alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-1158

BARBARA J. HALE, Plaintiff - Appellant,

versus

NATIONAL CENTER FOR STATE COURTS; ROGER WARREN, Individually and in his official capacity; LARRY L. SIPES, Individually and in his official capacity; LINDA R. CAVINESS, Individually and in her official capacity;CARL O. BRADFORD, Individually and in his official capacity; DAVID A. BROCK, Individually and in his official capacity; LYLE REID, Individually and in his official capacity; MARION GUESS, Individually and in his official capacity; WILLIAM G. KELLY, Individually and in his official capacity; WILLIAM G. PAUL, Individually and in his official capacity; THOMAS R. PHILLIPS, Individually and in hisofficial capacity; ARTHUR A. MCGIVERIN, Individually and in his official capacity; WILLIAM COUSINS, Individually and in his official capacity; NANCY M. SOBOLEVITCH, Individually and in her official capacity; ROBERT WESSELS, Individually and in his official capacity; AUBREY FORD, Individually and in his official capacity; WILLIAM H. GATES, Individually andin his official capacity; THELMA W. CUMMINGSMOORE, Individually and in her official capacity; CHRISTINE DURHAM, Individually and in herofficial capacity; KEVIN S. BURKE, Individually and in his official capacity; HUGH M. COLLINS, Individually and in his official capacity; THOMAS J. MOYER, Individually and inhis official capacity; K. KENT BATTY, Individually and in his official capacity; MARY C. MCQUEEN, Individually and in her official2 capacity; SHEILA GONZALEZ, Individually and inher official capacity; GARY M. SULLIVAN; Individually and in his official capacity; DELOITTE & TOUCHE, LLP; EVA S. TASHJIAN-BROWN; MCGUIRE, WOODS, BATTLE & BOOTHE, Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-97-802-3)
Submitted: August 13, 1998 Decided: August 31, 1998
Before WIDENER and WILKINS, Circuit Judges, and HALL, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Barbara J. Hale, Appellant Pro Se. Vernon M. Geddy, Jr., GEDDY, HARRIS & GEDDY, Williamsburg, Virginia; William Hartman Sooy, Richmond, Virginia; Alexander Hoke Slaughter, Robert Michael Tyler, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).3 PER CURIAM:Appellant appeals the district court’s order denying Appellant’s motion to file a second amended complaint and granting Appellees’ motion to dismiss Appellant’s 42 U.S.C.A. § 1983 (West1994 & Supp. 1998) action. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court and deny Appellant’s motion to strike Appellee’s informal brief. Hale v. National Center for State Courts , No. CA-97-802-3 (E.D. Va. Jan. 30, 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED
<PAGE>   1

                                                                 EXHIBIT 10.25

                       AMERICAN RESIDENTIAL SERVICES, INC.
                     AMENDMENT NO. 2 TO 1996 INCENTIVE PLAN


The following definitions are added to paragraph 3 of the 1996 Incentive Plan:

         "Parent Corporation" means the direct or indirect owner of 100% of the
         capital stock of a corporation.

         "Substitute Awards" means, in the event of a corporate merger,
         consolidation, acquisition of property or stock, separation,
         reorganization or liquidation, the grant of a Substitute Option or
         Substitute SAR.

         "Substitute Option" means a right to purchase a specified number of
         shares of capital stock of a Transaction Party at a specified price.

         "Substitute SAR" means a right to receive payment, in cash or capital
         stock of a Transaction Party equal to the excess of the fair market
         value or other specified valuation of a specified number of shares of
         capital stock of such Transaction Party on the date the right is
         exercised over a specified strike price, in each case, as determined by
         the Committee.

         "Transaction Party" means a corporation which is a party to a corporate
         merger, consolidation, acquisition of property or stock, separation,
         reorganization or liquidation with the Company, or such corporation's
         Parent Corporation or Subsidiary.

The last sentence of paragraph 15(b) of the 1996 Incentive Plan is hereby
amended in its entirety as follows:

         In the event of a corporate merger, consolidation, acquisition of
         property or stock, separation, reorganization or liquidation, the Board
         will be authorized to issue or assume Awards by means of substitution
         of new Awards or Substitute Awards, as appropriate, for previously
         issued Awards or to assume previously issued Awards as part of such
         adjustment.
<TABLE> <S> <C>


