Stds of Review: of Denial of Motion to Intervene as Matter of Right – substance and timeliness of motion (Hazel Enterprises v. Community Financials, COA, Pub. 7/27/12)

We review the denial of a motion to intervene as a matter of right for clear error. Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App. 2004). However, a court’s evaluation of the timeliness of a motion to intervene is reviewed under an abuse of discretion standard. Id. at 408.

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The sole issue on appeal is whether the circuit court erred when it denied Hazel’s motion to intervene as a matter of right. Intervention as a matter of right is permitted:

Upon timely application . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and 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 . . . .

CR 24.01(1)(b) (emphasis added). Thus, intervention is only permitted upon a timely motion. Id; see Carter, 170 S.W.3d at 407-09.

A court may consider the following factors to determine whether a motion to intervene was timely: “‘(1) [T]he 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.’” Carter, 170 S.W.3d at 408 (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).

Although post-judgment intervention is not strictly forbidden, it is widely within the discretion of the circuit judge. Arnold v. Commonwealth, 62 S.W.3d 366, 369 (Ky. 2001). Timeliness is a question of fact, which generally should be left to the circuit court. Ambassador College v. Combs, 636 S.W.2d 305, 307 (Ky. 1982) (citing Dairyland Ins. Co. v. Clark, 476 S.W.2d 202, 203 (Ky. 1972)). A “party wishing to intervene after final judgment has a ‘special burden’ to justify the untimeliness.” Arnold, 62 S.W.3d at 369 (quoting Monticello Electric Plant Bd. v. Board of Educ. of Wayne County, 310 S.W.2d 272, 274 (Ky. 1958)).

Taken from Hazel Enerprises, LLC v. Community Financial Services Bank, COA, Pub., 7/27/2012

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