Wyatt v. R.D. Werner Co., Inc., 940120

• Decision Date: 21 November 1994
• Docket Number: No. 940120,940120
• Parties: Donald G. WYATT, Plaintiff and Appellee, v. R.D. WERNER CO., INC., and Ardell A. Adams, Defendants and Appellees, Shirley A. Wyatt, Intervenor and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 579

524 N.W.2d 579

Donald G. WYATT, Plaintiff and Appellee, v. R.D. WERNER CO., INC., and Ardell A. Adams, Defendants and Appellees Shirley A. Wyatt, Intervenor and Appellant.

Civ. No. 940120.

Supreme Court of North Dakota.

Nov. 21, 1994.

Ralph F. Carter, of Moosbrugger, Ohlsen, Dvorak & Carter, Grand Forks, for plaintiff and appellee.

Wayne W. Carlson, of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant and appellee R.D. Werner Co., Inc.

Jay Fiedler, Letnes, Marshall, Fiedler & Clapp, Ltd., Grand Forks, for defendant and appellee Ardell A. Adams. Submitted on brief.

Rex A. Hammarback, East Grand Forks, MN, for intervenor and appellant.

SANDSTROM, Justice.

Shirley Wyatt appeals from an order denying her motion to intervene with a claim for loss of consortium in a personal injury action brought by her former spouse, Donald Wyatt, against Ardell Adams, Shirley's father, and R.D. Werner Co., Inc., a ladder manufacturer. We hold the order denying intervention is a final appealable order. We further hold Shirley was entitled as a matter of right to intervene in Donald's action and the court erred in denying the motion. We reverse and remand.

I

Donald Wyatt was seriously injured in December 1987, when he fell from a ladder owned by Adams and manufactured by R.D. Werner Co. while using the ladder at Adams' home. Donald and Shirley were married at the time, but they were divorced in April 1992. Donald filed an action for damages against Adams in February 1993, and he later joined R.D. Werner Co. as a party defendant. In November 1993, Shirley filed a motion to intervene under Rule 24, N.D.R.Civ.P. The trial court denied the motion, and Shirley filed this appeal.

II

We first address whether an order denying a motion to intervene is appealable. Courts have differing views, which are summarized and commented upon in C. Wright A. Miller & M. Kane, Federal Practice and Procedure Sec. 1923, pp. 507-509 (1986):

"An order granting leave to intervene is not final and is not appealable as of right.

* * * * * *

"The matter has been much more complicated when review is sought of a denial of intervention, but there are clear signs that the courts are moving to a simpler and more sensible rule. The traditional view has been that the appellate court can reverse if the trial court has erroneously denied intervention of right or if it has abused its discretion in denying permissive intervention, but that its order is not appealable, and the appeal must be dismissed, if the trial court properly denied the application for intervention. As Judge Friendly has said:

"Since this makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right it will dismiss the appeal rather than affirm.

"It is clear enough what the rule ought to be. Any denial of intervention should be regarded as an appealable final order--as it surely is so far as the would-be intervenor is concerned--but the appellate court should affirm unless intervention of right was erroneously denied or, more debatably, the trial court seriously abused its discretion in refusing to allow permissible intervention." (Footnotes omitted.)

Under N.D.C.C. Sec. 28-27-02(2), a final order affecting a substantial right made in special proceedings is appealable. In construing a similar provision, the Wisconsin Supreme Court in Becker v. Becker, 66 Wis.2d 731, 225 N.W.2d 884, 886 (1975), persuasively explained its rationale for concluding an order denying a motion to intervene is appealable:

"A person not a party who petitions to intervene is entitled to appeal from the order denying his application, because the application initiates a special proceeding which is terminated by the order. The petitioner is not a party to the action, and his only opportunity for review is an appeal from the order, which is a final order affecting a substantial right...." (Citations omitted.)

An order denying a non-party's motion to intervene effectively concludes the proceedings for intervention and prevents the movant from becoming a party to the original action. We conclude an order denying a motion to intervene is a final appealable order under N.D.C.C. Sec. 28-27-02(2). The order denying intervention concludes the special proceeding and is therefore appealable under the statute. Because the order is final and because no other claim or party is involved in the special proceeding for intervention, Rule 54(b), N.D.R.Civ.P., does not apply and certification under it is not required to appeal. Concluding the order denying intervention is immediately appealable does not expand the range of appealable orders.

The district court had jurisdiction in this case under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Sec. 27-05-06. We have jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 28-27-01.

III

In support of her motion to intervene Shirley contends this Court's decision in Butz v. World Wide, Inc., 492 N.W.2d 88 (N.D.1992), requires joinder of loss of consortium claims, and if she failed to intervene in Donald's action her claim would be permanently barred. Rule 24(a)(ii), N.D.R.Civ.P., requires the court to permit intervention 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."

The trial court found Donald and Shirley's claims accrued prior to the Butz decision and for that reason would not be barred by non-joinder. The court also found there was substantial acrimony and discord between Donald and Shirley which could hinder their tort claims if they were allowed to proceed jointly. We conclude the Butz decision is dispositive of this appeal and requires a grant of Shirley's motion to intervene.

This Court held in Butz at 91, a deprived person's loss of consortium claim must...