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Roberto A. Rivera-Soto and Laura Steinberg, on the joint brief. David L. Isabel, Mel E. Myers and Misty Smith Kelley, on the joint brief. Grossman and Allison D. Rule, on the joint brief. James H. Forte, on the joint brief. Joshua M. Bobeck, on the joint brief. With the proliferation of personal cellphones, the State found that it required additional funding to update the emergency telephone system. This legislation directed that the fees "shall be collected by the. Defendants promptly moved to dismiss the third amended complaint, asserting that: 1 the fees constitute taxes and so plaintiff's claims violate the tax bar of the False Claims Act; 2 the claims violate the public disclosure bar of the False Claims Act; and 3 the third amended complaint's fraud allegations failed to contain the specificity required by Rule Plaintiff addressed all three of these arguments in opposing the motion.

The judge ultimately dismissed the action for this additional reason; he also determined that dismissal was appropriate because plaintiff failed to allege that it had disclosed the subject matter of its complaint to the State before filing it, and that plaintiff failed to plead fraud with particularity. Plaintiff appeals, arguing: 1 the motion judge erred in denying plaintiff an opportunity to brief the issue the judge sua sponte raised on the motion's return date; 2 the judge misapplied the Tax Procedure Law; and 3 the third amended complaint met all pleadings requirements, including Rule 's specificity requirement.

After careful consideration, we reject the argument that the motion judge misapplied the Tax Procedure Law in dismissing the third amended complaint. AT2 6 Indeed, plaintiff does not seem to argue that the judge's specific holding about the limitations on its claim by the Tax Procedure Law was in error, only that plaintiff could reconstitute or amend its pleaded cause of action to assert a claim that would not avoid the limitations imposed by the Tax Procedure Law.

That is, plaintiff argues to us that the Tax Procedure Law may preclude its False Claims Act suit for uncollected or unremitted taxes or fees, but it would not preclude a cause of action based on defendants' alleged false certification that they had complied with the Act in the collection and remission of taxes and fees.

This argument was not raised or considered in the trial court, perhaps because the trial judge did not permit supplementation of the briefing once he raised the Tax Procedure Law's impact on the third amended complaint. In light of the posture this case has taken, we deem the most efficient way of moving forward is to acknowledge that the trial judge's decision to dismiss the third amended complaint was correct but that plaintiff ought to have the opportunity to pursue the issues now raised in this appeal that have not yet been addressed.

To repeat, the judge sua sponte raised the question whether the Tax Procedure Law required dismissal of plaintiff's third amended complaint and then rejected plaintiff's request to brief this new issue. While the judge's refusal to allow further briefing was undoubtedly a matter of discretion, it clearly would AT2 7 have been better had he exercised his discretion differently.

That decision has led to a debate here about whether a modification of plaintiff's claims would escape the reach of the Tax Procedure Law when that should have first been explored in the trial court. To be sure, our standard of review of a decision on a motion to dismiss is de novo, but "our function as an appellate court is to review the decision of the trial court, not to decide the motion tabula rasa.

We are presented with an appeal that would have us determine whether a cause of action could be pleaded and maintained when that cause of action has never been presented to the trial court. And so, we will consider only the chief issue decided by the trial court — as to which we agree — while remanding the matter to allow plaintiff to file an amended complaint; we neither consider nor offer any view as to whether that amended complaint may withstand a motion to dismiss.

In turning to what was decided by the motion judge, we agree that the Act is influenced and limited by the Tax Procedure Law. The former, in fact, clearly expresses that the "administration, collection and enforcement of the fee imposed by this act shall be subject to the provisions of the [Tax Procedure Law] to the extent that the provisions of such law are not inconsistent with any AT2 8 provision of this act.

This can only mean, and we do not understand plaintiff as arguing otherwise, that the Tax Procedure Law governs the administration and enforcement of the fees required by the Act. Plaintiff also does not argue with the trial judge's determination that the Tax Procedure Law's authorization of a deficiency action for unpaid taxes and fees via the following language — "[t]he taxes, fees, interest and penalties imposed by any such State tax law.

See also N. But, as we have noted, to circumvent this roadblock plaintiff argues that these statutory provisions do not preclude a Consumer Fraud Act1 claim "arising out of the false certification of compliance. AT2 9 the information provided. So, we choose not to consider the maintainability of such an action tabula rasa and will instead remand the matter to the trial court, which is directed to allow plaintiff to file an amended complaint.

