33. lta logistics v enrique varona (defendants writ of prohibition )

7/28/2019 33. LTA LOGISTICS v Enrique Varona (Defendants Writ of Prohibition )

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LINDA ANN -WELLSCnC JJ3GE

FRANKA SHEPHERDRICHARD J. SUAREZAfvOEL A. CORTIMA.SLESLIES. ROTHENBERGBARBARA UW3QA'.-'AI-iCE E. SALTERK.EVINEMASIVANF FERNANDEZ.LOGUE

DATE:STYLE:

3DCA#:

D I S T R I C T C O U R T O F APPEALTHIRD DISTRICT

2001 S .W 117 AVENUEMIAMI. FLORIDA 33175-1716TELEPHONE (305)229-3200

ACKNOWLEDGMENT OF NEW CASEJune 18, 2013

M A R Y CAv BLANKSCXESK

VERONICA A.VCK jOFr

DEBE'EUCCL'RDY

J AM E S GLENV IM[>!> T

ENRIQUE VARONA,

3D13-1561

v. LTA LOGISTICS, INC.,etal.,

The Third District Court of Appeal has received thePetition reflectinga filing date of 6/18/13.The county of origin is Dade.The lower tribunal case number provided is 11-20527.Case Type: Prohibition The filing fee is Due.The Third District Court of Appeal's case number must be utilized on all pleadings andcorrespondence filed in this cause. Moreover, ALL PLEADINGS SIGNED BY ANATTORNEY MUST INCLUDE THE ATTORNEY'S FLORIDA BAR NUMBER.Please review and comply with any handouts enclosed with this acknowledgment.

cc:Enrique VaronaWarren Price Gammillim


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IN THE DISTRICT COURT OF APPEALTHIRD DISTRICT, MIAMI-DADE COUNTY, FLORIDA

CASE NO.

Enrique Varona,Appellant ,v

LTA LOG ISTICS, INC., et a/;LESTER TRIMINOJudge Antonio ArzolaAppelles,

PETITION FOR WRIT OF PRO HIBITIONPetitioner, Enrique J. Varona ("Varona", and/or "Petitioner"), who is Sui-juris an dproceeding pro-se in this action, petitions this Court for a Writ of Prohibition,precluding the Honorable Judge Antonio Arzola ("the Judge") from presiding overcase no. 11 20527 CA 21 , currently pending in the Circuit Court of the EleventhJudicial Circuit in and for Miami-Dade County, Florida ("the case"), and as groundswould show:

BASIS FOR THIS COURT'S JURISDICTION1. Varona moved to disqualify the Judge twice under Fla. R. Jud. Admin. 2.330.The Judge denied both motions. This Court has original jurisdic tion under Fla. R.App. P. 9.030(b)(3) to enter a Writ of Prohibition.


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NATURE OF THE RELIEF SOUG HT2. Varona seeks a Writ of Prohibition from this Court, precluding the Judge frompresiding over the case an d directing that the case be re-assigned to a randomly-assigned judg e. In addition pe titioner seeks to remove the eleventh circuit court ofMiami-Dade County, Florida as venue for this action as it lacks personal and subjectmatter jurisdiction due to improper choice of law and forum to fully comply withthe agreed contrac tual te rms an d conditions of the employment agreement betweenPlaintiff and Defendant.

OVERVIEW

3. In the course of the litigation and in numerous occasions the Judge has denied thePetitioner meaningful access to the court by denying petitioner his right to presentmotions on the record an d have them adjudicated as per the rule of law. The Judgehas consistently practiced law from the bench in a role of co-counselor for theplaintiff and their attorneys. The Judge has by conduct an d practice suspended orrefused to enforce the Florida Rules of Civil Procedure only when they negativelyaffect the Plaintiff an d their attorneys cause, but enforced them to their fullest onlywhen they benefit the plaintiff and their attorneys cause. The Judge has refused togrant the Petitioner two motions for recusal from the case even though rules andcase law clearly demand his recusal from this case. The Petitioner in supportthereof of these claims shows this court the following as reasonable'proof;


