Hirshberg v. Coon, s. S–11–0113

• Decision Date: 10 January 2012
• Docket Number: S–11–0116.,Nos. S–11–0113,S–11–0115,S–11–0114,s. S–11–0113
• Parties: William HIRSHBERG, Appellant (Proposed Intervenor), v. David COON, Gail Jensen, Russell Magarity, Susan Magarity, and Debra Davis, Appellees (Petitioners).Dr. Mark Menolascino, Appellant (Proposed Intervenor), v. David Coon, Gail Jensen, Russell Magarity, Susan Magarity, and Debra Davis, Appellees (Petitioners).
• Court: Wyoming Supreme Court

2012 WY 5

268 P.3d 258

William HIRSHBERG, Appellant (Proposed Intervenor),

v.David COON, Gail Jensen, Russell Magarity, Susan Magarity, and Debra Davis, Appellees (Petitioners).Dr. Mark Menolascino, Appellant (Proposed Intervenor),

v.David Coon, Gail Jensen, Russell Magarity, Susan Magarity, and Debra Davis, Appellees (Petitioners).

Nos. S–11–0113

S–11–0115

S–11–0114

S–11–0116.

Supreme Court of Wyoming.

Jan. 10, 2012.

Representing Appellants, William Hirshberg and Dr. Mark Menolascino: Stuart R. Day, Keith J. Dodson, and Brian J. Marvel, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Representing Appellee, Debra Davis: Elizabeth Greenwood and Inga L. Parsons, Attorneys at Law, Pinedale, Wyoming.

Representing Appellees, David Coon, Gail Jensen, Russell Magarity, and Susan Magarity: Peter F. Moyer, Esq., Jackson, Wyoming.

Before GOLDEN, HILL, VOIGT, and BURKE, J.J.; WALDRIP, D.J.

WALDRIP, District Judge.

[¶ 1] In 2008, the Teton County Commission (“the Commission”) approved a “Parcel Boundary Adjustment Application” regarding certain real property located in Teton County, Wyoming. Appellees, David Coon, Gail Jensen, Russell and Susan Magarity, and Debra Davis (“Appellees”), sought judicial review of the Commission's decision. In late 2008 and early 2009, respectively, Appellants, Dr. Mark Menolascino and William Hirshberg, purchased the subject property. Neither sought to intervene in the judicial review proceedings. Ultimately, in February 2011, the reviewing district court reversed the decision of the Commission. The parties to the original administrative proceedings, and the judicial review thereof, declined to appeal this ruling. Appellants Hirshberg and Menolascino, however, filed a notice of appeal with respect to the district court's decision. They contemporaneously filed a motion to intervene in the district court proceedings for the sole purpose of pursuing the appeal therefrom. The district court denied their motion to intervene, and Appellants Hirshberg and Menolascino appealed from this decision as well. All four appeals have been consolidated before this Court. For the reasons set forth herein, we will affirm Appeal Nos. S–11–0115 and S–11–0116 and dismiss Appeal Nos. S–11–0113 and S–11–0114.

ISSUES

[¶ 2] Appellants Hirshberg and Menolascino present the following issues for review:

1. Whether the District Court Erred When It Denied Appellant's Motion to Intervene.

2. Whether A Non–Party May Appeal From a Judgment, i.e., The District Court's Order Reversing and Remanding Decision of the Board of County Commissioners of Teton County, Wyoming.

3. Whether a Non–Party May Intervene, Post–Judgment, for the Purpose of Appeal.

4. Whether the Board of County Commissioners for Teton County's Decision Was Supported By Substantial Evidence and in Accordance with Law.

5. Whether the District Court's Order Reversing and Remanding Decision of the Board of County Commissioners of Teton County, Wyoming Was Not Supported by Substantial Evidence, Was Contrary to Law, or Was Arbitrary and Capricious.

6. Whether The District Court Failed to Apply the Appropriate Standard of Review.

7. Whether the District Court Erred in Applying the Merger Doctrine.

8. Whether the District Court Erred in Holding the Subject Parcels of Real Property Merged into One Parcel of Real Property.

9. Whether an Exception to the Merger Doctrine Applies to the Subject Parcels of Real Property.

Appellees generally rely upon the same issues but have addressed only the first three, given their position that those issues are dispositive of the outcome of this case.¹

RELEVANT FACTS AND PROCEDURAL HISTORY

[¶ 3] The underlying history is lengthy, and given this Court's disposition of the issues on procedural grounds, it is necessary only to set forth a condensed version of the background facts: In January 2008, the owners of four (4) lots of real property located in Teton County, Wyoming, filed a “Parcel Boundary Adjustment Application” with the Teton County Planning Board (“the Planning Board”), proposing to develop a single family residence on each parcel. The Planning Board approved the application on the condition that the property would be divided into three parcels, not four. In September 2008, the Teton County Commission (“the Commission”) affirmed the Planning Board's decision, also ruling on a corollary issue that the lots had not merged into one.

