Ellis v. Ellis

Annotate this Case

247 S.E.2d 274 (1978)

38 N.C. App. 81

Ellen S. ELLIS (widow), Plaintiff-Appellee, v. Hilliard Ray ELLIS (single), Mary Elizabeth Ellis Rhodes and husband, Thomas Lawrence Rhodes, Bobby Richard Glosson and Richard Lawson Maguire, Defendants, and Annie Belle Ellis Currie and husband, Carey L. Currie, Martha Dale Ellis Glosson, and Frances Mildred Ellis Maguire, Applicants-Appellants.

No. 7714SC950.

Court of Appeals of North Carolina.

September 19, 1978.

*276 Kenneth C. Titus, Durham, for applicants-intervenors appellants.

W. Y. Manson and Lucy D. Strickland, Durham, for plaintiff-appellee.

Felix B. Clayton, Durham, for defendants.

ERWIN, Judge.

The first question presented by this appeal is whether the trial court erred in denying applicant-appellants' motion to intervene. We find no error in the order entered by Judge Hobgood.

G.S. 1A-1, Rule 24, provides in part:

(a) Intervention of right.Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive intervention.Upon timely application anyone may be permitted to intervene in an action. (1) When a statute confers a conditional right to intervene; or (2) 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 federal or State governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, such 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."

The applicant-intervenors moved under Rule 24 to intervene in this civil action. In their brief, they contend that they are entitled to intervene as a matter of right pursuant to Rule 24(a)(2) of the Rules of Civil Procedure. Rule 24(a)(2) requires three prerequisites to non-statutory intervention as a matter of right: (1) an interest relating to the property or transaction; (2) practical impairment of the protection of that interest; and (3) inadequate representation of that interest by existing parties.

Plaintiff in her action proposes to remove a cloud upon her title against some of her children and their spouses, who failed to execute a quitclaim deed to her for the homeplace, which plaintiff acquired by deed. The deed was executed by her as attorney-in-fact for her husband to her husband and herself as tenants by the entirety. The husband is now deceased, and plaintiff claims the entire tract as her sole property. The applicant-intervenors allege that "[p]laintiff claims title through a power of attorney, deed executed by the attorney in fact, and a quitclaim deed signed by intervenors." Applicant-intervenors propose to have their deed to the plaintiff for the real property in question set aside on three grounds:

*277 "1. The signatures of intervenors on the quitclaim deed were fraudulently induced through representations by the plaintiff that the deed was for the eleven acres of the property to be sold to a church, which plaintiff knew at the time to be untrue. . . . 2. The quitclaim deed transfer was without good and valid consideration. 3. The acknowledgment of the signatures by a notary public was improper as the deed was signed outside of the notary's presence and none of the intervenors acknowledged to the notary that the signature was his own."

To us, the intervenors have apparently conveyed their interest in the real property in question to the plaintiff. This being true, we hold that applicant-intervenors do not meet the requirements of Rule 24(a)(2). They do not have an interest in the subject matter of this action. The relief sought by the applicant-intervenors is to have their deed set aside. We concede that the deed relates to the same property in question, but it relates to a different transaction than those complained of by the plaintiff. See Bank v. Robertson, 25 N.C.App. 424, 213 S.E.2d 363 (1975).

Now we must scrutinize the trial court's use of its discretion in denying the applicant-intervenors' motion to intervene under Rule 24(b)(2), "Permissive Intervention." The Court's discretion in this regard is not reviewable in the absence of a showing of abuse. The trial court entered its order which reads in part as follows:

"AND IT FURTHER APPEARING TO THE COURT, after hearing arguments of all counsel, that the ends of justice would not be met by allowing the Motion to Intervene and that same should be denied.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the above said Motion to Intervene is not allowed and the same is hereby dismissed, this 26 day of August, 1977."

"With only minor exceptions, Federal Rule 24 and North Carolina Rule 24 are substantially the same. Where the phrase `statute of the United States' appears in the Federal Rule, the word `statute' is used in the North Carolina Rule." Shuford, N. C. Civil Practice and Procedure, ยง 24-1, p. 206.

The United States Court of Appeals, Fifth Circuit, held as follows in Weiser v. White, 505 F.2d 912, 917 (5th Cir. 1975), cert. denied, 421 U.S. 993, 95 S. Ct. 1998, 44 L. Ed. 2d 482 (1975):

"Ordinarily, in the absence of an abuse of discretion, no appeal lies from an order denying leave to intervene where intervention is a permissive matter within the discretion of the court. United States v. California Co-op. Canneries, 279 U.S. 553, 556, 49 S. Ct. 423, 424, 73 L. Ed. 838. The permissive nature of such intervention necessarily implies that, if intervention is denied, the applicant is not legally bound or prejudiced by any judgment that might be entered in the case. He is at liberty to assert and protect his interest in some more appropriate proceeding. Having no adverse effect upon the applicant, the order denying intervention accordingly falls below the level of appealability.. . ."

We have not found any cases on point from this Court or our Supreme Court decided since the effective date of the North Carolina Rules of Civil Procedure; however, Strickland v. Hughes, 273 N.C. 481, 485, 160 S.E.2d 313, 316 (1968), (decided after our Rules were adopted but before their effective date) held: "It is ordinarily within the discretion of the court to permit proper parties to intervene. Childers v. Powell, 243 N.C. 711, 92 S.E.2d 65."

The record before us does not reveal that the trial judge abused his discretion. We note that the pre-trial order had been entered prior to the motion to intervene.

In summary, we hold that: (1) the applicant-intervenors were not entitled to intervene pursuant to Rule 24(a)(2) as a matter of right; (2) the trial court did not abuse its discretion in denying applicant-intervenors' permission to intervene pursuant to Rule 24(b)(2); and (3) better practice would require applicant-intervenors to specify *278 the section of Rule 24 they wished to proceed under.

In view of our holding above, we deem it unnecessary to consider applicant-intervenors' assignment of error Number 2. The orders appealed from are

Affirmed.

PARKER and CLARK, JJ., concur.