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A Kentucky Motion to Intervene – Cases Cited

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Kentucky appellate decisions cited:

  1. Fugate v. Creech, 271 Ky. 3, 111 S.W.2d 402. 1937
  2. Monticello Electric Plant Board v. Board of Education, 310 S.W.2d 272 (Ky. 1958)
    This case involved the sale of a privately owned power plant to a municipal agency. The sale closed on January 20, 1954. Subsequently a civil action was brought to collect a franchise tax that was assessed effective January 1, 1954 when the plant was still owned privately. The tax assessment was for a whole year and the sales contract possibly obligated the new municipal owner to reimburse the seller for most of the tax assessment, pro rata. Judgment was entered against the prior owner on January 15, 1957. About one month after the judgment was entered, the new municipal owner sought to intervene in the action to question the imposition of the tax.
    The motion to intervene was denied and the denial of the motion was affirmed on appeal.
    The Court of Appeals observed that the applicant for intervention: (1) Failed to allege or prove the existing parties to the action would not adequately protect its interest regarding the imposition of the tax. (2) The applicant for intervention offered no justification for delaying until after judgment was entered before seeking to intervene. The court stated, “While intervention after judgment may be permitted under some circumstances . . . we think that in making a motion for intervention after judgment the applicant has a special burden of justifying the apparent lack of timeliness.” And, (3) the court was of the opinion the new municipal owner would not prevail even if it had been allowed to intervene. Without the court saying so, it is possible to surmise the problem was with the sales contract which was not being litigated, rather than being with the tax. The court did say the existence of a pending sales contract on the assessment date, “was of no concern of the taxing authorities, and furnished no basis for assessing less than the full tax against the company.
  3. City of Henderson v. Todd, Ky., 314 S.W.2d 948, 951 (1958)
    The City of Henderson sought to issue municipal bonds to finance the purchase of an industrial property for the purpose of economic development. To test the legal sufficiency of the plan, the city filed a ‘reverse taxpayer suit’ for declaratory judgment. Other taxpayers sought to intervene in the action. The motion to intervene was denied and Notice of Appeal was filed immediately. Nonetheless, the declaratory action proceeded to judgment, which was adverse to the bond issue and the city appealed. The city’s appeal and the appeal of the unsuccessful intervenors were consolidated.
    Although the Court agreed that an appeal may be taken from the denial of a motion to intervene as a matter of right, citing Fugate v. Creech, 271 Ky. 3, 111 S.W.2d 402. (1937), since the court affirmed the judgment below adverse to the bond issue, the matter of intervention was essentially moot. The intervenors got what they wanted.
  4. Stewart v. Burks, Ky., 384 S.W.2d 316 (1964)
    This case was a voter suit brought to challenge the nominating petition of a candidate in a local school board election. Another candidate in the same election sought to intervene as a party plaintiff. The original plaintiffs were dismissed for lack of statutory standing, the motion to intervene was granted, the intervening plaintiff adopted the complaint of the original plaintiffs and judgment was entered in the intervening plaintiff’s favor, invalidating the nominating petition of the defendant candidate. The judgment was affirmed on appeal. The only objection to allowing the intervention was the ruling was very late in the trial court action, apparently just before judgment was entered.
    Relying on Monticello Electric Plant Board v. Board of Education, Ky., 310 S.W.2d 272, the Court of Appeal dealt with the issue of intervention by saying, “[s]ince the intervenor was presenting no new claim, and was adopting the original complaint in which he had a real interest, the trial court did not commit error in permitting him to be made a party.
    The intervenor sought only to adopt and present a claim which had been timely made by another party.
  5. Webster v. Board of Education of Walton-Verona Independent School District, 437 S.W.2d 956, 957 (Ky 1969)
    A May, 1967 tax referendum was contested by an action filed in October, 1967. Intervention was requested in November, 1967. Summary judgment “under CR 12.03” was entered against both plaintiff and intervening plaintiffs because Kentucky election law required such contests to be commenced within 30 days of the election. Intervening plaintiffs appealed, claiming their intervening complaint asserted claims in addition to the election contest and these additional claims were not addressed by the trial court’s summary judgment. For example, the intervening complaint alleged the tax in question was “arbitrary, capricious, confiscatory and in violation of the Constitution,”
    Although the Court of Appeals discussed the difference between Civil Rule 24.01 (intervention as of right) and Civil Rule 24.02 (permissive intervention), the issue of intervention was not central to the court’s holding. One suspects the Court of Appeals viewed allowing the intervention to have been a mistake, or at least unnecessary. The court decided the intervening plaintiffs’ “additional claims” were “insufficient” and did not amount to “multiple claims.” The judgment was affirmed.
  6. Murphy v. Lexington-Fayette County Airport Board, Ky., 472 S.W.2d 688 (1971)
    A car rental firm obtained a judgment for specific performance of a contract for an airport car rental concession. The airport board announced it did not intend to appeal the judgment and a competing car rental firm sought to intervene with the claim the rental concession of the first firm would adversely affect its own exclusive contract for the airport’s rental car concession. The motion to intervene was denied and an appeal of that denial followed.
    The applicant for intervention argued the airport board’s failure to appeal was evidence its interests were not being adequately represented by the party to the action. The Court of Appeals countered with, “The mere fact that an unfavorable judgment was entered and that the airport board chose not to appeal from that judgment does not establish lack of adequate representation in the trial of the case, which is what CR 24.01 deals with.
    The court recognized that intervention after judgment may be appropriate in some circumstances and that a failure to appeal might also indicate inadequate representation, but this case did not qualify. The court held the post-judgment motion to intervene to be untimely. The court did not discuss the possibility that the applicant for intervention might have an adequate remedy in an action for breach of contract regarding its exclusive rental concession.
  7. Barry v. Keith, Ky., 474 S.W.2d 876 (Decided December 17, 1971)
    This was an original action seeking a Writ of Prohibition regarding the difficult issue of an automobile insurance company asking to intervene in a personal injury action. The court observed there was no consensus of opinion or clear analysis to be gleaned from other jurisdictions, The court stated:

