Edward Primoff; Suzanne Primoff v. Kennard Warfield, Jr.; Mary Warfield

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1988
EDWARD PRIMOFF; SUZANNE PRIMOFF,
Plaintiffs - Appellees,
v.
KENNARD WARFIELD, JR.; MARY WARFIELD,
Defendants - Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:07-cv-02844-WMN)
Argued: September 19, 2012 Decided: October 11, 2012
Before TRAXLER, Chief Judge, and DUNCAN and DAVIS, Circuit
Judges.
Reversed, vacated and remanded by unpublished per curiam
opinion. Chief Judge Traxler wrote an opinion concurring in the
judgment.
ARGUED: Steven Michael Oster, LAW OFFICE OF STEVEN M. OSTER,
Washington, D.C., for Appellants. Richard F. Boddie, SLOCUM &
BODDIE, PC, Springfield, Virginia, for Appellees. ON BRIEF:
Ronald L. Spahn, SPAHN AND BROIDA, Columbia, Maryland, for
Appellants.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This case arises out of a real estate deal involving a
194-acre Maryland farm owned by Appellees Edward and Suzanne
Primoff. A jury found Appellants Kennard and Mary Warfield
liable to the Primoffs for breach of contract and breach of
warranty, and awarded $524,000 in damages. The district court
denied the Warfields’ motion for judgment as a matter of law,
remittitur, or a new trial on damages. For the following
reasons, we reverse the denial of judgment as a matter of law,
vacate the damages award, and remand with instructions to enter
a $24,000 judgment in favor the Primoffs.
I.
The evidence at trial established the following facts.
Around 2001, the Primoffs began the process of subdividing and
developing a vacant portion of the farm. J.A. 72. In November
2002, the Carroll County Planning and Zoning Commission (“Zoning
Commission”) approved a preliminary plan for “Freedom Hills
Farm,” a 30-lot development on about 66 acres. See id. at 81–82,
401, 411. The plan included several easements, such as a “water
resource protection easement,” that would remain in effect after
the subdivision. Id. at 413. The plan also called for the
Primoffs to retain about 128 acres of “resulting lands” that
contained their home and other buildings. Id. at 82, 401, 411.

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In December 2002, after the Zoning Commission approved
the subdivision, the Primoffs entered into an agreement with
Kennard Warfield to develop the land. See J.A. 192–222; 401–06.
The Primoffs agreed to deed the entire parcel--the land intended
for the subdivision, and the resulting lands--to Kennard
Warfield for five years in exchange for $3.5 million and
equitable title and exclusive possession of the resulting lands.
Id. at 401–02. The contract allowed Warfield to make only
“minor changes” to the property before reconveying it to the
Primoffs. Id. at 402.
In January 2003, the Primoffs conveyed the land to
Kennard Warfield, who later conveyed the land to himself and his
wife, Mary Warfield. J.A. 97; 323–24. In October 2004, the
couple submitted a final record plat for Freedom Hill Farms and
granted Carroll County a “flood plain easement” in the resulting
lands.1 Id. at 461, 480. This easement ran along a pre-existing
flood plain area--designated by the Federal Emergency Management
Agency (“FEMA”)--but imposed far stricter use restrictions than
previously existed. See id. at 109-12. FEMA regulations
prohibited building on the flood plain; the flood plain easement
also barred horseback riding, maintaining trails, and
1 Two other easements, for forestation and water resources,
were also established and contested by the Primoffs, but are not
material to this appeal. See Appellant’s Br. 3 n.1.

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picnicking--uses that the Primoffs had long enjoyed. Id. at
109.
The Primoffs’ attorney learned of the flood plain
easement days later, when he reviewed the deed to convey the
land from the Warfields to the Primoffs. J.A. 127–29. Without
indicating that he knew about the easement, the Primoffs’
attorney asked the Warfields to record a special warranty deed,
guaranteeing no encumbrances on the parcel. Id. at 251-54. The
Warfields complied in December 2004. Id. at 258, 471–73.
Thereafter, Edward Primoff threatened legal action if the flood
plain easement remained in effect. Id. at 103-08.
In January 2005, Edward Primoff took steps to auction
the resulting lands and personal property on the farm. J.A.
116–17. He did not tell the auctioneer about the flood plain
easement because he feared that prospective bidders would not
bid if they knew about the encumbrance. Id. at 121, 157.
Instead, he planned to reject all bids, have the easement
removed, then contact bidders to make a deal to sell the
property free of the encumbrance. Id. at 122. He believed that
accepting a bid with the easement would be “buying a lawsuit.”
Id.
About 200 people attended the auction, which drew a
high bid of $5.2 million. J.A. 121. Edward Primoff declined
the bid without talking to the bidder or investigating whether

