Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 1 of 33 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION James Helenthal, Plaintiff, v. CHARLES POLK And LATHROP & GAGE, L.C. And GILBERT BOYCE And Defendants ) ) ) ) ) ) ) ) ) ) Cause # JURY TRIAL DEMANDED ________________________ COMPLAINT For his causes of action against the defendants, plaintiff states: JURISDICTION: 1. Jurisdiction is based on diversity of citizenship and amount under Title 28 U.S.C. §1332. Plaintiff James Helenthal is a citizen of Illinois. Defendant Charles Polk is a citizen of Missouri who is currently a prisoner in the custody of the Bureau of Prisons of the U.S. Government serving a sentence Ordered by Hon. Judge Limbaugh of this Court in Cause # 4:05-CR-00157-SNL-FRB on August 31, 2006, after Polk plead guilty to a series of federal crimes, including crimes against plaintiff Helenthal that are in part the subject of this suit. Defendant Lathrop & Gage, L.C. is a limited liability company and a citizen of Missouri. Defendant Boyce is a citizen of Washington, D.C. The amount in controversy exceeds Seventy Five Thousand dollars, exclusive of interest and costs. 2. Pursuant to Rule 8(a)(2)(3), Plaintiff states that in Count 1 he seeks a 1 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 2 of 33 judgment awarding damages against defendant Polk based on Polk’s tortious misconduct in filing and prosecuting a lawsuit against Helenthal in U.S. District Court Washington D.C. claiming Helenthal breached a contract to employ Polk as his “General Counsel” in Washington D.C., when that suit was prosecuted to cover up and obstruct Helenthal’s pursuit of justice with respect to crimes Polk committed against Helenthal, and for which Polk has accepted responsibility and accepted a plea bargain sentence in Cause # 4:05-CR-00157-SNL-FRB that included paying Helenthal restitution of $382,000.00. 3. Pursuant to Rule 8(a)(2)(3), plaintiff states that in Count 2 he seeks a judgment awarding damages against defendant Lathrop & Gage L.C. for its multiple acts of negligence with respect to Helenthal, its client: negligence in hiring Polk as a lawyer, without adequate research into his competence and fitness, where all his federal crimes were discoverable, among a larger list of misconduct; and/or negligence in making Polk Vice Chairman in charge of Lathrop’s Washington D.C. office, when Polk was only licensed to practice law in Missouri; and/or negligence in allowing Polk to participate in representing Helenthal’s Tri-State Shopper Illinois Federal court antitrust suit when Polk was incompetent in antitrust law, and unlicensed in Illinois; and/or negligence in failing to monitor, supervise, and stop Polk’s fraudulent Fairness for OKC scheme perpetrated on Helenthal while Polk was Lathrop’s Vice Chairman in charge of its Washington D.C. office; and/or negligence in failing to assist Helenthal in obtain immediate refund and mitigation of losses. 4. Pursuant to Rule 8(a)(2)(3), Plaintiff states that in Count 3 he seeks a judgment awarding damages against defendant Boyce based on Boyce’s tortious 2 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 3 of 33 misconduct in filing and prosecuting Polk’s lawsuit against Helenthal in U.S. District Court Washington D.C. claiming Helenthal breached a contract to employ Polk as his “General Counsel” in Washington D.C., when that suit was prosecuted to cover up, and obstruct Helenthal’s pursuit of justice with respect to, the crimes Polk committed against Helenthal when on its face the suit was fraudulent and frivolous, and when he knew or should have known the pretenses. 5. Pursuant to Rule 8 (a)(2)(3), Plaintiff states that in Count 4 he seeks a judgment declaring that a partial summary judgment entered by the City of St. Louis Circuit Court in favor of Lathrop & Gage L.C. against some of Helenthal’s claims that Lathrop was vicariously liable for Polk’s misconduct vis-à-vis Helenthal, and for mail fraud in billing Helenthal for Polk’s legal work is invalid because it violated Helenthal’s Constitutional Rights not to be deprived of his property without due process of law, and hence Lathrop & Gage is vicariously liable for all damages Polk has been assessed owing to Helenthal, and liable for mail fraud in billing Helenthal thousands of dollars through the U.S. Mail for “legal work” by Polk that Polk admitted he never provided – all an extension of frauds Polk committed against other clients – and which Polk admitted in deposition he never provided, and a Lathrop bill to Helenthal for Polk’s work in creating the above alleged agreements launching Polk’s fraudulent Fairness for OKC scheme. More particularly, Helenthal sued Polks in St. Louis County, and sued Lathrop separately in St. Louis City Circuit Court. Helenthal won a default judgment against Polks in the County, and a “Damages Only” inquiry. Helenthal waived jury trial for the damages only default judgment inquiry as to the damages Polks owed Helenthal. 3 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 4 of 33 The Court allowed Lathrop to “participate” as Intervenor in that case, notwithstanding the City Court case had exclusive jurisdiction over Helenthal’s claim against Lathrop. In unprecedented civil procedure, during the default inquiry the court stopped Helenthal’s damages proof, and then made “findings of fact” unnecessary to the damages, without notice, despite objection, and without litigation, to exonerate Lathrop & Gage L.C. and stop Helenthal’s suit in the City. Helenthal appealed those unlitigated unnecessary findings. The Missouri Court of Appeals affirmed the Default Judgment awarding Helenthals damages from Polks, and ordered that its opinion to be unpublished, not to be cited or used in other case, on the basis it had no precedential value. But then Lathrop convinced the City Circuit Court to use that secrete opinion to collaterally estop Helenthal’s City Circuit Court case claims Lathrop was vicariously liable for Polk, and mail fraud claims. Helenthal again appealed, and the Missouri Court of appeals issued another secret opinion, not to be used or published memorandum affirming the partial summary judgment, on the basis it had no precedential value. The default judgment damages only inquiry in favor of Helenthal against Polk in St. Louis County secret – do not publish, do not use, do not cite, secret appellate opinions do not satisfy Helenthal’s rights to Due Process of law under the U.S. Constitution, and the estoppel is faulty under principles of law summarized in Restatement (Second) of Judgments, §§ 86-Effect of State Court Judgment in a Subsequent Action in Federal Court (1) (2); §81-Invalid Judgments (multiple state application); §80 Relief in The Course of a Subsequent Action; §71 Judgment Based on Mistake (c) denial of Fair Hearing by the court of the opportunity to present a claim; § Judgment – other wrongs; §69 Lack of jurisdiction of 4 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 5 of 33 the County Circuit Court to validly assert any findings purporting to affect Helenthal’s rights vis-à-vis Lathrop & Gage (as “Intervenor) where the City Circuit Court always had exclusive jurisdiction over Helenthal’s claims against Lathrop; §1 Requisites of a Valid Judgment; §2 Adequate Notice, and Irregular Notice and subject jurisdiction. Beyond the judgment declaring the purported partial summary judgment is invalid, Helenthal seeks a judgment that Lathrop & Gage is liable vicariously for all Polk’s damages to Helenthal based on either common law agency, or more importantly extraordinary vicarious liability established by Missouri Limited Liability Company Act, particularly for the County Judgment awarding Helenthal 3.5 million dollars from Charles Polk, and the restitution ordered by this court, and further that Lathrop & Gage L.C. is liable for actual and punitive damages for mailing bills to Helenthal for thousands of dollars of charges ostensibly for legal work Polk did on his case, where Polk admitted (1) he was incompetent in antitrust law, and (2) he never did any legal work for Helenthal, and (3) Lathrop billed Helenthal for Polk’s legal work in composing the fee split contracts above that launched Polk’s fraudulent and criminal Fairness for OKC scheme. 6. In Count 5 Helenthal seeks a judgment of damages against Lathrop & Gage, L.C. for its role in contributing to Polk’s tortious lawsuit in Washington D.C. where Lathrop was trying to secretly broker a settlement with Helenthal – its client – while it continued to represent him a federal antitrust suit in Illinois court, knowing that Polk had conned Helenthal for hundreds of thousands of dollars, but refused to credit him. Polk truncated his deposition by invoking his 5th Amendment privileges so 5 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 6 of 33 Plaintiffs’ ability to discover all the dimensions of this has not been fulfilled. 7. In Count 6 Helenthal seeks a declaratory judgment of his rights to have the Order of Restitution enforced as a judgment in his favor under the Crime Victims Rights Act. 8. Hereafter plaintiff pleads facts with heightened specificity under F.R.Civ.P. Rules 8(a) and 9(b), as construed in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), Erickson v. Pardus, 127 S.Ct.2187 (2007) and BJC Health System v. Columbia Casualty Co. et al, 478 F.3d 908(8th Cir. 2006) because this case relates to Polk’s crimes involving fraud culminating in a fraudulent and malicious abuse of process suit by Polk against Helenthal to cover up and obstruct Helenthal’s pursuit of justice vis-à-vis Polk and Lathrop & Gage as to those crimes. All attachments are incorporated by reference without repetitive pleading. I. Background Allegations: 9. Charles E. Polk, Jr. was formerly a lawyer licensed by the State of Missouri under the authority of the Missouri Supreme Court. In the late 1980’s and early 1990’s he worked to represent the Missouri Second Injury Fund (SIF) when it was abused in a political ‘kick back’ scheme that resulted in several federal convictions of Missouri government officials and employees. The law firm that employed Polk while he represented the SIF discharged him, and he embarked on a career with several other firms, and political fundraising. In the course of Polk’s legal career, in the late 1990’s he undertook a series of fraudulent schemes, submitted false bills through United States mail to the St. Louis Metropolitan Sewer District, falsely claimed to be ‘General 6 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 7 of 33 Counsel’ for MSD, extorted money from legal clients such as former Cardinal baseball player Brian Jordan in the “Gameface” scheme, misrepresented his positions and work, wrongfully took money sent through U.S. mail from Webster University without providing service, and engaged in schemes involving Allegiant Bank, and failed to file income tax returns beginning around 1998. The U.S. attorney detailed these fraud schemes at Polk’s sentencing hearing. 10. Polk was never licensed to practice law in Washington D.C., or in Illinois, or anywhere but in Missouri. 11. In March 2001, Lathrop & Gage, L.C., hired attorney Polk to be “Vice- Chairman” and in charge of Lathop & Gage’s Washington D.C. office despite the fact Polk was not licensed to practice law in Washington D.C. 12. In September 2001, Helenthal hired Lathrop & Gage L.C. to represent him and his “Tri-State Shopper” advertising business in an Illinois Federal Antitrust case, in part base on Lathrop & Gage’s advertisements and public relations promotions representations about Polk. 13. Beginning in October 2001, Lathrop and Gage provided Polk to work on/for Helenthal’s antitrust case, and billed Helenthal for legal work Polk pretended to do where Polk was incompetent in antitrust and unlicensed in Illinois. This will be pleaded more particularly below. 14. Beginning in March 2002, Polk ‘conned’ Helenthal into Polk’s Fairness for OKC scheme, culminating in taking Helenthal’s $132,000.00 check payable to Polk’s wife on March 29, 2002, and later Helenthal’s $250,000.00 wire transfer to Polk 7 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 8 of 33 in early April 2002, in exchange for: (1) promising to “split” Polk’s expected legal fees of millions of dollars from organizing the victims of the Oklahoma Murray Federal Court building bombing into a class action to join the 9-1-1 Fund of victims of terrorist attacks; and (2) to prosecute Helenthal’s Illinois antitrust case on a contingency fee instead of the original hourly fee basis. The subject of that federal prosecution involved a series of agreements attorney Polk ‘conned’ Helenthal to sign, beginning with the following agreement, Exh.341 that Helenthal signed in St. Louis (SW Airline Bar), which states and provides: Polk, Charles To: Subject: Jim Helenthal Fairness for OKC; agreement between Helenthal and Polk interests Jim, I enjoyed working with you re: the above project. It is a great feeling to help the fine people of OKC. Pursuant to our previous conversation, the State of Missouri does not allow fee splitting between lawyers and lay persons. However, the District of Columbia does. This makes a great deal of sense for us, as all of our work and effort is concentrated in the District. Obviously, this authority to split fees in the District is good for us, as our effort has truly been a joint effort. We both put a great deal of thought and effort in this project. I would suggest that we proceed by having an entity in Washington that is owned by us and reflects our agreement of a split of 45 percent for you and 55 percent for me and my group. As you know, we are both due in Washington next week. I suggest that we have documents drafted by a local firm familiar with the law on that trip. Further, as we both know, there will be other attorney groups involved in this effort. However, the split of our portion of the efforts will always remain the same as noted above. This is a voluntary agreement entered into with full knowledge and consent of both parties. This agreement shall have no impact upon previous relationships between the parties and/or their representatives. This agreement shall be deemed to be executed and consummated in the District of Columbia. 