WYNN‘S EXTENDED CARE, INC., Plaintiff-Appellee, v. Penny L. BRADLEY, Defendant-Appellant.
No. 14-2334
United States Court of Appeals, Fourth Circuit
Submitted: June 30, 2015. Decided: July 28, 2015.
We do not purport to establish some grand test for when an assault “involves” a firearm. But when we turn to the facts of this case, it is clear that Defendant‘s conduct, as found by the district court, satisfies the involve threshold.
During the resentencing hearing, the district court explained that when it stated during the first sentencing hearing that the offense took place “with no weapon involved by the defendant,” J.A. 168, it was merely commenting that Defendant did not bring the weapon to the SSA office himself.
Moreover, the district court relied upon the very facts that we stated could support application of
The district court then discredited Defendant‘s version of the events in which he claimed, among other things, that he was not the aggressor and did not touch or intend to take Seigle‘s gun. These findings together led to the conclusion that Defendant “threatened [the] use” of Seigle‘s firearm and that the assault involved a dangerous weapon. J.A. 237. Accordingly, the district court found “from the preponderance of the evidence that this becomes an aggravated assault and, therefore, that‘s why ... 2A2.2 is correct.” J.A. 237-38.
Given the conflicting testimony, the district court was entitled to discredit Defendant‘s version of the incident and find that he was attempting to grab Seigle‘s firearm. And absent clear error, which is not present here, we are not at liberty to disturb such supported factual findings. Harvey, 532 F.3d at 337 (“We ... review the factual findings of the district court ... for clear error.” (citation omitted)). Instead, we must uphold the district court‘s determination. See United States v. Chandia, 675 F.3d 329, 337 (4th Cir. 2012).
III.
For the reasons set forth above, we conclude that the district court properly applied the aggravated assault guideline. We therefore
AFFIRM.
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Unpublished opinions are not binding precedent in this circuit.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 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. Schaefer, 760 F.3d 352, 370 (4th Cir.), cert. denied, --- U.S. ---, 135 S.Ct. 308, 190 L.Ed.2d 140 (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, 787 F.3d 243, 248 (4th Cir.2015) (quoting
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., 216 Va. 490, 219 S.E.2d 874, 875-76 (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., 263 Va. 377, 560 S.E.2d 246, 249 (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 intended to establish an agency relationship. Sanchez v. Medicorp Health Sys., 270 Va. 299, 618 S.E.2d 331, 333 (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, 237 Va. 489, 379 S.E.2d 450, 454 (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, 207 Va. 616, 151 S.E.2d 422, 429 (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., 210 Va. 176, 169 S.E.2d 563, 567 (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., 256 Va. 294, 505 S.E.2d 196, 201 (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 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 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, 221 Va. 367, 269 S.E.2d 386, 388 (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., 224 Va. 682, 299 S.E.2d 365, 367 (1983); Dere v. Montgomery Ward & Co., 224 Va. 277, 295 S.E.2d 794, 796 (1982); Mosell Realty Corp. v. Schofield, 183 Va. 782, 33 S.E.2d 774, 778 (1945). Accordingly, we conclude that Bradley failed to present more than a
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.”
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 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
Accordingly, we affirm the district court‘s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the ma
AFFIRMED.