### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE AMERICAN MATERIALS TECHN OLOGIES, LLC.,v. THE CITY OF CHATTANOOGA and THE CHATTA NOOGA CITY COUNCIL, and ADAMS LITHOGRAPHING COMPA NY, ET AL. Direct Appeal from the Chancery Court for Hamilton County No. 98-0991- Part 1 Hon. W. Frank Brown, III, Chancellor

No. E1999-00806-COA-R3-CV - Decided Jun 2, 2000

This is an appeal from the Chancellor’s refusal to allow m ovants to intervene in the

case. Movants filed a motion to intervene after the p arties had entered a consent judgment, and the Chancellor overruled the motion. On appeal, we affirm the Chancellor’s determination.
Tenn. R. App. P.3 Appeal as of Right; Judgmen

t of the Chancery

Court is Affirme

d. FRAN KS , J., delivered the opinion of the court, in which GODDARD, P.J., and SUSANO, J., joined.

John R. Anderson, Harry R. Cash and B. Allison Edgmon, Gr ant, Konvalin ka & Harrison, P.C., Chattanooga, Tennessee for Plaintiff-Appellee. Ph illip A. Noblett, City Attorney’s Office, City of Chattanooga, Tennessee, for Defen dants

Appellees. John W. M urrey, III, Hugh J. Moore, Jr., Philip B. Whitaker, Jr., and William R. Hannah, Witt , Gaither & Whitake

r, P.C., Chattanooga

, Tennessee for

Intervening Def

endants/Appella

nts.

OPINION

On August 24, 1998, plaintiff pur cha sed property intending to conduct a quarry business. At the time the property was pur chased, it was zoned M-1, a designation that would allow for the operation of

a quarry. On September 22, 1998 and December 15, 1998, the Chattanoo ga City Council adopted two ordinances which removed rock quarries and other outdoor uses from the M-1-2-

zone, a nd placed them in a new M-4 zone. These ordinances had the effect of prohibiting the plaintiff from conducting a

quarry business on its land. Plaintiff filed this action on September 30, 1998, and on July 22, 1999, the Chancellor entered a Memorandum Opinion and Order declaring the two ordinances to

be invalid, and en

joined defendan

ts from enforcing

any part of them. On August 31, 1999, the Chattanooga City Council voted to approve a settlement of the dispute presented by its attorney. The Chancellor entered a consent judgment on September 1, 1999, stating that the parties had agreed to a compromise and settlement of the issues. The judgment held the second of the

two ordinances un

der considerati

on to have been va

lidly enacted as t

o all businesses other than the plaintiff’s, and that the plaintiff was entitled to opera te a rock quarry and other activities in accordance with the zoning ordinances that had been in effect at the time of the purchase. The judgment also provided that plaintiffs were not entitled to any damages for the delays caused in procuring its right to operate a quarry.

On September 28, 1999, the movants filed a motion to intervene. The movants are nine businesses locate

d in close proximity

to the pr oposed quarry, and opposed the development because of negative impact on their business, and the potential danger of physical harm to thei r property. The movants applied to i ntervene as of r

ight, or alte

rn atively for permissive intervention pursuant to Rules 24 .01 and 24.02 of the Tennessee Rules o

f Ci v il Procedure. Intervention as o

f right is governe

d by Tenn. R. Civ. P. 24. 01, which provide s: 24.01. Intervention as of Right. - Upon t imely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when

the applicant cla

ims an interest

relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may a s a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequa tely rep resented by existing partie

s; or (3) by stipulat

ion of all the parti

es. Our courts have not expressly adopted a standard of review for the denial of a motion to intervene as of right. However, a Sixth Circuit case arising out of this State adopted the following standard of revi

ew articulated b

y the Ninth Circuit: The Ninth Circuit . . . deploys an abuse of discretion stand ard for the timeliness prong of the intervention of right requirements, and reviews de novo the remaining Rule 24(a)(2) fa

ctors. Grubb v. Norris , 870 F.2d 343, 345 (6 th Circ. 1989); also see Geier v. Sundquist, 94 F.3d 644 (6 th Circ. 1996). While the Sixth Circuit concerns itself with the Federal Rules of Procedure, the Tennessee Rule o

n intervention is su

bstantially identic

al to the Federal r

ule. Moreover, th

e abuse of discretion standard appears to be the universal rule. See Annotation, ALR 2d §1306, §§4[a]8[b], 12[b]; 57 ALR Fed. 150 §3[b].-3- The timeliness of an int ervention is gover

ned by equitable p

rin ciples , and is determinedby the fac ts and circumstances of each particular case. In determining whether an intervention is time

ly, courts conside

r the following fa

ctors: (1) the pointto which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervener

knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervener’s failure after he knew o r reasonably shoul

d have known of his

interest in the ca

se to apply promptly

fo r intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention. Velsicol Chemical Corp. v. Enenco, Inc. , 9 F.3d 524, 531 (6 th Cir. 1993); Triax Co. v. TRW, Inc. , 724 F.2d 1224, 1228 (6 th Circ. 1984).

The genera l ru le relating to the matter before us is well stated in 59 Am.Jur.2d Parties, §162, p. 648:
A j udgment or decree entered by consent of the original parties is a fi na l judgmentor de cree and accordingly, in the absence o f special circu

mstances, precludes intervention under the general rule agains t intervention after entry of a final judgment or decree. Special circumstances can create an exception to the general rule, and this Court has recognized

that intervention may be timely, after judgment, depending upon the facts. See Hamilton National Bank v. Woods , 238 S.W.2d 109, 112 (Tenn. Ct. App. 1948).

The parties contend

that the would-be

interveners did

not attempt to intervene earlier, andthat their

delay should make intervention unavailable. Generally, an applicant for intervention must show proper diligence, and the right to intervene may be lost by unreasonable delay or laches after knowl edge of t he suit. See EEOC v. United Air Lines, Inc., 515 F.2d 946 (7 th Cir. 1975) (holding denial of

intervention depends in part on time during which

applicant knew of

interest in case but failed to apply to intervene.)

Movants contend that

they made no attempt to interveneearlier, because the City had adequately

represented the

ir interest until the consent judgment was entered, and tha t their efforts to intervene were

timely because th

eir motion was filed within thirty days from the entry of the compromise judgme

nt. The Chancellor’s memorandum opinion entered some six weeks bef ore th e compromise

judgment was filed, invited the parties input as to an appealpursuant to Tenn. R. Civ. P. Rule 54, and their positions on the issue of any damages for the delay suffered by plaintiff. More importantly, the Chancellor dissolved the temporary injunction which had prevented plaintiff from proceeding with development of its quarry. Movants knew, or should have known, that the-4-

Chancellor

had invalidated the two ordinances, an d that the City’s option s were either to compromise

or appeal the Chancellor’s de cisio n. It is clear that subsequently the City negotiated withplaintiff and reached a prop osed sett lement which was p

ublicly approved

by the City Commission, followed by the entry of the compromise judgment. There isno showing that mova nts inquired into the status of the matter during the s

ix weeks between the entry of the memorandum opinion and the consent judgment. Prejudice has resulted to the original parties by movants’ failure to promptly move to int ervene dur ing the parties’ negotiations and before entry of the consent judgment. On the basis of the record before us, we cannot say the Chancellor abused his discretion in denying intervention.

Accordingly, we affirm the judgment of the Trial Court and remand with the cost of the appeal asses sed to the appella nts.