15. In addition to those written terms, Polk told Helenthal he’d have to contribute $132,000 to participate in the agreement. 8 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 9 of 33 16. The statements contained in Polk’s OKC Venture agreement, above, particularly (1)“Pursuant to our previous conversation, the State of Missouri does not allow fee splitting between lawyers and lay persons. However, the District of Columbia does”; and (2) “Obviously this authority to split fees in the District is good for us…” and (3)“reflects our agreement of a split of 45% for you and 55% for me and my group”. Referred to and contemplated sharing of Polk’s legal fees from Polk’s expected attorney client representation of victims of the Oklahoma bombing, an attorney “fee split” and sharing between Polk, a lawyer, and Helenthal, a non lawyer. Both Helenthal and Polk signed that agreement. 17. The District of Columbia Bar ethics did not allow lawyers to share legal fees with lay persons, contrary to Polk’s assertion. 18. On March 29, 2002, pursuant to this first aspect of Polk’s Fairness for OKC Venture scheme, the oral agreement as memorialized partially in Polk’s first written agreement above, Mr. Helenthal paid Cheryl Polk $132,000.00, by check all to his injury and damage. Then Helenthal began to solicit the clients for Polk in Oklahoma, detouring from his Tri-State Shopper business, compromising the efficacy of any hope of success in Lathrop’s ongoing Anti-trust suit. 19. Shortly after Helenthal paid the $132,000.00 check payable to Mrs. Polk, Charles Polk tendered Helenthal Ex. 14, a modified “Fairness for OKC Venture” Oklahoma City Bombing Scheme agreement, which memorialized the second prong of Helenthal’s understanding, that Polk would assume primary representation of Helenthal’s original Tri-State Shopper antitrust case on a contingency fee basis instead 9 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 10 of 33 of hourly at Lathrop & Gage. Ex. 14, which states: Polk, Charles To: Subject: Jim Helenthal Fairness for OKC; agreement between Helenthal and Polk interests The parties to this Memorandum of Agreement shall immediately seek joint counsel to draft the agreement per these terms. Mr. Helenthal and Mr. Polk shall enter into a partnership whereby any amounts collected shall be split evenly unless indicated as follows: OKC venture 55 % percent for Mr. Polk and 45 % percent for Mr. Helenthal and QNI shall be 55 % percent for Mr. Helenthal and 45 %percent for Mr. Polk. All other amounts from the partnership shall be split evenly or as agreed to in writing by the parties hereto. Mr. Polk shall serve as counsel and chief lobbyist for the partnership and as such shall be responsible for the handling of all legal/lobbying matters regarding the partnership’s interest. The partnership shall be an entity that is recognized and legally allowable in the jurisdiction(s) where created. In order to effect the relationship as contemplated, more than one entity and more than one jurisdiction may need to be utilized. The parties hereby agree that their primary responsibilities shall be to their joint ventures. However, the parties also agree and understand that Mr. Polk may retain a “of counsel” type of relationship with a reputable firm or lobbying shop. In addition, Messrs Polk and Helenthal may form other entities to be utilized for tax planning purposes. Regardless of the entities formed the parties shall have equal ownership and control. Mr. Helenthal shall immediately owe and pay Mr. Polk the sum of $250,000.00 as an inducement to enter into this relationship. Upon signing, Mr. Polk represents that he has contacted his current employer and discussed his change in status and that this Agreement breaks no covenant of that discussion and agreement. The parties hereto agree to keep the terms of their agreement confidential unless both parties agree to said release of information. This agreement shall not be assignable by either party. __________________ Charles E. Polk, Jr. 20. __________________________ Jim Helenthal In that agreement, “OKC” refers to Polk’s Oklahoma City Bombing scheme while “QNI” referred to Helenthal’s Tri-State Shopper antitrust suit in Illinois federal Court. With that understanding, Helenthal signed the agreement in St. Louis, Missouri. 21. Each of those “contracts” providing for Polk to share his expected legal 10 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 11 of 33 fees with Helenthal, a non-lawyer, was illegal for Polk under §484.150 RSMo. Division of fees forbidden, when--penalty. 484.150. 1. It shall be unlawful for any licensed attorney in the state of Missouri to divide any fees or compensation received by him in the practice of law or in doing law business with any person not a licensed attorney or any firm not wholly composed of licensed attorneys, or any association or corporation, and any person, firm, association or corporation violating this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars and costs of prosecution, which fine shall be paid into the treasury of the state of Missouri. 2. Any person, firm, association or corporation who shall violate the foregoing prohibition of this section shall be subject to be sued for treble the amount of any and all sums of money paid in violation hereof by the person, persons, association or corporation paying the fees or compensation which shall have been so divided and if such person, persons, association or corporation shall not sue for or recover the same within two years from the date of such division of fees or compensation, the state of Missouri shall have the right to and shall sue for and recover said treble amount, which shall upon recovery be paid into the treasury of the state of Missouri. See ACLU v. Miller, 803 S.W.2d 592 (Mo.banc.1991). 22. During April and May Polk advanced the Fairness for OKC scheme by having Helenthal fund thousands of dollars worth of activity, and Polk falsified BMW and Cadillac loan documents costing Helenthal additional hundreds of thousands of dollars. 23. On May 16, 2002, Lathrop & Gage L.C. chairman Tom Stewart emailed Polk (Exh. 361) the legal analysis of Lathrop & Gage lawyers Alok Ahuja Jay Felton, Bill Odle, and Bill Beck that Polk’s scheme was meritless, and as stated … “fatal to any claim”. 11 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 12 of 33 24. The United States Government was offering 9-1-1 victims compensation in return for the agreement of the victims to avoid suing airlines and the FAA and those responsible for the airplane crashes, where In re Air Disaster at Lockerbie, Scot., 928 F.2d 1267, 1273-78 (2d Cir.) ("Lockerbie I "), cert. denied, 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991) was substantial precedent that posed a clear and present danger of ruinous liability to an entire industry that was important to the United States defense and economy, and there was nothing legally analogous in favor of the Oklahoma City victims of a fertilizer truck bomb set off by one or two lunatics who had been sentenced to die after trials conducted pursuant due process of law. Consequently Polks claim of a class action lawsuit “right” to assemble the Oklahoma victims into the 9-1-1 fund was frivolous. 25. In mid June 2002 Helenthal showed other Lathrop & Gage L.C. lawyers Polk’s agreements (above) and other documents detailing the course of Polk’s Oklahoma City Bombing Scheme. Lathrop lawyers acknowledged and admitted what Polk had done to Helenthal was ‘wrong’ and ‘unethical’, and they instructed Helenthal to stop communicating with Polk on the QNI antitrust case, and that Lathrop would report Polk’s misconduct to “the Bar”. 26. In June Lathrop & Gage L.C. was completely informed of the course of Polk’s scheme vis-à-vis its client Helenthal, literally conning Helenthal of hundreds of thousands of dollars. On June 26, 2002 Tom Stewart faxed Helenthal the draft of a proposed secret settlement for $458,194.07. 27. On or about July 2, 2002 Alive Williams wrote Tom Stewart and Lathrop 12 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 13 of 33 & Gage, recapping the scope of authority Lathrop & Gage L.C. had extended to Polk through August, 2002: “In January 2002, Lathrop & Gage reduce Mr. Polk’s annual salary from $385,000.00 to $285,000.00. This was done without prior notice or warning to Mr. Polk. He was given no input in this decision. … Other indicia of his employment were unilaterally cut back by Lathrop and Gage…Mr. Polk had several discussions regarding the above matters with Thomas Stewart, managing partner of Lathrup…Mr. Stewart made it clear in no uncertain terms that the relationship between Lathrop and Gage and Mr. Polk had come to an end. They agreed that Mr. Polk would phase out any matters he was working on and that he would remain on the payroll through not later than August 2002. Mr. Stewart agreed that Mr. Polk would not be expected to meet any billing quotas or even be in the office. Mr. Stewart agreed that Mr. Polk was free to start developing other business and/or employment options while he went through this closeout period at Lathrop and Gage…. Since March 2002 Mr. Polk’s total billing was approximately 100 hours. Mr. Polk has not been in the office for the past two months…. 28. On July 11, 2002 Mr. Kramer (Helen Hal’s attorney) wrote Alive Williams, (Polk’s attorney), to recap Polk’s counter-offer (Exhibit 56). On or about July 11 or July 12, Alif Williams signed that letter to confirm its terms as Polk’s offer to re-pay Helenthal $470,000 plus assumption of the car leases liability as outlined, and he faxed it to Kramer. 29. On July 15, 2002 Kramer sent Tom Stewart and Lathrop & Gage L.C. a counter-proposal: “Jim is willing to send this proposal to Polk and to settle on these 13 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 14 of 33 terms, if Lathrop & Gage will provide him with a $40,000.00 credit on his outstanding balance to the firm. Assuming this can be resolved it is Jim’s intention to remain with the firm for his antitrust representation. Please advise at your soonest convenience as to whether or not Lathrop and Gage is willing to extend the $40,000.00 credit so that we may forward the counter-proposal to Williams Polk for their review as soon as possible. The $40,000.00 credit would only be due if the deal with Polk closes. 30. By July 16, 2002, there were dozens of print, wire, and internet news stories criticizing Polk’s Oklahoma City Bombing scheme as a scandal, and newspaper reports that Dowd, Polk’s co-counsel in the Oklahoma venture, had reported Polk to Missouri Bar authorities for unethical conduct relative to Helenthal in advancing Fairness for OKC. This was common knowledge, and instantly accessible in hundreds of articles on the Internet, all of which condemned Polk and his scheme, and all of which were readily apparent and available, especially to Co-defendant Boyce. 31. Lathrop & Gage L.C. did not accept Helenthal’s counteroffer, and so on July 18, 2002, defendant Boyce filed a Complaint styled Charles Polk v. James Helenthal in the U.S. District Court in Washington D.C., U.S., Cause No. 1:02CV01438. In particular defendants Boyce and Polk composed and filed the following allegations in that Complaint: (a) ¶ 14. “On or about April 1, 2002 Plaintiff (Polk) and Defendant (Helenthal) made an oral agreement the terms of which provided that Plaintiff would act as general counsel to Defendant and Tristate and in return would receive a signing bonus of $385,000, the amount of one year’s salary. 14 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 15 of 33 (b) ¶ 15. “The $385,000.00 signing bonus was meant to and did entice Plaintiff to leave his current job in reliance on employment pursuant to his agreement with Defendant. Defendant Tristate, pursuant to the agreement, paid Plaintiff $385,000.00 signing bonus. (c) ¶ 16. “Since April 2002 Plaintiff has worked on special projects and has performed his general counsel duties in Washington D.C. 32. In so instigating, filing, and prosecuting Polk’s Washington D.C. suit, defendant POLK acted maliciously and without reasonable grounds, as set forth as ultimate facts in M.A.I. 6th 23.07 and 16.01(1) and (2), and 16.06: Sanders v. Daniel Intern.Corp, 682 S.W. 2d 803, 814 (Mo.banc 1984). On its face the claims Polk alleged in that suit were contradicted by the fee-split written agreement attached to it, and the entire public course of Polk’s Fairness for OKC scheme. 33. Polk’s Washington D.C. lawsuit lacked probable cause or any reasonable basis in fact or colorable legal ground supporting those allegations and claims. 