                                                                                                201i,
                                                                                                        NOV 13 :         59
                                                                                                Si.       ELF ;    SHINGTO
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
                                                                                                 BY

                                              DIVISION II

 STEPHEN J. WILSON and TRISH WILSON,                                        No. 44938- 2- 11
husband and wife,


                                   Respondents,


        v.



 MT. SOLO LANDFILL, INC., a Washington
 corporation; ROBERT RADAKOVICH,


                                   Defendants,


 KEYSTONE CONTRACTING INC.,                                           UNPUBLISHED OPINION


                                   Appellant.


       WORSWICK, P. J. —      Keystone Contracting, Inc. filed a motion to intervene in a nuisance

action commenced by Stephen and Trish Wilson against Robert Radakovich and Mt. Solo

Landfill, Inc., which motion the trial court denied. Keystone appeals, asserting that the trial

court erred when   it denied its   motion   to intervene as a   matter of right under   CR 24( a). Because


Keystone failed to satisfy the requirements of CR 24( a), we affirm the trial court' s order denying

its motion to intervene.


                                                   FACTS


       Robert Radakovich is the sole corporate officer of Mt. Solo Landfill, Inc., a company that

operated a landfill located in Longview, Washington. Stephen and Trish Wilson own property

sharing a common boundary with the landfill In February 2011, the Wilsons filed a nuisance

complaint against   Radakovich      and   Mt. Solo in Cowlitz    County   Superior Court, seeking
No. 44938- 2- 11



injunctive relief, as well as monetary damages for the diminution in value to their property, and

mental anguish.




        On August 8, 2011, the trial court entered an order limiting issues for trial, finding that

Radakovich and Mt. Solo failed to respond to the Wilsons' s request for admissions and, thus, the

trial court would treat those requested admissions as established facts in the pending trial. On

October 28, 2011, the trial court entered an order ( 1) denying Radakovich' s and Mt. Solo' s

motion to vacate the trial court' s August 8 order limiting issues for trial and ( 2) granting the

Wilsons' s motion for partial summary judgment. The trial court' s October 28 order found the

following:

                1. There exists no basis to vacate the Court' s Order of August 8, 2011.
                2. The undisputed factual record establishes that the defendants violated
        the Minimum Functional Standards for Solid Waste Handling per WAC 173 -304
        and Cowlitz County Code 15. 30; and
                3.    That defendants' post closure permit expired June 30, 2009; and the
        defendants have operated the subject landfill inconsistent with its previously
        approved     Post Closure Plan, Landfill Gas Operations &           Maintenance Plan, and
        Leachate Collection System Operations and Maintenance Plan.
                4.   There exists no genuine issue of material fact that the above unlawful
        acts and failure to perform legal duties constitute a nuisance per se, so that
        defendants, Mt. Solo Landfill, Inc., and Robert Radakovich are strictly liable to the
        plaintiffs for damages as a result.


Clerk' s Papers ( CP) at 39.


        In December 2011, Mt. Solo conveyed some of its real property to Keystone Contracting,

Inc. On December 5, 2012, the Wilsons filed a separate lawsuit against Mt. Solo and Keystone


that sought to set aside the December 2011 conveyance, alleging that the defendants engaged in a

fraudulent transfer of real property to avoid Mt. Solo' s debt to the Wilsons.

        On May 1, 2013, Keystone filed a motion to intervene as a matter of right in the

Wilsons'   s nuisance suit against   Radakovich   and   Mt. Solo   under   CR 24( a)( 2), which motion the


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No. 44938- 2- 11



trial   court   denied   on   May   15.   Keystone appealed the trial court' s order denying its motion to

intervene.


                                                       ANALYSIS


                                               I. MOTION TO INTERVENE


          Keystone asserts that the trial court erred by denying its motion to intervene as a matter

of right in the Wilsons' s nuisance suit against Radakovich and Mt. Solo. We disagree.

