                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5660-14T4

NEW YORK-CONNECTICUT
DEVELOPMENT CORP.,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent/                     AS REDACTED
     Cross-Appellant,                        April 10, 2017

v.                                         APPELLATE DIVISION


BLINDS-TO-GO (U.S.) INC.,

     Defendant/Third-Party
     Plaintiff-Appellant/
     Cross-Respondent,

v.

ANTHONY NARDOZZI; CHRIS YEATES;
JM HALEY CORP.; BRAVANTE
AUTOMATIC SPRINKLER CORP.;
COUNTY GLASS & METAL INSTALLERS,
INC.; THYSSENKRUPP ELEVATOR
CORPORATION; JUSTAN ELECTRICAL
CONTRACTING, INC.; CURTI &
ASSOCIATES, LTD.; UNIQUE
MECHANICAL SERVICES, LLC; WHALEN
BEREZ GROUP, LLC,

     Third-Party Defendants-
     Respondents.
___________________________________

UNIQUE MECHANICAL SERVICES, LLC,

     Second Third-Party Plaintiff-
     Respondent,

v.

NEW YORK-CONNECTICUT
DEVELOPMENT CORP.,

     Second Third-Party Defendant-
     Respondent.
___________________________________

COUNTY GLASS & METAL INSTALLERS,
INC.,

     Fourth-Party Plaintiff-
     Respondent,

v.

NEW YORK-CONNECTICUT
DEVELOPMENT CORP., and
ANTHONY NARDOZZI, JR.,

     Fourth-Party Defendants-
     Respondents.
___________________________________

         Argued February 13, 2017 – Decided April 10, 2017

         Before Judges Sabatino, Haas, and Currier.

         On appeal from the Superior Court of New
         Jersey, Law Division, Bergen County, Docket
         No. L-5440-12.

         David   R.   King  argued  the   cause  for
         appellant/cross-respondent     Blinds-To-Go
         (Herrick, Feinstein LLP, attorneys; Mr.
         King, K. Heather Robinson, and Chantelle L.
         Aris, on the briefs).

         Jessica L. Rothman (Ingram Yuzek Gainen
         Carroll & Bertolotti, LLP) of the New York
         bar, admitted pro hac vice, argued the cause
         for   respondent/cross-appellant  New  York-
         Connecticut Development Corp. (Ingram Yuzek
         Gainen Carroll & Bertolotti, LLP, attorneys;
         Dean G. Yuzek and Kimberly L. Quintano, on
         the briefs).




                               2                        A-5660-14T4
          Jonathan H. Krukas argued the cause for
          respondent Unique Mechanical Services (Quinn
          McCabe LLP, attorneys; Mr. Krukas, on the
          brief).

          Sean   E.      Regan   argued  the   cause  for
          respondent      Whalen Berez Group (Giordano,
          Halleran &     Ciesla, attorneys; Mr. Regan, of
          counsel and    on the brief).

          Steven R. Rowland argued the cause for
          respondent   Justan  Electrical   Contracting
          (Brown Moskowitz & Kallen, P.C., attorneys;
          Mr. Rowland, of counsel and on the brief).

          Christopher G. Fusco argued the cause for
          respondent  Bravante  Automatic  Sprinkler
          Corp. (Callahan & Fusco, LLC, attorneys;
          Matthew Szymczak, of counsel and on the
          brief).

          Kelly A. Zampino argued the cause for
          respondent County Glass & Metal Installers,
          Inc.   (Hartmann,  Doherty,   Rosa,  Berman,
          Bulbulia, attorneys; Richard M. Rosa, on the
          brief).

    The opinion of the court was delivered by

CURRIER, J.A.D.

