation omitted). Defendant’s

arguments    concerning         other      alleged     errors       in    the    court’s

instructions to the jury are dismissed.




                   III. Judgment Notwithstanding the Verdict

      Finally, defendant argues that the trial court “erred in

denying    defendant’s         motion   for       judgment    notwithstanding         the

verdict,    when     the       evidence      presented        to    the       court   was

insufficient to support the jury’s verdict.” However, defendant

fails to identify any issue or element for which the evidence

was   insufficient,       or    to   cite     any    authority       addressing       the

sufficiency of evidence of breach of contract or of recovery

under   quantum     meruit.      Instead,     defendant        makes      a   conclusory

argument    that    the    “court’s        failure    to     properly     and    clearly

instruct the jury on the material issues based on the pleadings,

considering all evidence presented, substantially prejudiced the

defendant    and    therefore        the     court’s       denial    of       defendant’s

judgment notwithstanding the verdict was improper.”
                              -19-
    Moreover, defendant’s motion for JNOV did not allege that

plaintiff’s evidence was insufficient, but was based solely on

defendant’s contention that the existence of an express contract

precluded recovery based on quantum meruit. “Such a shift runs

contrary to our long standing admonition that parties may not

present, nor prevail upon, arguments in the appellate courts

that were not argued in the trial court. . . . ‘[T]he law does

not permit parties to swap horses between courts in order to get

a better mount’ before an appellate court).’” Hamby v. Profile

Prods., L.L.C., 361 N.C. 630, 642-43, 652 S.E.2d 231, 239 (2007)

(quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838

(1934)). This argument lacks merit.

    For the reasons discussed above, we conclude that the trial

court did not err and that its judgment and order should be

    AFFIRMED.

    Judges HUNTER, Robert C., and BRYANT concur.