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FACTS

4. First incident. On January 29, 2013 the Judge refused Petitioner to present/hear (on the record) his motion for contempt of court and summary judgmentagainst the plaintiff in accordance with Fl. R. Civ. Proc. rule 1.380(2)(c) fo r theirfailure to comp ly with a December 13, 2012 court order to compel documents, seeExhibit "A". The Plaintiff attorney failed to petition the court for an extension oftime to answer the court's order to compel documents. The Judge practicing lawfrom the bench, on his own initiative , entered an d ruled on his own motion to compeldocuments, see Exhibit "B".5. Second incident. On February 28, 201 3 the Judge refused Petitioner topresent/ hear (on the record) his second motion fo r contempt of court an d summaryjudgment against the plaintiff in accordance with Fl. R. Civ. Proc. rule 1.380(2)(c)for their failure to comply with the Judge's own January 29, 2013 "second" courtorder to compel documents. To make ma tters worst the Plaintiff attorney failed toappear at the scheduled hearing and over the phone informe d the Judge that 'h e wa stoo busy to a t t end th e hearing'. The Judge who had the Plaintiff attorney on thephone refused to take his testimony and/or hear arguments from th e plaintiff attorneywho was on the phone , instead proceeded to dismiss the hearing, refused to allowthe Petitioner to present/hear his motion, an d refused to give Petitioner a writtendeclaratory judgmen t of his order denying Petitioner's motion fo r contempt of courtan d for summary judgm ent against the plaintiff.6. On March 04 , 2013 Petitioner filed a motion for the recusal of the Judge.The facts, as set forth in detail, above, gave Petitione r a well reasoned fear he


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would not receive a fair hearing or trial before the Judge. Petitioner's motion waslegally sufficient and should have been granted. The Judge denied the Petitionersmotion for recusal, see Exhibit "C".7. Third incident. On April 11 , 2013 Petitioner had scheduled a hearing on hismotion to dismiss for improper choice of law and venue as per the terms andconditions of the "contract" ( Pg. 3, Sec 10) entered by the plain tiff attorney into therecord on March 06, 2013. The Judge at the hearing refused to hear the Petitionersmotion to dismiss for improper choice of law and venue. Instead the Judge issued a30 day stay so the plaintiff could hire a new attorney.8. On May 30, 2013 Petitioner had re-filed his motion to dismiss due to improperchoice of law and venue as per the terms and conditions of the contract (Pg 3, Sec.10) entered into the record by the Plaintiff attorney on March 06, 2013 . The newattorneys for the Plaintiff filed a motion to amend their complaint to include a countfor "breach of contract" and "libel" which they are perfectly entitled to under Fl . R.Civ. Pro. 1.190(a).9. Petitioner in a timely manner filed into the courts record a motion opposing theamended complaint on the grounds that thePlaintiff attorney exhibit "1", contained a fraudulent contract dated November 5,2010, which contains a fraudulent signature allegedly of the Petitioner which is thenature an d cause of the Petitioners counterclaim fo r fraud against the plaintiff, an dbecause it was entered without a notarized affidavit to support its authenticity.10. Fourth incident. On the May 30, 2013 hearing the Judge refused to hear thePetitioner's motion to dismiss fo r improper choice of law and venue, an d proceeded


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to issue an order for the petitioner to answer the amended complaint within 20 days,see exhibit "D", the Judge accepted the "fraudulent imposter contract" into therecord against the objection of the Petitioner knowing it was not the contractentered into the record as evidence by the previous attorney on March 06 , 2013.11 . The Judge in denying the Petitioner to present his motion to dismiss due toimproper venue and choice of law denied him meaningful access to the court, as hasbeen the case on every mo tion presented by the Petitioner in this court to this Judge.12. The Judge ha s precluded the Petitioner from seeking his lawful remedy underFl. R. Civ. Pro. Rule 1.161 (choice of forum).13. Because the new amended complaint and exhibit "1" were not entered with anotarized affidavit the judge denied the Petitioner his remedy under Fl. R. Civ. Pro.rule 1.030 (non verification of pleadings).14. The Judge allowed the opposing party to tampe r with evidence previouslyentered into the courts record by replacing on e contract for another on theiramended co mplaint 1", to allow for a claim for breach of contract.15. The Judge lied to the Petitioner at the hearing by stating that according to rule1.190(a) this case had now become a "new case". Now here in rule 1.190(a) it saysthat evidence or docume nts previously entered into the record can be replaced,omitted, or tampered with when a party is amending a complaint. W hich is wh at theopposing counsel and the Judge told the Defendant at the hearing.16. The Judge's ruling requiring the Petitioner to answer the amended complaintwithin twenty days preempted the Petitioner from filing a motion to strike theamended complaint fo r being a sham under Fl. R. Civ. Pro. Rule 1.150.


