IN THE STATE OF MISSOURI JACKSON COUNTY MISSOURI ASSOCIATE CIRCUIT COURT SUGGESTION IN OPPOSITION TO PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL

Transcription

1 / IN THE STATE OF MISSOURI JACKSON COUNTY MISSOURI ASSOCIATE CIRCUIT COURT WACHOVIA DEALERS SERVICES, INC West 1l0thStreet, Suite 100 Overland Park, KS Plaintiff vs. SAMUEL K. LIPARI 803 S. Lake Drive Independence, MO Defendant Case No CV29828 SUGGESTION IN OPPOSITION TO PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following objection and Suggestion in Opposition to Plaintiffs Motion for Voluntary Dismissal as untimely and an admission of the defendant's earlier and unanswered Motion to Dismiss for Lack of Subject Matter Jurisdiction. Additionally the present action is a Replevin action and cannot be dismissed until the defendant's 2004 Audi A8L has been returned under RSMo STATEMENT OF FACTS 1. The plaintiff did not obtain a judgment entitling it to lawful possession or ownership of the defendant's business vehicle a 2004 Audi A8 L sedan with the VIN # WAUM144E84N The defendant filed a Motion for Dismissal For Lack of Subject Matter Jurisdiction because no executed or enforceable contract exists under RSMo (1 and (4. 3. The Motion for Dismissal For Lack of Subject Matter Jurisdiction has not been timely answered and is therefore admitted. 4. The defendant has demanded return of the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N with its full tank of gas.

2 IN THE STATE OF MISSOURI JACKSON COUNTY MISSOURI ASSOCIATE CIRCUIT COURT WACHOVIA DEALERS SERVICES, INC West 110 th Street, Suite 100 Overland Park, KS Plaintiff Case No CV29828 vs. SAMUEL K. LIPARI 803 S. Lake Drive Independence, MO Defendant!"##$!%&'(&('**'!&%&'( %'*+,&(%&--.!/'%&'(-'01'+"(%,023&!/&!!,+ Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following objection and Suggestion in Opposition to Plaintiff s Motion for Voluntary Dismissal as untimely and an admission of the defendant s earlier and unanswered Motion to Dismiss for Lack of Subject Matter Jurisdiction. Additionally the present action is a Replevin action and cannot be dismissed until the defendant s 2004 Audi A8L has been returned under RSMo STATEMENT OF FACTS 1. The plaintiff did not obtain a judgment entitling it to lawful possession or ownership of the defendant s business vehicle a 2004 Audi A8 L sedan with the VIN # WAUMl44E84N The defendant filed a Motion for Dismissal For Lack of Subject Matter Jurisdiction because no executed or enforceable contract exists under RSMo (1 and (4. 3. The Motion for Dismissal For Lack of Subject Matter Jurisdiction has not been timely answered and is therefore admitted. 4. The defendant has demanded return of the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N with its full tank of gas.! "!

3 SUGGESTION IN SUPPORT Upon his first appearance after service of process and the petition for replevin, the defendant delivered the car to the plaintiff with a written answer supported by an affidavit and evidence contesting the plaintiff s right to replevin. The plaintiff has voluntarily dismissed his petition and amended petition for replevin prior to a Due Process evidentiary hearing on the contested right to replevin or damages for breach of contract contested by the defendant. In Sanderson v. Nunn, 259 S.W. 892 (Mo. Ct. App. 1924, the Missouri Court of Appeals held that any act by the bailee inconsistent with the purpose of the bailment and in derogation and defiance of the bailor s rights would constitute a conversion. 259 S.W. at 894. In other words, the wrongful conduct of the bailee terminates the bailment, entitling the bailor to the possession of the property. [ Emphasis added] Id. A. Defendant Has Right to Return Of Property It is long established in Missouri precedent that the defendant has a clearly established right to return of the property upon the dismissal of a replevin action. In A Treatise On The Law Of Replevin, As Administered In The Courts Of The United States And England. by H. W. Wells, 2nd Edition, Albany Banks And Company 1907, at page 369 fn 71 it is pointed out that Missouri in McDermott v. Doyle, 11 Mo Contra Branch v. Branch, 6 Fla [An undertaking entitled in the cause and in these words we undertake that plaintiff shall duly prosecute the action with effect and without delay and return the property in controversy to defendants, if return be adjudged by the court, and pay defendants all such sums of money as they may recover against plaintiff for any cause whatever, without any description of the goods or any recitations whatsoever, is, it seems, a valid undertaking, Story v. O'Dea, 23 Ind. 327.] The H. W. Wells treatise at 489 Formal prayer for return not essential also states that The averment of title by the defendant will be sufficient. King v. Ramsay, 13 Ill. 623; Underwood v. White, 45 Ill. 438; Chandler v. Lincoln, 52 Ill. 76. Wells A Treatise On The! #!

