UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 & ASSOCIATES, Alexandria, Virginia, for Appellant. Arthur Mark

Schwartzstein, ARTHUR M. SCHWARTZSTEIN, P.C., McLean,

Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit.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 district 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 statement, were placed in front of Gavin. Gavin reviewed the credit agreement 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 Fed2 GAVIN v. KOONS BUICK PONTIAC GMC
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 granting 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 judgment, and the case proceeded to trial by jury. At the conclusion of

Gavin’s evidence, Koons made a motion pursuant to Rule 50 for judgment 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 reasoning of the district court. We reject Gavin’s assertion that the district 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

GAVIN v. KOONS BUICK PONTIAC GMC 3
the statutory and regulatory provisions cited by Gavin. Whether

Gavin became obligated to purchase the truck on January 29 or February 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 argument 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 granting 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

4 GAVIN v. KOONS BUICK PONTIAC GMC
establish such intent. In addition, Gavin failed to produce any evidence 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 consummation 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 matter of law on this claim. 

IV

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

GAVIN v. KOONS BUICK PONTIAC GMC 5