    In   this   matter    arising   out   of   the   construction   of   a

building, we address whether a verdict can be sustained where

the jury found that plaintiff, New York-Connecticut Development

Corp. (NYCT), breached the pertinent contract, but nevertheless,

awarded it damages under a quantum meruit theory.           We conclude

that once the jury determined that an express contract existed

between the parties, it was erroneous for it to be directed to a




                                    3                           A-5660-14T4
consideration      of    quantum     meruit.           Consequently,         we    are

constrained to reverse and remand for a new trial.

                                        I.

    Plaintiff submitted a successful bid and was selected by

defendant,    Blinds-To-Go       (U.S.)        Inc.   (BTG),   as     the    general

contractor to build its corporate headquarters.                       In February

2011, the parties signed a document entitled "GC [Guaranteed

Cost] Contract Cost Plus Fee with GMP."                The agreement contained

the following language:          "Based on the current set of drawings

and information received to this date NYCT will enter into a

contract    with   BTG   with    a      Guaranteed     Maximum      Price,    and     a

completion date of September 15th 2011" subject to conditions

addressed within the agreement.

    The agreement provided for a guaranteed price of $3,800,000

for the hard cost budget and a fixed GC fee of $200,000, setting

the project's total price at $4,000,000.

    Prior to the start of the project, the parties agreed to

the use of change orders prepared by the contractor to advise

the owner of additional work that was required beyond what was

contained    in    the   plans     or        the   contract.        Plaintiff      was

instructed to submit the change orders to the architect, Peter

Wells.     To request payment, plaintiff submitted a requisition to

defendant.    The document listed the new contract price resulting




                                          4                                  A-5660-14T4
from the addition of change orders and the payment due.                              As the

construction      progressed,           plaintiff    submitted          thirteen     change

orders    contained       in      ten   requisitions        totaling       $461,000       for

defendant's      review      and    approval.        After       several    meetings       to

discuss    the       orders,       they    were     approved       in      August      2011.

Defendant advised plaintiff that as the scope of the project was

settled, the price should also be finalized as it considered the

approved requisitions to be a complete list of additional work.

       The building was not delivered to defendant on September

15, 2011, as per the contract.                  Although several new deadlines

were set, it was not until March 16, 2012, that a certificate of

occupancy (CO) was delivered by plaintiff.

       On March 6, plaintiff presented an additional requisition

(Requisition      11)       for    defendant's       consideration.            Defendant

informed that it would pay the requisition upon receipt of the

CO, the release of liens and the completion of the punch list.

In   response,       plaintiff      told    defendant       it    did    not   intend      to

return    to   the    job    site.        Although    the    requisition        was     paid

several days later, plaintiff did no further work and failed to

complete the punch list.

       Plaintiff submitted a final requisition (Requisition 12) in

June   2012    containing          seventeen      additional       unapproved        change

orders with charges in excess of $1,000,000.                        Defendant offered




                                            5                                       A-5660-14T4
to compromise the requested amount, but received no response.

Plaintiff filed this action in July 2012.

                                    II.

    Plaintiff's complaint alleged a breach of contract or, in

the alternative, a claim for quantum meruit against defendant.

Defendant   filed   an     answer   and    counterclaim   for   plaintiff's

failure to complete the work in accordance with the contract,

and a third party complaint against several subcontractors.               The

subcontractors in turn counterclaimed against defendant for the

establishment of a lien fund and filed fourth party complaints

against plaintiff for breach of contract.

            [At the court's direction, the published
            version of this opinion omits the remainder
            of    Section   II    concerning   pre-trial
            procedural facts; Sections III(E) and (F)
            concerning the Prompt Payment Act and an
            attorney's charging lien, N.J.S.A. 2A:13-5;
            Sections IV(C), (D), and (E) regarding a
            lien fund, a discovery issue, and expert
            testimony dispute; and Sections V(A) and (B)
            concerning the PPA and attorney's charging
            lien. R. 1:36-2(a).]

                                    III.

                                     A.

