PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Intervention

My son is on drugs and our family —- Oops! Wrong article. This article pertains to an interested person’s right to intervene in a lawsuit to protect his or her interests.

Florida Rule of Civil Procedure 1.230 provides: “Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” Generally, the interest which entitles a person to intervene must be shown to be in the matter in litigation. The interest must be direct and immediate and the intervenor must show that he or she will gain or lose by the direct legal operation and effect of the judgment. A showing of indirect, inconsequential or contingent interest is wholly inadequate. See, Stefanos v. Rivera-Berrios, 673 So. 2d 12 (Fla. 1996).

The beneficiaries of a trust may be able to intervene in a lawsuit where the trustee is a party and he desired to secure its proper administration and distribution. See,Buerki v. Lochner, 570 So. 2d 1061 (Fla. 2d DCA 1990). For example, in Genauer v. Downey & Downey, P.A., 2016 Fla. App. LEXIS 232 (Fla. 4th DCA 1/6/16), the beneficiaries were allowed to intervene in a lawsuit between Downey & Downey and the trustee because they could lose over $150,000 of their inheritance from the Trust if Downey & Downey is successful in its lawsuit. The court reasoned that the beneficiaries’ interest in the matter in litigation is “of such a direct and immediate character that [they] will . . . lose by the direct legal operation and effect of the judgment.”

The Florida Supreme Court has established a two-step analysis to decide whether a court should grant a motion to intervene:

First, the trial court must determine that the interest asserted is appropriate to support intervention. [Citation omitted.] Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention. In deciding this question the court should consider a number of factors, including the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstance.

Second, the court must determine the parameters of the intervention… Thus, intervention should be limited to the extent necessary to protect the interests of all parties.

Union Central Life Insurance Co. v. Carlisle, 593 So. 2d 505 (Fla. 1992); Farese v. Palm Beach Partners, Ltd., 781 So. 2d 419 (Fla. 4th DCA 2001).

An intevenor takes the case as he finds it and is bound by the record made at the time he intervenes. By this it is generally meant that he cannot avail himself of or urge mere irregularities in the proceeding which the original parties have expressly or impliedly waived, or of defenses which are personal to them. Although the intervenor may not assert matters extraneous to his own interests, he may avail himself of any and all arguments which relate to derivation and extent of his own interests, whether or not these matters have been previously asserted by one of the original parties. See, Bay Park Towers Condominium Ass’n v. H.J. Ross & Assocs., 503 So. 2d 1333 (Fla. 3d DCA 1987); Williams v. Nussbaum, 419 So. 2d 715, footnote 1 (Fla. 1st DCA 1982).

Affirmative Relief: The court must specifically grant permission to the intervenor to assert claims for affirmative relief in the pending action. See, Hoechst Celanese Corp. v. Fry, 693 So. 2d 1003 (Fla. 3d DCA 1997). For example, in Fidelity Philadelphia Trust Co. v. Ball, 208 So. 2d 282 (Fla. 3d DCA 1968), the court allowed the intervenor to file a counterclaim against the trustees. However, the counterclaim was limited to an action against the trustees in the capacity in which they brought the suit, and the trustees could not be sued in their individual capacities. Although the trial court has discretion to limit the extent to which intervenors may participate in a proceeding, when that limitation completely bars the intervenors from addressing their concerns, it is an abuse of the trial court’s discretion. See,Genauer v. Downey & Downey, P.A.

Post-Judgment: Intervention is allowed after a final decree if it is required in the interests of justice and will not injuriously affect the original litigation. See, Lewis v. Turlington, 499 So. 2d 905 (Fla. 1st DCA 1986). For example, in Lewis v. Turlington, 499 So. 2d 905 (Fla. 1st DCA 1986), a party was prohibited from intervening in the action where they attempted to do so 17 months after entry of the final order and eight months after it was affirmed on appeal, and where they raised new issues and sought different relief.