                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

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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).

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      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




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