34. Defendant POLK filed suit against Helenthal with malice, motivated out of spite and ill will, or legal malice to harass and oppress him, to force him to defend in Washington D.C., to allege his legitimate claims as compulsory counterclaims, and at great expense and inconvenience when they knew he was already burdened by the business setbacks that motivated him to hire Lathrop & Gage, L.C. It was a sham to evade and obstruct justice, without basis or legitimate intent in good faith to prosecute the action against Helenthal, and thereby defendants: (1) made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; and (2) 15 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 16 of 33 the defendant had an improper purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted, such that defendants Polk and Boyce committed abuse of process, for which they are liable. Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990), citing Stafford v. Muster, 582 S.W.2d 670, 678 (Mo. banc 1979). 35. In the commencement and continuation of that suit, defendant Polk abused legal process for an end or for purposes other than seeking truth and justice for which the legal system was established, rendering the entire activity tortious vis-à-vis Helenthal. Wells v. Orthwein, 670 S.W.2d 529, 533 (Mo. App. 1984). 36. In each and every one of those distinct misuses, abuses, and malicious prosecutions, defendant POLK committed torts vis-à-vis Helenthal and caused Helenthal to become obligated for thousands of dollars of legal expense in hiring lawyers in Washington D.C. and to suffer extreme mental and physical distress and spend money on doctors, to the point he became medically depressed and suicidal, and his marriage deteriorated and dissolved, his business went bankrupt, and as a result the defendants are jointly and severally liable for his damages as hereinafter alleged. 37. Polk alleged that Helenthal breached his contract with Polk in Count I, and sought a Declaratory Judgment and damages in Count II, and all of it which was fraudulent: those “contracts” calling for fee split were crimes for Polk, illegal, void and could not be “breached” by Helenthal. 38. Defendant attorney Gilbert Boyce, in concert with Polk, composed that suit, filed it, and caused it to be served on Helenthal in Quincy, Illinois, all of which was tortious, without good faith, and malicious. 16 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 17 of 33 39. On July 22, 2002 Helenthal sued Mr. & Mrs. Polk in the St. Louis County Circuit Court of Missouri. That suit sought to temporarily restrain and then permanently enjoin Polk from continuing his Fairness for OKC scheme and representation of people in Oklahoma without a license to practice law there, and immediate refund and return of all money Polk wrongfully took from Helenthal, and damages due to the course of Polk’s tortious Fairness for OKC scheme: Helenthal had not been notified about or served with Polk’s suit at that time. That suit was factually detailed as required by Missouri “Fact” pleading, complete with authenticating exhibits in an effort to secure the TRO. 40. Defendant Boyce entered his appearance in Helenthal’s St. Louis County Circuit Court case defending Mr. & Mrs. Polk, and was then and there aware - if he had not already been aware – of the plain fraud engendered in Polk’s Washington D.C. suit. 41. The St. Louis County Circuit Court entered a “standstill” Order in that case, preventing Polk’s from Defaulting Helenthal in Washington D.C. 42. In the spring of 2002, Boyce violated the standstill agreement, and defaulted Helenthal in Washington D.C., and served process of default on Helenthal in Illinois, another abuse of process. 43. Lathrop & Gage negligently failed to immediately stop and enjoin Polk from unlicensed and unauthorized practice of law in Oklahoma vis-à-vis all the people Polk was conning, and Helenthal. 44. Lathrop & Gage tried to negotiate a secret “settlement” to continue to represent Helenthal, have Helenthal release Lathrop, accept repayment promises from 17 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 18 of 33 Polk, and continue to prosecute Helenthal’s Illinois federal antitrust case. 45. In July 2002, when Polk’s Fairness for OKC scheme defrauding Helenthal was collapsing, and Lathrop did not accept Helenthal’s counteroffer to settle, on July 18, 2002, co-defendant Boyce filed suit for Polk against Helenthal in U.S. District Court in Washington D.C., claiming the $382,000 that Helenthal had paid Polk by check and wire transfer was a “signing” bonus for Polk to be Helenthal’s “General Counsel” in Washington D.C., and that Helenthal had breached the contract to hire Polk as his Washington D.C. General Counsel, all of which was a tortious, phony SLAPP type suit. 46. Polk’s Washington D.C lawsuit against Helenthal ended when the Court Ordered it dismissed without prejudice on May 26, 2004. 47. After that dismissal without prejudice, Polk’s ‘breach of contract’ lawsuit finally terminated in favor of Helenthal either on August 31,2006 where and when Polk acknowledged wrongdoing at his sentencing for pleas to other counts of the indictment and accepted the Order to pay $382,000 restitution to Helenthal, or on or about July 18, 2007 when Polk finally abandoned such a claim by failing to refile it within the 5 year statute of limitations for breach of contracts, §516.120.1 RSMo. (2000), because those circumstances constitute either res judicata bar based on criminal plea, James v. Paul State Farm et al, 49 S.W.3d 678 (Mo. Banc 2001), or “abandonment” under Linn v. Moffitt, S.W.3d 629,633 (Mo.App. E.D. 2002), McFarland v. Union Finance Co., 471 S.W.2d 497,499 (Mo.App. 1971). 48. Polk’s conduct in instigating, filing, and prosecuting the aforesaid “breach of “General Counsel” lawsuit in U.S. District Court, Washington D.C. was tortious, 18 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 19 of 33 wrong and outrageous, and malicious in that either it engendered vindictive motive, spite, an improper motive, particularly to obstruct Helenthal’s pursuit of justice, or other improper motive, or was wrongfully done without just cause or excuse. 49. Polk’s filing of this suit was outrageous, and a breach of trust in the attorney client relationship with Helenthal and outrageous, and this wrongdoing directly caused or directly contributed to cause Helenthal’s injury in the continued deprivation of $500,000 of property, thousands of dollars in legal defense representation, mental distress and suicidal depression, medical expenses of thousands of dollars, mental and emotional breakdown, all to his injury and damage. 50. A Court Order June 2004 dismissed Polk’s suit it for failure to prosecute, and that claim finally ended when Polk abandoned that case by not refilling it, or by pleading guilty and accepting sentence including restitution for fraudulently taking Helenthal’s money under the Fairness for OKC agreement which launched both the scheme to defraud Helenthal, and the scheme to file the suit, and the basis of Federal Criminal prosecution. Wherefore, Helenthal prays judgment against Polk for wrongful and tortious misconduct in filing and prosecuting suit against Helenthal in the amount of three million dollars in compensatory damages, and three million dollars in punitive damages, together with costs and any other relief allowed by law or equity. COUNT 2 1. 2. All of the allegations in Count 1 are incorporated and realleged. Lathrop & Gage L.C. was negligent in failing to investigate Polk’s fitness 19 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 20 of 33 and competence before hiring Polk. 3. Alternatively Lathrop & Gage was negligent in hiring Polk when it knew or should have know he was unfit, dishonest, and /or dangerous. 4. Alternatively Lathrop & Gage was negligent in managing and supervising Polk, in naming and maintaining him as Vice Chairman and/or in charge of its Washington D.C. office when and where he was not licensed to practice Law. 5. Alternatively Lathrop & Gage L.C. was negligent in failing to manage and supervise Polk vis-à-vis Helenthal when Lathrop knew or should have known Polk was incompetent in antitrust and unlicensed in Illinois, and knew or should have known Polks’ “legal billing” was phony. 6. Lathrop & Gage L.C. negligence in contributing to allow Polk to commit all his crimes and torts against Helenthal directly caused or directly contributed to cause all Helenthal’s injury and damage. 7. Lathrop & Gage conduct was reckless and indifferent to the rights of Helenthal, and outrageous. Wherefore, Helenthal prays judgment of compensatory damages against Lathrop & Gage in the amount of three million dollars, and three million dollars punitive damages, together with costs, and any other relief and remedy allowed by law. COUNT 3 1. All of Counts 1 and 2 are adopted and realleged. 2. Defendant BOYCE tortiously instigated and prosecuted Polk’s tortious suit against Helenthal, and further the process of serving Helenthal with Default in violation 20 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 21 of 33 of the County Circuit Court standstill Order. 3. Boyce’s tortious misconduct vis-à-vis Helenthal directly caused, or directly contributed to cause all Helenthal’s injury and damage. Wherefore, Helenthal prays judgment of compensatory damages against Boyce in the amount of three million dollars, and three million dollars punitive damages, together with costs, and any other relief and remedy allowed by law COUNT 4. 1. 2. All of Counts 1, 2, and 3 are adopted and realleged. On July 25, 2002 , Helenthal filed suit against Polk in St. Louis County, cause # 2002cc-2898. 3. Also on July 25, 2002 , Helenthal filed suit against Lathrop & Gage in St. Louis City Circuit Court, cause #024-01668. 4. In suing separate tortfeasors (1) Polk and (2) Lathrop separately in different courts, Helenthal conformed to settled law in Missouri under Manson v. Wabash RR., 338 S.W.2d 54, 57 (Mo.banc 1960), Glick v. Ballentine Produce, Inc., 396 S.W.2d 609 (Mo.1965) and Barlow v. Thornhill, 537 S.W.2D 412 (Mo banc.1976), as well as nationwide. Restatement (Second) Judgments, §§24; 49; 50; 51; 38 Am.Jur., Negligence, Sec. 257, pp. 946, 947. 5. Where defendants have a relationship in which one may be vicariously responsible for the conduct of the other, a judgment in favor of the injured person is conclusive upon him only as to the amount of damages against the other person vicariously liable setting the benefit of a ceiling on damages, only: that is the limit of the 21 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 22 of 33 collateral estoppel effect, the other defendant still may litigate that amount in hopes of an award less than the ceiling. Restatement (Second) Judgments, 51 (2) in part vicariously for tortfeasors. 6. When Helenthal sued Lathrop & Gage in the City of St. Louis Circuit Court, that Circuit Court acquired EXCLUSIVE “First Filed” JURISDICTION over Helenthal’s claims against Lathrop & Gage, L.C. under settled law. State ex rel General Dynamics v Luten, 566 S.W.2d 452,458 (Mo.banc 1978). 7. Lathrop & Gage did not file a counterclaim (compulsory) to Helenthal’s City case, and Lathrop & Gage never attempted to intervene in Polk’s suit against Helenthal in Washington D.C., where all Helenthal’s claims in St. Louis County were compulsory counterclaims. 8. The St. Louis County Circuit Court allowed Lathrop & Gage to file an “Answer” in Intevenor, without stating any claim in intervention, and in answering Helenthals claims against Polk, Lathrop prayed only to be dismissed, count by count. Lathrop lacked “standing”. 9. Lathrop’s intervention in the County did not and could not vitiate the City’s exclusive “first filed” jurisdiction over Helenthal’s claims against Lathrop: State ex rel General Dynamics v Luten, the court ruled: “Turning now to the central issues, it is settled in Missouri that where two actions involving the same subject matter between the same parties are brought in courts of concurrent jurisdiction, the court in which service of process is first obtained acquires exclusive jurisdiction and may dispose of 22 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 23 of 33 the entire controversy without interference from the other. State ex rel .Kincannon v Schoenlaub, 521 S.W.2d 391 (Mo.banc 1975). In State ex rel. Lamare v Impey, 365 Mo. 437, 283 S.W.2d 480, 482 (1955), it was stated this way, "The law is well settled that the jurisdiction of a court first invoked cannot be defeated by a subsequent proceeding in a court having concurrent jurisdiction of the person or subject matter." See also, State ex rel McGull v. St. Louis Board of Police Commissioners, 178 S.W.3d 719, 723 (Mo.App.E.D. 2005). 10. The County Circuit Court entered a Default Judgment in favor of Helenthal against Polks. On August 27, 2004 the County Circuit Court entered a “JUDGEMENT [sic] and ORDER” denying Polks’ motion to set aside the default judgment, and concluded: 23 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 24 of 33 11. Under settled law, an interlocutory determination of default “admits the traversable allegations in the petition constituting the plaintiffs cause of action and the defendant’s liability there under, except that when damages are unliquidated, the default is no admission of the amount of damages claimed, which then becomes a matter of proof.” Beckmann v. Miceli Homes Inc. 49 S.W.3d 533,541 [17](Mo.App.E.D. 2001). This obviated the need for Helenthal to prove anything about Polk’s fault or relationship, and confined the default damages inquiry to damages. 