UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 Act1 (“VCPA”) and 

Magnuson-Moss Warranty Act2 (“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