Houston General Ins v. Beaumont Townhomes , 193 F.3d 838 ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HOUSTON GENERAL INSURANCE
COMPANY,
Plaintiff-Appellee,
v.
CLIFFORD MOORE, SR., d/b/a Pro-
Tech Termite & Pest Control;
ESTATE OF CLIFFORD MOORE, SR.; No. 97-1967
CLIFFORD THOMAS MOORE, JR.,
Defendants,
v.
BEAUMONT TOWNHOMES, LIMITED
PARTNERSHIP,
Movant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
William B. Traxler, Jr., District Judge.
(CA-96-3757-2-21)
Argued: March 5, 1998
Decided: October 19, 1999
Before WILKINSON, Chief Judge, and WIDENER
and NIEMEYER, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Chief Judge Wilkinson and Judge Niemeyer concurred.
_________________________________________________________________
COUNSEL
ARGUED: H. Brewton Hagood, ROSEN, ROSEN & HAGOOD,
P.A., Charleston, South Carolina, for Appellant. Stephen Lynwood
Brown, YOUNG, CLEMENT, RIVERS & TISDALE, L.L.P.,
Charleston, South Carolina, for Appellee. ON BRIEF: Daniel F.
Blanchard, III, ROSEN, ROSEN & HAGOOD, P.A., Charleston,
South Carolina, for Appellant. Stephen P. Groves, Sr., Edward D.
Buckley, Jr., Duke R. Highfield, YOUNG, CLEMENT, RIVERS &
TISDALE, L.L.P., Charleston, South Carolina, for Appellee.
_________________________________________________________________
OPINION
WIDENER, Circuit Judge:
Pursuant to Fed. R. Civ. P. 24(a)(2),1 Beaumont Townhomes, Lim-
ited Partnership (Beaumont) moved to intervene as of right in a
declaratory judgment action brought in district court by Houston Gen-
eral Insurance Company (Houston General) against Pro-Tech Termite
& Pest Control Company (Pro-Tech), the Estate of Clifford Moore,
Sr., and Clifford Thomas Moore, Jr. Beaumont also sought to set
aside the underlying default judgment pursuant to Fed. R. Civ. Proc.
60(b). The district court denied Beaumont's motion to intervene, thus
rendering the motion to vacate the underlying judgment moot. Denial
of these motions is the sole issue on appeal, and we affirm.
I.
On August 10, 1993, Houston General issued a commercial liabil-
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1 Fed. R. Civ. P. 24(a) provides in pertinent part:
(a) Intervention of Right. 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 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.
2
ity insurance policy to Pro-Tech, a defendant in the underlying action.
The policy was effective for 12 months. On August 10, 1994, the pol-
icy was renewed with identical coverage, but the renewed policy
changed the named insured from Pro-Tech to "Pro-Tech Termite and
Pest Control/Clifford Moore, Sr. d/b/a/." Moore Sr. passed away in
January 1995, and the policy lapsed for nonpayment of premiums.
Moore Jr. then assumed control of Pro-Tech and continued to oper-
ate the business under his father's name. Moore Jr. renewed the pol-
icy on March 11, 1995, but kept the named insured the same as in the
August 1994 policy. While operating Pro-Tech under his father's
name, Moore Jr. issued numerous termite letters to customers indicat-
ing that he had rid their property of pests, specifically termites. As a
result of these termite letters, Houston General received several
claims against Pro-Tech and Moore Jr., including Beaumont's claim.
During the investigation of these claims, Houston General discovered
that Moore Jr. had been operating Pro-Tech under his deceased
father's name. Moore Jr. had not provided this information to Hous-
ton General. Thus, Houston General advised Moore Jr. that it would
assert various defenses against the customers' claims. Houston Gen-
eral also filed a declaratory judgment action in federal district court,
seeking a declaration that it would not be liable for the customers'
claims. The defendants named in the suit were Pro-Tech, Moore Sr.'s
estate, and Moore Jr. After none of the defendants answered the com-
plaint, the district court entered a default judgment in favor of Hous-
ton General on February 12, 1997. Although not legally significant to
this decision, we take note of the fact that Houston General did not
make Beaumont a party to the declaratory judgment action even
though it was aware of Beaumont's claims against the defendants.
II.
Applicants to intervene as of right must meet all four of the follow-
ing requirements: (1) the application to intervene must be timely; (2)
the applicant must have an interest in the subject matter of the under-
lying action; (3) the denial of the motion to intervene would impair
or impede the applicant's ability to protect its interest; and (4) the
applicant's interest is not adequately represented by the existing par-
ties to the litigation. Fed. R. Civ. Proc. 24(a); Newport News Ship-
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building & Drydock Co. v. Peninsula Shipbuilders' Ass'n, 646 F.2d
117, 120 (4th Cir. 1981).
As timeliness is a "cardinal consideration" of whether to permit
intervention, we first consider the timeliness of Beaumont's motion
to intervene. Brink v. DaLesio, 667 F.2d 420, 428 (4th Cir. 1981). The
determination of timeliness is committed to the discretion of the dis-
trict court and will not be disturbed on appeal except for an abuse of
that discretion. NAACP v. New York, 413 U.S. 345, 365-66 (1973);
Gould v. Alleco, Inc., 883 F.2d 281, 284-86 (4th Cir. 1989), cert.
denied, 493 U.S. 1058 (1990).
Beaumont filed its motion to intervene on April 17, 1997, more
than two months after the district court entered the Final Order of
Judgment for plaintiffs on February 16, 1997. Pursuant to 28 U.S.C.
§ 1291 and Fed. R. App. P. 4, the time for appeal had expired by this
date.2 Although entry of final judgment is not an absolute bar to filing
a motion to intervene, the authorities note that:"There is considerable
reluctance on the part of the courts to allow intervention after the
action has gone to judgment and a strong showing will be required of
the applicant." 7C Wright, Miller & Kane, Federal Practice and Pro-
cedure: Civil 2d § 1916, at 444-45 (West 1986) (footnotes omitted).
Moreover, it is well-settled law that "intervention presupposes pen-
dency of an action in a court of competent jurisdiction." Black v. Cen-
tral Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974); see also
Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965) (stating that interven-
tion is ancillary to the underlying cause of action and "will not be per-
mitted to breathe life into a `nonexistent' lawsuit"); Kendrick v.
Kendrick, 16 F.2d 744, 745 (5th Cir. 1926) (explaining that an exist-
ing lawsuit within the court's jurisdiction is a prerequisite of interven-
tion), cert. denied, 273 U.S. 758 (1927); 7C Wright, Miller & Kane
§ 1916, at 457-58. In the present case, the time for appeal expired 30
days after the order of final judgment was entered on February 16,
1997. When Beaumont filed its motion to intervene more than 60
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2 Pursuant to 28 U.S.C. § 1291, the courts of appeals have jurisdiction
over appeals from final orders of district courts. Appeals in civil cases
must be filed within 30 days after the district court's entry of an order
of final judgment. Fed. R. Civ. Proc. 4(a)(1).
4
days after the entry of final judgment, there was no pending litigation
in which Beaumont could intervene. Therefore, the motion was
untimely under this circuit's decision in Black . 500 F.2d at 408 (hold-
ing that intervention is untimely when the time for appeal has run).
Because we conclude that Beaumont failed to make a timely applica-
tion to intervene, we need not address whether it meets the other
requirements of Rule 24(a)(2).
III.
Based on our review of the record, we are of opinion that Beau-
mont's motion to intervene was untimely. Therefore, the district court
did not abuse its discretion in denying Beaumont's motions to inter-
vene and to set aside a final judgment. Accordingly, the judgment of
the district court is
AFFIRMED.
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