An Order Denying Intervention By Right But Granting Permissive Intervention Is Not An Appealable Order
"In this case, for the first time, we are faced with the question of whether a trial court order granting permissive intervention, but denying intervention as a matter of right, is immediately appealable. It is not." Duffield v. Benton County Stone Co., No. 06-1329. The Court acknowledged that an interlocutory appeal normally lies against an order denying intervention as of right under Rule 2(a)(2) of the Appellate Rules of Appellate Procedure--Civil. This is because such is an order determines the outcome of the action as to the party attempting to intervene. In Duffield, however, the Court held that when the intervening party is granted permissive intervention in the same breath as it is denied intervention by right, the party's arguments as to intervention by right can be addressed on direct appeal after the outcome in the trial court. Since the order was not appealable, the Court held it lacked appellate jurisdiction and dismissed. An interesting note on this case is that the parties did not recognize the jurisdictional problem, which the Court raised sua sponte. More on the Court's analysis after the jump.
The holding in Duffiield is based on Cupples Farms Partnership v. Forrest City Production Credit Association, 310 Ark. 597, 839 S.W.2d 187 (1992), a case decided in the subrogation context. The Cupples analysis rests heavily on language from a case decided by Pennsylvania's intermmediate appeallate court, where an insurance company petitioned to intervene by right in an employee's case against a third party:
If the third party action is settled without notice to [the carrier], its subrogation claim is at the mercy of the employee who, having received payment, can dispose of the settlement proceeds as he chooses. The order of the trial court which denied intervention, therefore, has the practical effect of denying relief to [the carrier], which cannot fully protect its subrogation interests in any other way.
