                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1307


LAKE RIDGE APARTMENTS, LLC,

                 Plaintiff - Appellee,

           v.

BIR LAKERIDGE, LLC,

                 Defendant -   Appellant,

           and

BERKSHIRE INCOME REALTY-OP, L.P.,

                 Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Raymond A. Jackson,
District Judge. (4:07-cv-00008-RAJ-JEB)


Argued:   May 14, 2009                        Decided:   July 1, 2009


Before SHEDD and DUNCAN, Circuit Judges, and Frederick P. STAMP,
Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: James Bradford McCullough, LERCH, EARLY & BREWER,
CHARTERED, Bethesda, Maryland, for Appellant.     Kristan Boyd
Burch, KAUFMAN & CANOLES, PC, Norfolk, Virginia, for Appellee.
ON BRIEF: Genevieve J. Quarfoot, LERCH, EARLY & BREWER,
CHARTERED, Bethesda, Maryland; Jonathan L. Hauser, TROUTMAN
SANDERS LLP, Virginia Beach, Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Lake Ridge Apartments, LLC (“Lake Ridge”) sued Berkshire

Income     Realty-OP,     L.P.      and   BIR   Lakeridge,    LLC   (collectively,

“BIR”) for breach of a contract for the purchase and development

of a parcel of land.               The district court granted Lake Ridge’s

summary judgment motion.              After holding a bench trial on the

issue    of    damages,      the    district    court   entered     a   judgment    of

$774,292 in favor of Lake Ridge.                 BIR now appeals the district

court’s grant of summary judgment and the award of damages.                        For

the reasons that follow, we affirm.



                                           I.

     This case arises out of a contract between BIR and Lake

Ridge for the sale of property, as well as an amendment to that

contract known as the “Sixth Amendment.”                     Under the contract,

BIR would purchase an apartment complex from Lake Ridge, and

Lake Ridge would build garages on the property for BIR.                         Under

the Sixth Amendment, BIR agreed to purchase an additional parcel

of land (“Parcel A-1”) for $234,000.                Lake Ridge would “use its

best efforts to construct on Parcel A-1 an apartment building”

of eighteen units.        J.A. 24.

     BIR agreed to pay $144,000 of the total cost for Parcel A-1

at   the      closing   of    the    parties’     general    purchase     and    sale
                                            3
agreement on July 1, 2005.                  The Sixth Amendment set out several

factual     scenarios       governing          BIR’s    obligation         to    pay      the

remaining       $90,000    owed        on   the   parcel.          Each    scenario       was

conditioned      upon     the    further      action    of    at   least       one   of   the

parties.    First, BIR could decide within 30 days of the parties’

closing -- that is, by August 1, 2005 -- to develop Parcel A-1

itself.     If it gave written notice to Lake Ridge before August

1, 2005, BIR could pay Lake Ridge the remaining $90,000 and Lake

Ridge would “have no further rights or obligations with respect

to Parcel A-1.”         J.A. 25.        Second, if BIR did not opt to develop

Parcel    A-1    itself,        Lake    Ridge     had   one    year       to   obtain     the

necessary building permits and approvals for the new eighteen-

unit building to be constructed on the parcel.                             If Lake Ridge

delivered the necessary permits before June 30, 2006, BIR would

pay the remaining $90,000. 1                 Third, if BIR did not develop the

property itself and Lake Ridge could not deliver the necessary

permits and approvals by June 30, 2006, BIR had two options:

BIR could choose to require Lake Ridge to buy back Parcel A-1

for the original down-payment price of $144,000; or, BIR could

choose to pay Lake Ridge $90,000 for Parcel A-1.                          If BIR did not


     1
      If Lake Ridge subsequently delivered the finished building
and a permanent certificate of occupancy for each of the
eighteen   units,  Lake   Ridge   would receive   an  additional
$1,926,000 under the Sixth Amendment.
                                4
provide notice of its decision between these two options by July

31, 2006, under the Sixth Amendment BIR would be “deemed to have

elected” to pay Lake Ridge $90,000 for Parcel A-1.                       Id.

      Lake Ridge contacted BIR several times in July and August

2005 to ascertain BIR’s plans for Parcel A-1, and the parties

exchanged e-mails on possibly altering the architectural plans

for the new building to be constructed on it.                            BIR did not

exercise its option to develop Parcel A-1 itself by the August

1, 2005 deadline.         To the contrary, on October 13, 2005, BIR

informed Lake Ridge that it “would like to proceed with the

process of building the additional 18 units [on Parcel A-1].”

J.A. 174.

      In   December,     BIR   decided       that    it    would   prefer       for      Lake

Ridge to accept the $90,000 balance on Parcel A-1 but cancel

construction of both the new apartment building and the garages.

