Wynn's Extended Care, Inc. v. Penny Bradley , 619 F. App'x 216 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2334
WYNN’S EXTENDED CARE, INC.,
Plaintiff - Appellee,
v.
PENNY L. BRADLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:13-cv-00114-MFU-JGW)
Submitted: June 30, 2015 Decided: July 28, 2015
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas D. Domonoske, Harrisonburg, Virginia; Timothy E. Cupp,
SHELLEY CUPP SCHULTE, P.C., Harrisonburg, Virginia, for
Appellant. Virginia M. Sadler, JORDAN COYNE LLP, Fairfax,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Penny L. Bradley appeals the district court’s order
granting summary judgment to Wynn’s Extended Care, Inc. (“WEC”),
on Bradley’s Virginia Consumer Protection Act 1 (“VCPA”) and
Magnuson-Moss Warranty Act 2 (“MMWA”) counterclaims and denying
her motion for leave to amend her counterclaim. We affirm.
We review de novo a district court’s order disposing of
cross-motions for summary judgment. Bostic v. Shaefer, 760 F.3d
352, 370 (4th Cir.), cert. denied, 135 S. Ct. 308 (2014).
“Summary judgment is appropriate when ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Foster v. Univ. of Md.-E. Shore,
__ F.3d __, __, No. 14-1073, 2015 WL 2405266, at *3 (4th Cir.
May 21, 2015) (quoting Fed. R. Civ. P. 56(a)). In determining
whether a genuine dispute of material fact exists, “we . . .
view the facts and all justifiable inferences arising therefrom
in the light most favorable to the nonmoving party.” Id.(internal quotation marks omitted). Nonetheless, “it is
ultimately the nonmovant’s burden to persuade us that there is
indeed a dispute of material fact. It must provide more than a
scintilla of evidence—and not merely conclusory allegations or
1 Va. Code Ann. §§ 59.1-196 to -207 (2014).
2 15 U.S.C. §§ 2301-2312 (2012).
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speculation—upon which a jury could properly find in its favor.”
CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th
Cir. 2014) (citation omitted).
With respect to the VCPA claim, the district court
concluded that Bradley presented insufficient evidence that a
third-party automobile dealer was WEC’s agent whereby WEC could
be held liable for the dealer’s actions. We agree with the
district court.
In Virginia, the existence of an agency relationship may be
established under one of two theories. See Murphy v. Holiday
Inns, Inc., 219 S.E.2d 874, 875-76 (Va. 1975). “[Actual] agency
[is] a fiduciary relationship resulting from one person’s
manifestation of consent to another person that the other shall
act on his behalf and subject to his control, and the other
person’s manifestation of consent so to act.” Acordia of Va.
Ins. Agency, Inc. v. Genito Glenn, L.P., 560 S.E.2d 246, 249
(Va. 2002) (internal quotation marks omitted); see also Ashland
Facility Operations, LLC v. NLRB, 701 F.3d 983, 990 (4th Cir.
2012). Apparent agency, sometimes called ostensible agency or
agency by estoppel in Virginia cases, “means an agency created
by operation of law and established by a principal’s actions
that would reasonably lead a third person to conclude that an
agency exists,” regardless of whether the principal and agent
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intended to establish an agency relationship. Sanchez v.
Medicorp Health Sys., 618 S.E.2d 331, 333 (Va. 2005).
Bradley contends that an actual agency relationship existed
between WEC and the dealer at the time she purchased a vehicle
from the dealer. In deciding whether an actual agency exists,
“[t]he power of [the alleged principal to] control is the
determining factor in ascertaining the alleged agent’s status.”
Allen v. Lindstrom, 379 S.E.2d 450, 454 (Va. 1989); see Murphy,
219 S.E.2d at 876. This factor refers to the “right to control
the methods or details of doing the work, not control of the
results.” Wells v. Whitaker, 151 S.E.2d 422, 429 (Va. 1966);
accord Murphy, 219 S.E.2d at 877. “Actual control . . . is not
the test; it is the right to control which is determinative.”
Whitfield v. Whittaker Mem’l Hosp., 169 S.E.2d 563, 567 (Va.
1969). Notably, the parties’ disclaimer of an agency
relationship, even in a contract, is not dispositive. Murphy,
219 S.E.2d at 876 & n.1; accord Hartzell Fan, Inc. v. Waco,
Inc., 505 S.E.2d 196, 201 (Va. 1998).
Viewing the agreement between WEC and the dealer in
isolation, we conclude, as did the district court, that it does
not evince the control required to prove the existence of an
actual agency under Virginia law. The Virginia Supreme Court’s
decision in Murphy compels this conclusion. Murphy, 219 S.E.2d
at 876-78. Moreover, even assuming that we may consider
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extrinsic evidence of the relationship between WEC and the
dealer, 3 we conclude that the extrinsic evidence Bradley
submitted serves only to reinforce what was evident from the
agreement: WEC had no power to control the dealer’s day-to-day
operation in the manner described in Murphy.
