IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

No. 19-0267

SWN PRODUCTION COMPANY, LLC,

Putative Intervenor Below/Petitioner

v.

COREY CONLEY et al.,

Plaintiffs and Defendants Below/Respondents

Appeal from the Circuit Court of Brooke County

The Honorable Jason A. Cuomo, Judge

Civil Action No. 14-C-75

REVERSED AND REMANDED

Submitted: October 6, 2020

Filed: November 2, 2020

Timothy M. Miller, Esq. Daniel J. Guida, Esq.

Robert M. Stonestreet, Esq. Guida Law Offices

Jennifer J. Hicks, Esq. Weirton, WV

Babst, Calland, Clements & Zomnir, P. C. Counsel for Respondent Corey Conley

Charleston, WV

Counsel for Petitioner

Richard N. Beaver, Esq.

Phillips, Gardill, Kaiser & Altmeyer, 

PLLC

Wheeling, WV

Counsel for Respondents Lee M. Rabb, 

individually

FILED

November 2, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
and as Trustee of the Eli Rabb Revocable 

Trust

dated October 7, 2005 and Trinity Health 

System Foundation

and

Joseph G. Nogay, Esq.

Maximillian F. Nogay, Esq.

Sellitti, Nogay & Nogay, PLLC

Weirton, WV

Counsel for Respondents Trienergy, Inc., 

Trienergy Holdings, LLC, and WPP, 

LLC,

JUSTICE WORKMAN delivered the Opinion of the Court.

 
i

SYLLABUS BY THE COURT

1. “While Rule 24 of the West Virginia Rules of Civil Procedure 

provides for the intervention of parties upon a timely application, the timeliness of any 

intervention is a matter of discretion with the trial court.” Syl. Pt. 3, State ex rel. Ball v.

Cummings, 208 W.Va. 393, 540 S.E.2d 917 (1999).

 2. A circuit court’s decision on an applicant’s request for permissive 

intervention under Rule 24(b) of the West Virginia Rules of Civil Procedure is reviewed 

under an abuse of discretion standard.

3. The standard of review of circuit court rulings on the elements 

governing a timely motion to intervene as a matter of right under Rule 24(a) of the West 

Virginia Rules of Civil Procedure is de novo.

 4. “West Virginia Rule of Civil Procedure 24(a)(2) allows intervention 

of right in an action if an applicant meets four conditions: (1) the application must be 

timely; (2) the applicant must claim an interest relating to the property or transaction which 

is the subject of the action; (3) disposition of the action may, as a practical matter, impair 

or impede the applicant’s ability to protect that interest; and (4) the applicant must show 

that the interest will not be adequately represented by existing parties.” Syl. Pt. 2, State ex 

rel. Ball v. Cummings, 208 W.Va. 393, 540 S.E.2d 917 (1999).
ii

5. “To justify intervention of right under West Virginia Rule of Civil 

Procedure 24(a)(2), the interest claimed by the proposed intervenor must be direct and 

substantial. A direct interest is one of such immediate character that the intervenor will 

either gain or lose by the direct legal operation and effect of the judgment to be rendered 

between the original parties. A substantial interest is one that is capable of definition, 

protectable under some law, and specific to the intervenor. In determining the adequacy 

of the interest in a motion to intervene of right, courts should also give due regard to the 

efficient conduct of the litigation.” Syl. Pt. 4, State ex rel. Ball v. Cummings, 208 W.Va. 

393, 540 S.E.2d 917 (1999).

6. “In determining whether a proposed intervenor of right under West 

Virginia Rule of Civil Procedure 24(a)(2) is so situated that the disposition of the action 

may impair or impede his or her ability to protect that interest, courts must first determine 

whether the proposed intervenor may be practically disadvantaged by the disposition of 

the action. Courts then must weigh the degree of practical disadvantage against the 

interests of the plaintiff and defendant in conducting and concluding their action without 

undue complication and delay, and the general interest of the public in the efficient 

resolution of legal actions.” Syl. Pt. 5, State ex rel. Ball v. Cummings, 208 W.Va. 393, 540 

S.E.2d 917 (1999).
1

WORKMAN, Justice:

Petitioner, SWN Production Company, LLC (hereinafter “SWN”) appeals an 

order entered on February 22, 2019, by the Circuit Court of Brooke County, West Virginia, 

denying SWN’s second motion to intervene in an action seeking to quiet title to a parcel of 

property brought by Respondent and plaintiff below, Corey Conley (hereinafter “Mr. 

Conley”). Mr. Conley has aligned himself with SWN and adopted the arguments of SWN. 

The Respondents and defendants below include Lee M. Rabb, individually and as Trustee 

of the Eli Rabb Revocable Trust dated October 7, 2005 (hereinafter “the Rabb Trust”), 

Trienergy, Inc., Trienergy Holdings, LLC, WPP, LLC (hereinafter collectively 

“Trienergy”), and Trinity Health System Foundation (“Trinity Health”), or (the Rabb Trust, 

Trienergy, and Trinity Health hereinafter collectively “Respondents”). The underlying 

action involves competing claims and interests in the mineral rights to Mr. Conley’s 

property. It is represented that SWN has interests in oil and gas properties that would be 

affected by interpretation of the relevant deed. After Mr. Conley filed his Complaint and 

after the circuit court denied SWN’s first motion to intervene, SWN entered into an oil and 

gas lease with Mr. Conley. Thereafter, the circuit court denied SWN’s second motion to 

intervene and it is from that order that SWN appeals to this Court. 