<ARTICLE> 5
       
<S>                                         <C>
<PERIOD-TYPE>                                12-MOS
<FISCAL-YEAR-END>                          JUN-30-1997
<PERIOD-END>                               JUN-30-1997
<CASH>                                       4,936,600
<SECURITIES>                                         0
<RECEIVABLES>                                   20,000
<ALLOWANCES>                                         0
<INVENTORY>                                          0
<CURRENT-ASSETS>                             5,009,398
<PP&E>                                         148,182
<DEPRECIATION>                               (113,241)
<TOTAL-ASSETS>                               5,236,726
<CURRENT-LIABILITIES>                          151,175
<BONDS>                                              0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                         4,263
<OTHER-SE>                                   5,081,288
<TOTAL-LIABILITY-AND-EQUITY>                 5,236,726
<SALES>                                              0
<TOTAL-REVENUES>                                50,000
<CGS>                                                0
<TOTAL-COSTS>                                1,182,706
<OTHER-EXPENSES>                                     0
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                                   0
<INCOME-PRETAX>                            (1,035,003)
<INCOME-TAX>                                         0
<INCOME-CONTINUING>                        (1,035,003)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                               (1,035,003)
<EPS-PRIMARY>                                   (0.26)
<EPS-DILUTED>                                        0
        

</TABLE>
EXHIBIT 11
KSW, INC.

STATEMENT REGARDING COMPUTATION
OF NET EARNINGS (LOSS) PER SHARE

NINE MONTHS

ENDED 9/30/98 NINE MONTHS
-------------------------

ENDED 9/30/97 THREE MONTHS
--------------------------

ENDED 9/30/98 THREE MONTHS
--------------------------

ENDED 9/30/97
-------------
Net earnings/(loss)


$    (639,000)
--------------
$     577,000.
--------------
$      17,000
-------------
$      63,000 EARNINGS/(LOSS) PER SHARE - PRIMARY
-------------------------------------------------
Weighted average shares outstanding     
  during the period


                                                    
      5,461,792     
===============

      5,542,061
===============

      5,461,792
================ 
                                          
      5,542,061 Earnings/(loss) per common share - Primary 
===========================================================


$           (.12)
=================
$            .10
================
$              0
================
$            .01 EARNINGS/(LOSS) PER SHARE - DILUTED
====================================================
Weighted average shares outstanding
  during the period



     5,461,792    

     5,542,061
              =
     5,461,792    

     5,542,061 Common and Common Stock equivalent shares using the 
               treasury stock method          


     238,667
------------
     348,571
------------
      93,858
------------
     277,273   Total shares outstanding for purposes of 
------------   calculating fully diluted earnings/(loss)      


     5,700,459    
==============
     5,890,632
==============
     5,555,650
==============
     5,819,334  Earnings/(Loss) per common and common Equivalent share - Diluted
==============


$         (.11
==============
$          .10
==============
$            0
==============
$          .01
==============
Exhibit 32.2

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906

OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Charles & Colvard, Ltd. (the Company) on Form 10-K for the period ending December 31, 2005 as filed with the Securities and Exchange Commission on the date hereof (the
Report), I, James R. Braun, Vice President of Finance and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:



| | (1) | The Report fully complies with the requirements of section 13(a) or 15 (d) of the Securities Exchange Act of 1934; and
| | --- | ----------------------------------------------------------------------------------------------------------------------



| | (2) | The information contained in the report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| | --- | ----------------------------------------------------------------------------------------------------------------------------------------------------



|                                                     
|-----------------------------------------------------
|/s/ James R. Braun                                   
|James R. Braun                                       
|Vice President of Finance and Chief Financial Officer
|March 9, 2006                                        

A signed original of this written statement required by Section 906 has been provided to Charles &
Colvard, Ltd. and will be retained by Charles & Colvard, Ltd. and furnished to the Securities and Exchange Commission or its staff upon request.
<PAGE>   1

                                                                    EXHIBIT 21.1


                     SCHEDULE OF SUBSIDIARIES OF REGISTRANT

1.   Dynamex Operations East Inc., a Delaware corporation

          10,000 authorized shares of common stock, $0.01 par value, 1,000 of
          which are issued and outstanding and registered in the name of Dynamex
          Inc.


2.   Dynamex Operations West Inc., a Delaware corporation

          10,000 authorized shares of common stock, $0.01 par value, 1,000 of
          which are issued and outstanding and registered in the name of Dynamex
          Inc.


3.   Dynamex Canada Inc., a Canadian federal corporation (formerly Parcelway 
     Courier Systems Canada Ltd., an Alberta corporation)

          Unlimited number of authorized common shares, one of which is issued
          and outstanding in the name of Dynamex Inc.; Unlimited number of
          authorized preference shares, 3,750,000 of which are issued and
          outstanding in the name of Dynamex Inc.

4.   Alpine Enterprises Ltd., a Manitoba corporation

          Unlimited number of 4 Classes of Voting and 4 Classes of Non-voting 
          common shares, 290 Class A Voting shares which are issued and
          outstanding in the name of Dynamex Canada Inc.

