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Mundt v. Northwest Explorations, Inc. (11/7/97), 947 P 2d 827
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
VALERIE V. MUNDT, )
) Supreme Court No. S-7663
) Superior Court No.
v. ) 4FA-89-1978 CI
NORTHWEST EXPLORATIONS, INC., ) O P I N I O N
and RICHARD DEAN, )
Appellees. ) [No. 4901 - November 7, 1997]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Douglas L. Blankenship, Law
Offices of Douglas L. Blankenship, Fairbanks, for Appellant.
Elliot T. Dennis, Pletcher, Weinig, Moser & Merriner, Anchorage,
for Appellee Northwest Explorations, Inc. No appearance by
Appellee Richard Dean.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Chief Justice.
Valerie Mundt appeals the superior court's refusal to
permit her to intervene in a motion to invalidate deeds to property
in which she claims an interest. We reverse, and remand the case
for further proceedings.
II. FACTS AND PROCEEDINGS
This action represents the latest chapter in a lengthy
dispute between Daniel Ashbrook and Northwest Explorations, Inc.
(Northwest) concerning certain parcels of land. In 1990, while
litigation between Ashbrook and Northwest proceeded, Northwest
recorded a lis pendens on parcels held in Ashbrook's name. Ashbrook
later conveyed by deed several of those parcels to Valerie Mundt.
Eventually he declared bankruptcy.
In December 1992, the superior court entered a final
judgment approving a settlement agreement between Ashbrook and
Northwest. The agreement provided for an exchange of land between
Ashbrook and Northwest. Ashbrook appealed the entry of that
judgment. This court affirmed the decision of the superior court.
Ashbrook v. Northwest Explorations, Inc., Mem. Op. & J. No. 0726
(Alaska, June 22, 1994). Ashbrook contested the agreement in a
second suit, which ultimately failed. Mundt filed a separate
action attempting to re-litigate issues resolved in the prior
judgments against Ashbrook, which was also dismissed. In 1994, the
superior court entered an order requiring Ashbrook and Northwest to
perform their duties under the agreement.
In 1995, Northwest filed a post-judgment motion to quiet
title to the parcels it had received under the agreement, and to
invalidate all deeds conveying those parcels from Ashbrook to
parties other than Northwest. [Fn. 1] Mundt, who was not a party
to the action, received a copy of the motion and all relevant
documents. She took no action in response. The superior court
granted Northwest's motion over Ashbrook's objections, and issued
an order which included invalidating the deeds conveying the
parcels from Ashbrook to Mundt.
Following the grant of Northwest's motion, Mundt sought
to intervene as of right. Mundt contended that the quiet title
order invalidated Mundt's claim not only to parcels in which
Northwest claimed an interest under the agreement, but also to
additional parcels which Ashbrook had transferred to Mundt by the
deeds now invalidated by the order. The superior court refused to
permit Mundt to intervene. Mundt filed a motion for
reconsideration, which the superior court denied. This appeal
A. Standard of Review
A lower court's decision on a motion to intervene is
reviewed for an abuse of discretion. State v. Weidner, 684 P.2d
103, 113 (Alaska 1984).
B. The Superior Court Erred by Refusing to Permit Mundt to
Alaska Rule of Civil Procedure 24(a) provides:
Upon timely application anyone shall be
permitted to intervene in an action when the applicant claims an
interest relating to the property or transaction which is the
subject of the action and the applicant 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 the
applicant's interest is adequately represented by existing parties.
We have adopted a four-part test for determining whether
a trial court is required to grant intervention as of right.
Weidner, 684 P.2d at 113. Under that test, "(1) the motion must be
timely; (2) the applicant must show an interest in the subject
matter of the action; (3) it must be shown that this interest may
be impaired as a consequence of the action; and (4) it must be
shown that the interest is not adequately represented by an
existing party." Id.
The superior court denied Mundt's application because she
had failed to satisfy two of these criteria, by filing an untimely
application and by failing to demonstrate that Ashbrook had not
adequately represented her interests. [Fn. 2] We conclude that
Mundt in fact satisfies all four criteria of this test, and
therefore should have been permitted to intervene.
1. Mundt's application to intervene was timely.
No Alaska case establishes clear standards for
determining when a motion is timely, although federal cases [Fn. 3]
indicate that this determination lies within the discretion of the
trial judge. See, e.g., United States v. United States Steel
Corp., 548 F.2d 1232, 1235 (5th Cir. 1977). Applications for
intervention have been deemed timely when made within a few days of
the motion which the applicant wishes to challenge. Keating v.
Traynor, 833 P.2d 695, 696 n.2 (Alaska 1992) (holding that pro se
litigant's informal request for intervention was timely when made
within a few days of motion which litigant wished to challenge).
