§24.6 Analysis

• Jurisdiction: Washington

§24.6ANALYSIS

This section analyzes intervention of right and by permission under CR 24 and Fed. R. Civ. P. 24.

(1) Timeliness

Whether seeking intervention of right or by permission, and whether in federal or state court, CR 24 requires that the application to intervene be timely.

Under this express requirement, the court will look to whether intervention will unduly delay or prejudice the adjudication of rights of the original parties to the litigation and whether intervention will create a hardship. See, e.g., Columbia Gorge Audubon Soc'y v. Klickitat Cnty., 98 Wn.App. 618, 627-28, 989 P.2d 1260 (1999) ("Prejudice to the defendant is one of the factors the court must consider in determining whether an intervention motion is timely"). Prejudice or hardship in this context is the equivalent of delay to the existing parties in the resolution of the original dispute. Martin v. Pickering, 85 Wn.2d 241, 533P.2d380 (1975); Columbia Gorge, 98 Wn.App. at 629 ("Prejudice in the context of CR 24(a) does not mean the extra bother resulting from having to deal with the intervener's issues[;]... [i]t refers only to difficulties caused by delay in bringing the motion.")

Before adoption of CR 24, determining timeliness was simpler, although perhaps less just. Under RCW 4.08.190 (repealed 1984), intervention was not allowed after trial commenced. Although the statute was later repealed, CR 24(b) superseded it in any event, "eliminat[ing] the 'before trial'requirement of the statute and inject[ing] the discretion of the trial court on the issue of a 'timely application.'" Ford v. Logan, 79 Wn.2d 147, 150, 483P.2d1247 (1971).

Under CR 24, and consistent with historic intervention law, timeliness is only at issue when intervention is sought after trial begins. Columbia Gorge, 98 Wn.App. at 623 ("Here in Washington, a motion to intervene is timely if it is filed before the commencement of the trial. This has always been the rule here." (citing Am. Discount Corp. v. Saratoga W., Inc., 81 Wn.2d 34, 43, 499P.2d869 (1972)); Colburn v. Spokane City Club, 20 Wn.2d 412, 415-16, 147P.2d504 (1944); Bight v. Batley, 32 Wash. 165, 166, 72 P. 1034 (1903)).

Intervention also may be sought after judgment for an appeal, Ford, 79 Wn.2d at 150, or after a mandate from the Court of Appeals, Sutton v. Hirvonen, 113 Wn.2d 1, 775P.2d448 (1989). However, in those situations, timeliness can become a "critical element" of the rule, and intervention may be denied at the discretion of the trial court:

Where a person seeks to intervene after judgment, the court should allow intervention only upon a strong showing after considering all circumstances, including prior notice, prejudice to the other parties, and reasons for and length of the delay. ...

Petitioners [here] had ample opportunity to intervene before the Superior Court made its decision, but they failed to do so. They had notice, were aware of the suit, and no extraordinary circumstances justify delay. Although they were satisfied with the Attorney General's ballot title, they must have realized that the court might change it. The Attorney General argued vigorously in favor of his ballot title even though, technically, he did not represent the petitioners' interests.

Under the abuse of discretion standard, the Superior Court Judge did not err in denying appellants' motion to intervene. The court's decision was both reasonable and based on tenable grounds.

Kreidler v. Eikenberry, 111 Wn.2d 828, 832-33, 766 P.2d 438 (1989) (citations omitted).

When timeliness is determined in the exercise of the trial court's discretion, appellate review is limited. Reversal will be warranted only upon a showing of abuse of discretion, meaning that "no reasonable person would take the position adopted by the trial court." Id. However, when a trial court rules intervention is untimely as a matter of law, then the appellate courts will review on a de novo basis, investing the court with more flexibility to change the outcome. That happened in Columbia Gorge, in which the trial court held an intervener's failure to timely appeal an administrative ruling rendered a motion to intervene in a different party's appeal of that same administrative ruling untimely as a matter of law. The Court of Appeals reversed, noting that when "the trial judge does not exercise discretion, but instead rules that intervention is barred as a matter of law, we review de novo." Columbia Gorge, 98 Wn.App. at 622-23.

Timeliness on intervention after trial is dependent upon the facts of each case; the application of the standards concerningnotice, prejudice, and delay; and the basis for a trial court's decision. Consider the cases discussed below.

