1. Appeal and Error--preservation of issues--order dealing with
intervention and sanctions--additional arguments not
considered
Additional arguments were not considered on appeal where the
order appealed from dealt only with motions to intervene and
sanctions.
2. Parties--intervention--after final judgment
The trial court did not abuse its discretion in an action
which resulted in a trust to benefit tobacco growers and quota
owners by finding that a motion to intervene was not timely where
the intervenors failed to demonstrate the extraordinary and
unusual circumstances or to make the strong showing of
entitlement and justification necessary under case law to warrant
granting a motion to intervene after a final judgment has been
entered.
Judge GREENE concurring.
Attorney General Michael F. Easley, by Special Deputy Attorney
General James C. Gulick, for plaintiff-appellee.
Hunton & Williams, by A. Todd Brown, for defendant-appellees
Philip Morris Incorporated, Brown & Williamson Tobacco
Corporation (individually and as successor by merger to The
American Tobacco Company), Lorillard Tobacco Company, and R.J.
Reynolds Tobacco Company.
Wilson & Iseman, L.L.P., by G. Gray Wilson and Urs R.
Gsteiger, for defendant-appellee Liggett Group Inc.
Adams Kleemeier Hagan Hannah & Fouts, by Daniel W. Fouts and
Peter G. Pappas, for defendant-appellee United States Tobacco
Company.
Boyce & Isley, PLLC, by G. Eugene Boyce and Philip R. Isley,
for intervenor plaintiff-appellants.
McGEE, Judge.
Intervenor plaintiffs (intervenors) appeal the trial court's
order denying intervenors' motion to intervene in the above-
captioned case. For the reasons stated below, we affirm the trial
court's order.
Plaintiff filed its complaint against defendants on 21
December 1998, seeking compensatory and injunctive relief for
violations of Chapter 75 of the North Carolina General Statutes.
Approximately an hour later, the trial court filed a Consent Decree
and Final Judgment (Phase I) and an order dismissing with prejudice
all plaintiff's claims against defendants. Among other forms of
relief, Phase I directed the creation of a non-profit corporation
to control fifty percent of all monies received under Phase I to
benefit tobacco-dependent regions of North Carolina, subject to the
North Carolina General Assembly's approval of the creation of the
non-profit corporation prior to 15 March 1999. The trial court
also retained jurisdiction over all future proceedings contemplated
under Phase I.
On 15 March 1999, the trial court extended the deadline for
the General Assembly to approve the creation of the non-profit
corporation described in Phase I, and subsequently acknowledged
legislative approval of the non-profit corporation on 19 March
1999. The trial court formally approved the non-profit corporationas created by plaintiff on 9 July 1999.
The trial court entered a consent order on 19 August 1999 to
create a private trust to benefit tobacco growers and quota owners
in North Carolina and other states (Phase II) as part of its
continuing jurisdiction under Phase I. The trial court approved
the trust and retained jurisdiction to interpret, implement,
administer and enforce the trust agreement.
On 4 November 1999, intervenors moved to intervene under N.C.
Gen. Stat. § 1A-1, Rule 24 on behalf of all North Carolina
taxpayers and simultaneously filed a complaint alleging numerous
constitutional and statutory violations in the implementation of
both Phase I and Phase II. Intervenors seek to have all monies
disbursed under Phase I deposited directly into the State Treasury,
and to have the private trust of Phase II be adjudged a "Common
Fund for the benefit of such Class, Sub-Class or Classes of
taxpayers and citizens of the State of North Carolina as may under
all the circumstances be found entitled thereto by the Court, after
due notice and opportunity to such persons and entities to be
heard." Intervenors also moved for sanctions against plaintiff's
attorneys on 17 November 1999 for failure to include the original
summonses with the official court record and for statements made to
the news media that intervenors' attorneys had moved to intervene
solely "for the sake of a fee[.]"
Following a hearing, the trial court denied intervenors'
motion to intervene on 13 December 1999. The trial court found
that intervenors' motion was untimely because they had failed to
show any acceptable justification for their delay in filing. Thetrial court further found that intervention would seriously
prejudice and delay the rights of the original parties, and that
the interests of intervenors and all citizens of North Carolina had
been fairly represented and adequately served by plaintiff. The
trial court also denied intervenors' motion for sanctions as moot.
