Weston v. Smoot,

----ooOoo----

W. David Weston,
Intervener and Appellant,

v.

Darko Segota, Bergaz, L.C.; Branimir Globevnik,
and Okrad International, L.C.; BA/LF Holdings, L.C.;
BA/LF Technologies, L.C.,
Plaintiffs,

v.

Stephen H. Smoot, individuallyand as Manager of Utah International
and Utah International, L.C., a Utah limited liability company; and
Stephen H. Smoot and Park Smoot, as Co-Trustees of the H.J. Russel McNitt Trust,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 980254-CA

F I L E D
May 6, 1999 1999 UT App 152 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
W. David Weston, Salt Lake City, Appellant Pro Se
Theodore E. Kanell, Salt Lake City, for Appellees Smoot, Utah International, and McNitt Trust

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Before Judges Wilkins, Jackson, and Orme.

WILKINS, Presiding Judge:

Petitioner, W. David Weston, appeals the trial court's denial of his motion to intervene in an action initiated by Weston in the name of BA/LF Holdings, L.C., and BA/LF Technologies, L.C., (plaintiffs) against Stephen H. Smoot and Park Smoot (Smoots). We affirm.

Weston challenges the trial court's denial of his motion to intervene pursuant to rule 24(a) of the Utah Rules of Civil Procedure. Because a trial court's decision to grant or deny a motion to intervene involves both questions of fact and law, we "review its legal conclusions nondeferentially for correctness and its factual determinations for clear error." Moreno v. Board of Educ., 926 P.2d 886, 888 (Utah 1996).

Under rule 24(a), a person must be allowed to intervene in an action when four requirements are met: (1) the application is timely; (2) the applicant has an interest in the subject matter of the dispute; (3) the disposition of the action may impair the applicant's ability to protect that interest; and (4) that interest is or may be inadequately represented. See Utah R. Civ. P. 24(a); Chatterton v. Walker, 938 P.2d 255, 258-59 (Utah 1997).

In this case, plaintiffs filed the initial complaint against the Smoots in April 1996, and a trial was scheduled to take place on July 14, 1997. Because Weston initiated the action in the plaintiffs name, he obviously had notice that the suit had been commenced against the Smoots. Approximately two weeks before the trial date, the parties reached a potential settlement which prompted Weston to file an involuntary bankruptcy petition against the plaintiffs. When the bankruptcy petition was dismissed on the ground that it was brought in bad faith, Weston filed an application to intervene. Thus, Weston's motion was not filed until after a trial date was set, the parties had reached a potential settlement, and his involuntary bankruptcy petition was dismissed.(1) Given Weston's apparent notice and opportunity to intervene at an earlier stage of the proceeding and the ripeness of the case for settlement at the time the motion to intervene was made, we conclude Weston's application was not timely. See Republic Ins. Group v. Doman, 774 P.2d 1130, 1131 (Utah 1989).

However, even assuming that Weston's motion to intervene was timely, he has failed to establish that he has a sufficient interest in the subject matter of the dispute to justify intervention in this case. We have stated that "[t]he applicant's interest in the subject matter of the dispute must be a direct claim upon the subject matter of the action such that the applicant will either gain or lose by direct operation of the judgment to be rendered, not a 'mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action.'" Interstate Land Corp. v. Patterson, 797 P.2d 1101, 1108 (Utah Ct. App. 1990) (quoting Lima v. Chambers, 657 P.2d 279, 282 (Utah 1982) (additional quotations omitted). As set forth in the plaintiffs complaint, this lawsuit focused primarily on issues involving the ownership of certain patent rights. Weston, however, does not claim a direct interest in those patents. Rather, Weston claims to be a creditor of the plaintiffs and asserts a contractual claim on a ten-percent ownership interest in BA/LF Holdings. Because Weston has failed to timely intervene and because he has failed to establish that he has a legally cognizable interest in the subject matter of the dispute, we affirm the trial court's denial of his motion to intervene.(2)

Affirmed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

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WE CONCUR:
 
 
 

______________________________
Gregory K. Orme, Judge
 
 
 

______________________________
Norman H. Jackson, Judge

1. We have considered the documents submitted by both parties regarding the proceedings in the United States Bankruptcy Court.

2. We have considered Weston's estoppel claim and conclude it is without merit. See Duncan v. Howard, 918 P.2d 888, 895 (Utah Ct. App. 1996) (noting court may decline to address arguments without merit on appeal).