UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PARKRIDGE PHASE TWO ASSOCIATES,
Plaintiff-Appellant,

v.
                                                                  No. 98-1208
LOCKHEED MARTIN CORPORATION;
LMC PROPERTIES, INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-97-623-A)

Argued: December 2, 1998

Decided: February 2, 1999

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Paul A. Kaplan, DAVID, HAGNER, KUNEY & DAVI-
SON, P.C., Washington, D.C., for Appellant. Robert Foley Flinn,
FLINN & BEAGAN, Vienna, Virginia, for Appellees. ON BRIEF:
Erik D. Bolog, DAVID, HAGNER, KUNEY & DAVISON, P.C.,
Washington, D.C., for Appellant. Mathew D. Ravencraft, FLINN &
BEAGAN, Vienna, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Parkridge Phase Two Associates ("Parkridge"), as landlord, filed a
complaint against Lockheed Martin Corporation and LMC Properties,
Inc. (collectively "Lockheed") on April 25, 1997, alleging violations
of obligations under two leases and alleging waste under Virginia
Code § 55-211. Lockheed moved for summary judgment. On Decem-
ber 19, 1997, the district court denied the motion, with the exception
that it granted Lockheed summary judgment on Parkridge's claim for
holdover rent. On January 12, 1998, the remaining claims proceeded
to trial. Lockheed successfully moved for judgment as a matter of law
at the close of plaintiff's case. Finding no error, we affirm.

I.

Parkridge owns and leases a commercial office building in Reston,
Virginia. Lockheed leased the entire building, with the exception of
a first-floor deli, via two separate leases -- the"1986 Lease" and the
"1988 Lease." These leases covered separate portions of the building,
and both leases terminated on December 31, 1996. The 1986 Lease,
among other things, required Parkridge to install all of the initial ten-
ant improvements for Lockheed; allowed Lockheed to make nonstruc-
tural changes and additions to the building without Parkridge's
consent; required Lockheed to surrender all improvements at the expi-
ration of the lease; required Lockheed to perform alterations to the
property in a workmanlike and lawful manner; required Lockheed to
give notice of any changes affecting the mechanical or electrical sys-
tems; and required Lockheed to leave the premises broom clean and
tenantable. The 1988 Lease, among other things, required Parkridge
to install all of the initial tenant improvements; allowed Lockheed to
make nonstructural alterations to the building without Parkridge's
consent; required Lockheed to obtain written approval for alterations
affecting the building systems; required Lockheed to perform all

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alterations in a workmanlike and lawful manner so as not to adversely
affect the value, utility, or character of the premises; required all
improvements that were part of the original buildout by Parkridge to
be surrendered to Parkridge at the expiration of the Lease; required
all alterations after the initial buildout, at the election of Parkridge,
either to be removed at Lockheed's expense or to remain and be sur-
rendered to Parkridge [the "election"]; and required Lockheed to sur-
render the premises in as good a condition as when received,
excluding reasonable wear and tear and loss not caused by Lockheed.

The leases expired on December 31, 1996, and Lockheed vacated
on this day. Parkridge did not make the election required under the
1988 Lease for Lockheed to remove alterations at its expense. Lock-
heed had made a number of alterations over the years and claims that
these alterations did not violate the terms of the leases. Parkridge
claims that they did violate the terms of the leases.

Parkridge maintains that Lockheed was uncooperative in allowing
Parkridge to determine whether Lockheed was complying with the
terms of the leases (e.g., whether alterations conformed to code, etc.)
and to determine facts that would allow Parkridge to make an
informed election. Lockheed, however, states that Parkridge was
seeking information (e.g., built drawings, permits, etc.) which the
leases did not require Lockheed to submit to Parkridge and that
Parkridge was inquiring into matters regarding "restoration" when the
lease only required Lockheed to "repair" any damage that might arise
if Parkridge elected for Lockheed to remove alterations. Lockheed
made these views known in a March 20, 1996, letter, in which it rec-
ognized its obligation to repair in the event of an election. (J.A. at
646.) Parkridge declared Lockheed in default under the lease on May
16, 1996. In June 1996, a representative of Parkridge walked through
the facility over a period of two days, but he claims that his access
was limited. On July 17, 1996, Lockheed wrote to Parkridge and
requested that it inform Lockheed, pursuant to its election, which
items it would like Lockheed to remove. Parkridge provided Lock-
heed on September 25, 1996, with a list of items it was required to
"restore." On October 8, 1996, Parkridge wrote Lockheed "that until
the matter of restoration at Parkridge Two is resolved between the
Landlord and Lockheed Martin, no alterations will be allowed to
leave the premises and the premises is to remain in its current condi-

                     3
tion and entirety." (J.A. at 657.) Lockheed again insisted that it did
not have an obligation to "restore" under the lease. Parkridge contin-
ued to ask Lockheed to provide it with documentation that work was
up to code and under permit, but Lockheed did not provide any docu-
mentation.

