Hickey Living Trust ( 2022 )

#29677-r-SRJ
2022 S.D. 53IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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IN THE MATTER OF THE
SHIRLEY A. HICKEY LIVING TRUST.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE JON SOGN
Judge
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JOHN K. NOONEY
ROBERT J. GALBRAITH
JARED D. NOONEY of
Nooney & Solay LLP
Rapid City, South Dakota Attorneys for appellants
Kristina Lippert and Darren
Hickey.
JACK H. HIEB of
Richardson, Wyly, Wise
Sauck & Hieb, LLP
Aberdeen, South Dakota Attorneys for appellees Warren
Hickey, Jeannine Hickey-Reuer,
and Annette Jarrell.
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CONSIDERED ON BRIEFS
MARCH 21, 2022
OPINION FILED 08/24/22
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LEE SCHOENBECK of
Schoenbeck & Erickson, P.C.
Watertown, South Dakota Attorneys for appellees Warren
Hickey and Jeannine Hickey-
Reuer.
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JENSEN, Chief Justice
[¶1.] Bradley Hickey filed a petition challenging the validity of an
amendment to the Shirley A. Hickey Trust (Trust). Nearly a year later, Kristina
Lippert and Darren Hickey filed a motion to intervene in the petition. The circuit
court denied the motion to intervene, finding that the motion was untimely under
SDCL 15-6-24(a) because Kristina and Darren had failed to timely challenge the
validity of the Trust as required by SDCL 55-4-57(a). Kristina and Darren filed a
motion for clarification and reconsideration, requesting the court to reconsider the
denial of the motion to intervene and to clarify their ability to participate in
discovery and at trial. The circuit court denied the motion for reconsideration and
determined Kristina and Darren could not participate in the trial through the
presentation of evidence and the examination of witnesses. Kristina and Darren
appeal the denial of their motion to intervene and the denial of their motion for
clarification and reconsideration. We reverse, vacate a portion of the order denying
the motion for clarification and reconsideration, and remand for further
proceedings.
Facts and Procedural History
[¶2.] Shirley and Clifford Hickey were married in 1956. They had eight
children: Jeannine Hickey-Reuer, Vance Hickey, Bradley, Michelle Hoesing,
Terence Hickey, Warren Hickey, Darren, and Kristina. Shirley and Clifford owned
and operated several successful businesses and accumulated significant assets
during their lifetimes. Clifford died in 2007. Shirley established the Trust on
March 22, 2010, and transferred substantially all of her assets into the Trust. The
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Trust provided that upon Shirley’s death, each of her eight children would receive
an equal share in the Trust. Shirley amended the Trust several times before her
death.
[¶3.] Shirley initially amended and restated the Trust (First Amended
Trust) in September 2016. The First Amended Trust distributed some real property
to a separate trust and provided that upon Shirley’s death, the Trust corpus would
be divided equally among her eight children. The First Amended Trust named
Shirley and Kristina as co-trustees. In 2017, Kristina petitioned to place Shirley
under a guardianship and conservatorship and requested to be appointed as
Shirley’s guardian and conservator. 1 Bradley, Vance, Michelle, Terence, and
Darren also supported the petition. A circuit court judge ultimately denied
Kristina’s petition.
[¶4.] Shirley’s relationship with the children who had supported the
guardianship became strained. In January 2018, Shirley removed Kristina as a co-
trustee of the Trust. Shirley amended and restated the First Amended Trust,
creating the Second Amended Trust in February 2018. Shirley named herself and
First National Bank as the co-trustees of the Second Amended Trust. The Second
Amended Trust directed the trustee, upon Shirley’s death, to distribute $1,000 each
to Bradley, Vance, Michelle, Terence, Darren, and Kristina, and to distribute
certain real property to a separate trust. The remainder of the trust corpus was to
1. Kristina petitioned for guardianship and conservatorship after learning that
Shirley, on behalf of the Trust, signed a promissory note in favor of Warren
for the sum of $4,000,000.
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be divided equally into one-third shares and distributed to Warren and his wife Deb
Crawford, Jeannine, and Shirley’s sister, Annette Jarrell.