4 Law Of Replevin Id at page 438. The defendant s accompanying Motion For Order For Plaintiff to Return Property of Defendant For Failure to Prosecute Under RSMo avers title in the defendant s name as the State of Missouri registered owner of the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N and includes a copy of the title. B. Dismissal Is Not Allowed Until Property Returned The following is from 1193 Plaintiff cannot dismiss to the detriment of the other party of A Practical Treatise On The Law Of Replevin: As Administered By The Courts By Joseph Elliott Cobbey, Callaghan And Company, 1890 By Joseph Elliott Cobbey. The Plaintiff cannot dismiss to the detriment of the other party. He cannot dismiss his suit so as to avoid a hearing as to the value or the damages. Ranney v. Thomas, 45 Mo, 112; Berghoff v. Heckwolf, 26 Mo. 512; Mikesell v. Chaney, 6 Port. (Ind. 52. Where such purpose is apparent, it is the duty of the court to retain the case and hear and determine the questions as to damages and a return of the property. Where the property is taken, replevin differs from all other actions in this respect, that both parties are actors, and as the plaintiff had taken property from the possession of defendant, the law will not permit him to dismiss the action out of court over the objection of defendant. In such a case the court will retain jurisdiction at the request of the defendant until it has put him in the same position he was before the action was brought, by returning the property to him. Marshall v. Bunker, 40 Iowa, 121; Berry v. O'Brien, 103 Mass. 521; Dawson v. Wetherbee, 2 Allen (Mass.462; Mason v. Richards, 12 Iowa, 74; Wilkins v. Treynor, 14 Iowa, 393; Fleet v. Lockwood, 17 Conn. 288; Ranney v. Thomas. 45 Mo. 112; Broom v. Fox, 2 Yeates (Pa., 530; Waldmon v. Broder, 10 Cal. 879; Hall v. Smith, 10 Iowa, 45. Ordinarily the plaintiff has a right to dismiss his action, but in replevin, after the property has been delivered to plaintiff, the position of the parties becomes, to all practical intents and! $!

5 purposes, reversed, and the law will not permit the plaintiff to reduce the property to possession by means of this writ and then prevent an adjudication of its status by dismissing his suit. A plaintiff in replevin, after taking the property, cannot dismiss the suit. Aultman v. Reams, 9 Neb. 487 (4 N. W. 81 The court will retain the cause, hear defendant's proof, and render an appropriate judgment. Ahlman v. Meyer, 19 Neb. 63 (26 N. W The plaintiff in replevin cannot, by a discontinuance of the action or by suffering a nonsuit, prevent a judgment being rendered against him for damages or for a return of the property; such act on his part merely amounts to an abandonment of the action by the plaintiff with the consent of the court, and does not affect defendant's rights or the jurisdiction of the court. Brannin v. Bremen, 2 N. M. 40. When the plaintiff does so dismiss the suit, the defendant may retain it or have it reinstated for the purpose of having these issues determined. In such cases the plaintiff is regarded as in default. Wilkins v. Treynor, 14 Iowa, 393; Kimnel v. Kint, 2 Watts (Pa., 432. In some states no order of return is made, but the plaintiff in liable on his bond for the return or their value Wiseman v. Lynn, 39 Ind. 254; Sanderson v. Lace, 1 Chand. (Wis. 231; Savage v. Gunter, 32 Ala. 469 but the more general as well as the better rule is as given in the text. The order for return must be made at the time of the dismissal; it cannot be made at a subsequent term. Lill v. Stookey, 72 Ill. 495 The right to the return should be determined in the replevin suit and not left to a subsequent suit. Harmon v. Goodrich, 1 Green. (Iowa 25; Mills v. Gleason, 21 Cal Where the suit is dismissed, or for other reasons the plaintiff fails to maintain his action, the court should return the property to the defendant or take such other steps necessary to place the parties and property in statu quo. See Boom v. St. Paul & Co., 3 Minn. 253 ( 22 N. W CONCLUSION! %!