[¶ 4] In October 2008, Appellees, David Coon, Gail Jensen, Russell and Susan Magarity, and Debra Davis (“Appellees”) sought judicial review of the Commission's decision.

[¶ 5] In December 2008, Appellee Dr. Mark Menolascino purchased one of the approved/adjusted lots. In April 2009, Appellee William Hirshberg purchased the other two lots. Mr. Hirshberg and Dr. Menolascino were aware of the pending judicial review of the County's decision at the time each purchased his property but neither sought to intervene in those proceedings.

[¶ 6] On February 25, 2011, the District Court for the Ninth Judicial District, Teton County, entered its Order Reversing and Remanding Decision of the Board of County Commissioners of Teton County, Wyoming, ruling that the four lots had merged into one. In March 2011, the Commission decided not to appeal the district court's decision.

[¶ 7] On March 21, 2011, Dr. Menolascino and Mr. Hirshberg filed motions to intervene in the district court case for the sole purpose of pursuing appeals from the Order Reversing and Remanding Decision of the Board of County Commissioners of Teton County, Wyoming. On or about March 25, 2011, although not parties to the district court case, they filed timely notices of appeal of that court's Order Reversing and Remanding Decision of the Board of County Commissioners of Teton County, Wyoming.

[¶ 8] On April 7, 2011, the district court entered its Order Denying Motion to Intervene by Dr. Mark Menolascino and William Hirshberg. The court ruled that the motions were untimely and noted that “the movants were aware of the appeal prior to their purchase of their properties.” On May 2, 2011, Dr. Menolascino and Mr. Hirshberg filed notices of appeal from the Order Denying Motion to Intervene by Dr. Mark Menolascino and William Hirshberg. All four appeals have been consolidated before this Court.

STANDARD OF REVIEW

[¶ 9] Although the underlying substantive matters involve the review of an administrative agency's final decision, this Court is not called upon to reach that level of review to resolve the issues presented to it and, thus, not called upon to recount the standard of review applicable to administrative proceedings. Rather, this Court is concerned with the parties' ability to seek appeal from the district court's decision, particularly given the denial of the motion to intervene. That said, the appropriate standard of review regarding motions to intervene has been set forth as follows:

Two kinds of intervention exist: intervention of right and permissive intervention. W.R.C.P. 24. In reviewing a denial of intervention of right, both questions of law and judicial discretion exist. Halliburton Energy Services, Inc. v. Gunter, 2007 WY 151, ¶ 5, 167 P.3d 645, 648 (Wyo.2007) (quoting Masinter v. Markstein, 2002 WY 64, ¶ 7, 45 P.3d 237, 240 (Wyo.2002)). In order for an applicant for intervention of right to be allowed to participate, he or she must meet four conditions, which are discussed in detail below. State Farm Mut. Auto. Ins. Co. v. Colley, 871 P.2d 191, 194 (Wyo.1994) (citing James S. Jackson Co., Inc. v. Horseshoe Creek Ltd., 650 P.2d 281, 286 (Wyo.1982)). The first three conditions of intervention of right are questions of law. Halliburton, ¶ 5, 167 P.3d at 648 (quoting Masinter, ¶ 7, 45 P.3d at 240–41). “This [C]ourt accords no deference to a district court's decisions on issues of law.” Masinter, ¶ 7, 45 P.3d at 240. Because the first three conditions of intervention of right are questions of law, this Court will reverse the district court's denial of intervention of right if it erroneously denied intervention of right based on the first, second, or third conditions. Id. at 240–41. The fourth condition, however, is a “matter within the discretion of the district court.” Id. at 241.

The district court is permitted to weigh the timeliness of an application to intervene in light of the circumstances of the particular case, including whether the applicant may have sought intervention earlier. Therefore, to prevail on an appeal from a finding that an application to intervene is untimely, an abuse of discretion must be demonstrated.

Id.

The district court's denial of a motion for permissive intervention is given deference. Halliburton, ¶ 9, 167 P.3d at 649. This Court reviews the district court's denial of a motion for permissive intervention for an abuse of discretion. Id.

Concerned Citizens of Spring Creek Ranch v. Tips Up, L.L.C., 2008 WY 64, ¶¶ 11–12, 185 P.3d 34, 38 (Wyo.2008).

DISCUSSION

[¶ 10] Due to its potentially dispositive nature, this Court initially considers whether the district court appropriately denied Appellants Hirshberg and Menolascino's motion to intervene in the district court's judicial review of the Commission's agency action. On March 21, 2011, Appellants Hirshberg and Menolascino sought leave to intervene in the district court's judicial review proceedings for the sole purpose of pursuing an appeal from the district court's order reversing the agency action. On April 7, 2011, the court denied their requests for intervention in its Order Denying Motion to Intervene by Dr. Mark Menolascino and William Hirshberg. Dr. Menolascino and Mr. Hirshberg then appealed that order, arguing that the court erred in denying their request to intervene. A logical analysis requires a consideration as to whether the district court appropriately denied the post-judgment request to intervene for purposes of pursing the appeal of the Order Reversing and Remanding Decision of the Board of County Commissioners of Teton...