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17. The Judge's ruling that he answer the amended complaint within twenty daysestablishes a fraudulent contract entered into by the Petitioner under duress.18. The Judge by allowing the amended complaint establishes the opposing partiesclaim of libel since and as per Florida law a claim of libel can only be pursued in thecounty were the alleged offense occurred. Therefore, his ruling deprived thedefendant of a lawful remedy or defense to the alleged count of libel.19. The facts, as set forth in detail, above, gave Petitioner a well reasoned fear hewould not receive a fair hearing or trial before the Judge. For a second time, OnJune 06, 2013 Petitioner filed a motion for the recusal of the Judge. Petitioner'smotion was legally sufficient an d should have been granted. The Judge denied themotion for recusal, see Exhibit "E".

JURISDICTION - WRIT OFPROHIBITION

20 . On March 06 , 2013 the previous attorney for the Plaintiff entered into thecourts record a contract dated June 09, 2009. A document entered into the court as aresult of two years of litigation, two motions to produce documents, and two courtorders to compel documents, see "Contract" as Exhibit "F".21 . The contract shown as exhibit "F" was/ is entered into the courts recordsupported by a notarized affidavit as evidence of its authenticity. Theauthentication rule, which applies to all types of physical evidence, requires that aproponent of a piece of evidence se t forth a foundation of "evidence sufficient tosuppor t a f inding tha t the mat ter in question is what it s p r o p o n e n t claims." 90.901,Fla. Stat.. The plaintiff amended complaint and its exhibit "1" fails to meet the


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standards for this criteria as is entered into the record with ou t a notarized affidavitin support for its authenticity.22. The authenticated contract entered as exhibit "F" clearly and in plain languagestates on page 3, section 10; the following:

"10. CHOICE OF LAW AND VENUE: it is understood andagreed that the construction and interpretation of this agreementshall at all times and in all respects be governed by the internallaws of the Commonwealth of Virginia, without giving effect tothe conflict of law provisions thereof. Venue of any action broughtexclusively in the circuit court of Henrico. Virginia, or the U.S.District Court for the Eastern D istrict of Virginia."

23 . Clause 10, of page 3 of the "Agreement" incorporates a mandatory forumselection clause that contrac tually require that this lawsuit be filed in the forumnamed in the clause. Golden Palm Hospitality, 874 So. 2d at 1236. "A s a genera lprinciple , a trial court must honor a manda tory forum selection cla use in a

contract..."24. Page 3, section 10 of exhibit "F" clearly states that venue for any action willbe brought exclusively in a Virginia court. The general test for determining whethera forum selection clause is "mandatory" is the use by the parties of languageindicating "exclusivity." Golden Palm Hospitality, 874 So. 2d at 1236. "Absent suchlanguage , the clause wil l be considered pe rmissive. "Id If the forum selection clause"statefsj or clear ly indicatefs] that a n y l i t igation must or shall be ini t iated in a

specified forum" then it is mandatory. Shoppes L.P. v. Conn, 829 So. 2d 356, 358(Fla. 5th DCA 2002).


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25 . '"A writ of prohibition is a proper vehicle to challenge the court's lack ofsubject matter jurisdiction." Phillips v. State, 69 So. 3rd 951, 952 (Fla. 2nd DCA,2110). For the reasons set forth herein, the lower court does not have jurisdiction topreside over the plaintiff lawsuit. As such, this Court should exercise its jurisdictionunder Fla. R. App. P. 9.030(b)(3) and enter a writ of prohibition so the eleventhcircuit court may not proceed with claiming subject matter an d personal jurisdictionover the Plaintiff lawsuit.

