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8/9/2019 REPLY Ramirez
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STATEMENT OF PURPOSE
Appellant files herewith his Reply to the Brief filed by Appellee in order to clarify
inaccuracies and rebut arguments contained therein.
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ARGUMENT
I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPROPERLYAWARDING MOTHER $22,000 IN RETROACTIVE CHILD SUPPORTPURSUANT TO KRS 406.031 EVEN THOUGH APPELLANT WASNOT SERVEDUNTIL OVER TWO YEARS AFTER THE STATUTE
OF LIMITATIONS HAD EXPIRED.
First and foremost, Appellee fails to offer a persuasive legal defense of the method
in which service of process was attempted in the case at bar. For instance, the Appellee
boldly states the trial court correctly found that "the confusion concerning the name of the
Appellant [for service of process] was reasonable because of his Hispanic heritage." See
Appellee's Brief at 9. To be certain, the Appellee's suggestion that service of process can be
conducted on different terms due to a person's ethnicity is fundamentally improper. In fact,
if such a statement were true, it would raise grave constitutional concerns regarding a
person's Fourteenth (14th) Amendment rights to due process of the law. Thankfully,
Appellee's statement is without merit, as the relevant statutory and legal precedents relevant
to service of process make no exceptions for a person's heritage or ethnicity.
In order to meet the mandate of KRS 406.031(1), a party must initiate an action
within four (4) years to avoid being barred by the statute of limitations. The initiation of an
action is only effectuated at the time an action is filed, andupon the issuance of a summons
coupled with the intent that the summons be served in due course. See, e.g., Civil Rule
["CR"] 3.01; Gibson v. EPI Corp., Ky.App., 940 S.W.2d 912 (1997).
It is clear that a plaintiff is under an affirmative obligation to make agood faith effort
to secure service of process. This obligation is so stringent that the failure to properly and
lawfully serve a defendant, or to engage in diligent and good-faith efforts to gain service, is
grounds for dismissal of an action. Jenkins v. City of Lexington, Ky., 528 S.W.2d 729
(1975)(action dismissed after property owners remained inactive for two years after filing
complaint); Cornett v. Smith, Ky., 446 S.W.2d 641 (1969)(action dismissed due to expiration
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of statute of limitations after sheriff returned process without being served). Similar
to the remedy of dismissal for neglect in serving a named defendant, the defense of laches
can be used to bar stagnant and neglected claims. Specifically, the doctrine of laches is
applicable where the neglect or omission to assert one's rights within a reasonable period of
time causes prejudice, injury, disadvantage or a change of position to the other party. See,
e.g., Fightmaster v. Leffler, Ky.App., 556 S.W.2d 180 (1977). When the defense of laches
is applicable to an action, dismissal of the plaintiff's claim is appropriate. Id. at 183.
In the instant matter, there is no dispute that the initial suit was initiated against "Juan
Ramirez Cortez" on December 12, 1990. TR 1. It is also undisputed that during the course
of the next three (3) years, there was a total of only two (2) attempts to locate the Appellant
for service of process, including the ill-fated search by the State Parent Locator Service for
"Juan Cortez." See Appellee's Brief at 1-2. Following these cursory actions, no further
attempts were made to serve the Appellant for over four (4) years. See Appellee's Brief at
2. Although the Appellee apparently suggests that Appellant was evasive during this period,
the credit report from which Appellant's address was eventually obtained demonstrated that
Appellant had only two (2) different residences during a four (4) year period. 5/27/98
Hearing Transcript, p. 20.
In addition, Appellant testified that he has maintained an additional mailing address
the entire time he has resided in Maryland. Id. These facts dispel any notion that the
Appellant has engaged in evasive conduct. Instead, the facts unmistakably demonstrate that
there were no good-faith or diligent attempts to serve the Appellant as required by Jenkins
and Cornett, supra. Perhaps the best example of the Appellee's dilatory conduct is that when
the case was referred back to the Fayette County Attorney's Office, service of process was
effected on the Appellant within two days. See Appellee's Brief at 2. As such, it can hardly
be disputed that the type of delay created by the Appellee's conduct in the instant matter is
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Perhaps this is the reason that the Appellee fails to provide a transcript reference for this1
statement of "fact".
unconscionable insofar as the Appellee waited to effectuate service of process more than two
years after the statute of limitations prescribed by KRS 406.031(1) had expired.
Accordingly, the Appellee's claim for retroactive child support should be dismissed as time-
barred, and the decision of the trial court should be REVERSED.
