GEATHERS, J.
In this breach of contract case, Appellant Michael Cunningham seeks review of the circuit court's order granting summary judgment to Respondent Anderson County (the County) on all of Cunningham's causes of action. Cunningham challenges the circuit court's conclusion that his employment contract with the County was void. Cunningham also challenges the circuit court's conclusions that (1) he could not avail himself of the public policy exception to the at-will employment doctrine, and (2) his accrued sick leave did not constitute "wages" under the South Carolina Payment of Wages Act.
The County operates under a Council-Administrator form of government, in which the Council employs an administrator to serve as the administrative head of the County's government. The administrator is responsible for the administration of all departments over which the Council has control.
During its November 18, 2008 meeting, the lame-duck Council (the 2008 Council) amended the previously-noticed agenda to vote on a severance contract with the then-current administrator, Joey Preston. This contract was drafted in anticipation of the termination of his employment. The 2008 Council voted 5-2 in favor of the contract.
On January 6, 2009, the new Council (2009 Council) met and passed a resolution condemning the 2008 Council's actions in entering into the severance contract with Joey Preston and
At its February 3, 2009 meeting, the 2009 Council voted to terminate Cunningham's employment, stating that he had rejected the 2009 Council's two separate proposals for an at-will employment contract.
Cunningham filed this action on April 22, 2009, asserting causes of action for Breach of Contract, Wrongful Discharge, and violation of the Payment of Wages Act. The parties engaged in discovery on the breach of contract claim but agreed to postpone discovery on the wrongful discharge claim until after the contract claim had been resolved. Subsequently, Cunningham filed a motion for summary judgment as to the breach of contract claim. The County filed a cross-motion for summary judgment as to all three causes of action in Cunningham's complaint. Cunningham then filed a second
In granting the County's summary judgment motion, the circuit court concluded that Cunningham's 2008 contract was void and could not bind the 2009 Council. The circuit court also concluded that Cunningham's claim for accrued sick leave was not compensable under the Payment of Wages Act because (1) the County did not have a policy of compensating its at-will employees for accrued sick leave upon their termination; (2) the provision for sick leave in Cunningham's contract was part of a void contract; and (3) the sick leave provision was part of the severance package set forth in the contract, and the Payment of Wages Act excludes severance from the definition of "wages." Finally, the circuit court concluded Cunningham could not avail himself of the public policy exception to the at-will employment doctrine in support of his wrongful discharge claim because he did not claim that he was an at-will employee. This appeal followed.
1. Did the circuit court err in granting summary judgment to the County as to the breach of contract cause of action on the ground that Cunningham's employment contract was void?
2. Did the circuit court err in granting summary judgment to the County as to Cunningham's cause of action for violation of the South Carolina Payment of Wages Act on the ground that Cunningham's accrued sick leave did not constitute "wages" under the Act?
3. Did the circuit court err in granting summary judgment to the County as to Cunningham's wrongful discharge cause of action on the ground that Cunningham did not claim he was an at-will employee?
This court reviews the grant of a summary judgment motion under the same standard applied by the trial court pursuant to Rule 56(c), SCRCP. Jackson v. Bermuda Sands, Inc., 383 S.C. 11,
An adverse party may not rely on the mere allegations in his pleadings to withstand a summary judgment motion, but must set forth specific facts showing there is a genuine issue for trial. Strickland v. Madden, 323 S.C. 63, 68, 448 S.E.2d 581, 584 (Ct.App.1994). Nonetheless, "in cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment." Hancock v. Mid-S. Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). "In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party." Id. at 329-30, 673 S.E.2d at 802.
Cunningham asserts the circuit court erred in concluding that his employment contract was void. We disagree.
In Piedmont Public Service District v. Cowart, this court considered a twenty-year employment contract between a special purpose district and its administrator that required five years' severance pay. 319 S.C. 124, 459 S.E.2d 876 (Ct.App.1995) (Cowart I), aff'd, 324 S.C. 239, 478 S.E.2d 836 (1996) (Cowart II). Relying on Newman v. McCullough, 212 S.C. 17,
In discussing contracts involving governmental or legislative powers, the opinions in Cowart I and Cowart II referenced not only municipalities but also "each governing body" and "the local governing body." Cowart II, 324 S.C. at 241, 478 S.E.2d at 837 (holding that the appointment of a public officer "is a governmental function that cannot be impaired by an employment contract extending beyond the terms of the members of the local governing body"); Cowart I, 319 S.C. at 133, 459 S.E.2d at 881 ("[I]t is clear the rule is intended to protect the public by insuring that each governing body has available to it the powers necessary to effectively carry out its duties."). By logical extension, the fundamental principle applied in Cowart I and Cowart II also applies to Anderson County's actions in the present case.