6 Whereas for the above reasons the defendant respectfully requests that the court deny the plaintiff s motion for voluntary dismissal until the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N and a full tank of gasoline is returned to the defendant. Respectfully submitted, SAMUEL K. LIPARI Plaintiff, Pro Se CERTIFICATE OF SERVICE I certify I have sent a copy hand delivery to the undersigned counsel on 9/7/10 at their registered business address. Nicholas L. Ackerman Troppito & Miller, LLC 508 Walnut Street Kansas City, MO (T (F nla@troppitomiller.com Attorney for Wachovia Dealers Services, Inc. nka Wells Fargo Dealer Services, Inc. Respectfully submitted, SAMUEL K. LIPARI 803 S. Lake Drive Independence, MO saml@medicalsupplychain.com Defendant, Pro Se!! &!

7 / IN THE STATE OF MISSOURI JACKSON COUNTY MISSOURI ASSOCIATE CIRCUIT COURT WACHOVIA DEALERS SERVICES, INC West 1l0th Street, Suite 100 Overland Park, KS Plaintiff vs. SAMUEL K. LIPARI 803 S. Lake Drive Independence, MO Defendant Case No CV29828 MOTION FOR ORDER FOR PLAINTIFF TO RETURN PROPERTY OF DEFENDANT FOR FAILURE TO PROSECUTE UNDER RSMo Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following demand for the return of his 2004 Audi A8L in the form of a Motion For Order For Plaintiff to Return Property of Defendant For Failure to Prosecute Under RSMo : STATEMENT OF FACTS 1. The plaintiff did not obtain a judgment entitling it to lawful possession or ownership of the defendant's business vehicle a 2004 Audi A8 L sedan with the VIN # WAUM144E84N The defendant did not obtain title to the defendant's 2004 Audi A8 L sedan or effect an arm's length sale to protect the defendant's interest. 3. The defendant's 2004 Audi A8 L sedan is at Advanced Auto Sales 4801 Lamar Ave in Mission, Kansas under the control ofwachovia DEALERS SERVICES, INC. now known as Wells Fargo Dealers Services, Inc. See Exb. 1 KC Auto Advertisement. 4. The defendant is the registered owner of the 2004 Audi A8 L sedan with the VIN # WAUM144E84N See Exb. 2 Missouri State Automobile Title. 5. The plaintiff on August 31, 2010 filed a voluntary dismissal, ending prosecution of the defendant. 1

8 IN THE STATE OF MISSOURI JACKSON COUNTY MISSOURI ASSOCIATE CIRCUIT COURT WACHOVIA DEALERS SERVICES, INC West 110 th Street, Suite 100 Overland Park, KS Plaintiff Case No CV29828 vs. SAMUEL K. LIPARI 803 S. Lake Drive Independence, MO Defendant!"#$"%&'"(&"(*(&'"(&+,-$%#$''&#"&(*#.(%&+("+*(#/&& "'&*'*%-%#&'"(&'-$,.(*&#"&+("0*1.#*&.%*(&(0!2&3& & Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following demand for the return of his 2004 Audi A8L in the form of a Motion For Order For Plaintiff to Return Property of Defendant For Failure to Prosecute Under RSMo : STATEMENT OF FACTS 1. The plaintiff did not obtain a judgment entitling it to lawful possession or ownership of the defendant s business vehicle a 2004 Audi A8 L sedan with the VIN # WAUMl44E84N The defendant did not obtain title to the defendant s 2004 Audi A8 L sedan or effect an arm s length sale to protect the defendant s interest. 3. The defendant s 2004 Audi A8 L sedan is at Advanced Auto Sales 4801 Lamar Ave in Mission, Kansas under the control of WACHOVIA DEALERS SERVICES, INC. now known as Wells Fargo Dealers Services, Inc. See Exb. 1 KC Auto Advertisement. 4. The defendant is the registered owner of the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N See Exb. 2 Missouri State Automobile Title. 5. The plaintiff on August 31, 2010 filed a voluntary dismissal, ending prosecution of the defendant.! "!