          We will reverse a trial court' s denial of a party' s motion to intervene as a matter of right

 only if   an error of     law has   occurred."     Westerman v. Cary, 125 Wn.2d 277, 302, 892 P. 2d 1067

 1994). In this     context, an error of       law is "`   an error in applying the law to the facts as pleaded

and established. '         Westerman, 125 Wn.2d at 302 ( quoting In Re Estate ofJones, 116 Wash. 424,

426, 199 P. 734 ( 1921)) ( internal          quotations omitted).         Thus, in determining whether Keystone

was entitled      to intervene in the Wilsons'       s nuisance action as a matter of right, we "`         look to the


pleadings, accepting the        well pleaded allegations             therein   as   true.'   Westerman, 125 Wn.2d at


302 -303 ( quoting American Discount              Corp.    v.   Saratoga W, Inc., 81 Wn.2d 34, 36, 499 P. 2d 869


 1972)).


           The court rule governing intervention, CR 24, provides in relevant part:

                     a)    Intervention      of   Right.        Upon timely application anyone shall be
           permitted      to intervene in    an action ... (      2) when the applicant claims an interest
           relating to the property or transaction which is the subject of the action and he is so
           situated that the disposition of the action may as a practical matter impair or impede
           his ability to protect that interest, unless the applicant' s interest is adequately
           represented by existing parties.

Our Supreme Court has interpreted CR 24( a) as containing four requirements that a party must

 satisfy before the trial court must grant the party' s motion to intervene as a matter of right:



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No. 44938- 2- 11



          1) timely     application    for intervention; ( 2) an applicant claims an interest which is
         the   subject of   the    action; (   3) the applicant is so situated that the disposition will
         impair    or   impede the          applicant' s    ability to   protect   the   interest;   and (   4) the

         applicant' s interest is not adequately represented by the existing parties.

Westerman, 125 Wn.2d          at   303.     If Keystone fails to satisfy any of these four requirements, we

need not examine the remaining requirements and must uphold the trial court' s order denying its

motion    to intervene.     Westerman, 125 Wn.2d at 303.


A.       Keystone' s Motion To Intervene was Timely

          As a preliminary matter, the Wilsons argue that Keystone' s motion to intervene in the

nuisance suit was not timely. We disagree.

          Keystone' s motion was timely because it filed its intervention motion on May 1, 2013,

well before the November 26, 2013 scheduled start of trial. See, e. g., American Discount Corp.

v.   Saratoga West, Inc., 81 Wn.2d 34, 43, 499 P. 2d 869 ( 1972) ( a motion to intervene under CR


24( a)( 2) is timely if filed     prior   to trial).   The cases the Wilsons rely on regarding timeliness of a

motion to intervene address motions filed after entry ofjudgment and, as such, are not applicable

to the facts here. 1 See Br. of Respondent at 2, 5 ( citing Kreidler v. Eikenberry, 111 Wn.2d 828,

766 P. 2d 438 ( 1989); Martin          v.   Pickering,     85 Wn.2d-241, 533 P. 2d 380 ( 1975); Olver v. Fowler,


131 Wn.     App.   135, 126 P. 3d 69 ( 2006), aff'd, 161 Wn.2d 655, 168 P. 3d 348 ( 2007); Columbia


Gorge Audubon Soc' y v. Klickitat County, 98 Wn. App. 618, 626, 989 P. 2d 1260 ( 1999)).




1 Keystone also satisfies the requirement that its interests in the nuisance lawsuit would not be
adequately represented by the existing parties. Radakovich and Mt. Solo failed to respond to
requests for admissions, resulting in the trial court treating those admissions as established facts.
Additionally, the trial court ultimately entered a default judgment against Radakovich and Mt.
Solo.



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No. 44938 -2 -II


B.         Keystone' s Claimed Interest in the Nuisance Lawsuit is Insufficient


            In its motion to intervene, Keystone claimed that it had an interest in minimizing a

damages award to the Wilsons in their nuisance suit against Radakovich and Mt. Solo because:


           Ifplaintiffs are successful in their fraudulent transfer action, they will be entitled to
           levy   execution on       property Mt. Solo Landfill, Inc.   conveyed   to Keystone.   RCW
           19. 40. 071( b).    To avoid execution, Keystone may choose to pay the judgment.