A R G U M E N T

26 . Fla. R. Jud. Admin. 2.330 imparts several obligations on a litigant who seeksdisqualification of a judge. Varona complied with all such requirements. First,Varona satisfied the timeliness requirement of Fla. R. Jud. Admin. 2.330(e) byfiling the Motion on June 6, 2013. Second, the Motion complied with Fla. R. Jud.Admin. 2.330(c), as it alleged, in writing an d under oath, the reasons the Judgeshould be disqualified, was hand delivered to the Judge's secretary at chambers thesame day it was filed, and included the undersigned's certification that the Motionwas made in good faith.27 . There was plainly no basis to deny the defendant to present his motions onprocedural grounds, the issue before this Court is whether the motions presented islegally sufficient grounds to disqualify the Judge. In other words, the issue iswhether the Motion showed Varona's fear that he would not receive a fair trial orhearing because of specifically described prejudice or bias of the Judge. See Fla. R.Jud. Admin. 2.330(d). In adjudicating this issue, this Court should give no deference


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to the lower court's ruling, but should apply a de novo standard of review. SeeChamberlain v. State, 881 So. 2d 1087 (Fla. 2004); Frengel v. Frengel, 880 So. 2d76 3 (Fla. 2d DCA 2004).28. It is eminen tly reasonable for Varona to doubt his ability to get a fair hearingbefore the Judge when the Judge ruled against him without allowing him to read hismotions. To put it differently:

Would you think you were get t ing a fair hearing if the Judgeruled against you without giving you an opportuni ty to read yourmotion at the hearing? in a l l of four hearings?

29. Respectfully, an y reasonable person would question his ability to get a fairhearing under these circumstances.30. All Varona is asking is for a fair chance to be heard by a judge who has notalready pre-determined the merits of his motion. Yes, the courts are inundated withcases. R espec tfully, howev er, it cannot reach the point where judges deny defendantstheir right to present motions in court without allowing it to be presented on therecord and ruled upon by its merits.


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CONCLUSIONPetitioners morion to Disqualify Judge was legally sufficient and should have beengranted. Applying the de novo standard of review, this Court should issue a Petitionfor Writ of Prohibition an d direct that the case should be assigned to a randomly-assigned judge, as there is a counter lawsuit pending in this court.Petitioner requests from this Court to remove the Eleventh Circuit Court in and forMiami-Dade County, Florida as it lack subject matter and personal jurisdiction dueto it being an improper venue an d forum to litigate the Plaintiff amended complaintcase no. 11 20527 CA 21 as it clearly violates the contractual terms entered into andagreed upo n by the interested parties on this action.

iqueWarona, Smjuris acting Pro-seAppellanjy14823 S.W. 125 CourtM iami, Florida [email protected]


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SWORN AFFIDAVIT OF TRUTH

IN WITNESS WHEREOF, I, Enrique Varona, Sui Juris, solemnly affirm and verifythat I have read the foregoing, and know its contents to be true to the best of myknowledge, except as to the matters which are therein stated on my information orbelief, and as to those matters, I believe them to be true. This instrument is submittedupon good faith effort that is grounded in fact, warranted by existing law for themodification or reversal of existing law and submitted for proper purposes, and not tocause harassment and unnecessary delay or costs, so help me God. See SupremacyClause (C onstitution, Laws an d Treaties are all the supreme Law of the Land).

under penalty of perjury, under the laws of the STATE OF FLORIDA, thatthe f o r e o i n g is true a n d correct:

inriqu< Varona, Su i JurisT4823 iy125 CourtMiami, Florida 33186On this day came before me the Affiant, a living flesh an d blood man/ to oathand attest and affirm the signature is true, complete, and correct on the foregoingaffidavit. Enrique Varona, the above signed, who is personally known by me or uponproper oath an d identification, personally came before me, the subscriber, a notarypublic in and for said Miami-Dade County and the State of Florida, and DulyAffirmed the truth of the foregoing Affidavit in my presence. The Affiant alsoacknowledged the signing thereof to be his own voluntary act and deed, signing thewithin instrument in my presence and for the purpose therein stated.