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the bidder knew of the flood plain easement. Id. at 121–22,
143–44.
In November 2005, the Primoffs sued Carroll County in
state court to remove the easements that the Warfields had
placed on the resulting lands. J.A. 125–26. The same month, an
appraiser valued the resulting lands at $4 million. Id. at 287,
592. It is unclear whether the appraiser knew of the easements
or considered such encumbrances in making his valuation.2
In June 2006, as a result of the Primoffs’ lawsuit
against Carroll County, the flood plain easement was nullified.
J.A. 126. The litigation cost the Primoffs $24,000.3
In June 2008, a second appraiser valued the resulting
lands at $3 million. J.A. 272, 274. Although the appraiser had
not valued the land in 2007, he estimated that the value had
likely dropped because of a “leveling off overall of property
values” in 2007. Id. at 273. The 2008 valuation did not take
into account the flood plain easement. See id. at 278–80.
In October 2007, the Primoffs sued the Warfields in
2 The appraiser testified that he had used the “narrative
appraisal,” a calculation of “land value plus building value
minus depreciation,” and had considered that a “very minimal
amount” of the property was in a flood zone. See J.A. 285, 288-
90. He did not, however, mention any flood plain easement.
3 The parties stipulated to this fact, and the Warfields do
not challenge this portion of the jury’s award. See Appellant’s
Br. 4 n.2.

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the district court, alleging breach of contract, breach of
warranty, and other claims.4 The Primoffs alleged that the
Warfields’ breach of contract, i.e., adding encumbrances during
development, “substantially diminished the value of the
Primoffs’ property,” and “[a]s a further result . . . the
Primoffs were unable to sell their property and were required to
file suit in the Circuit Court for Carroll County to protect
their real property interests.” J.A. 22. The Primoffs also
asserted that the Warfields’ violation of the special warranty
caused “damages in the diminishment of value of their property
and their subsequent inability to sell the property.” Id. at 25.
The Primoffs sought compensatory damages of $4 million for each
of the contract and special warranty counts, and additional
damages for the costs of removing the easements related to the
special warranty count. Id. at 22, 25.
The Warfields raised several affirmative defenses,
including, inter alia, that the Primoffs “owed a duty to
mitigate their damages and/or losses,” and had failed to do so.5
4 J.A. 21-30. The district court had diversity jurisdiction
because the Warfields are citizens of Maryland, and the Primoffs
had moved and become citizens of Florida before filing the
lawsuit. See J.A. 69; Primoff v. Warfield, No. 9, 1:07-cv-
02844, at 5–7 (D. Md. Aug. 30, 2011). Although they had
relocated to Florida, the Primoffs still owned (and remain the
owners of) the resulting lands. J.A. 658.
5 J.A. 38. The Warfields also asserted several
(Continued)

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At the close of the Primoffs’ case at trial, the
Warfields moved for judgment as a matter of law under Fed. R.
Civ. P. 50(a). S.J.A. 2, 6. First, the Warfields argued that
the Primoffs had provided “[z]ero testimony” that the flood
plain easement had caused a diminution in value, and “no
evidence” that “the property was unsellable for a period of time
because the flood plain easement was there.” Id. at 7, 9-10.
The district court rejected this argument, reasoning that the
issue was a jury question, and any concerns about the standard
of proof could be addressed in jury instructions. Id. at 10-11.
Second, the Warfields argued that the Primoffs had failed to
mitigate their damages by inquiring further into the $5.2
million auction bid for their property. Id. at 8. The
Warfields asked the judge to instruct the jury to consider
damages only for lost profits that exceeded $5.2 million. Id.
at 9. The district court rejected this request, noting that
“the mitigation of damages is a matter that the jury can
consider, assuming that there is some evidence to support it, to
lessen the amount of damages that the plaintiff might otherwise
receive . . . . But, in terms of a motion -- it seems to me that
it would never come to something that would be decided by a
motion.” Id.
counterclaims. Id. at 39-55.