After Lockheed vacated, Parkridge claims that it had its first oppor-
tunity to fully inspect the premises and that it found numerous code
violations and instances of poor workmanship. It hired an engineer,
who found numerous code violations. Lockheed insists that it vacated
the premises in good condition and in accordance with the lease. It
points out that Parkridge representatives made no complaint about the
condition of the premises on a December 31, 1996, walk-through.
Furthermore, Parkridge hired a contractor to demolish the building's
interior ceiling, and it was after this demolition that the above-
mentioned inspections, which found deficiencies, were made. Lock-
heed points out that neither the engineer nor the inspectors distin-
guished between original improvements installed by Parkridge or
subsequent improvements installed by Lockheed. Neither did they
distinguish between improvements that were up to code when
installed (and perhaps grandfathered into compliance) and improve-
ments that were noncompliant at the time of installation.

II.

We review de novo a judgment as a matter of law under Rule
50(a)(1) of the Federal Rules of Civil Procedure. Malone v. Micro-
dyne Corp., 26 F.3d 471, 475 (4th Cir. 1994). The evidence must be
viewed in the light most favorable to the non-moving party
(Parkridge), and the court neither weighs the evidence nor judges the
credibility of the witnesses. Benner v. Nationwide Mut. Ins. Co., 93
F.3d 1228, 1234 (4th Cir. 1996). Because we agree with the district
court's determination that Parkridge insufficiently proved damages,
we find no error in it granting Lockheed judgment as a matter of law.1
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1 Additionally, we agree with the district court that Parkridge never
elected for Lockheed to remove alterations from the premises at Lock-
heed's expense. Therefore, Parkridge is precluded from recovering any
damages under the election clause of the 1988 Lease.

                    4
Under Virginia law, a jury may not be allowed to speculate on
either the cause or the amount of damages:

          To recover damages in any case, a plaintiff must prove
         with reasonable certainty the amount of his damages and the
         cause from which they resulted. There can be no recovery
         where speculation or conjecture must be resorted to in order
         to determine what caused the damage complained of. When
         there is evidence of damage from several causes, as to a por-
         tion of which a defendant cannot be held liable, the burden
         is on a plaintiff to present evidence which will show "within
         a reasonable degree of certainty" the share of damages for
         which a defendant is responsible.

Hale v. Fawcett, 202 S.E.2d 923, 925 (Va. 1974). The burden of
proof is therefore on Parkridge,2 and "[i]f the proof is too uncertain
to allow a jury to apportion the part for which the defendant is respon-
sible, the issue should not be submitted to the jury." Carr v. Citizens
Bank & Trust Co., 325 S.E.2d 86, 90 (Va. 1985) (citing Hale, 202
S.E.2d at 925). "The standard of proof required when damage is the
result of multiple causes is not absolute certitude but reasonable cer-
tainty." Sachs v. Hoffman, 299 S.E.2d 694, 696 (Va. 1983). Because
Parkridge failed to show with reasonable certainty the portion of dam-
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2 Parkridge claims that the burden of proof is upon Lockheed to demon-
strate that it did not cause the damages. It bases its argument upon Vir-
ginia Code § 55-226, which allows a tenant who promises to "leave the
premises in good repair" to avoid liability for damage to the leased prem-
ises when the tenant proves that it was not negligent. See Warehouse
Distribs., Inc. v. Prudential Storage & Van Corp. , 161 S.E.2d 86, 90 (Va.
1968). Section 55-226 is applicable in the instant case because Lockheed
promised to surrender the premises "in as good condition as when Tenant
took possession." (J.A. at 514.) This promise, however, contained excep-
tions "for reasonable wear and tear and loss by fire or other casualty not
caused by Tenant or its Agents." (Id. (emphasis added).) Therefore,
before Lockheed has any burden to prove that it was not negligent in
causing the damages, Parkridge must first prove that Lockheed was the
one who caused the damages. As a result, section 55-226 does not oper-
ate to shift the burden of proof with respect to proving the cause of dam-
ages.

