IN THE ST ATE OF MISSOURI JACKSON COUNTY SIXTEENTH CIRCUIT COURT AT INDEPENDENCE, MISSOURI

Transcription

1 IN THE ST ATE OF MISSOURI JACKSON COUNTY SIXTEENTH CIRCUIT COURT AT INDEPENDENCE, MISSOURI SAMUEL K. LIPARI, Plaintiff,, vs. NOVATION, LLC, et ai., Defendants. Circuit No CV04217 SUGGESTIONS OF DEFENDANT LATHROP & GAGE i.c. IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT OR ORDER UNDER RULE Defendant Lathrop & Gage, L'C. offers the following Suggestions in Opposition to Plaintiffs Motion for Relief From Judgment Or Order Under Rule An appeal of this case in its current posture is premature because the Order of Partial Dismissal did not adjudicate whole claims. Plaintiffs wholesale use of the word "Defendants" in the Petition makes it impossible to find that a complete judicial unit was disposed of by the Judgment of Partial Dismissal. I. FACTS Following this Court's Judgment of Partial Dismissal, Plaintiff Samuel Lipari sought an interlocutory appeal of the Order. The Appeal was dismissed because the Judgment of Partial Dismissal did not dispose of all parties, and is therefore not a final appe.ilab!c order SCIt 1(. :ZOOS Order attached as "Exhihit A." 1\11' Lipari sought I Lathrop & Gage notes that the Order of Partial Dismissal does not contain a clencal mistake justifying amendment under Mo.S.Ct R 74.06(a which IS evidently what Mr. Lipan relies upon as the basis for his Motion. The Order clearly states it IS a Partial Order. Nor is there any evidence of excusable neglect or fraud that could invoke 74.06(b. However, since the Partial Order was an interlocutory order that could be modified by the court at anytime prior to losing jurisdiction, Lathrop & Gage will address what appears to be the intended merits of the Motion. CC v2

2 transfer to the Supreme Court during the pendency of the interlocutory appeal. Exhibit B. After the appeal was ordered dismissed for lack of jurisdiction, he sought re-hearing or transfer in the Court of Appeals and requested a transfer from the Supreme Court, which were also summarily denied. The claims against Lathrop & Gage are not disposed of in the Judgment of Partial Dismissal and there is no reason to designate this claim as final until it is final. II. ARGUMENT A. The Judgment of Partial Dismissal is Not a Final Judgment. A final judgment is required before an appeal may be taken. Mo.Rev.Stat ; Missouri Supreme Court Rule (b; Jensen v, Howard, 926 S.W.2d 77 (Mo. Ct. App Even if this COUl1 expressly designated that there is "no just reason for delay," a judgment is not final unless it disposes of a claim completely. Committee/or Education Quality v. State, 878 S.W.2d 446, 450 (Mo (en bane; Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997; Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484 (Mo. Ct. App The Order of the Missouri Court of Appeals dismissing the appeal for lack of jurisdiction states that the order did not dispose of all parties. Designating the Partial Judgment of Dismissal as final will not dispose of all the parties. The Petition consists of584 paragraphs of "facts" and then Counts I-VI stated (without benefit of numbered paragraphs over the course of the last sixteen pages of the Petition. The six Counts are not addressed to specific defendants, at least not clearly. The Petition frequently uses the word "defendants" and only sometimes ascribes specific conduct to a specific defendant. Each of the six Counts either specifically or generally CC 2(53562<: 2

3 - identifies Lathrop & Gage as a "defendant." Each Count except Count II purports to incorporate by reference the ninety-three pages of "facts" that precede the Counts, Plaintiff alleges in paragraph 58 that Lathrop & Gage is a member of a product and services monopoly. Petition at 6, Many of the "fact" paragraphs allege conduct of the "defendants" without specific attribution to the individual defendant against whom the allegation is stated. See, e.g., Petition '1'159-68,83-84,95, ,243,250,305, 421, 423, 426, 428, 445 and 481. Lathrop & Gage is specifically identified as an alleged "co-conspirator" in Count 1, sub paragraph (b on page 94. On page 97 of Count 1, plaintiff alleges that Lathrop & Gage used its "influence" with clients that are "publishers" to the detriment of plaintiff. Counts II, III, IV, V and VI all make sweeping allegations against "defendants" for claims of monopoly, conspiracy to violate Mo.Rev.Stat (2, tortious interference wi til busi ness; fraud, and prima facie tort. These Counts do not speci f ca IIy identify the "defendants" that engaged in each of the alleged behaviors, Petition, pages The six individual Counts do not have a specific claim for relief for each Count. The collective Prayer for Relief seeks damages and other relief in a general fashion and is not directed to a specific defendant. Petition at Therefore, as a direct function of the indiscriminate manner in which plaintiff has structured his claims, Lathrop & Gage is at least arguably a "defendant" in each of the six Counts. At a minimum, on the record before this C01ll1, it is not clear that Lathrop & Gage is NOT a defendant In Counts 11-- VI. There is not a single count or claim that was fully disposed of by the Judgment of Partial Dismissal,2 Lockett \'. Owens-Corning 2 It IS obviously beyond the scope of these Suggestions to engage in substantive discussion of the merits of the claims. In its Answer, Lathrop & Gage denied the claims. CC v2 3

