McGraw v. Loyola Ford, Inc.

⁵⁶⁵ HOLLANDER, Judge. James Henry McGraw, appellant, instituted suit in the Circuit Court for Baltimore City against Loyola Ford, Inc. (hereinafter, the “dealer” or “Loyola Ford”), appellee, and Chrysler Credit Corporation (“Chrysler Credit”). 1 The claims arose from appellant’s purchase in December 1994 of a 1994 Ford Thunderbird, and his subsequent trade of that vehicle, in May 1995, for a 1995 Ford Taurus SHO. In particular, appellant alleged claims for usury, in violation of Maryland’s Retail Installment Sales Act (hereinafter, the “RISA”), Md.Code (1975, 1990 Repl.Vol., 1994 Cum.Supp.), §§ 12-609(a), (g) of the Commercial Law Article (“C.L.”), intentional misrepresentation, and unfair and deceptive trade practices, in violation of Maryland’s Consumer Protection Act, Md.Code (1975, 1990 Repl.Vol., 1994 Cum.Supp.), C.L. § 13-301 et seq. (hereinafter, the “CPA” or the “Act”).

After the circuit court granted Loyola Ford’s motion for summary judgment, appellant timely noted his appeal. He presents several issues for our review, which we have reformulated: I. Did the circuit court err in granting summary judgment as to appellant’s claim of unfair and deceptive trade practices, in violation of the CPA?

II

Did the circuit court err in granting summary judgment as to appellant’s common law claim for intentional misrepresentation?

III

Did the circuit court err in granting summary judgment as to appellant’s usury claims under the RISA? We answer the first two questions in the negative. As to the third question, for the reasons set forth in Section 111(B), we shall, in part, vacate the entry of summary judgment as to Count II, and remand for further proceedings. See Md. Rule 8-604. ⁵⁶⁶ Factual Summary On December 27, 1994, appellant purchased a new 1994 Ford Thunderbird automobile from Loyola Ford.

On the same date, he entered into a retail installment contract, by which the vehicle was financed at a rate of 16.88% per annum over a period of five years. In the weeks following the purchase, McGraw experienced a variety of difficulties with the car, including a faulty brake rotor, a defective light bulb, a squeaky window, and shaking of the steering wheel when the car was driven at low speeds. Because appellant was “very unhappy” with the performance of the Thunderbird, he brought the vehicle back to Loyola Ford for repairs on several occasions. Appellant advised the dealer that “[he] was considering legal action under Maryland’s ‘lemon’ laws.” He did not pursue his “lemon law” claim, however.

Instead, appellant chose to replace the Thunderbird with a 1995 Taurus SHO. The dealer’s actions with respect to the Taurus are the focus of appellant’s appeal. On September 17, 1996, appellant filed a two-count complaint against Loyola Ford, arising from his purchase of the Taurus. In Count I, appellant alleged that Loyola Ford engaged in unfair and deceptive trade practices, in violation of C.L. § 13-301.

The claim was based on Loyola Ford’s alleged misrepresentation on the buyer’s order that the Taurus was “new,” and its assertion that the Taurus had “the most outstanding value ... in the dealership; every consideration in pricing and/or trade in allowance has been given to reduce the settlement price to its lowest”. Count II alleged that the interest rate charged with respect to the financing of the Taurus was usurious, in violation of C.L. § 12-609(a). Appellant sought damages of $24,288.68. On July 24, 1997, following the close of discovery on July 7, 1997, appellant amended his complaint to add Count III, which set forth a claim for intentional misrepresentation.

Thereafter, on August 25, 1997, appellee moved for summary judgment. On October 7, 1997, one month before the scheduled trial date, and shortly before the summary judgment hearing, ⁵⁶⁷ appellant filed a Second Amended Complaint, supplementing his usury claim. He alleged that Loyola Ford violated C.L. § 12-609(g) when it failed to disclose a “secret profit” that it realized when it assigned the retail installment contract to Chrysler Credit. 2 Some of the information obtained during discovery was presented to the court in support of appellee’s summary judgment motion. The discovery, which included a deposition of appellant and documents relevant to the transactions, is pertinent here.

At his deposition, appellant testified that, during one of his visits to Loyola Ford regarding the problems he experienced with the Thunderbird, he noticed the Taurus on the lot. Appellant decided to trade the Thunderbird for a different car, and expressed interest in the Taurus to Tony Smith, a Loyola Ford salesperson. According to appellant, Smith told him that Loyola Ford “had a good deal” on the Taurus. Smith also described the Taurus as a “top of the line car,” which appellant took to mean that the car was “loaded” with extra features.

