### IN THE SUPREME COURT OF IOWA

No. 08

– 1888
Filed May 7 , 2010

IN THE MATTER OF THE ESTATE OF CLEMENS GRAF DROSTE ZU VISCHERING, Deceased , J. DIXON TEWS, Appellant ,

Appeal from the Iowa District Court for Mitchell County, Bryan H. McKinley , Judge.

In proceedings to reopen an estate, the executor appeals from an interlocutory order in which the district court determined it was unnecessary for petitioners to comply with the Hague Service Convention in serving process on the estate benefi ciary, who res ides in Germany.
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Eric G. Hoch and Jerry P. Alt of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines , for appellant

.

Michael M. Sellers of Sellers, Heraldson and Binford, Des Moines , for appellee

.2

BAKER , Justice

. In proceedings to reopen an estate, the executor appeals from an interlocutory order in which the district court agreed with petitioners that it was unnecessary for them to comply with international treaty requirements for service abroad in serving process on the estate beneficiary, who resides in Germany. We find the district court erred in ruling that service of process on the estate beneficiary did not require compliance with the Hague Service Convention

. I. Background Facts and Proceedings. In April 2008, the petitioners filed an application in district court to reopen the estate of Clemens Graf Droste Zu Vische ring. All of the petitioners w ere, at one time, tenants of a commercial building in West
Des Moines , Iowa

. Clemens was the sole owner of this off ice building
from approximately 198 2 until at least November 1997 . Petitioners allege Clemens breached their rental agreements and defrauded them by using a secret formula to increase the rent charged for the office spaces the petitioners occupied. They claim the lease language guaranteed them a specific number of square feet of office space for the price being charged pursuant to the terms of the written contracts. They have petitioned to reopen the estate to procure the information necessary to properl y pursue their claims. In November 1997, Clemens transferred his interest in the building to a limited liability company, Visch ering, L.L.C. Vischering , L.L.C.’s principal place of business activity is located at the building in West De s Moines

. Clemens then sold his interest in the L.L.C. to his son Benedikt
Graf D roste zu Vis c hering. Clemens died on June 3, 1998.3 A petition for the probate of Clemens ’s will was filed in February
1999. Benedikt was the sole benef iciary of Clemens ’s estate. Due to
Clem ens ’s status as a nonresident alien, there was a dispute with the German taxing authority concerning the estate’s federal and sta te tax liabilities. Clemens ’s estate finally closed on Oc tober 5, 2006. At that
time , the court declared there were no claims filed against the estate. The petitioners’ application to reopen the estate was filed o n April 18, 2008. The district court issued an order scheduling a hearing on the application and directing that a copy of the order and a copy of the petitioners’ appl ication be served upon Benedikt at his re sidence in Germany. The executor of Clemens ’s estate filed a resistance to the petitioners’ application t o reopen the estate. The petitioners attempted to serve Benedikt at his residence in Germany by mail on July 9, 2008, an d through personal service on July 30, 2008. The executor moved to quash the service, claiming it was defective as petitioners failed to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters [hereinafter “Hague Service Convention”]

. The estate alleged that the district court’s ruling demanded that Benedikt be personally served in Germany, triggering the application of the Hague
Service Convention which required the petitioners serve him through the German Central Authority and provide German translations of the petition . Because the executor claimed the petitioners failed to comply with these requirements , he asked the court to dismiss their claims without preju dice as they failed to serve Benedikt with original notice within ninety days of the fili ng of the petition.4 Petitioners’ original cla ims were dismissed. A new case, involving the same parties and claims , was filed against Clemens ’s estate. In
connection wit h this case, the petitioners filed a supplemental application to re open the estate. The application also requested that the court order direct personal service of Benedikt at his residence in Germany in accordance with the court’s order concerning petitio ne r s ’ original claim. The court subsequently entered an order declaring the executor’s motion to quas h the service moot. The executor filed a resistance to the petitioners’ supplement al application. T he district court ruled that service of process on Ben edikt did not require compliance with the Hague Service Convention