Intervenors appeal.
[1]As a preliminary matter, plaintiff moves to dismiss
intervenors' appeal, or to strike portions of intervenors' brief
and appendix, for violations of the North Carolina Rules of
Appellate Procedure. See Wiseman v. Wiseman, 68 N.C. App. 252,
255, 314 S.E.2d 566, 567-68 (1984) ("The Rules of Appellate
Procedure are mandatory and failure to follow the rules subjects an
appeal to dismissal."). Plaintiff asserts that intervenors
improperly argued matters not before this Court on appellate review
and based those arguments on matters not in the record, in
violation of N.C.R. App. P. 9 and 28. Because the order appealed
from deals only with intervenors' motions to intervene and for
sanctions, we decline to consider any additional arguments raised
by intervenors in their brief before this Court. See N.C.R. App.
P. 3(d). However, plaintiff's motion to dismiss intervenors'
appeal is denied pursuant to N.C.R. App. P. 2.
[2]N.C. Gen. Stat. § 1A-1, Rule 24 (1999) requires that an
application to intervene be "timely." In Procter v. City of
Raleigh Bd. of Adjust., 133 N.C. App. 181, 183, 514 S.E.2d 745, 746
(1999) (citing State Employees' Credit Union, Inc. v. Gentry, 75
N.C. App. 260, 330 S.E.2d 645 (1985)), our Court stated: The question of whether an applic
ation to
intervene is timely is left to the discretion
of the trial court who will consider the
following factors: (1) the status of the case,
(2) the possibility of unfairness or prejudice
to the existing parties, (3) the reason for
the delay in moving for intervention, (4) the
resulting prejudice to the applicant if the
motion is denied, and (5) any unusual
circumstances. In situations where a judgment
has been entered, motions to intervene are
granted only upon a finding of "extraordinary
and unusual circumstances" or a "strong
showing of entitlement and justification."
We therefore review for abuse of discretion the trial court's
finding that intervenors' motion to intervene was untimely.
"Appellate review of matters left to the discretion of the trial
court is limited to a determination of whether there was a clear
abuse of discretion." Riviere v. Riviere, 134 N.C. App. 302, 306,
517 S.E.2d 673, 676 (1999) (citing White v. White, 312 N.C. 770,
324 S.E.2d 829 (1985)).
A trial court may be reversed for abuse of
discretion only upon a showing that its
actions are manifestly unsupported by reason.
A ruling committed to a trial court's
discretion is to be accorded great deference
and will be upset only upon a showing that it
was so arbitrary that it could not have been
the result of a reasoned decision.
White at 777, 324 S.E.2d at 833 (citation omitted).
In Procter, the petitioner sought a particular interpretation
of a local zoning ordinance. At the petitioner's hearing before
the respondent, the intervenors formally opposed the petitioner's
interpretation. The respondent declined to adopt the petitioner's
interpretation, and the petitioner appealed to the trial court.
After a hearing, the trial court announced its intention to adoptthe petitioner's interpretation. Upon learning that the respondent
did not plan to appeal the trial court's decision, the intervenors
moved to intervene five days after the trial court's announcement
and the day before the trial court entered its order. The trial
court denied the motion as untimely.
Our Court reversed the Procter trial court holding that, due
to the unusual circumstances in the case, the intervenors' motion
was timely filed. We noted that the intervenors had been involved
in the ongoing proceedings and had made their opposition to the
petitioner's interpretation known. The respondent had represented
the intervenors' interests up until the respondent's decision not
to appeal the trial court's order. Upon learning of the
respondent's decision not to appeal, the intervenors acted in a
timely manner by moving to intervene in order to have standing to
appeal.
In the present case, intervenors were not involved in the
underlying case. They assert in their motion to intervene that
plaintiff has failed to represent their interests throughout the
process and since at least Phase I. They acknowledge that
information about the underlying case has been widely available
through the news media. Yet intervenors did not seek out counsel
until 13 September 1999 and did not file their motion to intervene
until nearly two months later. Intervenors' motion was ultimately
filed more than ten months after the order in Phase I was entered
and seventy-seven days after the entry of the order in Phase II.
