UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1489
INTERNATIONAL HOUSE OF PANCAKES, INC.,
Plaintiff - Appellee,
versus
JIMMIE MCNEAL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:04-
cv-01480-JFM)
Submitted: February 9, 2007 Decided: March 2, 2007
Before WILLIAMS and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jimmie McNeal, Appellant Pro Se. John M. G. Murphy, OBER, KALER,
GRIMES & SHRIVER, PC, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmie McNeal appeals from the district court’s order
granting summary judgment to International House of Pancakes, Inc.
(“IHOP”) on its breach of contract and trademark infringement
claims and awarding compensatory damages. Finding no reversible
error, we affirm the district court’s order.
On October 17, 1998, IHOP and McNeal entered into a
Franchise Agreement, a Sublease, and an Equipment Lease (the
“Franchise Documents”), which authorized McNeal to operate an IHOP
restaurant in Salisbury, Maryland. McNeal promised to pay IHOP
certain fees, including advertising fees, rent for IHOP’s real
property, and equipment rent for its personal property. He also
agreed to keep and maintain at least thirty-six months of sales
records. Under the Franchise Documents, IHOP was permitted to
conduct routine audits. In late 2003, such an audit revealed that
McNeal had been underreporting his income (and thereby underpaying
IHOP) and had failed to keep thirty-six months of sales records as
required by the Franchise Documents. As a result of McNeal’s
breach of the Franchise Documents, IHOP terminated McNeal’s
franchise under the terms of the Franchise Agreement and demanded
he relinquish IHOP’s real and personal property and that he cease
and desist from operating the restaurant as IHOP and using IHOP’s
intellectual property.
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IHOP filed suit and moved for a preliminary injunction to
prevent McNeal from continuing to use its trademarks and other
intellectual property. The district court granted IHOP’s motion
for preliminary injunction and later ordered McNeal to show cause
why he should not be held in contempt when he had violated the
injunction. After McNeal failed to respond, the court entered a
contempt order and arrest warrant for McNeal. The court rescinded
this order, however, after IHOP successfully obtained possession of
the restaurant and all of its intellectual property.
IHOP moved for summary judgment on the remaining issues
that McNeal owed IHOP nearly $400,000 in pre-termination fees, more
than $500,000 in past-termination fees, and damages for McNeal’s
continued use of IHOP’s intellectual property after the franchise
was terminated. IHOP also sought attorney’s fees, prejudgment
interest, and treble damages under the Lanham Act for the trademark
infringement. McNeal responded, making conclusory statements that
he had not defaulted under the Franchise Agreement and attaching an
affidavit from his accountant, which stated McNeal was not in
default and IHOP’s audit figures were incorrect. The affidavit did
not, however, address McNeal’s failure to keep thirty-six months of
sales records as required by the Franchise Documents.
In a letter order, the district court granted summary
judgment to IHOP, finding that even if McNeal did not default by
underpaying IHOP, his failure to keep thirty-six months of sales
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records as required by the Franchise Documents provided a
sufficient independent ground for IHOP’s termination of the
Franchise Agreement. The court awarded IHOP $915,432.82 in
contract damages and $75,000 for compensatory damages under the
Lanham Act.
This court reviews a district court’s grant of summary
judgment de novo. Higgins v. E.I. DuPont de Nemours & Co., 863
F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The court construes the evidence and draws all reasonable
inferences in the light most favorable to the non-movant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A mere
scintilla of proof, however, will not suffice to prevent summary
judgment; the question is “not whether there is literally no
evidence, but whether there is any upon which a jury could properly
proceed to find a verdict for the party” resisting summary
judgment. Id. at 251 (internal quotation marks omitted).
On appeal, McNeal alleges that his accountant calculated
the correct sales totals, that IHOP’s calculations were erroneous,
and that he therefore did not default on the Franchise Agreement.
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In addition, McNeal claims IHOP falsified records and made
fraudulent statements concerning the default. McNeal does not
challenge the amount of compensatory damages granted to IHOP.
While McNeal produced an affidavit from his accountant
purporting to show that his calculations were correct and IHOP’s
were incorrect, he has failed to refute IHOP’s alternate and
adequate reason for the default--that McNeal failed to keep
business records for thirty-six months as required under the
Franchise Documents. Thus, even if McNeal established IHOP’s audit
was incorrect, because he has not established that he maintained
thirty-six months of sales documents, IHOP still had a basis for
determining McNeal defaulted under the Franchise Documents. We
therefore find the district court properly granted summary judgment
to IHOP. We decline to consider McNeal’s allegations that IHOP
falsified records and made false statements to the court, because
these claims are raised for the first time on appeal. See Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993).
For the foregoing reasons, we affirm the district court’s
order. 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
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