Thе CITY OF DELTA, a Municipal Corporation, Plaintiff-Appellee,
v.
Vern O. THOMPSON et al., Defendants,
v.
Ethel NAVE and James Redwood, Intervenors-Appellants.
Colorado Court of Appeals, Div. II.
*1293 Nicholas E. Darrow, Delta, for plaintiff-appellee.
Joseph M. Epstein, Steven L. Zimmerman, Denver, for intervenors-appellants.
Selected for Official Publication.
ENOCH, Judge.
Ethel Nave and Jаmes Redwood (intervenors) appeal from a judgment entered pursuant to C.R.C.P. 54 which denied their motion to intervene of right in a suit pending between the City оf Delta and Thompson, et al. We reverse.
The City of Delta initiated an action against Harold's Nursing Home located in Delta and several offiсials of the State of Colorado. In that action, the city alleged that the housing of persons in the nursing home who have been adjudicated mentally deficient or mentally ill, and the state's transference of such persons to the nursing home, violates the city's zoning ordinances. The intervenors arе residents of the nursing home who have been adjudicated mentally deficient. On motion of the intervenors to intervene in the action and to represent the nursing home residents as a class, the trial court permitted representation of the class but denied the right to intervene.
C.R.C.P. 24(a)(2) establishes the thrеe requirements for intervention of right.
The first requirement is "an interest relating to the property or transaction which is the subject of the action." In Dillon Co., Inc. v. City of Boulder,
The second requirement is that the "disposition of the action may as a practical matter impair or impede his ability to protect that interest." Since the intervenors' ability to protect their interest in their residence will definitely be impairеd by an adverse disposition of the action, the second requirement is met.
The third requirement is that the intervenors' interest will not be adequately reprеsented by existing parties. Counsel for the nursing home stated, in the hearing on the motion, that they do not represent the residents and that they may not have stаnding to raise some of the constitutional arguments advanced by the intervenors. Neither are the interests of the intervenors being represented by the Attorney General, who represents the state officials. Although the Attorney General raises some constitutional arguments on behalf of the residents, his major allegation is that the state officials are not proper parties in the action. Thus, the intervenors are without adequate reрresentation, and meet the third requirement for intervention of right. See Roosevelt v. Beau Monde Co.,
The rules of intervention are to be liberally construed so that all related contrоversies may be settled in one action, Senne v. Conley,
*1294 Howevеr, the appellee urges that the denial of the motion to intervene should be upheld because the record fails to demonstrate the еxistence of an attorney-client relationship between the named intervenors and the attorneys who entered an appearance on their behalf. Appellants, in response, argue that this is an assertion of cross-error not properly before this court.
The general rulе is that an appellee must cross-appeal in order to have the appellate court consider any alleged error of the trial court prejudicial to the appellee. See Newt Olson Lumber Co. v. School District No. 8,
This result may be avoided by adopting a rule similar to that long established in federal courts. This rule was stated by Justice Brandeis in United States v. American Railway Express Co.,
"The Southeastern insists that these claims, although adequately presented in the bill of complaint, cannot be availеd of in this court, because they were overruled by the District Court and the American did not take a cross-appeal. The objection is unsound. It is true that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement thе decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross-appeаl, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it."
See also Dandridge v. Williams,
The Colorado cases which have stated the general rule have been cases to which this exception, adopted from the federal courts, would not apply, since appellee was attacking the decree with a view to enlarging his rights thereunder, rather than merely supporting the judgment. See Newt Olson Lumber Co. v. School District No. 8, supra; Rio Grande Southern R. R. v. Colorado Fuel & Iron Co.,
Additionally, in Bushner v. Bushner,
In this case, the appellees have raised, in both the trial court and upon appeal, the issue of the authority of the attorneys to represent the clients on whose behаlf they have entered an appearance. Since this is merely a second ground upon which this court could uphold the decision of the trial court, it is properly before this court even though no notice of cross-appeal was filed by appellee.
The trial court has thе inherent authority to determine the attorney-client issue, Williams v. Uncompahgre Canal Co.,
The judgment is reversed as to the issue of the intervenors' standing to intervene of right and the cause is remanded for a determination of the authority of the attorneys to represent the named intervenors.
PIERCE and KELLY, JJ., concur.