Berkeley Elec. Co-op., Inc. v. Town of Mt. Pleasant, 23253

• Citation: 394 S.E.2d 712,302 S.C. 186
• Decision Date: 06 March 1990
• Docket Number: No. 23253,23253
• Court: South Carolina Supreme Court
• Parties: BERKELEY ELECTRIC COOPERATIVE, INC., Respondent, v. TOWN OF MT. PLEASANT. Ex Parte: SOUTH CAROLINA ELECTRIC & GAS COMPANY, Appellant. . Heard

Page 712

394 S.E.2d 712

302 S.C. 186

BERKELEY ELECTRIC COOPERATIVE, INC., Respondent, v. TOWN OF MT. PLEASANT.

Ex Parte: SOUTH CAROLINA ELECTRIC & GAS COMPANY, Appellant.

No. 23253.

Supreme Court of South Carolina.

Heard March 6, 1990.

Decided Aug. 6, 1990.

Belton T. Zeigler, of Lewis, Babcock, Pleicones & Hawkins, Columbia, for appellant.

Thomas S. Tisdale, Jr. and Stephen P. Groves, Charleston, for respondent.

HARWELL, Justice:

This case involves the issue of whether the trial judge properly denied appellant South Carolina Electric & Gas Company's motion to intervene pursuant to Rule 24, SCRCP.

I. FACTS

On September 28, 1988, respondent Berkeley Electric Cooperative, Inc. (Berkeley Electric) initiated the present action solely against Mt. Pleasant. Berkeley Electric alleged that Mt. Pleasant had interfered with its extension of service to new customers by informing the developers of Longpointe Subdivision, a newly annexed area of Mt. Pleasant, that Berkeley Electric did not have the right to provide them with electrical service. Berkeley Electric sought an order that would prohibit Mt. Pleasant from interfering with or withdrawing its right to provide electrical services to the areas set forth in the franchise agreement between it and Mt. Pleasant. Berkeley Electric also sought an order permanently enforcing its contractual rights as sole supplier of electrical services to the subject property.

In October of 1988, appellant South Carolina Electric & Gas Company (SCE & G) moved to intervene as a party-defendant. SCE & G moved for intervention as a matter of right under Rule 24(a), SCRCP or alternatively, for permissive intervention under Rule 24(b), SCRCP. On January 12, 1989, Berkeley Electric moved to expedite the hearing on its claims. On January 13, 1989, the circuit judge, with the consent of Mt. Pleasant, allowed Berkeley Electric to amend its complaint. Because SCE & G was not a party, it did not participate in the hearing.

In the amended complaint, Berkeley Electric sought a declaratory judgment defining its rights to provide electrical service in Mt. Pleasant under an agreement previously adopted by resolution of the Mt. Pleasant Town Council. The amended complaint also sought a declaration that Berkeley Electric had legal authority to extend electrical service within the Longpointe Subdivision.

On January 31, 1989, counsel for SCE & G requested that the circuit judge take no further action until SCE & G's pending motion to intervene was decided. Thereafter, counsel for SCE & G participated in a telephone conference with the circuit judge and counsel for Berkeley Electric. The stated purpose of the conference was to argue Berkeley Electric's motion to expedite. During the conference, the circuit judge informed counsel that a hearing on the merits of Berkeley Electric's complaint would be held during the week of March 13, 1989. The circuit judge then denied SCE & G's motion to intervene as a party and issued a written order to this effect on February 27, 1989. This appeal follows.

II. DISCUSSION

SCE & G asserts that it has the right to intervene pursuant to Rule 24(a)(2). We agree. In analyzing the facts of this particular case, we recognize that intervention controversies arise in a myriad of contexts. We interpret the rules to permit liberal intervention particularly where as here, judicial economy will be promoted by the declaration of the rights of all parties who may be affected. Accordingly, we must consider the pragmatic consequences of a decision to permit or deny intervention and avoid setting up rigid applications of Rule 24(a)(2). Each case will be examined in the context of its unique facts and circumstances. In reviewing the granting or denial of a Rule 24(a)(2) motion, we must determine whether the trial judge abused his discretion. S.C. Tax Commission v. Union County Treasurer, 295 S.C. 257, 368 S.E.2d 72 (Ct.App.1988).