    Prior    to   trial,    defendant     presented   a   summary   judgment

motion to dismiss the quantum meruit claim.                The motion was

denied as untimely under Rule 4:46-1 as the return date was less

than thirty days prior to the trial date.             On the first day of




                                      6                             A-5660-14T4
trial, defendant advised the judge it had filed an in limine

motion to dismiss the quantum meruit claim.                         The judge told

defendant that he would not entertain an in limine motion that

should have been presented as a summary judgment motion; under

Rule 4:37-2(b), the application should be made at the end of

plaintiff's case.

    Trial commenced on March 16, 2015 and continued through

April    2.       During    the    jury      charge    conference      on   March     31,

plaintiff's counsel queried whether it was necessary for the

jury to be instructed on the various types of contracts because

"whether there's a contract and what the contract is, is not in

dispute."         She said: "I don't know that it's disputed . . .

that's the contract document."                Defense counsel responded: "I'll

accept    .   .    .    that,    this   is    the     contract   and    there     was    a

contract."        He then reiterated his argument, in light of the

parties' agreement, that plaintiff was not entitled to quantum

meruit.

                   THE COURT: I agree. The jury is going
              to be charged in the alternative.    If you
              find that it's a contract, then this is the
              relationship between the parties - -

                       . . . .

                   THE COURT:   If there was no contract
              and this contractor just did the work under
              the expectation, reasonably, that it wasn't
              done as charity and he'd be paid, then he's
              entitled to Quantum Meruit.        It's an



                                             7                                  A-5660-14T4
alternative cause of action, you don't get
both.

     [DEFENSE COUNSEL]:    Right but the
problem with that is, the plaintiff has
taken the position and we agree that there
is a contract.

     THE COURT: Okay but they can argue in
the alternative . . . .

    . . . .

     THE COURT: He can disagree and he can
say, ladies and gentlemen, I'm convinced
it's a contract and I think you're going to
find that it's a contract but if I'm wrong
and   you don't believe there was a meeting
of the minds I want you to know, my
contractor did the work, it wasn't for free,
they have a building, he deserves to be
paid.

    . . . .

     THE COURT:     Isn't   that   a   reasonable
alternative?

     [DEFENSE COUNSEL]: I don't agree but I
- - I - - that's not what the law says in
my opinion but that's - -

    THE COURT:    Really?

    . . . .

     THE COURT:      So you've never seen
Quantum Meruit pled as an alternative to a
bre[a]ch of contract claim?

     [DEFENSE COUNSEL]:    I don't believe,
when you get to the trial and the plaintiff
takes the position there is a contract, they
get to plead in the alternative.




                      8                             A-5660-14T4
    On April 1, defense counsel again raised the issue during a

discussion    of   the   proposed    verdict   form;   we   include   the

finalized verdict sheet for the reader's ease and clarity.

         Breach of Contract

              1.    Do you find that the parties
         entered into a binding Contract with terms
         and conditions governing performance and
         payment obligations for work on the Project?

             ____ Yes       ____ No       Vote Count ____

         If you answered "Yes" proceed to Question 2.
         If you answered "No" proceed to Question 11.

              2.   Do you find that NYCT performed
         it[s] obligations under the Contract?

             ____ Yes       ____ No       Vote Count ____

         If you answered "Yes" proceed to Question 3.
         If you answered "No" proceed to Question 11.

              3.   Do you find that BTG failed to
         satisfy its obligations under the Contract
         by: failing to pay NYCT for the work
         described in Change Order Nos. 14 through
         30?

             ____ Yes      ____ No        Vote Count ____

         If you answered "Yes" proceed to Question 4.
         If you answered "No" proceed to Question 11.

              4.   Do you find that BTG failed to
         satisfy its obligations under the Contract
         by failing to pay NYCT the remaining
         $200,000 balance of retainage?

             ____ Yes      ____ No        Vote Count ____

         If you answered "Yes" proceed to Question 5.
         If you answered "No" proceed to Question 11.


