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In re Estate of Olson

December 23, 2008



The opinion of the court was delivered by: Zinter, Justice


[¶1.] Over the objection of the personal representative,*fn1 two specific devisees in the Estate of Glenn Olson (the Estate) moved to intervene in an Estate proceeding. The proceeding involved a third party claim to real property the devisees stood to inherit under the will. The devisees appeal the denial of their motion to intervene. Under the unusual circumstances of this case, we reverse.

Facts and Procedural History

[¶2.] In In re Estate of Olson, 2008 SD 4, 744 NW2d 555 (Olson I), a majority of this Court held that the personal representative had no authority to sell specifically devised real property, and therefore, the personal representative's sale to Jerad and Luke Muhlbauer (Muhlbauers) was void. The Court then remanded the matter to the circuit court to allow the Muhlbauers to intervene and protect their interests. Following remand, Muhlbauers intervened and filed a claim against the Estate seeking to confirm the sale that this Court had previously voided. In the alternative, Muhlbauers asserted a damage claim that they contended would arise if the sale were not confirmed. Muhlbauers' claims were based on their contention that they were good faith purchasers for value who were protected as if the personal representative had been properly authorized to sell the property. See SDCL 29A-3-714.*fn2

[¶3.] Over the personal representative's objection, James W. Olson (James) and Gary E. Olson (Gary), beneficiaries of the estate, moved to intervene in the proceedings involving Muhlbauers' claims. James and Gary, who were entitled to the property as specific devisees under the will, objected to the personal representative's legal position that the sale of the property to Muhlbauers should again be confirmed. The circuit court denied James and Gary's motion to intervene, concluding that the personal representative was deemed to adequately represent the interests of all beneficiaries of the Estate. See SDCL 29A-3-715(22). James and Gary appeal contending that the circuit court erred in denying their motion to intervene as a matter of right under SDCL 15-6-24(a), or as a matter of discretion under SDCL 15-6-24(b).


[¶4.] We generally review a circuit court's decision denying a motion to intervene under the abuse of discretion standard of review. Baker, et al. v. Atkinson, et al., 2001 SD 49, ¶12, 625 NW2d 265, 269-70 (citations omitted). This case, however, presents a question of first impression in this jurisdiction regarding intervention in representative litigation under SDCL 15-6-24. The circuit court applied the general rule precluding intervention in such cases. We must decide whether an exception should be adopted. We consider that question of law de novo.

[¶5.] "South Dakota's court rule SDCL 15-6-24(a)(2) is almost identical to Federal Rule of Civil Procedure 24(a)(2)." In re D.M, 2006 SD 15, ¶5, 710 NW2d 441, 443-44. SDCL 15-6-24(a)(2) governs intervention as a matter of right and provides, in relevant part:

Upon timely application anyone shall be permitted to intervene in an action:

(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.

The purpose of this rule is "to obviate delay and multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted." In re D.M., 2006 SD 15, ¶4, 710 NW2d at 443 (quoting Mergen v. N. States Power Co., 2001 SD 14, ¶5, 621 NW2d 620, 622). Intervention is strictly procedural and "intervention standards are flexible, allowing for some tailoring of decisions to the facts of each case." Id. (quoting Southard v. Hansen, 342 NW2d 231, 233-34 (SD 1984)). "Rule 24 is construed liberally, and we resolve all doubts in favor of the proposed intervenors." United States v. Union Elec. Co., 64 F3d 1152, 1158 (8thCir 1995) (citing Kansas Pub. Employees Retirement Sys. v. Reimer Koger Assocs., Inc., 60 F3d 1304, 1307 (8thCir 1995)). In applying this rule, this Court utilizes the following tripartite test:

1) the party must have a recognized interest in the subject matter of the litigation; 2) that interest must be one that might be impaired by the disposition of the litigation; and 3) the interest must ...

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