12. Under settled law, a default judgment damages only inquiry Court Order is not ADEQUATE NOTICE required under Constitutional Due Process of Law, for the prospect of preparing to undertake, or litigate any other issue, any issue other than “damages”. 13. On February 27, 2006, the County circuit court began the Default “Inquiry” bench trial to determine damages. The court opened trial as follows, (L.F. 666, Tr. 2 line 14: App. 16): 24 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 25 of 33 “THE COURT: The Court in the court file notes the order of August 27, 2004, which entered a judgment against Defendants Charles Polk and his wife and has left only the issue of damages remaining for hearing as to that. Okay. Plaintiff may proceed.” 14. Plaintiff opened by reiterating jurisdictional objections to insufficient standing for Lathrop to participate under Arizonans for Official English and Park v. Arizona, 520 U.S. 43 (1997), and requested the court grant Lathrop the only relief it sought in intervenor, which was “Dismissal”, count by count. (L.F. 666-671; App. 1622). 15. Next Helenthal specifically referenced and objected to Intervenor Lathrop’s “Trial Brief” request that the judgment be against Polk, only (L.F. 671; App.21) @ Tr. 21, Line 23: “Finally, we get to their Trial Brief. In their Trial Brief, which I’ve included at Tab 8, the very last page, last paragraph. “Lathrop & Gage respectfully submits that any judgment for damages in this case should be solely against Mr. Polk”. That’s what we said all along here, Your Honor. …. Here’s the denouement of their gambit. It’s disguised as a declaratory judgment action that they want to use to assert some sort of collateral estoppel from this action and transport it to the City, where their whole reason for being here was, gee, we think some sort of 25 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 26 of 33 collateral estoppel may take place here that they can transport against us to the City. “Lathrop & Gage requests that the Court enter findings of fact and conclusions of law that the actions of Polk and Helenthal, if any, resulted from conduct of Mr. Polk that was outside the scope and course of Mr. Polk’s employment with Lathrop & Gage.” To the extent that they now have tried to assert some sort of bazaar [sic] declaratory judgment asking this Court for some sort of specific findings that has nothing to do with damages, we raised specifically the defense that the request is barred because of the action pending between these parties in the City of St. Louis, specifically under Rule 55.27(9)[sic] 16. Lathrop lacked standing to intervene in the County, the City Circuit Court rejected Lathrop’s motion to consolidate-transfer Helenthals’ case against Lathrop into the county after intervention, Lathrop did not plead-allege any claim in the County, Missouri Supreme Court Rule 55.32 relieved Helenthal of any obligation to plead any claim against Lathrop because Helenthal’s against Intervenor Lathrop was already pending, and the City Circuit Court always retained exclusive jurisdiction over Helenthals suit against Lathrop, and the County Court lacked jurisdiction to decide such claims, and had informed Helenthal the only issue to be decided was damages Polk owed Helenthal. 17. Then, after 2 days of proof of Helenthal’s damages from his psychiatrist and 26 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 27 of 33 his mother, and his own documentary proof of hundreds of thousands of dollars, the trial court stopped Helenthal. 18. On Wednesday, March 1, 2006, Court convened the third day of this damages only bench trial at 9:10 a.m. as follows (Tr. 434): “THE COURT: “Consistent with my announcement to counsel off the record last night, counsel has until noon today to conclude this case”. MR. HULLVERSON: Thank you your Honor. THE COURT: Totally. I think you have stretched the bounds of my patience.” (L.F. 775; Tr. 434 L.6-13; App. 23). 19. On March 28, 2006 the County Court issued its Order Judgment and Decree of Court. (L.F. 441-447; App.24- 31). The Court began by recapping Count-byCount Helenthals’ prayer for judicial remedy against the Polks. Helenthals allegations in the County case did not include any prayer for judgment, order, or relief of any kind against Lathrop. The Court recounted, “Default Judgment was entered against Defendants Polk and the cause was set for hearing on damages.” … “On August 27, 2004, the court, after a testimonial hearing, heard and denied the motion of Defendants Polk to set aside the default judgment in a written opinion. The cause was set for hearing as to the issue of damages.” The parties waived jury trial and the cause was set for trial on February 27, 2006. 27 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 28 of 33 20. The gratuitous “findings” aimed at ending Lathrop’s liability to Helenthal in the City case in the course of the county default damages only inquiry, were (a) unnecessary to the damages Polk owed Helenthal, (b)were never litigated, (c) were never the subject of any pending claim in that court, and (d) were entered by a court that lacked jurisdiction to make such positions because of the exclusive jurisdiction of the City Circuit Court, and in each respect were invalid judicial “judgments” . 21. Attached are: (1) The trial Court Order setting the default judgment damages inquiry; (2) Portions of the transcript of that Hearing Feb.27, reiterating it was damages only; (3) The Default judgment from the St. Louis County Circuit Court awarding Helenthals damages from Polks, (4) The Memorandum Opinion affirming that default judgment; (5) The Order granting Lathrop partial summary judgment based on the default judgment in the county, affirmed by secret opinion. (6) Helenthal’s Points on appeal from his Appellate Brief from that partial summary judgment; (7) the appellate court second secret opinion affirming partial summary judgment. 22. This course of procedure deceived Helenthal beginning with the recitation at the Damages Inquiry hearing in the County that it was limited to a default judgment, damages only inquiry, and this course of procedure constitutes a deprivation of propertyHelenthal’s lawsuit – without Constitutional Due Process of law, and Helenthal prays and demands this court declare that subsequent partial summary judgment in the City 28 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 29 of 33 invalid and unconstitutional application of estoppel. 23. Upon declaring that the City Circuit Court partial summary judgment invalid, Lathrop and Gage is vicariously liable for all damages assessed against Polk thus far. 24. Lathrop & Gage, L.C. is a business that provides legal service, and is a company that was formed, organized, and governed by the "Missouri Limited Liability Company Act", §§ 347.010 to 347.187 RSMo. (1993). That law applies throughout the time of the wrongs Polk perpetrated against Helenthal, and provides extraordinary vicarious liability, beyond and in addition to common law agency, as particularly alleged hereafter. 25. §347.075 RSMo. provides special limited liability company liability, “ Where, by any wrongful act or omission or other actionable conduct of any authorized person, acting in the ordinary course of the business of the limited liability company, or otherwise with authority, loss or injury is caused to any person, not being a member in the limited liability company, the limited liability company is liable for all damages permitted by law as a consequence of such actionable conduct.” 26. §347.077 RSMo. provides special limited liability company liability for misapplication of money as follows: 1. If an authorized person, acting within the scope of his apparent authority, receives money or property of a person who is not a member or manager of the limited liability company and misapplies it, the limited liability company is liable for all damages permitted by law as a consequence of such actionable conduct. …2…. 27. In making Polk “Vice-Chairman” of Lathrop & Gage, and head of its 29 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 30 of 33 Washington D.C. office, Lathrop & Gage L.C. made Polk a “member” and “manager” and “authorized person” within the meaning of §347.015 RSMo. and applications in §347.075 RSMo, Lathrop & Gage L.C. never changed Polk’s title or position from October 2001 through mid June 2002, throughout the time Polk defrauded Helenthal, 28. Polk committed the all the wrongful acts of taking Helenthal’s money in March and April 2002, for which this Court sentenced Polk to pay Helenthal restitution $382,000.00 while Polk was an authorized person, acting within the scope of his apparent authority in the ordinary course of the business of Lathrop & Gage L.C., ie providing legal service and/or advice. Helenthal was never a member of the limited liability company (Lathrop & Gage LLC) injured by Polk’s wrongdoing. This Court’s restitution order was permitted and made as a consequence of Polk’s actionable conduct as described in Polk has not paid Helenthal any restitution, and consequently Lathrop & Gage owes Helenthal that $382,000.00, together with other damages hereafter alleged, under this law, all within the meaning of and as provided by §347.075 R.S.Mo. 29. Polk testified in a deposition Dec.19, 2003, as follows, Pg. 191, line 12: He did not study antitrust law in law school; He did not have any experience with antitrust law, or unfair business practices law; Q. And then when you graduated, what antitrust work did you do? A. None. I have never done any antitrust work, even to this day. 30. Polk testified that the only thing he did for Mr. Helenthal pursuant to 30 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 31 of 33 Helenthal’s contract of legal representation with Lathrop & Gage, was “lobby”, but Polk never filed any “lobbying” registration papers. Specifically, Polk testified as follows , Dep. Pg. 193 line 2: Q. Helenthal's So the only thing that you did, by way of legal representation in Mr. antitrust case, was to lobby; is that correct? A. Yes, sir. And Dep .pg 202 line 2: Q.” So you would agree with me that you would not be competent to take on a $26 million antitrust case in Springfield, Illinois? Yes, sir. 31. Lathrop & Gage mailed Helenthal bills containing thousands of dollars of A. charges on the basis Polk did legal work for Helenthal’s antitrust case when that was all false, and constituted mail fraud under Title 18 U.S.C. §1341, which was never litigated in the County case – Helenthal only added those claims in the City case because Lathrop was the mailing party, and only amended the City Petition, never the original county petition as to which Polk defaulted. 32. By way of example, summarized are identical Polk billing entries for December, 2001, to Helenthal. 12/5/01 12/7/01 12/10/01 12/18/01 CEP CEP CEP CEP work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting 2 hours 2 hours 2 hours 2 hours $730.00 $730.00 $730.00 $730.00 31 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 32 of 33 12/19/01 12/20/01 12/21/01 12/26/01 CEP CEP CEP CEP and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of a complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matter work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters Expenses Incurred on your behalf: 12/21/01 Polk Parking – 40; travel 21.64; 27.25 Summary; Attorney Charles Polk, 16 hours at the rate of $365.00 an hour for a total of $5,840.00. Grand total = 5928.89 2 hours 2 hours 2 hours 2 hours Travel $730.00 $730.00 $730.00 $730.00 88.89 5928.89 33. The March 28, 2006, Circuit Court of St. Louis County Judgment in favor of Helenthals against the Polks adjudged Charles Polk owed James Helenthal a total of $3,621,807.32, plus interest and court costs, and Lathrop & Gage L.C. is vicariously liable for all that damage by virtue of its relationship to Polk when he committed the torts and crimes against Helenthal that give rise to that judgment, and special responsibility incumbent on Lathrop under the Missouri Limited Liability Company Act. Wherefore, Helenthal prays judgment declaring the Missouri City Circuit Court partial summary judgment invalid as a deprivation of property without due process of law, and damages against Lathrop & Gage for its vicarious liability for Polk in the amount, now of 5 million dollars, and separately damages for mail fraud in the amount of $300,000.00. 32 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 33 of 33 ATTACHMENTS: 1. Polk “Agreement “ 2. Order Dec. 2, 2002 Denying consolidation 3. Order August 27, 2004 denying Polk relief from default judgment, and setting Damages Only. 4. Transcript of trial , Pages 1-28; 434; 5. Default Judgment March 26, 2006. 6. Order Sept 11, 2007, affirming default judgment after trial on the issue of damages. 7. Order and Partial Summary Judgment Nov. 7, 2007. 8. Helenthal Appeal Brief, Points relied on summaries pg. 18, 19, 20. 9. Appellate Order affirming partial summary judgment. HULLVERSON & HULLVERSON, L.C. BY:___// James E. Hullverson, Jr.___ James E. Hullverson, Jr. #26885 MO, Il 3123402 Attorney for Plaintiff 7777 Bonhomme, Suite 1500 St. Louis, Missouri 63105 (314) 725-1616 E-Mail [email protected] Plaintiff will serve each defendant by WAIVER OF SERVICE AND ACKNOWLEDGMENT FORM Form. 33
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Lathrop Lawsuit

