ROBERTS (JOHN), ET AL. VS. THE ESTATE OF LAHOMA SALYER BRAMBLE , ET AL.
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RENDERED: OCTOBER 8, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED: NOVEMBER 5, 2010; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001233-MR
JOHN ROBERTS, GEORGE MCARTHUR KING,
GEORGE MICHAEL KING, AND
JOSEPH ANTHONY KING
v.
APPELLANTS
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE KIMBERLEY CHILDERS, JUDGE
ACTION NO. 07-CI-00006
THE ESTATE OF LAHOMA SALYER BRAMBLE,
JOAN AGONESE,
ANACONDA DRILLING OF KY, LLC,
MICHAEL R. ANSELM,
BERNICE BAILEY, NETTA LYNN BAILEY,
LAVARIA BEDINGFIELD, HENRIETTA BERRY,
RUTH BROCK, JOHN D. CARTY,
BEAUREDA WILLIAMS COLLEY,
COMMUNITY TRUST BANK, COUNTRY GAS, LLC,
WANDDA LEE COX, AMELIA CRAFT, CHARLES V. CRAFT,
CONROY CRAFT, MAXINE CRAFT, OPEL SUE CRAFT,
JUDY DOWN CROCKETT, BETTY DOBSON, DOUG DOWNS,
SANDY DOWNS, CAROLYN DYKHUIZEN, VANESSA W. EASON
EQUITABLE PRODUCTION COMPANY,
ESTATE OF DORSEY CLAXTON MCCARTY,
ESTATE OF EVALEE BLAYLOCK EDWARDS,
FAST FLOW GROUP, LLC, MARY FIFIELD,
LILLIAN F. WHITAKER FLOYD,
GWENDOLYN R. FORGE, MAXINE FRENCH,
PAULINE FRITTS, MIELANG GAMBELE,
JERRY B. GIBBS, MELYNDE HARTMAN,
RONALD HARTWELL, MYRTLE HOWARD,
PAM HOWARD, MAYOLA HUMES,
JERRY INGRAM, OTTO INGRAM,
J.D. CARTY RESOURCES, LLC, JEFFERSON GAS, LLC,
GAIL KAHLEY, LINDA KRONTZ,
KY-AZ TRANSMISSION, LLC, NEVA LOUISE LOVELY,
ROGER LOVELY, HAROLD LOVELY,
KAREN L. LYON, LILLY MAY MADISON,
CATHY SUE MAGGARD, MARK MANNING,
ONEDA MARCHETTI, DAVID MARTIN,
JAMES MCCARTHY, ALLEN MCCARTY,
BEATRICE MCCARTY, BETTY MCCARTY,
CAROLLE E. MCCARTY, DANNY MCCARTY,
KEVIN MCCARTY, RANDALL MCCARTY,
RAYMOND MCCARTY, ROBERT MCCARTY,
ROBIN MCCARTY, RONNIE MCCARTY,
KIMBERLY D. MCCORD, MELANIE M. MILLER,
MINION ENERGY, LLC (AND NORTHERN COAL & COKE),
AUDREY MINIX, EARNESTINE MINIX, LILLIAN MINIX,
JAMES PHARES, JAMES R. PHARES (JAMIE),
JASON PHARES, CHERYL L. PIPER,
INA SALYER PYLES, R&R ENERGY, LLC,
MOLLIE W. RICHARDSON, WANDA GAYE ROKOSZ,
RANDALL RUDD, VERLA M. SALYER RUSSELL,
BILL SALYER, CORA SALYER, DAVID R. SALYER,
DONNA SALYER, DWAYNE SALYER, EMORY CAIN SALYER,
FORD SALYER, GEMALIA SALYER, GLEN SALYER,
HAPPY SALYER, HARRY SALYER, JAMES SALYER,
KELLY SALYER, KEVIN G. SALYER, LAHOMA SALYER,
LARRY SALYER, LARRY KEITH SALYER,
MARK STEVEN SALYER, MARY E. SALYER,
MAXINE SALYER, PATCHELL SALYER,
RAMEY SALYER, JR., RANDY SALYER,
ROBERT E. SALYER, ROTHEL SALYER,
ROY SALYER, TIMOTHY O’DELL SALYER,
TRACEY SALYER, VENA SALYER,
WISEMOND SALYER, GARY SLAYER,
LAVINIA W. SMITH, BARBARA STALBAUM,
SUE STALBAUM, BRENDA STANLEY,
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ANNA M. STEPHNES, JAMI M. TAYLOR, DANIEL E. WHITAKER,
CARYL LAWRENCE WHITAKER, JACK WHITAKER,
KAREN J. WHITAKER, MARVIN WHITAKER,
JAMIE WHITWORT, DARREL G. WILLIAMS,
DEN DELBERT WILLIAMS, GARY WILLIAMS,
GERALDINE WILLIAMS, GLEN ALBERT WILLIAMS,
GREG WILLIAMS, RANDALL WILLIAMS,
KAREN WORTMAN, AND
SANDY G. ZIMMERMAN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND KELLER, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: Appellants appeal from an order of the
Magoffin Circuit Court denying their motion to intervene in an action for trespass
to mineral property. We affirm.