Id. at 132, 459 S.E.2d at 880 (emphasis added). Quoting from Newman, the court set forth the following rationale:
Id. at 132, 459 S.E.2d at 880-81 (quoting Newman, 212 S.C. at 25-26, 46 S.E.2d at 256) (emphasis added). The court distinguished between proprietary and governmental functions as follows:
Id. at 132-33, 459 S.E.2d at 881 (emphasis added) (citations omitted). Examples of proprietary functions include a town's contract with a private corporation to furnish parking meters to the town
In Cowart II our supreme court emphasized that the appointment or removal of a public officer "is a governmental function that cannot be impaired by an employment contract extending beyond the terms of the members of the local governing body." 324 S.C. at 241, 478 S.E.2d at 837 (emphasis
Cunningham argues that Cowart I and Cowart II do not apply to this case because Cowart I applied the common-law principle known as Dillon's Rule, which our supreme court
The court in Cowart I, which post-dated the Home Rule Act, admittedly recited Dillon's rule at the beginning of its discussion of the contract's validity. 319 S.C. at 131, 459 S.E.2d at 880. However, the court did not ultimately rely on Dillon's rule in determining that Cowart's employment contract was void. Rather, the court relied on the independent principle that governmental bodies have no authority to impair the power and discretion delegated to their successors by the public,
212 S.C. at 25-26, 46 S.E.2d at 256 (emphasis added).
As stated above, when determining whether a contract is binding on successor governing bodies, "the true test is whether the contract itself deprives a governing body, or its
Cunningham also argues that the County's enabling legislation, the Home Rule Act, clearly authorized the lame-duck council to enter into an employment contract extending beyond the outgoing members' terms of office. We disagree. Section 4-9-620 of the South Carolina Code (1986) states, in pertinent part, "The term of employment of the [county] administrator shall be at the pleasure of the council and he shall be entitled to such compensation for his services as the council may determine. The council may, in its discretion, employ the administrator for a definite term."
Cunningham further maintains "[a] limiting interpretation of Section 4-9-620 also violates both the constitutional and statutory requirements that grants of power to Anderson County be interpreted as broadly as possible to include any fairly implied powers." Cunningham relies on S.C.Code Ann. § 4-9-25 (Supp.2012), which we previously referenced in this opinion. Section 4-9-25 requires the powers of a county to be liberally construed. Section 4-9-25 states in full:
S.C.Code Ann. § 4-9-25 (Supp.2012) (emphasis added).
We do not view this provision as authorizing a county's lame-duck council to bind the successor council as to governmental functions. Quite to the contrary, Cunningham's argument that the outgoing Council could so bind its successor would have a restrictive effect on county powers rather than a liberal one — that is, it would be restrictive on the successor governing body. Again, we find the statutory requirement to liberally construe the powers of a county, as long as consistent with our Constitution and general laws, to be compatible with Newman's policy of prohibiting local governing bodies from binding their successors as to governmental functions unless clearly authorized by enabling legislation.
Cunningham argues in the alternative that the payment of severance under his employment contract would be a proprietary function rather than a governmental function, and, hence, the 2008 Council was permitted to bind the 2009 Council as to payment of his severance. See Cowart I, 319 S.C. at 132, 459 S.E.2d at 880 (holding that if the contract involves the exercise of the municipal corporation's business or proprietary powers, it is binding on successor bodies "if, at the time the contract was entered into, it was fair and reasonable and necessary or advantageous to the municipality"). Again, the appointment
Based on the foregoing, the circuit court properly concluded that Cunningham's 2008 contract was void and could not bind the 2009 Council. Therefore, we affirm summary judgment for the County on this cause of action.
Cunningham asserts the circuit court erred in concluding that his accrued sick leave did not constitute "wages" under the Payment of Wages Act. Contrary to the circuit court's ruling, Cunningham argues that the Act's exclusion of "severance" from the definition of "wages" does not bar his claim for sick leave because his contract's provision for payment of accrued sick leave was not part of the severance package required by the contract.
This court may affirm for any ground appearing in the record on appeal. Rule 220(c), SCACR. Here, we need not determine whether sick leave was part of the contract's severance package because the sick leave claim is based solely on the proposition that the contract was valid and binding on the 2009 Council.
Cunningham maintains the circuit court erred in concluding he could not avail himself of the public policy exception to the at-will employment doctrine on the ground that he did not claim he was an at-will employee. We agree.