4 Fiberglass, 808 S.W.2d 902, 906 (Mo. Ct. App (order not disposing of single claim was not final even ifdesignated as such by the trial court. The Judgment of Partial Dismissal can only dispose of the liability of the dismissed defendants for those claims. No "judicial unit or units" are fully resolved by the Judgment of Partial Dismissal no matter how designated. See, Penn America fils. v, The Bar, lttc., 20 I S. W.3d 91 (Mo. Ct. App (requiring final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or OCCUITence which does not dispose of the claim, Plaintiffhas not pled any facts in his Motion for Relief from Judgment that compels an immediate appeal of the case. His suggestion that "all parties" will benefit from an immediate appeal is a conclusory statement that is not consistent with the pleadings filed by Lathrop & Gage and other defendants in the Court of Appeals that sought dismissal of the first attempted appeal because it was untimely. J If the interlocutory appeal is allowed and the Judgment of Partial Dismissal is affirmed, the Court will still be faced with the prospect ofa trial on the merits of the claims against Lathrop & Gage, If the Judgment of Partial Dismissal is overturned, the Court will still be faced with the prospect ofa trial on the merits of the claims against Lathrop & Gage and all the dismissed defendants, Either way, a trial may be necessary and an interlocutory appeal does not wisely use scant judicial and other resources, III. CONCLUSION Defendant Lathrop & Gage LC. respectfully submits that Plaintiff's Motion lor Relief From Judgment Or Order Under Rule should be denied. As a function of the Plaintiff can make an immediate appeal possible by dismissing the claims against any defendant (such as Lathrop that was not dismissed by the Judgment of Partial Dismissal. CC h2 4

5 indiscriminate pleading ofthe Petition, even the dismissal of the vast majority of the defendants does not fully dispose of any claims and a partial appeal as to some parties is not permitted. Judicial economy is promoted by a final and complete judgment and a single appeal. Respectfully submitted, LATHROP & GAGE L.C. By: William G, Beck (26849 Peter F, Daniel (33798 J. Alison Auxter ( Grand Boulevard, Suite 2800 Kansas City, Missouri Telephone: ( Telecopier: ( ATTORNEY FOR DEFENDANT LATHROP & GAGE i.c. CC \'2 5

6 CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing was served, by First Class United States mail, postage prepaid, on the following parties of record ~ day of November, 2008: Mr. Samuel K. Lipari Medical Supply Chain 3520 Akin Boulevard, #918 Lee's Summit, MO An Attorney for Defendan Lathrop & Gage ic CC 20S3SG2\2 6

7 S E P ;2 0AM MISSOURI COURT OF APPEAlS-WD NO, 1058 P. 111 IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICI' SAMUEL K. LIPARI, Appellant, vs, NOVATION, LLC, et al. Respondent, NoWD70001 Cir. Ct CV04217 ORDER NOW ON THIS DAY the Court finds that the judgment from which this appeal is taken does not dispose of all parties and, therefore, is not final and appealable, IT IS THEREFORE ORDERED that the appeal be, and the same is hereby dismissed. Appellant's application for transfer to the Missouri Supreme Court is taken up and denied. Dated this,if ~ day of September, cc: Samuel K. Lipari William E. Quirk & MarkA. Olthoff Michael J. Thompson John K Power Jay Heidrich: Peter F. Daniel Department of Civil Records

