United States Court of Appeals Tenth Circuit

417 F.
2d 1305
Samuel Reginald BUMGARNER and Craig Walker

Bumgarner, Appellants,
v.
UTE INDIAN TRIBE OF the UINTAH AND OURAY
RESERVATION, and Parley Probst, and Oranna B. Moosman,
Administratrix of the Estate of Elizabeth C. Bumgarner
Poowegup, deceased, Appellees.
No. 184-68.
United States Court of Appeals Tenth Circuit.

November 7, 1969.
Rehearing Denied January 2, 1970.
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.
This action was commenced by the Ute Tribe to have a deed of an

Administratrix to the defendant, Parley Probst, declared void, and to have the
title to the land covered by the deed vested in the Tribe. The defendantAdministratrix answered and crossclaimed asserting also that the deed was
invalid, but that the title should vest in the estate.
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.
Appellants are the younger brothers of Oranna Bumgarner Moosman, who is

the Administratrix of the Estate of their mother, Elizabeth C. Bumgarner
Poowegup, deceased. In October 1959, Elizabeth C. Bumgarner, a Ute Indian,
agreed to purchase, with money provided by defendant, Mr. Parley Probst, a
non-Indian, a tract of land which was being distributed under the Ute
Termination Act of 1954 (25 U.S.C. 677-677aa). Mrs. Bumgarner died
before the transaction was completed, and Mr. Probst submitted a creditor's
claim to the Probate Court on March 23, 1964. During the course of the
administration of the Estate the Administratrix of the Estate executed and
delivered to Mr. Probst an Administratrix' Deed purporting to convey the tract
of land which was the subject of the agreement between her mother and Mr.
Probst in 1959.
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
As to intervention as a matter of right, Rule 24(a) provides that appellants here

are not entitled to so intervene if their interest is adequately represented by
existing parties. The issue has been considered by the courts on several
occasions since the provisions of the Rule were restated in 1966. See Nuesse v.
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
It is apparent from an examination of the record that the interests of the

appellants in the litigation are identical to those of their sister, the
Administratrix, and of the Estate. They are all children of the decedent and take
equally from the Estate. Appellants do not question the competency of the
substituted attorney for the Estate nor do they challenge what they term the "* *
* undeniable right of a litigant to discharge his counsel at any time and with or
without cause, * * *." Appellants apparently would have handled the defense of
the case differently than did the Administratrix. This however is not sufficient
to challenge the adequacy of representation. Stadin v. Union Electric Co.,
supra. Appellants urge however that Mr. Boyden, the Tribal attorney,
influenced Mr. Curry, the uncle of the Administratrix, to recommend that new
attorneys be employed to represent the Estate, and that Messrs. Duncan and
Nielson be replaced. The record shows that Mr. Curry did become concerned
about the continued representation of the Estate by appellants' attorneys. Also it
is clear that the attorney for the Tribe thought there was a conflict resulting
from other suits filed by these attorneys. The Tribal attorney was asked to
recommend a replacement and he did so but this attorney was not hired by the
Estate. Mr. Curry did then recommend an attorney to the Administratrix and did
contact him for her. This person was ultimately employed to represent the
Estate. This is the extent of the showing on the matter of collusion. It relates
only to the manner in which the attorney for the Estate was engaged and the
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
We find no abuse of discretion. The Administratrix was in the same position

personally as were her brothers who sought to intervene. She also had the duty
imposed by her position as Administratrix. The pleadings and position she took
therein were those recommended by the attorneys who thereafter became
attorneys for the appellants. Under these circumstances, nothing could be
hoped to be gained by the addition of more parties and their counsel to
represent that same interest. There was clearly no abuse of discretion by the
trial court in denying appellants leave to intervene.
17
Affirmed.
Notes:
*
Of the United States Court of Appeals for the District of Columbia Circuit,
sitting by designation
"(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 he is so
situated that 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."
18
FAHY, Senior Circuit Judge (concurring specially):
19
Appellants Samuel Reginald Bumgarner and Craig Walker Bumgarner * are

heirs of the deceased, Elizabeth C. Bumgarner, and brothers of the
Administratrix of the Estate. The litigation in which appellants claim they

should have been permitted to intervene resulted in a recovery by the Estate of
the land which their sister, in her representative capacity as Administratrix, had
erroneously conveyed to Probst. It appears that Probst was required to reconvey
the property to the Estate but was awarded a money judgment on his
counterclaim against the Estate. This judgment exceeded $35,000, which
appellants represent in their brief "may well be all, or more than, the property is
worth." Appellants urge in this court that they were in a better position to
defend against the claim of Probst than the Administratrix, their sister, who
participated in the transfer of the property to Probst, and that their over-all
interests were different from the interest of their sister. Their motion in the
District Court, however, though referring to the Administratrix's conduct which
appellants considered contrary to their interests and the interest of the Estate,
revolved largely around the circumstances leading to their discharge as
attorneys for the Estate and the selection of substitute attorneys. The relation of
all these matters to the proper disposition of this appeal I think would be clearer
to the division of the court which considers the main appeal on its merits, now
pending, particularly with respect to the possible availability to appellants of
defenses not available to the Administratrix. I therefore think this appeal should
be consolidated and decided with that appeal. This course not being adopted, I
concur on the basis of the record before us that the appellants have not brought
themselves within Rule 24(a) of the Federal Rules of Civil Procedure governing
intervention as of right, or that the trial court abused its discretion in refusing to
permit intervention under Rule 24(b).
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

United States Court of Appeals Tenth Circuit

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

United States Court of Appeals Tenth Circuit

Uploaded by

Copyright:

Available Formats

417 F.

Samuel Reginald BUMGARNER and Craig Walker

United States Court of Appeals Tenth Circuit.

This action was commenced by the Ute Tribe to have a deed of an

Appellants are the younger brothers of Oranna Bumgarner Moosman, who is

As to intervention as a matter of right, Rule 24(a) provides that appellants here

It is apparent from an examination of the record that the interests of the

We find no abuse of discretion. The Administratrix was in the same position

"(a) Intervention of right. Upon timely application anyone shall be permitted to

FAHY, Senior Circuit Judge (concurring specially):

Appellants Samuel Reginald Bumgarner and Craig Walker Bumgarner * are

Administratrix of the Estate. The litigation in which appellants claim they

You might also like