                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



                                               2
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



                                       3
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).



                                         5
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).



                                             7
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

                                            8
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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