Having considered the record, the various briefs submitted, the relevant law, 

and the oral arguments presented, we find that the circuit court abused its discretion in 

determining that the SWN motion to intervene was untimely and erred as a matter of law 

in finding: (1) that SWN had no property interest relating to the subject of the complaint, 
2

(2) that disposition of the civil action would not impair or impede SWN’s ability to protect 

its interests, and (3) that SWN’s interests were adequately protected by Mr. Conley. 

Accordingly, this Court reverses the circuit court’s order denying SWN’s motion to 

intervene and remands this case to the Circuit Court of Brooke County, West Virginia, for 

further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In 1959, Maria H. Milliken, by deed (hereinafter “the Milliken Deed”), 

conveyed certain mineral interests in a 161.53-acre tract located in Brooke County, West 

Virginia, to Eli Rabb. The Milliken Deed granted, bargained, sold, and conveyed “all that 

coal in and under” the tract together with the “surface rights which are incident or necessary 

to the removal of said coal.” Additionally, the deed included the “[r]ights to explore, 

operate and drill for Oil and Gas with all necessary rights to produce and market same.” 

The Milliken Deed excepted a 1/8 royalty “of any and all production of gas and oil that 

may be discovered on said property.” A “complete agreement” clause was included in the 

Milliken Deed providing:

There is a complete agreement between [Milliken] and [Rabb], 

that because of the economic conditions, the low quality of the 

coal, and the uncertainty of marketing, that no specific start 

time has been designated. It is clearly understood that [Rabb], 

his heirs or assigns, may commence without notice to start 

mining operations at any time within the time limits set forth 

in the foregoing royalty agreement. Further, it could be that 

operations would be started in the latter of the year or so of this 

Deed or to be more clear in the 19th or 20th year, be it hereby 

agreed that so long as there remains coal to be mined, [Rabb] 

shall be allowed peacefully to mine and remove the remaining 
3

coal so long as the period shall not exceed an additional five 

years nor pass the 30th day of December, 1985.

On June 5, 2007, Eli Rabb and his wife, Lee M. Rabb, executed a Farmout 

Agreement with respect to the oil and gas rights underlying the same 161.53-acre tract of 

property identified in the Milliken Deed. The Farmout Agreement was entered into with 

Trienergy and provided for the transfer of all the oil and gas interest in the 161.53-acre

tract while excepting and reserving a 1.5% overriding royalty in all oil and gas saved and 

produced. Mr. Rabb conveyed the 1.5% overriding royalty interest as a gift to Trinity 

Health and conveyed his interest in the oil and gas rights to Trienergy by a Conveyance 

and Assignment of Oil and Gas Rights dated May 16, 2008.

In the meantime, the 161.53-acre tract described in the Milliken Deed was 

subdivided into several smaller tracts by the Milliken heirs. By deed dated June 26, 2000, 

Mr. Conley obtained the surface and mineral rights, excepting coal, from James Lee and 

Beatrice S. Milliken, to a 3.763-acre parcel (hereinafter “the Conley parcel”) that was 

carved out of the 161.53-acre tract.

Eli Rabb died testate on October 31, 2009. He devised his assets, including 

any interest flowing from the Milliken Deed, to the Rabb Trust.

 As a result of the various instruments of conveyance and assignment, 

multiple parties claimed certain rights related to the oil and gas underlying the 161.53-acre
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tract. On May 5, 2014, Mr. Conley filed his action seeking, among other things, to quiet 

title to the oil and gas interests under the 3.763 acres of his property. Mr. Conley sought a 

declaration that he has good and marketable title to the mineral interests, including the oil 

and gas, underlying his property. Mr. Conley contends that the 1959 Milliken Deed acted 

merely as a lease of oil and gas rights to Eli Rabb and that the lease either lapsed, was 

invalid, or is unenforceable. Initially, Mr. Conley sued the instant Respondents, except for 

Trinity Health, as well as three other entities, Chesapeake Appalachia, LLC, Jamestown 

Resources, LLC, and AB Resources, all of whom were later dismissed.

Trienergy filed an answer generally denying that Mr. Conley had any 

interest in the oil and gas rights underlying the Conley parcel. The Rabb Trust filed a 

counterclaim seeking a declaration that Eli Rabb purchased the coal, oil, and gas underlying 

the 161.53-acre tract under the Milliken Deed, including the 3.763-acre Conley parcel. 

Trinity Health moved to intervene on the basis of the May 2008 recorded assignment of 

interest, evidencing a separate and distinct interest in an overriding royalty. Trinity 

Health’s unopposed motion was granted on August 3, 2015.

In June 2016, Mr. Conley filed a motion for summary judgment requesting 

that the circuit court find the Milliken Deed to be unambiguous and to determine the legal 

effect of the language on the nature and ownership status of the oil and gas rights as 

referenced in the Milliken Deed. Specifically, Mr. Conley contended that the Milliken 
5

Deed, by its terms, created an unenforceable perpetual leasehold in the oil and gas and/or 

that the lease was abandoned by Eli Rabb for failure to explore or market the oil and gas. 

