Opinion
NO. 2012-CA-001552-MR
05-15-2015
GARY MASON APPELLANT v. ROCKCASTLE COUNTY FISCAL COURT AND ROCKCASTLE COUNTY RECREATION AND WELLNESS TASKFORCE APPELLEES
BRIEF FOR APPELLANT: Gary Mason, Pro Se Mt. Vernon, Kentucky BRIEF FOR APPELLEE: Adam L. Towe London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 11-CI-00280
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: Gary Mason, acting without the assistance of counsel, appeals the Rockcastle Circuit Court's August 15, 2012, order denying his motion to intervene in the above-styled circuit court action. For the reasons more fully explained below, we AFFIRM.
I. Background
On or about October 24, 2011, Michael Sheliga, filed a pro se complaint against the Rockcastle County Fiscal Court and the Rockcastle County Recreation and Wellness Task Force (hereinafter collectively referred to as "Rockcastle County"). Sheliga's complaint alleged willful violations of open records and open meetings, violations of Kentucky Employee Retirement Systems standards, and closure of public roads, specifically Eagle Creek Road.
On June 25, 2012, the circuit court entered an order dismissing with prejudice Sheliga's claims regarding the closure of Eagle Creek Road. On July 17, 2012, Mason filed a pro se motion seeking to intervene as related to the Eagle Creek Road issue. His motion stated as follows:
I live near Eagle Creek Road and have been using it since I was young 55 years ago. Alan Cromer and I originally complained to the Rockcastle Fiscal Court about a locked gate being placed across the road about January 2010, shortly after the gate was locked. Plaintiff in the above case is a friend and has indicated that his parents are elderly and that he intends to return to Pennsylvania in the near future to be closer to them. I am willing to pay the filing fee to pursue this matter in Appellate Court. I wish to intervene and/or join in the case in regards to the state law 178.100 relating to the locked gate being allowed to remain across Eagle Creek Road. To my knowledge, I have an "intervention of right" under civil rule 24.01 should the current plaintiff not be able to continue with this matter. Should the current Plaintiff be able to continue with this matter , I request to be able to intervene with discretion of the court under civil rule 24.02. I request to be able to join the suit per civil rules 19 and 20.
Rockcastle County filed a response objecting to the proposed intervention on numerous grounds. By order entered August 15, 2012, the circuit court denied Mason's motion.
This appeal followed.
II. Standard of Review
We review the trial court's order related to intervention for clear error. Carter v. Smith, 170 S.W.3d 402, 409 (Ky.App.2004). However, a court's evaluation of the timeliness of a motion to intervene is reviewed under an abuse of discretion standard. Id. at 408.
III. Analysis
Mason sought to intervene both under CR 24.01 and CR 24.02.
CR 24.01 provides:
1) Upon timely application anyone shall be permitted to intervene in an action (a) when a statute confers an unconditional right to intervene, or (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and 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 that interest is adequately represented by existing parties.
(2) Anyone possessing a statutory right of intervention under (1)(a) above, may move the court to intervene in a pending action and, on failure of a party to file an objection within ten (10) days to the intervention and a notice of hearing on the objection, have an order allowing the intervention without appearing in court for a hearing.
CR 24.02 provides:
Upon timely application anyone may be permitted to intervene in an action: (a) when a statute confers a conditional right to intervene or (b) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Both intervention as a matter of right, CR 24.01, and permissive intervention, CR 24.02, require timely application. Mason's motion to intervene was filed over ten months after Sheliga filed his initial complaint against Rockcastle County. Even more problematic, however, Mason did not move to intervene until after the circuit court had entered summary judgment in favor of Rockcastle County.
"Although post-judgment intervention is not strictly forbidden, it is widely within the discretion of the circuit judge." Hazel Enterprises, LLC v. Community Financial Services Bank, 382 S.W.3d 65, 68 (Ky. App. 2012). "Intervention after judgment may be permitted under some circumstances but the attempted intervenor has a special burden of justifying apparent lack of timeliness." Kelly v. Marino, 358 S.W.2d 519, 521 (Ky. 1962).
We have closely reviewed the record. We cannot agree with Mason that the trial court abused its discretion or otherwise committed error when it refused to allow him to intervene with respect to the road closure claim. Mason waited until after the trial court rendered an order fully disposing of the claim at issue before moving to intervene; yet, he proffered nothing to the trial court to justify his delay. Furthermore, Mason's concerns about Sheliga's inability to pursue appeal were unsubstantiated and indeed unfounded as Sheliga did file an appeal.
Allowing Mason to have intervened in this action would have unduly prejudiced Rockcastle County who had already litigated the issue to termination with respect to Sheliga. It would have required the trial court to reopen matters that it had already put to rest and would have unduly delayed the appeal of this matter. Therefore, we conclude that the trial court acted appropriately when it denied Mason's motion to intervene.
IV. Conclusion
For the reasons set forth above, we affirm the Rockcastle Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gary Mason, Pro Se
Mt. Vernon, Kentucky
BRIEF FOR APPELLEE: Adam L. Towe
London, Kentucky