8 IN THE STATE OF MISSOURI WESTERN DISTRICT COURT OF APPEALS AT KANSAS CITY, MISSOURI Case No. WD70001 (16 th Cir. Case No SAMUEL K. LIPARI Appellant VS. NOVATION, LLC; NEOFORMA, INC; GHX, LLC; VOLUNTEER HOSPITAL ASSOCIATION; VHA MID-AIv1ERICA, LLC; CURT NONOMAQUE; THOMAS F. SPlNDLER; ROBERT H. BEZANSON; GARY DUNCAN; MAYNARD OLIVERIUS; SANDRA VAN TREASE; CHARLES V. ROBB; MICHEAL TERRY; UNIVERSITY HEALTHSYSTEM CONSORTIUM; ROBERT J. BAKER; JERRY A. GRUNDHOFER; RICHARD K. DAVIS; ANDREW CECERE; COX HEALTH CARE SERVICES OF THE OZARKS, [NC.; SAINT LUKE'S HEALTH SYSTEM, INC.; STORMONT-VAIL HEAL THCARE, INC.; SHUGHART THOMSON & KILROY, P.C.; HUSCH BLACKWELL SANDERS LLPI APPELLANT'S APPLICATION FOR TRANSFER PRIOR TO DISPOSITION OF THE ABOVE PENDING APPEAL TO THE MISSOURI SUPREME COURT UNDER RULE Prepared by Samuel K. Lipari Pro se Plaintiff 297 NE Bayview Lee's Summit, MO Two parties in the trial court action, ROBERT 1. ZOLLARS and LATHROP & GAGE L.c, have not been dismissed and are not party to this appeal.

9 TABLE OF CONTENTS Authorities A. Table of cases B. Table of statutes and treatises 11 Related cases II Application Statement for transfer of facts Suggestion in support 3 Certificate of service 4 Attachment I. Western District of Missouri Order to Show Cause included as an order required for application of transfer under (e(l A. TABLE OF CASES AUTHORITIES Committee for Educational Equality v. State, 878 S. W.2d 446 (Mo., 1994 Committee for Educational Equality v. State, 878 S. W.2d 446 (Mo., Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1465, 64 L.Ed.2d I ( E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,81 S.C!. 523, 5 L.Ed.2d 464 ( Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210 (Mo. App. S,O., Lawlor \' National Screen Service Corp. 349 US. 322,75 S.Ct. 865,99 LEd. 1122( Nash v. Plaza Electric, Inc., 363 S.W,2d 637, (Mo

10 Noll v. Noll, 286 S. W.2d 58 (Mo.App.1956 Zenith Radio Corp. v. Hazeltine Research, Inc., 40 I U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 ( B. TABLE OF STATUTES AND TREATISES Rule (b. Restatement (Second of Judgments 13 (1982 Rule 74.01(b 3 Rule 74.01(b 4 RELATED CASES Medical Supply Chain, Inc. v. Novation, Medical Supply Chain, Inc. v. Novation, et al, KS Dist. Court case no: et al, ro" Cir. USCA case no: Medical Supply Chain, Inc. v, Novation, et al, loth Cir. USCA case no: Samuel Lipari v. US Bancorp, NA, et al, KS. Dist. Case No. 2:07-cv CM (formerly Samuel Lipari v. US Bancorp, NA, et al, 16 1h Cir Mo. case no CY32307 Samuel Lipari v. General Electric et al. W. 0, of MO. Case No CY- W- FJG ( formerly Samuel Lipari v. General Electric et al. 16 th Cir. Mo. case no CY and before that Medical Supply Chain, Inc. v. General Electric Company, et al., KS Dist. case number CM State oj Mo ex rel v. Matthew R Blunt et al. 19 1h Cir. Case no. 08AC-CC Scott Eckersley v Matthew Roy Blunt et al16th Cir. Case no CYOO 118 Ex Ref Samuel Lipari, v. Hon. Michael Manners WD of Mo. Case no Ex Ref Samuel Lipari, v. Hon. Michael Manners Mo. Sup. Ct. Case no. SC88756 Ex ReI Matthew R Blunt,et al, v. Hon. Michael Manners Mo. Sup, Ct. Case no. SC