The Respondents filed cross-motions for summary judgment contending that 

they had ownership or interests in the oil and gas because the unambiguous language of 

the Milliken Deed conveyed a fee simple interest in the oil and gas to Eli Rabb that could 

not be abandoned.

On July 21, 2016, SWN first moved to intervene. SWN indicated that while 

it did not have a direct interest in the 3.763 Conley parcel, it had interests in other properties 

comprising the remainder of the 161.53-acre tract. Thus, SWN argued that its interests 

were at stake and would be affected by any construction of the Milliken Deed. SWN further 

represented that it had been actively developing oil and gas property in the northern 

panhandle of West Virginia since 2014 and had only learned recently of the action filed by 

Mr. Conley. The Respondents objected to intervention by SWN.

On August 16, 2016, the circuit court entered an order denying SWN’s 

motion to intervene for four reasons. First, the circuit court concluded that it was untimely 

since it was filed more than two years after the complaint was filed and during the pendency 

of summary judgment motions. Second, the circuit court found that SWN had no interest 

relating to the Conley parcel. Third, the circuit court determined that since SWN had no 

interest in the property, the disposition of the action would not impair SWN’s ability to 
6

protect that interest. Fourth, the circuit court concluded that “to the extent [Conley] has 

aligned himself with SWN, SWN’s interest are adequately represented by [Conley] in this 

matter.”

In the order of August 16, 2016, the circuit court also granted Mr. Conley’s 

request to delay ruling on the pending summary judgment motions for the purpose of 

engaging in limited discovery on the question of whether Mr. Rabb, or his attorney, was

the party who prepared the Milliken Deed. The parties proceeded with limited discovery 

and renewed their respective motions for summary judgment in February 2017. 

On June 16, 2017, the circuit court entered an order denying the crossmotions for summary judgment because it concluded that the language of the Milliken 

Deed was ambiguous regarding intent such that a jury determination was required. The 

circuit court concluded that a jury must determine who drafted the Milliken Deed and 

whether the intent of the parties was to convey the coal, oil and gas to Eli Rabb in fee, or 

in lease, or in some combination thereof. Additionally, the circuit court directed that if the 

jury found that the intent of the parties was to create a lease, the jury must determine 

whether the lease expired and, if so, when it expired.

While the summary judgment motions were pending, SWN entered into a 

lease with Mr. Conley on May 7, 2017, which was recorded on June 2, 2017. On August 

16, 2018, the Respondents served SWN with a subpoena duces tecum requesting 
7

information concerning SWN’s oil and gas operations and leases within the 161.53-acre

tract of the Milliken Deed. SWN objected to the subpoena on multiple grounds including 

the assertion of confidentiality and attorney-client privileges, and its position as a nonparty.

On August 17, 2018, SWN filed a second motion to intervene. SWN argued 

that it should be permitted to intervene because it had a leasehold in the oil and gas rights 

underlying the Conley parcel at issue in the litigation. The Respondents opposed the 

motion to intervene and, instead, jointly moved for leave to file a third-party complaint 

against SWN.

By order entered February 22, 2019, the circuit court again denied the SWN 

motion to intervene. The circuit court found that the only difference between the first and 

second motion was the effort of SWN to create an interest in the Conley parcel more than 

three years after the action to quiet title was filed. The attempt at self-creation of interest

and the filing of the second motion to intervene nearly a year and a half after entering into 

the lease was found to be untimely. The circuit court concluded that the fact that there was 

no interest relating to the Conley parcel when the complaint was filed was determinative 

as to SWN’s ability to protect its interest and found that its interests are aligned with Mr. 

Conley’s and thus adequately represented. Subsequent to the entry of the order denying 

intervention, the Respondents sought leave to withdraw their request to file a third-party 

complaint against SWN which was granted by the circuit court.
8

It is from the February 22, 2019 order denying SWN’s second motion to 

intervene that SWN appeals to this Court.

II. STANDARD OF REVIEW

In the instant appeal, this Court is asked to consider the denial of a request 

for intervention as governed by Rule 24 of the West Virginia Rules of Civil Procedure. 

Rule 24 governs the ability of a non-party to a lawsuit to intervene in the pending action 

and provides for intervention as a matter of right, permissive intervention and the procedure 

for intervening.

Rule 24(a) governing intervention as a matter of right provides: 

Upon timely application anyone shall be permitted to 

intervene 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 transaction 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 by existing 

parties.

Rule 24(b) governs permissive intervention and states, in part:

Upon timely application anyone may be permitted to 

intervene in an action: (1) when a statute of this State confers 

a conditional right to intervene; or (2) when an applicant’s 

claim or defense and the main action have a question of law or 

fact in common. . . . In exercising its discretion the court shall 

consider whether the intervention will unduly delay or 

prejudice the adjudication of the original parties.
9

Motions to intervene require application of multiple standards of appellate 

review. We observe that both intervention as a matter of right and permissive intervention 

require an applicant for intervention to make a timely request. Thus, the question of the 

timeliness of a motion to intervene is a threshold issue. In regard to timeliness of 

intervention, this Court has held: “[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 intervention is a matter of discretion with the trial court.” Syl. pt. 3, State ex rel. 

