### NO. 81-312 IN THE SUPREME COURT OF 

### THE STATE OF MONTANA 1982

ALLEN W. GRENFELL, Froposed intervenor, Appellant,

vs

# . DARIANN DUFFY et al., Plaintiffs and Respondents,

VS. A/T 

### RANCH INC., a Montana Corporation, Defendant and Respondent.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula Honorable James B. Wheelis,Judgepresiding. Counsel of Record: ForAppellant: Morales,Volinkaty & 

### Harr,Missoula, Montana For Plaintiffs: Ferguson & 

### Mitchell, Missoula, Montana For Defendant: Recht & 

### Greef,Hamilton,Montana

Submitted on briefs: March 5, 

### 1982 Decided:April 27, 1982Mr. Justice Frank B. Morrison,Jr., delivered the Opinion of the Court.

On May 15, 1980, the Fourth Judicial District Court ordered defendant/respondent, A/T Ranch, to pay plaintiffs/ respondents over $25,000 for debts owed by the ranch corporation to the plaintiffs. That order was pursuant to a consent decree to which the corporation agreed on May 8, 1980. On August 29, 1980,Allen Grenfell filed a motion to intervene in the matter on behalf of the defendant corporation. Following a hearing, an order denying Grenfell's motion to intervene was issued February 27, 1981. Allen Grenfell now appeals that order. A/T Ranch is a family corporation. Itwas incorporated

on February 21, 1974. Allen and Lillian Grenfell,husband and wife, are each 50 percent stockholders in the corporation. Allen and Lillian Grenfell and Lillian's son, Daniel J. Duffy, compose the corporation'sBoard of Directors. Mr. and Mrs. Grenfell separated in April of 1976 and later divorced. Mr. Grenfell has been completely inactive in the corporation sinceNovember 28, 1976. Lillian and her son, Daniel, have been the only active directors since that time. Lillian is the registered agent for the corporation. In June of 1979,Mr. Grenfell commenced proceedings in the Fourth Judicial District Court, Ravalli County, requesting that the corporationbe dissolved and a receivershipbe created to manage the corporate affairs. That action is still pending before JudgeWheelis. A complaintwas filed againstA/T Ranch on August 31, 1979,by DariAnn Duffy,Daniel J. Duffy, Dayne Grenfell and Darrell Grenfell. The complaint alleged several debts dueand owing plaintiffs by the corporation. That complaintwas
never served upon defendant corporation. Itwas amended on ~pril 17, 1980, and again onApril 30, 1980. Lillian Grenfell

was added as a plaintiff. Both of the amended complaints

were served on defendant, through its registered agent, Lillian Grenfell. Several of the nine counts in the second amended complaint allege debts owed by the corporation to its active directors. Lillian Grenfell alleges that the corporation owes her $3,350.00 formoney lent the corporation for the remodeling of the ranch dwelling. Daniel Duffy alleges that the corporation

owes him a total of $8,566.82: $209.00 for construction expenses; $640.77 for expenses accrued as director; $6,717.05 for breach of a contract

### by which the corporation agreed to feed and care for Daniel's cattle; and $1,000.00 for lost profits due to the breach of the above-described contract. The remaining counts allegewages and loanspast due and owing to the children of the Grenfells. Lillian Grenfell, as president and registered agent of the corporation,appeared at the May 8, 1980,hearing and consented to an entry of judgment against the corporation with respect to all nine counts in the complaint. Judgment against the corporationwas ordered May 15, 1980. Although not a party to the action,Mr. Grenfell received actual notice of the initial complaint. He was assured by plaintiff's attorney that he would be notified when actual service was made on the corporation. He was not so notified. He received notice of the entry of judgment on June 17, 1980, from the corporation's counsel. On July 2, 1980,Mr. Grenfell filed a motion for relief from the judgment. No action was taken on thatmotion. A motion to intervenewasthen filedby Mr. Grenfell on August 29, 1980. he attorney for the corporation, Mr. H. L. McChesney, informed Judge Wheelis on October 27, 1980, thathe did not wish torepresent the corporation on themotion tointervene

ashe felttherewas a conflict of interest involved. ~t thattime, he was representing the corporation inthe pending dissolution proceedings. Inhis letter, Mr. McChesney also stated, "Ido not feelthatMr. Grenfell's motion tointervene iswell taken and I think the corporation should resist this motion. " Pursuant toMr. McChesneyls request, an order was issued October 31, 1980, removing Mr. McChesney as attorney of record for the corporation and directing the corporation toretain other counsel. The order also stated that

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. . the retained counsel shallhave until December 8, 1980 in which toprepare, fileand servea written brief inopposition totheMotion toIntervene. 

# . ." Mr. Charles Recht was subsequently retained by the corporation. Following a hearing on themotion, an order was issued

on February 27, 1981, denying Mr. Grenfell's motion to intervene. The order statedthat the DistrictCourt had jurisdiction over theparties and the subjectmatter; that Mr. Grenfell had "no standing to intervene because the corporationwas legally represented by itspresent corporate officers"; and that themotion tointervene was not timely made. Those conclusions were based on several findings of fact: (1)Mr. Grenfellmade no showing of bad faithor fraud on thepartof the corporation and its officers. (2) Allowing Mr. Grenfell tointervenewould result indelay, circuity and multiplicity of actions. (3) Mr.Grenfellls rights could be adequately protected inthe pending dissolution proceeding.A subsequent hearing was held April 15, 1981, regarding attorney fees. At the close of the hearing, the court ordered the corporation to pay Charles Recht legal fees of $1,470.00 and costs of $41.38, for a total of $1,511.38. In appealing these orders,Mr. Grenfellpresents three issues to this Court. (1) Was the service of process upon the defendant corporation sufficient for personal jurisdiction of the District Court over the defendant corporation? (2) Was the motion to intervene improperly denied? (3) Did the DistrictCourt abuse its discretion when it ordered the corporation to retain new counsel to resist the appellant's motion to intervene and then subsequently ordered the corporation to pay all attorney fees incurred? We need not reach the issue of whether or not the service of process on the defendant corporation gave the District Court personal jurisdiction over the corporation. The corporation voluntarily appeared before the court through Lillian Grenfell, its president and registered agent. Lack of jurisdiction due to any failure of service of process is cured if that party voluntarily appears in court. Wilson v. Thelen (1940), 110Mont. 305, 100 P.2d 923; Deich v. Deich

(1958), 136 Mont. 566, 323 P.2d 35. In addition, Rule 4B(2), M.R.Civ.P. states: "Acquisitionof jurisdiction. Jurisdiction may be acquired by our courts over any person through serviceof process as herein provided; or by the voluntary appearance in an action by any person either personally, or through an attorney, or through any other authorized officer, agent or employee." Rule 4A,M.R.Civ.P. defines "person"to include a corporation. Therefore, the District Court properly exercised jurisdiction over the corporation in these proceedings as the corporation voluntarily appeared.Rule 24,M.R.Civ.P., governs intervention in civil proceedings. Rule 24(a.),Intervention of Bight, applies to Mr. Grenfell. As 

### a 50 percent stockholder in the corporation, he has a substantialproperty interest at stake. A stockholder's interest in 

### a corporation has been held to be an interest giving an intervention of right. Pellegrinov. Nesbit (1953), 203 F.2d 463;U. S. v. FirstNational Bank & Trust Co. of Lexington,Kentucky (1967), 280 F.Supp. 260, aff'd 391 U.S.

The relevantportion of Rule 24(a), M.R.Civ.P., states: "Interventionof right. Upon timely application anyone shall be permitted to intervene in an action: 

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# . . (2)when the applicant claims an interest relating to the property or transactionwhich is the subject of the action and he is so situated that the disposition of the actionmay as a practical matter impair or impede his ability to protect that interest,unless the applicant's interest is adequately represented by existing parties." The DistrictCourt held thatMr. Grenfell'smotion to intervene was not timelymade. We agree. Mr. Grenfell was given actual notice of the original complaint sometimeprior to April 17, 1980. He did not file themotion until August 29, 1980,more than four and one-half months after he became

aware of the initial claim. As Mr. Grenfell was not a party to the original action,no one was under any duty to inform him of the proceedings. As a 50 percent stockholder and inactive director of the corporation, he had every right to contact the Board of Directors to ascertain the progress of the proceedings. He failed to do so. Therefore,he is not entitled to avoid the "timeliness"requirement by asserting thathe was unaware of the proceedings until June 17, 1980, when corporate counsel enlightened him. The intervention rule is a discretionary judicial

### efficiency rule used to avoid delay, circuity and multiplicity of suits. State ex rel. Westlake v. ~istrict Court, First Judicial District (1946), 119Mont. 222, 173 P.2d 896. To grant appellant's motion to intervenewould require an abuse of trial court discretion. We find none here. Refusing to grant appellant's motion to intervene does not leave him with a lack of ability to protect his property interests. The corporation dissolution proceeding is still pending before the same District Court judge. Mr. Grenfell may pursue his claims in thatproceeding. To allowhim to pursue his claims by intervening in a proceeding which has been final for practically two yearswould create the delay, circuity andmultiplicity of actions sought to be avoided in State ex rel. Westlake, supra. Finally,Mr. Grenfell asserts that it was an abuse of discretion for the District Court to order the corporation to pay its retained counsel for his services. The awarding of attorney fees is within the discretionary power of the District Court. Arwood Stickney, et al. v. State of Montana

(1981), 38 St.Rep. 1991, 636 P.2d 860. It is axiomatic that

a party normally pays the fees of its own attorney. The court did not abuse its discretion. Appellant claims that since counsel for the corporation wrote a brief supporting the denial of his motion to intervene, he primarily benefited plaintiffs. Therefore, he asserts thatplaintiffs should pay counsel's fees rather than further reducing the corporation's assets to pay the fees of an attorney who primarily benefited plaintiffs. If Mr. Grenfell's claim is true, the court in the pending dissolution proceedings

can rectify thematter by decreasing plaintiffs' share of the corporation's assets.We affirm the dec~sion of the District Court.

We Concur: 

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# 4. P&&D Chief,Justice