. The
court reasoned that since neither Iowa Rule of Civil Procedure 1.305 or
Iowa Rule of Civil Procedure 1.306 define the applicable method of serving process as requiring the transmittal of documents abroad, the Hague Service Convention did not apply and petitioners were not required to comply wi th its provisions

. The court once again ordered that a copy of the petitioners’ application, the amended application, and the court’s order requ iring notice be served on Benedikt at his residence in Germany.
Soon after this order , the Clemen s ’s estate filed an application for interlocutory appeal , claiming the district court erred in determining the Hague Service Convention did not apply , and therefore the petitioners were not required to comply with its provisions in serving Benedikt with original notice. The estate also asked that the proceedings below be stayed during the pendenc y of the appeal. The petitioners filed a
resistance to B enedikt’s appeal. We grante d the executor’s application.5

II. Scope of Review
. In federal court, the trial court’s interpretation of a treaty is subject
to de novo review. State v. Lopez , 633 N.W.2d 774, 781 (Iowa 2001) (citing Blake v. Am. Airlines, Inc. , 24 5 F.3d 1213, 1215 (11th Cir. 2001)). Our review is, likewise, de novo. State v. Buenaventura , 660 N.W.2d 38, 44 (Iowa 2003). The meaning of the language used in a treaty, however, is a question of law. Lopez , 633 N.W.2d at 781.
III. Discussion and Analysis
. The executor claims that the Hague Service Convention applies to this case, and its requirements demand service of German

- translated original notice documents upon and through Germany’s Central Authority. The Hague Service Conve ntion is a multilateral tr eaty that was formed in 1964 at the Hague Conference of Private International
Law. Volkswagenwerk Aktiengesells chaft v. Schlunk , 486 U.S. 694, 698,
108 S. Ct. 21 04, 2107, 100 L. Ed. 2d 722, 730 (1988). We have never
had occasion to consider the Hague Service Convention and its interplay with the Iowa Rules of Civil Procedure concerning the service of process
when the party to be served is living abroad in one of the signato ry countries to the Convention

. The Hague Service Con vention was intended to revise parts of the Hague Convention Treaties on Civil Procedure from 1905 and 1954. Id. ; Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 [1969] , 20 U.S.T. 361, T.I.A.S. No. 6 638. The revisions were intended to simplify the service of process abroad so as to insure that judicial and extrajudicial documents to be served abroad are brought to the notice of the addressee in sufficient time, and to make available one method of service that will avoid the difficulties and controversy attenda nt to the use of other methods.6 Marjorie A. Shields, Annotation, When I s Compliance with Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in
Civi l and Commercial Matters , Art. 1 et seq., Required, 18 A.L.R. Fed. 2 d
185 , 197 (2007). Both the United States and Germany have ratified or
acceded to the Convention

. Volkswagenwerk , 486 U.S. at 698, 108 S.
Ct. a t 2107, 100 L. Ed. 2d at 730

. The scope of the Convention is defined by Article 1

. Id. at 699, 108 S. Ct. at 2108, 100 L. Ed. 2d at 730 . It states: “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.” Hague Service Convention art.1, 20 U.S.T. at 362 . The Un i ted States Supreme Court has declared that this language is mandatory. Volkswagenwerk , 486 U.S. at 699, 108 S. Ct. at 2108, 100 L. Ed. 2d at
730 (citing Société Nationale Industriell e Aérosp atiale v. U.S. Dist. C t. , 482 U.S. 522, 534 n.15, 107 S. Ct. 2542, 2550 n .15, 96 L. Ed. 2d 461, 478 n.15 (1987)). “By virtue of the Supremacy Clause, U.S. Const. Art

