ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
In the above captioned matter, the Authority requested a contested case to challenge the Department's
denial of the landfill permit it sought. By letter dated June 20, 2001, Petitioner notified this tribunal that
the Department and the Authority had reached an agreement. As a result, Petitioner wished to withdraw
its request for a contested case hearing. Pursuant to a conference call conducted on June 21, 2001, with
counsel for all parties, it was clarified that the Authority and the Department have entered into a written
agreement, whereby the Authority has agreed to withdraw its request for a contested case and the
Department has agreed to allow the Authority to correct deficiencies and reapply for the permit. The
Intervenors strenuously object to the voluntary dismissal of this matter without requiring that they be
allowed the opportunity to approve or disapprove the agreement. There are two issues before this
tribunal: (1) the agreement and (2) Petitioner's withdrawal of its request for a contested case.
THE AGREEMENT
The agreement between the Department and the Authority is not part of the record before this tribunal
and cannot be considered as a basis for dismissal. Thus, this tribunal in granting this dismissal is not
sanctioning, approving, or validating the agreement in any way. That agreement is not part of this
Order and is not enforceable by this tribunal. Further, any such agreement would be void to the extent
that it purports to govern beyond the fundamental rights already held by the parties as otherwise
provided by law, such as Petitioner's right to withdraw its request and its right to reapply to the
Department for the permit. ALJD Rule 68 (2001) provides that the Rules of Civil Procedure may be
applied where practicable. In consulting Rule 43(k), SCRCP, for guidance, it is clear that the agreement
is not enforceable unless it is reduced to writing in the form of a Consent Order and signed by all parties
or read into the record in open court. In addition, any such settlement must be approved by the court.
Thus, the purported agreement is not binding and is of no practical legal effect.
It is fundamental that a case cannot be dismissed pursuant to a settlement entered between some parties
to the exclusion of other parties. "[N]or will an appeal be rendered moot by a settlement which does not
resolve all the claims of all the parties." 5 Am.Jur.2d Appellate Review § 654 (Supp. 2001).
To allow a settlement between parties to moot an extant appeal concerning intervention of right might
well provide incentives for settlement that would run contrary to the interests of justice.
FDIC v. Jennings, 816 F.2d 1488, 1491 (10th Cir. 1987). Any agreement set out in writing, signed by all
parties including the Intervenors and approved by this tribunal would, of course, be enforceable and
given full effect.
VOLUNTARY DISMISSAL
Nonetheless, Petitioner has indicated that it does not wish to pursue the permit application that is the
subject of this contested case. ALJD Rule 68 (2001) provides that the Rules of Civil Procedure may be
applied where practicable. Thus, in considering the voluntary withdrawal of Petitioner's request for a
contested case hearing, Rule 41(a)(2), SCRCP, provides guidance. "[A]n action shall not be dismissed
at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court
deems proper." In interpreting this provision, the South Carolina Supreme Court has stated:
The granting or denial of a motion for a voluntary dismissal without prejudice is within the sound
discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion.
Bradshaw v. Ewing, 297 S.C. 242, 247, 376 S.E.2d 264, 267 (1989). Furthermore, other South Carolina
authority states that:
As a general rule, the court must grant the motion absent a showing of legal prejudice to the adverse
party, i.e., the judge has no discretion in ruling on the motion until the adverse party establishes legal
prejudice. The only clear exception to this general rule is a case involving important issues of public
policy that need prompt and final resolution.
Alex Sanders et al., Trial Handbook for S.C. Lawyers § 4.2 at 193-94 (2000) (citations omitted) (citing
primarily Prime Medical Corp. v. First Medical Corp., 291 S.C. 296, 353, S.E.2d 294 (Ct. App.
1987);Bowen & Smoot v. Plumlee, 301 S.C. 262, 391 S.E.2d 558 (1990)).
Thus, this case must be dismissed based on Petitioner's unconditional withdrawal of its request for a
contested case hearing absent proof of legal prejudice or important public policy issues that require
prompt resolution. Such is not the case here. "Presumably, this right of dismissal is a one time right,
such that subsequent dismissals are in the court's discretion." Sanders, supra at 194. Further, the court
can condition the dismissal to ensure fairness to all parties. "[I]f a trial court imposes terms and
conditions upon a dismissal which are unacceptable to the claimant, the claimant may elect to proceed
with the litigation. . . ." 5 Am.Jur.2d Appellate Review § 654 (Supp. 2001). No conditions of
dismissal are imposed in the present case.
It is fundamental that Petitioner cannot be required to press its case except as outlined above. This
tribunal cannot prevent Petitioner from withdrawing its request for a contested case challenging the
denial of its application and submitting successive applications to the Department. Counsel for
Petitioner stipulated that if the dismissal were granted, it should be with prejudice. Counsel for
Petitioner has chosen to withdraw its request for a contested case hearing; while there may be other
ramifications from this decision, those are for Petitioner to consider, not this tribunal.
ORDER
Thus, pursuant to the motion before this tribunal and the conference call, Petitioner's withdrawal of its
request for a contested case is GRANTED. Furthermore, the agreement is of no effect unless and until
it is signed by all parties and approved by this tribunal. Therefore, since Petitioner wishes to withdraw
its request for a contested case hearing,
IT IS HEREBY ORDERED that the hearing scheduled for June 25-29, 2001 is canceled. IT IS
FURTHER ORDERED that the Order dismissing this case filed on June 20, 2001, is vacated and this
Order substituted therefor.
IT IS FURTHER ORDERED that this case is dismissed with prejudice.
IT IS FURTHER ORDERED that Mr. Hodge shall provide a copy of "the agreement" between the
Authority and the Department to all parties and this tribunal within fifteen (15) days of the date of this
Order. This tribunal will retain jurisdiction over this matter as it relates to the agreement and will deem
such agreement void insofar as it exceeds the fundamental rights of the parties as otherwise provided by
law. If there are issues regarding the agreement, parties must raise them within thirty (30) days of the
date of this Order.
AND IT IS SO ORDERED.
_________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 22, 2001
Columbia, South Carolina |