Appellees filed suit against J.D. Carty Resources, LLC (“JDCR”) and
Anaconda Drilling of Kentucky, LLC in the Magoffin Circuit Court for trespass,
claiming that the defendants drilled a well and produced natural gas from mineral
property owned by Appellees. Appellants, as members of Country Gas, LLC
holding four membership interests out of a total of 160 outstanding units, had
previously filed suit against J.D. Carty, individually, as well as JDCR and
Anaconda in the Harlan Circuit Court for breach of contract and securities fraud.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
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John D. Roberts, et al. v. J.D. Carty Resources, et al., Harlan Circuit Court, Civil
Action No. 06-CI-00237. That case remains pending at this time. Appellants filed
a lis pendens notice of the Harlan County suit with the Magoffin County Court
Clerk on March 29, 2007, detailing their claimed interest in the wells in the
Country Gas package.
Attorney Gordon Long answered the complaint filed in the Magoffin
Circuit Court on behalf of the defendants, defending in part by alleging that the
Magoffin plaintiffs had failed to join all indispensable parties, including Country
Gas. The allegation was that JDCR had assigned 12 oil and gas leases and 25 gas
wells to Country Gas, including the Claxton McCarty Well #2, which was the
primary subject of the trespass action.
Thereafter, the trial court ordered that Appellees file an amended
complaint joining Country Gas, and Country Gas was made a defendant by an
amended complaint dated July 30, 2007. After having brought Country Gas into
the suit, Long answered the First Amended Complaint as the attorney for Country
Gas, as well as the attorney for the original defendants, JDCR and Anaconda.
On March 12, 2008, the trial court entered partial summary judgment
on liability for trespass against JDCR, Anaconda, and Country Gas, and the matter
was set for trial on the issue of damages. However, before trial, the court entered
an order and judgment on December 17, 2008, confirming a settlement agreement
between the parties and finding that JDCR and Country Gas were to pay $628,000
to the plaintiffs. Appellees subsequently filed several orders of garnishment
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against banks with which JDCR and Country Gas had accounts, as well as with
creditors of JDCR and Country Gas.
On April 1, 2009, Appellants moved to intervene, which motion was
denied. This appeal followed.
After the filing of this appeal, Country Gas filed a motion for relief
from the court’s December 17, 2008 judgment confirming the settlement on July 6,
2009. This motion was filed by Attorneys Stephen W. Switzer and Joseph A.
Tarantelli. Additionally, Attorney Susan C. Lawson filed a notice of entry of
appearance as counsel for Country Gas on January 7, 2010.
An order denying a motion to intervene as a matter of right is
immediately appealable. Carter v. Smith, 170 S.W.3d 402, 407 (Ky. App. 2004).
Our standard of review as to whether intervention should have been granted is a
clearly erroneous standard. Id. at 409 (citing Gayner v. Packaging Serv. Corp. of
Ky., 636 S.W.2d 658, 660 (Ky. App. 1982)).
The primary issue in this appeal concerns whether Appellants can
intervene pursuant to Kentucky Rules of Civil Procedure (CR) 24.01(1). An
applicant must meet a four-prong test before being entitled to intervene in a lawsuit
pursuant to CR 24.01(1): (1) the motion must be timely; (2) the applicant must
have an interest relating to the subject of the action; (3) the applicant’s ability to
protect his interest may be impaired or impeded, and (4) none of the existing
parties could adequately represent the applicant’s interests. CR 24.01(1)(b);
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Carter, 170 S.W.3d at 407. The burden of proof in proving each of these
requirements rests with the party desiring to intervene. Carter, 170 S.W.3d at 409.
Here, assuming, without deciding, that Appellants have met the first
three prongs of the test in CR 24.01, Appellants have failed to meet the fourth
prong of the test. Appellants’ interests in the underlying lawsuit, which are
avoiding or reducing Country Gas’s liability for trespass to property, are the same
as those of Country Gas, and therefore Country Gas could adequately represent
Appellants’ interests. See Donald v. City of Glenview, 723 S.W.2d 861, 862 (Ky.
App. 1986) (city’s interest adequately represented by resident who contested
incorporation).
Appellants argue that they could not be adequately represented
because Country Gas has not been adequately defended in this matter thus far.
Appellants allege that Country Gas’s previous counsel acted adversely to the
company’s interests and had numerous conflicts of interest. However, the linchpin
supporting intervention, namely, the putative conflict of interest resulting from the
joint representation of Country Gas, J.D. Carty, and JDCR, has now largely abated
in light of the entities having separate counsel. Thus, Appellants do not meet all
four prongs of the test for intervention as of right under CR 24.01, and the trial
court’s decision denying Appellants’ motion to intervene was not clearly
erroneous.
Appellants next argue that they have a right to intervene because they
are indispensable parties of record pursuant to CR 19.01 and are necessary parties
-6-
under the Declaratory Judgment Act under KRS 418.075. We disagree. “[KRS
418.075 and CR 19.01] can be invoked only by parties, not by a person who seeks
to become a party.” Murphy v. Lexington-Fayette County Airport Bd., 472 S.W.2d
688, 690 (Ky. 1971). “Thus, only CR 24.01 governs the determination of the
question of [Appellants’] right to intervene.” Id. at 690.
The order of the Magoffin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
H. Kent Hendrickson
Harlan, Kentucky
BRIEF FOR APPELLEES, THE
ESTATE OF LAHOMA SALYER;
ET AL:
Michael Dean
Irvine, Kentucky
BRIEF FOR APPELLEES, BETTY
McCARTY, ROBERT J. McCARTY,
RONALD McCARTY, RAYMOND
McCARTY AND RANDALL
McCARTY:
Thomas M. Smith
Prestonsburg, Kentucky
BRIEF FOR APPELLEE,
EQUITABLE PRODUCTION
COMPANY:
R. Burl McCoy
Lexington, Kentucky
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