Willhite v. Rodriguez-Cera
| Decision Date | 23 April 2012 |
| Docket Number | No. 11SA250.,11SA250. |
| Citation | 274 P.3d 1233,2012 CO 29 |
| Parties | In re Linda WILLHITE and Rex Willhite, Plaintiffs v. Paulo RODRIGUEZ–CERA and Juan Torres, Defendants. |
| Court | Colorado Supreme Court |
OPINION TEXT STARTS HERE
Bendinelli Law Firm, P.C., Marco F. Bendinelli, Blaine L. Milne, Westminster, Colorado, Attorneys for Plaintiff Rex Willhite.
Senter Golfarb & Rice, L.L.C., Arthur J. Kutzer, Joel A. Palmer, Denver, Colorado, Attorneys for Defendant Paulo Rodriguez–Cera.
No Appearance by or on behalf of Linda Willhite and Juan Torres.Justice BOATRIGHT delivered the Opinion of the Court.
¶ 1 In this original proceeding under C.A.R. 21, we review the trial court's order quashing service on Paulo Rodriguez–Cera, who resides in Mexico, but was served by substituted service in Colorado. After previously granting substituted service under C.R.C.P. 4(f), the trial court determined that C.R.C.P. 4(d) mandated that service on a defendant located in a foreign country be made according to international agreement, if any. Because Mexico and the United States are both parties to the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U.S.T. 361, the trial court concluded that Plaintiff Rex Willhite must serve Rodriguez–Cera via the Hague Service Convention. As a result, the trial court quashed the substituted service.
¶ 2 We hold that C.R.C.P. 4(d) does not establish service according to international agreement as the exclusive means of serving a defendant located in a foreign country. Under C.R.C.P. 4(d), service according to international agreement is just one method for effecting service in a foreign country. Further, C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and nothing in Rule 4(d) prohibits a plaintiff from serving a defendant within the United States if otherwise authorized. We hold that substituted service under C.R.C.P. 4(f) provides a valid alternative to service abroad. We acknowledge that the Hague Service Convention is implicated when the law of the forum state requires the transmittal of documents abroad in order to effectuate service. However, we conclude that the transmittal of documents abroad is not required to effectuate service under C.R.C.P. 4(f) and therefore the Hague Service Convention is not implicated by substituted service within the United States under Colorado's Rules of Civil Procedure. We make the rule absolute and remand to the trial court for further proceedings consistent with this opinion.
¶ 3 In his personal injury complaint, Willhite alleged that Rodriguez–Cera rear-ended the vehicle Willhite was driving.1 Willhite filed suit against Rodriguez–Cera and Juan Torres, the owner of the vehicle Rodriguez–Cera was driving, for damages for the injuries he suffered in the accident. Willhite attempted to serve Rodriguez–Cera personally in Colorado but was unable to locate him. While attempting service, the process server learned that Rodriguez–Cera was residing in Mexico. The process server also learned that Rodriguez–Cera was in regular contact with his sister, Lydia Torres–Bravo, who was married to co-defendant Juan Torres and was living in Colorado.
¶ 4 After learning that Rodriguez–Cera was living in Mexico, Willhite filed a motion for substituted service pursuant to C.R.C.P. 4(f), asking the trial court to permit substituted service on Rodriguez–Cera's sister. Unconvinced that Willhite had made sufficient effort to serve Rodriguez–Cera personally as required by C.R.C.P. 4(f), the trial court denied the motion. The court, however, granted Willhite's motion to conduct early discovery to assist in determining the location of Rodriguez–Cera's workplace or residence. In the course of early discovery, Willhite deposed Ms. Torres–Bravo and learned that Rodriguez–Cera was living with their parents in a small town in Chihuahua, Mexico and was in regular contact with his sister through her phone calls to their parents. Ms. Torres–Bravo could not provide an address for her parents' home and believed that the homes in that small town did not have numbers. Willhite filed a renewed motion for substituted service. The trial court denied the motion, noting that Willhite had not described any diligent efforts to follow the international service requirements of C.R.C.P. 4(d), and directed Willhite to proceed with service on Rodriguez–Cera pursuant to the Hague Service Convention.