    Without attempting to outline all of the conditions which might be required, we believe intervention should not be allowed except upon the inclusion of the following conditions: (1) It should be established that there is in fact an uninsured motorist. If non-insurance becomes a disputed question of fact, it may be submitted to the court for determination before the trial of the main issue. (2) The intervenor should acknowledge that it will be bound by the judgment subject, of course, to the right of appeal. (3) The intervenor must take the case with the issues as joined, unless it can make a showing to the trial court that justice requires other issues to be joined. (4) The identification of the respective parties and the attorneys should be revealed to the jury. (5) The intervenor should disclose to the insured that the interest of the insured might be in conflict with the interest of the intervenor and that the insured is not required to cooperate with the intervenor. Any information gained by the intervenor from the insured by reason of the insurer insured relationship should not be used adversely to the insured. (6) Other conditions as the trial judge in his reasonable discretion believes are necessary to insure a fair and orderly trial should be invoked.

  8. Dairyland Insurance Company v. Clark, Ky., 476 S.W.2d 202 (1972)
    This was an appeal from a denial of an automobile insurance company to intervene in a personal injury action under the provisions of its uninsured motorist coverage, for the purpose of preserving the insurance company’s defenses. The issue was the timeliness of the motion. Defendant failed to appear and defend the action, Plaintiff moved for default judgment and a hearing on the issue of damages was held. Before default judgment was actually entered, however, the insurance company moved to intervene and objected to the entry of default judgment.
    The motion to intervene was overruled for the reason that it was not timely filed. The court found that the untimeliness of the motion to intervene was not the result of excusable neglect and a default judgment for appellee was entered. On appeal the facts relating to the timeliness of the motion to intervene were closely examined. The court ruled, “The proper application and utilization of the Civil Rules should be left largely to the supervision of the trial judge and we must respect his exercise of sound judicial discretion in their enforcement . . . Under these circumstances we cannot say that the trial court clearly abused its discretionary powers in ruling that the motion to intervene was untimely.” The denial of the motion to intervene was affirmed.
  9. Pearman v. Schlaak, Ky., 575 S.W.2d 462 (1978)
  10. Yocom v. Hi-Flame Coals, Inc., Ky.App., 568 S.W.2d 757 (1978)
    The Commissioner of Labor and Custodian of the Special Fund sought to intervene in the Circuit Court review of a Workers’ Compensation award, under prior law. The provisions of KRS 342.285, which granted a right to appear in the proceedings, have since been substantially amended and the review procedures for Workers’ Compensation changed. This case has little value as precedent today in Worker’s Compensation cases. The court did state, “Our courts, generally, construe CR 24 liberally in order to effect the purpose of intervention.”
  11. Ashland Public Library Board of Trustees v. Scott Ky., 610 S.W.2d 895 (1981)
    The Supreme Court of Kentucky embraced the dictum in City of Henderson v. Todd, Ky., 314 S.W.2d 948, 951 (1958) that an appeal may be taken from the denial of a motion to intervene as a matter of right, Civil Rule 24.01. This is to be distinguished from the denial of a permissive intervention under Civil Rule 24.02 or the grant of any motion to intervene, none of which are final appealable orders in Kentucky practice.
    The court also dismissed the argument that The provisions of Civil Rule 54.02(1)apply to orders denying intervention.