The Taurus was equipped with several optional items, including a sunroof, compact disc player, leather seating, keyless entry, power seats, air conditioning, and paint and fabric protection. Appellant accompanied Smith on a test drive of the vehicle. When Smith drove the Taurus, appellant rode in the back seat, and he never looked to see how many miles were on the car. On May 25, 1995, appellant decided to purchase the 1995 Taurus.

Accordingly, he signed a “Buyer’s Order” form that indicated a “base price” for the vehicle of $28,866.00, and a total price of $34,615.00, including options, delivery charge, taxes, and title service. Additionally, the document reflected an “allowance for trade in” of the Thunderbird of $17,825.00, ⁵⁶⁸ less the same amount as the “balance owing” for that vehicle. The buyer’s order also indicated that McGraw would pay a $3,000.00 down-payment and receive a $1,500.00 “Ford Rebate.” After the down payment and the rebate, the document reflected a total balance due of $30,115.00. The May 25 buyer’s order also provided a box for the dealer to indicate whether the vehicle was “new,” “used,” or a “demo.” Loyola Ford checked the box denoting that the vehicle was “new.” The form also provided a space adjacent to the box on which to write the specific mileage of the vehicle.

Immediately under the word “mileage”, Loyola Ford wrote the following: “(6161K)”. In addition, the buyer’s order form contained a paragraph disclosing the dealer’s policy regarding the sale of demonstrator vehicles. It stated: A demonstrator is the most outstanding value that we sell in the dealership; Every consideration in pricing and/or trade allowance has been given to reduce the settlement price to its lowest. However, every demonstrator sold may have paint touch-up, mouldings dented, an upholstery tear, wheel covers chipped, or other conditions considered visible at the time of sale.

It is the policy of this dealership that no adjustments be made after the sale and after delivery, unless specifically stated on our sales contract. A squeak or touch up or mechanical adjustment will be made free of charge only within 10 working days of delivery date. Appellant testified at his deposition that he read the May 25 buyer’s order, including the preprinted portion of the form. Moreover, he conceded that Smith told him the Taurus was a demonstrator vehicle.

Further, appellant testified that he understood the phrase “demonstrator vehicle” to mean a car that “had been used” by employees of the dealership to “drive back and forth to home.” The following portion of appellant’s deposition testimony is relevant: APPELLEE’S COUNSEL: Before you signed the contract of sale on the Taurus, did anyone actually say to you that the Taurus was new? ⁵⁶⁹ APPELLANT: The’95? APPELLEE’S COUNSEL: Uh-huh. APPELLANT: No, nobody told me it was new. APPELLEE’S COUNSEL: In fact, they told you it was a demonstrator, correct?

APPELLANT: Yes. APPELLEE’S COUNSEL: Did you read this buyer’s order referring to the May 25, 1995 buyer’s order before signing it, Mr. McGraw? APPELLANT: Yes, I did. APPELLEE’S COUNSEL: Did you read everything on it?

APPELLANT: Yes. Almost everything. APPELLEE’S COUNSEL: Did you read the preprinted information? Do you understand what I mean?

APPELLANT: No, I don’t. APPELLEE’S COUNSEL: There is a lot of preprinted text on the buyer’s order, not something that the salesperson would have inserted in, but that would be on the document before writing it up for a particular customer. Do you understand what I’m asking now? APPELLANT: Yes.

APPELLEE’S COUNSEL: And at the time that you signed this document on May 25 th, 1995, you understood that the car had 6,161 miles on it; is that right? APPELLANT: At the time I purchased it? APPELLEE’S COUNSEL: At the time you signed this document, the buyer’s order, on May 25th, 1995? APPELLANT: Yes.

The next day, May 26, 1995, appellant entered into a retail installment sales contract with Loyola Ford for the financing of the Taurus, by which he promised to pay $81,335.00 over 60 months, with interest charged at the rate of 16.75% per annum. Thus, the total obligation under the contract, including the finance charge, was $46,797.60. Loyola Ford arranged ⁵⁷⁰ financing for the purchase through Chrysler Credit. A settlement sheet provided to appellant from Loyola Ford during discovery indicated that Chrysler’s “APR buy rate” was 9.85%, although the retail installment contract provided that appellant was charged the rate of 16.75%.

Apparently, appellant failed to pay the $8,000.00 down-payment reflected in the May 25 buyer’s order. Consequently, on May 29, 1995, appellant signed a second buyer’s order form, but not another financing agreement. Unlike the May 25 buyer’s order form, the box labeled “demo” was checked on the May 29 buyer’s order form, rather than the box labeling the vehicle as “new.” The notation “(6161K)” appeared next to the “demo” box to indicate the car’s mileage. In addition, a “face up” sheet signed by appellant on May 29 indicated that the Taurus was a “demo.” The second buyer’s order form contained a slightly different price calculation than the form prepared on May 25.

The new form reflected a net trade-in allowance of $1000 for the 1994 Thunderbird. That amount resulted from the dealer’s gross allowance for that vehicle of $18,825.00, minus the outstanding loan balance of $17,825.00. Although the space on the form labelled “Base Price” was left blank, the document reflected a total purchase price, including options, delivery charge, and taxes, of $33,615.00. After crediting appellant with the $1,500.00 “Ford Rebate” and the $1,000 net trade-in allowance, the document showed a balance due of $31,115. 3 The Thunderbird, which the dealer accepted for the trade, had lost significant value between December 1994 and May 1995.

Loyola Ford estimated the “cash value” of the Thun ⁵⁷¹ derbird at $12,500.00, but gave appellant a gross trade-in allowance of $18,825.00. The dealer accounted for the difference between the “cash value” and the gross trade-in allowance by adjusting the base price of the vehicle; the dealer increased the base price of the vehicle by $6,325.00, representing the amount of the “over-allowance” for the trade. Both the May 25 and May 29 buyer’s order forms contained a “Purchase Price Clarification,” which advised appellant of a possible adjustment of the base price of the vehicle in connection with a vehicle trade-in. In fact, the buyer’s forms include two such statements, with almost identical language: First, the forms indicate that “the actual sales price may be higher than the advertised price due to an adjustment for trade in allowance or rebate.” Second, the forms state that “the actual sales price may be higher due to an adjustment for trade in allowance or rebate.” McGraw’s signature appears under each statement on both forms.

During his deposition, appellee’s counsel questioned McGraw about the trade-in arrangement. McGraw acknowledged that he thought the trade-in was worth less than the dealer “gave” him. The following colloquy is relevant: APPELLEE’S COUNSEL: You didn’t know the value of the Thunderbird at the time you traded it in, did you? APPELLANT: Yes.

APPELLEE’S COUNSEL: You did know? APPELLANT: Yes, I did. APPELLEE’S COUNSEL: What did you think the value was? APPELLANT: What did I think the value was?

APPELLEE’S COUNSEL: Of the Thunderbird when you traded it in? APPELLANT: I think it should have been less than what they charged me, what they gave me for it. APPELLEE’S COUNSEL: You thought that it was worth less than what they gave you for it? APPELLANT: Yes. ⁵⁷² APPELLEE’S COUNSEL: Why do you think they gave you more than what you thought it was worth?

APPELLANT: I don’t know why. APPELLEE’S COUNSEL: Did you understand that the high value of the trade-in raised the price of the vehicle? APPELLANT: Yes. On October 27, 1997, the court held a hearing on appellee’s motion for summary judgment, and granted Loyola Ford’s motion as to all counts.

Regarding the dealer’s alleged failure to disclose the profit derived from the assignment of the retail installment sales contract, the court determined that the RISA does not provide a private civil remedy for a violation of C.L. § 12-609(g). Moreover, the court agreed with appellee that the maximum allowable interest rate for the financing transaction is governed by C.L. § 12 — 609(f), which permits an interest rate of up to 24%. Finally, the court rejected appellant’s contention that Loyola Ford’s representations on the buyer’s order form were actionable under the CPA or at common law. After the court denied appellant’s motion to alter or amend, McGraw timely noted this appeal.

We will include additional facts in our discussion. Standard of Review Maryland Rule 2-501 provides that a trial court may grant a motion for summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Southland Corp. v. Griffith, 382 Md. 704, 712 , 633 A.2d 84 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Tel. Co., 97 Md.App. 557, 580-81 , 631 A.2d 485 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994); Seaboard Sur.

Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992). Summary judgment is not foreclosed if a dispute exists as to a fact that is not material to the outcome of the case. Scroggins v. Dahne, 335 Md. 688, 690-91 , 645 A.2d 1160 (1994). A material fact is one that will “somehow affect the ⁵⁷³ outcome of the case.” King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985).

In resolving the motion, the court must construe the facts, and all inferences reasonably drawn from those facts, in the light most favorable to the non-moving party. Dobbins v. Washington Suburban Sanitary Comm., 338 Md. 341, 345 , 658 A.2d 675 (1995); King, 303 Md. at 110-11 , 492 A.2d 608 ; Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 387 , 693 A.2d 370 (1997). A party’s mere formal denials of conclusory allegations are not sufficient to prevent summary judgment, however. Tennant, 115 Md. App. at 386-87 , 693 A.2d 370 ; Seaboard Sur., 91 Md.App. at 243 , 603 A.2d 1357 .