9 6. Any sale of the defendant s car is conversion under Missouri law. SUGGESTION IN SUPPORT The plaintiff was not able to prove elements (1 and (5 required to state a claim for replevin under RSMo in the present action served on the defendant by the plaintiff on October 17, Missouri s RSMo Action to recover specific personal property, procedure states the following: If the plaintiff claim in his petition the possession of specific personal property, he may, at the time of filing his petition, or at any other time afterward, before the rendition of judgment in the cause, file his affidavit, or the affidavit of some other person in his behalf, showing: (1 That the plaintiff is the owner of the property claimed, sufficiently describing it, or is lawfully entitled to the possession thereof; (2 That it is wrongfully detained by the defendant; (3 The actual value thereof; (4 That the same has not been seized under any process, execution or attachment against the property of the plaintiff; and (5 That plaintiff will be in danger of losing his said property, unless it be taken out of the possession of the defendant, or otherwise secured. [Emphasis added] RSMo Action to recover specific personal property, procedure. A. No Judgment of Replevin Was Obtained The plaintiff being represented by the Missouri law firm TROPPITO & MILLER, LLC and the Missouri licensed attorneys NICHOLAS L. ACKERMAN, TONI R. MILLER and CHRIS M. TROPPITO is responsible for knowing the requirement of obtaining a judgment of replevin under RSMo to obtain the right to sell the defendant s automobile and the plaintiff did not obtain any judgment of this court. B. Any Sale During Replevin is A Conversion of the Defendant s Property The failure to retain the defendant s property is controlled by the case of Mohr v. Langan,162 Mo. 474, 63 S.W. 409, 410, which holds that property seized under a writ of replevin and delivered to a plaintiff, remains in custodia legis, with no power on the part of plaintiff to sell while the suit is pending. The decision then goes on to point out! #!

10 that if the plaintiff does sell, he is liable for conversion. C. No Evidentiary Hearing Has Been Held The Missouri Supreme Court and the United States Supreme Court have both determined that in order to be constitutional, Missouri s Replevin Statute RSMo requires satisfactory Due Process in a hearing. This court has scheduled the evidentiary hearing for December, The plaintiff has instead filed a voluntary dismissal on August 31, 2010 effecting an end to prosecution of its replevin action before the scheduled evidentiary hearing took place. The hearing was scheduled because the defendant in his answer to the plaintiff s initial petition and in his answer to the plaintiff s amended petition challenged the right of the plaintiff to take the defendant s car, alleging with supporting evidentiary documents that both the seizure of the defendant s car and the assertion of contractual default were frauds upon the court without basis in fact or law. The Missouri Supreme Court, in State ex rel. Williams v. Berrey, 492 S.W.2d 731 (Mo (en banc, declined to hold chapter 533 facially unconstitutional. It did, however, hold that a seizure under the statute pendente lite must be preceded by a court hearing which will satisfy the requirements of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972 in order to be constitutional under Article I, Section 10 of the Missouri Constitution, V.A.M.S. D. Defendant is the Rightful Owner The defendant is still the registered owner of the defendant s business vehicle, the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N There has been neither an evidentiary hearing or a judgment to provide a lawful basis for the plaintiff to possess or sell the defendant s car. Title of the car is still with the defendant. The plaintiff on August 31, 2010 responded to the defendant s Motion to Dismiss for Lack of Subject Matter Jurisdiction by filing a voluntary dismissal having the effect of conceding! $!