                                     9                          A-5660-14T4
     5.   Do you find that NYCT was damaged
by BTG's breach, or failure to satisfy its
obligations under the Contract?

____ Yes      ____ No        Vote Count ____

If you answered "Yes" proceed to Question 6.
If you answered "No" proceed to Question 11.

     6. What amount of damages, if any, do
you award to NYCT to compensate NYCT for BTG
breaching the Contract by failing to pay
NYCT for the work described in Change Order
Nos. 14 through 30?

$________________            Vote Count ____

Proceed to Question 7.

     7. What amount of damages, if any, do
you award to NYCT to compensate NYCT for BTG
breaching the Contract by failing to pay
NYCT the remaining $200,000 balance of
retainage?

$_________________           Vote Count ____

Proceed to Question 8.

Building Contracts – Substantial Performance

     8.    Do you find that there has been
such    an    approximation   to    complete
performance by NYCT that the owner (BTG)
obtains substantially what is called for by
the Contract?

____ Yes      ____ No        Vote Count ____

If you answered "Yes" proceed to Question 9.
If you answered "No" proceed to Question 11.

     9. Do you find that the defects in the
performance by NYCT are not so serious as to




                        10                     A-5660-14T4
    deprive the owner (BTG) of the intended use
    of the building?

     ____ Yes     No____        Vote Count ____

    If you answered "Yes" proceed to Question
    10.
    If you answered "No" proceed to Question 11.

         10. What is the amount you find is the
    fair   allowance   for  defective  work   or
    omissions, if any, for which the owner (BTG)
    is entitled to credit?

     $________________           Vote Count ____

    Proceed to Question 11.

         11.    If you decide that there was no
    binding contract between NYCT and BTG, but
    that BTG has retained the value of the work
    on NYCT or the work of its subcontractors
    under circumstances where one could not
    conclude the work was done for free, what
    amount   do   you  award  to  NYCT   as  the
    reasonable value of the items of work
    described in Change Order Nos. 14 through 30
    that were not included within the terms of
    the basic Contract between the owner (BTG)
    and NYCT?

     $________________           Vote Count ____

This colloquy followed:

         [DEFENSE COUNSEL]:    Your Honor, just
    one issue [about the jury verdict sheet]. I
    feel number one should only be pointed to
    [11] if they answer no. . . . [Y]ou're
    giving the option to go to [11] - -

         THE COURT: No. If they answer - - it
    says under number one. . . .

         If you answered no, proceed to question
    [11].



                           11                      A-5660-14T4
     [DEFENSE COUNSEL]:    Right.   For two,
three, four, and five . . . they also get to
go to [11].   You should only go to [11] if
you answered no for number one.

     THE COURT:    Well,    what   about   number
two? . . .

     Well, if the plaintiff did not perform
its obligations under the contract then it
can't recover under the contract.  And does
it have any other avenue of recovering? . .
.

    Yes. Quantum meruit. . . .

    Therefore go to [11].

    . . . .

     [DEFENSE COUNSEL]: But . . . they
already agree that there is a contract. . .
.

[J]ust note our disagreement with this,
Judge. I don't believe they get to do both.
I've said that from the beginning. . . .

     THE COURT:     [A]nd   your  record is
clear. And they only get to go to [11] if a
jury concludes there's no contract. There's
no meeting of the minds. . . .

     I don't know what you people are
talking about.    This building got put up.
And, you know, and extra were done.     But
there was no true meeting of the minds. But
they were done.       And, clearly, should
someone retain the value of it . . . or
should someone pay for it?

    . . . .

I've heard your objection.     But . . . I'm
going to leave it in there.



                     12                             A-5660-14T4
                                      B.

      During trial defendant sought to call Robert Murray, its

facilities     manager    and    Director   of    Construction,       as   a   fact

witness.      The proffer was that the witness would testify to

problems that he had observed in the building, specifically with

the heating, ventilating, and air conditioning (HVAC) system.