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Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 1 of 33 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION James Helenthal, Plaintiff, v. CHARLES POLK And LATHROP & GAGE, L.C. And GILBERT BOYCE And Defendants ) ) ) ) ) ) ) ) ) ) Cause # JURY TRIAL DEMANDED ________________________ COMPLAINT For his causes of action against the defendants, plaintiff states: JURISDICTION: 1. Jurisdiction is based on diversity of citizenship and amount under Title 28 U.S.C. §1332. Plaintiff James Helenthal is a citizen of Illinois. Defendant Charles Polk is a citizen of Missouri who is currently a prisoner in the custody of the Bureau of Prisons of the U.S. Government serving a sentence Ordered by Hon. Judge Limbaugh of this Court in Cause # 4:05-CR-00157-SNL-FRB on August 31, 2006, after Polk plead guilty to a series of federal crimes, including crimes against plaintiff Helenthal that are in part the subject of this suit. Defendant Lathrop & Gage, L.C. is a limited liability company and a citizen of Missouri. Defendant Boyce is a citizen of Washington, D.C. The amount in controversy exceeds Seventy Five Thousand dollars, exclusive of interest and costs. 2. Pursuant to Rule 8(a)(2)(3), Plaintiff states that in Count 1 he seeks a 1 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 2 of 33 judgment awarding damages against defendant Polk based on Polk’s tortious misconduct in filing and prosecuting a lawsuit against Helenthal in U.S. District Court Washington D.C. claiming Helenthal breached a contract to employ Polk as his “General Counsel” in Washington D.C., when that suit was prosecuted to cover up and obstruct Helenthal’s pursuit of justice with respect to crimes Polk committed against Helenthal, and for which Polk has accepted responsibility and accepted a plea bargain sentence in Cause # 4:05-CR-00157-SNL-FRB that included paying Helenthal restitution of $382,000.00. 3. Pursuant to Rule 8(a)(2)(3), plaintiff states that in Count 2 he seeks a judgment awarding damages against defendant Lathrop & Gage L.C. for its multiple acts of negligence with respect to Helenthal, its client: negligence in hiring Polk as a lawyer, without adequate research into his competence and fitness, where all his federal crimes were discoverable, among a larger list of misconduct; and/or negligence in making Polk Vice Chairman in charge of Lathrop’s Washington D.C. office, when Polk was only licensed to practice law in Missouri; and/or negligence in allowing Polk to participate in representing Helenthal’s Tri-State Shopper Illinois Federal court antitrust suit when Polk was incompetent in antitrust law, and unlicensed in Illinois; and/or negligence in failing to monitor, supervise, and stop Polk’s fraudulent Fairness for OKC scheme perpetrated on Helenthal while Polk was Lathrop’s Vice Chairman in charge of its Washington D.C. office; and/or negligence in failing to assist Helenthal in obtain immediate refund and mitigation of losses. 4. Pursuant to Rule 8(a)(2)(3), Plaintiff states that in Count 3 he seeks a judgment awarding damages against defendant Boyce based on Boyce’s tortious 2 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 3 of 33 misconduct in filing and prosecuting Polk’s lawsuit against Helenthal in U.S. District Court Washington D.C. claiming Helenthal breached a contract to employ Polk as his “General Counsel” in Washington D.C., when that suit was prosecuted to cover up, and obstruct Helenthal’s pursuit of justice with respect to, the crimes Polk committed against Helenthal when on its face the suit was fraudulent and frivolous, and when he knew or should have known the pretenses. 5. Pursuant to Rule 8 (a)(2)(3), Plaintiff states that in Count 4 he seeks a judgment declaring that a partial summary judgment entered by the City of St. Louis Circuit Court in favor of Lathrop & Gage L.C. against some of Helenthal’s claims that Lathrop was vicariously liable for Polk’s misconduct vis-à-vis Helenthal, and for mail fraud in billing Helenthal for Polk’s legal work is invalid because it violated Helenthal’s Constitutional Rights not to be deprived of his property without due process of law, and hence Lathrop & Gage is vicariously liable for all damages Polk has been assessed owing to Helenthal, and liable for mail fraud in billing Helenthal thousands of dollars through the U.S. Mail for “legal work” by Polk that Polk admitted he never provided – all an extension of frauds Polk committed against other clients – and which Polk admitted in deposition he never provided, and a Lathrop bill to Helenthal for Polk’s work in creating the above alleged agreements launching Polk’s fraudulent Fairness for OKC scheme. More particularly, Helenthal sued Polks in St. Louis County, and sued Lathrop separately in St. Louis City Circuit Court. Helenthal won a default judgment against Polks in the County, and a “Damages Only” inquiry. Helenthal waived jury trial for the damages only default judgment inquiry as to the damages Polks owed Helenthal. 3 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 4 of 33 The Court allowed Lathrop to “participate” as Intervenor in that case, notwithstanding the City Court case had exclusive jurisdiction over Helenthal’s claim against Lathrop. In unprecedented civil procedure, during the default inquiry the court stopped Helenthal’s damages proof, and then made “findings of fact” unnecessary to the damages, without notice, despite objection, and without litigation, to exonerate Lathrop & Gage L.C. and stop Helenthal’s suit in the City. Helenthal appealed those unlitigated unnecessary findings. The Missouri Court of Appeals affirmed the Default Judgment awarding Helenthals damages from Polks, and ordered that its opinion to be unpublished, not to be cited or used in other case, on the basis it had no precedential value. But then Lathrop convinced the City Circuit Court to use that secrete opinion to collaterally estop Helenthal’s City Circuit Court case claims Lathrop was vicariously liable for Polk, and mail fraud claims. Helenthal again appealed, and the Missouri Court of appeals issued another secret opinion, not to be used or published memorandum affirming the partial summary judgment, on the basis it had no precedential value. The default judgment damages only inquiry in favor of Helenthal against Polk in St. Louis County secret – do not publish, do not use, do not cite, secret appellate opinions do not satisfy Helenthal’s rights to Due Process of law under the U.S. Constitution, and the estoppel is faulty under principles of law summarized in Restatement (Second) of Judgments, §§ 86-Effect of State Court Judgment in a Subsequent Action in Federal Court (1) (2); §81-Invalid Judgments (multiple state application); §80 Relief in The Course of a Subsequent Action; §71 Judgment Based on Mistake (c) denial of Fair Hearing by the court of the opportunity to present a claim; § Judgment – other wrongs; §69 Lack of jurisdiction of 4 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 5 of 33 the County Circuit Court to validly assert any findings purporting to affect Helenthal’s rights vis-à-vis Lathrop & Gage (as “Intervenor) where the City Circuit Court always had exclusive jurisdiction over Helenthal’s claims against Lathrop; §1 Requisites of a Valid Judgment; §2 Adequate Notice, and Irregular Notice and subject jurisdiction. Beyond the judgment declaring the purported partial summary judgment is invalid, Helenthal seeks a judgment that Lathrop & Gage is liable vicariously for all Polk’s damages to Helenthal based on either common law agency, or more importantly extraordinary vicarious liability established by Missouri Limited Liability Company Act, particularly for the County Judgment awarding Helenthal 3.5 million dollars from Charles Polk, and the restitution ordered by this court, and further that Lathrop & Gage L.C. is liable for actual and punitive damages for mailing bills to Helenthal for thousands of dollars of charges ostensibly for legal work Polk did on his case, where Polk admitted (1) he was incompetent in antitrust law, and (2) he never did any legal work for Helenthal, and (3) Lathrop billed Helenthal for Polk’s legal work in composing the fee split contracts above that launched Polk’s fraudulent and criminal Fairness for OKC scheme. 6. In Count 5 Helenthal seeks a judgment of damages against Lathrop & Gage, L.C. for its role in contributing to Polk’s tortious lawsuit in Washington D.C. where Lathrop was trying to secretly broker a settlement with Helenthal – its client – while it continued to represent him a federal antitrust suit in Illinois court, knowing that Polk had conned Helenthal for hundreds of thousands of dollars, but refused to credit him. Polk truncated his deposition by invoking his 5th Amendment privileges so 5 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 6 of 33 Plaintiffs’ ability to discover all the dimensions of this has not been fulfilled. 7. In Count 6 Helenthal seeks a declaratory judgment of his rights to have the Order of Restitution enforced as a judgment in his favor under the Crime Victims Rights Act. 8. Hereafter plaintiff pleads facts with heightened specificity under F.R.Civ.P. Rules 8(a) and 9(b), as construed in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), Erickson v. Pardus, 127 S.Ct.2187 (2007) and BJC Health System v. Columbia Casualty Co. et al, 478 F.3d 908(8th Cir. 2006) because this case relates to Polk’s crimes involving fraud culminating in a fraudulent and malicious abuse of process suit by Polk against Helenthal to cover up and obstruct Helenthal’s pursuit of justice vis-à-vis Polk and Lathrop & Gage as to those crimes. All attachments are incorporated by reference without repetitive pleading. I. Background Allegations: 9. Charles E. Polk, Jr. was formerly a lawyer licensed by the State of Missouri under the authority of the Missouri Supreme Court. In the late 1980’s and early 1990’s he worked to represent the Missouri Second Injury Fund (SIF) when it was abused in a political ‘kick back’ scheme that resulted in several federal convictions of Missouri government officials and employees. The law firm that employed Polk while he represented the SIF discharged him, and he embarked on a career with several other firms, and political fundraising. In the course of Polk’s legal career, in the late 1990’s he undertook a series of fraudulent schemes, submitted false bills through United States mail to the St. Louis Metropolitan Sewer District, falsely claimed to be ‘General 6 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 7 of 33 Counsel’ for MSD, extorted money from legal clients such as former Cardinal baseball player Brian Jordan in the “Gameface” scheme, misrepresented his positions and work, wrongfully took money sent through U.S. mail from Webster University without providing service, and engaged in schemes involving Allegiant Bank, and failed to file income tax returns beginning around 1998. The U.S. attorney detailed these fraud schemes at Polk’s sentencing hearing. 10. Polk was never licensed to practice law in Washington D.C., or in Illinois, or anywhere but in Missouri. 11. In March 2001, Lathrop & Gage, L.C., hired attorney Polk to be “Vice- Chairman” and in charge of Lathop & Gage’s Washington D.C. office despite the fact Polk was not licensed to practice law in Washington D.C. 12. In September 2001, Helenthal hired Lathrop & Gage L.C. to represent him and his “Tri-State Shopper” advertising business in an Illinois Federal Antitrust case, in part base on Lathrop & Gage’s advertisements and public relations promotions representations about Polk. 13. Beginning in October 2001, Lathrop and Gage provided Polk to work on/for Helenthal’s antitrust case, and billed Helenthal for legal work Polk pretended to do where Polk was incompetent in antitrust and unlicensed in Illinois. This will be pleaded more particularly below. 14. Beginning in March 2002, Polk ‘conned’ Helenthal into Polk’s Fairness for OKC scheme, culminating in taking Helenthal’s $132,000.00 check payable to Polk’s wife on March 29, 2002, and later Helenthal’s $250,000.00 wire transfer to Polk 7 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 8 of 33 in early April 2002, in exchange for: (1) promising to “split” Polk’s expected legal fees of millions of dollars from organizing the victims of the Oklahoma Murray Federal Court building bombing into a class action to join the 9-1-1 Fund of victims of terrorist attacks; and (2) to prosecute Helenthal’s Illinois antitrust case on a contingency fee instead of the original hourly fee basis. The subject of that federal prosecution involved a series of agreements attorney Polk ‘conned’ Helenthal to sign, beginning with the following agreement, Exh.341 that Helenthal signed in St. Louis (SW Airline Bar), which states and provides: Polk, Charles To: Subject: Jim Helenthal Fairness for OKC; agreement between Helenthal and Polk interests Jim, I enjoyed working with you re: the above project. It is a great feeling to help the fine people of OKC. Pursuant to our previous conversation, the State of Missouri does not allow fee splitting between lawyers and lay persons. However, the District of Columbia does. This makes a great deal of sense for us, as all of our work and effort is concentrated in the District. Obviously, this authority to split fees in the District is good for us, as our effort has truly been a joint effort. We both put a great deal of thought and effort in this project. I would suggest that we proceed by having an entity in Washington that is owned by us and reflects our agreement of a split of 45 percent for you and 55 percent for me and my group. As you know, we are both due in Washington next week. I suggest that we have documents drafted by a local firm familiar with the law on that trip. Further, as we both know, there will be other attorney groups involved in this effort. However, the split of our portion of the efforts will always remain the same as noted above. This is a voluntary agreement entered into with full knowledge and consent of both parties. This agreement shall have no impact upon previous relationships between the parties and/or their representatives. This agreement shall be deemed to be executed and consummated in the District of Columbia. 15. In addition to those written terms, Polk told Helenthal he’d have to contribute $132,000 to participate in the agreement. 8 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 9 of 33 16. The statements contained in Polk’s OKC Venture agreement, above, particularly (1)“Pursuant to our previous conversation, the State of Missouri does not allow fee splitting between lawyers and lay persons. However, the District of Columbia does”; and (2) “Obviously this authority to split fees in the District is good for us…” and (3)“reflects our agreement of a split of 45% for you and 55% for me and my group”. Referred to and contemplated sharing of Polk’s legal fees from Polk’s expected attorney client representation of victims of the Oklahoma bombing, an attorney “fee split” and sharing between Polk, a lawyer, and Helenthal, a non lawyer. Both Helenthal and Polk signed that agreement. 17. The District of Columbia Bar ethics did not allow lawyers to share legal fees with lay persons, contrary to Polk’s assertion. 18. On March 29, 2002, pursuant to this first aspect of Polk’s Fairness for OKC Venture scheme, the oral agreement as memorialized partially in Polk’s first written agreement above, Mr. Helenthal paid Cheryl Polk $132,000.00, by check all to his injury and damage. Then Helenthal began to solicit the clients for Polk in Oklahoma, detouring from his Tri-State Shopper business, compromising the efficacy of any hope of success in Lathrop’s ongoing Anti-trust suit. 19. Shortly after Helenthal paid the $132,000.00 check payable to Mrs. Polk, Charles Polk tendered Helenthal Ex. 14, a modified “Fairness for OKC Venture” Oklahoma City Bombing Scheme agreement, which memorialized the second prong of Helenthal’s understanding, that Polk would assume primary representation of Helenthal’s original Tri-State Shopper antitrust case on a contingency fee basis instead 9 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 10 of 33 of hourly at Lathrop & Gage. Ex. 14, which states: Polk, Charles To: Subject: Jim Helenthal Fairness for OKC; agreement between Helenthal and Polk interests The parties to this Memorandum of Agreement shall immediately seek joint counsel to draft the agreement per these terms. Mr. Helenthal and Mr. Polk shall enter into a partnership whereby any amounts collected shall be split evenly unless indicated as follows: OKC venture 55 % percent for Mr. Polk and 45 % percent for Mr. Helenthal and QNI shall be 55 % percent for Mr. Helenthal and 45 %percent for Mr. Polk. All other amounts from the partnership shall be split evenly or as agreed to in writing by the parties hereto. Mr. Polk shall serve as counsel and chief lobbyist for the partnership and as such shall be responsible for the handling of all legal/lobbying matters regarding the partnership’s interest. The partnership shall be an entity that is recognized and legally allowable in the jurisdiction(s) where created. In order to effect the relationship as contemplated, more than one entity and more than one jurisdiction may need to be utilized. The parties hereby agree that their primary responsibilities shall be to their joint ventures. However, the parties also agree and understand that Mr. Polk may retain a “of counsel” type of relationship with a reputable firm or lobbying shop. In addition, Messrs Polk and Helenthal may form other entities to be utilized for tax planning purposes. Regardless of the entities formed the parties shall have equal ownership and control. Mr. Helenthal shall immediately owe and pay Mr. Polk the sum of $250,000.00 as an inducement to enter into this relationship. Upon signing, Mr. Polk represents that he has contacted his current employer and discussed his change in status and that this Agreement breaks no covenant of that discussion and agreement. The parties hereto agree to keep the terms of their agreement confidential unless both parties agree to said release of information. This agreement shall not be assignable by either party. __________________ Charles E. Polk, Jr. 20. __________________________ Jim Helenthal In that agreement, “OKC” refers to Polk’s Oklahoma City Bombing scheme while “QNI” referred to Helenthal’s Tri-State Shopper antitrust suit in Illinois federal Court. With that understanding, Helenthal signed the agreement in St. Louis, Missouri. 21. Each of those “contracts” providing for Polk to share his expected legal 10 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 11 of 33 fees with Helenthal, a non-lawyer, was illegal for Polk under §484.150 RSMo. Division of fees forbidden, when--penalty. 484.150. 1. It shall be unlawful for any licensed attorney in the state of Missouri to divide any fees or compensation received by him in the practice of law or in doing law business with any person not a licensed attorney or any firm not wholly composed of licensed attorneys, or any association or corporation, and any person, firm, association or corporation violating this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars and costs of prosecution, which fine shall be paid into the treasury of the state of Missouri. 2. Any person, firm, association or corporation who shall violate the foregoing prohibition of this section shall be subject to be sued for treble the amount of any and all sums of money paid in violation hereof by the person, persons, association or corporation paying the fees or compensation which shall have been so divided and if such person, persons, association or corporation shall not sue for or recover the same within two years from the date of such division of fees or compensation, the state of Missouri shall have the right to and shall sue for and recover said treble amount, which shall upon recovery be paid into the treasury of the state of Missouri. See ACLU v. Miller, 803 S.W.2d 592 (Mo.banc.1991). 22. During April and May Polk advanced the Fairness for OKC scheme by having Helenthal fund thousands of dollars worth of activity, and Polk falsified BMW and Cadillac loan documents costing Helenthal additional hundreds of thousands of dollars. 23. On May 16, 2002, Lathrop & Gage L.C. chairman Tom Stewart emailed Polk (Exh. 361) the legal analysis of Lathrop & Gage lawyers Alok Ahuja Jay Felton, Bill Odle, and Bill Beck that Polk’s scheme was meritless, and as stated … “fatal to any claim”. 11 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 12 of 33 24. The United States Government was offering 9-1-1 victims compensation in return for the agreement of the victims to avoid suing airlines and the FAA and those responsible for the airplane crashes, where In re Air Disaster at Lockerbie, Scot., 928 F.2d 1267, 1273-78 (2d Cir.) ("Lockerbie I "), cert. denied, 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991) was substantial precedent that posed a clear and present danger of ruinous liability to an entire industry that was important to the United States defense and economy, and there was nothing legally analogous in favor of the Oklahoma City victims of a fertilizer truck bomb set off by one or two lunatics who had been sentenced to die after trials conducted pursuant due process of law. Consequently Polks claim of a class action lawsuit “right” to assemble the Oklahoma victims into the 9-1-1 fund was frivolous. 25. In mid June 2002 Helenthal showed other Lathrop & Gage L.C. lawyers Polk’s agreements (above) and other documents detailing the course of Polk’s Oklahoma City Bombing Scheme. Lathrop lawyers acknowledged and admitted what Polk had done to Helenthal was ‘wrong’ and ‘unethical’, and they instructed Helenthal to stop communicating with Polk on the QNI antitrust case, and that Lathrop would report Polk’s misconduct to “the Bar”. 26. In June Lathrop & Gage L.C. was completely informed of the course of Polk’s scheme vis-à-vis its client Helenthal, literally conning Helenthal of hundreds of thousands of dollars. On June 26, 2002 Tom Stewart faxed Helenthal the draft of a proposed secret settlement for $458,194.07. 27. On or about July 2, 2002 Alive Williams wrote Tom Stewart and Lathrop 12 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 13 of 33 & Gage, recapping the scope of authority Lathrop & Gage L.C. had extended to Polk through August, 2002: “In January 2002, Lathrop & Gage reduce Mr. Polk’s annual salary from $385,000.00 to $285,000.00. This was done without prior notice or warning to Mr. Polk. He was given no input in this decision. … Other indicia of his employment were unilaterally cut back by Lathrop and Gage…Mr. Polk had several discussions regarding the above matters with Thomas Stewart, managing partner of Lathrup…Mr. Stewart made it clear in no uncertain terms that the relationship between Lathrop and Gage and Mr. Polk had come to an end. They agreed that Mr. Polk would phase out any matters he was working on and that he would remain on the payroll through not later than August 2002. Mr. Stewart agreed that Mr. Polk would not be expected to meet any billing quotas or even be in the office. Mr. Stewart agreed that Mr. Polk was free to start developing other business and/or employment options while he went through this closeout period at Lathrop and Gage…. Since March 2002 Mr. Polk’s total billing was approximately 100 hours. Mr. Polk has not been in the office for the past two months…. 28. On July 11, 2002 Mr. Kramer (Helen Hal’s attorney) wrote Alive Williams, (Polk’s attorney), to recap Polk’s counter-offer (Exhibit 56). On or about July 11 or July 12, Alif Williams signed that letter to confirm its terms as Polk’s offer to re-pay Helenthal $470,000 plus assumption of the car leases liability as outlined, and he faxed it to Kramer. 29. On July 15, 2002 Kramer sent Tom Stewart and Lathrop & Gage L.C. a counter-proposal: “Jim is willing to send this proposal to Polk and to settle on these 13 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 14 of 33 terms, if Lathrop & Gage will provide him with a $40,000.00 credit on his outstanding balance to the firm. Assuming this can be resolved it is Jim’s intention to remain with the firm for his antitrust representation. Please advise at your soonest convenience as to whether or not Lathrop and Gage is willing to extend the $40,000.00 credit so that we may forward the counter-proposal to Williams Polk for their review as soon as possible. The $40,000.00 credit would only be due if the deal with Polk closes. 30. By July 16, 2002, there were dozens of print, wire, and internet news stories criticizing Polk’s Oklahoma City Bombing scheme as a scandal, and newspaper reports that Dowd, Polk’s co-counsel in the Oklahoma venture, had reported Polk to Missouri Bar authorities for unethical conduct relative to Helenthal in advancing Fairness for OKC. This was common knowledge, and instantly accessible in hundreds of articles on the Internet, all of which condemned Polk and his scheme, and all of which were readily apparent and available, especially to Co-defendant Boyce. 31. Lathrop & Gage L.C. did not accept Helenthal’s counteroffer, and so on July 18, 2002, defendant Boyce filed a Complaint styled Charles Polk v. James Helenthal in the U.S. District Court in Washington D.C., U.S., Cause No. 1:02CV01438. In particular defendants Boyce and Polk composed and filed the following allegations in that Complaint: (a) ¶ 14. “On or about April 1, 2002 Plaintiff (Polk) and Defendant (Helenthal) made an oral agreement the terms of which provided that Plaintiff would act as general counsel to Defendant and Tristate and in return would receive a signing bonus of $385,000, the amount of one year’s salary. 14 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 15 of 33 (b) ¶ 15. “The $385,000.00 signing bonus was meant to and did entice Plaintiff to leave his current job in reliance on employment pursuant to his agreement with Defendant. Defendant Tristate, pursuant to the agreement, paid Plaintiff $385,000.00 signing bonus. (c) ¶ 16. “Since April 2002 Plaintiff has worked on special projects and has performed his general counsel duties in Washington D.C. 32. In so instigating, filing, and prosecuting Polk’s Washington D.C. suit, defendant POLK acted maliciously and without reasonable grounds, as set forth as ultimate facts in M.A.I. 6th 23.07 and 16.01(1) and (2), and 16.06: Sanders v. Daniel Intern.Corp, 682 S.W. 2d 803, 814 (Mo.banc 1984). On its face the claims Polk alleged in that suit were contradicted by the fee-split written agreement attached to it, and the entire public course of Polk’s Fairness for OKC scheme. 33. Polk’s Washington D.C. lawsuit lacked probable cause or any reasonable basis in fact or colorable legal ground supporting those allegations and claims. 34. Defendant POLK filed suit against Helenthal with malice, motivated out of spite and ill will, or legal malice to harass and oppress him, to force him to defend in Washington D.C., to allege his legitimate claims as compulsory counterclaims, and at great expense and inconvenience when they knew he was already burdened by the business setbacks that motivated him to hire Lathrop & Gage, L.C. It was a sham to evade and obstruct justice, without basis or legitimate intent in good faith to prosecute the action against Helenthal, and thereby defendants: (1) made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; and (2) 15 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 16 of 33 the defendant had an improper purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted, such that defendants Polk and Boyce committed abuse of process, for which they are liable. Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990), citing Stafford v. Muster, 582 S.W.2d 670, 678 (Mo. banc 1979). 35. In the commencement and continuation of that suit, defendant Polk abused legal process for an end or for purposes other than seeking truth and justice for which the legal system was established, rendering the entire activity tortious vis-à-vis Helenthal. Wells v. Orthwein, 670 S.W.2d 529, 533 (Mo. App. 1984). 36. In each and every one of those distinct misuses, abuses, and malicious prosecutions, defendant POLK committed torts vis-à-vis Helenthal and caused Helenthal to become obligated for thousands of dollars of legal expense in hiring lawyers in Washington D.C. and to suffer extreme mental and physical distress and spend money on doctors, to the point he became medically depressed and suicidal, and his marriage deteriorated and dissolved, his business went bankrupt, and as a result the defendants are jointly and severally liable for his damages as hereinafter alleged. 37. Polk alleged that Helenthal breached his contract with Polk in Count I, and sought a Declaratory Judgment and damages in Count II, and all of it which was fraudulent: those “contracts” calling for fee split were crimes for Polk, illegal, void and could not be “breached” by Helenthal. 38. Defendant attorney Gilbert Boyce, in concert with Polk, composed that suit, filed it, and caused it to be served on Helenthal in Quincy, Illinois, all of which was tortious, without good faith, and malicious. 16 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 17 of 33 39. On July 22, 2002 Helenthal sued Mr. & Mrs. Polk in the St. Louis County Circuit Court of Missouri. That suit sought to temporarily restrain and then permanently enjoin Polk from continuing his Fairness for OKC scheme and representation of people in Oklahoma without a license to practice law there, and immediate refund and return of all money Polk wrongfully took from Helenthal, and damages due to the course of Polk’s tortious Fairness for OKC scheme: Helenthal had not been notified about or served with Polk’s suit at that time. That suit was factually detailed as required by Missouri “Fact” pleading, complete with authenticating exhibits in an effort to secure the TRO. 40. Defendant Boyce entered his appearance in Helenthal’s St. Louis County Circuit Court case defending Mr. & Mrs. Polk, and was then and there aware - if he had not already been aware – of the plain fraud engendered in Polk’s Washington D.C. suit. 41. The St. Louis County Circuit Court entered a “standstill” Order in that case, preventing Polk’s from Defaulting Helenthal in Washington D.C. 42. In the spring of 2002, Boyce violated the standstill agreement, and defaulted Helenthal in Washington D.C., and served process of default on Helenthal in Illinois, another abuse of process. 43. Lathrop & Gage negligently failed to immediately stop and enjoin Polk from unlicensed and unauthorized practice of law in Oklahoma vis-à-vis all the people Polk was conning, and Helenthal. 44. Lathrop & Gage tried to negotiate a secret “settlement” to continue to represent Helenthal, have Helenthal release Lathrop, accept repayment promises from 17 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 18 of 33 Polk, and continue to prosecute Helenthal’s Illinois federal antitrust case. 45. In July 2002, when Polk’s Fairness for OKC scheme defrauding Helenthal was collapsing, and Lathrop did not accept Helenthal’s counteroffer to settle, on July 18, 2002, co-defendant Boyce filed suit for Polk against Helenthal in U.S. District Court in Washington D.C., claiming the $382,000 that Helenthal had paid Polk by check and wire transfer was a “signing” bonus for Polk to be Helenthal’s “General Counsel” in Washington D.C., and that Helenthal had breached the contract to hire Polk as his Washington D.C. General Counsel, all of which was a tortious, phony SLAPP type suit. 46. Polk’s Washington D.C lawsuit against Helenthal ended when the Court Ordered it dismissed without prejudice on May 26, 2004. 47. After that dismissal without prejudice, Polk’s ‘breach of contract’ lawsuit finally terminated in favor of Helenthal either on August 31,2006 where and when Polk acknowledged wrongdoing at his sentencing for pleas to other counts of the indictment and accepted the Order to pay $382,000 restitution to Helenthal, or on or about July 18, 2007 when Polk finally abandoned such a claim by failing to refile it within the 5 year statute of limitations for breach of contracts, §516.120.1 RSMo. (2000), because those circumstances constitute either res judicata bar based on criminal plea, James v. Paul State Farm et al, 49 S.W.3d 678 (Mo. Banc 2001), or “abandonment” under Linn v. Moffitt, S.W.3d 629,633 (Mo.App. E.D. 2002), McFarland v. Union Finance Co., 471 S.W.2d 497,499 (Mo.App. 1971). 48. Polk’s conduct in instigating, filing, and prosecuting the aforesaid “breach of “General Counsel” lawsuit in U.S. District Court, Washington D.C. was tortious, 18 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 19 of 33 wrong and outrageous, and malicious in that either it engendered vindictive motive, spite, an improper motive, particularly to obstruct Helenthal’s pursuit of justice, or other improper motive, or was wrongfully done without just cause or excuse. 49. Polk’s filing of this suit was outrageous, and a breach of trust in the attorney client relationship with Helenthal and outrageous, and this wrongdoing directly caused or directly contributed to cause Helenthal’s injury in the continued deprivation of $500,000 of property, thousands of dollars in legal defense representation, mental distress and suicidal depression, medical expenses of thousands of dollars, mental and emotional breakdown, all to his injury and damage. 50. A Court Order June 2004 dismissed Polk’s suit it for failure to prosecute, and that claim finally ended when Polk abandoned that case by not refilling it, or by pleading guilty and accepting sentence including restitution for fraudulently taking Helenthal’s money under the Fairness for OKC agreement which launched both the scheme to defraud Helenthal, and the scheme to file the suit, and the basis of Federal Criminal prosecution. Wherefore, Helenthal prays judgment against Polk for wrongful and tortious misconduct in filing and prosecuting suit against Helenthal in the amount of three million dollars in compensatory damages, and three million dollars in punitive damages, together with costs and any other relief allowed by law or equity. COUNT 2 1. 2. All of the allegations in Count 1 are incorporated and realleged. Lathrop & Gage L.C. was negligent in failing to investigate Polk’s fitness 19 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 20 of 33 and competence before hiring Polk. 3. Alternatively Lathrop & Gage was negligent in hiring Polk when it knew or should have know he was unfit, dishonest, and /or dangerous. 4. Alternatively Lathrop & Gage was negligent in managing and supervising Polk, in naming and maintaining him as Vice Chairman and/or in charge of its Washington D.C. office when and where he was not licensed to practice Law. 5. Alternatively Lathrop & Gage L.C. was negligent in failing to manage and supervise Polk vis-à-vis Helenthal when Lathrop knew or should have known Polk was incompetent in antitrust and unlicensed in Illinois, and knew or should have known Polks’ “legal billing” was phony. 6. Lathrop & Gage L.C. negligence in contributing to allow Polk to commit all his crimes and torts against Helenthal directly caused or directly contributed to cause all Helenthal’s injury and damage. 7. Lathrop & Gage conduct was reckless and indifferent to the rights of Helenthal, and outrageous. Wherefore, Helenthal prays judgment of compensatory damages against Lathrop & Gage in the amount of three million dollars, and three million dollars punitive damages, together with costs, and any other relief and remedy allowed by law. COUNT 3 1. All of Counts 1 and 2 are adopted and realleged. 2. Defendant BOYCE tortiously instigated and prosecuted Polk’s tortious suit against Helenthal, and further the process of serving Helenthal with Default in violation 20 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 21 of 33 of the County Circuit Court standstill Order. 3. Boyce’s tortious misconduct vis-à-vis Helenthal directly caused, or directly contributed to cause all Helenthal’s injury and damage. Wherefore, Helenthal prays judgment of compensatory damages against Boyce in the amount of three million dollars, and three million dollars punitive damages, together with costs, and any other relief and remedy allowed by law COUNT 4. 1. 2. All of Counts 1, 2, and 3 are adopted and realleged. On July 25, 2002 , Helenthal filed suit against Polk in St. Louis County, cause # 2002cc-2898. 3. Also on July 25, 2002 , Helenthal filed suit against Lathrop & Gage in St. Louis City Circuit Court, cause #024-01668. 4. In suing separate tortfeasors (1) Polk and (2) Lathrop separately in different courts, Helenthal conformed to settled law in Missouri under Manson v. Wabash RR., 338 S.W.2d 54, 57 (Mo.banc 1960), Glick v. Ballentine Produce, Inc., 396 S.W.2d 609 (Mo.1965) and Barlow v. Thornhill, 537 S.W.2D 412 (Mo banc.1976), as well as nationwide. Restatement (Second) Judgments, §§24; 49; 50; 51; 38 Am.Jur., Negligence, Sec. 257, pp. 946, 947. 5. Where defendants have a relationship in which one may be vicariously responsible for the conduct of the other, a judgment in favor of the injured person is conclusive upon him only as to the amount of damages against the other person vicariously liable setting the benefit of a ceiling on damages, only: that is the limit of the 21 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 22 of 33 collateral estoppel effect, the other defendant still may litigate that amount in hopes of an award less than the ceiling. Restatement (Second) Judgments, 51 (2) in part vicariously for tortfeasors. 6. When Helenthal sued Lathrop & Gage in the City of St. Louis Circuit Court, that Circuit Court acquired EXCLUSIVE “First Filed” JURISDICTION over Helenthal’s claims against Lathrop & Gage, L.C. under settled law. State ex rel General Dynamics v Luten, 566 S.W.2d 452,458 (Mo.banc 1978). 7. Lathrop & Gage did not file a counterclaim (compulsory) to Helenthal’s City case, and Lathrop & Gage never attempted to intervene in Polk’s suit against Helenthal in Washington D.C., where all Helenthal’s claims in St. Louis County were compulsory counterclaims. 8. The St. Louis County Circuit Court allowed Lathrop & Gage to file an “Answer” in Intevenor, without stating any claim in intervention, and in answering Helenthals claims against Polk, Lathrop prayed only to be dismissed, count by count. Lathrop lacked “standing”. 9. Lathrop’s intervention in the County did not and could not vitiate the City’s exclusive “first filed” jurisdiction over Helenthal’s claims against Lathrop: State ex rel General Dynamics v Luten, the court ruled: “Turning now to the central issues, it is settled in Missouri that where two actions involving the same subject matter between the same parties are brought in courts of concurrent jurisdiction, the court in which service of process is first obtained acquires exclusive jurisdiction and may dispose of 22 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 23 of 33 the entire controversy without interference from the other. State ex rel .Kincannon v Schoenlaub, 521 S.W.2d 391 (Mo.banc 1975). In State ex rel. Lamare v Impey, 365 Mo. 437, 283 S.W.2d 480, 482 (1955), it was stated this way, "The law is well settled that the jurisdiction of a court first invoked cannot be defeated by a subsequent proceeding in a court having concurrent jurisdiction of the person or subject matter." See also, State ex rel McGull v. St. Louis Board of Police Commissioners, 178 S.W.3d 719, 723 (Mo.App.E.D. 2005). 10. The County Circuit Court entered a Default Judgment in favor of Helenthal against Polks. On August 27, 2004 the County Circuit Court entered a “JUDGEMENT [sic] and ORDER” denying Polks’ motion to set aside the default judgment, and concluded: 23 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 24 of 33 11. Under settled law, an interlocutory determination of default “admits the traversable allegations in the petition constituting the plaintiffs cause of action and the defendant’s liability there under, except that when damages are unliquidated, the default is no admission of the amount of damages claimed, which then becomes a matter of proof.” Beckmann v. Miceli Homes Inc. 49 S.W.3d 533,541 [17](Mo.App.E.D. 2001). This obviated the need for Helenthal to prove anything about Polk’s fault or relationship, and confined the default damages inquiry to damages. 