We lastly turn to two procedural points that have not drawn much of the parties' attention. Dighton, KS. Sylvia, KS. Nickerson, KS. Deerfield, KS. Madison, KS. Hugoton, KS. Columbus, KS. Conway Springs, KS. Kincaid, KS. St Paul, KS. Oxford, KS. Hudson, KS. Pretty Prairie, KS. Partridge, KS. Burrton, KS. Haven, KS. Buhler, KS. Piqua, KS. Humboldt, KS. Olpe, KS. Scammon, KS. Lehigh, KS. Liberty, KS.

Belle Plaine, KS. Windom, KS. Johnson, KS. Manter, KS. Big Bow, KS. La Harpe, KS. Medicine Lodge, KS. Sublette, KS. Arlington, KS. Allen, KS. Kingman, KS. Buffalo, KS. Clearwater, KS. Saint John, KS. Bushton, KS. Plains, KS. Ellinwood, KS. Hewins, KS. Altoona, KS. Coldwater, KS. Eureka, KS. Inman, KS. Victoria, KS. Claflin, KS. Richfield, KS. Rolla, KS. Langdon, KS. Moscow, KS. Protection, KS. Yates Center, KS. Elk City, KS. Canton, KS. Lafontaine, KS.

Toronto, KS. Purcell, KS. Quincy, KS. Fowler, KS. Moline, KS. Satanta, KS. Preston, KS. Ryus, KS. Fall River, KS. Kinsley, KS. Havana, KS. Hamilton, KS. Picher, KS. Coyville, KS. Elkhart, KS. Benedict, KS. Sedan, KS. Greensburg, KS. Burns, KS. Durham, KS. Cassoday, KS. Severy, KS. Mapleton, KS. Potwin, KS. Cedar Vale, KS. Galesburg, KS. Council Grove, KS.

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Bobeck, on the joint brief. With the proliferation of personal cellphones, the State found that it required additional funding to update the emergency telephone system. This legislation directed that the fees "shall be collected by the. Defendants promptly moved to dismiss the third amended complaint, asserting that: 1 the fees constitute taxes and so plaintiff's claims violate the tax bar of the False Claims Act; 2 the claims violate the public disclosure bar of the False Claims Act; and 3 the third amended complaint's fraud allegations failed to contain the specificity required by Rule Plaintiff addressed all three of these arguments in opposing the motion.

The judge ultimately dismissed the action for this additional reason; he also determined that dismissal was appropriate because plaintiff failed to allege that it had disclosed the subject matter of its complaint to the State before filing it, and that plaintiff failed to plead fraud with particularity. Plaintiff appeals, arguing: 1 the motion judge erred in denying plaintiff an opportunity to brief the issue the judge sua sponte raised on the motion's return date; 2 the judge misapplied the Tax Procedure Law; and 3 the third amended complaint met all pleadings requirements, including Rule 's specificity requirement.

After careful consideration, we reject the argument that the motion judge misapplied the Tax Procedure Law in dismissing the third amended complaint. AT2 6 Indeed, plaintiff does not seem to argue that the judge's specific holding about the limitations on its claim by the Tax Procedure Law was in error, only that plaintiff could reconstitute or amend its pleaded cause of action to assert a claim that would not avoid the limitations imposed by the Tax Procedure Law.

That is, plaintiff argues to us that the Tax Procedure Law may preclude its False Claims Act suit for uncollected or unremitted taxes or fees, but it would not preclude a cause of action based on defendants' alleged false certification that they had complied with the Act in the collection and remission of taxes and fees.

This argument was not raised or considered in the trial court, perhaps because the trial judge did not permit supplementation of the briefing once he raised the Tax Procedure Law's impact on the third amended complaint. In light of the posture this case has taken, we deem the most efficient way of moving forward is to acknowledge that the trial judge's decision to dismiss the third amended complaint was correct but that plaintiff ought to have the opportunity to pursue the issues now raised in this appeal that have not yet been addressed.

To repeat, the judge sua sponte raised the question whether the Tax Procedure Law required dismissal of plaintiff's third amended complaint and then rejected plaintiff's request to brief this new issue. While the judge's refusal to allow further briefing was undoubtedly a matter of discretion, it clearly would AT2 7 have been better had he exercised his discretion differently. That decision has led to a debate here about whether a modification of plaintiff's claims would escape the reach of the Tax Procedure Law when that should have first been explored in the trial court.

To be sure, our standard of review of a decision on a motion to dismiss is de novo, but "our function as an appellate court is to review the decision of the trial court, not to decide the motion tabula rasa. We are presented with an appeal that would have us determine whether a cause of action could be pleaded and maintained when that cause of action has never been presented to the trial court.