11 - APPLICATION FOR TRANSFER Comes now, the appellant Samuel K. Lipari appearing pro se and respectfully disposition requests transfer of his case to the Missouri Supreme Court prior to by the Western District Court of Appeals under rule The appellant Appellate seeks transfer while his appeal is pending because the Western District Court has sua sponte sought relief that would require altering or reversing this court's ruling in Committee/or Educational Equality v. State, 878 S.W.2d 446 (Mo., STATEMENT OF FACTS 1. The appellant informed the parties and the appellate court via his Aug , 2008 Notice of Appeal that the tria court had entered judgment on some but not all parties and claims. 2. The appellant's Notice of Appeal apprised the parties and appellate court of this fact in the notice's opening on page 1, the notice's statement of facts paragraphs 1 and 2 on page 2 and in the notice's accompanying suggestion oflaw stating the applicability of Rule (b. 3. The appellant has sought review of the trial court's dismissal of parties for the petition's failure to state a claim due to defendants assertion of res judicata preclusion over prior state law claims expressly dismissed by a federal court without prejudice and preclusion of claims on subsequent antitrust conducts contradicting the requirement for a final judgment under Noll v. NoLI, 286 S.W.2d 58, (Mo.App.1956; and Restatement (Second of Judgments 13 (1982

12 and contradicting the rule of no preclusion of liability for subsequent antitrust conduct under Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed (1955 and Zenith Radio Corp, v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795,28 L.Ed.2d 77( The appellant has also sought review of the trial court's dismissal of some claims based 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. 5. In an extra-judicial communication to the Western District Court of Appeals dated August 21, 2008, Peter F. Daniel an attorney for the defendant Lathrop & Gage L.c. sent a letter on Lathrop & Gage L.C.'s business correspondence stationary addressed to the clerk of the appellate court informing him that the trial court had entered judgment on some but not all parties and claims. 6. The Western District Court then entered an order prior to any brief or suggestions being filed by the appellant or appellees requiring the parties to provide suggestions of support and opposition to the appellate jurisdiction of the court on the finding that the trial court did not dismiss all of the claims and parties. See Attachment I Order of the Western District Court, 2

13 SUGGESTION IN SUPPORT The Western District Court of Appeals has on its own motion directed the pro se appellant to provide a suggestion of law to support appellate jurisdiction over the trial court's dismissal of claims and parties under Rule 74.01(b. The appellant's position WZIS further complicated by the unusual circumstances of having to refute a presumption of error against the trial court's exercise of clearly established discretion to dismiss one or more judicial units: "An appellant ordinarily has the burden of establishing prejudicial error on appeal; a respondent does not have the burden of establishing the correctness of the trial court's ruling. Nash v. Plaza Electric, Inc., 363 S.W,2d 637, 641 (Mo.1962." Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210 at 235 (Mo. App. S.D., Under the current controlling precedent of this court, the Hon. Judge Michael W. Manners as the trial court judge has the discretion to determine if some parties or claims are to enjoy a final judgment without delaying that resolution until the end of the litigation: "The circuit judge, in exercising that discretion, is granted broad latitude to act as a "dispatcher" of the case. Curtiss- Wright Corp, v. General Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1465, 64 L.Ed.2d I (1980," Committee for Educational Equality v. State, 878 S. W.2d 446 at 453 (Mo., The appellant believes that the Western District of Missouri Court is unable to rule on the Court's sua sponte motion for relief that contradicts Committeefor Educational Equality v. State, 878 S.W.2d 446 (Mo., 1994 and that if the relief 3

14 from this court's stare decisis ruling on the point of law' regarding the trial court's discretion to dismiss with prejudice are otherwise make final judgments on complete judicial units is warranted or that the Missouri State Legislature's provision for providing an early resolution to litigation under Rule (b is not a constitutionally valid public policy, jurisdiction over the appeal is solely within the Missouri Supreme Court. Pro se CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was forwarded this IIth day of September, 200S, by first class mail postage prepaid to: John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300 Kansas City, MO Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite 1100, 9225 Indian Creek Parkway Overland Park, Kansas William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345 Grand Boulevard, Suite 2S00, Kansas City, MO I "We recognize that generally, when a point of law has been settled by decision, it forms a precedent which is not afterwards to be departed from... " Porter v. Erickson Transport Corp., 851 S.W.2d 725 at 736 (Mo. App. S.D.,

15 "'~~''''''''; 4,/ _,_...,.. And in person by hand delvery to the Clerk of the Western District Court of Appeals. ----;7 /7 <:S/SaIllueJ Kcyfi,,./ ~{,.-~ _ ;y". ~. Samuel K. ipari'::::: 297 NE Bayview Lee's Summit, MO saml@medicalsupplychain.com Pro se 5