Intervention following an opinion by the Washington Court of Appeals may be timely, as the Supreme Court ruled in Sutton v. Hirvonen, 113 Wn.2d 1. In Sutton, the defendant's insurer sought intervention following a decision of the Court of Appeals holding the insurer liable to the plaintiff independent of the liability of the insured. The independent interest of the insurer was first apparent when the Court of Appeals partially vacated a decision adverse to the insured with language stating that the insurer would be bound by prior decisions of the trial court and liable as a party defendant if it had controlled the insured's defense at trial. When the case was remanded to determine whether the insurer controlled the insured's defense at trial, the insurer moved the Supreme Court to allow it to intervene and appeal the decision. The argument for timeliness was based on the fact that before the Court of Appeals issued its mandate, there had not been an adjudication of the independent liability of the insurer, and thus no cause for the insurer to intervene. On those circumstances, the Supreme Court agreed with the insurer's argument that it was appropriate to analogize the Rules of Appellate Procedure (RAP) to CR 24 with respect to intervention at the appellate level. The court explained, "Because we so rarely have cause to consider intervention at the appellate level, we have not found it necessary to develop a rule. Nonetheless, we may consider the issue if justice demands. RAP 1.2(a), (c); RAP 18.8(a). Here, it is appropriate to analogize to CR 24(a)." Sutton, 113 Wn.2d at 8.

Similarly, in Ford, a party was permitted to intervene for appeal of a judgment upon learning that the original defendant had no plans to appeal. 79 Wn.2d 147. In justifying intervention, the Court of Appeals explained that "the trial court was presented with a situation in which intervention by Overtaxed was the only available means by which the petition signatories would have the benefit of an appeal, a situation that did not manifest itself until after the oral decision. Under these circumstances, we cannot say that the trial court abused its discretion in permitting the intervention." Id. at 150-51.

The Board of Industrial Insurance Appeals was allowed to intervene in a subsequent appeal of its decision when the board learned the appellant was seeking fees from the board and the board had not been named as a party in and had no prior notice of the appeal. Ferencak v. Dep't of Labor & Indus., 142 Wn.App. 713, 720-21, 175P.3d1109 (2008), aff'd on other grounds sub nom. Kustura v. Dep't of Labor & Indus., 169 Wn.2d 81, 233P.3d853 (2010).

But in Fisher v. Allstate Insurance Co., 85 Wn.App. 594, 933P.2d1094 (1997), aff'd, 136 Wn.2d 240, 961P.2d350 (1998), Allstate had notice of an Idaho lawsuit but chose not to intervene because a collateral Washington case naming Allstate would be tried first. Allstate thus believed it would be able to litigate its liability in Washington and use that outcome in the subsequent Idaho case. Unfortunately, the Washington trial was postponed and the Idaho case went to arbitration first. Because Allstate had not intervened in the Idaho case, it did not have notice of the arbitration. The court held that Allstate was bound by the arbitration decision because it could have intervened and chose not to. See also Martin, 85 Wn.2d 241 (in determining whether a motion to intervene is timely, a court must consider prior notice of the lawsuit to the party requesting intervention and the circumstances that contributed to any delay).

In Olver v. Fowler, 161 Wn.2d 655,168 P.3d 348 (2007), the Supreme Court upheld a trial court decision allowing intervention of right in a probate case on the day the trial court entered findings, conclusions, and judgment in the case. The Supreme Court citedKreidler, 111 Wn.2d at 833, for the proposition that "[plostjudgment intervention requires a strong showing that intervention is necessary considering all of the circumstances including prior notice, prejudice to the other parties, and reasons for the delay. Olver at 663. Because (1) the intervenor in Olver had previously intervened in a companion case, (2) the intervener's issues were questions of law that had been adequately represented up to the point of the trial court's judgment, (3) a probate statute specifically allowed anyone with an interest in the estate to challenge aspects of the estate "at any stage of the probate proceedings," and (4) there is a longstanding policy of liberally interpreting CR 24 to allow intervention, the Supreme Court upheld the trial court's decision. Olver, 161 Wn.2d at 664.

For an extended review and analysis applying postjudgment intervention criteria to a claim of intervention of right, see Diversified Wood Recycling, Inc. v. Johnson, 161 Wn.App. 891, 896-900, 251 P.3d 908, review denied, 172 Wn.2d 1025 (2011). The court in that case upheld the trial court's denial of intervention for lack of timeliness.

Practice Tip: The facts relevant to timeliness should be set forth in a declaration or affidavit in support of a motion to intervene. Factual assertions should reference knowledge of the litigation and reasons that justify delay in

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