To compound the aforementioned problems, the Appellant was unduly prejudiced by
the Appellee's delay in service by a ever-increasing support obligation of $22,000 arising
from a claim of which he had no knowledge of whatsoever. It is indisputable that this result
was due solely to the Appellee's neglect and omission to properly attempt service of process
on the Appellant. Although the Appellee disingenuously states that the Appellant had notice
of his obligation because he "testified before Judge Thornton that Ms. Brooks had informed
him that she was pregnant with his child," the record discloses no such "fact". See1
Appellee's Brief at 10. Instead, the record discloses that contrary to the Appellee's assertions,
the Mother had engaged in sexual relations with numerous partners leaving the issue of
paternity, and Appellant's notice thereof, in serious doubt. 5/27/98 Hearing Transcript, pp.
37-38. This is especially true in light of the fact that Appellant testified repeatedly that he
never came in contact with the Mother while in Kentucky. Id. at pp. 19-21. As such, the
defense of laches in the case sub judice is not only appropriate, but requires that the
Appellee's claim for retroactive child support be dismissed as time-barred pursuant to KRS
406.031(1), and the decision of the trial court be REVERSED.
As a final matter, the Appellee's reliance on the relation back provision of CR
15.03(1) regarding amended complaints does not change this result. There is no dispute that
the Appellee amended its original complaint in May, 1997, to name "Juan Cortez, a/k/a Juan
Ramirez Cortez" as the new defendant. TR 10. This amendment to the original complaint
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was tantamount to a change of party within the meaning of CR 15.03(2), for this was the only
change made by the Appellee in the Amended Complaint. Pursuant to the detailed provisions
of CR 15.03(2), an amended complaint will not be permitted to relate back to the time of the
original filing unless the defendant being named as a party had notice of the suit prior to the
expiration of the limitations period. Nolph v. Scott, Ky., 725 S.W.2d 860 (1987). It has been
thoroughly established that the Appellant did not have notice of the suit prior to the
expiration of the limitations period. Thus, the Appellee's assertion that the Amended
Complaint relates back to the initial time of filing pursuant to CR 15.03(1) is misplaced.
Simply stated, the Amended Complaint of 1997 did not relate back to 1990, making the
present claim barred as the relevant statute of limitations provided in KRS 406.031(1) has
expired, making the current Complaint time-barred and requiring the claim for retroactive
support to be DISMISSED.
II. JURISDICTION OVER A NON-RESIDENT CAN ONLY RESULTWHERE THERE HAS BEEN SPECIFIC COMPLIANCE WITH KRS 454.210(2).
Under the specific provisions of KRS 454.210(2), personal jurisdiction of Kentucky
courts over a nonresident can only occur when the claim arises from one of the eight
situations explicitly identified in the statute itself. Of those eight, only subsection 2(a)(8) is
relevant as it allows Kentucky courts to exercise personal jurisdiction over claims arising out
of a person "[c]ommitting sexual intercourse in this state which intercourse causes the birth
of a child ...." [Emphasis added.] Notably, both Ms. Brooks and Mr. Ramirez readily
acknowledge that the sexual intercourse which caused the birth of this child occurred in the
state of Florida, not Kentucky. 5/27/98 Hearing Transcript, pp. 15, 37. This singular fact
evidences that no proper grounds for service of process on the Appellant ever existed
pursuant to KRS 454.210(2). The purpose of KRS 454.210 is to ensure that Kentucky
courts are in compliance with the federal constitutional boundaries of due process prior to
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asserting personal jurisdiction over non-resident defendants. Texas Am. Bank v. Sayers,
Ky.App., 674 S.W.2d 36 (1984), cert. denied, 469 U.S. 1211 (1985). However, the Appellee
steadfastly insists that the Commonwealth could constitutionally exercise jurisdiction over
the Appellant on other terms. As the Appellee's suggestion is unsupported by the plain
language of the statute, the decision of the trial court should be REVERSED.
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CONCLUSION
Based upon the foregoing, the Appellant respectfully requests this Court to REVERSE
the trial court's award of arrearages in the instant case.
Respectfully submitted,
MORRIS & MORRIS, P.S.C.
By: _____________________________________Sharon K. MorrisJames M. MorrisJason V. Reed
217 North Upper StreetP. O. Box 394Lexington, Kentucky 40588-0394Telephone: (606) 281-6981Fax: (606) 233-7876ATTORNEYS FOR APPELLANT
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