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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.


ARGUMENT

I. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPROPERLY


AWARDING MOTHER $22,000 IN RETROACTIVE CHILD SUPPORT
PURSUANT TO KRS § 406.031 EVEN THOUGH APPELLANT WAS
NOT SERVED UNTIL 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, and upon 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 a good 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
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
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".1 See

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

1
Perhaps this is the reason that the Appellee fails to provide a transcript reference for this
statement of "fact".
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 RESULT


WHERE 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
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.
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. Morris
James M. Morris
Jason V. Reed
217 North Upper Street
P. O. Box 394
Lexington, Kentucky 40588-0394
Telephone: (606) 281-6981
Fax: (606) 233-7876
ATTORNEYS FOR APPELLANT

M:\Old Files\AppealsOld\RAMIREZ\REPLY.BRI