In the absence of a genuine dispute as to material fact, the appellate court must determine whether the trial court made the correct legal decision. Beatty, 330 Md. at 737 , 625 A.2d 1005 ; see also Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990); King, 303 Md. at 111 , 492 A.2d 608 . Ordinarily, we will review a trial court’s decision granting summary judgment “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see Hoffman v. United Iron and Metal Co., Inc., 108 Md.App. 117, 132-33 , 671 A.2d 55 (1996). Discussion 4 I. Unfair and Deceptive Trade Practices Appellant contends that the trial court erred in granting summary judgment as to Count I, alleging unfair and deceptive trade practices in violation of the CPA.

Specifically, appellant complains that the buyer’s order of May 25, 1995 falsely represented the Taurus as “new,” although it actually had 6,161 miles on it, in violation of C.L. § 13-301(1), (2), (3), and (9). McGraw also contends that the dealer violated C.L. ⁵⁷⁴ § 13-301(1), (2), (3), (6), 5 and (9) by including in the buyer’s order a false representation that “[a] demonstrator is the most outstanding value that we sell in the dealership; Every consideration in pricing and/or trade allowance has been given to reduce the settlement price to its lowest.” 6 Further, appellant argues to us that the dealer’s “most significant” misrepresentation was its failure to inform him that Loyola Ford received $4,780.00 when it assigned appellant’s retail installment sales contract to Chrysler Credit. In his Second Amended Complaint, however, appellant asserted the “secret profit” argument only in connection with the usury claim in Count II; the claim was not asserted as part of the deceptive trade practices claim under the CPA or as a common law intentional misrepresentation. Thus, when the trial ⁵⁷⁵ court considered the summary judgment motion, the “secret profit” issue was relevant only to appellant’s claim for usury.

Therefore, we will only address appellant’s contention in the context of that claim. See Md. Rule 8-131(a). Appellee asserts that summary judgment was appropriate because, as a matter of law, appellant was required to prove “actual deception resulting in actual injury,” and appellant was not “actually deceived.” Appellee points out that appellant admitted under oath that he was told, before signing the first buyer’s order, that the Taurus was a demonstrator vehicle, and that it had been driven 6,100 miles. Moreover, both buyer’s order forms expressly noted the vehicle’s mileage at “6161K.” Further, appellee contends that Loyola Ford’s statements about the value of a demonstrator vehicle, and the “consideration in pricing,” were merely “general commendations” that are not actionable under Maryland law.

The Legislature enacted the CPA in 1973 because of “mounting concern over the increase of deceptive practices in connection with sales of merchandise, real property, and services and the extension of credit.” C.L. § 13-102(a). See Hartford Acc. and Indem. Co. v. Scarlett Harbor Associates, Ltd., 109 Md.App. 217, 241 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997). The General Assembly recognized that “existing laws [protecting consumers were] inadequate, poorly coordinated and not widely known or adequately enforced.” C.L. § 13-102(a)(2).

Accordingly, the Legislature determined to “take strong protective and preventive steps to investigate unlawful consumer practices, to assist the public in obtaining relief from these practices, and to prevent these practices from occurring in Maryland.” C.L. § 13 — 102(b)(3). To effectuate the Act’s purpose of “set[ting] certain minimum statewide standards for the protection of consumers across the State,” C.L. § 13-102(b)(l), it is liberally “construed and applied....” C.L. § 13-105. The Division of Consumer Protection (the “Division”) is authorized to enforce the CPA. C.L. § 13-201; see C.L. § 13-401 through C.L. § 13-406.

The Act also subjects violators to ⁵⁷⁶ criminal prosecution. C.L. § 13-411. In addition, a person aggrieved by a violation of the CPA may initiate a private cause of action for damages. C.L. § 13-408 provides, in pertinent part: (a) Actions authorized. — In addition to any action by the Division or Attorney General authorized by this title and any other action otherwise authorized by law, any person may bring an action to recover for injury or loss sustained by him as the result of a practice prohibited by this title.

(Emphasis added). Maryland cases interpreting C.L. § 13-408(a) have made it clear that there is a “bright line distinction” between the public enforcement provisions of the CPA and the private cause of action described in C.L. § 13-408. In an action brought by a private party, the claimant may only recover damages for actual injury or loss. In CitaraManis v. Hallo-well, 328 Md. 142 , 613 A.2d 964 (1992), the Court of Appeals explained: In a public enforcement proceeding ‘[a]ny practice prohibited by this title is a violation ... whether or not any consumer in fact has been misled, deceived, or damaged as a result of that practice.’ § 13-302.

