Opinion
20-P-916
06-21-2021
Philip Timothy HOWARD v. Richard DAYNARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Jennifer Howard, the wife of plaintiff Philip Timothy Howard, sought to intervene in the underlying action, which concerns a dispute between Tim and the defendant Richard Daynard over ownership of a condominium unit (unit) in Cambridge. A Superior Court judge denied the motion to intervene, and Jennifer appeals. We affirm.
To avoid confusion, we will refer to Jennifer Howard and Philip Timothy Howard respectively as Jennifer and Tim, as the parties do in their briefs.
Background. In April 2018 Tim commenced the underlying action in Superior Court, seeking to void an "Agreement for Option to Purchase Real Estate" (option agreement) executed by Tim and Daynard in September 2017. The complaint alleged the following facts. The option agreement provided that Daynard would loan Tim $500,000, and Tim would transfer title to the unit to Daynard; Tim would then repay Daynard $625,000 by January 3, 2018, whereupon Daynard would transfer the unit back to Tim. After agreeing to these terms, Tim conveyed the unit to Daynard in October 2017. In January 2018 Daynard agreed to give Tim a thirty-day extension to repay the loan, in exchange for $20,000 and other consideration. In February 2018 Tim sought to further negotiate repayment of the loan, but Daynard asserted a right to show the unit for sale. In April 2018 Daynard commenced an eviction proceeding against Tim.
In December 2018 Daynard answered Tim's complaint and filed several counterclaims, including for breach of contract. He also asserted two permissive counterclaims concerning disputes not related to the option agreement.
In September 2019 Jennifer commenced a divorce proceeding in Florida against Tim. Approximately two months later, Tim and Daynard executed a settlement agreement resolving the claims and counterclaims in the underlying action. The settlement agreement provided that Tim would dismiss his claims with prejudice and that the unit would be sold, with Daynard receiving $900,000 from the proceeds of the sale. The settlement agreement further required Tim to deliver the unit empty and professionally cleaned by December 23, 2019. If Tim complied with this condition "and the sale of the [u]nit occur[red]," Daynard agreed to stipulate to dismissal of his counterclaims with prejudice. If Tim did not comply, the settlement agreement authorized Daynard to file with the court a separately executed "Agreement for Judgment," which awarded Daynard "all attorneys’ fees and expenses incurred by Daynard in the [l]itigation, all condominium fees and real estate taxes paid by Daynard from October 1, 2007[,] through December 31, 2019, and $250,000 the estimated amount owed under Daynard's permissive counterclaims in the [l]itigation."
On December 27, 2019, Daynard filed the Agreement for Judgment with the court. Around the same time, Daynard served and later filed a motion to enforce the settlement agreement, asserting that Tim breached his obligation to deliver the unit in good and clean condition. On February 13, 2020, the judge ordered Daynard to refile his motion as one for summary judgment, which Daynard did on March 6, 2020.
Meanwhile, on February 24, 2020, Jennifer served her motion to intervene on Daynard and Tim. While acknowledging that she had no ownership interest in the unit, Jennifer argued that she was entitled to intervene as of right, or alternatively should be granted permissive intervention, because the unit was a marital asset subject to equitable division in the pending Florida divorce proceeding, and her interests were not being adequately represented by Tim. Daynard opposed, arguing among other things that Jennifer had no interest in the unit that was not being represented by Tim and that the motion was untimely.
In April 2020 the judge allowed Daynard's motion for summary judgment and ordered entry of the Agreement for Judgment. The judge also denied Jennifer's motion to intervene without comment.
Discussion. "A judge should allow intervention as of right when (1) the applicant claims an interest in the subject of the action, ... (2) [the applicant] is situated so that his [or her] ability to protect this interest may be impaired as a practical matter by the disposition of the action, and (3) [the applicant's] interest is not adequately represented by the existing parties." Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass. 203, 205 (1991). See Mass. R. Civ. P. 24 (a) (2), 365 Mass. 769 (1974). Whether a proposed intervener has met these requirements is a question of law, which we review de novo. See Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011).