Date: Identification provided:Notary Public:My co ision^exp jfes on: (/f * -

Notice to agent is notice to principal, notice to principal is notice to agent

NOTARY PUBLIC STATE OF FLORIDAJ U A N V .H E R N A N D E ZCommission *=F014667Expires: May 5,2017BONDED THRUAARON NOTARY


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IN T!-!E CIRCUIT COURT OF THEELEVENTH JUDICIAL CIRCUIT IN ANDFOR MIAMI-DADE COUNTY

LTA LOGISTICS, INC. a Floridacorporation, and LESTER TRIMNO,

Plaintiff, Circuit Civil DivisionV s. Case N o. 11 -20527 CA 21ENRIQUE JOSE VARONA,

Defendant.

ORDER ON DEFENDANT'SMOTION TO ADMIT RESPONSE TO REQUEST OFADMISSIONS. TO STHKE PLAINTIFFS RESPONSE TO REQUEST OFADMISSIONS. THAT ALLUTERROGATORIES BE ADMITTED. MOTION FORDEFAULT SUMMARY JUDGMENT AND MOTION TO COMPEL PRODUCTION OFDOCUMENTS

This matter came beforethe Court upon the Defendants' Motion on October 22,2012 and the Court having head argument of counsel and Pro Se Defendant, andbeing otherwise fully advised irathe premises, it is hereby ORDEREDAN D ADJUDGEDas follows:

1. Motion to Admit Response to Request of Admission is granted.2. Motion to Strike Plairtiffs Response to Request of Admissions is denied

however Defendant ehall have ten (10) days from the date of this Order inwhich to submit to Pfenntiff revised Request of Admissions Number 3 and 4.3. Motion that all interrogatories be admitted is denied as moot since no

interrogatories haveleen propounded by Defendant.4. Motion for Default Sanmary Judgment was not heard.5. Motion to Compel Praduction of Documents granted.

DONE andORDERED in Chambers at Miami-Dade County, Florida this . .2012. c 7

MARCIAB.CABALLERO,,^ &Circuit Court Judge &&& ceU;


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-

IN TIE CIRCUIT COURT OF TL11TH JUDICIAL CIRCUIT IN MD FO RMIAMI-DADE COUNTY, FLORDACIRCUIT CIVIL DIVISIONCASE NO : X 5

Plaintiff,vs.

Defendat(s),

ORDERGRANTING/DENYINGPLAINTIFFS/DEFENDANT'S

THIS CAUSE haing come on tobe heard on --J S-on Ekintiff's/Defendant's Motion

andtiie Court having heard argunents of counsel^nd being othe rwise advised in the premises, it is hereuponORDERED AN1AD JUDGEDtat said Motion be, and the same is hereby

DON E AND OFFERED in ChaHbers at Miami-Dade County, Florida this.

. >^v? ,day if

CONFORMDCOPy // x // f , - ' i .' ''c i/ , Y CIRCUIT COURT JUDGE

Copfe furnished to: Counsel of Rcord ANTON,omzOLAC I R C U I T COST JUDGE

.U7_OI-*t 3/11


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IN THE CIRCUT COURT OFTHE ELEV ENT H JUDEIAL CIRCUIT OF FLORIDA,IN AND FOR MIAM I-DADE COUNTY

CIRCUIT CIVIL D IVISIONC A S E N D : 11-20527Section:! 1

LTA LOGISTICS, BJC.LESTER TRIMINQET AL;Plaintff(s)vs.E N R I Q U E VAROM,

Defendant(s).