Intervenors argue that the rule against intervening after
final judgment should not apply to them because it would beunreasonable to require intervenors to have filed their motion
during the single hour between the filing of plaintiff's complaint
and the entry of final judgment. Furthermore, they argue that
since they oppose not the settlement but its post-judgment
implementation, a post-judgment motion to intervene is appropriate.
Because the trial court has retained jurisdiction over Phase I and
Phase II, and because payments have only recently begun and will
continue for some twenty-five years, intervenors contend that the
resolution of the underlying case is anything but "final" and
therefore that their motion to intervene is timely.
The trial court found that intervenors failed to justify their
delay in filing the motion to intervene. Intervenors contend that
their delay was reasonable in light of the incomplete court record
in the underlying case. However, though intervenors seek to
explain their delay through the missing original summonses, they
nonetheless filed their motion to intervene before the summonses
had been found, suggesting that the inclusion of the summonses
within the court record was not ultimately necessary to the filing
of their motion.
The trial court also found that intervenors' intervention
would seriously prejudice the interests of the original parties to
the action. Intervenors argue that because payments are spread out
over an extended period of time, a delay now will have minimal
impact. Plaintiff, on the other hand, presented to the trial court
an affidavit from then-Governor James B. Hunt, Jr. asserting that
intervention would significantly prejudice the rights of plaintiff
and of all those who would benefit under Phase I and Phase II. Intervenors counter that denial of their motion to in
tervene
would greatly prejudice them, in that denial of access to justice
prejudices all citizens. Intervenors also assert that, if not
blocked, any payments made under Phase II to out-of-state entities
will be permanently lost to North Carolina taxpayers. Though
intervenors acknowledge that they could proceed in separate,
independent suits challenging the constitutionality of Phase I and
Phase II payments, they argue that such an approach would be
inefficient and wasteful as compared with a single definitive
answer through the present case.
Finally, intervenors contend that numerous constitutional and
procedural irregularities render the underlying case appropriate
for intervention. Intervenors argue that the unusual circumstances
throughout the case favor a finding that their motion to intervene
was timely, although they fail to indicate how the various unusual
circumstances they describe relate to the issue of timeliness.
After careful consideration of intervenors' arguments as to
each of the factors under Procter, we conclude that the trial court
did not abuse its discretion in finding untimely intervenors'
motion to intervene. Intervenors have failed to demonstrate the
"extraordinary and unusual circumstances" or to make the "strong
showing of entitlement and justification" necessary under State
Employees' Credit Union and Procter to warrant the granting of a
motion to intervene after a final judgment has been entered. The
trial court entered a final judgment in the present case more than
ten months before intervenors filed their motion to intervene, andintervenors failed to present to the trial court an adequate excuse
for their delay.
We affirm the trial court's order denying intervenors' motion
to intervene. In addition, because intervenors are not parties to
the underlying case, we affirm the trial court's holding that
intervenors' motion for sanctions is moot.
Affirmed.
Judge CAMPBELL concurs.
Judge GREENE concurs with a separate opinion.
GREENE, Judge, concurring.
I fully concur with the majority and write separately only to
address intervenors' argument that its motion to intervene was
timely because it was filed within seventy-seven days after the
entry of the 19 August 1999 Consent Order (Phase II). Phase II was
not the result of a new complaint; rather, it was a consequence of
the single complaint filed by the State and, indeed, was
contemplated in the 21 December 1998 Consent Decree and Final
Judgment (Phase I). Thus, the timeliness of intervenors' motion
must be judged in the context of Phase I. In that context, there
was more than a ten-month delay in the filing of the motion to
intervene, and I agree with the majority that intervenors have
offered no acceptable excuse for the delay. Clearly, there is
nothing to support a finding of extraordinary and unusual
circumstances or a strong showing of justification for failure to
request intervention sooner, State Employees' Credit Union, Inc. v.
Gentry, 75 N.C. App. 260, 264, 330 S.E.2d 645, 648 (1985), theshowing required when a party seeks to intervene after entry of
judgment.
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