. VI, the Convention pre

- empts inconsistent methods of service prescribed by state law in all cases to which it applies.” Id.
Our task is to determine whether this is a case to which the Convention applies. The district court held that because the Iowa Rul es of Civil Procedure do not define the applicable method of serving process in this case as requiring the transmittal of documents abroad, the Hague
Service Convention did not apply. The court came to this conclusion by analyzing the requirements of Iowa Rules of Ci vil Procedure 1.305 and
1.306.7 Iowa Rule of Civil Procedure 1.305 outlines acceptable forms of personal service of original notice under Iowa law. Iowa R. Civ. P. 1.305. The Rule provides in pertinent part: Original notices are “served” by de livering a copy to the proper person. Personal service may be made as follows: 1.305(1) Upon any individual who has attained majority and who ha s not been adjudged incompetent . . . by serving the individual personally; o r by serving, at the individual’ s dwelling house or usual place of abode, any person residing therein who is at least 18 years old

. . . .

. . . . 1.305(14) If service cannot be made by any of the methods provided by this rule, any defendant may be served as provided by court order, consis tent with due process of law.
Id. The distri ct court determined that 1.305(14) was applicable in this case because the court’s earlier order directed the petitioners to serve a copy of the application to reopen the estate on Benedik t at his residence
in G ermany. Iowa Rule of Civil Procedure 1.306 states: Service may be made on any . . . individual

. . . as provided in rule 1.305 within or without the state or, if such service cannot be so made, in any manner consistent with due process of law prescribed by order of the court in which the action is brought. Nothing herein shall limit or affect the right to serve an original notice upon any

. . . individual

. . . within or without this state in any manner now or hereafter permitted by statute or rule.
The c ourt reasoned that the Hague Service Convention did not apply to
the case because the district court had ordered service in a manner authorized by rule 1.305, and under r ule 1.306 nothing could limit the right to serve individuals outside Iowa uti lizing the methods approved in

r ule 1.305. The court indicated that following the requirements of the8 Hague Service Convention would have limited or affected the ability to serve those outside the state with personal service.
We find the district court erred in both its interpretation of the controlling case law and its application of Iowa Rule of Civil Procedure
1.306. The Supreme Court decision in Volkswagenwerk holds that American plaintiffs need not s erve foreign defendants at locations abroad
if the law of the forum state allows for plaintiffs to serve the defendant’s domestic agent within the United States

. Volkswagenwerk , 486 U.S. at 707, 108 S. C t. at 2112, 100 L. Ed. 2d at 735

– 36

. Volkswagenwerk concerned a wrongful death action brought against Volkswa gen of America, Inc. Id. at 696, 108 S. C t. at 2106, 100 L. Ed. 2d at 728

– 29 . In Volkswagenwerk , the plaintiff successfully served Volk swagen of
America , but Volkswagen of America denied it had designed or
assembled the automobile at issue. Id. The pla intiff amended the complaint to include Volkswagen Aktiengesellschaft, Volkswagen of America’s German parent company. Id. The plaintiff then serve d Volkswagen Aktiengesellschaft by serving Volkswagen of America as its agent. Id. at 697, 108 S. C t. at 2106, 100 L. Ed. 2d at 729 . Illinois, the state where Volkswagen of America was registered to do business, has a long

- arm statute that authorizes plaintiffs to serve foreign defendants by substituted service on their domestic agents. Id. at 706, 108 S. C t. at
2111

– 12, 100 L. Ed. 2d at 735 . The Court determined that the Illinois long

- arm statute provided “ ‘notice reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action and afford them an opportunit y to present their objections.’ ” Id.
at 7 07, 108 S. Ct. at 2112, 100 L. E d. 2d at 735 (quoting Mullane v.
Central Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S. Ct. 652,9 657, 94 L. Ed. 865, 873 (1950)). The Court also determined that Volkswagen of Am erica was the domestic agent of Volkswagen Aktiengesellschaft. Id. Because the Court determined that service on a domestic agent is valid and service abroad was not required , the Court
held that the H ague Service Convention did not apply

. Id.
In the cas e at issue, the district court ordered the petitioners to
serve Bened ikt at his residence in Germany and, in fact, documents have
been served abroad , first by mail and then by personal service