He   also    examined    parts   of   the   building      and   found   leaks     in

outdoor balconies that needed repairs.                 Because there was no

expert report delineating damages caused by plaintiff or setting

forth necessary repairs, the trial judge found the testimony

lacked   a   causal     nexus.   He   concluded    that    Murray's     testimony

would not assist the trier of fact in reaching any material

issue and therefore barred the testimony.

      During a preliminary conversation regarding the proposed

jury verdict sheet on March 31, plaintiff's counsel advised the

judge that the parties had agreed that the jury should answer

questions     regarding    defendant's      counterclaim        for   plaintiff's

breach of contract.         Defendant stated its counterclaim was for

plaintiff's failure to deliver an LEED certified1 building as




1   Leadership in Energy and Environmental Design (LEED) is a
building certification process that uses a point system to
evaluate the environmental merits of a building, with the goal
of encouraging the design and construction of water and energy
                                                    (continued)


                                       13                                  A-5660-14T4
promised   in   the   contract.    Defendant   was   not   seeking   money

damages on its counterclaim but was asserting it as a defense to

plaintiff's damage claim.     Defense counsel stated:

           [T]here are obligations under the contract
           and even if the jury were to find that
           they're owed x dollars . . . they can
           certainly find that they failed to fulfil
           their obligations under the contract and the
           law   is,   if   you   don't  fulfill   your
           obligations under the contract, you may
           forfeit what you're owed under the contract
           . . . there's plenty of testimony about what
           the obligations were and some of the things
           that weren't done.

He continued:

           [T]he contract here says it's going to be a
           LEED building.    The testimony is uncontra-
           dicted that it's not and I have plenty of
           testimony   about   why  and  I'm  certainly
           entitled to argue to this jury that the
           plaintiff failed to hold up its end of the
           bargain and that's why it's not LEED now
           . . . and the jury can certainly make their
           own decisions on whether that should cost
           the plaintiff.

The judge determined that since defendant did not present a

monetary amount of damages he had no proofs to present on the

subject, and therefore, he did not have a substantiated breach

of contract claim.




(continued)
efficient structures,      while   using   sustainable     materials   and
resources.



                                   14                            A-5660-14T4
    The following day, defense counsel queried of the trial

judge why he had removed the proposed jury questions regarding

its counterclaim.    The judge responded:

         Because there are no proofs on the damages.
         Well, actually that's not fair.   [T]here is
         a question on this verdict sheet dealing
         with an allowance.    So to the extent that
         your counterclaim encompasses a claim . . .
         for the deductions for the retainage . . . .
         So I guess, they can accept that.

                                 C.

    During   the    trial   judge's   instructions   to   the   jury,   he

included detailed charges on the elements of a contract, and

defined express and implied contracts.          After explaining the

breach of contract concept, he stated:

         [Defendant] had a counterclaim. . . . In
         this case there is a limited counterclaim
         filed by the defendant against the plaintiff
         with regard to the retainage. And it is for
         you to determine on instructions that we'll
         give you in a few minutes and upon the jury
         verdict sheet to determine if . . . the
         defendant is entitled to a credit based on
         the retainage for punch list items that
         weren't done . . . . [T]hat's the extent to
         which . . . I am permitting the defendant to
         have a counterclaim.

                                 D.

    In his instructions to the jury regarding the verdict sheet

the trial judge stated:

              So, we know in this case there's a
         breach of contract claim.   And, therefore,
         question number one asks you all to decide,



                                  15                             A-5660-14T4
based on the law I gave you and all of the
evidence that you'll have with you, do you
find that the parties entered into a binding
contract with terms and conditions governing
performance and payment obligations for work
on the project?   So, the answer to that is
either yes or no.

     Remember I gave you the law about
contracts.   They can be written.   They can
be oral.    They can be written and oral.
They can be, partly, based on conduct. So,
you have to sift through that evidence in
the book and through the testimony to
determine whether there was a contract. And
you answer that yes or no.

