Kadota v. Hosogai

• Decision Date: 17 January 1980
• Docket Number: CA-CIV,No. 1,1
• Parties: Hiroshi KADOTA, Appellant, v. Michiko HOSOGAI, a surviving widow, Appellee. 4007.
• Court: Arizona Court of Appeals

Page 68

608 P.2d 68

125 Ariz. 131

Hiroshi KADOTA, Appellant, v. Michiko HOSOGAI, a surviving widow, Appellee.

No. 1 CA-CIV 4007.

Court of Appeals of Arizona, Division 1, Department C.

Jan. 17, 1980.

Rehearing Denied Feb. 25, 1980.

Review Denied March 11, 1980.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Westover and P. Michael Whipple, Phoenix, for appellant

Welliever, Smith, Howard & Nathan by Robert J. Welliever, Phoenix, and Law Offices of Ben J. Martin by Ben J. Martin and Grove M. Callison, Scottsdale, for appellee.

OPINION

HAIRE, Presiding Judge.

The sole issue on appeal is whether the trial court had personal jurisdiction over the appellant, Hiroshi Kadota, a resident of Japan. The appellant argues that appellee's various attempts to serve process on him were insufficient and that he did not waive the right to challenge the court's assertion of personal jurisdiction over him.

This action is based upon an automobile accident that occurred in Arizona. As a result of the accident, appellee's husband, who was a passenger in the automobile driven by Mr. Kadota, died and appellant Kadota suffered severe brain damage. After a stay in a hospital in Arizona, the appellant returned to Japan to live with his family. The appellee, Michiko Hosogai, filed suit on March 25, 1976 alleging that appellant's negligence had caused her husband's death.

The appellee has attempted to achieve valid service of process upon Mr. Kadota at least three times. On April 5, 1976, the appellee filed an affidavit of a private process server stating that he had served the superintendent of motor vehicles pursuant to the non-resident motorists statute. A.R.S. §§ 28-502 and 503. However, appellee failed to file an affidavit regarding the use of the registered mail or to file a return mail receipt with the court as required by A.R.S. § 28-503A(1).

On May 5, 1976, appellee filed an affidavit of a Japanese attorney which stated that he was over 18 years old, not a party to the action and that he had personally served a copy of the summons with a Japanese translation on Mr. Kadota on April 25, 1976 in Japan. The appellant filed a motion to dismiss for lack of personal jurisdiction and a motion to quash service of process on April 27, 1976. The trial court denied the motions on June 14, 1976.

The third attempt to serve process upon the appellant involved service on appellant's guardian ad litem on July 7, 1976. As a result of the brain damage sustained by Mr. Kadota, his father requested appellant's attorney to represent his son in this action as a guardian ad litem. Appellant's attorney requested the appointment of a guardian ad litem for Mr. Kadota based on appellant's brain damage and resulting incompetence. The trial court appointed the guardian ad litem on June 24, 1976, who was subsequently served. The appellant filed a motion to quash this service of process, which was denied on August 9, 1976.

The matter proceeded to trial and a jury verdict of $225,000 was awarded in favor of the appellee and against the appellant. The appellant filed an objection to entry of judgment on June 7, 1977, again asserting that the trial court did not have personal jurisdiction over him because there had never been proper service of process upon him. Judgment against the appellant was entered on June 10, 1977.

On appeal, the appellant argues that all three methods of service were defective, thus depriving the trial court of jurisdiction over him. The three main contentions of the appellant are: (1) that the purported service pursuant to Rule 4(e)(6)(iii), Arizona Rules of Civil Procedure, by the Japanese attorney was invalid inasmuch as it was contrary to a treaty between the United States and Japan; (2) that appellee did not fully comply with the service provisions of the non-resident motorists statute, A.R.S. § 28-503A(1), and that compliance with A.R.S. § 28-503A(2) was ineffective because that statute is contrary to the treaty between the United States and Japan; and (3) that service upon Mr. Kadota's guardian ad litem by itself was ineffective to confer jurisdiction upon the trial court.

Once the existence of personal jurisdiction is challenged, the party asserting jurisdiction has the burden of establishing it. Lycoming Div. of Avco Corp. v. Superior Court, 22 Ariz.App. 150, 524 P.2d 1323 (1974). Furthermore, the law is clear that a judgment is void if the trial court did not have jurisdiction because of a lack of proper service. Marquez v. Rapid Harvest Co., 99 Ariz. 363, 409 P.2d 285 (1965).

One method of service that appellee relied upon is the personal service by a Japanese attorney on the appellant in Japan. Appellee argues that this service was in compliance with Rule 4(e)(6)(iii), Arizona Rules of Civil Procedure. The appellant contends that, even if the appellee complied with the rule, a treaty between Japan and the United States prohibits this type of service. The resolution of this issue depends upon the construction of the treaty.

On February 10, 1969, the United States of America became bound by the provisions of a multilateral international convention governing "Service Abroad of Judicial and Extrajudicial Documents". 20 United States Treaties 361-367. Japan was one of the countries that also became bound by the Convention subject to certain objections noted below. The difficulties giving rise to this Convention have been well documented. See Jones, International Judicial Assistance, 62 Yale L.J. 515 (1953) and Smit, International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031 (1961). The drafters of the Convention intended to create a unitary approach to the problems involved in serving process abroad. Downs, The Effect of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 2 Cornell Int'l L.J. 125 (1969).

The appellant argues that the treaty provides the exclusive means by which service may be accomplished in Japan, while the appellee contends that the treaty is merely a supplement to the existing methods of service of process provided for in the Arizona Rules of Civil Procedure. We are persuaded by the appellant's argument on this question.

The second clause of Article VI of the United States Constitution provides that:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

This provision of the Constitution has always been interpreted to mean that a treaty entered into by the United States shall be superior to and prevail over any conflicting laws of the individual states. Ware v. Hylton, 3 Dall. 199, 1 L.Ed. 568 (1796). Therefore, the State of Arizona cannot attempt to exercise jurisdiction under a rule promulgated by its courts if that rule would violate an international treaty. United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942) and Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628 (1879).

Furthermore, Article I of the treaty in this case expressly provides:

"The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad." 20 United States Treaties at 362.

One law review writer has characterized the effect of the Convention this way:

"The Convention, through the Supremacy Clause, supersedes all state and federal methods of service abroad, but specifically allows certain prior methods to remain in force." Downs, supra at 131.

Therefore, to the extent that the Convention is inconsistent with the Arizona Rules of Civil Procedure, the Convention controls. Nielsen v. Johnson, 279 U.S. 47, 49 S.Ct. 223, 73 L.Ed. 607 (1929).

This being so, an inquiry into the relationship between the methods of service allowed by the Convention and those methods provided for in the Arizona Rules of Civil Procedure is necessary in order to determine to what extent, if any, the corresponding provisions are inconsistent. This analysis will provide an answer to the question of what methods of service are available for a plaintiff attempting to serve a defendant residing in Japan.

Rule 4(e)(6), Arizona Rules of Civil Procedure, contains alternative provisions for service in a foreign country:

"4(e)(6) Alternative provisions for service in a foreign country.

"(a) Manner. When this rule authorizes service upon a party not an inhabitant of or found within the state, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and complaint is made:

"(i) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

"(ii) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or

"(iii) upon an individual, by delivery to him personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or

"(iv) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

"(v) as directed by order of the court. Service under (iii) or (v) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.

"(b) Return. Proof of service may be made as prescribed by section 4(g) of this rule, or by the law of the foreign...