Rule 24(a)(2) provides that:

Upon timely application anyone shall be permitted to intervene in an action: ... (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.

Accordingly, SCE & G must: (1) establish timely application; (2) assert an interest relating to the property or transaction which is the subject of the action; (3) demonstrate that it is in a position such that without intervention, disposition of the action may impair or impede its ability to protect that interest; and (4) demonstrate that its interest is inadequately represented by other parties. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir.1983).

The timeliness of SCE & G's application to intervene is not at issue as the motion was filed only days after Berkeley Electric's complaint was filed. We must next consider whether SCE & G asserts an interest that would warrant intervention. The question of SCE & G's interest must be determined in relation to the overall subject matter of the action and not in relation to the particular issue that is before the Court. Sagebrush Rebellion, Inc. v. Watt, supra.

The issue raised by Berkeley Electric's complaint involves a franchise agreement executed in 1982 by Berkeley Electric and Mt. Pleasant that allegedly grants Berkeley Electric the exclusive right to provide services to the property in question. Mt. Pleasant argues that this franchise agreement is invalid in that it was not properly executed. SCE & G asserts that it has an interest in the action in that it, and not Berkeley Electric, has the exclusive legally authorized right to serve the same property based upon another franchise agreement executed by it and Mt. Pleasant in 1988. SCE & G argues that it has a contractual and legislative right and obligation to serve this property pursuant to the 1988 franchise agreement which was properly granted to them by a 1988 Mt. Pleasant ordinance.

SCE & G asserts that it has a financial interest in the dispute in that its rights to serve the property in question and receive revenues from such services are contingent upon whether Berkeley Electric is found to be the exclusive provider of services in this area. Also, a ruling adverse to SCE & G would destroy any investments SCE & G has already made under the belief that it is the rightful supplier of such services. We find that SCE & G has asserted an interest that would warrant its participation in this proceeding not only because the action may determine the extent of its service obligations, but because the resolution of the issues raised by Berkeley Electric under the 1982 franchise agreement involve the validity of other conflicting ordinances and contracts of which SCE & G is a party.

The Sagebrush test further requires that the prospective intervenor demonstrate that without its intervention, the disposition of the case may impair or impede its ability to protect its interest. To meet that requirement, a party need not prove that it would be bound in a res judicata sense by the judgment, only that it would have difficulty adequately protecting its interests if not allowed to intervene. Spring Construction Co., Inc. v. Harris, 614 F.2d 374 (4th Cir.1980).

We find that SCE & G may be impaired or impeded in its ability to protect its asserted interests unless allowed to intervene in this action. A declaration by the trial judge in favor of Berkeley would, as a practical matter, prevent SCE & G from serving customers that it believes it is legally entitled to serve and impair its ability to protect investments it has already made in reliance on its beliefs. Also, it would be extremely difficult for SCE & G to collaterally attack any ruling adverse to them if not made a party to the original action.

The last factor of the Sagebrush test requires that SCE & G demonstrate that its asserted interests will not be adequately represented by the existing parties. The burden of demonstrating inadequacy of representation is on the applicant. S.C. Tax Commission v. Union County Treasurer, supra. This burden is minimal and the applicant need only show that the representation of his interests "may be" inadequate. Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972).

Sagebrush sets forth the following factors in determining whether the existing representation is adequate: (1) whether the existing parties will undoubtedly make all of the intervenor's arguments; (2) whether the existing parties are capable and willing to make such arguments; and (3) whether the intervenor offers different knowledge, experience, or perspective on the proceedings that would otherwise be absent. On reviewing the trial judge's decision as to whether adequacy of representation exists, we must appraise all of the circumstances of a particular case as to whether interests sufficiently overlap so as to deny intervention. While it appears that SCE & G and Mt....