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WHY MUDDY THE WATERS? What to say to an Intervenor in your case...

A motion to intervene must identify an interest at stake in the present case that the would-be intervenor has standing to assert. Litvak v. Scylla Properties, LLC, 946 So. 2d 1165 (Fla. 1st DCA 2006). “First, the trial court must determine that the interest asserted is appropriate to support intervention. Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention.” Id. (quoting Union Cent., 593 So.2d 505, 507 (Fla. 1992)). The language of ‘permitting intervention’ has been “definitively construed to require more than merely asserting a putative right.” See Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla.1992); Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918). The question whether the asserted interest supports intervention, can itself usefully be subdivided into two parts. “The asserted interest must ... already be at issue in the proceeding, ... be of a kind the would-be intervenor is a proper party to raise [and be] ... such that the would-be intervenor ‘will either gain or lose by the direct legal operation ... of the judgment.’”Morgareidge, 78 So. at 15). Therefore, in order to prevent a party from intervening we want to first see if the attempt at intervention in fact fails in this conjunctive test.

As to the first portion of the standard outlined in Morgaredige, the Court should deny should be directed to whether there is anything currently at issue in the proceeding. If the proceedings are closed and a disposition has been entered, and nothing further is required from this Court, then intervention is most likely not proper. The “general rule [is] that it is too late to apply for intervention after final decree has been entered.” See Wags Transportation System, Inc. v. City of Miami Beach, 88 So.2d 751, 752 (Fla.1956). The narrow exception to the rule prohibiting post-judgment intervention arises when the interests of justice so require. Wags Transp. Sys., Inc. v. City of Miami Beach, 88 So.2d 751, 752 (Fla.1956). In Wags, the petitioners sought to intervene post-judgment in a case where the city was attempting to build commercial hotels within the same zoning district as the petitioner's residential property. Id. The Florida Supreme Court permitted the homeowners to intervene post-judgment in order to show how the addition of the commercial buildings would affect the value of their residential property. Id. As such, you want to examine if the standard of Wags is akin to your factual scenario. If it isn’t, then this “stranger to the case” may in fact be prohibited from entering your case. Consider directing the Court to the opinions following Wags, which have explicitly been reluctant to extend the exception for post-judgment intervention to cases outside of the specific facts of Wags. The limitation on applying the exception of Wags has been recognized by both the Fourth District Court as well as the Florida Supreme Court. See De Sousa v. JP Morgan Chase, N.A., 170 So. 3d 928, 930 (Fla. 4th DCA 2015)(quoting Dickinson v. Segal, 219 So.2d 435, 438 (Fla.1969) (“[W]e, by virtue of the authority of that case, recognize this exception but decline to extend it beyond the facts involved there.”)); Md. Cas. Co. v. Hanson Dredging, Inc., 393 So.2d 595, 596 (Fla. 4th DCA 1981) (“We are strongly inclined to the view that adherence to the rule rather than the exception will produce the best result in the great majority of cases.”).

Florida Rule of Civil Procedure 1.230 governs intervention and provides that:

Anyone claiming an interest in pending litigation may at any time be permitted to assert a 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.(Emphasis supplied.)

A person seeking leave to intervene must claim an interest “‘of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.’” Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla.1992) (quoting Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918)). See also Kissoon v. Araujo, 849 So.2d 426, 429 (Fla. 1st DCA 2003). Thus if there is no interest that the stranger to your case can claim in your specific action, which meets the standard of “direct and immediate character,” if the factual bases upon which your action was brought before this Court are no longer at issue and you simply want to not muddy the waters then, then highlight the factual bases which clearly do not lend themselves to review by a Court.

Good luck!

For more information on topics like this come and see me and the rest of our team at Loan Lawyers, LLC.

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