Apex Custom Homes, L.L.C. v. Ronald O'Kelley

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-01369-GBL-JFA Copies to all parties and the district court/agency. [999983675].. [15-2204]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2204

APEX CUSTOM HOMES, L.L.C.,
Plaintiff - Appellee,
v.
RONALD L. O’KELLEY; LESLEY S. O’KELLEY,
Defendants - Appellants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cv-01369-GBL-JFA)

Submitted:

October 28, 2016

Before GREGORY,
Judges.

Chief

Judge,

Decided:

and

DUNCAN

and

December 9, 2016

DIAZ,

Circuit

Affirmed by unpublished per curiam opinion.

Norman A. Thomas, NORMAN A. THOMAS, PLLC, Richmond, Virginia;
Shannon J. Briglia, Robert J. Dietz, BRIGLIAMCLAUGHLIN PLLC,
Vienna, Virginia, for Appellants.
Peter D. Greenspun, Mikhail
N. Lopez, GREENSPUN SHAPIRO P.C., Fairfax, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ronald and Lesley O’Kelley appeal the jury verdict against
them and in favor of Apex Custom Homes, LLC, on each party’s
claim for breach of contract.

Finding no reversible error, we

affirm.
The O’Kelleys first challenge the district court’s denial
of their Fed. R. Civ. P. 50(a) motion for judgment as a matter
of

law.

evidence

The
at

O’Kelleys

O’Kelleys

trial

to

committed

construction

support

the

contract.

argue

the

first
They

that

there
jury’s

material

also

O’Kelleys

did

not

renew

their

breach

contend

motion

insufficient

verdict

produce sufficient evidence of lost profits.
the

was

that

of
Apex

that

the

a

home

did

not

However, because
for

judgment

as

a

matter of law after the jury’s verdict in accordance with Fed.
R. Civ. P. 50(b) or move for a new trial under Fed. R. Civ. P.
59, we decline to consider their claims relating to sufficiency
of the evidence.

Unitherm Food Sys. v. Swift-Eckrich, Inc., 546

U.S. 394, 400-05 (2006); Belk, Inc. v. Meyer Corp., U.S., 679
F.3d 146, 154-56 (4th Cir. 2012).
Next, the O’Kelleys contest two evidentiary rulings, which
we review for abuse of discretion and will overturn only if we
conclude

that

irrational.

the

district

court’s

ruling

was

arbitrary

and

Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 349

(4th Cir. 2014).

The O’Kelleys first challenge the district
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court’s Fed. R. Evid. 403 ruling excluding evidence of a prior
regulatory proceeding involving a dispute between Apex and an
unrelated party.

Given the high level of deference we accord

Rule 403 decisions, id. at 349-50, we conclude that the district
court did not err in finding that the probative value of this
evidence was substantially outweighed by the danger of unfair
prejudice to Apex.

The O’Kelleys also claim that the district

court erred in limiting an expert witness’ testimony concerning
their mitigation of damages.

Because the jury’s verdict against

the O’Kelleys on their contract counterclaim rendered the issue
of mitigation irrelevant, we conclude that any possible error
regarding the expert’s testimony was harmless and, therefore,
not reversible.

United States ex rel. Drakeford v. Tuomey, 792

F.3d 364, 375 (4th Cir. 2015); Fed. R. Civ. P. 61.
Finally,
erred

by

the

rejecting

O’Kelleys
their

contend

proposed

that
jury

the

district

instruction

court

regarding

waiver, a claim also subject to review for abuse of discretion.
Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th
Cir. 2016).

Having reviewed the record, we conclude that the

district court was within its discretion to select the waiver
instructions it gave.

Moreover, any error was harmless because

the jury heard sufficient evidence to reach its verdict without
considering the issue of waiver.
F.3d 553, 560 (4th Cir. 2005).
3

See Willingham v. Crooke, 412

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Accordingly, we affirm the judgment of the district court.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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