in the state of missouri western district court of appeals … to remand the... · 2017-12-18 ·...

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IN THE STATE OF MISSOURI WESTERN DISTRICT COURT OF APPEALS

AT KANSAS CITY, MISSOURI

SAMUEL K. LIPARI ) Case No. WD70534 Petitioner ) (16th Cir. Case No. 0816-04217)

) (Formerly Case No. WD70001) vs. ) ) NOVATION, LLC; et al ) Respondents )

APPELLANT’S MOTION TO REMAND PREMATURE APPEAL

Comes now the appellant Samuel K. Lipari, appearing pro se and

respectfully requests that the court

STATEMENT OF FACTS

1. The plaintiff/appellant made a motion to amend his complaint on January 5,

2008 after an order of the court adopting the remaining defendant Lathrop & Gage

L.C.’s November 12, 2008 motion for judgment on the pleadings was made by the

trial court on December 29, 2008.

2. The plaintiff/appellant had unsuccessfully opposed the motion in a

November 17, 2008 answer as an untimely dismissal under Missouri Rules of

Civil Procedure Rule 55.27 (6) that should have been filed within 30 days of

service of the petition on Lathrop & Gage L.C. on April 14, 2008 under Rule

55.27 (a) and in violation of Rule 55.27(b) where the pleadings have not yet

closed.

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3. The plaintiff/appellant waited for an order on the Motion for Leave to

Amend until the last day of his time to appeal before filing a Notice of Appeal on

January 9, 2009.

4. On January 13, 2009 the trial court entered an order granting leave to

amend over the defendant’s objection.

5. On the morning of January 14, 2009 the plaintiff/appellant telephoned the

Office of the Clerk of the Western District Court of Appeals and ended up

inquiring from Clerk of the Court Terrance G. Lord how to withdraw his notice of

appeal.

6. Clerk of the Court Terrance G. Lord instructed the plaintiff/appellant to file

a motion to voluntarily dismiss the appeal.

7. On information and belief there appears to have been an extrajudicial

communication on the morning of January 14, 2009 in the form of an ex parte

communication to Hon. Judge Michael W. Manners of the 16th Circuit Court

causing Hon. Judge Michael W. Manners to enter a new order prejudicing the

plaintiff/appellant by withdrawing the order granting the amendment.

8. The plaintiff/appellant had earlier attempted to appeal in Western District

Court of Appeals case no. WD70534 from the trial court’s adoption of the

defendants use of non final judgments in the US District Court for the District of

Kansas as unlawful extra judicial influences violating controlling State of Missouri

and Federal precedent on issue and claim preclusion. See exb. 1 First Notice of

Appeal docket August 13, 2008 (also in WD70534 lgl. file v. 4, pg. 675).

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9. The prior Western District Court of Appeals case no. WD70534 was

prejudiced by the extra judicial communication of Lathrop & Gage L.C., a

nonparty to the plaintiff/appellant’s appeal in the form of a letter dated August 21,

2008 ( see exb. 2 also in WD70534 lgl. file v. 4, pg. 678) by Peter F. Daniel an

attorney on Lathrop & Gage L.C.’s business correspondence stationary addressed

to the clerk of this court informing him that the trial court had entered judgment on

some but not all parties and claims and ignoring the State of Missouri’s provision

for appeal from fewer than all parties under Missouri Rules of Civil Procedure

Rule 74.01 (b).

10. The extra judicial communication of Lathrop & Gage L.C. resulted in an

August 27, 2008 “Order” of this court outside of the statutory appellate Due

Process and signed by Western District Court of Appeals Staff Counsel Susan C.

Sonnenberg ( see exb. 3 also in WD70534 lgl. file v. 4, pg. 679) directing the

parties including the nonparty Lathrop & Gage L.C. to submit suggestions in

support or against appellate jurisdiction but without relieving the

plaintiff/appellant from the duty to provide a legal file of the record on review.

