Gavin v. Koons Buick Pontiac GMC, Inc. , 28 F. App'x 220 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARTIN GAVIN, 
Plaintiff-Appellant,
v.
 No. 01-1436
KOONS BUICK PONTIAC GMC,
INCORPORATED, t/a Koons of Fairfax,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-00-1241-A)
Argued: December 4, 2001
Decided: January 14, 2002
Before WILKINSON, Chief Judge, and WILLIAMS and
GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: A. Hugo Blankingship, III, BLANKINGSHIP & ASSO-
CIATES, Alexandria, Virginia, for Appellant. Arthur Mark
Schwartzstein, ARTHUR M. SCHWARTZSTEIN, P.C., McLean,
Virginia, for Appellee.
2 GAVIN v. KOONS BUICK PONTIAC GMC
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Martin Gavin asserts multiple claims against Koons
Buick Pontiac GMC, Inc. ("Koons") arising out of the sale of a motor
vehicle. Two claims were dismissed on summary judgment. The dis-
trict court granted judgment as a matter of law on the remaining
claims. We affirm.
I
On January 29, 2000, Gavin signed a buyer’s order to purchase a
used 1995 Mazda B2300 truck. The contract provided for financing
of the purchase price. The Koons finance manager had a copy of
Gavin’s credit history report, and told Gavin that a previous vehicle
purchase did not appear on the report. In fact, the previous purchase
did appear on the report. Multiple copies of the credit agreement,
which included an Annual Percentage Rate ("APR") disclosure state-
ment, were placed in front of Gavin. Gavin reviewed the credit agree-
ment before signing. Before taking possession of the truck, Gavin
noticed that the "check engine" light was illuminated and Koons
agreed to make any necessary repairs. On February 2, 2000, before
taking possession of the truck, Gavin noticed that the "check engine"
light was still illuminated and complained that Koons had not repaired
the problem as promised. A Koons employee drove the truck off the
lot. Approximately one hour later, the employee returned to the lot
with the truck. Gavin then took possession of the truck. While driving
to work that same day, Gavin noticed that the truck’s speedometer
was not functioning. Later that day, he noticed that the odometer was
not functioning, and was stopped at 70,596 miles. He subsequently
learned that the windshield wipers did not function, and that the entire
right side of the truck had been repainted. Gavin returned the truck
to Koons and demanded recission and return of his down payment of
$1,500. Koons refused. Gavin filed suit alleging violations of the Fed-
GAVIN v. KOONS BUICK PONTIAC GMC 3
eral Odometer Act (Count I); Truth in Lending Act (TILA) (Count
II); multiple violations of the Virginia Consumer Protection Act
(Counts III-VI); breach of contract (Count VII); and fraud (Count
VIII).
The defendant moved for summary judgment on all counts. The
district court granted in part and denied in part the defendant’s
motion. Gavin appeals that portion of the district court’s order grant-
ing summary judgment on portions of Count II (TILA) regarding the
APR disclosure, and granting summary judgment on Count VII.
Counts I, II, III, IV, VI, and VIII remained after summary judg-
ment, and the case proceeded to trial by jury. At the conclusion of
Gavin’s evidence, Koons made a motion pursuant to Rule 50 for judg-
ment as a matter of law as to Counts III, IV, VI, and VIII. (JA 476.)
Koons did not move for judgment as a matter of law on Counts I and
II. The district court dismissed all counts, including Counts I and II
sua sponte. Gavin’s timely appeal followed.
II
The Court reviews a grant of summary judgment de novo, viewing
all facts and inferences in the light most favorable to the nonmoving
party. See Providence Square Assoc., L.L.C. v. G.D.F., Inc., 211 F.3d
846, 850 (4th Cir. 2000). Summary judgment is appropriate when "the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. Pro. 56.
After considering the parties’ briefs and joint appendix, and having
had the benefit of oral argument, we affirm substantially on the rea-
soning of the district court. We reject Gavin’s assertion that the dis-
trict court committed error by granting summary judgment to Koons
on his claim that Koons misstated the APR. The district court held
that Gavin received the required APR disclosure "before credit [was]
extended." 15 U.S.C. § 1638(b)(1); see also 12 C.F.R. § 226.17(b)
(requiring disclosure before consummation of the transaction); 12
C.F.R. § 226.2(a)(13) (stating that consummation occurs when the
buyer becomes contractually obligated). That is all that is required by
4 GAVIN v. KOONS BUICK PONTIAC GMC
the statutory and regulatory provisions cited by Gavin. Whether
Gavin became obligated to purchase the truck on January 29 or Feb-
ruary 2, he received the required disclosures before the credit was
extended. We also reject Gavin’s assertion that the district court erred
in dismissing his breach of contract claim. This claim was based on
alleged breaches of implied warranties. The contract disclaimed all
implied warranties. For the first time on appeal, Gavin asserts that the
Magnusson-Moss Warranty Act, 15 U.S.C. § 2308, prohibited Koons
from disclaiming implied warranties. Having failed to raise this argu-
ment below, it is waived. Skipper v. French, 130 F.3d 603, 610 (4th
Cir. 1997). Next, we turn to the district court’s order granting Koons
judgment as a matter of law.
III
The Court reviews a grant of judgment as a matter of law de novo.
"A district court may grant a motion for judgment as a matter of law
if there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue." GSM Dealer Services, Inc. v.
Chrysler Corp., 32 F.3d 13, 142 (4th Cir. 1994) (internal quotations
omitted).
Again, we affirm substantially on the reasoning of the district
court. We reject Gavin’s assertion that the district court erred in grant-
ing judgment as a matter of law on Gavin’s Federal Odometer Act,
49 U.S.C. §§ 32701-32711, claim. Gavin’s evidence, at most, showed
that the odometer disclosure was misstated by only approximately
three miles. This deviation lacked materiality and was consequently
insufficient to show an "intent to defraud" as required by the statute.
49 U.S.C. § 32710(a).
Gavin also asserts that the district court erred granting judgment as
a matter of law on his Virginia Consumer Protection Act, Va. Code
§§ 59.1-196 - 59.1-207, claims. We agree with the district court that
Gavin failed to adequately demonstrate a "loss" as required by the
statute. Va. Code § 59.1-204. Next, we agree with the district court
that Koons was entitled to judgment as a matter of law on Gavin’s
common law fraud claims. Like the Federal Odometer Act, fraud
requires that a false statement be made with "intent to mislead."
Thompson v. Bacon, 425 S.E.2d 512, 514 (Va. 1993). Gavin failed to
GAVIN v. KOONS BUICK PONTIAC GMC 5
establish such intent. In addition, Gavin failed to produce any evi-
dence of any competing or lower financing terms he could have
obtained. Given Gavin’s ability to seek out alternative financing, he
was not damaged by Koons’ statement that a previous purchase did
not appear on his credit report.
Finally, Gavin argues that the district court erred in granting Koons
judgment as a matter of law on Gavin’s remaining TILA claims. As
stated above, the disclosures were made before credit was extended,
as required by the Act. 15 U.S.C. § 1638(b)(1). The regulation that
interprets the statutory provision requires disclosures "before consum-
mation of the transaction" and "in a form that the consumer may
keep." 12 C.F.R. § 226.17(b). Multiple copies of the form contract,
which contained the required disclosures, were placed in front of
Gavin before the transaction was finalized, and Gavin reviewed the
contract. The district court did not err in granting judgment as a mat-
ter of law on this claim.
IV
For the foregoing reasons, the judgment of the district court is
AFFIRMED.