                   5
ages for which Lockheed was responsible, the district court did not
err in dismissing the case.

Several cases illustrate how the Hale principle should be applied.
In Hale, the Supreme Court of Virginia reversed judgment for the
plaintiff because of a failure to prove the cause of damages:

           In Hale v. Fawcett, Blake Fawcett filed an action against
          Joseph Hale for damages to a corn crop and farmland caused
          by Hale's trespassing hogs and cattle. Fawcett was only
          entitled to recover damages caused by the cattle entering his
          farm through a narrow space between a cattle guard and a
          gate post. Fawcett was not entitled to recover for damages
          caused by cattle entering through or over an existing divi-
          sion fence. No evidence was produced which enabled the
          jury to form a reasonable estimate of that portion of the
          damage caused by the cattle entering through the narrow
          opening and the portion of the damage caused by cattle
          entering through or over the division fence. Thus, we
          reversed the judgment in favor of Fawcett because he failed
          to prove with reasonable certainty the share of damages for
          which Hale could be held liable.

TechDyn Systems Corp. v. Whittaker Corp., 427 S.E.2d 334, 337-38
(Va. 1993) (citing Hale, 202 S.E.2d at 925).

In contrast, the Supreme Court of Virginia upheld the jury's verdict
in TechDyn because there was sufficient proof of the cause of dam-
ages. The plaintiff proved with sufficient certainty that the defendant
subcontractor caused the delay for which damages were awarded. The
plaintiff's proof consisted of the subcontractor's admission of respon-
sibility for some of the delay, evidence showing that delays were a
result of deficiencies in the subcontractor's work, testimony by the
plaintiff's experts attributing delay costs solely and directly to the
subcontractor's performance, and testimony by the plaintiff's vice
president that the delay was attributable to the subcontractor's non-
performance. See id. at 338.

Finally, in Medcom, Inc. v. C. Arthur Weaver Co. , 348 S.E.2d 243
(Va. 1986), the court upheld the trial court's determination that evi-
dence of damages was insufficient to create a jury issue:

                    6
          Medcom attempted to prove two other elements of damage:
          (1) the cost of defective parts removed from concentrator
          units, and (2) the cost of labor and replacement parts
          incurred in repairing concentrator units. Medcom's witness
          testified that the inventory of defective parts amounted to
          $90,849 and that replacement costs amounted to $19,827.65.
          The witness, however, conceded that an undetermined
          amount of the defective inventory and replacement costs
          was attributable to defective parts acquired from sources
          other than Weaver and Clippard.

          ....

           Ordinarily, it is the jury's function to determine whether
          and to what extent a litigant has been damaged. In the pres-
          ent case, however, Medcom's evidence of damages was
          vague, indefinite, and speculative. We hold, therefore, that
          the trial court properly struck Medcom's evidence on its
          counterclaim and third-party claim.

Id. at 247-48.

The instant case is like Hale and Medcom , not TechDyn. Parkridge
offered no testimony indicating what damages are attributable to
Lockheed versus Parkridge itself. Parkridge based its damage esti-
mates upon inspections which occurred after it demolished the build-
ing in early January 1997. Thus, the jury could not have distinguished
with reasonable certainty damages caused by Lockheed from damages
caused by this demolition.

In addition, Parkridge offered four damage estimates for which it
claims Lockheed is directly responsible: One thousand seven hundred
dollars in sprinkler repair, per testimony of Scott Titus; $10,800 in
correction of code violations, per testimony of Vincent Browning;
$85,100 in correction of code violations, per testimony of Timothy
Harlow; and $77,185 in ceiling repair costs,3 per testimony of Gary
_________________________________________________________________
3 Although Parkridge claims that the repair of the ceiling was a "direct
cost," see (Br. of Appellant at 36), it actually was Parkridge that

                    7
Ball. See (Br. of Appellant at 35-36.) Parkridge also claimed that
there were consequential damages of $400,000 in additional tenant
improvements; $790,000 in lost rent; and $512,000 in carrying
charges. See (id.)

Parkridge failed to show that Lockheed caused the specified dam-
ages. Mr. Titus conceded that his $1700 estimate did not account for
deficiencies caused by Lockheed versus deficiencies caused by
Parkridge. See (J.A. at 345-46.) Mr. Browning admitted that he did
not know who caused the $10,800 in code violations. See (J.A. at
350.) Mr. Harlow did not differentiate between violations caused by
Lockheed versus Parkridge. See (J.A. at 359-60.) All consequential
damages -- ceiling repair costs, improvement costs, lost rents, and
carrying costs -- are irrelevant because they flow from Parkridge's
claim for direct damages, but Parkridge has failed to prove any direct
damages. It did not offer proof which would have allowed the jury to
apportion between code violations and other deficiencies that were
caused by Lockheed and those that were caused by Parkridge either
in its initial buildout or in its demolition of the ceiling.