    Applicants for intervention are not parties to an action and do not present claims for relief in an action unless and until they are permitted to intervene. Rather, they seek to become parties so that they may then assert a claim or defense in the action. CR 24.03. Consequently, recitation of a determination that there is no just reason for delay and that the order is final is neither a condition precedent to appellate review of a denial of intervention sought as a matter of right, nor a vehicle to authorize appellate review of a denial of permissive intervention prior to judgment disposing of the whole case.

  12. Ambassador College v. Combs Ky., 636 S.W.2d 305, 307 (1982)
    This was a will contest brought by the heirs of the survivor of a childless couple who executed a new will and deeded several parcels just weeks before his death. The allegations involved issues of undue influence and mental incapacity. Ambassador College, the primary beneficiary of a previously executed, and presumably valid, will sought to intervene in the action. The motion to intervene came after a trial, judgment and reversal on appeal, but before the re-trial. Counsel for the original plaintiffs withdrew from the case and the motion of Ambassador College to intervene was filed. Plaintiffs failed to obtain replacement counsel in the time allotted by the court and the action was dismissed and the motion to intervene was denied, without explanation. The Kentucky Court of Appeals affirmed the dismissal and denial of the motion to intervene and the Kentucky Supreme Court reversed.
    The issue in the second appeal was the timeliness of the motion to intervene. The court recognized “[i]t is well established that persons who are beneficiaries in a prior will have such an interest as entitles them to contest another alleged will of the same testator which would reduce their share in his estate.”
    Timeliness is a question of fact, the determination of which should usually be left to the judge. Dairyland Insurance Company v. Clark, Ky., 476 S.W.2d 202 (1972). In the subject action, however, the trial judge made no finding of timeliness on Ambassador College’s motion to intervene.” The Kentucky Supreme Court observed there had been no re-trial of the matter following remand from the first appeal and timeliness was not a big concern. There would have been no prejudice to the other parties by allowing the intervention. For all practical purposes it looks as if the intervention would have had the effect of substituting Ambassador College for the original plaintiffs, once the prior will had come to light.
  13. Gayner v. Packaging Serv. Corp. of Kentucky, Ky.App., 636 S.W.2d 658, 660 (1982)
    Gemini Laminating was a Kentucky corporation. Packaging Service was the majority owner of Gemini and Chapnick was Gemini’s president. Chapnick and Packaging Services had an agreement that gave Chapnick right of first refusal if Packaging sought to sell any of its Gemini stock. When the time came that Packaging sought to sell stock in Gemini, Chapnick gave notice of his intent to exercise his stock purchase option, but it turned out that Chapnick lacked the funds. Litigation ensued.

    Gayner was an outside investor who was a stranger to the agreements between Chapnick and Packaging, but he was Chapnick’s financial backer with a plan to enable Chapnick’s purchase of the Gemini stock. Gayner sought to intervene in the litigation.

    The Jefferson Circuit Court denied Gayner’s right to intervene because he had not demonstrated a direct, substantial and legally protectable interest in the suit between Packaging and Chapnick sufficient to establish intervention. Later . . . Packaging and Chapnick settled and dismissed the Kentucky suit. This appeal is prosecuted from the order denying intervention in that action.