11. The extra judicial communication of Lathrop & Gage L.C. also appears to

have resulted in this court denying the plaintiff/appellant the statutory appellate

Due Process for the plaintiff/appellant’s September 11, 2008 Motion to Transfer

the Appeal to the Missouri Supreme Court prior to disposition under Rule 83.01

Signed by Western District Court of Appeals Chief Judge Thomas H. Newton

giving no evidence of submission to a panel and nullifying Missouri Rules of Civil

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Procedure Rule 74.01 (b). See exb. 4 September 19 Order of Chief Judge Thomas

H. Newton.

12. The non final orders of the Kansas District Court adopted as extra judicial

influences by the trial court at the suggestion of the defendant/appellees are

currently on appeal in the Tenth Circuit US Court of Appeals as Medical Supply

Chain, Inc. v. Novation et al; 10th Cir. Case No. 08-3187. See exb. 5 Appearance

Docket of Tenth Circuit Case No. 08-3187.

13. The US Department of Justice Office of Inspector General has referred the

failure to investigate and prosecute criminal conduct in procuring the underlying

trial court judgment in Medical Supply Chain, Inc. v. Novation et al; 10th Cir. Case

No. 08-3187 through extrinsic fraud to the Federal Bureau of Investigation

Inspector. See exb. 6.

SUGGESTION IN SUPPORT

The trial court examined the contents of the petitioner’s first

proposed amended petition and found that the proposed amended petition cured

any deficiencies in the pleading of the prior claims as required by Lowrey v.

Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985) (Content of that tendered but

unfiled petition must therefore be examined as to sufficiency against a motion to

dismiss, the allegations being given their most favorable intendment and

inference).

The defendants did not cross appeal from the trial court’s granting of

judgment for the remaining party Lathrop & Gage, L.C.

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Rule 75.01 provides that a trial court retains jurisdiction over a matter for

thirty days after entry of judgment to amend, modify, vacate, reopen, or correct its

judgment. The judgment then becomes final at the expiration of thirty days after

its entry if no timely authorized after-trial motion is filed. Rule 81.05(a)(1).

The trial court adopted the remaining defendant Lathrop & Gage L.C.’s

motion for judgment on the pleadings despite the plaintiff/appellant’s argument

the motion was in actuality a motion to dismiss. The plaintiff/appellant’s motion to

amend was not formally a motion for a new trial and may have not given the court

authority to set aside the earlier judgments:

“Rule 75.01 did not, however, authorize the trial court to treat Appellants' second petition filed on March 31, 2004, as an amended petition in the original case. In filing their second petition, Appellants were not asking the trial court to set aside its March 21 judgment and to allow them to amend the petition.”

Elrod v. Stewart, 163 S.W.3d 587 at 591 (Mo, 2005)

After further research, the plaintiff believed he was required to make a timely

notice of appeal from the judgment dismissing claims against the defendant

Lathrop & Gage L.c. and that the motion to amend might not have tolled the

opportunity to seek appellate review:

“This was not a jury case, neither was there a trial before a court without a jury. This cannot, therefore, be a situation where a motion for a 'new trial' has been made and overruled. In that event, the appeal could not be from the order overruling the motion, but only from the judgment. Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311; Mills v. Berry, Mo.App., 395 S.W.2d 228.”

Stubblefield v. Seals, 485 S.W.2d 126 at 129 (Mo. App., 1972)

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This court should dismiss the appeal and remand the matter as premature on

the basis of clearly established controlling Western District Court precedent: “The

general rule is that final disposition of a case is premature where it appears

that the plaintiff might amend its petition to effectively state a claim and leave

to so amend has been requested. Dietrich v. Pulitzer Publishing Co., 422 S.W.2d

330, 333-34 (Mo.1968)” [Emphasis added] Western Cas. and Sur. Co. v. Kansas

City Bank and Trust Co., 743 S.W.2d 578 (Mo. App.W.D., 1988).

The remand to the trial court would give Hon. Judge Michael W. Manners

the jurisdiction to reenter his order granting leave to amend the petition. D.E.J. v.

G.H.B., 631 S.W.2d 113, 117-18 (Mo.App.1982) (remand on appeal revests

jurisdiction in the trial court).

Respectfully submitted,

S/Samuel K. Lipari

Samuel K. Lipari Pro se Petitioner 3520 NE Akin Blvd. #918 Lee's Summit, MO 64064 816-365-1306 [email protected]

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was forwarded this 20th day of January 2009, by email.

