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In re Estate of McMullen8/2/2001
DECISION AND JUDGMENT ENTRY
Harsha, J.
The Ohio State University Hospital appeals from a judgment denying its motion to intervene in the Lawrence County Probate Court proceedings to distribute assets from the estate of Georgia McMullen. In prior proceedings, OSUH was found liable for her wrongful death. OSUH assigns two errors for our review:
Assignment of Error No. 1:
The Probate Court of Lawrence County erred when it denied The Ohio State University Hospital's Motion to Intervene as of right pursuant to Rule 24(A)(2) of the Ohio Rules of Civil Procedure.
Assignment of Error No. 2:
The Probate Court of Lawrence County erred when it denied The Ohio State University Hospital's Motion for Permissive Intervention pursuant to Rule 24(B) of the Ohio Rules of Civil Procedure.
Finding some merit in the argument in appellant's first assignment of error, we reverse and remand for further proceedings.
The OSUH filed a motion in probate court's administration of the estate of Mrs. McMullen to intervene under Civ.R. 24, accompanied by a complaint for declaratory judgment. The Lawrence County probate court denied the motion to intervene in an entry that reads in its entirety:
"This matter came before the Court upon the motion of the Ohio State University Hospitals in intervene in the wrongful death proceedings before this Court regarding the Estate of Georgia Gibson McMullen. Upon full consideration of the motion and Ohio law, the Court hereby determines said motion is not well taken and is denied by the Court. IT IS SO ORDERED."
We are asked to decide whether a state university tortfeasor that has a money judgment rendered against it in a wrongful death action can intervene in a probate court's distribution of those proceeds. OSUH argues that it should be allowed to intervene because distribution among the beneficiaries ultimately effects the extent of its right to statutory setoff for collateral source benefits under R.C. 3345.40(B)(2).
Appellant claims the right to intervene in the probate proceedings under Civ.R. 24(A) which states:
"(A) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * 2) when the applicant claims an interest relating to the property or transaction that 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 by existing parties.
Intervention as of right under Civ.R. 24(A)(2) is not a matter left wholly within the sound discretion of the trial court. See Thomas v. Cook Drilling Corp. (1997), 79 Ohio St.3d 547, 554 (Cook, J., dissenting). Instead, Civ.R. 24(A)(2) requires that "anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." See Fairview General Hospital v. Fletcher (1990), 69 Ohio App.3d 827.
Inclusion of the word "shall" limits, to some degree, the trial court's discretion to deny a motion to intervene under Civ.R. 24(A)(2). Accord Kash v. Buckeye Air Compressor (Feb. 11, 1994), Montgomery App. No. 14123, unreported ("shall" limits discretion to some degree); and Klein & Darling Baldwin's Ohio Practice, Civil Practice (19
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