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The district court instructed the jury as follows:
[T]he essential elements of proof that are required to
support an action for breach of contract are; first,
the existence of a contract between the parties;
secondly, performance by the plaintiff with respect to
whichever claim you are looking at, and that
performance must have occurred, unless it was somehow
excused; third, an unjustified or an unexcused failure
to perform on behalf of the defendant; and, fourth,
some damages were directly caused by the breach.
* * *
[I]f you find that the Primoffs have proven by a
preponderance of the evidence that the Warfields did
encumber the resulting land, property, and that the
Primoffs incurred damages for loss as a result, then
you must find that the Primoffs have met their burden
as to that claim and award such damages as have been
proven to your satisfaction.
* * *
[A] prevailing plaintiff . . . is entitled to be
placed in the same position as if their contract had
not been breached. The plaintiff may recover those
damages which naturally arise from the breaking of a
contract.
* * *
There’s a duty on the part of the party claiming
damages for a breach of contract to use reasonable
efforts to reduce or minimize the damages. But there’s
no requirement that a party in doing that accept the
risk of additional loss in an effort to reduce the
damages. In this case, the burden would be on the
Warfields, as defendants, to prove that any damages or
loss to the Primoffs attributable to a breach of
contract by the Warfields should have been minimized
by some reasonable effort on the part of the Primoffs.
J.A. 396-99.
The jury found the Warfields liable for breach of
contract and awarded the Primoffs $250,000 on that claim. J.A.

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400C. The jury also found for the Primoffs on the breach of
warranty claim, and awarded $274,000 in damages: “250,000 +
24,000.” Id. at 400C, 655.
Following the verdict, the Warfields renewed their
motion for judgment as a matter of law, and moved alternatively
for remittitur or a new trial under Fed. R. Civ. P. 59. See
J.A. 665. The Warfields made three arguments. First, they
argued that the Primoffs had failed to present evidence that the
easement had caused a compensable injury. Id. at 661. The
district court rejected this argument, reasoning that, “[w]hile
there was little or no testimony that the easement was the
direct cause of the loss of value, a jury could have made this
reasonable inference.” Id. at 662.
Second, the Warfields argued that the jury improperly
awarded the Primoffs duplicative damages for the same injury by
awarding $250,000 for the breach of contract and $274,000 for
the breach of warranty. See J.A. 660. The Warfields argued
that, as a matter of law, the award for each claim should have
been identical. Id. The district court upheld the damages
awards, however, citing the presumption that the jury had heeded
the instruction against duplicate damages, and the presumption
in favor of supporting jury verdicts, even when harmonizing a
jury’s special verdict answers requires a “strained”
interpretation. Id. at 660, 663. The district court noted that

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it is plausible that the jury intended to award [the
Primoffs] a total of $500,000 in collateral lost
profits, plus an additional $24,000 to compensate
[them] for the costs incurred to remove the easement.
In this way, the jury may have determined that the
total harm caused by the [Warfields’] liability was
$524,000, after which the jury merely apportioned the
damages among the two claims.
Id. at 663.
Third, the Warfields argued that the Primoffs had
failed to mitigate their damages when they failed to “more
aggressively pursue” the auction sale of the resulting lands.
See J.A. 664. The district court rejected this argument,
finding that the jury had drawn a reasonable inference that the
Primoffs had not failed to mitigate because (1) Edward Primoff
had testified that a sale could have resulted in a lawsuit, and
(2) the Primoffs were not required to risk additional loss in
order to mitigate harm. Id.
The district court left the verdict undisturbed and
entered judgment against the Warfields, who filed a timely
appeal.
II.
The Warfields do not contest liability; they challenge
only $500,000 of the $524,000 damages award. They argue that
the district court erred in denying their motion for judgment as
a matter of law, remittitur, or a new trial because (1) the

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Primoffs failed to prove compensable injury beyond the $24,000
costs they incurred to nullify the flood plain easement; (2) the
Primoffs failed to mitigate damages; and (3) the awards for
breach of contract and breach of warranty were duplicative.
For the reasons that follow, we agree that the
Primoffs failed to prove compensable injury beyond the $24,000
in litigation costs, and, thus, the district court erred in
denying judgment as a matter of law.6
III.
As a preliminary matter, we reject the Primoffs’
contention that the Warfields are procedurally barred from
challenging the sufficiency of the damages evidence. See
Appellees’ Br. 16. The Primoffs argue that the Warfields
challenged only mitigation and diminution at trial and, thus,
were precluded from raising “the issues of foreseeability and
‘lost profits’” in their post-trial motion or on appeal. Id.
But only a complete failure at trial to challenge the
sufficiency of the evidence precludes a party from raising that
issue in a post-trial motion or on appeal. See Price v. City of
Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996). At trial, the
6 Because we find the evidence insufficient to sustain an
award above the stipulated amount of damages, we need not and do
address the Warfields’ other grounds for relief.