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John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300 Kansas City, MO 64105 Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite 1100, 9225 Indian Creek Parkway Overland Park, Kansas 66210 William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345 Grand Boulevard, Suite 2800, Kansas City, MO 64108

S/Samuel K. Lipari Samuel K. Lipari Pro se Petitioner

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IN THE STATE OF MISSOURI

JACKSON COUNTY SIXTEENTH CIRCUIT COURT

AT INDEPENDENCE, MISSOURI

SAMUEL K. LIPARI )

(Assignee of Dissolved )

Medical Supply Chain, Inc.) )

Plaintiff )

)

vs. )

)

NOVATION, LLC ) Case No. 0816-CV04217

NEOFORMA, INC. ) Div. 2

GHX, LLC )

ROBERT J. ZOLLARS )

VOLUNTEER HOSPITAL ASSOCIATION )

VHA MID-AMERICA, LLC )

CURT NONOMAQUE )

THOMAS F. SPINDLER ) Missouri Antitrust,

ROBERT H. BEZANSON ) Fraud,

GARY DUNCAN ) Tortious Interference,

MAYNARD OLIVERIUS ) Prima Facie Tort

SANDRA VAN TREASE )

CHARLES V. ROBB )

MICHEAL TERRY )

UNIVERSITY HEALTHSYSTEM CONSORTIUM )

ROBERT J. BAKER ) Jury Trial Demanded

JERRY A. GRUNDHOFER )

RICHARD K. DAVIS )

ANDREW CECERE )

THE PIPER JAFFRAY COMPANIES )

ANDREW S. DUFF )

COX HEALTH CARE SERVICES OF THE OZARKS, INC. )

SAINT LUKE'S HEALTH SYSTEM, INC. )

STORMONT-VAIL HEALTHCARE, INC. )

SHUGHART THOMSON & KILROY, P.C. )

HUSCH BLACKWELL SANDERS LLP )

LATHROP & GAGE L.C. )

Defendants. )

RULE 81.04 NOTICE OF APPEAL

Comes now, the plaintiff Samuel K. Lipari appearing pro se and respectfully gives notice of his

appeal of this court’s decision of August 8, 2008 dismissing with prejudice most, but not all of the parties

and claims in this action. The plaintiff also attaches the Order dated August 11, 2008 by the Tenth Circuit

US Court of Appeals overruling the dismissal of the plaintiff’s appeal in the concurrent Federal action for

this matter in controversy.

Lipari vs. Novation675

Exhibit 1

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Statement of Facts

1. The court’s order granting dismissals to the moving parties did not dispose of all claims against all

parties.

2. The court granted all motions dismissing the plaintiff’s claims against the moving parties with

prejudice.

3. The plaintiff had provided official court records and a factual affidavit in opposition to the

individual defendants objecting to the exercise of long arm jurisdiction, therefore no party was successful

in their challenge to this court’s in personam jurisdiction and the court consequently made no dismissals

without prejudice.

4. The court granted the defendants’ motions to dismiss on a new legal theory regarding the

application of claim and issue preclusion from non final judgments in federal court inconsistent with

controlling State of Missouri and Federal precedent.

5. The court granted the defendants’ motions to dismiss on a new legal theory expanding Noerr-

Pennington doctrine from E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136,

81 S.Ct. 523, 5 L.Ed.2d 464 (1961) to immunize unlawful acts to influence government for the purpose of

monopolization, an issue not previously addressed by Missouri courts.

Suggestion of Law

The trial court’s designation of parties dismissed with prejudice fulfills the finality of judgment

regarding those named parties under Rule 74.01 (b):

“RULE 74.01 JUDGMENT

(a) Included Matters. "Judgment" as used in these rules includes a decree and any order from which

an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed

by the judge and denominated "judgment" is filed. The judgment may be a separate document or

included on the docket sheet of the case.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for

relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim,

or when multiple parties are involved, the court may enter a judgment as to one or more but fewer

than all of the claims or parties only upon an express determination that there is no just reason for

delay. In the absence of such determination, any order or other form of decision, however

designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the

parties shall not terminate the action as to any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of judgment adjudicating all the claims

and the rights and liabilities of all the parties.


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(Adopted May 22, 1987, effective Jan. 1, 1988. Amended Feb. 22, 1994, effective Jan. 1, 1995.)

The plaintiff respectfully believes this appeal will advance justice in the State of Missouri by

meritoriously raising the two issues, the expansion of claim and issue preclusion and the expansion of the

Noerr-Pennington doctrine raised by Hon. Judge Michael W. Manners in the significant state interest of the

State of Missouri over this momentous hospital supply monopolization litigation.

