Opinion
Docket No. 75069.
Decided May 6, 1985.
Honigman, Miller, Schwartz Cohn (by Stuart H. Teger), for Prudential Insurance Company. Shifman, Goodman Carlson, P.C. (by Burton R. Shifman and John A. Carlson), for Oak Park School District.
The Oak Park School District appeals as of right from a decision of the Michigan Tax Tribunal.
On June 29, 1981, North Pointe Properties filed a petition with the Michigan Tax Tribunal alleging that the actual true cash value of an office complex located in the City of Southfield was "no higher than $6,280,000" and seeking an adjustment in the property's 1981 assessment, which indicated a true cash value of $7,917,600. North Pointe later amended its petition to include the 1982 and 1983 tax years.
Prudential Insurance Company of America became the fee owner of the property on February 15, 1984, pursuant to an order of the United States Bankruptcy Court for the Eastern District of Michigan. By this Court's order of April 4, 1984, Prudential was substituted for North Pointe as petitioner-appellee.
On August 21, 1981, the Oak Park School District filed an appearance in the action. In May 1983, North Pointe and the city entered into a stipulation, which was filed with the Tax Tribunal on August 23, 1983. The stipulation provided for the property's assessment at a true cash value of $5,810,800 for each tax year in question. On August 25, 1983, the school district filed a motion to intervene, which was denied by the Tax Tribunal on September 29, 1983. On October 31, 1983, the tribunal entered a consent judgment pursuant to the stipulation.
The school district contends that the Tax Tribunal erred in denying its motion to intervene. The school district argues that the motion should have been granted as of right or, in the alternative, that the tribunal abused its discretion in denying the motion.
Section 44 of the Tax Tribunal Act, MCL 205.744(1); MSA 7.650(44)(1), provides in relevant part:
"[T]he tax tribunal may permit the intervention or impleading of any governmental unit which receives tax funds from the petitioner who is making the appeal."
This Court has twice held that this statute does not give a school district an absolute right to intervene. Northwood Apartments v Royal Oak, 98 Mich. App. 721; 296 N.W.2d 639 (1980); Thrifty Royal Oak, Inc v Royal Oak, 130 Mich. App. 207; 344 N.W.2d 305 (1983), remanded on other grounds 419 Mich. 915 (1984). The school district has failed to cite any considerations, not previously raised in the above cases, which would compel a contrary conclusion. Therefore, we hold that intervention by a school district in a proceeding before the Tax Tribunal pursuant to MCL 205.744; MSA 7.650(44) is a discretionary matter for the tribunal.
We must also determine whether the Tax Tribunal abused its discretion in denying the school district's motion to intervene. To accomplish this, we look by analogy to the standards for permissive intervention found in MCR 2.209(B), which states in relevant part:
"(B) Permissive Intervention. On timely application a person may intervene in an action
"(1) when a Michigan statute * * * confers a conditional right to intervene; * * *.
"In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
The first requirement for intervention pursuant to MCR 2.209(B) is timeliness. No time limits on the date of intervention are set forth in MCL 205.744; MSA 7.650(44). However, an intervenor must be diligent, and any unreasonable delay after knowledge of the action will justify a denial of intervention where no satisfactory excuse is shown for the delay. Northwood Apartments, supra, p 721.
In the present case, the Tax Tribunal found that the school district's motion to intervene was "grossly untimely" in that it was filed "over two years after the filing of the original petition". The school district clearly knew of the action from its inception because it entered its appearance only two months after North Pointe's petition was filed. Yet, the school district chose to wait over two years, until the original parties had reached a stipulation disposing of the action, before moving to intervene.
The school district argues that it chose not to intervene prior to the stipulation because it assumed that the subject property's true cash value would be settled at or above the $6,280,000 figure requested by North Pointe. Despite this partial justification, this Court finds that the school district's actions constitute an unreasonable delay sufficient to justify the tribunal's denial of the motion. The tribunal did not abuse its discretion in denying the motion to intervene.
In light of the Court's finding with regard to timeliness, it is unnecessary to consider whether the intervention would unduly prejudice the adjudication of the original parties' rights. The Court also notes that the Tax Tribunal did not address the question of prejudice.
The Tax Tribunal also based its denial of the school district's motion to intervene on the fact that, "there has been no allegation that the City of Southfield is not adequately and competently representing the interest of the Oak Park School District, other than the potential loss of tax revenue which, standing alone, is insufficient".
The standard of "adequate representation of interest" is employed in the context of intervention of right. MCR 2.209(A)(3); D'Agostini v Roseville, 396 Mich. 185; 240 N.W.2d 252 (1976). It is also found in § 44 of the Tax Tribunal Act, MCL 205.744; MSA 7.650(44), immediately following the subsection which applies to this case. However, the standard of "adequate representation of interest" is not relevant in an action, such as this, to determine whether the Tax Tribunal abused its discretion in denying permissive intervention.
Therefore, in light of our previously stated finding that the school district's motion to intervene was untimely, we hold that the Tax Tribunal did not abuse its discretion in denying that motion.
Affirmed.
J.H. GILLIS, J., concurred.
The majority opinion in this matter holds that a school district had no absolute right to intervene in the tax action and that permissive intervention was properly denied because the school district's motion to intervene was "grossly untimely". Because a timely application is required under either intervention of right or permissive intervention, MCR 2.209, I concur in the result only. I wish to reiterate my view that a school district whose budget may be profoundly affected by the outcome of a tax dispute has the right to intervene where the request is timely made. Thrifty Royal Oak, Inc v Royal Oak, 130 Mich. App. 207, 238-245; 344 N.W.2d 305 (1983), remanded on other grounds 419 Mich. 915 (1984).