In contrast, a private enforcement proceeding pursuant to § 13-408(a) expressly only permits a consumer ‘to recover for injury or loss sustained by him as the result of a practice prohibited by this title.’ § 13-408(a). Section 13-408(a), therefore, requires an aggrieved consumer to establish the nature of the actual injury or loss that he or she has allegedly sustained as a result of the prohibited practice. Id. at 152, 613 A.2d 964 ; see also Morris v. Osmose Wood Preserving, 340 Md. 519 , 538 n. 10, 667 A.2d 624 (1995); Golt v. Phillips, 308 Md. 1, 12 , 517 A.2d 328 (1986)(stating that, “in determining the damages due the consumer, we must look only to his actual loss or injury caused by the unfair or deceptive trade practices”). We focus here on § 13-301 of the CPA.

It provides, in pertinent part: ⁵⁷⁷ Unfair or deceptive trade practices include any: (1) False, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading customers; (2) Representation that: (iii) Deteriorated, altered, reconditioned, reclaimed, or secondhand consumer goods are original or new; or (3) Failure to state a material fact if the failure deceives or tends to deceive; (6) False or misleading representation of fact which concerns: (i) The reason for or the existence or amount of a price reduction; (9) Deception, fraud, false premise, misrepresentation, or knowing concealment, suppression, or omission of any material fact with the intent that a consumer rely on the same in connection with: (i) The promotion or sale of any consumer goods, consumer realty, or consumer service.... A misrepresentation falls within the scope of C.L. § 13-301(1) if it is “false” or “misleading” and it has “the capacity, tendency, or effect of deceiving or misleading” consumers. See Hartford, 109 Md.App. at 217 , 674 A.2d 106 . C.L. § 13-301(2)(iii) prohibits a representation that “[d]eteriorated, altered, reconditioned, reclaimed, or secondhand consumer goods are original or new.” C.L. § 13-301(3) proscribes the “[f]ailure to state a material fact if the failure deceives or tends to deceive.” C.L. § 13-301(9) makes it illegal to promote the sale of a consumer good using “[deception, fraud, false pretense, misrepresentation, or knowing concealment, ⁵⁷⁸ suppression, or omission of any material fact with the intent that a consumer rely on the same.... ” With respect to the fact that the Taurus was a demonstrator vehicle, it is abundantly clear that appellant was neither deceived nor misled, notwithstanding the dealer’s indication on the first buyer’s order form that the automobile was new.

Consumer Protection Division v. Luskin’s, Inc., 120 Md. App. 1 , 706 A.2d 102 , cert. granted, 350 Md. 280 , 711 A.2d 871 (1998), is helpful in analyzing C.L. § 13-301. In that case, we reviewed the meaning of an “unfair or deceptive trade practice” under C.L. §§ 13-301(1), (3), and (9). The circuit court had reversed the Division’s determination that Luskin’s violated the CPA when it advertised “Free Airfare For Two” to various vacation destinations for customers who purchased items from Luskin’s. Id. at 6, 706 A.2d 102 .

Before this Court, Luskin’s argued that the Division should have applied the test currently used by the Federal Trade Commission (“FTC”) in evaluating the meaning of “unfair or deceptive trade practices,” because C.L. § 13-105 instructs that “due consideration and weight [must] be given to the interpretations of § 5(a)(1) of the Federal Trade Commission Act by the Federal Trade Commission and the federal courts.” The FTC has traditionally evaluated allegedly deceptive trade practices using a “total impression” test, in which a representation is “judged by viewing it as a whole, without emphasizing isolated words or phrases apart from their context.” Id. at 27, 706 A.2d 102 (citations omitted). Prior to 1983, the FTC made this determination from the point of view of an ordinary, unsophisticated consumer. Id. In a policy statement delivered to Congress in 1983, the FTC unveiled its intention to evaluate the deceptiveness of trade practices from the point of view of a reasonable consumer.

The effect of the change was to make it more difficult to prove a “deceptive” trade practice, because the new standard “require[d] not only a representation or omission that is likely to mislead, but also that: (1) the practice is likely to mislead the consumer who is acting reasonably in the circumstances; and (2) the representation or omission is material, that is, the ⁵⁷⁹ consumer is likely to have chosen differently but for the deception.” Id. at 28 , 706 A.2d 102 (emphasis in original). We concluded that Maryland’s standard for evaluating allegedly deceptive trade practices under C.L. § 13-301 differed from the FTC approach, because a line of Maryland cases decided since 1983 was “aligned more closely with federal law on deception as it existed prior to 1983.” Id. at 29, 706 A.2d 102 . The Maryland cases did not employ the “reasonable consumer” standard and the “but for” test. Rather, the cases utilized the more generous “ordinary consumer” test.

