On July 12, 1994, Gray Road Fill, Inc. ("Gray") filed a complaint in mandamus against Jerry Wray, Director of the Ohio Department of Transportation, S.O.S. Construction Industries ("S.O.S.") and National American Insurance Company ("National"). Gray requested a declaration that it had a valid lien on funds held by the Ohio Department of Transportation ("ODOT") and an order compelling ODOT to release those funds to Gray. In the alternative, Gray requested judgment against S.O.S. and S.O.S.'s surety, National, for $4,971, the amount of the lien, plus interest.
By way of background, S.O.S. contracted with ODOT to demolish homes in the Cincinnati area in preparation for construction of the Ronald Reagan Cross County Highway extension. The contract was funded by the Federal Highway Act of 1921. Gray subcontracted with S.O.S. and provided labor and material for the extension. Gray sent invoices for its services to S.O.S.; however, S.O.S. did not remit any payment.
Pursuant to R.C. 1311.26, Gray filed an affidavit with ODOT stating Gray was owed money from S.O.S. Pursuant to R.C.1311.28, ODOT detained $6,320 from S.O.S. for Gray's lien. Soon thereafter, the United States Department of Labor ("USDL") contacted ODOT and requested ODOT to withhold approximately $31,000 from S.O.S. for back wages allegedly due under the Davis-Bacon Act and the Contract Work Hours and Safety Standards Act. On July 12, 1994, Gray instituted this suit. On September 29, 1994, ODOT informed the USDL that ODOT was withholding funds from S.O.S.
On September 30, 1994, Gray filed a motion for default judgment against S.O.S., which had failed to plead or otherwise appear in the action. On October 11, 1994, the trial court filed an entry granting judgment to Gray and ordering ODOT to release the funds requested by Gray. On March 2, 1995, the USDL filed a motion to intervene, claiming it had an interest in the funds that ODOT had been ordered to release to Gray. The USDL also moved to vacate or modify or to stay the October 11 entry. On July 12, 1995, the trial court overruled the USDL's motion to intervene. A judgment entry was journalized on August 3, 1995. On August 30, 1995, the USDL filed a motion for relief from judgment, which is currently pending in the trial court. The USDL has timely appealed the overruling of its motion to intervene, assigning three errors for our consideration: *Page 815
"First Assignment of Error
"The trial court erred in holding that appellant failed to demonstrate an interest in the funds which ODOT detained pursuant to relator-appellee's lien.
"Second Assignment of Error
"The trial court erred in ruling that the funds withheld in accordance with appellant's request are not the subject of this case and are capable of being adjudicated at the administrative level.
"Third Assignment of Error
"The trial court erred in denying appellant's motion to vacate or modify or alternatively to stay the proceeding."
The USDL's assignments of error are interrelated and will, therefore, be addressed together. The USDL argues that the trial court should have allowed it to intervene because appellant showed, pursuant to Civ.R. 24(A), that it had an interest in the funds requested by Gray, and the existing parties did not adequately protect that interest. The trial court held that while the USDL had shown an interest in the money held by ODOT pursuant to the USDL's request, the USDL did not have an interest in the money held by ODOT pursuant to Gray's lien.
In Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 352, 29 OBR 479, 480-481, 505 N.E.2d 1010, 1012-1013, this court held that in order to prevail on an application to intervene under Civ.R. 24(A), the application must be timely, and the applicant must show that it has an interest relating to the property that is the subject of the action, that the applicant is so situated that disposition of the action may as a practical matter impair or impede its ability to protect that interest, and that the existing parties do not adequately represent its interest. Id., quoting McCormac, Ohio Civil Rules Practice (1970), 80-81, Section 4.36. Thus, all of the above requirements must be met, or the application fails.
The first requirement under Civ.R. 24(A) is that the application be timely. Gray contends that the USDL's application was not timely. Civ.R. 24(A) does not define timely; however, ample case law exists on the issue of timeliness. Whether an application to intervene is timely is determined from the facts and circumstances of a particular case. Kourounis v. Raleigh (1993), 89 Ohio App.3d 315, 318, 624 N.E.2d 276, 277-278, citingNAACP v. New York (1973), 413 U.S. 345, 366, 93 S.Ct. 2591,2603, 37 L.Ed.2d 648, 662-663; Norton v. Sanders (1989), 62 Ohio App.3d 39,42, 574 N.E.2d 552, 554-555. Here, the USDL did not apply to intervene until after the trial court's final judgment. Intervention after final judgment has been entered is unusual and ordinarily will not be granted. Kourounis at 318,624 N.E.2d at 277-278; Norton at 42, 574 N.E.2d at 554-555. *Page 816
In this context, courts in Ohio have noted that a mere lapse in time does not make an application to intervene untimely. SeeS. Ohio Coal Co. v. Kidney (1995), 100 Ohio App.3d 661, 672,654 N.E.2d 1017, 1024. Factors to consider include the point to which the suit has progressed, the length of time the applicant knew or should have known of the pending suit, and the reason for the delay in attempting to intervene. Id. at 672-673,654 N.E.2d at 1024-1025.
Here, the USDL did not apply to intervene until almost five months after the final judgment entry. According to the record, the USDL was informed twice of the trial court's judgment. On October 20, 1994, the Ohio Attorney General's Office notified the USDL of the trial court's judgment, stating that ODOT would release the money to Gray unless the USDL contacted ODOT. On October 28, 1994, the USDL wrote ODOT, objecting to the release of the money and asserting priority over Gray's lien. On November 2, 1994, the Attorney General's Office again wrote to the USDL, stating that USDL would have to intervene if it wanted to pursue the funds. On March 2, 1995, USDL submitted its application to intervene — almost five months after the final judgment entry and over four months after it was aware of the trial court's decision.
Hence, at the time of the USDL's application to intervene, the suit had progressed to well after its final judgment entry, and the USDL had been aware of this judgment for over four months. Neither the record nor the USDL sets forth any explanation for the delay. In its reply to Gray's memorandum opposing USDL's application to intervene, the USDL did state that it had established a sufficient interest in the funds that were the subject matter of the case and timely filed its application "considering all the circumstances." The USDL did not explain what these circumstances were and, therefore, failed to show that its application was timely, regardless of its arguments concerning its interest in the funds.
This case is unlike other cases in which courts have permitted intervention after final judgment. USDL does not seek to protect its right to appeal, although even this would be troublesome since the time to appeal has long since past. SeeNorton, 62 Ohio App.3d at 42, 574 N.E.2d at 554-555. Rather, the USDL sought intervention so that it could attempt to get Civ.R. 60(B) relief as a party. In addition, the USDL does not claim that it was simply waiting to see if another party, perhaps ODOT, would protect its interests. See S. Ohio Coal Co.,100 Ohio App. 3d at 665, 654 N.E.2d at 1019-1020. Indeed, the USDL did not know of the suit until after final judgment, and even when ODOT informed it that it would release the funds if it did not act, it still waited over four months to apply.
In Norton, the court of appeals quoted the United States Supreme Court in regard to cases such as the one at bar: *Page 817
"`The critical inquiry in every such case is whether in view of all the circumstances the intervenor acted promptly after the entry of final judgment.'" Norton, 62 Ohio App.3d at 42,574 N.E.2d at 554-555, quoting United Airlines, Inc. v. McDonald (1977), 432 U.S. 385, 395-396, 97 S.Ct. 2464, 2470-2471,53 L.Ed.2d 423, 432-434.
As discussed above, the USDL failed to show that it had acted promptly after the final judgment entry. This, in and of itself, would be sufficient reason to affirm the trial court's ruling. However, the record before us reveals other reasons that are more consistent with the reasoning used by the trial court.
As noted above, for the USDL to have the ability to intervene as of right, the USDL must also show that it has an interest relating to the property that is the subject of the action and that the USDL is so situated that disposition of the action may, as a practical matter, impair or impede its ability to protect that interest. We do not believe that the USDL has established either of these conditions based upon the record before us.
We are aware of certain cases in which the federal courts have held that it is proper for the government to withhold funds from contractors for suspected violations of the Davis-Bacon and related Acts. See, for instance, Ames Constr. Co. v. Dole (D.Minn. 1989), 727 F. Supp. 502; Fry Bros. Corp. v. HUD (C.A.10, 1980), 614 F.2d 732; and Winzeler Excavating Co. v. Brock (N.D. Ohio 1988), 694 F. Supp. 362. However, in none of these cases was the USDL's interest being weighed against the adjudicated interest of a lienholder. Further, in none of these cases did the USDL fail to avail itself of its right to assert its own right to acquire a lien on behalf of the wage earners as allowed by Ohio law. In essence, the USDL is saying that it does not need to follow Ohio law as structured to protect lienholders, but can merely assert that it suspects a violation of federal law and use that assertion to deprive innocent parties of the funds to which they are entitled under Ohio law. We are not persuaded that the USDL has such an entitlement, especially when it failed to timely assert its own claims for lienholder's status. Therefore, we do not believe that the USDL has demonstrated sufficient interest in the funds to which Gray is entitled to require intervention after judgment.
Finally, the USDL has not shown impairment of it ability to collect elsewhere the funds that it claims for an alleged violation of the Davis-Bacon and related Acts. The record does not show an inability to collect from the bond with National American Insurance Company or even an inability to collect from S.O.S. Construction Industries directly. The record is devoid of any proof that the only way USDL can collect is through taking the funds to which Gray has demonstrated its entitlement. *Page 818
The trial court, therefore, did not err in denying appellant's application to intervene. In addition, the trial court did not err in overruling appellant's motions to vacate or modify the October 11, 1994 judgment entry or to stay the proceedings. One must be a party in order to use Civ.R. 60 for relief from judgment.
Accordingly, appellant's first, second and third assignments of error are overruled.
Having overruled each of appellant's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
JOHN C. YOUNG, J., concurs.
BRYANT, J., dissents.