    The Court of Appeals affirmed the Circuit Court’s denial of intervention, holding that Gaynor’s interest in the litigation was remote, contingent and not permitted by Civil Rule 24.01(b)

    CR 24.01(b), like its federal counterpart, Fed.R.Civ.P. 24, does not permit a contingent interest such as the Gayner claim to be placed in issue by intervention. Gayner’s interest does not qualify as significantly protectable . . . .

    The Court stated the issue was similar to a “real party in interest” question.

  14. Grange Mutual v. McDavid, Ky., 664 S.W.2d 931 (1984)
  15. Donald v. City of Glenview, Ky. App., 723 S.W.2d 861 (1986)
  16. Rosenbalm v. Commercial Bank of Middlesboro, Ky.App., 838 S.W.2d 423, 427 (1992)
    In the early 1980’s the Bell County Waste District devised a plan to convert garbage into electricity and borrowed some $400,000 from the bank for the project. The plan did not work as planned and the bank loan could not be repaid. The bank sued and obtained a default judgment in 1984. The powers that be in Bell County were adamantly and publicly opposed to a tax levy to pay the debt, and the debt remained unpaid.
    In 1989 the bank obtained a court order requiring either a tax levy or the issuance of a municipal bond to pay the judgment debt. When the tax bills with the additional levy went out, taxpayers very promptly sought to intervene, as a matter of right, in the action to contest the constitutionality of the original debt.  The taxpayers also moved to set aside the 1984 default judgment. The court observed that the original lawsuit was well publicized at the time, and the taxpayers should have known. The taxpayers were denied the opportunity to seek relief and this appeal followed. A primary issue was the timeliness of the taxpayers’ intervention.
    The Court of Appeals stated the general rule:

    An attempted intervention clearly must be undertaken in a timely fashion. The timeliness of a motion for intervention is a question of fact, the determination of which ordinarily falls to the presiding judge. Ambassador College v. Combs, Ky.App., 636 S.W.2d 305, 307 (1982). An applicant who moves for intervention after judgment carries a special burden of justifying the apparent lack of timeliness. Monticello Elec. Plant Bd. v. Board of Educ., Ky., 310 S.W.2d 272, 274 (1958).