    . . . .

So, you come to [question] number one. You
discuss it.   You then answer the question.
Do you find the parties entered into a
binding contract with terms and conditions
governing     performance    and    payment
obligations for the worker on the project;
yes or no?   And the vote count; either 6/1
or 7/0.

     So, you answer it yes, you're going to
go to question two.    Because this is on a
breach of contract claim.    What happens if
you answer no?   Well, if you answer no you
[the jury], basically, found there was no
contract.   There was no agreement between
the parties on the material terms that made
up this deal.

     Then what would you do? Well, it says
go to 11.   And why do we ask you to go to
11?   That's because the plaintiff, in this
case, has in its pleadings said we contend
and allege there's a contract.          But,
alternatively, if for some reason a jury who
is going to hear this case doesn't believe
there's a contract then we're entitled to
recover based on the reasonable value of the



                     16                        A-5660-14T4
          services we rendered.      That's in Latin
          called quantum meruit. What is it worth?

               So, that's why the question and the
          directions under question number one say,
          well, if you answer yes you've answered the
          first part of the question about whether
          there's a contract positively so go to two.
          But if you answer it no, you've found there
          isn't a contract and the plaintiff may only
          recover, if it recovers at all, based on
          quantum meruit.   What's the value of the
          services[?]

               Let's assume you answered it yes.   So,
          you go to question two.     Do you find that
          the   New  York/Connecticut   performed  its
          obligations under the contract; yes or no?
          . . . If you answer yes you go to three.
          But, again, you're finding the elements if
          you answer yes to one and two, which are
          necessary to find there's a contract.

               If you say it didn't perform its
          contract obligation, obviously and logically
          under the law I gave you, someone who
          doesn't perform its contract obligations is
          not entitled to recovery under the contract.
          That doesn't mean they - - the entity may
          not be entitled to recover under the
          alternate theory of what's the value of my
          services worth.

               So, if you answer yes to question
          number two you go to question number three.
          If you answer no you go to question number
          11 again.   Because, again, you're finding,
          if you answer it no, that they haven't done
          what they're supposed to do under the
          contract and, therefore, not entitled to
          recover under the contract. But they may be
          entitled to recover under quantum meruit.

    After   discussing   the   next   several   questions,   the   judge

stated:



                                 17                            A-5660-14T4
                And then, lastly, there's question 11.
           Which you only reach if under the first set
           of questions you've determined there's no
           contract or one of the necessary elements of
           the contract claim have not been met.
           Again, the plaintiff can only recover in
           this case, if it recovers at all, under two
           theories; breach of contract or quantum
           meruit.

                He's entitled to a recovery under
           breach of contract if he proves all the
           elements of the contract.   And that they're
           entitled to recover under the contract for
           the extras. And if you find that is not the
           case then your consideration can be you have
           determined, well, what value, if any, are
           they entitled to recover under a quantum
           meruit theory or an alternative theory.

    After completing its deliberations, the jury returned its

verdict:

                1.   Do you find that the parties
           entered into a binding Contract with terms
           and conditions governing performance and
           payment obligations for work on the Project?

           X   Yes       ____ No        Vote Count 7

           If you answered "Yes" proceed to Question 2.
           If you answered "No" proceed to Question 11.


           2.   Do you find that NYCT performed it[s]
           obligations under the Contract?

            ___ Yes        X No         Vote Court 6-1

           If you answered "Yes" proceed to Question 3.
           If you answered "No" proceed to Question 11.

               . . . .




                                   18                     A-5660-14T4
            11. If you decide that there was no binding
            contract between NYCT and BTG, but that BTG
            has retained the value of the work of NYCT
            or the work of its subcontractors under
            circumstances where one could not conclude
            the work was done for free what amount do
            you award to NYCT as the reasonable value of
            the items of work described in Change Order
            Nos. 14 through 30 that were not included
            within the terms of the basic Contract
            between the owner BTG and NYCT?

