July 29 2008
DA 07-0409
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 263N
LARRY KIM SMITH,
Petitioner and Appellee,
v.
BOARD OF COUNTY COMMISSIONERS,
LEWIS & CLARK COUNTY,
Respondent and Appellee.
_______________________________________
RON & VIVIAN DRAKE, WILLIAM & BEVERLY HERMAN,
and MELVIN & SANDRA BEATTIE,
Intervenors and Appellants.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV-2004-211
Honorable Thomas C. Honzel, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Roy H. Andes, Attorney at Law, Helena, Montana
For Appellee Larry Kim Smith:
Jacqueline T. Lenmark, Keller, Reynolds, Drake, Johnson
& Gillespie, P.C., Helena, Montana
For Appellee Board of County Commissioners, Lewis and Clark County:
Leo Gallagher, County Attorney, K. Paul Stahl, Deputy County Attorney,
Helena, Montana
Submitted on Briefs: May 14, 2008
Decided: July 29, 2008
Filed:
__________________________________________
Clerk
2
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 This is an appeal by Ron and Vivian Drake, William and Beverly Herman, and
Melvin and Sandra Beattie (collectively Intervenors) from the District Court’s order
denying their Motion for Leave to Intervene in an action between Larry Smith and the
Lewis & Clark County Board of County Commissioners (the County).
¶3 This case stems from the County’s denial of Smith’s application for approval of
his “Frontier Major Subdivision” located in the SE1/4 of Section 13, T11N, R4W, of
Lewis & Clark County. Intervenors were active opponents of the subdivision during the
County’s review process.
¶4 Smith filed a Petition for Judicial Review of the County’s denial of his subdivision
application on March 16, 2004. Smith neither issued nor served any summons upon the
County at that time. On November 6, 2006, Smith’s attorney wrote to the County asking
it to reconsider its previous decision based on Smith’s desire to “submit . . . ‘new
evidence’ in support of his original subdivision proposal . . . .”
¶5 On February 20, 2007, as the three-year time limit for service of process
approached, Smith and the County entered into an “Agreement for Tolling of Applicable
3
Limitations” because they were engaged in settlement negotiations. In early April 2007,
Smith and the County agreed that the Petition for Judicial Review should be served upon
the County; consequently, Smith had the summons issued on April 6, 2007. The County
acknowledged service on April 10, 2007, and the return of service was filed on April 13,
2007. Smith and the County agreed that the County need not respond pending the
outcome of their continuing negotiations.
¶6 On May 1, 2007, Intervenors filed their Motion for Leave to Intervene as
respondents in this case on the side of the County. Smith opposed the motion arguing,
among other things, that it was untimely. Smith argued that the Petition for Judicial
Review was a matter of public record, yet Intervenors waited more than three years to file
their motion. Smith also argued that Intervenors were aware of his request for
reconsideration since Vivian Drake, one of the Intervenors, mentioned in her May 1,
2007 affidavit that she attended the February 13, 2007 hearing on the matter and spoke in
opposition to the subdivision at the March 13, 2007 hearing, yet Intervenors waited until
negotiations between Smith and the County were almost final before filing their Motion
for Leave to Intervene.
¶7 Thereafter, Smith and the County filed with the District Court their “Joint Petition
for Order Approving Settlement and for Dismissal with Prejudice” on June 5, 2007. That
same day, the District Court entered its “Order Approving Settlement and for Dismissal
with Prejudice” along with its “Order on Motion to Intervene.” In the latter, the court
denied the motion as untimely because Smith and the County had actively been involved
in settlement negotiations since at least February 2007, and they had reached an
4
agreement. The court also noted that if the Intervenors believed that the agreement and
the proceedings leading up to it were in violation of the law, they could file a separate
action challenging the decision to grant Smith preliminary approval for his proposed
subdivision.
¶8 Intervenors appeal the District Court’s decision and present the following issues
for review by this Court:
¶9 1. Whether Intervenors’ Motion for Intervention should have been granted.
¶10 2. Whether the judgment of dismissal should be reversed and remanded.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. Furthermore, because we hold that the District Court did not
abuse its discretion in denying Intervenors’ Motion for Leave to Intervene, we do not
address Intervenors’ second issue.