And so, we will consider only the chief issue decided by the trial court — as to which we agree — while remanding the matter to allow plaintiff to file an amended complaint; we neither consider nor offer any view as to whether that amended complaint may withstand a motion to dismiss. In turning to what was decided by the motion judge, we agree that the Act is influenced and limited by the Tax Procedure Law. The former, in fact, clearly expresses that the "administration, collection and enforcement of the fee imposed by this act shall be subject to the provisions of the [Tax Procedure Law] to the extent that the provisions of such law are not inconsistent with any AT2 8 provision of this act.

This can only mean, and we do not understand plaintiff as arguing otherwise, that the Tax Procedure Law governs the administration and enforcement of the fees required by the Act. Plaintiff also does not argue with the trial judge's determination that the Tax Procedure Law's authorization of a deficiency action for unpaid taxes and fees via the following language — "[t]he taxes, fees, interest and penalties imposed by any such State tax law.

See also N. But, as we have noted, to circumvent this roadblock plaintiff argues that these statutory provisions do not preclude a Consumer Fraud Act1 claim "arising out of the false certification of compliance. AT2 9 the information provided. So, we choose not to consider the maintainability of such an action tabula rasa and will instead remand the matter to the trial court, which is directed to allow plaintiff to file an amended complaint.

We lastly turn to two procedural points that have not drawn much of the parties' attention. The first is plaintiff's obligation to plead its fraud claim with the degree of specificity required by Rule a. The judge determined that the third amended complaint was wanting in this regard. Since we affirm the dismissal of the third amended complaint on the ground that it is barred by the Tax Procedure Law, we need not determine whether the claim was or wasn't pleaded with the specificity required by rule.

The second concerns the judge's holding that "[i]n this [third-amended] complaint, plaintiff failed to demonstrate that it disclosed the subject matter of the complaint to the State before filing this action. This provision requires that this service occur AT2 10 "[i]mmediately upon filing of the complaint. The phrasing of the judge's holding suggests that this alternative ground for dismissal was based on plaintiff's failure to plead that it had complied with N. We see nothing in the statute that obliges a plaintiff to plead compliance; plaintiff need only comply with the statute.

In fact, because compliance need only occur "upon filing of the complaint," the obligation does not require compliance with the service and disclosure obligations before the complaint is filed. In addition, the record does not suggest that plaintiff failed to advise the Attorney General of the suit or failed to disclose those things referred to in N. Like the motion judge, defendants assert only that plaintiff failed to plead that it complied. St Paul, KS. Oxford, KS.

Hudson, KS. Pretty Prairie, KS. Partridge, KS. Burrton, KS. Haven, KS. Buhler, KS. Piqua, KS. Humboldt, KS. Olpe, KS. Scammon, KS. Lehigh, KS. Liberty, KS. Belle Plaine, KS. Windom, KS. Johnson, KS. Manter, KS. Big Bow, KS. La Harpe, KS. Medicine Lodge, KS. Sublette, KS. Arlington, KS. Allen, KS. Kingman, KS. Buffalo, KS. Clearwater, KS. Saint John, KS. Bushton, KS. Plains, KS. Ellinwood, KS.

Hewins, KS. Altoona, KS. Coldwater, KS. Eureka, KS. Inman, KS. Victoria, KS. Claflin, KS. Richfield, KS. Rolla, KS. Langdon, KS. Moscow, KS. Protection, KS. Yates Center, KS. Elk City, KS. Canton, KS. Lafontaine, KS. Toronto, KS. Purcell, KS.

Quincy, KS. Fowler, KS. Moline, KS. Satanta, KS. Preston, KS. Ryus, KS. Fall River, KS. Kinsley, KS. Havana, KS. Hamilton, KS. Picher, KS. Coyville, KS. Elkhart, KS. Benedict, KS. Sedan, KS. Greensburg, KS. Burns, KS. Durham, KS. Cassoday, KS. Severy, KS. Mapleton, KS. Potwin, KS. Cedar Vale, KS. Galesburg, KS. Council Grove, KS. Udall, KS. Galena, KS. Altamont, KS. Dunlap, KS. Oswego, KS. Bucklin, KS. Conway, KS. Gridley, KS. Walton, KS.

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To Tramfer CLEC Customer Bases In Four Metropolitan Areas Atlantic, Inc. and TelCove of Virginia, LLC (collectively, “TelCove”) seeking TelCove Investment, LLC (W a Adelphia Business Solutions Kansas City, MO. TelCove of Florida, hc., TelCove Investment, LLC, and TelCove provide competitive local exchange services pursuant to amended CLEC Certificate No. in Arkansas, Florida, Kansas, Kentucky, Louisiana, New Jersey. 3 Communications, Llc - Mo, Cox Kansas Telcom LLC - KS, New Cingular Wireless PCS LLC - IL, Digi-Page, Llp., Bandwidth Com Clec, TelCove Investment.