We conclude that Jennifer failed to satisfy the third requirement, inadequacy of representation. "When the applicant for intervention and an existing party have the same interests or ultimate objectives in the litigation, the application should be denied unless a showing of inadequate representation is made." Massachusetts Fed'n of Teachers, AFT, AFL-CIO, 409 Mass. at 206, quoting 3B Moore's Federal Practice par. 24.07[4] (2d ed. 1987). "Adequate representation is presumed." Massachusetts Fed'n of Teachers, AFT, AFL-CIO, supra at 207. Jennifer had to make a "compelling showing" to overcome this presumption, id. at 206, for instance, by demonstrating that Tim's interest was "adverse" to hers or that he "colluded with the opposing party." Id. at 207.
Deciding the appeal on this basis, we need not address whether Jennifer has met the first two requirements. We also do not address Daynard's argument that the motion to intervene was untimely, an issue on which the judge made no factual findings.
Jennifer did not make the necessary showing. She submitted nothing with her motion to demonstrate that Tim's "objectives in the litigation differ[ed] from" hers. Massachusetts Fed'n of Teachers, AFT, AFL-CIO, 409 Mass. at 207 (affirming denial of motion to intervene where "record [did] not reflect that any of [proposed interveners’] interests [were] adverse to the interests of the [existing party] or the [existing party's] ultimate goal in the litigation"). She failed even to submit "a pleading setting forth the claim or defense for which intervention is sought," as required by Mass. R. Civ. P. 24 (c). See Board of Selectmen v. Monument Inn, Inc., 8 Mass. App. Ct. 158, 162 (1979). To show inadequate representation, Jennifer put forth only a bare assertion that she could "not rely on [Tim] to protect her rights and interests in the [u]nit" because they did "not share a common interest as husband and wife any longer." But the pending divorce did not necessarily make Jennifer's interest in the unit adverse to Tim's. Tim still had an incentive to litigate fully his claims against Daynard, and it was Jennifer's burden to demonstrate otherwise. See Massachusetts Fed'n of Teachers, AFT, AFL-CIO, supra at 209.
In a reply memorandum in support of her motion, Jennifer raised for the first time the possibility of collusion between Tim and Daynard. She reasserts that claim on appeal. In particular, Jennifer claims that "the amount of the settlement, including the extraordinary sum of $250,000 in attorneys’ fees for this simple action, reflects collusion between Tim and Daynard to redirect a portion of the proceeds of the [u]nit's sale to Tim outside the knowledge of Jennifer or the Florida Family Court." The premise of this claim is incorrect, however. The settlement agreement provided that the payment of $250,000 was not for attorney's fees, but to settle "the estimated amount owed under Daynard's permissive counterclaims," which appear to concern disputes unrelated to the unit. As Jennifer offered no other evidence of collusion, we must conclude on this record that she failed to make a "compelling showing" of inadequate representation. Massachusetts Fed'n of Teachers, AFT, AFL-CIO, 409 Mass. at 207.
We note that the Florida court has determined in the divorce proceeding that the unit is a marital asset. Nothing in our decision should be read to preclude Jennifer from raising any claims concerning the unit in the divorce proceeding, including any claim that Tim dissipated assets. See Fla. Stat. § 61.075 (1) (i ), (j ) (2018) ; Martinez v. Martinez, 219 So.3d 259, 262 (Fla. Dist. Ct. App. 2017).
We also reject Jennifer's contention that the judge erred by denying her request for permissive intervention under Mass. R. Civ. P. 24 (b). We will reverse a judge's decision on permissive intervention only if there was a "clear abuse of discretion." Fremont Inv. & Loan, 459 Mass. at 217. Given the late stage of the litigation and Jennifer's failure to submit a pleading as required by Mass. R. Civ. P. 24 (c), we discern no abuse of discretion. See Massachusetts Fed'n of Teachers, AFT, AFL-CIO, 409 Mass. at 209 ; Board of Selectmen, 8 Mass. App. Ct. at 162.
We deny Daynard's request for appellate attorney's fees and costs.
Order denying motion to intervene affirmed.