. “ I f the

. . . forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.” Id. at 7 00, 108 S. Ct. at 2108, 100 L. E d. 2d at
731

. While t he internal law of the forum state m ay determine whether serving notice on a defendant must be accompl ished through personal
service abroad , once the court orders documents to be transmitted
abroad , the provisions of the Convention appl y
. Id.
Iowa Rule of Civil Procedure 1.306 allows for de fendants outside of
Iowa to be served in the manner s set forth in r ule 1.305. Iowa R. Civ. P. 1.306. It also states that “[n]othing herein shall limit or affect the right to serve an original notice upon any . . . individual . . . within or without this state in any manner now or hereafter permitted by statute or rule.”
Id. The district court appears to have interpreted this provisi on as declaring that anything that conflicts with the methods of service allowed by the law of Iowa is void or need not be followed

. The Supremacy Clause establishes t he United States Constitution,
federal s tatutes, and U.S. treaties as “the supreme Law of the L and.” U.S. Const., Art. VI, § 2. The United States has ratified the Hague
Service Convention. Volkswagenwerk , 486 U.S. at 698, 108 S. C t. at10 2107, 100 L. Ed. 2d at 730 . It is the supreme law of the land and pre

empts any inconsistent service meth ods allowed by state law. Id. at 699 , 108 S. Ct. at 2108, 100 L. Ed. 2d at 730 . Iowa Rules of Civil Procedure do not trump the Hague Service Convention and allow Benedikt be personally served in Germany when the Convention requires that he be
served thro ugh the German Central Authority. See Eto v. Muranaka , 57 P.3d 413, 420 (Haw. 2002) (“ It is evident, then, that Hawai‘i law cannot override the Hague Convention, when the Convention applies.”). The
district court erred in determining the Hague Service Convention d id not apply in this case. Having determined that the Hague Service Convention applies, we must determine if the manner of s ervice complies with the C onvention. Three liberal methods of service employed by the petitioners are permitted under the Hague Service Convention

. Dahya v. Second Judicial Dist. Court ex rel. County of Washoe , 19 P.3d 239, 242 (Nev. 2001). First, service may go through the central authority of the receiving country

. Id. (citing Hague Service Convention art. 5, 20 U.S. T.
at 362 ). Second, service may go through diplomatic or consular agents that the receiving country considers “non

- objectionable.” Id. (citing Hague Service Convention art. 8

– 11, 20 U.S.T. at 363

– 64)

. Third , service may be done by any method permitted by the internal law of the receiving country. Id. (citing Hague Service Convention art. 19, 20 U.S.T. at 365). In Germany , service is only permitted through the C entral Authority although personal service may be affected by court personnel if specifically requested through the Central Authority

. Hague Convention Conference on Private International Law , Germany

— Central Authority & practical information, R eplies to the 2003 and/or 2008 Service Conventi o n Questionnaire , http://www.hcch.net/index_en.php?act=auth11

o rities.details&aid=257 ( detailing Germany’s objection to Article 10 of the Convention which allowed for direct personal service) ; see also Hague Service Convention art. 10, 20 U.S.T. at 363 ( providing authority for the country of destination to object to the methods of service allowed by Article 10 of the Convention ). The petitioners attempted to serve Benedikt at his residence in Germany by mail and through personal service. The record conta ins a return receipt which confirms that they attempted to serve Benedikt personally in compliance with German law through the Coe sfeld District Court in Germany ; however we are unable to discern if this attempted service was properly commenced through the Central Authority. We are also unable to det e rmine whether the documents were translated i nto German before being served. As these are two central requirements of the Hague Service Convention, on this record we are unable to determine whether the petiti oners complied with the requirements of the
Convention.
I V. Disposition. We hold the district court erred in ruling that service of process on Benedikt did not require compliance wi th the Hague Service Convention and that the petitioners need not comply with the Convention’s requirements of German

- translated documents sent through the German Central Authority. The case is remanded to determine if service as accomplished complied with the requir ements of the Hague Service Convention. DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION.