CAROLYN D. GUNNEY; EDWARD A. GUNNEY, Jointly and Individually v. NV HOMES, LP, a/k/a NV Homes Limited Partnership, a Virginia Limited Partnership

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CAROLYN D. GUNNEY; EDWARD A.
GUNNEY, Jointly and Individually,
Plaintiffs-Appellants,
v.
No. 98-1735
NV HOMES, LP, a/k/a NV Homes
Limited Partnership, a Virginia
Limited Partnership,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-95-3843-AW)
Argued: September 23, 1999
Decided: January 6, 2000
Before WILKINSON, Chief Judge, KING, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Melvin George Bergman, Beltsville, Maryland, for
Appellants. J. Michael Conroy, Jr., CONROY, BALLMAN &
DAMERON, CHARTERED, Gaithersburg, Maryland, for Appellee.
ON BRIEF: Edward P. Henneberry, CONROY, BALLMAN &
DAMERON, CHARTERED, Gaithersburg, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Carolyn D. Gunney and Edward A. Gunney (the Gunneys) filed
suit alleging fraud, breach of contract, specific performance, breach
of warranty, and violation of the Maryland Consumer Protection Act
(CPA) against NV Homes. The Gunneys abandoned the specific per-
formance and breach of warranty claims, and they appeal the final
judgment of the district court granting summary judgment to NV
Homes on the remaining counts. The Gunneys also appeal the district
court's subsequent denial of their motion to alter, amend, or recon-
sider the judgment under Federal Rule of Civil Procedure 59(e). We
affirm the district court's judgment and its denial of the Gunneys'
postverdict motion.
I
In May 1992, the Gunneys and NV Homes entered into a sales
agreement for the purchase of a new home to be constructed on a lot
in Prince George's County, Maryland (the property). When searching
for a lot, one of the Gunneys' main concerns was being able to build
an in-ground swimming pool in the backyard. The Gunneys testified
that agents of NV Homes consistently represented to them that the lot
they were purchasing could accommodate a swimming pool.
The sales agreement provided that NV Homes would build the
home "in a workmanlike manner and substantially in accordance with
plans and specifications which have been reviewed by Buyer." J.A.
135. The agreement further stated that model homes, advertising, or
promotional materials were not the basis of the bargain and that the
obligations of NV Homes would be determined solely by the plans
and specifications.
The sales agreement provided that the property was sold "subject
to easements, if any, created or to be created, prior to or after closing
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of title for the installation of utilities, stormwater management or
drainage facilities . . . which may be placed on record by the Seller
after the execution of this Agreement . . . ." J.A. 136. The agreement
also gave NV Homes the right to enter the property at any time after
settlement in order to make exterior changes and improvements to the
lot as required by governmental authorities.
The agreement contained a clause providing that oral statements or
promises not included in the contract would not be enforceable under
law. The contract contained lines on which the parties could include
any oral representations upon which they were relying. These lines
were left blank.
Prior to settlement on the property, the Gunneys conducted a walk-
through inspection of the completed house and noted several needed
repairs on a "punch list." After settlement, the Gunneys conducted
another inspection of the house and filled out a final inspection report,
noting further repairs. There is considerable dispute between the par-
ties as to whether these repairs were made and the quality of the
repairs.
At the time of contract, the property was encumbered by a storm
drain easement, which contained an underground storm drainage sys-
tem and a submerged manhole egress. At settlement, the Gunneys
reviewed a house location survey of the property that reflected the
size and location of the easement but did not show the storm drain
system or the manhole egress.
Approximately 18 months after settlement, Prince George's County
officials conducted an inspection of the drainage system and required
that the manhole cover on the property be raised to grade level. NV
Homes and county officials proceeded with the project, leaving a
manhole cover visible in the Gunneys' backyard. After the manhole
egress was raised, the Gunneys were told by several pool construction
companies that their backyard could support a small in-ground pool
of an irregular shape.
In May 1997, the Gunneys commissioned an appraisal of the prop-
erty. The appraisal concluded that the value of the property was
reduced by $26,600 due to repairs needed in the home. It also made
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a downward adjustment of $32,800 in the value of the property for
"loss of utility due to [slope and storm drain] easements." J.A. 342.
II
Appellate review of an award of summary judgment is de novo.
Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc).
Summary judgment is only appropriate when the moving party shows
that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 973 (4th Cir.
1990). In reviewing the record, we draw all inferences in favor of the
party opposing summary judgment. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). A mere scintilla of
evidence supporting the opposing party's case, however, is insuffi-
cient to defeat summary judgment. Shaw v. Stroud , 13 F.3d 791, 798
(4th Cir. 1994). "Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no
`genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omit-
ted).
