lathrop lawsuit
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION James Helenthal, )
Plaintiff, ) v. ) CHARLES POLK ) Cause # And ) LATHROP & GAGE, L.C. ) And ) JURY TRIAL DEMANDED GILBERT BOYCE ) And ) Defendants ) ________________________ 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
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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
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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.
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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
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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
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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
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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
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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: Jim Helenthal Subject: 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.
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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
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of hourly at Lathrop & Gage. Ex. 14, which states:
Polk, Charles To: Jim Helenthal Subject: 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. Jim Helenthal
20. 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
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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”.
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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
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& 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
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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.
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(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)
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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.
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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
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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,
Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 18 of 33
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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. All of the allegations in Count 1 are incorporated and realleged.
2. Lathrop & Gage L.C. was negligent in failing to investigate Polk’s fitness
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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
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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. All of Counts 1, 2, and 3 are adopted and realleged.
2. 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
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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
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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:
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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):
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“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. 16-
22).
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
Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 25 of 33
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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
Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 26 of 33
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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-by-
Count 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.
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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 property-
Helenthal’s lawsuit – without Constitutional Due Process of law, and Helenthal prays
and demands this court declare that subsequent partial summary judgment in the City
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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
Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 29 of 33
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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
Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 30 of 33
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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. So the only thing that you did, by way of legal representation in Mr.
Helenthal's 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? A.
Yes, sir.
31. Lathrop & Gage mailed Helenthal bills containing thousands of dollars of
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 CEP work on federal antitrust matters, drafting
and forwarding of complaint letter regarding antitrust matters
2 hours $730.00
12/7/01 CEP work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters
2 hours $730.00
12/10/01 CEP work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters
2 hours $730.00
12/18/01 CEP work on federal antitrust matters, drafting 2 hours $730.00
Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 31 of 33
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and forwarding of complaint letter regarding antitrust matters
12/19/01 CEP work on federal antitrust matters, drafting and forwarding of a complaint letter regarding antitrust matters
2 hours $730.00
12/20/01 CEP work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters
2 hours $730.00
12/21/01 CEP work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matter
2 hours $730.00
12/26/01 CEP work on federal antitrust matters, drafting and forwarding of complaint letter regarding antitrust matters
2 hours $730.00
Expenses Incurred on your behalf: 12/21/01 Polk Parking – 40; travel 21.64; 27.25
Travel 88.89
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
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.
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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 jrhullverson@mac.com
Plaintiff will serve each defendant by WAIVER OF SERVICE AND
ACKNOWLEDGMENT FORM Form.
Case 4:08-cv-01791-CEJ Document 1 Filed 11/19/08 Page 33 of 33
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