5.   Road Runner Transportation, Inc., a Minnesota corporation

          25,000 authorized common shares (consisting of 7,000 voting, 5,000
          non-voting and 13,000 undesignated), no par value; of which 4,363.9998
          non-voting are issued and outstanding in the name of Dynamex Inc., and
          of which 6,545 voting are issued and outstanding in the name of
          Dynamex Inc.

6.   Regina Mail Marketing Systems, Inc.

          Unlimited number of common shares, no par value, 100 of which are 
          issued and outstanding in the name of Dynamex Canada Inc., and 
          unlimited number of preferred shares, none of which are issued and 
          outstanding.

7.   New York Document Exchange Corp., a New York corporation

          200 shares of common stock are authorized, no par value, of which 150
          shares are issued and outstanding in the name of Dynamex Inc.

8.   Cannonball, Inc., an Illinois corporation

          71,450 authorized shares of common stock, par value $1.00, of which
          69,350 are issued and outstanding and registered in the name of
          Dynamex Inc.



<PAGE>   2
9.   USC Management Systems, Inc., a New York corporation

          200,000 authorized shares of common stock, no par value, 91.33 of
          which are issued and outstanding and registered in the name of Dynamex
          Inc.

10.  Dynamex Dedicated Fleet Services, Inc., a Delaware corporation

          10,000 authorized shares of common stock, par value $0.01, 1,000 of
          which are issued and outstanding and registered in the name of Dynamex
          Inc.
#### Lowthorp *v.*Smith.

If one of two joint owners of a vessel, forcibly take possession of her, and send her to sea, without or against the will of the other, and she-is lost, he will be liable in trover for her.

Trover, for one half of a schooner. This schooner formerly belonged solely to *Smith*; he sold the one half to *Lowthorp,*who superintended the affairs of the vessel for two or three voyages'; hut on her returning from the third voyage, which was to London, *Smith*forcibly took possession of her. The next voyage was in February, to Charleston — this voyage *Lowthorp*forbad. The next voyage was intended to Cape Francois — it was neither fo hidden or consented to by *Lowthorp ; Smith*sent her out without consulting him. The vessel was lost on her outward bound voyage. The counsel for the Plaintiff cited *Butler’s Nisi Prius*34. *Salk.*290. On the part of the Defendant ir. was admitted, that where one of two joint owners takes the whole to himself, and destroys the thing owned, trover will lie ; but if the thing be forcibly taken at first, and afterwards used as the common pro-peny of both, and for the benefit of both, and whilst so employed shall be lost, that such loss is a common one : here the vessel at first was forcibly taken by the Defendant, and the first voyage, to Charleston forbidden ; but it does not appear they afterwards disagreed about the vessel. The last voyage was not forbid by the Plaintiff, and it may be reasonably presumed, as there is no evidence to the contrary, that it was by consent.

*Per curiam*

If one of two joint owners takes possession of the whole, no action will be for this, for one hath as much right to the possession as the other; but if after taking possession he destroys the property, he is then liable; because, the joint ownership does not empower him to destroy the property of the other ; and if such joint owner, after getting the sole possession, shall without the consent, or against the will of (he other owner, send the *295vessel to sea, and she be lost in that voyage, the juey may consider suth loss as a destruction of the vessel, occasioned by the joint owner by means of sending her to sea, and find for the Plaintiff,

The jury found accordingly for the Plaintiff, being of opinion that the loss in this case was a destruction occasioned by the Defendant, and of course, a conversion in him — they assessed damages to ¿61072,

The court cited *Molloy b,*2, c. 2, s. 2, S.

*Note.*— Vide 2 *Saund.*479. *Bull. N. P.*34. 35. *Co. Litt.*200 *a.*
Certification Pursuant To
                             18 U.S.C. Section 1350,
                             As Adopted Pursuant To
                  Section 906 Of The Sarbanes-Oxley Act Of 2002

In connection with the Quarterly Report of Somerset International Group, Inc.
(the "Company") on Form 10-QSB for the three months ending March 31, 2004 as
filed with the Securities and Exchange Commission (the "Report"), I, John X.
Adiletta, President, Chief Executive Officer, certify, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, that:

     (1)  The Report fully complies with the requirements of Section 13(a) or 15
          (d) of the Securities Exchange Act of 1934; and

     (2)  The information contained in the Report fairly presents, in all
          material respects, the financial condition of the Company as of the
          dates presented and the results of operations of the Company.


                                          /s/ John X. Adiletta
                                          -------------------------------
                                              John X. Adiletta
                                              Chief Executive Officer

                                          Dated: May  , 2004
#### N. G. HOWELL *vs.*P. EDWARDS.