[¶5.] Shirley died on September 12, 2019. Per the terms of the Second
Amended Trust, the Trust became irrevocable and First National Bank became the
sole trustee. On September 25, 2019, First National Bank sent letters to the
beneficiaries of the Second Amended Trust, including Kristina and Darren,
providing notice of the 60-day limitation period to challenge the validity of the
Second Amended Trust under SDCL 55-4-57(a).
[¶6.] On November 22, 2019, Bradley filed a petition for court supervision of
the Trust, an accounting, protection of privacy, and a declaration of invalidity,
reformation and modification of the Trust (Petition). The Petition requested the
court to invalidate the Second Amended Trust, alleging undue influence by Warren.
Alternatively, the Petition alleged claims of mistake of fact and undue influence and
requested the court to reform or modify the Second Amended Trust to distribute the
Trust pursuant to the First Amended Trust to properly reflect Shirley’s lifelong
intent to equally divide her estate between all eight children. None of the other
siblings filed a petition challenging the validity of the Second Amended Trust.
[¶7.] The court granted the request for court supervision of the Second
Amended Trust pursuant to SDCL 21-22-9. On June 18, 2020, the court entered a
scheduling order for the litigation involving the Petition. On October 12, 2020,
Kristina and Darren filed a motion to intervene (Motion) in the Petition. The
Motion asserted that Kristina and Darren were entitled to intervene as a matter of
right pursuant to SDCL 15-6-24(a)(2). They argued that as beneficiaries of the
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Second Amended Trust they had an interest in the litigation because the Petition
sought to invalidate or reform the Trust to equally divide the Trust assets between
Shirley’s eight children. The Motion further alleged that Bradley was not
adequately protecting Kristina’s and Darren’s interests in the litigation because
they believed Warren, alone or with one or more of the other residuary
beneficiaries, was attempting to settle the Petition to the exclusion of Kristina and
Darren. Kristina and Darren also claimed that Bradley had refused to enter into an
agreement to divide any monies received from litigation evenly among the
beneficiaries who were to receive $1,000 under the Second Amended Trust and that
there was other adverse, pending litigation between the siblings.
[¶8.] Warren, Jeannine, and Annette opposed the Motion, arguing that it
was untimely under SDCL 15-6-24(a)(2). 2 Warren, Jeannine, and Annette argued
that under SDCL 55-4-57(a), Kristina and Darren had 60 days after First National
Bank provided notice to challenge the Second Amended Trust, and because the
Motion was filed outside the 60-day period, they were prohibited from intervening.
In response, Kristina and Darren asserted that they timely intervened as interested
parties under SDCL 15-6-24(a)(2) once they learned that Bradley was no longer
protecting their interests and also asserted that Warren, Jeannine, and Annette
had failed to identify any prejudice arising from intervention.
[¶9.] Kristina and Darren served discovery requests on Warren on
November 13, 2020. The discovery requests sought financial and tax information
2. Neither Bradley nor First National Bank took a position on the Motion and
neither have taken a position in this appeal.
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from Warren from 1988 to 2010. Warren filed a motion for a protective order to
prohibit the discovery requests. Kristina and Darren also filed a motion to amend
the scheduling order seeking to extend the discovery deadline, which Warren,
Jeannine, and Annette opposed.
[¶10.] On April 15, 2021, the court denied the Motion. The court concluded
that Kristina and Darren satisfied the tripartite test from Berbos v. Berbos, 2018
S.D. 82, ¶ 7, 921 N.W.2d 475, 477, but determined the Motion was untimely under
SDCL 55-4-57(a) because it was not filed within 60 days after First National Bank
provided notice to the beneficiaries of the repose period to challenge the validity of
the Second Amended Trust. The court also entered a protective order prohibiting
the discovery sought by Kristina and Darren and entered an order determining that
Kristina and Darren’s motion to modify the scheduling order was moot.
[¶11.] On April 27, 2021, Kristina and Darren filed a motion for clarification
and reconsideration of the circuit court’s orders denying the Motion, granting the
protective order, and denying the motion to amend the scheduling order. Kristina
and Darren also sought clarification as to whether they would be allowed to present
evidence or examine witnesses at the trial.
[¶12.] The circuit court denied the motion for clarification and
reconsideration on June 2, 2021. The order specified that Kristina and Darren
would not be allowed to present evidence or examine witnesses at the time of trial.