12. Under settled law, a default judgment damages only inquiry Court Order is not ADEQUATE NOTICE required under Constitutional Due Process of Law, for the prospect of preparing to undertake, or litigate any other issue, any issue other than “damages”. 13. On February 27, 2006, the County circuit court began the Default “Inquiry” bench trial to determine damages. The court opened trial as follows, (L.F. 666, Tr. 2 line 14: App. 16): 24 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 25 of 33 “THE COURT: The Court in the court file notes the order of August 27, 2004, which entered a judgment against Defendants Charles Polk and his wife and has left only the issue of damages remaining for hearing as to that. Okay. Plaintiff may proceed.” 14. Plaintiff opened by reiterating jurisdictional objections to insufficient standing for Lathrop to participate under Arizonans for Official English and Park v. Arizona, 520 U.S. 43 (1997), and requested the court grant Lathrop the only relief it sought in intervenor, which was “Dismissal”, count by count. (L.F. 666-671; App. 1622). 15. Next Helenthal specifically referenced and objected to Intervenor Lathrop’s “Trial Brief” request that the judgment be against Polk, only (L.F. 671; App.21) @ Tr. 21, Line 23: “Finally, we get to their Trial Brief. In their Trial Brief, which I’ve included at Tab 8, the very last page, last paragraph. “Lathrop & Gage respectfully submits that any judgment for damages in this case should be solely against Mr. Polk”. That’s what we said all along here, Your Honor. …. Here’s the denouement of their gambit. It’s disguised as a declaratory judgment action that they want to use to assert some sort of collateral estoppel from this action and transport it to the City, where their whole reason for being here was, gee, we think some sort of 25 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 26 of 33 collateral estoppel may take place here that they can transport against us to the City. “Lathrop & Gage requests that the Court enter findings of fact and conclusions of law that the actions of Polk and Helenthal, if any, resulted from conduct of Mr. Polk that was outside the scope and course of Mr. Polk’s employment with Lathrop & Gage.” To the extent that they now have tried to assert some sort of bazaar [sic] declaratory judgment asking this Court for some sort of specific findings that has nothing to do with damages, we raised specifically the defense that the request is barred because of the action pending between these parties in the City of St. Louis, specifically under Rule 55.27(9)[sic] 16. Lathrop lacked standing to intervene in the County, the City Circuit Court rejected Lathrop’s motion to consolidate-transfer Helenthals’ case against Lathrop into the county after intervention, Lathrop did not plead-allege any claim in the County, Missouri Supreme Court Rule 55.32 relieved Helenthal of any obligation to plead any claim against Lathrop because Helenthal’s against Intervenor Lathrop was already pending, and the City Circuit Court always retained exclusive jurisdiction over Helenthals suit against Lathrop, and the County Court lacked jurisdiction to decide such claims, and had informed Helenthal the only issue to be decided was damages Polk owed Helenthal. 17. Then, after 2 days of proof of Helenthal’s damages from his psychiatrist and 26 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 27 of 33 his mother, and his own documentary proof of hundreds of thousands of dollars, the trial court stopped Helenthal. 18. On Wednesday, March 1, 2006, Court convened the third day of this damages only bench trial at 9:10 a.m. as follows (Tr. 434): “THE COURT: “Consistent with my announcement to counsel off the record last night, counsel has until noon today to conclude this case”. MR. HULLVERSON: Thank you your Honor. THE COURT: Totally. I think you have stretched the bounds of my patience.” (L.F. 775; Tr. 434 L.6-13; App. 23). 19. On March 28, 2006 the County Court issued its Order Judgment and Decree of Court. (L.F. 441-447; App.24- 31). The Court began by recapping Count-byCount Helenthals’ prayer for judicial remedy against the Polks. Helenthals allegations in the County case did not include any prayer for judgment, order, or relief of any kind against Lathrop. The Court recounted, “Default Judgment was entered against Defendants Polk and the cause was set for hearing on damages.” … “On August 27, 2004, the court, after a testimonial hearing, heard and denied the motion of Defendants Polk to set aside the default judgment in a written opinion. The cause was set for hearing as to the issue of damages.” The parties waived jury trial and the cause was set for trial on February 27, 2006. 27 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 28 of 33 20. The gratuitous “findings” aimed at ending Lathrop’s liability to Helenthal in the City case in the course of the county default damages only inquiry, were (a) unnecessary to the damages Polk owed Helenthal, (b)were never litigated, (c) were never the subject of any pending claim in that court, and (d) were entered by a court that lacked jurisdiction to make such positions because of the exclusive jurisdiction of the City Circuit Court, and in each respect were invalid judicial “judgments” . 21. Attached are: (1) The trial Court Order setting the default judgment damages inquiry; (2) Portions of the transcript of that Hearing Feb.27, reiterating it was damages only; (3) The Default judgment from the St. Louis County Circuit Court awarding Helenthals damages from Polks, (4) The Memorandum Opinion affirming that default judgment; (5) The Order granting Lathrop partial summary judgment based on the default judgment in the county, affirmed by secret opinion. (6) Helenthal’s Points on appeal from his Appellate Brief from that partial summary judgment; (7) the appellate court second secret opinion affirming partial summary judgment. 22. This course of procedure deceived Helenthal beginning with the recitation at the Damages Inquiry hearing in the County that it was limited to a default judgment, damages only inquiry, and this course of procedure constitutes a deprivation of propertyHelenthal’s lawsuit – without Constitutional Due Process of law, and Helenthal prays and demands this court declare that subsequent partial summary judgment in the City 28 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 29 of 33 invalid and unconstitutional application of estoppel. 23. Upon declaring that the City Circuit Court partial summary judgment invalid, Lathrop and Gage is vicariously liable for all damages assessed against Polk thus far. 24. Lathrop & Gage, L.C. is a business that provides legal service, and is a company that was formed, organized, and governed by the "Missouri Limited Liability Company Act", §§ 347.010 to 347.187 RSMo. (1993). That law applies throughout the time of the wrongs Polk perpetrated against Helenthal, and provides extraordinary vicarious liability, beyond and in addition to common law agency, as particularly alleged hereafter. 25. §347.075 RSMo. provides special limited liability company liability, “ Where, by any wrongful act or omission or other actionable conduct of any authorized person, acting in the ordinary course of the business of the limited liability company, or otherwise with authority, loss or injury is caused to any person, not being a member in the limited liability company, the limited liability company is liable for all damages permitted by law as a consequence of such actionable conduct.” 26. §347.077 RSMo. provides special limited liability company liability for misapplication of money as follows: 1. If an authorized person, acting within the scope of his apparent authority, receives money or property of a person who is not a member or manager of the limited liability company and misapplies it, the limited liability company is liable for all damages permitted by law as a consequence of such actionable conduct. …2…. 27. In making Polk “Vice-Chairman” of Lathrop & Gage, and head of its 29 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 30 of 33 Washington D.C. office, Lathrop & Gage L.C. made Polk a “member” and “manager” and “authorized person” within the meaning of §347.015 RSMo. and applications in §347.075 RSMo, Lathrop & Gage L.C. never changed Polk’s title or position from October 2001 through mid June 2002, throughout the time Polk defrauded Helenthal, 28. Polk committed the all the wrongful acts of taking Helenthal’s money in March and April 2002, for which this Court sentenced Polk to pay Helenthal restitution $382,000.00 while Polk was an authorized person, acting within the scope of his apparent authority in the ordinary course of the business of Lathrop & Gage L.C., ie providing legal service and/or advice. Helenthal was never a member of the limited liability company (Lathrop & Gage LLC) injured by Polk’s wrongdoing. This Court’s restitution order was permitted and made as a consequence of Polk’s actionable conduct as described in Polk has not paid Helenthal any restitution, and consequently Lathrop & Gage owes Helenthal that $382,000.00, together with other damages hereafter alleged, under this law, all within the meaning of and as provided by §347.075 R.S.Mo. 29. Polk testified in a deposition Dec.19, 2003, as follows, Pg. 191, line 12: He did not study antitrust law in law school; He did not have any experience with antitrust law, or unfair business practices law; Q. And then when you graduated, what antitrust work did you do? A. None. I have never done any antitrust work, even to this day. 30. Polk testified that the only thing he did for Mr. Helenthal pursuant to 30 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 31 of 33 Helenthal’s contract of legal representation with Lathrop & Gage, was “lobby”, but Polk never filed any “lobbying” registration papers. Specifically, Polk testified as follows , Dep. Pg. 193 line 2: Q. Helenthal's So the only thing that you did, by way of legal representation in Mr. antitrust case, was to lobby; is that correct? A. Yes, sir. And Dep .pg 202 line 2: Q.” So you would agree with me that you would not be competent to take on a $26 million antitrust case in Springfield, Illinois? Yes, sir. 31. Lathrop & Gage mailed Helenthal bills containing thousands of dollars of A. charges on the basis Polk did legal work for Helenthal’s antitrust case when that was all false, and constituted mail fraud under Title 18 U.S.C. §1341, which was never litigated in the County case – Helenthal only added those claims in the City case because Lathrop was the mailing party, and only amended the City Petition, never the original county petition as to which Polk defaulted. 32. By way of example, summarized are identical Polk billing entries for December, 2001, to Helenthal. 12/5/01 12/7/01 12/10/01 12/18/01 CEP CEP CEP CEP work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting 2 hours 2 hours 2 hours 2 hours $730.00 $730.00 $730.00 $730.00 31 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 32 of 33 12/19/01 12/20/01 12/21/01 12/26/01 CEP CEP CEP CEP and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of a complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matter work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters Expenses Incurred on your behalf: 12/21/01 Polk Parking – 40; travel 21.64; 27.25 Summary; Attorney Charles Polk, 16 hours at the rate of $365.00 an hour for a total of $5,840.00. Grand total = 5928.89 2 hours 2 hours 2 hours 2 hours Travel $730.00 $730.00 $730.00 $730.00 88.89 5928.89 33. The March 28, 2006, Circuit Court of St. Louis County Judgment in favor of Helenthals against the Polks adjudged Charles Polk owed James Helenthal a total of $3,621,807.32, plus interest and court costs, and Lathrop & Gage L.C. is vicariously liable for all that damage by virtue of its relationship to Polk when he committed the torts and crimes against Helenthal that give rise to that judgment, and special responsibility incumbent on Lathrop under the Missouri Limited Liability Company Act. Wherefore, Helenthal prays judgment declaring the Missouri City Circuit Court partial summary judgment invalid as a deprivation of property without due process of law, and damages against Lathrop & Gage for its vicarious liability for Polk in the amount, now of 5 million dollars, and separately damages for mail fraud in the amount of $300,000.00. 32 Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 33 of 33 ATTACHMENTS: 1. Polk “Agreement “ 2. Order Dec. 2, 2002 Denying consolidation 3. Order August 27, 2004 denying Polk relief from default judgment, and setting Damages Only. 4. Transcript of trial , Pages 1-28; 434; 5. Default Judgment March 26, 2006. 6. Order Sept 11, 2007, affirming default judgment after trial on the issue of damages. 7. Order and Partial Summary Judgment Nov. 7, 2007. 8. Helenthal Appeal Brief, Points relied on summaries pg. 18, 19, 20. 9. Appellate Order affirming partial summary judgment. HULLVERSON & HULLVERSON, L.C. BY:___// James E. Hullverson, Jr.___ James E. Hullverson, Jr. #26885 MO, Il 3123402 Attorney for Plaintiff 7777 Bonhomme, Suite 1500 St. Louis, Missouri 63105 (314) 725-1616 E-Mail [email protected] Plaintiff will serve each defendant by WAIVER OF SERVICE AND ACKNOWLEDGMENT FORM Form. 33
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