Respectively submitted,

S/Samuel K. Lipari

____________________

Samuel K. Lipari

Pro se

Attachment

Exb 1. Aug. 11, 2008 Order of Tenth Circuit declining to dismiss Plaintiff’s Appeal

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was forwarded

this 13th day of August, 2008, by first class mail postage prepaid to:

John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300

Kansas City , MO 64105

Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite 1100

9225 Indian Creek Parkway Overland Park, Kansas 66210

William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345 Grand Boulevard, Suite

2800, Kansas City, MO 64108

S/Samuel K. Lipari

____________________

Samuel K. Lipari

297 NE Bayview

Lee's Summit, MO 64064

816-365-1306

[email protected]

Pro se



Exhibit 2


Exhibit 3

Exhibit 4

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General DocketTenth Circuit Court of Appeals

Court of Appeals Docket #: 08-3187 Docketed:07/14/2008Nature of Suit: 3410 Antitrust

Medical Supply Chain v. Neoforma, et alAppeal From: United States District Court for the District of Kansas - KansasCity

Case Type Information: 1) civil 2) private 3) -

Originating Court Information: District: 1083-2 : 2:05-CV-02299-CM-GLR Trial Judge: Carlos Murguia, -, U.S. District Judge Date Filed: 07/14/2005 Date NOA Filed: Date Rec'd COA: 07/10/2008 07/10/2008

08-3187 Summary https://ecf.ca10.uscourts.gov/cmecf/servlet/TransportRoom?servlet=...

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Exhibit 5

08/25/2008 [9591854] Order filed by Clerk of the Court (dec) Denying Appellant's "Motion toRemand the Appeal for Ruling on Open 28 USC 144 Affdivat" as moot. Served on08/25/2008.

09/02/2008 This entry has been removed from the docket - the document was a duplicate of the8/25/08.

09/19/2008 [9598312] Appellant's brief filed by Samuel K. Lipari. Original and 7 copies. Servedon 09/19/2008 by email. Oral argument requested? y. (Appendix 25 volumes isreceived. Original and 1 copy. Appendix pages: 9688. Appellees' brief due 10/23/2008for U.S. Bancorp, Jerry A. Grundhoffer, Andrew Cesere, Piper Jaffray Companies,Andrew S. Duff, Neoforma, Inc., Robert J. Zollars, Shugart Thomson & Kilroy, P.C.,U.S. Bank National Association, Volunteer Hospital Association, Curt Nonomaque,University Healthsystem Consortium, Robert J. Baker and Novation LLC.

09/19/2008 [9598314] Appellant's Appendix, (25 volumes) received from Samuel K. Lipari butnot filed. Original and 1 copy. Served on 09/19/2008. Manner of Service: US mail.

09/19/2008 [9598328] Appellant's motion filed by Samuel K. Lipari to supplement the record onappeal. Served on 09/19/2008. Manner of Service: US Mail.

09/23/2008 [9598444] Order filed by Clerk of the Court referring Appellant's motion tosupplement the record on appeal [9598328-2] to the panel on the merits. Served on09/23/2008.

09/23/2008 [9598639] Two boxes of exhibits (documents relating to motion to supplement record)received from Samuel K. Lipari but not filed, pending ruling on the motion tosupplement the record. (Hard copy only.)

10/17/2008 [9605279] Notice of change of address filed by Samuel K. Lipari.

10/27/2008 [9607574] Appellee brief filed by Mr. Robert J. Baker, Jr., Andrew Cesere, Andrew S.Duff, Jerry A. Grundhoffer, Neoforma, Inc., Curt Nonomaque, Novation LLC, PiperJaffray Companies, Shugart Thomson & Kilroy, P.C., U.S. Bancorp, U.S. BankNational Association, University Healthsystem Consortium, Volunteer HospitalAssociation, Watkins Boulware, PC and Robert J. Zollars. Original and 7 copies.Served on: 10/22/2008. Manner of service: US mail. Oral argument requested? n.Appellant's reply brief due 11/10/2008 by Samuel K. Lipari.

11/07/2008 [9611158] Appellant's reply brief filed by Samuel K. Lipari. Original and 7 copies.Served on 11/10/2008. Manner of Service: US mail.

PACER Service CenterTransaction Receipt

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Exhibit 6

in the state of missouri western district court of appeals … to remand the... · 2017-12-18 ·...

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