11 the averments of fact raised in the defendant s motion to dismiss and ending the prosecution of the defendant for replevin and breach of contract. E. Plaintiff Lacked Evidence of Any Enforceable Right The defendant s motion to dismiss utilized the plaintiff s own discovery to show there is no executed contract as defined and required by RSMo (1 and no contract enforceable against the defendant for failure of delivery as required as a condition precedent to enforce an installment automobile finance contract under RSMo (4 and irrefutably established that the plaintiff is not entitled to replevin and lacks the lawful possession element required under (1. F. Plaintiff Must Now Return The Car or Pay $ 24, The plaintiff s voluntary dismissal ended prosecution of the defendant on August 31, 2010 and subjects the plaintiff to the effect of RSMo Plaintiff--failure to prosecute his suit after obtaining property --value of property assessment which states: If the plaintiff fail to prosecute his action with effect and without delay, and shall have the property in his possession, and the defendant in his answer claims the same and demands a return thereof, the court or a jury may assess the value of the property taken, and the damages for taking and detaining the same for the time such property was taken or detained from defendant until the day of the trial of the cause. [Emphasis added] RSMo Plaintiff--failure to prosecute his suit after obtaining property --value of property. The defendant has now demanded return of the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N without delaying and on the fourth business day after the defendant mailed its voluntary dismissal signaling its failure to further prosecute the defendant. The plaintiff is now required under RSMo to return the defendant the 2004 Audi A8 L sedan with the VIN # WAUMl44E84N and the full tank of gas that was in it or to pay the defendant $ 24, being the value of the car at $21, in the attached Exb. 3! %!

12 Edmund s Appraisal and $2, the value of the mechanical work and engine friction reduction system provided by the defendant for the vehicle. The total $ 24, is not monetary damages which are being sought by the defendant in a related action for racketeering under 18 USC 1961 et seq. Instead, the total $ 24, is the amount to be paid to the defendant under RSMo within ten days should the plaintiff not return the car as elected by the defendant. CONCLUSION Whereas for the above stated reasons the defendant Samuel K. Lipari hereby respectfully requests the court order the return of the 2004 Audi A8L sedan with the VIN # WAUMl44E84N and the full tank of gas that is the property of the defendant. Respectfully submitted, SAMUEL K. LIPARI Plaintiff, Pro Se CERTIFICATE OF SERVICE I certify I have sent a copy hand delivery to the undersigned counsel on 9/7/10 at their registered business address. Nicholas L. Ackerman Troppito & Miller, LLC 508 Walnut Street Kansas City, MO (T (F nla@troppitomiller.com Attorney for Wachovia Dealers Services, Inc. nka Wells Fargo Dealer Services, Inc. Respectfully submitted, SAMUEL K. LIPARI 803 S. Lake Drive Independence, MO saml@medicalsupplychain.com Defendant, Pro Se! &!

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14 1:11.;; I. i i...iiii.i.li.. I.I..I.hlll..;1 LIPARI SAMlJEL K NE BAYVIEW DR M LEES SUMMIT VEHICLE SUBJECT TO FOLLOWING UEN(S FIRST LIEN WACHOVIA l':-o-jmx LIEN DATE DEALER SERV 01/30/2008 Lien release - To. release any lien shewn en the face ef this title,the lienhelder must cemplete a notarized Lien Release (DOR-4809 to. be attached to. this title befere the purchaser applies fer a Certificate ef Title IRVING 5016 LIEN DATE Any persen WlJe~riewingly.and. inten\ionallysubmits a separate pocument releasing alieno! anetherwithout authorit{\o dq soshillljjegujlty of a.cfelony.(: rsmci.... ~~~~~di i.~ ~ ~ i~i~ ~. ~. QdJ.. ~b ii~g;~i.~... ~...~b;ib~.. />TO>THEDEPARTMENTOF REVENUE s~ll.ingti11 s.v.e~icle;... I :".=...=..~~~_~--=-=--=~=~~=~_-=~J Exhibit 2

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