An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-722

NORTH CAROLINA COURT OF APPEALS

Filed: 4 May 2004

DILLINGHAM CONSTRUCTION COMPANY,
INC.,
            Plaintiff,

v .                         Buncombe County
                            No. 00 CVS 6055
JAMES P. GARRETT, RANDY W.
MUNDY, and wife, ROBERTA L.
MUNDY,
            Defendants.

    Appeal by plaintiff from judgment entered 13 March 2002 by Judge Zoro J. Guice, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 2 March 2004.

    Michael E. Casterline, for plaintiff-appellant.

    McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for defendants-appellees.

    TYSON, Judge.

    Dillingham Construction Company, Inc. (“plaintiff”) appeals from a judgment entered after a jury awarded $1.00 in damages for breach of contract. We hold that there was no error at trial and affirm the judgment.

I. Background
    Plaintiff is an earthmoving contractor that performs grading, erosion control, and storm drainage work. James P. Garrett (“Garrett”), Randy W. Mundy (“Mundy”), and wife Roberta Mundy (collectively, “defendants”) owned an unimproved 2.25 acre lot. In February 2000, the parties began negotiating an arrangement wherebyplaintiff would remove dirt from defendants' property and improve the lot. Plaintiff contends the parties agreed on a price of $97,000.00 for this work. Defendants claim the parties had an oral contract allowing plaintiff to remove dirt at no cost from defendants' property, which plaintiff would use as fill on another building project. Plaintiff reserved the right to negotiate a different agreement in the future.
    In April 2000, after plaintiff had begun working on defendants' property, Mundy wrote a letter to David Dillingham (“Dillingham”) offering to pay $75,000.00 for the work being done to improve the property. Mundy and Garrett testified that this offer was for additional improvements to the property, and the parties never reached an agreement beyond allowing Dillingham to remove dirt at no charge in exchange for grading the property according to the terms of their preexisting agreement.
    The jury returned a verdict finding a contract existed among the parties and that defendants breached the contract. The jury determined plaintiff's damages to be $1.00. Plaintiff appeals.
II. Issue
    The sole issue presented is whether the trial court erred in instructing and presenting the issues to the jury.
III. Jury Instructions
A. Separate Contracts
    Plaintiff contends the trial court failed to identify in the issues and to instruct the jury that the contracts alleged by each party were distinct and contained different terms, and each partyhad the burden of proving their contentions with respect to their contract claims. We disagree.
    “It is an elementary principle of law that the trial judge must submit to the jury such issues as are necessary to settle the material controversies raised in the pleadings and supported by the evidence.” Uniform Service v. Bynum International, Inc., 304 N.C. 174, 176, 282 S.E.2d 426, 428 (1981) (citations omitted). “The number, form and phraseology of the issues lie within the sound discretion of the trial court, and the issues will not be held for error if they are sufficiently comprehensive to resolve all factual controversies and to enable the court to render judgment fully determining the cause.” Chalmers v. Womack, 269 N.C. 433, 435-436, 152 S.E.2d 505, 507 (1967). Further, N.C.R. Civ. P. 49(b) provides that “[i]ssues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues.” N.C. Gen. Stat. § 1A-1, Rule 49(b) (2003).
        This Court is required to consider and review jury instructions in their entirety. Under the applicable standard of review, the appealing party must show not only that error occurred in the jury instructions but also that such error was likely, in light of the entire charge, to mislead the jury.

Estate of Hendrickson v. Genesis Health Venture, Inc., 151 N.C. App. 139, 150-151, 565 S.E.2d 254, 262, disc. rev. denied, 356 N.C. 299, 570 S.E.2d 503 (2002) (citation omitted).
    Here, the parties admitted to the formation of a contractual relationship. They differ, however, in their contentions regarding the contract's terms. Plaintiff argues the trial court wasrequired to clarify the issues to the jury by explaining that each of the parties were contending a distinct contract with distinct terms. The issues presented by the trial court and answered by the jury regarding plaintiff's claim for breach of contract were as follows:
    1.    Was there a contract between the parties?
        ANSWER:    Yes
    2.    Did the defendants breach the contract between the parties?
        ANSWER:    Yes
    3.    Did the plaintiff breach the contract between the parties?
        ANSWER:    No
    4.    What amount is the plaintiff entitled to recover from the defendants for breach of contract?
        ANSWER:    $1.00
The jury found that a contract existed among the parties, that defendants breached the contract, and that plaintiff did not breach the agreement. Such findings indicate the jury accepted plaintiff's version of the contract's terms.
B. Burden of Proof
    Plaintiff also argues the trial court failed to properly instruct the jury regarding defendants' burden of proof. The jury found that plaintiff did not breach the contract. Our Supreme Court has held, “plaintiff is in no position to complain of error, if any, therein, since the first issue was answered in his favor.” Watson v. Stallings, 270 N.C. 187, 192, 154 S.E.2d 308, 311 (1967) (citation omitted). The instructions given at bar appear to be “in accord with our decisions.” Id. Even if the trial court had instructed the jury on defendants' higher burden of proof, plaintiff prevailed on the issue of whether it breached the contract and is in “no position to complain of error.” Id.
    The jury awarded plaintiff nominal damages of $1.00. See Collins v. Talley, 146 N.C. App. 600, 603, 553 S.E.2d 101, 102 (2001) (“We will not engage in speculation as to the legal or factual basis for the jury award of damages . . . .”) (citation omitted). This award is supported by competent evidence. Plaintiff failed to show either an abuse of discretion or how it was prejudiced when the jury found a contract existed between the parties and that plaintiff did not breach the contract. Plaintiff's assignment of error is overruled.
IV. Conclusion
    Plaintiff prevailed at trial. It has failed to show either an abuse of discretion or a prejudicial effect in the trial court's presentation of the issues to the jury. The “material controversies” regarding plaintiff's allegations of breach of contract were properly submitted to the jury. Uniform Service, 304 N.C. at 176, 282 S.E.2d at 428. We hold the trial court made no error at trial and affirm the judgment entered upon the jury's verdict.
    No Error.
    Judges WYNN and HUNTER concur.    Report per Rule 30(e).

*** Converted from WordPerfect ***