Applications made after the conclusion of litigation normally are
not timely, absent a showing of justification for the litigant's
failure to act more promptly. See Hertz v. Cleary, 835 P.2d 438,
441 (Alaska 1992) (holding that putative class member's application
to intervene was untimely when filed after settlement negotiations
in class action were "substantially concluded"); see also United
States v. Associated Milk Processors, 534 F.2d 113, 116 (8th Cir.
1976) ("The general rule is that motions for intervention made
after entry of final judgment will be granted only upon a strong
showing of entitlement and of justification for failure to request
intervention sooner."). However, an applicant may intervene
following a party's decision not to pursue an appeal, when the
applicant wishes only to pursue an appeal. McCormick, 793 P.2d at
1044 (holding that application to intervene was timely when
applicants wished to intervene only to take an appeal, and when
they intervened five days after the party decided not to take an
Although Mundt received a copy of Northwest's motion, the
record is unclear as to whether Mundt knew that her parcels would
be affected by the litigation until the order which invalidated her
interest in those parcels was issued. In Northwest's motion to
quiet title, it requested only an order "invalidating certain deeds
which create clouds on its title." Northwest also informed the
court that it sought an order invalidating deeds "which conflict
with deeds to Northwest." However, the order which was ultimately
issued invalidated Mundt's claim not only to parcels in which
Northwest claimed an interest, but also to parcels in which
Northwest did not claim an interest, which Ashbrook had transferred
to Mundt by the deeds invalidated by the order. Mundt did act
promptly following the issuance of that order, by applying for
intervention within ten days of the entry of the order. [Fn. 4]
Mundt's application therefore was timely, notwithstanding the fact
that it was filed after entry of final judgment.
2. Ashbrook did not adequately represent Mundt's
Under Alaska law, parties may intervene as of right only
if existing parties will not adequately represent their interests.
Alaska R. Civ. P. 24(a) (stating that intervention of right is not
allowed if "the applicant's interest is adequately represented by
existing parties"). "[I]nadequacy is proven by a showing of
collusion, adversity of interest, possible nonfeasance, or
incompetence." McCormick, 793 P.2d at 1045 (internal quotation and
emphasis omitted) (holding that failure to take appeal rendered
representation inadequate); see also Matter of J.R.S., 690 P.2d 10,
18-19 (Alaska 1984) (holding that Native village was permitted to
intervene in adoption proceeding because guardian ad litem
represented interests of child, not of preferences contained in
Indian Child Welfare Act which village attempted to protect).
Ashbrook's interests were not coextensive with those of Mundt,
since he would receive title to the parcels in question if the
deeds conveying them to her were invalidated. Ashbrook had no
particular interest in arguing the overbreadth of the quiet title
order to the court below, and he in fact did not do so vigorously.
[Fn. 5] Mundt's interests therefore were not adequately
represented by any existing party.
Mundt satisfies all of the criteria for intervention as
of right, and should have been permitted to intervene in the
proceedings below. The decision of the superior court is therefore
REVERSED, and the case is REMANDED for consideration of the merits
of Mundt's claim.
In 1989 Ashbrook brought suit against Northwest and other
defendants in the original action, 4FA-89-1978. Northwest
counterclaimed against Ashbrook. A settlement agreement was
negotiated between them. The superior court entered a final
judgment, based upon its determination of the settlement between
Ashbrook and Northwest. Ashbrook pursued an appeal from that final
judgment, which was affirmed on June 22, 1994. Ashbrook v.
Northwest Explorations, Inc., Mem. Op. & J. No. 0726 (Alaska,
June 22, 1994). In 1995, Northwest brought a separate suit, 4FA-
95-714, to quiet title, naming Ashbrook and Mundt as defendants.
Ashbrook and Mundt asserted as affirmative defenses in that suit
that only Judge Richard D. Savell had jurisdiction to resolve the
issues in the original suit. Thereafter, Northwest sought to quiet
title through a post-judgment motion in the original suit.
Mundt satisfies the other two criteria in that she possessed
an ownership interest in the parcels which would be eliminated by
the order she wished to challenge. Northwest claims that Mundt had
no protectable interest in the parcels in question, because she
received them through a "highly suspect"conveyance. Since
Northwest has not obtained any judicial determination that Mundt's
interest stems from a void or voidable conveyance, this contention
Federal Civil Rule 24, which governs intervention as of right,
differs from Alaska Civil Rule 24 only in that the federal rule
expressly authorizes intervention in the event that a federal
statute confers an unconditional right to intervene.
Mundt acted well within the period allowed for other post-
judgment actions. See, e.g., Alaska R. Civ. P. 59(b) (requiring
motion for new trial to be made within ten days of entry of
judgment); see also Alaska R. App. P. 204(a)(1) (requiring appeal
to be taken within 30 days of final judgment).
Ashbrook did argue that an order quieting title "should extend
only to the properties to which Northwest is entitled. Northwest
has no right to invalidate deeds, or even parts of deeds, which do
not affect it." However, this statement comprised the entirety of
his argument on this point.