                               UNPUBLISHED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Reversed, vacated and remanded by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.
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.

                                          2
               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.


                                            3
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

                                               4
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.



                                         5
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)
                                               6
            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.


                                               7
     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.

                                        8
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

                                             9
      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


                                            10
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.



                                             11
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).


                                       12
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




                                        13
     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.


                                         14
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.”).




                                        15
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.

                                                16
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




                                              17
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.




                                     18