ORDER DEN\ING DEFENMNT'S M O T I O N TO HSQUALIFY TRIAL JUDGE

This matter, Saving come kfore the Court upon the De fend ant's M otion to Disqu alifyTrial Judge filed oa March 4, 2013 and the Court having considered the Motion and beingotherwise fully advisd in the premfes, hereby:

ORDERES1ND ADJUDGES that the Defendant 'sMotion is DENIED.D O N E and ORDERED inchambers in Miami-Dale Counjy, Florida this 5th day of

March, 2013.C O N F O R M E D C O P Y

M A R t f ?ni3ANTONttARZOLA

CIRCUIT C5URT JUDGECicuit Court Jiidge

Copies to:Scott Egleston, Plainiff s AttorneyEnrique Varona, Defaidant


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IN THECIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT IN AND FORMIAMI-BADE COUNTY, FLORIDACIRCUIT CIVIL DIVISIONCASE NO. 11-20527 CA 21

LTA LOGISTICS, DC., a Floridacorporation, and LESffiR TRIMINO,

Plaintffe,v.ENRIQUE JOSEVAtONA,

Defenant.

ORDER GRANTING PLAINTIFFS'MOTION TO AMEND COMPtAINT

This cause cane on before the Court on Thursday, Msy 30, 2013 on Plaintiffs' Motion toAmend Complaint, ail the Court having heard arguments af the parties and being otherwisefully advised in the premises, it is ORDERED and ADJIDGED that the motion is herebyi j vtee^ G (GRANTED. Plaintif&shall corvo their Amended Complaint rithin 10 dayo horofromi1 *OM~. fecMu sU6(.Ux-Zo J T

DONE and OOERED in chambers at Miami, Miani-Dade County, Florida on this 30thday of May, 2013.

.-."

Conformed copies to:Warren P. Gammill, &j. [email protected] J. Varona: 14S3 S.W. 125 Court. Miami, Florida 33186


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I N T H E C I R C U I T C O U R T O F T H E E L E V E N T H J U D I C I A L C I R C U I T O F F L O R I D A ,I N A N D F O R M I A M I - D J > E C O U N T YC R C U I T C I V I L D I V I S I O NCISENO: 11-20527Sation: 21

LTA LOGISTES, INC.LESTER TRIMTNO, ET AL;

Plaintiff(s)vs.ENRIQUE VERONA,Defendant(s).

O R D E R K : N Y I N G D E F E N D A N T ' S M O T I O N T O D I S Q U A L I F Y T R I A L J U D G EThis nutter, having come before the Court upm th e Defendant's Motion to Disqualify

Trial Judge file! and delivered to chambers on June 6,2013 and the Court having considered theMotion and beag otherwise fully advised in the premiss, hereby:

ORDEIES AND ADJUDGES that the Defendant's Motion is DENIED as legallyinsufficient.

DONEind ORDERED in chambers in Miairi-Dade Coujrty, Florida this 6th day ofJune, 2013.

Copies to:Warren Gamill i Associates, Plaint iffs AttorneyEnr ique VaronaJ'ro se Defendant

C O N F O R M E D C O P YJ U N 0 7 2 0 1 3

ANTONIO ARZOLACIRCUIT COURT J U D G E


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Pg. 1/3

iTA LOGISTICS, INC.NONDISCLOSJRE AND NONSOLICITATIOH AGREEMENT

("Agreement")

TH5 AGREEMENT ismade ant entered nto is -yk- dayof oU!)T\ I 20.by andbetween LTALqpstics Incorporated, a FlorBa corporation,fLTA or the Company"], aid^gULAAuvvt Employee or"pbsociate's Name]").

RECITALS

VMEREAS, LTA Logisticsdestes to employ, Jfesociate's Name], and Emjibyee desires o perform services for LTA n apsition which will allow Enfloyee access towarious tradesecrets and canfidential nformation belonging to LTA andwftich require Employee to lerform servicesaf a unique and specialnatire.\AHEREAS, as a condition offAssociate's Nae]'s employment. LT A deares to receive rom [Associate's Name]ccvenants (a) not to discloseany confident^ nformation acquired during or reasonably after the course of employmentvfth LTA, (b) not to solicit aiy employeeof ffA to terminate her or hisanployment with LTA, and (c) not to solicit anyostomer of LTA to terminate its relationshf with LTA.MHEREAS, LTA and [Associte's Name] desie to set forth in writing theterms and conditions of their agreementsandtaderstandingswith respettto these covennts against disclosure of confidential information, solicitation of employees, !islicitation of customers, aid competition wth LTA, that Agreement sa condition of Employee's employment andancillary thereto, and that lisAgreementAes not purport to set forttall the terms ofsuch employment.