Id. at 29-30 , 706 A.2d 102 ; see Golt, 308 Md. at 10 , 517 A.2d 328 (stating “An omission is considered material if a significant number of unsophisticated consumers would attach importance to the information in determining a choice of action.”); Legg v. Castruccio, 100 Md.App. 748 , 642 A.2d 906 (1994); State v. Cottman Transmissions Sys. Inc., 86 Md.App. 714 , 587 A.2d 1190 , cert. denied, 324 Md. 121 , 596 A.2d 627 (1991). Thus, the Luskin’s Court upheld the determination of the Division, which had applied a “total impression” analysis from the point of view of an ordinary consumer. Id. at 31-35, 706 A.2d 102 .

We turn to evaluate whether, in the light most favorable to appellant, the dealer was entitled to summary judgment as to appellant’s unfair and deceptive trade practices claim. A. The Dealer’s Representation that the Taurus Was “New” Based on the undisputed facts, and even applying the stringent standard established in Luskin’s, we are amply satisfied that the act of checking the “new” box on the May 25 buyer’s order form had absolutely no “capacity, tendency, or effect of deceiving or misleading” appellant. C.L. § 13-301(1). To be sure, the vehicle was not brand new.

See Md.Code (1977, 1998 Repl.Vol.), § 11-138 of the Transportation Article (“Trans.”) (defining a “new vehicle” as one “that has never been used to destroy its newness or to convert it into or make it a used or secondhand vehicle, as these terms are commonly used or understood in trade or business.)”; see also Wheaton Dodge City, Inc. v. Baltes, 55 Md.App. 129, 132 , 461 A.2d 38 ⁵⁸⁰ (1983)(observing that “ ‘new 1 , like ‘chaste’, is not a matter of degree, and once lost may only be referred to thereafter in the comparative sense, never again as an absolute”). Nevertheless, the dealer’s description of the Taurus as “new” cannot be viewed in a vacuum. It is uncontroverted that, at the time of the transaction, appellant was expressly informed that the vehicle had been used as a “demo.” Indeed, during his deposition, appellant admitted that Loyola Ford told him prior to signing the first buyer’s order that it was a demonstrator vehicle. McGraw also knew that the car had been driven 6,161 miles, and the dealer noted the exact mileage on the same form that erroneously described the vehicle as “new.” In addition, the first buyer’s order form was replaced with a second form a few days later, before the transaction was consummated.

On the second form, the dealer correctly described the vehicle as a demo. Because appellee made a timely disclosure that the vehicle was a demonstrator, and informed appellant of the actual mileage on both buyer’s order forms, the act of checking the “new” box on the first form certainly had “no capacity, tendency, or effect of deceiving or misleading” appellant. The dealer’s disclosures simply do not support an inference that Loyola Ford “intended that [appellant] rely” on the description of the vehicle as “new”, as a way of convincing him that the car was new, because both parties knew that it was not. Stated otherwise, whatever falsity attended appellee’s act of checking the box marked “new” on the first buyer’s order form, it did not vitiate the dealer’s affirmative act of timely disclosing that the vehicle was a demo with over 6000 miles on it.

Accordingly, we reject appellant’s argument that Loyola Ford violated C.L. § 13-301 by checking the “new” box on the buyer’s order form. Appellant’s contention flies in the face of logic and the undisputed facts. Indeed, “ ‘viewing [the representation] as a whole, without emphasizing isolated words or phrases apart from their context,’ ” Luskins, 120 ⁵⁸¹ Md.App. at 27, 706 A.2d 102 (quoting American Home Prods. Corp. v. F.T.C., 695 F.2d at 681, 687 (3d Cir.1982)), the description of the vehicle as new, could not have misled appellant.

We also consider appellant’s complaint concerning the dealer’s alleged misrepresentations about the favorable pricing of the demo as significant in defeating his claim here. McGraw posited factual assertions as to the pricing of the demo that are completely at odds with the claim concerning the description of the vehicle as “new.” On the one hand, McGraw contends that he was misled when the dealer described the vehicle as “new,” implying that he did not know the vehicle was a demo. Yet he also asserts that the dealer’s representations regarding the pricing of the demo were actionable. At least implicitly, then, McGraw has acknowledged that he was aware the vehicle was a demo, or else the contention regarding pricing is meaningless.