             $791,046.7                       Vote Count 6-1


                                     IV.

    Defendant appeals both the jury verdict rendered on April

2, 2015 awarding plaintiff damages under the theory of quantum

meruit, and the final order and judgment entered by the trial

court on July 10, 2015, as well as several discovery orders and

rulings.      Plaintiff cross-appeals the dismissal of its claim

under the PPA and the subordination of its attorney's lien to

the lien claims of the third-party defendant sub-contractors.

Third-party    defendants       oppose     the     defendant's     appeal     of   the

verdict and final judgment as well as plaintiff's cross-appeal

regarding the lien claims.

                                     A.

    We     review   a    jury    verdict      with    a     deferential     standard.

"However, when the facts are not contested and the trial court's

decision    turns   on    a     question      of     law,    the   'trial     court's

interpretation of the law and the legal consequences that flow



                                         19                                  A-5660-14T4
from    established   facts   are   not   entitled   to   any   special

deference.'" Dempsey v. Alston, 405 N.J. Super. 499, 509 (App.

Div. 2009) (quoting Manalapan Realty v. Manalapan Twp. Comm.,

140 N.J. 366, 378 (1995)).        In these circumstances, our review

is de novo.     Toll v. Twp. of W. Windsor, 173 N.J. 502, 549

(2002) (citing Balsamides v. Protameen Chem., 160 N.J. 352, 372

(1999)).

       Defendant contends that the trial court erred when it (1)

permitted plaintiff to seek recovery under the theory of quantum

meruit, and (2) instructed the jury to consider this quasi-

contract claim when the parties' relationship was governed by an

express contract.     We agree.

       Quantum meruit is a form of quasi-contractual recovery and

is "wholly unlike an express or implied-in-fact contract in that

it is 'imposed by the law for the purpose of bringing about

justice without reference to the intention of the parties.'"

St. Barnabas Med. Ctr. v. Cnty. of Essex, 111 N.J. 67, 79 (1988)

(citations omitted).      The equitable remedy is applicable only

"when one party has conferred a benefit on another, and the

circumstances are such that to deny recovery would be unjust."

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992).

       It has long been recognized, however, "that the existence

of an express contract excludes the awarding of relief regarding




                                    20                          A-5660-14T4
the same subject matter based on quantum meruit."                        Kas Oriental

Rugs v. Ellman, 394 N.J. Super. 278, 286 (App. Div. 2007).                            "An

implied contract cannot exist when there is an existing express

contract about the identical subject.                   The parties are bound by

their agreement, and there is no ground for implying a promise."

E. Paralyzed Veterans Assoc. v. City of Camden, 111 N.J. 389,

410 (1988) (Clifford, J., dissenting) (quoting Moser v. Milner

Hotels, 6 N.J. 278, 280 (1951)).

      Here, the parties signed an agreement in preparation for

the   building   project.     There     was     a       "'meeting   of    the    minds'

between   the    parties    evidenced      by       a    written    offer       and     an

unconditional, written acceptance."                 Morton v. 4 Orchard Land

Trust, 180 N.J. 118, 129-30 (2004) (citing Johnson & Johnson v.

Charmley Drug, 11 N.J. 526, 538-39 (1953)).                     Moreover, during

the charge conference both sides agreed there was a contract.

The judge, however, found there was "no meeting of the minds"

and left the determination of whether there was an enforceable

contract for the jury.        This decision might have been harmless

had the next set of jury instructions not been flawed.

      The jury was instructed that if they found there was a

binding contract they were then to determine whether there was a

breach of that contract, i.e., whether plaintiff performed its




                                      21                                        A-5660-14T4
obligations      under       that    contract.            The   jury   answered     that

question "no."        The judge stated:

                 If you say it didn't perform its
            contract    obligations,    obviously    and
            logically under the law I gave you, someone
            who doesn't perform its contract obligations
            is not entitled to recovery under the
            contract.   That doesn't mean they - - the
            entity may not be entitled to recover under
            the alternate theory of what's the value of
            my services worth.