In an action for maticiouely arresting a party and holding him to bail, the declaration must shew a legal determination of the original action.

Appeal from the Superior Court of Law of Cherokee County, at the Fall Term of 1847, his Honor Judge Settle presiding.

The action is for maliciously and without any reasonable or probable cause arresting the plaintiff and holding him to bail on a warrant issued by a justice of the peace. Plea, not guilty. On the trial the case appeared to be this. The defendant sued out a warrant against the ‘plaintiff for a debt of $10 30, and required him to be held to bail thereon. On the 30th March 1846, the constable arrested the plaintiff and returned the warrant. The trial was postponed by the Justice to the next day, and the constable then demanded bail from Howell, and, as he was about giving bail, Edwards told the constable he peed not require a bond, and therefore the latter discharged the plaintiff from custody. On the next day the pase was tried and the Justice gave judgment for Howell, and Edwards appealed to the County Court. Shortly af-terwards the plaintiff brought this suit, and subsequently Edwards directed the magistrate not to return the appeal; and he accordingly withheld it. Upon the evidence, the counsel for the defendant, among several objections, insisted, that the action would not lie, because it was commenced before the original suit was determined ; and he prayed the Court so to instruct the jury. But the Court refused the instruction, and informed the jury that the plaintiff might maintain his action, notwithstanding that objection. Verdict and judgment for the plaintiff, and an appeal by the defendant.

*517
      *Edney*and *Francis,*for the plaintiff.

*J. W. Woodfin*and *N. W. Woodfin,*for the defendant.

Ruffin, C. J.

In actions of this kind the declaration must show a legal determination of the original action ; and here the plaintiff relies on a determination by a dis. continuance and want of prosecution. But the evidence did not support the declaration in that point. For, admitting that the original action could be discontinued by the order not to return the appeal and was thereby ended, yet that order was not given until after the present action, was brought, and there is nothing to give it a relation so as to make it operate legally as a discontinuance from any prior time. This suit was therefore commenced prematurely ; and the judgment must be reversed and a *venire de novo*awarded.

Per Curiam. Judgment reversed and *venire de novo.*
Opinion issued September 13, 2012

In The

Court of Appeals 

For The

First District of Texas

NO. 01-11-01056-CR

____________

ANTHONY WAITERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1245127

MEMORANDUM OPINION

Appellant Anthony Waiters pleaded guilty to a second-degree felony offense 

of indecency with a child and pleaded “true” to the allegation in an enhancement 

paragraph. The trial court found appellant guilty, found the enhancement true, and, 
2

in accordance with the terms of appellant’s plea agreement with the State, sentenced 

appellant to confinement for 9 years. Appellant, proceeding pro se, filed a motion 

to withdraw his plea1and a notice of appeal. 

We dismiss the appeal for want of jurisdiction.

In a plea bargain case, a defendant may appeal only those matters that were 

raised by written motion filed and ruled on before trial, or after getting the trial 

court’s permission to appeal. TEX. R. APP. P. 25.2(a)(2). An appeal must be 

dismissed if a certification showing that the defendant has the right of appeal has 

not been made part of the record. TEX. R. APP. P. 25.2(d).

The trial court’s certification states that this is a plea bargain case and that the 

defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). The record 

supports the trial court’s certification. See Dears v. State, 154 S.W.3d 610, 615 

(Tex. Crim. App. 2005). The trial court did not rule on any pre-trial motions,

2

and 

the trial court did not give permission for appellant to appeal. 

 

1 The record before us does not reflect that the trial court ruled on appellant’s motion 

to withdraw his plea. The record also does not reflect that appellant, who became 

represented by appointed appellate counsel the day he filed his motion, ever 

complained about a failure to rule. 

2 The only pre-trial order in the record is for statutory DNA testing, of which 

appellant did not complain. See TEX. GOV’T CODE ANN. § 411.1471 (West 2012) 

(requiring DNA testing after indictment, or waiver of indictment, for certain 

offenses).
3

Because appellant has no right of appeal, we must dismiss the appeal. See 

Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A court of appeals, 

while having jurisdiction to ascertain whether an appellant who plea-bargained is 

permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without 

further action, regardless of the basis for the appeal.”).

Moreover, appellant complains in his notice of appeal that his plea was 

involuntary. Voluntariness of a guilty plea may not be raised on appeal from a 

plea-bargained, felony conviction, as here. See Cooper v. State, 45 S.W.3d 77, 81 

(Tex. Crim. App. 2001).

Accordingly, we dismiss the appeal for want of jurisdiction. Any pending 

motions are dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).
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