Ball v. Cummings, 208 W.Va. 393, 396, 540 S.E.2d 917, 920 (1999) (citing Pioneer Co. v.

Hutchinson, 159 W.Va. 276, 278, 220 S.E.2d 894, 897 (1975), overruled on other grounds, 

State ex rel. E.D.S. Federal Corp. v. Ginsberg, 163 W.Va. 647, 259 S.E.2d 618 (1979)). 

Additionally, as to permissive intervention, the text of Rule 24(b) governing 

permissive intervention specifically invokes language directing courts to exercise their 

discretion in considering issues of delay of the action or prejudice to the original parties. 

We have previously stated, and now hold that a circuit court’s decision on an applicant’s 

request for permissive intervention under Rule 24(b) of the West Virginia Rules of Civil 

Procedure is reviewed under an abuse of discretion standard. Stern v. Chemtall Inc., 217 

W.Va. 329, 337, 617 S.E.2d 876, 884 (2005) (finding that circuit court abused its discretion 

when it denied a request for permissive intervention). 
10

With respect to mandatory intervention as a matter of right pursuant to Rule 

24(a)(2) of the West Virginia Rules of Civil Procedure, this Court has not established a 

standard of review. We have observed that Rule 24(a)(2) is based on and is substantially 

similar to Rule 24(a)(2) of the Federal Rules of Civil Procedure and, in that regard, have 

indicated that “we follow our usual practice of giving substantial weight to federal cases in 

determining the meaning and scope of our rules of civil procedure.” State ex rel. Ball, 208 

W.Va. at 399, 540 S.E.2d at 923 (citing Law. Disc. Bd. v. Cunningham, 195 W.Va. 27, 33, 

f.11, 464 S.E.2d 181, 187, f.11 (1995) and W. Va. Pub. Emps. Ins. Bd. v. Blue Cross Hosp.

Serv., Inc., 180 W.Va. 177, 375 S.E.2d 809 (1998)). Some commentators have remarked: 

“[a]ppellate review of a trial court’s determination of whether a would-be intervenor has 

satisfied the elements required for intervention as a matter of right under Rule 24(a) is 

generally de novo.” Louis J. Palmer, Jr. and Robin Jean Davis, Litigation Handbook on 

West Virginia Rules of Civil Procedure, § 24 (5th ed. 2017). Additionally, other leading 

commentators have indicated that whether a request to intervene falls under intervention 

as of right or as a matter of permission results in important distinctions including 

implicating the level of review to be applied on appeal. Generally, permissive intervention 

is addressed to the discretion of the court while mandatory intervention typically poses a 

question of law. 7C Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal

Practice and Procedure Civil §1902 (3d ed. 2007 & Supp. 2019).

This Court observes that the federal courts typically hold that the appellate 

review of a lower court order regarding intervention as a matter of right is de novo. E.g.,
11

Brumfield v. Dodd, 749 F.3d 339, 342 (5th Cir. 2014) (standard of review for denial of right 

to intervene is de novo); In re Estate of Ferdinand E. Marcos Hum. Rts. Litig., 536 F.3d 

980, 985 (9th Cir. 2008), cert. denied sub nom. Hilao v. Revelstoke Investment Corp. 556 

U.S. 1182 (2009) (reviewing de novo the district court’s denial of intervention as a matter 

of right and finding that the requirements for such intervention are to be broadly construed 

in favor of intervention); Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008 

(8th Cir. 2007) (review of denial of mandatory intervention is de novo); Alameda Water & 

Sanitation Dist. v. Browner, 9 F.3d 88, 90 (10th Cir. 1993) (court of appeals will review 

rulings on motions to intervene as of right under a de novo standard).

Based upon the foregoing review of authorities and with consideration of the 

two distinct types of intervention, this Court holds that the standard of review of circuit 

court rulings on the elements governing a timely motion to intervention as a matter of right 

under Rule 24(a) of the West Virginia Rules of Civil Procedure is de novo.

With these standards of review in mind, we proceed to evaluate the 

assignments of error and the parties’ respective arguments.

III. DISCUSSION

SWN hinges the bulk of its argument on intervention as a matter of right

pursuant to West Virginia Rule of Civil Procedure 24(a)(2). This Court has held:
12

West Virginia Rule of Civil Procedure 24(a)(2) allows 

intervention of right in an action if an applicant meets four 

conditions: (1) the application must be timely; (2) the applicant 

must claim an interest relating to the property or transaction 

which is the subject of the action; (3) disposition of the action 

may, as a practical matter, impair or impede the applicant’s 

ability to protect that interest; and (4) the applicant must show 

that the interest will not be adequately represented by existing 

parties.

State ex rel. Ball, 208 W.Va. at 396, 540 S.E.2d at 920, Syl. Pt. 2.

The assignments of error and arguments of the parties are readily distilled to 

addressing each of the four mandatory factors that SWN must meet in order to intervene in 

the civil action as of right. Failure to satisfy one of the mandatory requirements precludes 

intervention as of right. We proceed to our analysis of each condition SWN must meet.