BIR   informed    Lake    Ridge       on    December      23,   2005     that       it    was

“considering     holding       off”        the   Parcel     A-1    development            and

“considering     delaying      construction         of    the   garages”       --        both

“until some undetermined point in the future.”                     J.A. 211.          As to

the Parcel A-1 building, BIR asked, “[W]e will owe you a payout

of +/- 90K if we elect not to build, correct?”                     Id.

      Lake Ridge responded on January 5, 2006, confirming that

$90,000 was due as to Parcel A-1, but stating that it would also
                                             5
request expenses and lost profits as to the garages.                                  Lake Ridge

asked    BIR     to    “let     us    know     as      soon        as   possible      which     way

Berkshire will be proceeding on these two items.”                                J.A. 211.       On

the same day, BIR informed Lake Ridge that it had decided to

“hold[] off on proceeding” with both the Parcel A-1 project and

the     garage      project      “until       some          undetermined        point    in     the

future.”       Id.      BIR promised to “initiate payment for the 90K”

owed on Parcel A-1 and requested an itemization of Lake Ridge’s

costs for the garages.               Id.

      BIR began drafting a side letter agreement to memorialize

its new intentions as to Parcel A-1 and the garages.                                    On March

1, 2006, BIR sent Lake Ridge a proposed agreement under which

BIR would pay Lake Ridge $90,000 and Lake Ridge “shall have no

further rights or obligations with respect to Parcel A-1.”                                     J.A.

50.      Three        weeks     later,      Lake       Ridge       declined      to     sign    the

agreement.          It also indicated that it had been mistaken about

the   $90,000        payment     owed       for       the    Parcel      A-1    project.         In

addition    to      the    $90,000         balance,         Lake    Ridge      stated    that    it

intended       to     seek      out-of-pocket           expenses         and     lost     profits

approximating $1.5 million because BIR had “committed to” the

construction project.             J.A. 225.            BIR was unwilling to pay this

amount,        and        the        parties’          communications             subsequently

deteriorated.
                                                  6
     By    the    June    30,   2006    deadline,       Lake    Ridge    had     neither

applied     for    nor    delivered      the    specified        building        permits.

Consequently, BIR attempted to exercise its option of paying

Lake Ridge $90,000 for Parcel A-1.                    Lake Ridge returned the

check and sued for breach of contract.

     The district court granted summary judgment in favor of

Lake Ridge, finding that BIR had anticipatorily breached the

contract    when     it   informed      Lake    Ridge      in   December      2005    and

January 2006 that it wished to delay both construction projects

for an undetermined period of time.                  The district court further

found that Lake Ridge had been willing and able to perform its

obligations       under   the   contract       and   was    entitled     to      damages.

After holding a hearing, the district court awarded Lake Ridge

$774,292 based on testimony from Lake Ridge corporate officers

as to the construction costs associated with the projects and

estimated lost profits.

     BIR    now     appeals     the    district      court’s     grant      of    summary

judgment,     certain     evidentiary         decisions,        and   the     grant    of

damages.    We address these claims in turn.



                                         II.

     We review a district court’s grant of summary judgment de

novo.     Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir.
                                          7
2007) (en banc) (citing Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc)).                   We review a

district court’s evidentiary decisions for abuse of discretion.

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 240 n.1

(4th Cir. 2009).        We review a district court’s factual findings

at a bench trial for clear error.                 PCS Phosphate Co., Inc. v.

Norfolk S. Corp., 559 F.3d 212, 217 (4th Cir. 2009).



                                         III.

       BIR first argues that the district court erred in granting

summary judgment in favor of Lake Ridge based on BIR’s alleged

anticipatory breach.         Relying on Virginia law, BIR argues that

it did not engage in anticipatory breach because it did not

repudiate      the    contract    by     unequivocally      and   unconditionally

announcing its intention to abandon the agreement.                    BIR contends

that     its   statements        in    December    2005     and   January        2006,

indicating     that    it   would     delay    developing    Parcel   A-1   for    an

undetermined period of time, did not amount to an unequivocal

statement that BIR would refuse to perform under the agreement.

Rather, BIR asserts that its overtures offering to pay $90,000

for Lake Ridge to “hold off” on the construction project were

merely     a    “request     to       negotiate    a   cancellation         of    the

construction provision.”              Petr.’s Br. at 44 (emphasis omitted).
                                           8
On a related note, BIR argues that Lake Ridge agreed to modify

the original agreement and cancel the construction project for

$90,000 in January 2006.        BIR asserts that Lake Ridge ultimately

reneged on this agreement three months later when it requested

an    additional   $1.5    million   in    costs     and    lost    profits.    In

addition, BIR argues that because Lake Ridge failed to deliver

the necessary building permits before June 30, 2006, and because

BIR provided a timely notice that it elected to pay Lake Ridge

$90,000, BIR “has no additional payment obligations under the

Agreement.”     Petr.’s Br. at 38.

       Lake    Ridge   responds      that      BIR’s       course    of     conduct

constituted     anticipatory    breach       because    neither     the    parties’

purchase agreement nor the Sixth Amendment gave BIR “the right

to simply hold off on proceeding with the Parcel A-1 Building

until some undetermined point in the future.”                    Respt.’s Br. at

27.    Lake Ridge further points out that once it realized it had

made a mistake and informed BIR that it intended to request its

out-of-pocket expenses and lost profits related to Parcel A-1,

BIR “never indicated that it had changed its mind on holding off

on construction.”      Id. at 28.         Instead, BIR confirmed with Lake

Ridge that it was not interested in developing Parcel A-1 at

that time.      Lake Ridge argues that because BIR repudiated the

parties’      agreement,    Lake     Ridge     was     excused      from    further
                                       9
performance under the contract, and in fact “properly mitigated

its damages by stopping work” on the project.                  Id. at 26.

       The parties’ purchase agreement states that it will “be

governed by, and construed in accordance with the laws of the

state    in   which    the   Property    is    located        [Virginia],     without

regard   to    laws    regarding     choice    of    law.”       J.A.    114.      The

Virginia Supreme Court has held that “for a repudiation of a

contract to constitute a breach, the repudiation must be clear,

absolute,      [and]    unequivocal,         and    must      cover     the     entire

performance of the contract.”           Vahabzadeh v. Mooney, 399 S.E.2d

803, 805 (Va. 1991) (citations omitted).                   We find that standard

to be squarely met on these facts.                   On January 5, 2006, BIR

wrote to Lake Ridge:

       At this time we are holding off on proceeding with
       either of these projects until some undetermined point
       in the future.[]

       With respect to the building, we will initiate payment
       for the 90K[.]

       As for the garages, please                   provide me with an
       itemization of the out of                    pocket expenses for
       review[.]

J.A. 43.      The message, taken as a whole, is unambiguous.                    The e-

mail    clearly   states     BIR’s    intent       not   to    proceed    with     the

construction projects.          This intent is further established by

the fact that BIR promised to “initiate payment for the 90K”

                                        10
owed     on    Parcel          A-1    and       invited     Lake          Ridge       to    submit     an

itemization of expenses related to the garages for review.                                             In

addition, BIR did not express any contrary intent between March

and June, even after Lake Ridge stated that it would request

out-of-pocket            expenses         and    lost    profits          as    to    Parcel    A-1   in

addition to the garages.                        J.A. 341.        BIR’s January 5, 2006 e-

mail to Lake Ridge, bolstered and confirmed by its subsequent

course        of        conduct,          constituted       a        clear,          absolute,        and

unequivocal repudiation of the contract.

       BIR’s       argument          that    the    parties      modified            their     purchase

agreement          is    similarly         unpersuasive.             BIR       contends       that    the

parties modified their purchase agreement so that BIR could pay

Lake Ridge $90,000 and cancel the building project even after

the    original         August       1,     2005   deadline          to    do    so    had     expired.

Based on this allegedly modified agreement, BIR argues that Lake

Ridge breached the contract by failing to timely deliver the

necessary building permits.

       The record does not support BIR’s argument.                                      The Virginia

Supreme       Court       has    acknowledged            that    contracting               parties    may

“modify       the        terms        of     their       contract          by        express    mutual

agreement,” but there must be “clear, unequivocal and convincing

evidence”          of    the     parties’          intent       to    modify          the    contract.

Stanley’s Cafeteria, Inc. v. Abramson, 306 S.E.2d 870, 872–73
                                                    11
(Va. 1983).      Even if Lake Ridge and BIR did begin to negotiate a

modification of their purchase agreement, the record shows that

the parties never formally agreed to such a modification.                                     BIR

attempted to memorialize this agreement in its proposed side

letter, which it sent to Lake Ridge in February and March.                                   J.A.

44-46,    49-52.      However,         Lake       Ridge    never   signed        the    letter

agreement.

     Because       BIR’s     January         5,     2006    e-mail          constituted        an

anticipatory     breach     of    the     parties’         contract,        we   affirm       the

district    court’s    grant      of    summary       judgment         in   favor      of    Lake

Ridge.



                                             IV.

     BIR also challenges the district court’s decision to admit

testimony    from    David    Rudiger         and    Everett       Hoffman       during       the

damages    hearing.        These       two    claims       are   addressed       separately

below.

                                              A.

    BIR asserts that the district court ordered Lake Ridge to

proffer    the   testimony       of    its    witnesses,         but    that     Lake       Ridge

failed to do so properly.               Citing Md. Cas. Co. v. Therm-O-Disc,

Inc., 137 F.3d 780, 783 (4th Cir. 1998), and other cases, BIR

contends that a proffer must indicate what a witness is expected
                                              12
to say, and that Lake Ridge did not provide this information.

Petr.’s      Br.   at    55-56.           BIR    further      contends           that    Everett

Hoffman’s testimony constituted expert testimony based on his

industry-wide experience.                  BIR argues that the district court

should have excluded Hoffman’s testimony because Lake Ridge had

indicated that it would offer only lay opinions.

        BIR’s assertions mischaracterize the record.                              Contrary to

BIR’s      contentions,       Lake    Ridge       provided       a    three-page          proffer

clearly     detailing        the   testimony         each   of       its    three       witnesses

would give.        With respect to Everett Hoffman specifically, Lake

Ridge’s proffer stated that he would testify about the costs of

construction for the Parcel A-1 building and the garages and his

method for determining these costs.                      This information was more

than sufficient to give BIR notice of the substance of Hoffman’s

testimony.          Moreover,        the    district        court          did   not     err   in

admitting Hoffman’s testimony as a lay opinion.                              As the district

court pointed out, “[t]here’s no way under the sun that you can

call any lay witness who will not have some experience external

to   the    job    he   or   she     is    working     in.”          J.A.    460.        Hoffman

testified about his cost calculations for the Parcel A-1 project

and based his rationale for these calculations on his previous

experience in the industry.                     The district court did not abuse


                                                13
its discretion in finding that his testimony did not constitute

expert testimony under Rule 701.

                                               B.

       BIR’s    arguments           as    to        David     Rudiger       are    similarly

unpersuasive.         BIR contends that under Federal Rule of Evidence

701, the district court should not have admitted David Rudiger’s

testimony      on     Lake    Ridge’s         ability       to     obtain   the    necessary

building permits by June 30, 2006.                          BIR emphasizes that under

Rule 701, a lay witness’s testimony must be based on personal

knowledge and perceptions.                BIR highlights that Rudiger “did not

testify to any personal experience with seeking or obtaining

building    permits,         either      in    connection         with   this     project   or

generally,” or testify about his knowledge regarding the process

for obtaining such permits in Virginia.                              Petr.’s Br. at 51.

Because Lake Ridge did not lay a proper foundation for Rudiger’s

testimony,      BIR     argues      that       the    district        court     should   have

excluded it.

       BIR exaggerates the alleged deficiency in the foundation

for Rudiger’s lay witness testimony.                              Rudiger testified that

Lake   Ridge      would      have       had    to    prepare        architectural     plans,

perform    test     borings        to    determine          the    building’s     foundation

requirements,       draw      up    structural         foundation        plans     and   site

plans, and get approval from Virginia Power because part of the
                                               14
proposed parking lot for the building fell on a Virginia Power

easement.       He stated that because Lake Ridge had “previously

dealt with Virginia Power on the same site in getting their

approval for the location of parking lots underneath of their

easement . . . we didn’t perceive any problem in that regard.”

J.A.    3924.         At    trial,    the    district   court     overruled   BIR’s

objection to Rudiger’s testimony, noting that “if [Rudiger’s]

been involved in this project, he knows what is required to get

a building permit.”          Id. at 390.

       The   record        shows   that     Rudiger   testified    in   sufficient

detail about the process for obtaining permits, and about his

involvement in this and other similar construction projects, to

lay a foundation for his opinion that Lake Ridge would have been

able to obtain the necessary building permits by June 30, 2006.

The district court did not abuse its discretion in admitting

Rudiger’s testimony.



                                             V.

       Lastly, BIR argues that the district court should not have

awarded damages to Lake Ridge because Lake Ridge failed to show

that it would have been able to obtain the necessary building

approvals by June 30, 2006.                  Citing the Second Restatement of

Contracts       and    relying       on     the   asserted   inadmissibility     of
                                             15
Rudiger’s testimony, BIR argues that an injured party may not

recover damages after an anticipatory breach of contract by the

other party if the injured party could not perform its promise.

BIR further argues that Rudiger’s testimony, even if admissible,

“falls far short of establishing” that Lake Ridge could have

timely obtained the permits.        Petr.’s Br. at 55.

     We affirm the district court’s award of damages.                   As noted

above, the district court did not err in admitting Rudiger’s

testimony.      Rudiger’s     testimony     demonstrated       his     knowledge,

gained   through    prior    experience,    of     the   steps   necessary     to

obtain the proper permits.           Based on his experience, Rudiger

testified    that   Lake    Ridge   could   have    obtained     the    necessary

permits by June 30, 2006.           BIR failed to present any contrary

evidence showing that Lake Ridge could not have timely obtained

the permits.        Based on the evidence presented at trial, the

district court’s factual findings were not clear error.



                                      VI.

     For the foregoing reasons, the judgment of the district

court is

                                                                        AFFIRMED.




                                      16