¶12 This Court reviews a district court’s order granting or denying a motion to
intervene for abuse of discretion. Connell v. Dept. of Social and Rehab. Serv., 2003 MT
361, ¶ 13, 319 Mont. 69, ¶ 13, 81 P.3d 1279, ¶ 13 (citing In re Adoption of C.C.L.B.,
2001 MT 66, ¶ 23, 305 Mont. 22, ¶ 23, 22 P.3d 646, ¶ 23). The test for an abuse of
discretion is whether the district court acted arbitrarily without employment of
conscientious judgment or exceeded the bounds of reason resulting in substantial
injustice. Connell, ¶ 13 (citing Shilhanek v. D-2 Trucking, Inc., 2000 MT 16, ¶ 24, 298
Mont. 101, ¶ 24, 994 P.2d 1105, ¶ 24).
5
¶13 Intervention in an action is governed by M. R. Civ. P. 24, which provides in
pertinent parts:
Rule 24(a). Intervention of right. Upon timely application anyone
shall be permitted to intervene in an action: (1) when a statute confers an
unconditional right to intervene; or (2) when the applicant claims an
interest relating to the property or transaction which is the subject of the
action and the applicant is so situated that the disposition of the action may
as a practical matter impair or impede the applicant’s ability to protect that
interest, unless the applicant’s interest is adequately represented by existing
parties. [Emphasis added.]
Rule 24(b). Permissive intervention. Upon timely application
anyone may be permitted to intervene in an action: (1) when a statute
confers a conditional right to intervene; or (2) when an applicant’s claim or
defense and the main action have a question of law or fact in common.
When a party to an action relies for ground of claim or defense upon any
statute or executive order administered by a state governmental officer or
agency or upon any regulation, order, requirement, or agreement issued or
made pursuant to the statute or executive order, the officer or agency upon
timely application may be permitted to intervene in the action. In
exercising its discretion the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights of the original
parties. [Emphasis added.]
Thus, whether intervention is sought as a matter of right under Rule 24(a) or by
permission under Rule 24(b), timeliness is a threshold issue. C.C.L.B., ¶22 (citing Estate
of Schwenke v. Becktold, 252 Mont. 127, 133, 827 P.2d 808, 811-12 (1992)).
¶14 Moreover, we have determined that the rules regarding intervention are
“discretionary judicial efficiency rule[s] used to avoid delay, circuity and multiplicity of
suits.” Grenfell v. Duffy, 198 Mont. 90, 95, 643 P.2d 1184, 1187 (1982) (citing State ex
rel. Westlake v. District Court, 119 Mont. 222, 173 P.2d 896 (1946)). In exercising its
discretion, the court must consider whether the intervention will unduly delay or
6
prejudice the adjudication of the rights of the original parties. C.C.L.B., ¶ 22 (citing
M. R. Civ. P. 24(b)).
¶15 In Schwenke, 252 Mont. at 131-32, 827 P.2d at 811, we stated that timeliness must
be determined from the particular circumstances surrounding the action. And, in
examining that proposition in Connell, we cited several examples of untimely
applications to intervene:
We have held a motion to intervene is untimely when filed 16
months after the initiation of a personal injury action, Schwenke, 252 Mont.
at 132, 827 P.2d at 811; four and one half months after notice of the
original complaint was given, Grenfell, [198 Mont. at 95, 643 P.2d at
1187]; two and one half years after becoming aware of a promissory note at
issue, Archer v. LaMarch Creek Ranch (1977), 174 Mont. 429, 433, 571
P.2d 379, 382; and three years after filing suit, Continental Ins. Co. v.
Bottomly (1988), 233 Mont. 277, 280, 760 P.2d 73, 75.
Connell, ¶ 22.
¶16 In the instant case, Drake admitted in her affidavit that Intervenors actively
participated in all proceedings before the County. They were aware of the outcome of the
County’s initial determination on the subdivision; of Smith’s filing of a Petition for
Judicial Review; of Smith’s request for reconsideration; and of the continued pendency of
Smith’s action, yet they did not move to intervene until several months after Smith and
the County had entered into settlement negotiations.
¶17 Contrary to Intervenors’ contention in their brief on appeal that at the time they
filed their motion on May 1, 2007, “negotiations had apparently just gotten underway,”
negotiations had been ongoing since early November 2006 when Smith requested the
County reconsider its decision, a period of almost seven months. As the County pointed
7
out in its brief on appeal, to allow intervention at the time the motion was filed “would
have derailed months of settlement negotiations between the parties.” We conclude that
to return this matter to the trial court would perpetuate the “delay, circuity and
multiplicity of suits” that are to be avoided when deciding whether to allow intervention.
Grenfell, 198 Mont. at 95, 643 P.2d at 1187.
¶18 Based on the foregoing, we hold that the District Court did not abuse its discretion
in denying Intervenors’ Motion for Leave to Intervene.
¶19 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS
8