Bradley also contends that an agency relationship existed
between WEC and the dealer at the time WEC sent her notice that
the purchased vehicle was not eligible for coverage under WEC’s
service program. Bradley argues that the notice created an
apparent agency and that the district court incorrectly
determined that she presented insufficient evidence to
demonstrate the existence of an apparent agency. We decline to
reach the issue of apparent agency; 4 rather, we conclude that,
even assuming the notice created an apparent agency, no evidence
demonstrated that it granted the apparent authority necessary to
impose liability on WEC for the dealer’s representations.
Apparent authority is “the authority that a third party
reasonably believes an agent has, based on the third party’s
dealings with the principal, even though the principal did not
3 We need not—and do not—decide whether, under Virginia law,
recourse to extrinsic evidence would be proper in this case.
See Acordia, 560 S.E.2d at 250; Murphy, 219 S.E.2d at 876;
Bloxom v. Rose, 144 S.E. 642, 644 (Va. 1928).
4 See Sanchez, 618 S.E.2d at 333-35; Restatement (Second) of
Torts § 429 (1965); Restatement (Second) of Agency § 267 (1958).
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confer or intend to confer the authority.” Sanchez, 618 S.E.2d
at 333 (alteration and internal quotation marks omitted). The
Virginia Supreme Court has stated:
An act is within the apparent scope of an agent’s
authority if, in view of the character of his actual
and known duties, an ordinarily prudent person, having
a reasonable knowledge of the usages of the business
in which the agent is engaged, would be justified in
believing that he is authorized to perform the act in
question.
Neff Trailer Sales, Inc. v. Dellinger, 269 S.E.2d 386, 388 (Va.
1980).
Here, the district court correctly concluded that, on the
undisputed evidence in the record, no reasonable jury could find
that the dealer had the apparent authority to represent that
Bradley’s vehicle was covered by WEC’s service program because
the notice bluntly stated that the vehicle was ineligible. See
Kern v. J.L. Barksdale Furniture Corp., 299 S.E.2d 365, 367 (Va.
1983); Dere v. Montgomery Ward & Co., 295 S.E.2d 794, 796 (Va.
1982); Mosell Realty Corp. v. Schofield, 33 S.E.2d 774, 778 (Va.
1945). Accordingly, we conclude that Bradley failed to present
more than a scintilla of evidence demonstrating the existence of
an agency relationship that permitted liability to be imposed on
WEC for the dealer’s conduct. We therefore affirm the district
court’s grant of summary judgment to WEC on Bradley’s VCPA
claim.
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With respect to the MMWA claim, we likewise conclude that
Bradley’s failure to present sufficient evidence regarding
agency is fatal. MMWA provides a civil action for damages
against a service contractor who fails “to comply with any
obligation . . . under a . . . service contract.” 15 U.S.C.
§ 2310(d). MMWA defines a service contract as “a contract in
writing to perform . . . services relating to the maintenance or
repair (or both) of a consumer product.” 15 U.S.C. § 2301(8).
Here, the only writing that might qualify as a service contract—
a WEC service program form signed by Bradley—could only so
qualify if the dealer’s representations concerning the program
were imputed to WEC by the principles of agency. Because
Bradley’s evidence was insufficient to raise a genuine dispute
regarding agency, it was also insufficient to sustain her MMWA
claim. Accordingly, we affirm the district’s grant of summary
judgment to WEC on Bradley’s MMWA claim. 5
We turn lastly to the district court’s denial of Bradley’s
motion to amend her counterclaim in order to add a new VCPA
claim. “[W]here, as here, the district court denied such a
5
Bradley’s contentions regarding the reimbursement for the
taxes she paid at the time of the vehicle’s purchase are not
raised in her appellate brief in a manner sufficient to
challenge the district court’s determination. We therefore do
not review them. See Projects Mgmt. Co., 734 F.3d at 376;
Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir.
2006).
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motion on grounds of futility, we employ the same standard that
would apply to our review of a motion to dismiss.” United
States ex rel. Ahumada v. Nat’l Indus. for the Severely
Handicapped, 756 F.3d 268, 274 (4th Cir. 2014) (citations and
internal quotation marks omitted). The district court concluded
that Bradley’s proposed VCPA claim relied on the existence of
the same agency relationship that it had already rejected and
that, therefore, the amendment would be futile. We affirm on an
alternative ground apparent from the record. See Drager v.
PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014).
Bradley’s proposed VCPA claim would be governed by the
heightened pleading standards of Rule 9(b) of the Federal Rules
of Civil Procedure. See Va. Code Ann. § 59.1-200(A)
(prohibiting “fraudulent acts or practices committed by a
supplier in connection with a consumer transaction”); Fed. R.
Civ. P. 9(b). Under Rule 9(b), Bradley was “required to state
with particularity the circumstances constituting fraud or
mistake,” including “the time, place, and contents of the false
representations, as well as the identity of the person making
the misrepresentation and what he obtained thereby.” Weidman v.
Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir. 2015) (internal
quotation marks omitted), cert. denied, 83 U.S.L.W. 3838 (U.S.
June 22, 2015) (No. 14-1289). We conclude that Bradley’s
proposed VCPA counterclaim failed to meet these requirements and
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that affirmance of the district court’s denial vindicates Rule
9(b)’s purposes. See United States ex rel. Nathan v. Takeda
Pharm. N. Am., Inc., 707 F.3d 451, 456 (4th Cir. 2013).
Accordingly, we affirm the district court’s order. 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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