The court also denied the portion of the motion requesting reconsideration of the
protective order and the order denying the request to amend the scheduling order.
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[¶13.] Kristina and Darren appeal, arguing that the circuit court erred in
denying the Motion as untimely and in denying their motion for clarification and
reconsideration.
Analysis
[¶14.] “We review a circuit court’s denial of a motion to intervene for an
abuse of discretion.” Berbos, 2018 S.D. 82, ¶ 5, 921 N.W.2d at 477. “An abuse of
discretion refers to a discretion exercised to an end or purpose not justified by, and
clearly against reason and evidence.” Id. (quoting O’Day v. Nanton, 2017 S.D. 90,
¶ 17, 905 N.W.2d 568, 572). “[S]tatutory interpretation and application are
questions of law, and are reviewed by this Court under the de novo standard of
review.” In re Est. of Flaws, 2016 S.D. 61, ¶ 12, 885 N.W.2d 580, 583 (citation
omitted).
I. Appellate Jurisdiction
[¶15.] Warren, Jeannine, and Annette acknowledge that this Court has
jurisdiction under SDCL 15-26A-3(2) to consider the appeal from the circuit court’s
order denying the Motion. See Southard v. Hansen, 342 N.W.2d 231, 233 (S.D.
1984) (holding that an appeal could be taken from an order denying intervention).
However, they argue the Court lacks jurisdiction to consider Kristina and Darren’s
appeal of the order denying the motion for clarification and reconsideration. To
support their argument, Warren, Jeannine, and Annette cite People ex rel.
S.M.D.N., 2004 S.D. 5, ¶ 7, 674 N.W.2d 516, 517, in which we held that “an order
dismissing a motion to reconsider entered by the circuit court does not create a new
avenue for appeal.” “A motion for reconsideration is not a separate and appealable
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order. Rather, it is ‘an invitation to the court to consider exercising its inherent
power to vacate or modify its own judgment.’” Id. (quoting Breeden v. Neb.
Methodist Hosp., 598 N.W.2d 441, 444 (Neb. 1999)).
[¶16.] In S.M.D.N., we determined this Court lacked jurisdiction to consider
an appeal of an order denying a motion to reconsider because the underlying order
being challenged had previously been summarily affirmed by this Court and the
statutory right to appeal the order had long since passed. 2004 S.D. 5, ¶ 7, 674
N.W.2d at 517. S.M.D.N. properly recognized that a motion to reconsider could not
revive the appeal period for the underlying order. Here, however, the notice of
entry of the circuit court’s order denying the Motion was not served on Kristina and
Darren until May 12, 2021. Kristina and Darren timely appealed this order by
filing their notice of appeal on June 8, 2021, less than 30 days after the written
notice of entry of the order. See SDCL 15-26A-6 (“An appeal from a judgment or
order must be taken within thirty days after the judgment or order shall be signed,
attested, filed and written notice of entry thereof shall have been given to the
adverse party.”).
[¶17.] Because the appeal of the order denying the Motion is timely, this
Court also has appellate jurisdiction to consider any error in the order denying the
motion for clarification and reconsideration to the extent it implicates our appellate
jurisdiction under SDCL 15-26A-3(2), relating to the order denying the Motion. See
Southard, 342 N.W.2d at 233. In particular, this Court may exercise appellate
jurisdiction under SDCL 15-26A-3(2) over the portion of the clarification order
denying Kristina and Darren the ability to participate at trial, as that order is a
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direct extension of the earlier order denying intervention that was timely appealed
by Kristina and Darren. 3
II. Whether the circuit court abused its discretion in
denying Kristina and Darren’s Motion as untimely.
[¶18.] “South Dakota’s court rule SDCL 15-6-24(a)(2) is almost identical to
Federal Rule of Civil Procedure 24(a) . . . [and] governs intervention as a matter of
right[.]” Berbos, 2018 S.D. 82, ¶ 6, 921 N.W.2d at 477 (quoting In re Est. of Olson,
2008 S.D. 126, ¶ 5, 759 N.W.2d 315, 318). SDCL 15-6-24(a) provides:
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.
