This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1715

MacMillan Bloedel of America, Inc.,

an Alabama corporation,

Respondent,

vs.

Northwest Cedar Products, Inc.,

Respondents,

and

Southwest State Bank of Windom, et al.,

intervenors and third-party plaintiffs,

Respondents,

vs.

Northwest Cedar Products, Inc., third-party defendant,

Respondent,

MacMillan Bloedel of America, Inc.,

an Alabama corporation, third-party defendant,

Respondent,

Robert L. Voda, third-party defendant,

Respondent,

and

Jonti-Craft, Inc., petitioning intervenor and

third-party plaintiff,

Appellant,

Dakota Corrugated Box Company,

a South Dakota corporation, petitioning

intervenor and third-party plaintiff,

Appellant,

vs.

Northwest Cedar Products, Inc., proposed

third-party defendant,

Respondent,

MacMillan Bloedel of America, Inc., an Alabama

corporation, proposed third-party defendant,

Respondent.

Filed January 21, 1997

Affirmed

Schumacher, Judge

Cottonwood County District Court

File No. C994371

Todd A. Wind, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for Respondent MacMillan Bloedel of America)

Northwest Cedar Products, Inc., 614 Sherman Street, Jackson, MN 56143 (Respondent)

Steven L. Handevidt, 309 Sherman Street, Post Office Box 225, Jackson, MN 56143 (for Respondents Southwest State Bank of Windom, et al.)

Robert L. Voda, 614 Sherman Street, Jackson, MN 56143 (Respondent Pro Se)

Brian L. White, White Law Office, Post Office Box 39, Wabasso, MN 56293 (for Appellant Jonti-Craft)

Daniel J. Nichols, Nichols, Rabuck & Bratt, P.C., 427 North Minnesota Avenue, Suite 101, Sioux Falls, SD 57104-2444 (for Appellant Dakota Corrugated Box)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Jonti-Craft, Inc. and Dakota Corrugated Box Company appeal from a denial of their motion to intervene as of right, arguing the district court erred in holding that the motion was untimely and that they have no interest in the subject matter of the underlying action. We affirm.

FACTS

Respondent MacMillan Bloedel of America, Inc. (Bloedel) is a supplier of raw cedar building materials. Respondent Northwest Cedar Products, Inc. (Northwest) was a manufacturer of cedar products.

In September 1991, Bloedel agreed to provide and store raw cedar at Northwest's facility. Bloedel alleged that it still owned the cedar and that Northwest would pay for the cedar as needed. Northwest disputed that Bloedel owned the cedar.

By June 1994, Northwest was out of business. Respondents Southwest State Bank of Windom, Farmers & Merchants State Bank of Alpha, Southwest Minnesota Initiative Fund, and the City of Windom (collectively "the Lenders") perfected security interests totalling more than $500,000.

On October 18, 1994, Bloedel started a breach of contract action against Northwest, seeking $446,000 in damages. On November 3, 1994, Bloedel obtained and executed a replevin order for the raw cedar and some finished goods (Northwest's assets) located at Northwest's facility. Bloedel sold Northwest's assets and recovered $414,662.05.

On November 3, 1994, the Lenders intervened, claiming that their secured interests superseded Bloedel's interest and that they were entitled to the proceeds from the sale of Northwest's assets. Trial was scheduled for July 16, 1996.

Jonti-Craft and Dakota are judgment creditors of Northwest whose writs of execution were returned as "no property found." In March 1996, Jonti-Craft and Dakota learned of the pending litigation among Bloedel, Northwest, and the Lenders. On June 6, 1996, Jonti-Craft and Dakota moved to intervene. The district court denied the motion, holding that it was untimely and that Jonti-Craft and Dakota did not have an interest in the subject matter of the underlying action. Jonti-Craft and Dakota appeal.

D E C I S I O N

On appeal, review of the appropriateness of an order denying intervention as of right is de novo. Norman v. Refsland, 383 N.W.2d 673, 676 (Minn. 1986). A non-party may intervene as of right only if:

1) The application is timely made;

2) The application demonstrates an interest relating to the property or transaction that is the subject of the action;

3) 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 its interest; and

4) The non-party shows that it is not adequately represented by the existing parties.

Minn. R. Civ. P. 24.01; Blue Cross/Blue Shield of R.I. v. Flam, 509 N.W.2d 393, 395 (Minn. App. 1993), review denied (Minn. Feb. 24, 1994).

1. The timeliness of an application for intervention depends upon the particular circumstances involved and such factors as how far the suit has progressed, the reason for the delay in seeking intervention, and any prejudice to the existing parties because of the delay. SST, Inc. v. City of Minneapolis, 288 N.W.2d 225, 230 (Minn. 1979).

Here, Jonti-Craft and Dakota moved to intervene slightly more than a month before trial was to start and after the time for discovery had closed. Jonti-Craft and Dakota knew of the litigation for three months before making the motion. Jonti-Craft and Dakota did not explain the delay. The district court was correct in concluding that Jonti-Craft and Dakota's motion to intervene was untimely. The district court did not make a finding of prejudice, and we need not do so because of our analysis below.

2. The district court held that Jonti-Craft and Dakota did not have an interest in the subject matter of the underlying action. We agree. Jonti-Craft and Dakota do not have any interest in the underlying action because if Bloedel were adjudicated the owner of Northwest's assets, then neither the Lenders, as secured creditors of Northwest, nor Jonti-Craft and Dakota, as judgment creditors, would have any right to the assets. Alternatively, if Bloedel were not adjudicated the owner, then the Lenders would be entitled to the proceeds as secured creditors, and because the proceeds do not cover the Lenders' secured claims, there would be no excess left for Jonti-Craft and Dakota. Under either possibility, Jonti-Craft and Dakota cannot recover any of Northwest's assets, and therefore do not have any interest in the subject matter of the underlying action.

Because it is clear that Jonti-Craft and Dakota's motion to intervene is deficient under both of the first two factors, there is no need to analyze the remaining factors.

Affirmed.