In addition to the causation issue, there also was no proof of actual
damages because Parkridge never made the repairs at issue. Instead,
the building was substantially gutted by the subsequent tenants in
order to accomplish their wholesale remodeling plans. Virginia law
states that, in an action for failing to return the premises in the same
condition as when delivered, "the measure of plaintiff's damages [is]
the reasonable cost of putting the premises in the required state of
repair . . . even if the repairs have not been made by the landlord."
See Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 723 (1969).
This court has interpreted Sharlin's principle not to apply when "the
cost of restoring the property to its former condition greatly exceed[s]
any benefit to the market value of the property." Associated Stations,
_________________________________________________________________
destroyed the ceiling. These damages are more accurately characterized
as consequential damages. See Richmond Med. Supply Co. v. Clifton, 369
S.E.2d 407, 409 (Va. 1988) (characterizing direct damages as "those
which naturally or ordinarily flow from the breach" and consequential
damages as those "aris[ing] from the intervention of special circum-
stances not ordinarily predictable").

                    8
Inc. v. Cedars Realty & Dev. Corp., 454 F.2d 184, 188 (4th Cir.
1972). In such situations, in order to avoid a windfall that would over-
compensate the plaintiff, the appropriate measure of damages is dimi-
nution in market value. See id. at 190. In the instant case, restoration
costs would represent a windfall to the plaintiff because no restoration
was made and because the subsequent tenants substantially demol-
ished the interior of the building. Accordingly, the appropriate mea-
sure of recovery is diminution of market value. Because there is no
evidence of a diminution in market value, the district court is affirmed
on this basis as well.

III.

Several witnesses at trial were not identified as expert witnesses in
accordance with the court's pretrial procedure and were not allowed
to testify as experts. The district court consequently excluded various
parts of their testimony on the basis that it was opinion testimony that
could only come in through an expert witness. Parkridge asserts that
these rulings were error because the testimony could come in via Rule
701 of the Federal Rules of Evidence, which allows opinion testi-
mony of lay witnesses if the opinion is "rationally based on the per-
ception of the witness and helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue." Fed. R.
Evid. 701.4
_________________________________________________________________
4 Parkridge contests several exclusions. First, with respect to Christo-
pher Walker, the court prevented him from testifying (1) how long he
thought it would take to make repairs that Parkridge perceived were nec-
essary in December 1996, and (2) what the tenant allowance was on the
two leases subsequent to Lockheed's leases. (J.A. at 129, 134-35.) Sec-
ond, with respect to Clark Rheinstein, the court prevented him from (1)
testifying to the tight real estate market at the time Lockheed decided not
to renew, and (2) comparing the allowances of the replacement tenants
with the allowances given other tenants. (J.A. at 390-91, 393.) Finally,
with respect to Charles Poulson, the court prevented him from testifying
(1) why the property could not be re-let "as is" at the end of Lockheed's
term; (2) that some alterations were made that were not covered by per-
mits; (3) that there were numerous building code violations; and (4) that
he estimated a cost of $400,000 to make the required repairs. (J.A. at
183-84, 198, 213, 220-21.)

                    9
We review the district court's decision for abuse of discretion,
granting deference to its decision. General Elec. Co. v. Joiner, 118
S. Ct. 512, 517 (1997). An abuse of the district court's discretion
occurs when the court fails to actually exercise its discretion, fails to
take into account judicially recognized factors constraining the exer-
cise of its discretion, or relies on erroneous legal or factual premises.
See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

Parkridge disputes the court's conclusions, but it does not show
how they are an abuse of discretion. Although the court could have
clarified how the testimony at issue did not meet the standards of Rule
701, we find that any error was harmless in light of the fact that the
testimony did not address the essential flaw in Parkridge's case --
that Parkridge did not demonstrate causation with respect to damages.
See Renfro Hosiery Mills Co. v. National Cash Register Co., 552 F.2d
1061, 1070 (4th Cir. 1977) (affirming judgment when possible error
in excluding evidence was harmless).

IV.

Finding no error, we affirm.

AFFIRMED

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