(Emphasis added.) This Court construes SDCL 15-6-24(a)(2) liberally and
“resolve[s] all doubts in favor of the proposed intervenors.” Berbos, 2018 S.D. 82,
¶ 7, 921 N.W.2d at 477 (citation omitted).
3. Though, as we have stated, an order denying a motion for reconsideration
generally does not provide an independent basis for appellate jurisdiction, the
circuit court’s order did not simply deny reconsideration. The court’s order
clarified the order denying intervention by prohibiting participation at trial
by counsel for Kristina and Darren. Whether this aspect of the order would
be appealable in its own right is an unsettled question that we need not
resolve here, given our view that the court’s decision restricting Kristina and
Darren’s participation is reviewable as part of the court’s decision denying
their intervention.
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[¶19.] When applying intervention as a matter of right under SDCL 15-6-
24(a), we utilize a 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 not be adequately protected by the existing
parties.
Id. (citation omitted). Additionally, the language of the rule requires that “[a]n
application to intervene must be timely made. Whether such requirement is
satisfied is committed to the sound discretion of the trial court.” Weimer v.
Ypparila, 504 N.W.2d 333, 334 (S.D. 1993) (citation omitted).
[¶20.] The circuit court found that Kristina and Darren met the tripartite
test applied to SDCL 15-6-24(a)(2) for intervention as a matter of right, and neither
party has challenged that determination on appeal. Therefore, the only question
before this Court is whether Kristina and Darren timely applied for intervention
under SDCL 15-6-24(a)(2).
[¶21.] Kristina and Darren argue that the circuit court erred in denying their
Motion as untimely under SDCL 15-6-24(a)(2) because they filed their Motion as
soon as they learned that Bradley was no longer protecting their interests. They
cite our decision in Weimer where we explained that the timeliness for a motion to
intervene “does not turn on when [the party] first became aware of the action, but
rather on how quickly it acted once it learned that its interests were not protected
by the existing parties.” 504 N.W.2d at 335 (citation omitted). Warren, Jeannine,
and Annette respond that the circuit court properly denied the Motion as untimely
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because Kristina and Darren could not challenge the Second Amended Trust after
the repose period expired under SDCL 55-4-57(a).
[¶22.] SDCL 55-4-57(a) provides in relevant part:
A judicial proceeding to contest whether a revocable trust or any
amendment thereto, or an irrevocable trust was validly created
may not be commenced later than the first to occur of:
(1) One year after the settlor’s death; [or]
(2) Sixty days after the trustee . . . sent the person who is
contesting the trust a copy of the trust instrument and a
notice informing the person of the trust’s existence, of the
trustee’s name and address, and of the time allowed for
commencing a proceeding[.]
SDCL 55-4-57(a) is a statute of repose. Matter of Elizabeth A. Briggs Revocable
Living Tr., 2017 S.D. 40, ¶ 9, 898 N.W.2d 465, 469. “SDCL 55-4-57(a)(1) bars claims
contesting the validity of revocable and irrevocable trusts one year after the settlor’s
death, regardless of when the injury arose or when the person received notice.” In re
Wintersteen Revocable Tr. Agreement, 2018 S.D. 12, ¶ 27, 907 N.W.2d 785, 793
(quoting Briggs, 2017 S.D. 40, ¶ 9 n.5, 898 N.W.2d at 469 n.5). “[W]ith the
expiration of the period of repose, the putative cause of action evanesces; life cannot
thereafter be breathed back into it.” Wintersteen, 2018 S.D. 12, ¶ 27, 907 N.W.2d at
793–94 (alteration in original) (citation omitted). “[E]quitable tolling [may not be]
invoked to alleviate a claimant from a loss of his right to proceed with a claim.”
Briggs, 2017 S.D. 40, ¶ 12, 898 N.W.2d at 470 (second alteration in original); see
also Pitt-Hart v. Sanford USD Med. Ctr., 2016 S.D. 33, ¶ 20, 878 N.W.2d 406, 413
(explaining that a statute of repose can “not be tolled for any reason” (citation
omitted)). “[T]he purpose of SDCL 55-4-57(a) is to facilitate the expeditious
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administration of trusts by limiting the time period to commence a trust contest.”
Briggs, 2017 S.D. 40, ¶ 13, 898 N.W.2d at 470.
[¶23.] To the extent that Kristina and Darren sought to intervene to assert
an independent claim challenging the validity of the Second Amended Trust, that
effort was untimely and barred by SDCL 55-4-57(a). 4 First National Bank provided
notice to the beneficiaries of the Second Amended Trust on September 25, 2019,
commencing a 60-day repose period under SDCL 55-4-57(a)(2). Kristina and
Darren did not challenge the validity of the Second Amended Trust within 60 days
after they received notice.
[¶24.] However, the circuit court did not consider whether, under the
timeliness standards applicable to requests under SDCL 15-6-24(a)(2), Kristina and
Darren were precluded from intervening to join in the Petition filed by Bradley. We
have emphasized that intervention “is strictly procedural.” Southard, 342 N.W.2d
4. In Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d
95, 102 (2d Cir. 2013), the lead plaintiff, a state retirement system, filed a
class action for claims arising from the purchase of securities from the
defendant. The claims arose from the similar securities purchased by other,
unrelated governmental retirement systems (putative class members), who
were not named parties. Id. at 102–03. The lower court dismissed certain
claims on behalf of the putative class members, determining the lead plaintiff
lacked standing. Id. at 103. Following the dismissal of the claims and the
expiration of the statute of repose under federal law, the putative class
members sought to intervene in the action to revive their claims. Id. at 104.
The court denied intervention, determining that the claims could not be
equitably tolled or relate back to the time of the filing of the class action
under the repose statute and holding that “absent circumstances that would
render the newly asserted claims independently timely,” intervention is not
permissible “in order to revive claims that were dismissed from the class
action complaint for want of jurisdiction.” Id. at 111–12. We conclude the
same rule applies under the repose statute in SDCL 55-4-57(a) to any
independent claim by Kristina and Darren to challenge the Trust.
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at 234 (citation omitted). Intervention “creat[es] an opportunity to persons directly
interested in the subject matter to join in an action or proceeding already
instituted.” Berbos, 2018 S.D. 82, ¶ 7, 921 N.W.2d at 477 (emphasis added) (citation
omitted). Under our procedural intervention rule, “[a]n intervenor’s presence in the
action does not necessarily ‘clothe it with the status of an original party.’” 5 Citibank
(S.D.), N.A. v. State, 1999 S.D. 124, ¶ 11, 599 N.W.2d 402, 405 (quoting Harris v.
Amoco Prod. Co., 768 F.2d 669, 675 (5th Cir. 1985)). Nevertheless, intervention
allows their “voice . . . to be heard” by the court. Id. (citation omitted).
[¶25.] In denying the Motion as untimely, the circuit court relied on
Wintersteen, but Wintersteen did not address the question of whether a beneficiary
with a recognized interest in a properly filed challenge to a trust may intervene in
the proceeding after the repose period has run. Rather, in Wintersteen, this Court
concluded that a widow could not amend her original petition for court supervision
of her deceased husband’s trust to include a belated challenge to the validity of the
trust that was otherwise barred by SDCL 55-4-57(a). 2018 S.D. 12, ¶ 27, 907
N.W.2d at 793.
5. It is unclear whether intervention would provide Kristina and Darren with
any different status in the litigation involving the Petition than they already
have as beneficiaries under SDCL 21-22-13 “as to any matter relevant to the
administration of the trust[.]” See also Matter of Russell I. Carver Revocable
Tr., 2020 S.D. 31, ¶ 32, 944 N.W.2d 808, 816 (noting that under provisions in
SDCL chapter 21-22, interested parties must be given notice of the
proceedings and an opportunity to object and be heard). The parties have not
addressed Kristina and Darren’s participation under SDCL 21-22-13.
Therefore, in this appeal we consider only the issues involving their Motion
under SDCL 15-6-24(a)(2).
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[¶26.] Unlike Wintersteen, Bradley’s Petition challenging the validity of the
Second Amended Trust was commenced before the statute of repose in SDCL 55-4-
57(a) had expired. Kristina and Darren have a recognized interest in the Petition
that was timely instituted, as the remedies sought by the Petition directly impact
them. Therefore, the circuit court erred by denying the Motion as untimely under
SDCL 55-4-57(a).
[¶27.] The circuit court also erred in denying the portion of Kristina and
Darren’s motion for clarification and reconsideration seeking to participate in the
trial. The court had already entered an order for court supervision of the Trust.
See SDCL 21-22-9 (allowing trustors, fiduciaries, and beneficiaries to request the
court to exercise supervision of the trust). SDCL 21-22-13 treats beneficiaries of a
trust as interested parties after an order for court supervision is entered. Under the
trust statutes, Kristina and Darren, as beneficiaries, are interested parties in “any
matter relevant to the administration of the trust[.]” SDCL 21-22-13. By denying
the request from Kristina and Darren to participate in the trial proceedings, the
circuit court improperly placed Kristina and Darren at a disadvantage relative to
the other beneficiaries who did not seek intervention.
[¶28.] Warren, Jeannine, and Annette nevertheless argue that intervention
would allow Kristina and Darren to step into Bradley’s shoes and litigate their
time-barred claims, undermining the purpose of SDCL 55-4-57(a). However, this
misapprehends the procedural nature of SDCL 15-6-24(a)(2). Southard, 342
N.W.2d at 233–34. An order granting intervention does not create additional
substantive claims for the intervening party, but rather permits a party to join an
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existing action in which the intervenor has an interest. Berbos, 2018 S.D. 82, ¶ 7,
921 N.W.2d at 477; see also IndyMac MBS, Inc., 721 F.3d at 109 (explaining that
the expiration of a statute of repose extinguishes the intervenors’ right to revive
independent claims and that the proposed intervenors do not have any other
recognized interest in the pending litigation).
[¶29.] There is no dispute that Kristina and Darren have a recognized
interest in Bradley’s Petition and have satisfied the tripartite test for mandatory
intervention applicable to requests under SDCL 15-6-24(a). Therefore, the question
of timeliness must be considered in the context of SDCL 15-6-24(a). The timeliness
of the Motion under SDCL 15-6-24(a) turns on “how quickly [Kristina and Darren]
acted once [they] learned that [their] interests were not protected by [Bradley].”
Weimer, 504 N.W.2d at 335 (citation omitted). “[T]he most important factor is
whether the delay in moving for intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.” Larson v. All-American
Transport, Inc., 83 S.D. 622, 164 N.W.2d 603, 606 (1969). “[I]ntervention standards
are flexible, allowing for some tailoring of decisions to the facts of each case.”
Berbos, 2018 S.D. 82, ¶ 7, 921 N.W.2d at 477 (citation omitted). Because the circuit
court failed to consider the timeliness of the Motion applying the intervention
standards under SDCL 15-6-24(a), we reverse the court’s order denying
intervention.
[¶30.] Warren, Jeannine, and Annette argue that allowing Kristina and
Darren to intervene in the Petition would be prejudicial and cause undue delay,
where there had already been months of time-consuming and expensive discovery.
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The circuit court seems to have alleviated some of these concerns by entering a
protective order and denying the request to modify the scheduling order. However,
it is not apparent from the record that the circuit court considered whether the
other beneficiaries would be prejudiced if Kristina and Darren intervened. While
the court has discretion to determine timeliness of an application for intervention,
“[t]he most important factor” for the court to consider in making this determination
“is whether the delay in moving for intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.” Larson, 164 N.W.2d at 606; see
Weimer, 504 N.W.2d at 336 (granting intervention because a party would not have
suffered any prejudice from allowing a party to intervene). On remand, the court
may consider any further prejudice concerns, and if the court grants intervention, it
may appropriately “tailor” the intervention order to facilitate the expeditious
administration of the Trust and address any alleged prejudice. See In re Adoption
of D.M., 2006 S.D. 15, ¶ 4, 710 N.W.2d 441, 443 (“We have emphasized . . . ‘that
intervention standards are flexible, allowing for some tailoring of decisions to the
facts of each case.’” (citation omitted)).
Conclusion
[¶31.] We reverse the order denying intervention and remand for the circuit
court to consider the timeliness of Kristina and Darren’s request to intervene under
the standards set forth in SDCL 15-6-24(a)(2). We also vacate the portion of the
circuit court’s order on the motion for clarification and reconsideration, denying the
request by Kristina and Darren to participate at the trial, and direct the court to
reconsider this order after reconsidering their request for intervention.
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[¶32.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.
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