    Although there is considerable discussion of taxpayer suits, the rights of taxpayers and equitable principles of laches, an important part of the court’s reversal of the Circuit Court’s decision was the fact that taxpayers had no present complaint until the tax was actually imposed, in line with the general rule that intervention will not be allowed for parties with only conditional or contingent interests at stake.
  17. Arnold v. Commonwealth ex rel. Chandler, 62 SW 3d 366(Ky.) 2001 2001-SC-0288-TG
    The Tobacco Master Settlement Agreement (MSA) was entered in November 1998  between the largest United States tobacco companies and the attorneys general of 46 states, including Kentucky. The settlement arose from the states’ claims for reimbursement from the tobacco companies for Medicaid healthcare expenditures resulting from tobacco related illness. Kentucky implemented its portion of the settlement by filing a civil action in the Franklin Circuit Court against the tobacco companies and then immediately dismissing the action, with prejudice, as settled. Subsequently, the following year, the Kentucky Legislature enacted a Bill directing how the settlement proceeds would be allocated and used.
    More than a year after the dismissal of the civil action, some 46 individuals claiming to be Medicaid recipients suffering from smoking-related illness sought to intervene in the action to assert a right to a portion of the settlement. The Circuit Court overruled  the motion to intervene as being untimely.
    The applicants for intervention argued they did not know they would not individually and directly benefit from the settlement until the Kentucky Legislature acted, and that the settlement agreement prejudiced their individual claims for compensation.
    Although the Kentucky Supreme Court spoke to the timeliness issue generally, the crux of the decision to affirm the denial of intervention was the fact the settlement agreement specifically preserved the rights of individual claimants to proceed against the tobacco companies directly. Essentially, without saying it this way, intervention would have done nothing to protect the intervenors’ rights. There was no indication the applicants for intervention had any legitimate claim to the settlement proceeds.
  18. Baker v. Webb, 127 SW 3d 622 – Ky: Supreme Court 2004
    The blood relatives (cousins) of a minor child sought to intervene in an adoption proceeding under Civil Rule 24.01, as of right. The Circuit Court overruled the motion and the Supreme Court of Kentucky reversed.
    Although 922 KAR 1:140 states a preference for adoptions by qualified relatives, there is no absolute priority. The applicants for intervention did not have a right to adopt, but they did have a regulatory expectation that they would be appropriately considered for adoption. This the Cabinet for Families and Children did not do, in apparent violation if its own rules. The court found the Cabinet’s procedural failure provided a sufficient legal interest compelling intervention in the adoption proceeding.
    A strong dissenting opinion from Justice Keller focused upon the fact the motion to intervene was procedurally insufficient in that it was not accompanied by “a pleading setting forth the claim or defense for which intervention is sought,” as required by Civil Rule 24.03.
  19. Carter v. Smith, 170 SW 3d 402 – Ky: Court of Appeals 2004
    A complaint filed on December 2, 2002 alleged violations of Kentucky’s Open Meetings Act by a school board. On December 19, 2002 the school superintendent resigned his position, allegedly contingent upon a one-year consulting contract with the school board. In February, the court allowed Plaintiff to file an amended [sic] complaint to add a claim the December 19, 2002 board meeting also violated the Open Meetings Act with a request to void the consulting contract. Plaintiff also moved for a temporary injunction requiring payments on the consulting contract to be diverted to an escrow account pending final judgment. On April 9 the former superintendent made a motion to intervene in open court, which motion was subsequently reduced to writing.
    The trial court denied the motion to intervene on the grounds the validity of the consulting contract was contingent upon compliance with the Open Meetings Act and therefore too remote from the pending action; and that the application for intervention was untimely. The Kentucky Court of Appeals reversed. As an initial matter the court observed that the motion to intervene was base on both Civil Rule 24.01, interventions of right, and Civil Rule 24.02, permissive intervention. The appeal was limited to the denial of the Civil Rule 24.01 motion. which was a final and appealable order.

    To establish an intervention under Civil Rule 24.01, an applicant must:

    • Make a timely application;
    • Show an interest relating to the subject of the action;
    • Show the ability to protect this interest may be impaired or impeded in the absence of intervention; and
    • Show that none of the existing parties could adequately represent his interests.

    On the issue of timeliness, the court reiterated the five-factor test in Grubbs v. Norris, 870 F.2d 343 (6th Cir.1989). and Triax Co. v. TRW, Inc, 724 F.2d 1224 (6th Cir.1984):

    1. The point to which the suit has progressed;
    2. The purpose for which intervention is sought;
    3. The length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case;
    4. The prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and
    5. The existence of unusual circumstances militating against or in favor of intervention.

    The standard of review of the denial of a motion to intervene as untimely is abuse of discretion or clearly erroneous. The court conducted a de novo review of the record and the denial of Carter’s motion to intervene, and held that the decision was clearly erroneous

  20. Commonwealth of Kentucky  v. LJP, 316 SW 3d 871 – Ky: Supreme Court 2010
    The Cabinet for Health and Family Services filed a petition for the involuntary termination of parental rights. Some four months later, while the petition for involuntary termination was pending, the parents filed in the same action a petition for voluntary termination of parental rights conditioned upon the child being placed with the biological grandparents for adoption. Thereupon, the grandparents immediately sought to intervene. The Family Court denied the intervention, reasoning the petition for involuntary termination preempted the petition for voluntary termination. The Court of Appeals reversed and upon discretionary review the Supreme Court of Kentucky reversed the Court of Appeals.
    The Supreme Court held the mere filing of an involuntary termination petition by itself did not deprive the parents of their right to seek voluntary termination or to consent to adoption. The Court also held that the procedures for termination of parental rights and the procedures for adoption could not so easily be collapsed into a single unified proceeding.
    The grandparents were seeking to intervene in an adoption proceeding which did not exist. This was a termination proceeding into which there was no right to intervene. The Family Court denial of intervention was affirmed, but for different reasons.
  21. Hazel Enterprises v. Community Financial Bank, 382 SW 3d 65 – Ky: Court of App. 2012
    This was a foreclosure action. After the Commissioner’s sale of the property and the court’s approval of the sale and the Commissioner’s report for the distribution of the proceeds of the sale, including the payment of past due property taxes, Hazel bought the tax delinquency certificate. Then Hazel moved to intervene in the foreclosure action to claim $1050.62, for interest, attorney fees, and administrative fees in addition to $588.84 in actual taxes.

