Professional Documents
Culture Documents
United States Court of Appeals Tenth Circuit
United States Court of Appeals Tenth Circuit
2d 1305
Adam M. Duncan, Salt Lake City, Utah (Parker M. Nielson, Salt Lake
City, Utah, with him on the brief), for appellants.
John S. Boyden, Salt Lake City, Utah (Stephen G. Boyden, Salt Lake
City, Utah, with him on the brief), for Ute Indian Tribe of the Uintah and
Ouray Reservation.
David Sam, Duchesne, Utah (James J. Smedley, Heber City, Utah, with
him on the brief), for Oranna B. Moosman, Administratrix of the Estate of
Elizabeth C. Bumgarner Poowegup, deceased.
Before FAHY, Senior Circuit Judge * , SETH and HOLLOWAY, Circuit
Judges.
SETH, Circuit Judge.
The appellants, who are sons of the decedent and brothers of the
The appellants, who are sons of the decedent and brothers of the
Administratrix, sought to intervene in the action under Rule 24 of the Federal
Rules of Civil Procedure. The trial court denied the motion to intervene, and
this appeal was taken.
Appellants assert they were entitled to intervene as a matter of right, and in the
alternative that the trial court abused its discretion under Rule 24(b) as to
permissive intervention. One of the grounds asserted by the appellants to
support their intervention as a matter of right is collusion between the plaintiff
and a defendant. It is thus necessary to describe the circumstances in some
detail.
Thereafter, some time in 1967, the Administratrix contacted her uncle, Mr.
Reginald O. Curry, who was employed as the Administrative Officer of the Ute
Tribe, about the validity of the deed she had executed. He in turn inquired of
the attorney for the Tribe's full-blood Utes, Mr. John Boyden, whether Mr.
Boyden would represent his niece in suing Mr. Probst to cancel the deed. After
examining the facts, Mr. Boyden advised Mr. Curry that he did not feel he
could represent the Bumgarner Estate because it appeared that the Tribe had a
conflicting interest. He recommended that another attorney be found, and when
asked to recommend an attorney, he suggested Mr. Parker Nielson, who, along
with Mr. Adam Duncan, was later employed.
Later Mr. Boyden as Tribal attorney commenced this suit against Mr. Probst
and the Administratrix, seeking to have the Administratrix' Deed to Mr. Probst
voided and to transfer the land to the Tribe itself. Messrs. Duncan and Nielson
who at that time represented the Estate cross-claimed and agreed that the deed
to Probst was void, but contended that the Estate and not the Tribe was entitled
to the property.
About six months later, Mr. Curry, the Ute Tribal official, was made aware that
Messrs. Duncan and Nielson had filed a suit demanding that the mineral
interests of the mixed-blood Utes be distributed by deed, and that the Affiliated
Ute Citizens of the State of Utah be considered the representative of that group.
Mr. Curry then became concerned about a possible conflict of interest between
the Bumgarner Estate and the Affiliated Ute Citizens created by the filing of
this suit. Mr. Curry then asked Mr. Boyden whether the filing of the suit by
Messrs. Nielson and Duncan on behalf of the Affiliated Ute Citizens put these
attorneys in the same position the Tribal Attorney found himself in when he
had been asked to represent the Administratrix. Mr. Boyden answered that he
thought it did. A short time later Mr. Curry asked Mr. Boyden if he would
recommend another attorney for his niece, the Administratrix. Mr. Curry
explained he felt he had a moral obligation towards his niece because she
looked to him for advice.
Later Mr. Boyden in a telephone conversation with Mr. Curry stated that
several papers had been filed with him, and wondered if Messrs. Duncan and
Nielson were still representing the Estate. Mr. Curry then got in touch with his
niece, the Administratrix, and recommended that she change attorneys. He
suggested Mr. David Sam. The Administratrix asked that he get in touch with
Mr. Sam, and he then requested Mr. David Sam to represent her and she in turn
discharged both Mr. Duncan and Mr. Nielson as attorneys for the Estate. Soon
thereafter, appellants, represented by Mr. Duncan and Mr. Nielson, filed a
motion to intervene. The trial judge denied the motion, but granted appellants
leave to participate as amicus curiae. Appellants notified the court they were
unable to so participate, and filed their objection to the court's denial of their
motion for leave to intervene.
Appellants first contend that they are entitled as a matter of right to intervene
pursuant to Rule 24(a) (2) of the Federal Rules of Civil Procedure, as amended
in 1966.1 Further they contend that if they are not entitled to intervene as a
matter of right, at least the trial court abused his discretion in not permitting
them to intervene pursuant to Rule 24(b) (2).
10
We hold that the appellants have not shown they were entitled to intervene as a
matter of right, nor did the trial court abuse its discretion as to permissive
intervention.
11
Camp, 128 U.S.App.D.C. 172, 385 F.2d 694 (1967); Edmondson v. State of
Nebraska, 383 F.2d 123 (8th Cir. 1967); Kheel v. American Steamship Owners
Mutual Protection & Indemnity Ass'n, 45 F.R.D. 281 (S.D.N.Y.1968); Hobson
v. Hansen, 44 F.R.D. 18 (D.C.1968). See also Moore, Federal Practice
24.08[2].
12
Collusion between the party purporting to represent the position of others and
those on the other side of the suit will necessarily destroy the adequacy of
representation as contemplated by the Rule. Klein v. Nu-Way Shoe Co., 136
F.2d 986 (2d Cir.); Twentieth Century-Fox Film Corp. v. Jenkins, D.C., 7
F.R.D. 197; Farmland Irrigation Co. v. Dopplmaier, 220 F.2d 247 (9th Cir.). As
stated in Stadin v. Union Electric Co., 309 F.2d 912 (8th Cir. 1962):
13
"* * * Two leading commentators on federal practice have said that inadequacy
of representation is or may be shown by proof of collusion between the
representative and an opposing party, by the representative having or
representing an interest adverse to the intervener, or by the failure of the
representative in the fulfillment of his duty. 4 Moore's Federal Practice 24.08,
pp. 38-39; 2 Barron & Holtzoff, Federal Practice and Procedure (Wright
Revision), 597, pp. 381-82. * * *"
14
former attorneys relieved. This is clearly not a sufficient showing to render the
representation inadequate under Rule 24. As mentioned above there is no
question raised as to the competency of the attorney for the Estate.
15
As to appellants' alternative contention that the trial court abused its discretion
in denying them leave to intervene, it should be observed that permissive
intervention under Rule 24(b) is clearly discretionary with the trial court. The
ruling of the trial court will not be reversed unless there is a showing of clear
abuse of that discretion. See Degge v. City of Boulder, Colorado, 336 F.2d 220
(10th Cir. 1964); Goodpaster v. Oklahoma Gas & Electric Co., 291 F.2d 276
(10th Cir. 1961); Edmondson v. State of Nebraska, supra; Stadin v. Union
Electric Co., supra.
16
17
Affirmed.
Notes:
*
Of the United States Court of Appeals for the District of Columbia Circuit,
sitting by designation
18
19
Notes:
*
In appellees' brief it is said that one of the brothers, Craig Walker Bumgarner,
has ceased to be represented by counsel who have pressed the appeal in the
name of both brothers. Even if only one remains as seeking intervention the
relevant factors remain unchanged