CP   at   9 ( footnote   omitted) ( emphasis added).




           Accepting Keystone' s pleadings as true, its claimed interest in the Wilsons' s nuisance

suit is still, at best, speculative and is contingent on the Wilsons ( 1) succeeding in their

fraudulent transfer action against it and Mt. Solo, and ( 2) choosing to execute the judgment

against the real property Keystone claims it purchased in good faith and for reasonable value.

Although there is scant case law addressing whether a claimed interest that is contingent on the

outcome of a separate action is too speculative to satisfy the requirements of CR 24, Division

One of this court has addressed a similar issue in Aguirre v. AT &T Wireless Services, 109 Wn.

App. 80, 33 P. 3d 1110 ( 2001).

           In Aguirre, the intervention applicant was a member of a class action suit against AT &T


that later opted out of class after the trial court preliminarily approved a settlement agreement

between AT &T         and     the   class members.   109 Wn. App. at 83 -84. After opting out of the class,

the applicant moved to intervene in the action to contest the proposed settlement agreement,


which motion the trial court denied. Aguirre, 109 Wn. App. at 84. The Aguirre Court upheld the

trial court' s order denying the applicant' s motion to intervene, reasoning:




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No. 44938 -2 -II



          Any speculation that approval of the Aguirre settlement would adversely affect the
          outcome of [a separate] class action [ suit against AT &T] that [ the applicant] filed
          does     not   mean [   the   applicant]    has   an   interest in the Aguirre     settlement.   Such
          considerations are not relevant to " interest" for purposes of CR 24( a).


109 Wn. App. at 87.

          Here, Keystone' s claimed interest in minimizing the damages flowing from the Wilson' s

nuisance suit against Radakovich and Mt. Solo only arises if (1) Keystone is found to have

engaged in a fraudulent transfer, an issue yet to be determined in the separate action filed against


it, and (2) the Wilsons' s choose to levy execution against the fraudulently transferred property or

its   proceeds under      RCW 19. 40. 071. As in Aguirre, this claimed interest is too speculative to


meet the requirements of CR 24( a)( 2).


          Although we hold that Keystone' s claimed interest in the Wilsons' s nuisance suit is

insufficient to satisfy CR 24( a)( 2), even if it were sufficient, Keystone also fails to demonstrate


that it is " so situated that the disposition [ of the nuisance suit would] impair or impede

 Keystone'    s]   ability to   protect [ it' s]   interest."    CR 24( a)( 2).   To the extent that Keystone has any

interest in the damages award flowing from the Wilsons' s nuisance suit against Radakovich and

Mt. Solo, such interest is contingent on the outcome of the Wilsons' s separate fraudulent transfer

suit against it and Mt. Solo. As a party in the fraudulent transfer suit, Keystone is in a position to

protect its interest by defending against the Wilsons' s claim that it had engaged in a fraudulent

transfer with Mt. Solo. Accordingly, we affirm the trial court' s denial of Keystone' s motion to

intervene.


                                                      II. ATTORNEY FEES


          The Wilsons' s request that we sanction Keystone and award the Wilsons' s attorney fees

and costs under RAP 18. 9 for Keystone' s conduct in filing a frivolous appeal intended to harass

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No. 44938 -2 -II



the Wilsons     and   to   delay resolution   of   their   nuisance suit. "` [   A]n appeal is frivolous if there are


no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit

that there   was no   possibility     of reversal. "'   Millers Cas. Ins. Co.,       of Texas v. Briggs, 100 Wn.2d

9, 15, 665 P. 2d 887 ( 1983) (       quoting Streater v. White, 26 Wn. App. 430, 434 -35, 613 P.2d 187

 1980)).     Although ultimately meritless, given the scant case law on the issue, we hold that

Keystone'     s appeal presented       debatable issues      and was not "'   so totally devoid of merit that there

was no     possibility     of reversal.'"   Millers, 100 Wn.2d at 15 ( quoting Streater, 26 Wn. App. at

434 -35).    Accordingly, we deny the Wilsons' s request for attorney fees and costs.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




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