Geoscience Grp., Inc. v. Waters Constr. Co.

• Decision Date: 01 July 2014
• Docket Number: No. 13–1375.,13–1375.
• Court: North Carolina Court of Appeals
• Parties: GEOSCIENCE GROUP, INC., Plaintiff, v. WATERS CONSTRUCTION COMPANY, INC., Defendant.

759 S.E.2d 696

GEOSCIENCE GROUP, INC., Plaintiff,

v.WATERS CONSTRUCTION COMPANY, INC., Defendant.

No. 13–1375.

Court of Appeals of North Carolina.

July 1, 2014.

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, High Point, by Andrew S. Lasine, for plaintiff-appellee.

Goodman, Carr, Laughrun, Levine & Greene, PLLC, Charlotte, 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 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 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 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 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 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 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....

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...