*. .

AGREEMENTi

K)W, THEREFORE, in consleration of thefbregoing, and any consideration set forth in any Schedule A hereto, and oftie mutual promises herewcontained, andof other goodandvaluabteconsideration,the receiptand sufficiency ofhich are hereby acknowledged, the parties hereto (Employeeand LTi) intending legally to bebound, hereby agree asfollows.

1. ACKNOWLEDGMENTS. LTA engaged in, among othertiings, the business of transporting freightNationwide, andas well asrelate!services. Employee acknowledges that LTA's business and servicesarehighly customer-specific and custaner-dependent, involving ihigh degree of cultivated andwell developedcustomer relationiiips, further dependent uponthe identityid particular needs of LTA's customers, notgenerally known hrthe industry, tiese relationship also are eflected in LTA's documents and informationregarding its custwners, suppliers,services, logistics, methodiof operation, sates, pricing, and cost, all of whichare highly confidential and constitrte critical trade secrets. Employee further acknowledges that the services tobe rendered toLby Employee allbe of aspecial and unuaal characterwhich has a unique value to LTA and


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P g. 3/3intended benefit of this Agraement. If, in aiy judicial proceeding,acost shall refuse to enforce all of theseparate covenants deemedincluded herein because, taken together, tey aremore extensive than necessaryto assure the Company of tte intended beiefitof this Agreement, theistt isexpressly understood and agreedbyLTA and Employee that thoa of suchcovaants which, if eliminated, \uld permit the remaining separatecovenants to be enforced insuch proceedhg, shall for the purposeof ach proceeding, bedeemedeliminatedfrom the provisions hereof. In the event (fa violation by Employee, tit term of each such covenant soviolatedshall beautomatically exteried fora period of one (1)year from thedieonwhich Employeepermanentlyceases suchviolation or fora period of ons(l) year from the date of tie entry by acourt of competentjurisdiction of afinal order o r judgment erforcing such covenant, whidever period is later.

9. BURDEN AND BENEFIT. This Agreeraent shall be binding upon, aid shall insure to the benefit of, LTA andEmployee, and their respecfe/e successorsand assigns. TheCompany-hall have the right to assign its rightshereunderto any successorfn interest, w he the r by merge, conso'idatiffi, sale of assets, orotherwise.ia CHOICE OF LAWANDWENUE. It is understood and agreed that te constructionand nterpretation of thisAgreement shall at all timesand in all respects be governed by the internal laws of the Commonwealth ofVirginia, without giving effet to the conflct of law provisions thereof. Venue of anyaction brought to enforcerelating to this Agreementiallbe brougft exclusively in the Circuit Caart for Henrico, Virginia, or the U.S.District Court for the Eastea District of Viginia.

11 SEVERABILITY. Thepsvisions of thkAgreement (including inpaticular, but not limited to, the provisionsof Paragraphs 2, 3,4, and Sfiereof) shall tedeemed severable, and tteinvalidity or unenforceability of any oneor more of the provisions hreof shall notaffect the validity orenforcabilityof anyone or moreof the otherprovisions hereof.

12 ENTIRE AGREEMENT,This Agreerrwit contains the entire agreement andunderstanding by and betweenLTA and Employee with resect to the covenants contained herein, ant no representations, promises,agreements, or understandiigs, written ororal, not herein containedfaall be of any orce or effect. No chargeor modifications hereof shS bevalid or bnding unless the same is inwiting and signed by the party againstwhom such waiver is sougfctto be enforced. No validfwaiver of any pns/ision of this Agreement at any time shallbe deemed awaiver of anyather provision of this Agreement at suchtne or will bedeemed a valid waiver ofsuch provision at anyothertime. 5\4WITNESS WHERE, LTA and [Ascciate's N a m e ] have duly eicuted this Agreement as of the day andst written ^above.

vvTTA Logistics, ate