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Warfields undoubtedly challenged sufficiency when they argued
that the Primoffs had presented no evidence that the flood plain
easement had caused a decrease in value or made the property
unsellable. S.J.A. 7, 9-10. Accordingly, we proceed to the
merits of the Warfields’ appeal.7
IV.
A.
“We review de novo the legal conclusions upon which
the district court's denial of judgment as a matter of law were
premised.” Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 164
(4th Cir. 2012). “If, viewing the facts in the light most
favorable to the non-moving party, there is sufficient evidence
for a reasonable jury to have found in [the non-moving party's]
favor, we are constrained to affirm the jury verdict.” Lack v.
Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th Cir. 2001).
B.
The Warfields argue that the Primoffs failed to
7 We also reject the Primoffs’ contention that, by failing
to object to jury instructions, the Warfields waived their
challenge to the sufficiency of the evidence. See Appellees’
Br. 13. The Warfields’ “failure to specifically object to the
instructions” did not “waive the position [they] had already
unsuccessfully presented to the district court” in their motion
for judgment as a matter of law. See College Loan Corp. v. SLM
Corp., 396 F.3d 588, 599 n.10 (4th Cir. 2005).

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provide any evidence of lost profits damages.
Under Maryland law, which governs this diversity
dispute, a plaintiff who proves breach of contract may recover
(1) “the losses proximately caused by the breach,” (2) “that
were reasonably foreseeable,” and (3) “that have been proven
with reasonable certainty.” Hoang v. Hewitt Ave. Assocs., LLC,
936 A.2d 915, 934 (Md. Ct. Spec. App. 2007). In determining
whether the damages were reasonably foreseeable, Maryland
follows the two-part principle established in the venerable case
of Hadley v. Baxendale, 156 Eng. Rep. 145 (1854). Id.
The first aspect of that principle holds that . . .
the plaintiff in a breach of contract action may
recover general damages of the sort that are presumed
to have been in the contemplation of the parties when
the contract was made.
Under the second aspect of the principle . . . , a
plaintiff . . . also is entitled to recover damages
“such as may fairly and reasonably be supposed to have
been in the contemplation of both parties at the time
they made the contract, as the probable result of the
breach of it.” Such special or consequential damages
are not presumed to have been in the contemplation of
the parties when they made their contract but may be
shown from evidence of the particular circumstances to
have been in their contemplation.
Id. (emphasis in original) (internal citation omitted).
Reasonable certainty of the damages refers to the
likelihood of the damages being incurred as a
consequence of the breach, and their probable amount.
Losses that are speculative, hypothetical, remote, or
contingent either in eventuality or amount will not

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qualify as “reasonably certain” and therefore
recoverable as contract damages.8
Lost profits and diminution of value are two methods
of calculating damages for breach of contract.
Lost profit damages fall into two categories. “Direct
profits” are those “that would have resulted
immediately from the performance of the contract
broken.” “Collateral profits” are those that would
have resulted not from the contract that was broken
but from the loss of other “‘contracts collateral to
the one broken, contracts to which the defendant[s]
[were] not [themselves] . . . part[ies].’”
Hoang, 936 A.2d at 935–36 (internal citations omitted).
Collateral lost profits include the profits a buyer anticipated
for reselling the land to another, had the breach not prevented
the resale. Id. at 936. A plaintiff seeking collateral lost
profits damages must strictly comply with the proximate
causation, foreseeability, and certainty requirements enumerated
above. Hoang, 936 A.2d at 943.
To demonstrate diminution of value damages, a
plaintiff must show “the difference between two valuation
figures at one point in time.” Hall v. Lovell Regency Homes
Ltd. P’ship, 8 A.2d 344, 354 (Md. Ct. Spec. App. 1998). A
plaintiff may do so by showing his “out of pocket” losses in a
specific transaction-- for example, the difference between the
8 Hoang, 936 A.2d at 935. Although Hoang concerned damages
for the failure to convey property according to a valid
contract, nothing in its reasoning suggests that its principles
apply only to that type of contract breach.