A. Timeliness of Motion to Intervene

It is apparent from the text of Rule 24(a)(2) that any application for 

intervention must be timely—if it is untimely, intervention must be denied. Thus, the 

threshold issue we must address is whether SWN timely moved for intervention as of right. 

SWN argues that the circuit court abused its discretion in finding that their motion for

intervention was not timely and denying intervention on that ground. SWN contends that 

timeliness must be considered within the factual context of each case and further contends 

that the analysis must include consideration of the progression and status of the litigation 

as well as whether any prejudice would result from any delay due to intervention. In that 

regard, SWN argues that when it moved to intervene for the second time, no scheduling 
13

order was in place, no trial date had been set, and only limited discovery had been 

conducted. Moreover, SWN claims that the Respondents demonstrated a de facto 

recognition of the interest of SWN by serving a broad subpoena for information on SWN 

and by moving to add SWN as a third-party defendant. It is argued that the intervention of 

SWN would not result in prejudice to the Respondents and would not disrupt the progress 

of litigation.

Conversely, the Respondents argue that SWN improperly sought to create an 

interest that it did not have at the time Mr. Conley filed his civil action. It is contended 

that SWN has inadequately explained why it was dilatory and waited nearly one-and a-half 

years between the time it entered into the lease with Mr. Conley and the filing of a second 

motion to intervene when it knew of the litigation, knew discovery was proceeding, and 

was aware that summary judgment motions were pending. The Respondents reason that 

the filing of the subpoena seeking real property information does not excuse the dilatory 

conduct of SWN because there has not been any meaningful response to the subpoena. 

Additionally, Respondents state that their motion to file a third-party complaint against 

SWN was a preemptive motion designed to meet the possibility that the circuit court would 

permit intervention by SWN providing for assertion of slander of title and trespass claims 

against Mr. Conley and SWN for entering into a lease while the ownership of the oil and 

gas was in dispute. Respondents contend that it was only because the circuit court denied 

a motion to file a counterclaim against Mr. Conley and denied the motion to intervene that 

they deemed their claims moot and abandoned the effort to join SWN.
14

In considering the issue of timeliness, we recognize that timeliness of the 

application to intervene is not subject to mechanistic inquiry. In other words, there is no 

bright line delineating the point at which the passage of time, without more, is a bar to 

intervention as a matter of right. It has been said that courts must approach the issue of 

timeliness with flexibility and a view toward considering all the circumstances. E.g.,

NAACP v. New York, 413 U.S. 345, 366 (1973) (the point to which suit has progressed is 

but one factor in determining timeliness of intervention, it is not solely dispositive, and 

must be determined from all the circumstances).

The circuit court addressed the matter of timeliness in a perfunctory fashion 

concluding that the only difference between SWN’s second motion to intervene and the 

first one, which was denied, were facts created by SWN some three years after the 

Complaint was filed, and more than a year and a half after the denial of the initial motion. 

The circuit court found that the motion to intervene was filed some four years after the 

Complaint was filed and that SWN waited a year and a half after entering into the oil and 

gas lease with Mr. Conley before filing the motion to intervene.

The circuit court looked solely to the age of the case in addressing the 

question of timeliness, thereby failing to consider the status of the proceedings and the 

circumstances of the parties. This Court finds it compelling that no scheduling order had 

been entered, no trial date had been set, and no discovery deadline imposed. The circuit 

court simply did not address the question of what prejudice to Respondents, if any, would 
15

result from allowing the intervention of SWN. Our review of the record fails to illuminate 

any prejudice or harm to Respondents, and, given the lack of advancement of the case for 

trial proceedings, it is not apparent that the case would suffer from delay caused by 

intervention. On the other hand, SWN may be prejudiced because a jury trial will proceed 

to determine the construction of the Milliken Deed and thereby determine whether SWN 

has a valid interest in its leasehold even though SWN was afforded no opportunity to appear 

and participate at trial and will have no ability to appeal in the event its interest is adversely 

affected. In terms of the circumstances of the parties, the circuit court order makes no 

mention of the subpoena seeking information and documents regarding a wide range of 

matters, including, but not limited to, title opinions, mineral ownership reports, abstracts 

of titles, purchase and sales agreements, asset acquisition agreements, operating and capital 

cost expenditures relating to pooled units, gross revenue documents, production costs, 

maps, and surveys, propounded to SWN by Respondents. The information sought, at a 

minimum, suggests that there is reason to believe that SWN has property interests that may 

be affected by construction of the Milliken Deed and that Respondents tacitly recognize 

the existence of such interest. Our review of the record does not reflect that the case had 

proceeded so far that intervention would affect the original parties.

 In reviewing and balancing the question of timeliness, we are also guided 

by the generally accepted proposition that although the movant bears the burden of 

establishing its right to intervene, Rule 24 is to be given a liberal construction. 7C Wright 

& Miller, supra § 1904, 6 James W. Moore et al., Moore’s Federal Practice § 24.03 (1) (a) 
16

(3d ed. 2008). Rule 24 is designed, in part, to be a practical procedural tool promoting 

efficiency of the courts by resolving related issues in a single lawsuit while also protecting 

the interests of both the original parties and the non-parties. See, Smuck v. Hobson, 408 

F.2d 175, 179 (D.C. Cir. 1969) (intervention involves the accommodation of competing 

goals in achieving judicial economies of scale while preventing lawsuits from becoming 

too complex or unending). While it is axiomatic that parties often do not want others 

meddling in their litigation, intervention should be permitted when there is no prejudice 

and greater justice could be obtained with the inclusion of a non-party who has a real 

interest in the matter being litigated. See McDonald v. E. J. Lavino, 430 F.2d 1065, 1074

(5th Cir. 1970) (court should allow intervention in those circumstances when no original 

party will be hurt, and greater justice could be obtained).

Based upon the foregoing analysis, we conclude that the circuit abused its 

discretion in finding that SWN’s motion to intervene as of right was untimely because it 

based its denial solely on the passage of time without considering the factual context of the 

case, the status of the proceedings, and the prejudice, if any, to the Respondents and to 

SWN. Having concluded that the circuit court erred in denying SWN’s motion to intervene 

as of right on the basis of untimeliness, we now turn to addressing the other three factors 

an applicant to intervene must meet in order to intervene in pending litigation.
17

B. Interest in Property or Transaction

We now address whether SWN has “an interest relating to the property or 

transaction which is the subject of the action” pursuant to Rule 24(a)(2).

SWN argues that the circuit court erred when it determined that it had no 

interest relating to the property or transaction at the time Mr. Conley filed his Complaint 

and in finding that SWN could not create an interest subsequent to the filing of the 

Complaint. Simply stated, SWN’s position is that by virtue of its lease of the oil and gas 

mineral interests, it has a property interest in the 3.763-acre Conley tract which is at issue 

in the underlying title dispute. Thus, SWN argues that it has an absolute right to intervene.

Conversely, Respondents argue that SWN had no ownership interest at the 

time the Complaint was filed and instead sought to create an interest in the Conley parcel 

by improperly entering into an oil and gas lease with Mr. Conley some two years after the 

Complaint was filed and when SWN knew the ownership rights were in dispute. 

Respondents assert that the effort at creating an interest in the property was for the purpose 

of intervention which it contends is improper.

With respect to the interest claimed for purposes of intervention, this Court 

has held:

To justify intervention of right under West Virginia 

Rule of Civil Procedure 24(a)(2), the interest claimed by the 
18

proposed intervenor must be direct and substantial. A direct 

interest is one of such immediate character that the intervenor 

will either gain or lose by the direct legal operation and effect 

of the judgment to be rendered between the original parties. A 

substantial interest is one that is capable of definition, 

protectable under some law, and specific to the intervenor. In 

determining the adequacy of the interest in a motion to 

intervene of right, courts should also give due regard to the 

efficient conduct of the litigation.

State ex rel. Ball, 208 W.Va. at 396, 540 S.E.2d at 920, Syl. Pt. 4.

Applying those principles that for intervention, a movant’s interest must be 

direct, substantial, and legally protectable, to the instant case, we find that SWN claims an 

adequate property interest for purposes of intervention as of right. It is undisputed that 

SWN has an ownership interest in the Conley parcel. See Valentine v. Sugar Rock, Inc.,

234 W.Va. 526, 539, 766 S.E.2d 785, 798 (2014) (recognizing that an oil and gas lease is 

a mineral interest, that the lessee is the owner of the mineral interest during the term of the 

lease, and that oil and gas leases are a form of real property protectable by law); McCullogh 

Oil, Inc. v. Rezek, 176 W.Va. 638, 640, 346 S.E.2d 788, 790 (1986) (finding that an oil and 

gas lease is a conveyance of an interest in the land). Further, West Virginia jurisprudence 

establishes that all persons who claim an interest in property are necessary and 

indispensable parties to a quiet title action. See O’Daniels v. City of Charleston, 200 W.Va. 

711, 716, 490 S.E.2d 800, 805 (1997) (when a court proceeding directly affects an interest 

in real property those persons claiming an interest in the property are necessary parties). 

We further observe that it is well-recognized that “interests in property are the most 
19

elementary type of right that Rule 24(a) is designed to protect.” 7C Wright & Miller, supra

§ 1908.1.

We find that SWN’s acquisition of its property right after Mr. Conley filed 

his Complaint to quiet title is of no moment. This Court finds no authority supporting 

Respondent’s argument that the interest in the property or transaction must exist at the time 

of the filing of the Complaint. The language of Rule 24(a)(2) does not impose such a 

requirement and we are unwilling to create such a requirement in the face of silence in the 

plain language of the Rule.1

Our review compels the conclusion that the oil and gas lease interest claimed 

by SWN is a direct and substantial interest of SWN in the Conley property. It is an interest 

protectable under law and specific to SWN. The quiet title action involves determination 

of the question of ownership of the oil and gas rights. Clearly, such determination will 

result in SWN either gaining or losing “by the direct legal operation and effect of the 

judgment to be rendered between the original parties.” State ex rel. Ball, 208 W.Va. at

396, 540 S.E.2d at 920, Syl. Pt. 4. SWN’s interest in the Conley parcel may be invalidated 

1 We do not consider the Florida cases cited by the Respondents because they are 

inapposite. In Minge v. Davison, 115 So. 510 (Fla. 1928), the Florida court addressed a 

motion to intervene filed in a quiet title action after the trial court entered judgment. Here, 

no such judgment has been entered. The case of Nelson Bullock Co. v. South Down 

Development Co., 181 So. 365 (Fla. 1938) is not applicable because Florida did not, and it 

appears, still does not, have a right or rule regarding mandatory intervention as of right.
20

by judgment even though it was not a party to the case and had no opportunity to be heard. 

Moreover, any judgment may also detrimentally affect SWN’s other oil and gas leases in 

parcels which have the Milliken Deed in the chain of title. See Sierra Club v. Espy, 18 

F.3d 1202, 1207 (5th Cir. 1994) (finding that lumber companies had an interest sufficient 

for intervention because their existing timber contracts were threatened by an injunction 

potentially prohibiting the United States Forest Service from selling certain timber).

Accordingly, we find that the circuit court erred in concluding that SWN had 

no property interest and observe that it failed to apply the appropriate analysis regarding 

SWN’s interest in the property. State ex rel. Ball, 208 W.Va. at 396, 540 S.E.2d at 920,

Syl. Pt. 4. We now proceed to consider the third condition for intervention of right—the 

impairment of the applicant’s ability to protect its interest.

C. Impairment of Ability to Protect Interest

With respect to the factor requiring a court to consider whether disposition 

of the action may impair or impede the applicant’s ability to protect its interest this Court 

has held:

In determining whether a proposed intervenor of right 

under West Virginia Rule of Civil Procedure 24(a)(2) is so 

situated that the disposition of the action may impair or impede 

his or her ability to protect that interest, courts must first 

determine whether the proposed intervenor may be practically

disadvantaged by the disposition of the action. Courts then 

must weigh the degree of practical disadvantage against the 

interests of the plaintiff and defendant in conducting and 

concluding their action without undue complication and delay, 
21

and the general interest of the public in the efficient resolution 

of legal actions. 

State ex rel. Ball, 208 W.Va. at 396, 540 S.E.2d at 920, Syl. Pt. 5.

We observe that the circuit court did not analyze the question of whether 

there was an impairment of SWN’s ability to protect its property interest in accord with 

our jurisprudence as enunciated in State ex rel. Ball. Id. Instead, the circuit court 

concluded that since there was no property interest at the time the complaint was filed, the 

disposition of the case will not impair any property interest of SWN. 

SWN contends that the circuit court did not undertake any analysis regarding 

whether SWN may be practically disadvantaged by disposition of the case. It is argued 

that the circuit court failed to consider SWN’s ownership interest in the lease and how 

determination of the action may practically impair its ownership rights not only to the oil 

and gas underlaying the Conley parcel, but to other parcels in which SWN has an ownership 

or operating interest in and which are in the chain of title from the Milliken Deed.

The Respondents link their argument to the filing of the Complaint, 

contending that SWN had no property interest in the Conley parcel at the time the 

Complaint was filed. Thus, the argument is that it had no interest to protect.

We need not dwell on this factor. Inasmuch as we have concluded that SWN 

has an ownership interest in the title to the Conley parcel, it is plain that such interest may 
22

be practically affected by disposition of the case that will determine title and ownership 

issues. It is beyond question that the lack of participation in the litigation and trial before 

a jury may impair or impede SWN’s ability to protect their interest. Moreover, in weighing 

any disadvantage to SWN against the interest of Mr. Conley and the Respondents in 

conducting and concluding their action without undue complication and delay, we are 

persuaded by the action of the parties that there will be no undue complication or delay 

since Mr. Conley indicates he desires the participation of SWN and Respondents have 

made plain, by the service of the information gathering subpoena and the motion 

(subsequently withdrawn) to bring SWN in as a third-party defendant, that SWN has 

interests that may be affected by the civil action. We also find that the interest of the public 

in the efficient resolution of legal actions is properly served by permitting SWN’s 

intervention.

Accordingly, this Court concludes that the circuit court erred in concluding 

that the disposition of the civil action would not impair or impede SWN’s ability to protect 

its property interest. We now proceed to consideration of the fourth prong of Rule 24(a)(2) 

regarding whether SWN’s interest is adequately represented by existing parties.

D. Adequate Representation by Existing Parties

The circuit court determined that SWN aligned with Mr. Conley at least since 

entering into the oil and gas lease on March 7, 2017. At that time, the circuit court found, 

SWN knew of the dispute regarding the oil and gas rights underlying the Conley property 
23

and therefore cannot “complain that its fate is tied to the resolution of this case.” The 

circuit court remarked that if SWN had concerns about the ownership of the property, “it 

simply could have waited until this action was resolved to enter a lease with the victorious 

party.”