¶ 5 Six months later, Willhite filed a second renewed motion for substituted service. He reported that he undertook efforts to serve Rodriguez–Cera through the Mexican central authority, in accordance with the Hague Service Convention, but was hindered by numerous obstacles and bureaucratic challenges.2 The trial court granted Willhite's second renewed motion for substituted service and authorized substituted service pursuant to C.R.C.P. 4(f).
¶ 6 The next day, Willhite served Rodriguez–Cera by substituted service on his sister, Ms. Torres–Bravo. By special appearance, Rodriguez–Cera filed a motion to quash the substituted service. He argued that C.R.C.P. 4(d) mandates adherence to international treaty, in this case, the Hague Service Convention. He also argued that substituted service is not allowed when a plaintiff is obligated to serve a defendant outside the United States pursuant to C.R.C.P. 4(d). The trial court interpreted C.R.C.P. 4(d) to require a plaintiff to serve a defendant located in another country in accordance with international agreement and determined that, in the case of Mexico, that international agreement was the Hague Service Convention. The trial court ruled that Willhite must serve Rodriguez–Cera via the Hague Service Convention and granted the motion to quash.
¶ 7 Willhite filed a C.A.R. 21 petition seeking review of the trial court's order quashing service. We issued a rule to show cause to determine whether C.R.C.P. 4(d) mandates service by international agreement as the exclusive means of serving a defendant located in a foreign country and, if not, whether substituted service within the United States provides a valid alternative to service abroad.
¶ 8 C.A.R. 21 authorizes this court to review a trial court's order if a remedy on appeal would not be adequate. C.A.R 21(a)(1). An order quashing service is not a final order that is immediately appealable. Hoen v. Dist. Court, 159 Colo. 451, 455, 412 P.2d 428, 430 (1966) (). But in this case, if Willhite is unable to serve Rodriguez–Cera in Mexico pursuant to the Hague Service Convention and cannot appeal the order quashing the substituted service, then his attempt to bring suit would be frustrated by procedure and not adjudicated on the merits. We conclude that relief under C.A.R. 21 is appropriate in these circumstances.
¶ 9 The United States Supreme Court is the final authority on matters of federal constitutional law, and we are bound by its interpretations of international treaties. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 96, 155 P.2d 145, 148 (1945); see also U.S. Const. art. VI, cl. 2 (Supremacy Clause). However, this court is the final authority on questions of Colorado law. We interpret our rules of civil procedure de novo and apply principles of statutory construction. Garrigan v. Bowen, 243 P.3d 231, 235 (Colo.2010). “Accordingly, we give effect to the express language of the rule, considering the rule as a whole and giving consistent effect to all of its parts.” Id.
¶ 10 This case raises questions regarding the possible methods of serving a defendant located in a foreign country. To resolve these questions in this case, which involves a defendant residing in a country that is party to the Hague Service Convention, we must examine the Hague Service Convention as well as Colorado's rules governing service of process.
¶ 11 The Hague Service Convention is a multilateral treaty addressing service of process in foreign countries. See 20 U.S.T. 361. Because the United States and Mexico are both parties to the Convention, it is of potential applicability to this case. See id. (United States); Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 2117 U.N.T.S. 318 (). We therefore begin by reviewing the scope of the Hague Service Convention. The United States Supreme Court has held that the Convention is implicated when the laws of the forum state require the transmittal of documents abroad in order to effectuate service. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Because the applicability of the Hague Service Convention depends on the law of the forum state, we turn to Colorado's rules governing service of process.
¶ 12 C.R.C.P. 4(d) addresses process served in a foreign country. It provides for service according to international agreement as one method of serving a defendant in a foreign country. However, service according to international agreement is not the exclusive means of effecting service in a foreign country under C.R.C.P. 4(d). Moreover, C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and nothing in Rule 4(d) prohibits a plaintiff from serving a defendant within the United States, if otherwise authorized. We conclude that substituted service under C.R.C.P. 4(f) provides a valid alternative to service abroad. Because C.R.C.P. 4(f) does not require the transmittal of documents abroad in order to effectuate service, the Hague Service Convention is not implicated. Accordingly, we make the rule absolute and remand to the trial court for...
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