As noted last time, the Court's rulings in its Jan. 10, 2014 decision are hard to square with its Dec. 8, 2010 ruling under the settled doctrine of "law of the case" for two principle reasons. 1) The Jan. 10, 2014 finding disregards the primary purpose of the 2010 remand, which was to give plaintiffs and opportunity to show "evidence of actual or constructive service" or (ostensibly) suffer dismissal in accord with settled Vermont caselaw that absent lack of proper service personal jurisdiction the necessary result must be dismissal for lack of jurisdiction, and/or 2) Proper service is the plaintiffs burden and waiver of service under the V.R.C.P. must be knowing and intentional under the very precedents the Court cites in support of its Jan. 10, 2014 ruling.
Moreover, as shown in my briefs and prior posts, the Court overlooks that there has never been proper service of process in my case, and that there is no precedent whatsoever for the idea that one can simply "waive" proper service in the first instance in a case absent compliance with V.R.C.P. 4(l)'s specific "waiver" provisions. (This is an exception to the rule of "ancillary jurisdiction" under Gates v Gates et al because proper service, and hence jurisdiction, was never properly secured in this case going back to its very inception in 2000! As argued in my brief, even if the Court finds that I didn't timely appeal the 2000 custody determination, this is an entirely separate matter from an almost-decade-later support modification under V.R.C.P. 5(a) and the Superior court's own findings emphasizing the difference between custody and support actions in its Aug 1, 2012 order!)
Nor, contrary to the Supreme Court's Jan. 10, 2014 ruling, must one continually remind the Court of a "special appearance" challenge to insufficiency of service in an underlying matter provided it is raised initially under American Hospital Corp v. Nevada (cited in Appellant's brief(s) ).
Additionally, as noted in my briefs and above, however concisely I did so I clearly raised my "insufficiency of service" claims in my very first Aug. 2009 Motion for Relief from Judgment, and in light of my pro se status and the trial court's own noting of the issue at the March 2011 and Nov. 14, 2011 hearings the Court was clearly apprised of my intentions and basis of my lack of service/insufficiency of service arguments, thus making entirely unfair the sudden penchant for "form over substance" which the Court embraces in its most recent ruling.
Indeed, as pointed out in my briefs, rather than "intentionally and knowingly" waiving my insufficiency of service arguments which the court took very seriously in 2010, (only to seemingly and nonchalantly cast aside in its latest ruling), I had been litigating these arguments continually in one form or another beginning in 2009 through the first appeal and in almost every filing since down to the latest appeal yet was denied redress on the merits of them due to procedural and interim rulings, (including the July 26, 2011 order of the Superior court).Thus this holding of the Vermont Supreme court that I could have possibly "waived" them is as nonsensical as it is unfair.
Secondly, the Court completely ignores my argument regarding both the the plaintiffs own "waiver" of their right to raise the issue of my alleged waiver of this issue due to their own failure to timely raise it either after my Aug. 2009 Motion or my "Special Appearance/Motion to Dismiss."
Although the Court makes much of the fact noted by the magistrate that I filed three motions subsquent to the June 15, 2011 "ordinary mail" service it (apparently) upheld as sufficient in this matter, it completely overlooks my salient and onpoint argument that all those motions were with regard to the then-pending and subsequently dismissed 2011 Magistrate's appeal, and therefore are entirely inapropos to the question of "waiver" regarding the June 15, 2011 "service."
But just supposing for arguments sake that I had, in the midst of a pending Magistrate's appeal in which these very arguments were fully briefed by the parties, again raised this identical issue, would not the Appellees objected, and rightly so, on the grounds that the issue was already before the (Superior) court judge on appeal and thus entirely redundant to raise again??
Rather, as noted in previous posts, the chronology of these events, along with Appellees belated raising of this "waiver" issue at the late time of it's June 15, 2011 brief in the 2011 Magistrate's Appeal, conspired with the trial court's subsequent ruling after dismissal of the 2011 appeal to allow Appellees a "second gratuitous chance" to re-raise this issue they had already at that point waived in contrast to the principles of fairness and finality forbidden by Putney School v. Schaff.
On these points Appellant is still waiting for the Court to explain the flaw in his logic or application of legal precedents of the Court.
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