1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Royce B . Saville,

Plaintiff Below

v s

. ) No. 1 9

- 0 560 ( Hampshire County 1 6

- C

- 70 )

City of Romney

, Defendant Below, Respondent



### MEMORANDUM DECISION

Petitioner s Charles C. Hall and Carol Heckler , by counsel Larry D. Garrett

, appeal the order

of the Circuit Court of Hampshire County that denied their motions to intervene in this civil action

. The City of Romney , by counsel James O. Heishman , filed a respon se in support of the circuit

court’s order. 1

This Court has considered the parties ’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,

a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioners filed motions to interve ne in this civil action to prevent the City of Rom ne y (“the City”) from conveying burial lots located in Indian Mound Cemetery , in Romney, West Virginia, to Mr. Royce B. Saville, plaintiff below . At issue in the underlying litigation was the conveyance of a thirty

- two f oot by twenty f

oot parcel , which contains twenty possible vacant burial plots at the front of the cemetery . Petitioners allege that this property should not be conveyed by the City.

By way of background, Mr. Saville, a licensed attorney

, appeared at the City ’s c ouncil

m eeting on December 7, 2015, and advised the C ity of his desire to purchase lots in the vacant

area of the cemetery. Mr. Saville offered to pay the City $1,000.00 for the lots if transferred by quitclaim deed, and an unspecif ied additional amount if the City transferred the plots by a warranty

deed. The City’s m ayor suggested that Mr. Saville’s request be postponed until the January 4, 2016, city council meeting when the city attorney would be present.

On January 4, 2016, Mr. Saville appeared at the City’s council meeting and advised the

c ouncil of his continued desire to purchase the lots in the Indian Mound Cemetery. He explained

1 Mr. Saville, plaintiff below, did not participate in this appeal. 

### FILED May 26, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

that he was the President of the Indian Mound Cemetery Association and Chairman of the Romney

Hi storic Landmark Commission and that , based upon his research, the City might have an ownership interest in the lots . Mr. Saville stated that he would be wil l ing to accept whatever interest the City had in the property.

During the January 4, 2016, meetin g
, the city council passed a resolution to convey the City’s interest in the cemetery lots to Mr. Saville for $1,000.00. Thereafter

, at a council meeting held on February 1, 2016, P etitioner Charles Hall made a presentation to the council describing

the historical significance of the site

. T he council then voted to rescind its resolution (and, thus, the sale of the cemetery lots to Mr. Saville) . On February 18, 2016, Mr. Saville wrote a letter to the City expressing that he was disturbed by the City’s at tempt to rescind its contract with him

, and accused P etitioner Charles Hall of engaging in tortious interference with the contract between

Mr. Saville and the City . Mr. Saville threatened to sue if the City did not sell the property to him.

On September 8, 2016, Mr. Saville filed a c omplaint in the circuit court seeking specific performance of his “contract” with the City. In his complaint, Mr. Saville alleged that the City had agreed to convey to him two lots in the cemetery, each lot contain ing eight to ten burial plots. After the City filed its answer , the parties engaged in discovery. The case was unsuccessfully mediated on May 18, 2017. After m ore than a year of litigation, the City decided to compromise this case

, and

, o n October 23, 2017, the circui t court entered a final order of dismissal

, with prejudice

, which ratified and confirmed the agreement between Mr. Saville and the City to settle the case. The agreement was for the City to convey certain cemetery plots to Mr. Saville for the sum of $1,000.00, and other cemetery plots to the Indian Mound Cemetery Association for no payment.

Despite his knowledge of the C ity’s dispute with Mr. Saville even prior to the filing of Mr. Saville’s civil complaint, Petitioner Hall did not attempt to intervene in the civil action during the pendency of the matter. Instead, o n October 25, 2017, two days after the entry of the final order of dismissal, P etitioner Hall filed a motion to intervene and to set aside the di smissal order

. 2

Thereafter, o n November 3, 2017, P etitioner Carol Heckler filed a motion to intervene and to set

aside the final order. Mr. Saville filed a re sponse to the motion s.

A hearing on the motions to intervene was convened on June 27, 2018. At t he hearing, the circuit court directed the parties to file briefs regarding the motion s to intervene and the motion s to set aside the judgment. The circuit court conducted a n additional hearing on the motion s on March 19, 2019.

On May 24, 2019, the circu it court entered its order denying petitioners’ motion s to
intervene and dismiss ed the case. The circuit court found that the underlying matter had been pending for over a year and that Petitioner Hall was well aware of the ongoing civil action during

2 Petitioners maintain that the Hampshire County Historic Landmark Commission, along with the Sons of the Confederacy and many local organizations and citizens, including the County Commission of Hampshire County

, oppose the City’s transfer to Mr. Saville

. H owever
, none of these organizations atte mpted to join in this litigation. Petitioners further maintain that Mr. Saville alternatively referred to the property as “lots” or “plots,” thereby intentionally misleading the City as to the size of the property at issue.3

that time. Further, the court reasoned that grant ing the motions to intervene would significantly prejudice the original parties, as the matter had already been dismissed with prejudice. The circuit

court noted that P etitioner Hall had filed a separate civil a ction that remains active on the court’s

docket

, outlin es the same or similar grievances

, and seek s relief similar to that allege d in this

action. Additionally , the circuit court found:

Rule 24(a) of the West Virginia Rules of Civil Procedure specifically allows for Intervention of Right upon the timely application in an action “(1) when a statute of this State confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transition which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented.”

Rule 24(b) of the [ W est Virginia Rules of Civil Procedure] further allows for Permissive Intervention upon the timely application in an action “(1) when a statute of this State confers a conditional right to intervene; or (2) when an applicant’s

claim or defens e and the main action have question of law or fact in common.”

The circuit court held that “[w] hile Rule 24 of the West Virginia Rules of Civil Procedure provides for the intervention of parties upon a timely application, the timeliness of any interventio n is a

matter of discretion with the trial court. ” Syl. Pt. 10, Pioneer Co. v. Hutchinson , 159 W. Va. 276

, 220 S.E.2d 894 (1975). It is from this order that Petitioners Hall and Heckler now appeal.

Our standard of review of a circuit court order denying a motion to intervene has been explained as follows:

“‘In reviewing challenges to the findings and conclusions of the circuit court, we apply a two

- prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we

review the circuit court ’ s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.’ Syllabus point 2, Walker v. West Virginia Ethics Commission , 201 W.Va. 108, 492 S.E.2d 167 (1997).” Syllabus Point 1, Coordinating Council for Independent Living, Inc. v.

Palmer , 209 W.Va. 274, 546 S.E.2d 454 (2001).”

Syl. Pt. 1, Stern v. Chemtall Inc. , 217 W. Va. 329, 617 S.E.2d 876 (2005).

T imeliness is a requirement for intervention pursuant to both Rule 24(a) and 24(b) of the West Virginia Rules of Civil Procedure. Here, the record is clear that Petitioner Hall was aware of the potential transfer to Mr. Saville prior to February 1, 2016, more than six mon ths before Mr.

Saville filed his September 8, 2016

, complaint against the City

. Despite this knowledge, petitioner

Hall waited for more than one year after th e complaint was filed to seek intervention. Further, although the record is not clear as to when Ms. Heckler first learned of the facts underlying this matter, the case proceeded in the circuit court for a year and was actually dismissed before she

filed her motion to intervene. Thus, it is clear th at petitioners failed to meet th e timeliness4

requirement and , therefore, the circuit court did not abuse its discretion in refusing petitioners ’

motions to intervene. Further, we find that the circuit court’s underlying factual findings are not clearly err oneous. Accordingly , we will not disturb the circuit court’s ruling

.

Finally, we note that petitioners raise additional assignments of error related to the transfer of the property and the West Virginia Open Records Act . However, because we affirm the cir cuit court’s order denying petitioners’ motion s to intervene, we need not address those alleged errors.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: My 26, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman