546 N.W.2d 354 (N.D. 1996), 950410, Fisher v. Fisher

Docket Nº:Civil No. 950410.
Citation:546 N.W.2d 354
Opinion Judge:NEUMANN, Justice. Appeal from the District Court for Stark County Southwest Judicial District the Honorable Allan L Schmalenberger
Party Name:Gene FISHER, Plaintiff and Appellee, v. Sheila FISHER, Defendant, David Fisher, Suzanne Medley and Micheal Fisher, Applicants and Appellants.
Attorney:Robert A. Ramlo, Dickinson, for plaintiff and appellee.
Case Date:April 23, 1996
Court:Supreme Court of North Dakota

Page 354

546 N.W.2d 354 (N.D. 1996)

Gene FISHER, Plaintiff and Appellee,


Sheila FISHER, Defendant,

David Fisher, Suzanne Medley and Micheal Fisher, Applicants

and Appellants.

Civil No. 950410.

Supreme Court of North Dakota.

April 23, 1996

Page 355

Appeal from the District Court for Stark County, Southwest Judicial District, the Honorable Allan L. Schmalenberger, Judge.

Robert A. Ramlo, Dickinson, for plaintiff and appellee.

Randall J. Bakke and Sheldon A. Smith, Smith, Bakke, Hovland & Oppegard, Bismarck, for applicants and appellants.

NEUMANN, Justice.

David Fisher, Suzanne Medley, and Micheal Fisher appeal from a district court order denying their motion to intervene in their parents' divorce action under Rule 24(a), N.D.R.Civ.P. We affirm.

David, Suzanne, and Micheal are adult children of Gene and Sheila Fisher. Gene filed for a divorce from Sheila in June 1994. The major asset of the marriage is ownership of stock in Fisher Industries (Fisher), a close corporation encompassing Fisher Sand & Gravel, General Steel and Supply, and Greenacres Farm. Fisher is a multimillion dollar corporation that employs hundreds of people, primarily in North Dakota. Sheila owns 1,391 shares of Fisher stock and Gene owns 690 shares. David, Suzanne, and Micheal each own seventy-one shares of Fisher, which they received by gift from their parents. Eighty-one shares of Fisher stock are owned by persons not involved in this action.

In August 1995, the district court, on its own motion, ordered Sheila and Gene to "address and argue" whether the court should appoint a receiver to take control of Fisher pending resolution of their divorce action. In September 1995, David, Suzanne, and Micheal filed a motion to intervene in their parents' divorce "for the purpose of opposing the appointment of a receiver" over Fisher. In November 1995, the district court issued an order appointing a receiver over Gene and Sheila's Fisher stock "to protect the one major asset of the marriage" and, in a separate order, denied the motion to intervene, finding "[t]hat this is a divorce action and the initial appointment of a receiver of the parties stock does not at this time affect the intervenor's stock." David, Suzanne, and Micheal appeal the order denying intervention.

David, Suzanne, and Micheal argue they have a right to intervene in their parents' divorce under Rule 24(a), N.D.R.Civ.P., because they have an interest relating to the subject matter of the action. They argue the appointment of a receiver over their parents' shares in Fisher will adversely affect the value of their shares in the corporation.

Our rules allow intervention of right to protect an interest in the subject of an action. Fetch v. Quam, 530 N.W.2d 337, 339 (N.D.1995). Rule 24(a), N.D.R.Civ.P., directs:

"Upon timely application anyone must be permitted to intervene in an action if: ... the applicant claims an interest relating to the property or transaction that 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."

Rule 24(a), N.D.R.Civ.P., is derived from and substantially identical to Rule 24(a), F.R.Civ.P. Rule 24, N.D.R.Civ.P. (Explanatory Note). When our procedural rules are similar to federal procedural rules, federal court interpretations are highly persuasive and we may look to them for guidance in interpreting our rules. See Farmers Union Oil Co. of Williston v. Harp, 462 N.W.2d 152, 154 (N.D.1990); see also Fetch, 530 N.W.2d at 339-40.

In considering whether a party may intervene of right under Rule 24(a), N.D.R.Civ.P., we review any findings of fact made by the trial court under the clearly erroneous standard of review contained in Rule 52(a), N.D.R.Civ.P. However, the ultimate question of whether a party has a right to intervene in an action is a question of law that is fully reviewable. See Sierra Club v. Robertson, 960 F.2d 83, 85 (8th Cir.1992) (de

Page 356

novo standard appropriate in reviewing denial of motion to intervene as of right); compare Kiamichi R. Co., Inc. v. National Mediation Bd., 986 F.2d 1341, 1345 (10th Cir.1993) ("Permissive intervention is a matter within the district court's discretion, and we will not...

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