    The motion to intervene was denied and the Court of Appeals affirmed the denial. In an opinion remarkably devoid of any overt scoffing, the court observed that prejudice to the other parties to an action is an additional consideration in a motion to intervene, particularly with a post-judgment motion to intervene.

    [R]e-opening the litigation to account for Hazel’s late acquired interests clearly would have prejudiced the parties where the circuit court had already made a final determination with respect to the rights of all parties involved. Given that timeliness is a factual issue generally left to the discretion of the trial court and under the facts of this case, we find no abuse of discretion.

  22. Boggs v. Commonwealth of Kentucky, EX REL. BOGGS, Ky: Court of Appeals 2012
    A Kentucky county attorney has a right to intervene in any existing action concerning child support as between the child’s parents. When a county attorney files a motion to intervene for purposes of securing child support, the motion must be granted. However, the county attorney cannot show up one day, change the case caption to include the Commonwealth as a party and start filing motions. There has to be an actual motion to intervene.
  23. Interactive Gaming Council v. Commonwealth, Ky: Court of Appeals 2014
    The Commonwealth of Kentucky commenced an in rem action seeking the forfeiture of numerous internet domain names as being gambling devices. Interactive Gaming Counsel sought to intervene in the action as an association representing online gambling operations, some of which owned domain names subject to forfeiture. The issue is the law of associational standing which just happened to arise in the context of a motion to intervene. The Court of Appeals decision provides an enlightening and scholarly discussion of associational standing in Kentucky, but it does not have much to do with the issues distinctly related to intervention.
  24. Commonwealth of Kentucky v Shepherd Case No. 2011-SC-000482-MR (KY S.Ct., Apr. 26, 2012)
    Citizen suits to enforce the federal Clean Water Act must be filed in federal District Court. Before filing such a action, 60 day notice must be given of the intention to file, and if state or federal agencies commence an enforcement action prior to the expiration of the 60 days, the citizen plaintiffs are barred from proceeding. That’s what happened here.

    When the Commonwealth of Kentucky’s Energy and Environment Cabinet filed an enforcement action in the Franklin Circuit Court, it also filed a proposed consent decree. The citizen plaintiffs moved to intervene in the action to object to the proposed consent decree. Opposition to the intervention was based upon the idea the presence of the citizen plaintiffs as parties in the state court action would collide with the exclusive jurisdiction of federal courts provided by 33 USC 1365, and it would deprive the Franklin Circuit Court of jurisdiction. The Supreme Court of Kentucky did not agree and allowed the intervention, at least to the extent of commenting upon and criticizing the proposed consent decree.

    In sum, the trial court’s ordinary authority to permit sufficiently interested parties to intervene in a suit properly before it has not been preempted here, at least not completely, by federal law. On the contrary, federal law encourages the states to permit interested citizens to intervene and be heard in state court enforcement proceedings under the state analogs of the federal environmental protection statutes. To the extent, therefore, that the trial court has allowed the Citizen Plaintiffs to intervene in the Cabinet’s enforcement action so as to accord them an opportunity to challenge the proposed consent judgment, it has not trespassed upon the federal courts’ exclusive jurisdiction. Whether the trial court would likewise have jurisdiction to entertain the Citizen Plaintiffs’ own claims under the Clean Water Act is a much harder question, but one we need not address at this time since the trial court has not of yet and may not ever assert that jurisdiction.

    The court did not once mention the possibility that “commencing a civil action” anywhere but in a federal district court (33 USC 1365) may be categorically different from intervening in an action commenced by another.
  25. Ipock v. Ipock, 403 SW 3d 580 – Ky: Court of Appeals 2013

Written by Tom Fox

March 30, 2014 at 12:16 pm

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