                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS

Royce B. Saville,
Plaintiff Below                                                                       FILED
                                                                                    May 26, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
vs.) No. 19-0560 (Hampshire County 16-C-70)                                       SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA

City of Romney,
Defendant Below, Respondent


                                MEMORANDUM DECISION

        Petitioners 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 response 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 intervene in this civil action to prevent the City of Romney
(“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 foot by twenty foot 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 council
meeting on December 7, 2015, and advised the City 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 unspecified additional amount if the City transferred the plots by a warranty
deed. The City’s mayor 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
council of his continued desire to purchase the lots in the Indian Mound Cemetery. He explained

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           Mr. Saville, plaintiff below, did not participate in this appeal.
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that he was the President of the Indian Mound Cemetery Association and Chairman of the Romney
Historic 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 willing to accept whatever
interest the City had in the property.

        During the January 4, 2016, meeting, 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, Petitioner Charles Hall made a presentation to the council describing
the historical significance of the site. The 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 attempt to rescind its contract with him,
and accused Petitioner 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 complaint 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 containing 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 more than a year of litigation, the City decided to compromise this case,
and, on October 23, 2017, the circuit 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 City’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, on October 25, 2017, two days after the entry of the final order of
dismissal, Petitioner Hall filed a motion to intervene and to set aside the dismissal order.2
Thereafter, on November 3, 2017, Petitioner Carol Heckler filed a motion to intervene and to set
aside the final order. Mr. Saville filed a response to the motions.

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

       On May 24, 2019, the circuit court entered its order denying petitioners’ motions to
intervene and dismissed 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


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          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. However, none of
these organizations attempted 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.
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that time. Further, the court reasoned that granting the motions to intervene would significantly
prejudice the original parties, as the matter had already been dismissed with prejudice. The circuit
court noted that Petitioner Hall had filed a separate civil action that remains active on the court’s
docket, outlines the same or similar grievances, and seeks relief similar to that alleged 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 [West 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 defense 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 intervention 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).

        Timeliness 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 months before Mr.
Saville filed his September 8, 2016, complaint against the City. Despite this knowledge, petitioner
Hall waited for more than one year after the 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 that petitioners failed to meet the timeliness

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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 erroneous. 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 circuit
court’s order denying petitioners’ motions 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




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