Chapter 24 Intervention

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 24 InterventionRule 24¹

(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 he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Note:

This is the same as Federal Rule 24(a). Intervention of right under this Rule is a counterpart to Rule 19(a) on joinder of persons needed for a just adjudication; where, upon motion of a party in an action, an absentee should be joined so that he may protect his interest which as a practical matter may be substantially impaired by the disposition of the action, he ought to have a right to intervene in the action on his own motion. The Rule expands intervention of right as provided by Code § 15-5-200, and Circuit Court Rule 22.

(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; (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 a ground of claim or defense upon any statute or executive order administered by a federal or 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.

Note:

This is the language of current Federal Rule 24(b) with one minor change to delete an unnecessary reference to federal law. It provides a needed procedure to permit intervention by parties who ought to be allowed to intervene, but have no direct right to intervene under Rule 24(a).

(c) Procedure; Notice to State When Validity of Statute Questioned. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the ground therefor and shall be accompanied by a pleading setting for the claim or defense for which intervention is sought. The same procedure should be followed when a statute of this state gives a right to intervene. When the constitutionality of a statute is drawn into question in any action in which the state or an officer, agency, or employee thereof is not a party, the party shall also serve the motion on the Attorney General.

Note:

This language is a modification of Federal Rule 24(c). The last two sentences, providing that the same procedure will be followed when a statute permits intervention, and for notice to the Attorney General when a statute is alleged to be unconstitutional, are modified slightly to make them applicable to State practice. Code § 15-33-80 gives the Attorney General a statutory right to intervene in declaratory judgment actions. The language of the Federal Rule on these matters is preferred because Rule 24(c) is procedural, and designed for notice to the Attorney General so that he may decide whether or not to intervene in any case challenging the constitutionality of a statute, while the present statute apparently applies only to declaratory judgment actions.

A. Introduction

Intervention is the procedure by which a non-party may petition and be granted party status in a case.² South Carolina Rule 24 is based on Federal Rule 24 with minor changes in Rule 24(c) and the deletion of a reference to federal law. The rule is more liberal than prior practice.³

Rule 24(a) provides for intervention as of right when authorized by statute and when the intervenor's rights will be affected adversely by the pending action, provided that the interests are not adequately represented in the suit. Rule 24(b) provides for permissive intervention when authorized by statute and when the intervenor asserts a common question of law or fact with the main action and his joinder will not prejudice the existing parties. An order granting a right to intervene is not immediately appealable.⁴

An order denying intervention is immediately appealable.⁵ The order terminates that person's interest in the litigation, and he will not be a party when final judgment is entered and cannot appeal then. On appeal, the trial court's decision will be upheld unless it was an abuse of discretion.⁶

B. Intervention as of Right

Rule 24 defines two situations in which there is a right to intervene. Rule 24(a)(1) grants an absolute right to intervene when it is unconditionally authorized by statute. Such statutory authority is rare. One example may be the Declaratory Judgment Act, which states that in declaratory judgment actions "all persons shall be made parties who have or claim any interest which would be affected by the declaration. . . ."⁷ The same statute authorizes intervention by the Attorney General and municipalities if statutes or ordinances are challenged as unconstitutional.⁸ The Attorney General, however, must move for intervention under Rule 24.⁹ Sellers and buyers have the right to join or vouch in other parties in some commercial transactions which may give rise to a right to intervene.¹⁰ A statute authorizing the Tax Commission to determine property tax exemptions, however, does not provide an unconditional right to intervene in an action between a county and taxpayer over the exemption.¹¹

The right to intervene also exists when the person claims an interest in the property or subject of the action which will be adversely affected as a practical matter if not permitted to intervene and there is no one adequately representing the interest in the lawsuit. The rule states that one satisfying these tests shall be permitted to intervene. The rule should be interpreted liberally, particularly when it will promote judicial economy by declaring the rights of all affected parties.¹²State precedents granting intervention under the prior and more narrow statute remain good law, although cases denying intervention may not be binding under the language of the current rule.

1. Timeliness of Application

Rule 24(a)(2) requires a timely application to intervene as measured by a four-factor test: (1) the time since the intervenor knew or should have known of the interest; (2) the reason for the delay; (3) the stage of the litigation; and (4) the prejudice to the original parties if intervention is granted, and to the applicant if intervention is denied.¹³ A newspaper satisfied this test when it intervened within thirty days after an order sealed court records.¹⁴ Similarly, a bank's motion for intervention was timely when made promptly after learning of the suit, but after summary judgment had been granted and a motion for reconsideration was pending.¹⁵ However, a corporate officer's application was untimely when made after the corporation and a government agency had reached a consent agreement.¹⁶

2. An Interest in the Property or Transaction

The applicant must have a direct, substantial, and legally protectable interest affected by the litigation to support intervention.¹⁷ Our courts have recognized several interests justifying intervention. Contractual rights often furnish a basis for intervention. For example, a bank may intervene in a suit between a landlord and commercial tenant over money due the tenant that had been pledged to the bank.¹⁸ Similarly, a bank met the protectable interest element when it held a mortgage on leased property in a suit between its mortgagor and lessor.¹⁹ An employer was permitted to intervene in a tort action against its employee which had been filed without its knowledge while it was negotiating with the plaintiff to settle the claim.²⁰

Other interests also support intervention. A newspaper can intervene to challenge an order sealing court records.²¹ Moreover, foster parents can intervene in an action to terminate parental rights.²²

The precedents under the prior statute contain little discussion about what constituted an "interest in the subject matter of the action" but these cases do provide several examples of intervention that would satisfy the tests of Rule 24. Claiming an interest in particular property or a fund under litigation justifies intervention. For example, an insurer, subrogated to part of its insured's claim against the tortfeasor, may intervene in the latter's action against the tortfeasor.²³ The purchaser of property at a judicial sale, levied on before but sold after a lis pendens was filed, may intervene in the foreclosure actions to assert that the mortgages were fraudulent.²⁴ Adjoining property owners may intervene in a zoning action,²⁵ and the owner of property in an in rem action may intervene.²⁶

In an unusual case, the first wife was permitted to intervene in a divorce action brought by the second wife who alleged that her husband was committing adultery with his first wife. Although the first wife would not be bound by any judgment, the court recognized that her interests were inevitably bound up in the dispute and it would be more efficient to have her in the lawsuit.²⁷ Intervention would be granted in these circumstances under the rule because it is more liberal than the previous statute.

Despite the liberality of Rule 24, intervention may be denied in appropriate cases. For example, a judgment creditor and former officer of a corporation could not intervene in a suit between the corporation and DHEC over remediation of an environmental hazard even though the remediation would prevent the corporation from paying its debt to the former officer. The interest in preserving the assets of the corporation to satisfy the former officer's debt was...