            [(Emphasis added).]

       This was error.              Although a party may plead and pursue

alternative, and even inconsistent, theories, Kas, supra, 394

N.J.   Super.    at     287,    a    party    is    not     entitled   to    recover   on

inconsistent theories.              Ibid. (emphasis added).            Once the jury

found there was an enforceable contract between the parties,

plaintiff    was      not    entitled    to       recover    damages   under    quantum

meruit.2

       The jury instructions and verdict sheet both misstated the

applicable      legal       principles       of    contract     law.    In    answering

question eleven, the jury demonstrated it did not understand it

was prohibited from awarding damages under quantum meruit as a



2 We note the further confusion raised by the verdict sheet as
question 11 (quantum meruit) read: "If you decide that there was
no binding contract between [the parties].     (Emphasis added).
The jury had already determined there was a binding contract in
question 1 and yet were still instructed to proceed to question
11.



                                             22                                 A-5660-14T4
result of finding the existence of a contract in question one.

The jury cannot be faulted; it was instructed to proceed to a

determination     of     quantum    meruit       despite          having   found      that

plaintiff had breached the contract.

      The failure to provide clear and correct jury charges and

instructions     on     the   verdict     sheet       is    error    and   requires       a

reversal of the verdict in this case.                      "A charge is a road map

to guide the jury, and without an appropriate charge a jury can

take a wrong turn in its deliberations . . . . [T]he court must

explain the controlling legal principles and the questions the

jury is to decide."           Das v. Thani, 171 N.J. 518, 527 (2002)

(alterations in original) (quoting State v. Martin, 119 N.J. 2,

15   (1990)).         Therefore,    "[e]rroneous           instructions        are    poor

candidates for rehabilitation as harmless, and are ordinarily

presumed to be reversible error."                    State v. Afanador, 151 N.J.

41, 54 (1997) (citing State v. Brown, 138 N.J. 481 (1994)).

      Although    defendant      sought        the    dismissal      of    the   quantum

meruit claim in a summary judgment motion filed prior to trial,

and in an in limine motion presented at the commencement of the

trial,   the    judge    declined    to    consider         the     argument     on   both

occasions.      On remand, in the unlikely event the parties do not

enter a stipulation that there was a contract governing this

project, the trial judge should address defendant's motion.                             If




                                          23                                     A-5660-14T4
the   court     determines        there    is    a     viable   dispute      as    to    the

existence of a contract, and leaves that determination to the

jury, the verdict sheet must reflect that if a jury finds a

contract,      it    may    not   proceed       to   a   consideration       of   quantum

meruit.

                                          B.

      The     flawed   verdict      sheet       also     foreclosed    the    jury      from

considering         defendant's      counterclaim.              The    form       included

question      ten,    which   provided         for   a   credit   to    defendant        for

defective work or omissions of plaintiff as found by the jury.

However, the instructions directed the jurors to a consideration

of quantum meruit (number 11) after its finding that plaintiff

had breached the contract.                The jury should have been directed

in the "road map" instructions to consider the counterclaim.

The jury instructions following a new trial must reflect this

correction.

      In sum, the jury must consider whether defendant performed

its duties under the contract, and if not, whether that breach

caused    a   loss     to    plaintiff,        and     the   appropriate      reasonable

compensation. The jury should then consider whether plaintiff

performed its obligations under the contract.                         If not, the jury

must consider whether defendant is entitled to a credit as its

counterclaim.




                                            24                                    A-5660-14T4
                               V.

    We remand the matter for a new trial on all issues that the

parties have not resolved by agreement or stipulation.

    Reversed and remanded for a new trial.     We do not retain

jurisdiction.




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