Apex Custom Homes, L.l.c. v. Ronald L. O’kelley; Lesley S. O’kelley

UNPUBLISHED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 Decided: December 9, 2016
Before GREGORY, Chief Judge, and DUNCAN and DIAZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

-- 1 of 4 --

2
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. The O’Kelleys argue that there was insufficient
evidence at trial to support the jury’s verdict that the
O’Kelleys committed the first material breach of a home
construction contract. They also contend that Apex did not
produce sufficient evidence of lost profits. However, because
the O’Kelleys did not renew their motion 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 the district court’s ruling was arbitrary and
irrational. Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 349
(4th Cir. 2014). The O’Kelleys first challenge the district

-- 2 of 4 --

3
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, the O’Kelleys contend that the district court
erred by rejecting their proposed jury instruction 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. See Willingham v. Crooke, 412
F.3d 553, 560 (4th Cir. 2005).

-- 3 of 4 --

4
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

-- 4 of 4 --