16 IN THE STATE OF MISSOURI JACKSON COUNTY SIXTEENTH CIRCUIT COURT AT INDEPENDENCE, MISSOURI SAMUEL K. LIPARI, Plainti ff,, vs. Circuit No CY04217 NOYATION, LLC, et ai., Defendants. SUGGESTIONS OF DEFENDANT LATHROP & GAGE L.c. IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT OR ORDER UNDER RULE Defendant Lathrop & Gage, L.c. offers the following Suggestions in Opposition to Plaintiffs Motion for Relief From Judgment Or Order Under Rule An appeal of this case in its current posture is premature because the Order of Partial Dismissal did not adjudicate whole claims. Plaintiffs wholesale use of the word "Defendants" in the Petition makes it impossible to find that a complete judicial unit was disposed of by the Judgment of Partial Dismissal. I. FACTS Following this COLlrt's Judgment of Partial Dismissal, Plaintiff Samuel Lipari sought an interlocutory appeal of the Order. The Appeal was dismissed because the Judgment of Partial Dismissal did not dispose of all parties, and is therefore not a final appc~lbblc orlk'r SCIt] (. 200~ Order ~\ttached ~ls "Exhihit i\." 1\11' Lipari sought I Lathrop & Gage notes that the Order of Partial Dismissal does not contain a clerical mistake justifying amendment under Mo.S.Ct R 74.06(a which IS evidently what Mr. Lipari relies upon as the basis for his Motion The Order clearly states it is a Pauia! Order. Nor is there any evidence of excusable neglect or fraud that could il1\'oke 74.06(b. However, since the Partial Order was an interlocutory order that could be modified by the court at anytime prior to losing jurisdiction, Lathrop & Gage will address what appears to be the intended merits of the fvlotlon. CC v2

17 transfer to the Supreme Couri during the pendency of the interlocutory appeal. Exhibit B. After the appeal was ordered dismissed for lack of jurisdiction, he sought re-hearing or transfer in the Court of Appeals and requested a transfer from the Supreme Court, which were also summarily denied. The claims against Lathrop & Gage are not disposed of in the Judgment of Partial Dismissal and there is no reason to designate this claim as final until it is final. II. ARGUMENT A. The Judgment of Partial Dismissal is Not a Final Judgment. A final judgment is required before an appeal may be taken. Mo.Rev.Stat ; Missouri Supreme Court Rule (b; Jensen v. Howard, 926 S.W.2d 77 (Mo. Ct. App Even if this COUli expressly designated that there is "no just reason for delay," a judgment is not final unless it disposes of a claim completely. Committeefor Education Quality v. State, 878 S.W.2d 446, 450 (Mo (en bane; Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997; Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484 (Mo. Ct. App The Order of the Missouri Court of Appeals dismissing the appeal for lack of jurisdiction states that the order did not dispose of all parties. Designating the Partial Judgment of Dismissal as final will not dispose of all the parties. The Petition consists of584 paragraphs of "facts" and then Counts I-VI stated (without benefit of numbered paragraphs over the course of the last sixteen pages of the Pdlliun. The six Counts are not addressed to specitic defendants, at least not clearly. The Petition frequently uses the word "defendants" and only sometimes ascribes specific conduct to a specific defendant. Each of the six Counts either specifically or generally CC \2 2

18 identifies Lathrop & Gage as a "defendant." Each Count except Count II purports to incorporate by reference the ninety-three pages of "facts" that precede the Counts. Plaintiff alleges in paragraph 58 that Lathrop & Gage is a member of a product and services monopoly. Petition at 6. Many of the "fact" paragraphs allege conduct of the "defendants" without specific attribution to the individual defendant against whom the allegation is stated. See. e.g., Petition '1'159-68,83-84,95, ,243,250,305, 421, 423, 426, 428, 445 and 481. Lathrop & Gage is specifically identified as an alleged "co-conspirator" in Count I, sub paragraph (b on page 94. On page 97 of Count I, plaintiff alleges that Lathrop & Gage used its "influence" with clients that are "publishers" to the detriment of plaintiff. Counts II, III, IV, V and VI all make sweeping allegations against "defendants" for claims of monopoly, conspiracy to violate Mo.Rev.Stat (2, tortious interference with business; fraud, and prima facie tort. These Counts do not specifically identify the "defendants" that engaged in each of the alleged behaviors. Petition, pages The six individual Counts do not have a specific claim for relief for each Count. The collective Prayer for Relief seeks damages and other relief in a general fashion and is not directed to a specific defendant. Petition at Therefore, as a direct function of the indiscriminate manner in which plaintiff has structured his claims, Lathrop & Gage is at least arguably a "defendant" in each of the six Counts. At a minimum, on the record before this COllJ1, it is not clear that Lathrop & Gage is NOT a defendant In Counts 11-- Vl. There is not a sll1gk count or claim that \\ds fully disposed ofb' the Judgment of Partial Dismissal. 2 Lockett \'. Dwells-Corning 2 It IS obviously beyond the scope of these Suggestions to engage in substantive discussion of the ments of the claims. In its Answer, Lathrop & Gage denied the claims. CC v2 3

19 Fiberglass, 808 S.W.2d 902, 906 (Mo. Ct. App (order not disposing of single claim was not final even ifdesignated as such by the trial court. The Judgment of Partial Dismissal can only dispose of the liability of the dismissed defendants for those claims. No "judicial unit or units" are fully resolved by the Judgment of Partial Dismissal no matter how designated. See, Penn America fils. v. The Bar, filc., 20 I S. W.3d 91 (Mo. Ct. App (requiring final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or OCCUITence which does not dispose of the claim. Plaintiffhas not pled any facts in his Motion for Relief from Judgment that compels an immediate appeal of the case. His suggestion that "all parties" will benefit from an immediate appeal is a conclusory statement that is not consistent with the pleadings filed by Lathrop & Gage and other defendants in the Court of Appeals that sought dismissal of the first attempted appeal because it was untimely. J If the interlocutory appeal is allowed and the Judgment of Partial Dismissal is affinlled, the Court will still be faced with the prospect ofa trial on the merits of the claims against Lathrop & Gage. If the Judgment of Partial Dismissal is oveliurned, the Court will still be faced with the prospect ofa trial on the merits of the claims against Lathrop & Gage and all the dismissed defendants. Either way, a trial may be necessary and an interlocutory appeal does not wisely use scant judicial and other resources. III. CONCLUSION!JctemJant Lathrop & Gage L.c. respectfully submits that Plail1liCCs Motion Jor Relief From Judgment Or Order Under Rule should be denied. As a function of the Plaintiffcan make an immediate appeal possible by dismissing the claims against any defendant (such as Lathrop that was not dismissed by the Judgment of Partial Dismissal. CC \2 4

20 indiscriminate pleading ot~the Petition, even the dismissal of the vast majority of the defendants does not fully dispose of any claims and a partial appeal as to some parties is not pemlitted. Judicial economy is promoted by a final and complete judgment and a single appeal. Respectfully submitted, LATHROP & GAGE L.c. By: _Mit~iJ William G. Beck (26849 Peter F. Daniel ( Alison Auxter ( Grand Boulevard, Suite 2800 Kansas City, Missouri Telephone: ( Telecopier: ( ATTORNEY FOR DEFENDANT LATHROP & GAGE L.C. CC 20535G2\'2 5

21 CERTIFICATE OF SERVICE I hereby cel1ify that a copy of the above and foregoing was served, by First Class United States mail, postage prepaid, on the following parties of record day of November, 2008: Mr. Samuel K. Lipari Medical Supply Chain 3520 Akin Boulevard, #918 Lee's Summit, MO An Attorney for Defendan Lathrop & Gage L.c. CC 20535G2\2 6

22 SEP, 19, ;20AM MISSOURI COURT OF APPEAlS-WD NO, 1058 P. 1/1 IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICI' SAMUEL K. LIPARI, Appellant, NoWD70001 Cir. Ct, 0816-CV04217 vs. NOVATION, LLC, et al. Respondent, ORDER NOW ON THIS DAY the Court finds that the judgment from which this appeal is taken does not dispose of all parties and, therefore, is not final and appealable, IT IS THEREFORE ORDERED that the appeal be, and the same is hereby dismissed. Appellant's application for transfer to the Missouri Supreme Court is taken up and denied...._ Dated this _--t-,/_f,--_t_~_ day of September, cc: Samuel K. Lipari William E. Quirk &MarkA. Olthoff Michael J. Thompson John K Power Jay Heidrid: Peter F. Daniel Department of Civil Records

23 IN THE STATE OF MISSOURI WESTERN DISTRICT COURT OF APPEALS AT KANSAS CITY, MISSOURI Case No. WD70001 (16 th Cir. Case No SAMUEL K. LIPARl Appellant VS. NOVATION, LLC; NEOFORMA, INC; GHX, LLC; VOLUNTEER HOSPITAL ASSOCIATION; VHA MID-AIv1ERlCA, LLC; CURT NONOMAQUE; THOMAS F. SPlNDLER; ROBERT H. BEZANSON; GARY DUNCAN; MAYNARD OLIVERIUS; SANDRA VAN TREASE; CHARLES V. ROBB; MICHEAL TERRY; UNIVERSITY HEALTHSYSTEM CONSORTIUM; ROBERT J. BAKER; JERRY A. GRUNDHOFER; RICHARD K. DAVIS; ANDREW CECERE; 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 l APPELLANT'S APPLICATION FOR TRANSFER PRIOR TO DISPOSITION OF THE ABOVE PENDING APPEAL TO THE MISSOURI SUPREME COURT UNDER RULE Prepared by Samuel K. Lipari Pro se Plaintiff 297 NE Bayview Lee's Summit, MO saml@medicalsupplychain.com I Two parties in the trial court action, ROBERT 1. ZOLLARS and LATHROP & GAGE L.c. have not been dism issed and are not party to lh is appeal.

24 TABLE OF CONTENTS Authorities A. Table of cases B. Table of statutes and treatises 11 Related cases 11 Application for transfer Statement of facts Suggestion in support 3 Certificate of service 4 Attachment 1. Western District of Missouri Order to Show Cause included as an order required for application of transfer under (e(i A. TABLE OF CASES AUTHORITIES Committee for Educational Equality v. State, 878 S.W.2d 446 (Mo., 1994 Committee for Educational Equality v. State, 878 S. W.2d 446 (Mo., Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1,8, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1 ( E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,81 S.Ct. 523, 5 L.Ed.2d 464 ( Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210 (Mo. App. S.D., Lavvlor v /\'wiol2a! Sacen Service Corp US. 322, 75 S.C!. 865, 99 L.Ed. 1122( Nash v. Plaza Electric, Inc., 363 S. W.2d 637, (Mo

25 Noll v. Noll, 286 S. W.2d 58 (Mo.App.1956 Zenith Radio Corp. v. Hazeltine Research, Inc., 40 I U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 ( B. TABLE OF STATUTES AND TREATISES Rule (b. Restatement (Second of Judgments 13 (1982 Rule 74.01(b Rule 74.01(b 3 4 RELATED CASES Medical Supply Chain, Inc. v. Novation, et ai, KS Dist. Court case no: Medical Supply Chain, Inc. v. Novation, et ai, loth Cir. USCA case no: Medical Supply Chain, Inc. v. Novation, et ai, 10 lh Cir. USCA case no: Samuel Lipari v. US Bancorp, NA, et ai, KS. Dist. Case No. 2:07-cv CM (fonnerly Samuel Lipari v. US Bancorp, NA, et ai, 16 th Cir Mo. case no CY32307 Samuel Lipari v. General Electric et af. W. D. of MO. Case No CY- W FJG ( formerly Samuel Lipari v. General Electric et af. 16 th Cir. Mo. case no CY and before that Medical Supply Chain, Inc. v. General Electric Company, et az', KS Dist. case number CM State ojmo ex rei v. Matthew R Blunt et al. 19 1h Cir. Case no. 08AC-CC Scott Eckersley v Matthew Roy Blunt et al16th Cir. Case no CYOO 118 Ex Ref Samuel Lipari, v. Hon. Michael Manners WD of Mo. Case no Ex Ref Samuel Lipari, v. Hon. Michael Manners Mo. Sup. Ct. Case no. SC88756 Ex ReI Matthew R Blunt,et ai, v. Hon. Michael Manners Mo. Sup. Ct. Case no. SC

26 - APPLICATION FOR TRANSFER Comes now, the appellant Samuel K. Lipari appearing pro se and respectfully requests transfer of his case to the Missouri Supreme Court prior to disposition by the Western District Court of Appeals under rule The appellant seeks transfer while his appeal is pending because the Western District Appellate Court has sua sponte sought relief that would require altering or reversing this court's ruling in Committee/or Educational Equality v. State, 878 S.W.2d 446 (Mo., STATEMENT OF FACTS 1. The appellant informed the parties and the appellate court via his Aug , 2008 Notice of Appeal that the trial court had entered judgment on some but not all parties and claims. 2. The appellant's Notice of Appeal apprised the parties and appellate court of this fact in the notice's opening on page 1, the notice's statement of facts paragraphs 1 and 2 on page 2 and in the notice's accompanying suggestion oflaw stating the applicability of Rule (b. 3. The appellant has sought review of the trial court's dismissal of parties for the petition's failure to state a claim due to defendants assertion of res judicata preclusion over prior state law claims expressly dismissed by a federal court without prejudice and preclusion of claims on subsequent antitrust conducts contradicting the requirement for a final judgment under Noll v. NoLI, 286 S. W.2d 58, (Mo.App.1956; and Restatement (Second of Judgments 13 (1982

27 and contradicting the rule of no preclusion of liability for subsequent antitrust conduct under Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed (1955 and Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795,28 L.Ed.2d 77 ( The appellant has also sought review of the trial court's dismissal of some claims based 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. 5. In an extra-judicial communication to the Western District Court of Appeals dated August 21, 2008, Peter F. Daniel an attorney for the defendant Lathrop & Gage L.c. sent a letter on Lathrop & Gage L.C. 's business correspondence stationary addressed to the clerk of the appellate court informing him that the trial court had entered judgment on some but not all parties and claims. 6. The Western District Court then entered an order prior to any brief or suggestions being filed by the appellant or appellees requiring the parties to provide suggestions of support and opposition to the appellate jurisdiction of the court on the finding that the trial court did not dismiss all of the claims and parties. See Attachment 1 Order of the Western District Court. 2

28 SUGGESTION IN SUPPORT The Western District Court of Appeals has on its own motion directed the pro se appellant to provide a suggestion of law to support appellate jurisdiction over the trial court's dismissal of claims and parties under Rule 74.01(b. The appellant's position was further complicated by the unusual circumstances of having to refute a presumption of error against the trial court's exercise of clearly established discretion to dismiss one or more judicial units: "An appellant ordinarily has the burden of establishing prejudicial error on appeal; a respondent does not have the burden of establishing the correctness of the trial court's ruling. Nash v. Plaza Electric, Inc., 363 S. W.2d 637, 641 (Mo.1962." Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210 at 235 (Mo. App. S.D., Under the current controlling precedent of this court, the Han. Judge Michael W. Manners as the trial court judge has the discretion to detennine if some parties or claims are to enjoy a final judgment without delaying that resolution until the end of the litigation: "The circuit judge, in exercising that discretion, is granted broad latitude to act as a "dispatcher" of the case. Curtiss- Wright Corp. v. General Electric Co., 446 U.S. 1,8,100 S.Ct. 1460,1465,64 L.Ed.2d I (1980." Committee for Educational Equality v. State, 878 S. W.2d 446 at 453 (Mo., The appellallt believes that the Western District of Ivfissouri Court is unable to rule on the Court's sua sponte motion for relief that contradicts Committeefor Educational Equality v. State, 878 S.W.2d 446 (Mo., 1994 and that if the relief 3

29 from this court's stare decisis ruling on the point of law l regarding the trial court's discretion to dismiss with prejudice ore otherwise make final judgments on complete judicial units is warranted or that the Missouri State Legislature's provision for providing an early resolution to litigation under Rule (b is not a constitutionally valid public policy, jurisdiction over the appeal is solely within the Missouri Supreme Court. Respectively submi ed, /-;::7' ~$-~~el K.j ~// -...-_. ~ c:~/ d CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing instrument was forwarded this II th day of September, 2008, by first class mail postage prepaid to: John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300 Kansas City, MO Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite 1100, 9225 Indian Creek Parkway Overland Park, Kansas William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345 Grand Boulevard, Suite 2800, Kansas City, MO I "We recognize that generally, when a point of law has been settled by decision, it forms a precedent which is not afterwards to be departed from... " Porter v. Erickson Transport Corp., 851 S.W.2d 725 at 736 (Mo. App. S.D.,

30 And in person by hand delve!' to the Clerk of the Western District Court of Appeals. _--;/ /7 <:S/SaIlluel KcYfi,,./ ~{...,.-~ / boy"- ~. "'~~...:: 4,/../----- Samuel K. ipari ~' 297 NE Bayview Lee's Summit, MO I I306 saml@medicalsupplychain.com Pro se 5