III
The Gunneys claim that NV Homes committed fraud and violated
the CPA by failing to disclose the existence of the storm drain system
and manhole egress in their backyard and by representing that the
yard could accommodate a swimming pool. On the latter claim, the
Gunneys have failed to present evidence that their backyard cannot,
in fact, accommodate a pool. The Gunneys have made no showing on
the first element of fraud, "that the defendant made a false representa-
tion to the plaintiff." Nails v. S&R, Inc. , 334 Md. 398, 415, 639 A.2d
660, 668 (1994). They also have not presented evidence that NV
Homes' statements about the swimming pool were "false, falsely dis-
paraging, or misleading" under the CPA. Md. Code Ann., Com. Law
II § 13-301(1) (1998 Supp.). Companies that install in-ground swim-
ming pools disclosed that the backyard would accommodate a pool.
Summary judgment on this claim was appropriate.
Concerning the storm drain system and manhole egress, the district
court found that there were triable issues on the fraud-like tort of
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deceit as to whether NV Homes failed to disclose a material fact with
intention to deceive and whether the Gunneys justifiably relied on the
concealment. Lubore v. RPM Associates, 109 Md. App. 312, 329, 674
A.2d 547, 555 (1996). Both the deceit and CPA claims of the Gun-
neys, however, require proof of injury. Id.; Md. Code Ann., Com.
Law II § 13-408(a) (1990). The Maryland courts have concluded that
private actions under the CPA, like actions for fraud and deceit,
require proof of "actual `injury or loss.'" CitaraManis v. Hallowell,
328 Md. 142, 153, 613 A.2d 964, 969 (1992).
The district court correctly found that the Gunneys did not establish
a triable issue of fact as to whether they suffered any damages from
the alleged deceit. Because the Gunneys were aware of the size and
shape of the backyard easement at the time of settlement, they were
only misled as to the presence of a drainage system and manhole
egress in the easement. The appraisal report presented by the Gunneys
concludes that the value of the property is reduced 12.5% "for loss of
utility due to easements." J.A. 342. There is no indication in the
record, however, that the drainage system and manhole egress have
damaged the Gunneys to any extent greater than the existence of the
known easement. Summary judgment on these deceit and CPA claims
was appropriate as well.
The Gunneys also allege that NV Homes violated the CPA by mis-
leading and deceiving them with respect to the size of their family
room. They contend that the floor plan in a promotional brochure
showed a room six feet longer than the room in their house. By
accepting the terms of the contract, however, the Gunneys stated that
they were not relying on promotional materials for the details of their
house but on "the plans and specifications which have been reviewed
by the Buyer." J.A. 135. There is no dispute that the house was built
according to its plans and specifications. Because a jury could not
conclude that the Gunneys were misled or deceived by the brochure,
NV Homes was entitled to summary judgment.
The Gunneys' breach of contract claim alleges that NV Homes
failed to perform promised repairs. The Gunneys concede that the
sales agreement contained no contractual promise to repair but only
a warranty of workmanship. See Hartford Accident & Indemnity Co.
v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md. App. 217, 246,
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674 A.2d 106, 120 (1996) (holding that, while a"repair promise is a
contractual obligation . . . representations concerning the condition of
the premises are express warranties."), aff'd on other grounds, 346
Md. 122, 695 A.2d 153 (1997).
The Gunneys contend, instead, that NV Homes made separate, oral
promises to repair when they filled out their punch lists upon pre- and
post-settlement inspection. The Gunneys did not present this theory
of recovery in the district court but instead argued that NV Homes'
obligation to repair arose from the contractual requirement of con-
structing the home in a "workmanlike manner.""[I]ssues raised for
the first time on appeal generally will not be considered." Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993). Because the Gunneys
did not raise the oral contract theory of recovery before the district
court, this court will not consider it on appeal. The district court cor-
rectly granted summary judgment on the breach of contract claim.
Finally, the Gunneys allege a violation of the CPA with regard to
NV Homes' failure to make repairs to the house. The Gunneys also
did not make this argument in the district court, instead stating that
"[t]he issues involved in respect to repairs involve Count II for breach
of contract, and Count IV for breach of warranty." J.A. 124. We will
not consider this theory of recovery for the first time on appeal.
The district court properly held that the clause pertaining to con-
struction in a "workmanlike manner" gives rise to a claim for breach
of warranty. Hartford Accident & Indemnity, 109 Md. App. at 246,
674 A.2d at 120. Inasmuch as the Gunneys abandoned the count of
the complaint alleging breach of warranty, the district court properly
granted NV Homes summary judgment on the claim for repairs.
IV
We affirm both the district court's judgment and its denial of the
Gunneys' motion to alter, amend, or reconsider the judgment.
AFFIRMED
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