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amount the plaintiff received for reselling the land, and the
amount the plaintiff would have received absent the defendant’s
breach. See id. at 352. Alternatively, under the “benefit of
the bargain” approach, a plaintiff may recover the difference
between the value of the land after the breach, and the value of
the land had there been no breach. See id. at 354.
The Primoffs sought lost profits and diminution of
value damages. The evidence was insufficient, however, to
permit a reasonable jury to find either.9
As to lost profits, the Primoffs presented no evidence
that they told the Warfields that they intended to sell the
resulting lands; thus, they failed to show that collateral lost
profits were reasonably foreseeable. See Hoang, 936 A.2d at
9 The Warfields challenge only the evidence as it relates to
lost profits. See Appellants’ Br. 12–14. Although the district
court acknowledged that the Primoffs had argued for both types
of damages at trial, see J.A. 658–59, it upheld the jury’s award
as collateral lost profits, id. at 663. On appeal, the Primoffs
alternatively characterize the damages award as lost profits and
diminution of value damages. Compare Appellees’ Br. 12 (“As a
direct result of the Warfields’ conduct, the Primoffs were not
able to sell their property.”) and 25 (“it was reasonable for
the jury to infer that [Kennard] Warfield knew that placing the
impermissible easements on the Primoffs’ property would cause
the Primoffs harm and they would have difficulty selling the
Resulting Lands.”), with id. at 20 (“diminution in value [is] a
consequential damage”). See also id. at 13 (“it was reasonably
foreseeable to the Warfields that any breach of the Contract of
Sale or special warranty in the Confirmatory Deed would result
in damages and negatively impact not only the value of the
property, but also the Primoffs’ ability to sell it.”).

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934. And, this is true even in the face of any background
notion that land, being inherently of limited availability,
might someday be offered for sale.
Even if the parties had contemplated such a sale,
however, the evidence failed to establish that the flood plain
easement proximately caused any lost profits, or that the losses
were established with reasonable certainty. See id. The
Primoffs presented no evidence that a prospective buyer refused
to deal because of the easement. Nor did they provide evidence
that might have established the reasonable certainty of lost
profits, such as the real estate market when they planned to
sell, the likelihood that they would have found a buyer, a
reasonably expected sale price, or the Primoffs’ track record
and experience (or that of a similarly situated potential
seller) in selling such property. See Hoang, 936 A.2d at 943–44
(finding sufficient evidence of lost profits when the plaintiff
presented expert testimony about the costs it likely would have
incurred in developing the land, the probability that the houses
in the development would have been sold, the prices the houses
would have fetched, and the profits the plaintiff would have
received). The evidence thus failed to support the jury’s award
on the basis of lost profits.
The evidence also failed to establish that the
Warfields’ breach caused a diminution in the value of the land.

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Although the Primoffs presented two valuations, so far as the
trial evidence showed, the appraisals were made without
knowledge of the easements. See J.A. 278–80, 285, 288-90.
Moreover, the appraisals were more than two years apart,
providing no basis for comparing the value of the land with the
easement, and the value of the land without the easement, at a
single point in time. See id.; Hall, 8 A.2d at 354. Thus, the
jury could only speculate that the easement had caused a drop in
value.
V.
For the reasons set forth, we conclude as a matter of
law that the evidence was insufficient to support the jury’s
$524,000 damages award. Accordingly, we reverse the denial of
judgment as a matter of law, vacate the damages award, and
remand with instructions to enter a $24,000 judgment in favor of
the Primoffs.
REVERSED, VACATED, AND REMANDED

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TRAXLER, Chief Judge, concurring in the result:
I concur in the result reached in this case because
there was no evidence to show what the value of the resulting
lands was without the flood plain easement. There was testimony
about the value of the land shortly after the auction, but no
testimony about whether, or how, the flood plain easement
factored into the calculation. For this reason the jury, in my
judgment, was left to speculation and conjecture as to the
profits lost, which cannot support a verdict. 25 C.J.S. Damages
§ 36.

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