SWN argues that the circuit court erred because its interests were not 

adequately protected by Mr. Conley. SWN complains that the circuit court did not engage 

in any analysis of the prong of adequate representation as required by Rule 24(a)(2) and 

instead wrongly resorted to conclusory statements. SWN states that no party occupies a 

position similar to SWN’s role as a lessee with rights and intent to develop, by use of 

pooling together its various interests, including those of the Conley parcel. SWN asserts 

that any judgment will impact leases with other tracts in the chain of title from the Milliken 

Deed that are not part of the Conley parcel and Mr. Conley has no interest in title disputes 

involving other parcels. However, SWN contends that it has a strong interest in the 

resolution of the Milliken Deed which appears in the chain of title in other properties SWN 

owns or controls in Brooke County, West Virginia. It is contended that Mr. Conley has no 

stake in protecting those interests. SWN argues that its interest is greater than Mr. Conley’s 

due to the financial investment risks of developing the oil and gas interests. Finally, SWN 

contends that Mr. Conley simply does not have the financial resources to properly 

challenge the competing claims of the parties. 
24

In opposition, the Respondents argue that SWN entered into the lease with 

Mr. Conley with full knowledge of the title dispute and should not be rewarded for 

attempting to create an interest after the complaint was filed. The contention is that the 

interest of Mr. Conley and SWN are completely aligned such that SWN’s interest is 

identical to, and adequately protected by, Mr. Conley. Additionally, it is argued that there 

is no compelling evidence that Mr. Conley cannot adequately protect SWN’s interest.

In addressing the factor of adequate representation, this Court has recognized 

that “generally courts compare the interests asserted by the proposed intervenor with the 

interests of the existing party.” State ex re. Ball, 208 W.Va. at 403, 540 S.E.2d at 927

(citing 59 Am. Jur.2d Parties § 141). In further elucidation, the Court stated:

If the proposed intervenor’s interest is not represented by the 

existing party, or the existing party’s interests are adverse to 

those of the proposed intervenor, intervention should be 

granted. If the interests of the proposed intervenor and the 

existing party are similar, “a discriminating judgment is 

required on the circumstances of the particular case, but [the 

proposed intervenor] ordinarily should be allowed to intervene 

unless it is clear that the existing party will provide adequate 

representation for the absentee.” 7C Charles A. Wright, Arthur 

R. Miller & Mary K. Kane, Federal Practice and Procedure § 

1909, p. 319 (footnote omitted). See also 26 Fed. Proc. L.Ed. 

Parties § 59:303. Finally, if the interests are identical, 

intervention should be denied unless there is a compelling 

showing as to why the existing representation is inadequate. 

See 26 Fed. Proc. L.Ed. Parties § 59:303. A compelling 

showing may include, but is not limited to, adversity of 

interest, the representative’s collusion with an opposing party, 

or nonfeasance by the representative. 26 Fed. Proc. L.Ed. 

Parties § 59:304. 

208 W.Va. at 403, 540 S.E.2d at 927.
25

Our review of the record and arguments of the parties compels the conclusion 

that the instant matter presents a situation where the interests of SWN as the proposed 

intervenor and the existing party, Mr. Conley, are similar rather than adverse or identical. 

Accordingly, our plenary review focuses on the circumstances of the case, with the 

recognition that ordinarily, the intervention should be permitted. Indeed, the showing 

required of inadequate representation “should be treated as minimal.” Trbovich v. United

Mine Workers of Am., 404 U.S. 528, 538, n.10 (1972). Moreover, “all reasonable doubts 

should be resolved in favor of allowing the absentee, who has an interest different from 

that of any existing party to intervene so that the absentee may be heard in his own behalf.” 

7C Wright & Miller, supra § 1909.

We observe that Mr. Conley has adopted the positions and legal arguments 

as well as the authorities set forth in SWN’s brief. Specifically, Mr. Conley remarked that 

SWN has far more at stake in the case than he does and further represented that he does 

not have the financial resources to fully and adequately protect SWN’s interests. We are 

convinced that SWN’s interests are significantly different from Mr. Conley’s due to the 

nature of SWN’s business and its stated intent to finance and invest in developing the oil 

and gas by the mechanism of pooling which Mr. Conley has no interest in doing and no 

financial capital to undertake. We also consider that SWN’s interest in the construction of 

the Milliken Deed is greater than that of Mr. Conley’s due to itsinterests in property beyond 

the Conley parcel that will be affected by the Milliken Deed. We are also persuaded by 

the representations of SWN that its interests are distinct because Mr. Conley has received 
26

a per acre bonus payment for the execution of the lease and will retain those funds 

regardless of any production by SWN. It is stated that while Mr. Conley would benefit 

from production through payment of royalties, if the lease is not extended or SWN does 

not undertake development activities within the five-year term, the lease will expire. In 

that event, Mr. Conley would have the benefit of the initial bonus payment and have the 

ability to lease the rights again, which would involve the opportunity to negotiate another 

bonus payment.

Accordingly, this Court finds that the circuit court erred when it concluded 

that Mr. Conley adequately represented the interests of SWN.

In conclusion, we find that SWN (1) filed a timely motion to intervene, (2) 

has an interest in the property or transaction which is the subject of the quiet title civil 

action, (3) is so situated that the disposition of the quiet title action may, as a practical 

matter, impair its ability to protect that interest, and (4) SWN’s interest is not adequately 

represented by an existing party. Thus, SWN has a clear legal right to intervene in the 

pending civil action.2

2 Given this conclusion, it is not necessary for this Court to consider the question of 

permissive intervention.
27

IV. CONCLUSION

For the reasons stated above, the February 22, 2019, order denying SWN’s 

second motion for intervention in the above-styled matter is reversed and the case is 

remanded to the Circuit Court of Brooke County, West Virginia for further proceedings 

consistent with this opinion.

Reversed and remanded.