The factual contradiction undermines appellant’s claim that he was deceived by the dealer’s representation that the vehicle was “new.” Moreover, appellant’s deposition testimony makes it difficult to perceive how the representation that the vehicle was new could have caused appellant any “injury or loss,” as required by C.L. § 13-408(a). As discussed earlier, a failure to “establish the nature of the actual injury or loss that [a consumer] has allegedly sustained as a result of the prohibited practice” is fatal to a private cause of action under the Act. CitaraManis, 328 Md. at 152 , 613 A.2d 964 ; see Hall v. Lovell Regency Homes Ltd. Partnership, 121 Md.App. 1, 27 , 708 A.2d 344 , cert. denied, 350 Md. 487 , 713 A.2d 980 (1998) (holding that homeowners could not recover under the CPA for alleged defects in construction when they could not prove “actual injury or loss by any legally accepted measure of damages”). B. Representations Concerning the Value of Demonstrator Vehicles As we noted, appellant complains that the dealer violated the CPA because it asserted that the demonstrator ⁵⁸² vehicle was “the most outstanding value” on the lot, and that “[e]very consideration in pricing and/or trade in allowance has been given to reduce the settlement price to its lowest.” This claim, too, must fail, because the statements are not actionable representations about the Taurus.

We agree with the trial court’s conclusion that these statements amounted to “indefinite generality.” Indeed, Loyola’s representations were obvious examples of the kind of “puffing” and “sales talk” language that many people have come to expect from ear dealers. As we see it, this is the sort of speech that is “offered and understood as an expression of the seller’s opinion only, which is to be discounted as such by the buyer, and on which no reasonable [person] would rely.” W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 109 at 757 (5th ed.1984). Prosser and Keeton explain: There can be no recovery [for deceit], for example, for a statement that the plaintiff is being offered an exceptionally good bargain, that he would be foolish not to take advantage of the offer ... or that a building will withstand earthquakes. Id. at 755-56.

(citations omitted). Travel Committee, Inc. v. Pan American World Airways, Inc., 91 Md.App. 123 , 603 A.2d 1301 , cert. denied, 327 Md. 525 , 610 A.2d 797 (1992), is noteworthy. In that case, a travel agency claimed that Pan Am owed it a fiduciary duty based, in part, on language in a marketing agreement between the parties. Id. at 179, 603 A.2d 1301 .

The agreement provided that the airlines would “utilize its best efforts to assist [the travel agency] in the marketing and sale of [the airline’s] services.” Id. at 179-80 , 603 A.2d 1301 . The travel agency also pointed to statements by an airline executive that the marketing agreement imposed a “fiduciary obligation” on Pam Am and that “Pan Am would treat TCI as [its] ‘most favored nation.’ ” Id. at 180 , 603 A.2d 1301 . We concluded that the executive’s bravado was “puffery of no legal consequence.” Id. at 180 , 603 A.2d 1301 . ⁵⁸³ The case of Wolin v. Zenith Homes, Inc., 219 Md. 242 , 146 A.2d 197 , cert. denied, 361 U.S. 831 , 80 S.Ct. 81 , 4 L.Ed.2d 73 (1959), is also instructive. There, the Court noted that claims by a home builder that the home would be built “according to a plan and specifications in structurally sound condition and free of substantial defects” were insufficiently misleading to allow the buyer to rescind the contract.

Id. at 246, 146 A.2d 197 . The Court stated that “representations as to the soundness and value of the house are normally considered in law to be ‘indefinite generalities of exaggeration’ which could deceive no rational person and therefore do not amount to ‘misrepresentation.’ ” Id. at 247 , 146 A.2d 197 . We are also guided by Milkton v. French, 159 Md. 126 , 150 A. 28 (1930). In that case, a real estate agent led Milkton and his fiancé on a tour of a newly built bungalow in Baltimore City.

When the buyers asked the agent “ ‘how the construction was, whether, it was substantial, any leaks in the basement, or anything like that and how the roof would be,’ ” the agent said: “ ‘[PJerfect, cannot be any better, my boss works fine, does the best work can be done.’ ” Id. at 129 , 150 A. 28 . The agent also told the couple that the house was “ ‘perfectly well constructed.’ ” French, the builder of the house, later told Milkton that he was “ ‘perfectly safe on the concrete, roof and everything else of the construction because’ French ‘had built it himself.’ ” Id. at 130 , 150 A. 28 . After Milkton purchased the house, he sought to rescind the contract on the ground that the statements were fraudulent. Id. at 129 , 150 A. 28 .

The Court of Appeals concluded that none of the alleged misrepresentations was actionable. It explained: [TJhe use of the term “perfectly safe” in connection with every detail of construction was so extravagant in scope and measure, and so indefinite and elusive in meaning, that the statement would fall within the category of a puff instead of a representation, and the plaintiff, who was an architect of experience, could not have been mislead or influenced .... The exaggeration of the statement is so plain that it can not be supposed to have deceived any rational person. Everybody knows a new house, as an old one, is ⁵⁸⁴ never perfect in construction, but has the anticipated defects inherent to its period----It is difficult to find these words, when reasonably considered, as capable of being understood by a [person] of average intelligence as a clear and definite representation of any particular fact....

They fail, therefore, to mount to a misrepresentation, and are but the indefinite generalities of exaggeration. Id. at 182-33 , 150 A. 28 (citations omitted). The statements at issue were contained in a pre-printed form, suggesting that the dealer was talking about demonstrator vehicles in general, not the Taurus in particular. In our view, the pre-printed language on the buyer’s order was, at best, “puffery of no legal consequence.” Travel Committee, Inc., 91 Md.App. at 180, 603 A.2d 1301 .

Therefore, we perceive no error in the trial court’s decision granting summary judgment in favor of appellee as to Count I. II. Intentional Misrepresentation We next address appellant’s contention that Loyola Ford’s representations and omissions were actionable under a theory of common law fraud or intentional misrepresentation. Our discussion is informed by our analysis above, because appellant’s common law claim of fraud is based on precisely the same facts that he contends constituted unfair and deceptive trade practices under the CPA. In Nails v. S & R, 334 Md. 398 , 639 A.2d 660 (1994), the Court of Appeals summarized the elements of the tort of fraud or deceit.

In order to prevail, the plaintiff must prove: 1) that the defendant made a false representation to the plaintiff, 2) that its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth, 3) that the misrepresentation was made for the purpose of defrauding the plaintiff, ⁵⁸⁵ 4) that the plaintiff relied on the misrepresentation and had the right to rely on it, and 5) that the plaintiff suffered compensable injury resulting from the misrepresentation. Id. at 415 , 639 A.2d 660 ; see also VF Corp. v. Wrexham Aviation, 350 Md. 693, 703 , 715 A.2d 188 (1998); Le Marc’s Management Corp. v. Valentin, 349 Md. 645, 653 , 709 A.2d 1222 (1998); Ellerin v. Fairfax Sav., F.S.B., 337 Md. 216, 229-30 , 652 A.2d 1117 (1995); Gross v. Sussex, Inc., 332 Md. 247, 257 , 630 A.2d 1156 (1993); Parker v. Columbia Bank, 91 Md.App. 346, 359 , 604 A.2d 521 , cert. denied, 327 Md. 524 , 610 A.2d 796 (1992); Boyd v. Hickman, 114 Md.App. 108, 135 , 689 A.2d 106 , cert. denied, 346 Md. 26 , 694 A.2d 949 (1997). Moreover, the fraud claim must be proved by clear and convincing evidence. Wrexham Aviation, supra, 350 Md. at 704 , 715 A.2d 188 ; Everett v. Baltimore Gas & Elec., 307 Md. 286, 300 , 513 A.2d 882 (1986); Krouse v. Krouse, 94 Md.App. 369, 378-79 , 617 A.2d 1098 (1993); Weisman v. Connors, 76 Md.App. 488, 503-504 , 547 A.2d 636 , cert. denied, 314 Md. 497 , 551 A.2d 868 (1989).

In reviewing the trial court’s decision, we are governed by the principle that an “ ‘ “appellate court will not ordinarily undertake to sustain the [summary] judgment by ruling on another ground, not ruled upon by the trial court, if the alternative ground is one as to which the trial court had discretion to deny summary judgment.” ’ ” Boyd v. Hickman, supra, 114 Md.App. at 136 , 689 A.2d 106 (quoting Three Garden Village Ltd. Partnership v. USF & G, 318 Md. 98, 107-108 , 567 A.2d 85 (1989)(quoting Geisz v. Greater Baltimore Medical Center, 313 Md. 301 , 314 n. 5, 545 A.2d 658 (1988))). In this case, however, there is no written opinion explaining the court’s ruling, and the transcript of the hearing does not precisely elucidate the basis for the court’s ruling as to the fraud count. Based on the court’s comments, however, it appears that the court granted summary judgment as to fraud because appellant was not misled by Loyola Ford’s representations. The following colloquy is relevant: ⁵⁸⁶ THE COURT: [L]et’s assume it’s a fact that there was the word new used, which of your counts is made viable by that fact and what relief does that count seek for, by reason of that fact?

APPELLANT’S COUNSEL: Well, I think that’s part of the misrepresentation, both counts one and