THE STATE OF SOUTH CAROLINA
In The Supreme Court
Innovative Waste Management Inc., Crest Energy
Partners LP, Edward H. Girardeau, Plaintiffs,
Of Whom Innovative Waste Management, Inc. is the
Respondent,
v.
Crest Energy Partners GP, LLC, Dunhill Products GP,
LLC, Henry Wuertz, Innovative Waste Management Inc.,
Crest Energy Partners LP, Dunhill Products LP, Edward
H. Girardeau, C. Russ Lloyd, Defendants,
Of Whom Crest Energy Partners GP, LLC, Crest Energy
Partners LP, Dunhill Products LP, Henry Wuertz, and
Edward H. Girardeau are the Petitioners.
Appellate Case No. 2018-001528
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Dorchester County
Maité Murphy, Circuit Court Judge
Opinion No. 27862
Submitted January 15, 2019 – Filed February 6, 2019
AFFIRMED AS MODIFIED
David B. Marvel, of Charleston, for Petitioners.
Frederick John Jekel, of Jekel-Doolittle, LLC, of
Columbia; and William Michael Gruenloh, of Gruenloh
Law Firm, of Charleston; for Respondent.
PER CURIAM: Petitioners seek a writ of certiorari to review the court of appeals'
decision in Innovative Waste Management, Inc. v. Crest Energy Partners GP, LLC,
423 S.C. 611, 815 S.E.2d 780 (Ct. App. 2018). We grant the petition, dispense with
further briefing, and affirm the court of appeals' decision as modified.
We have no quarrel with the court of appeals' holding that the Form 4 order
of dismissal signed by the clerk of court was void, and the circuit court erred by
failing to restore the case to the docket once the settlement fell through. However,
in its discussion of Rule 41(a), SCRCP, the court of appeals included the following
observation:
Given the stage of IWM's case, it could have been
voluntarily dismissed only by a stipulation of dismissal
signed by all parties. Rule 41(a)(1), SCRCP.
Consequently, even if, after notice and hearing, a circuit
judge had signed the Form 4 purportedly ending the case
pursuant to Rule 41(a), it would have been error.
Innovative Waste Mgmt., 423 S.C. at 614, 815 S.E.2d at 781-82. We conclude this
is an incorrect statement of the law insofar as Rule 41(a) and the procedural posture
of this case are concerned. It is true that one of the ways this action could have been
dismissed was by stipulation of dismissal signed by all parties who had appeared in
the action. Rule 41(a)(1)(B). However, that was not the only way, as Rule 41(a)(2)
would have allowed the circuit court to dismiss this action "upon such terms and
conditions as the court deems proper." Rule 41(a)(2), SCRCP. Therefore, the
application of Rule 41(a) to the procedural posture of this case is correctly stated as
follows:
Given the stage of IWM's case, the dismissal referenced in
the email communication to the circuit court and clerk of
court and in the ADR report could not have been finalized
under Rule 41(a) except in one of two ways. First, under
Rule 41(a)(1)(B), the case could have been dismissed by a
stipulation of dismissal signed by all parties who had
appeared in the action. Second, pursuant to Rule 41(a)(2),
the action could have been dismissed "at the plaintiff's
instance . . . upon order of the court and upon such terms
and conditions as the court deems proper." Rule 41(a)(2),
SCRCP. If the dismissal had been entered in either of
these two ways, the judgment would have been voidable,
not void. However, neither scenario contemplated by Rule
41(a) occurred.
Trial courts frequently use the second option to maintain an accurate and
current docket. When a party notifies the court a case has settled, a Rule 41(a)(2)
order of dismissal may be entered to take the case off the docket while the parties
consummate the settlement. In our Federal Courts this is referred to as a "Rubin"
order.1 If the settlement falls through, the court may either restore the case to the
docket, or if asked, consider whether to enforce the settlement.
We agree the Form 4 order of dismissal signed by the clerk of court was void,
the circuit court erred by not restoring the case to the roster, and the court of appeals
correctly vacated the order. Accordingly, we affirm the court of appeals' opinion as
modified.
AFFIRMED AS MODIFIED.
BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.
1
The name "Rubin" order apparently comes from In re Corrugated Container
Antitrust Litigation, 752 F.2d 137 (5th Cir. 1985), an opinion written by the late
Honorable Alvin Rubin. In the opinion, the Fifth Circuit held that when a settlement
is incorporated into a court order, "The court retained jurisdiction . . . 'for the
purpose of effectuating the settlement.'" 752 F.2d at 141.