Barron v. Labor Finders of S.C., 393 S.C. 609, 614, 713 S.E.2d 634, 636-37 (2011) (citations and quotation marks omitted).
Further, the existence of an employment contract does not preclude a determination that the employment is terminable at will. See Cape v. Greenville Cnty. Sch. Dist., 365 S.C. 316, 319, 618 S.E.2d 881, 883 (2005) ("An employment contract for an indefinite term is presumptively terminable at will....").
Here, within the wrongful discharge cause of action in the complaint, Cunningham alleged that the County conditioned his continued employment on his agreement to (1) "implement directives of individual council members, including those that violate actions directed by the body itself[;]" (2) commit acts violating "the public policy regarding the respective powers of Administrator and Council[;]" and (3) "commit acts that, upon information and belief, would violate the policy set forth in S.C.Code Ann. § 16-17-560[.]" Section 16-17-560 prohibits discharging a citizen from employment because of political opinions or the exercise of political rights and privileges.
The County states that Cunningham has never claimed to be an at-will employee, and, therefore, he may not obtain relief based on the law governing at-will employment. The County's statement is not entirely correct. Cunningham presented to the circuit court a "Supplemental Filing Regarding Plaintiffs Motions for Summary Judgment on Count[s] I and III and Defendant's Motion for Summary Judgment as to Counts I-III." Curiously, in this filing, Cunningham likened
On appeal, Cunningham continues to rely on Stiles by characterizing his contract as providing for "at-will status with a notice provision." Even though we have already determined Cunningham's contract to be void, we engage in the following analysis only to address Cunningham's characterization of his contract as "at-will." Cunningham claims that his contract's only limitation on the County's right to terminate him "was the requirement that the County abide by the severance provisions." Cunningham asserts that he "still faced termination for any reason, including a reason that violates public policy." Curiously, Cunningham maintains both that (1) the Master Employment Agreement established an at-will employment relationship, despite the contract's generous severance remedy, and (2) at the same time, he can recover contract damages if the County does not pay the designated severance amount upon terminating him without cause.
Cunningham cites Angus v. Burroughs & Chapin Company, 358 S.C. 498, 596 S.E.2d 67 (Ct.App.2004), rev'd on other grounds, 368 S.C. 167, 628 S.E.2d 261 (2006) and Cape v. Greenville County School District, 365 S.C. 316, 618 S.E.2d 881 (2005) in support of his position that his contract shows an intent to establish an at-will relationship. However, the contract in Angus stipulated that the public official was to be given "365 days notice or 365 days severance pay in the event of a termination." 358 S.C. at 500, 596 S.E.2d at 69 (emphasis added). The Record on Appeal in Angus shows that the contract left the choice between these two options to "the
Further, the contract in Cape contained language specifically stating "THIS IS AN AT-WILL EMPLOYMENT CONTRACT. IT MAY BE TERMINATED AT ANY TIME FOR ANY REASON OR FOR NO REASON BY EITHER EMPLOYER OR EMPLOYEE." 365 S.C. at 317, 618 S.E.2d at 882. In contrast, Cunningham's contract states:
(emphasis added). Again, the provisions in Section 3, Paragraphs A and B, of Cunningham's contract set forth the grounds for termination "with cause" and require the County to pay Cunningham his salary and financial benefits for the remainder of the three-year term if the County terminates Cunningham without cause.
Our supreme court has not expanded the public policy exception beyond contracts like the one in Stiles. The reason is clear: contracts for a definite term that require the payment of severance in the event of termination without cause provide a remedy for the employee if he is wrongfully discharged. See id. at 225, 516 S.E.2d at 450 ("The measure of damages when an employee is wrongfully discharged under a contract for a definite term generally is the wages for the unexpired portion of the term."); see also Cape, 365 S.C. at 318, 618 S.E.2d at 882 ("Cape argues the judge erred in finding her contract was at-will. She correctly points out that decisions from this Court have indicated an employment contract for a specific term cannot also be at-will because these terms are mutually exclusively." (emphasis added)); Stiles, 335 S.C. at 228, 516 S.E.2d at 452 (Toal, J., concurring) ("[T]he
Here, the intent underlying Cunningham's contract was to provide the exact measure of damages specified by our supreme court in Stiles, i.e., the wages, or salary, for the unexpired portion of the three-year term. This ability to recover damages in the form of "severance" would normally preclude recovery under a cause of action for wrongful termination based on the public policy exception to the at-will doctrine. See id. However, as we have previously concluded, Cunningham's contract was void because it purported to bind the 2009 Council. It was the illegality of his contract, rather than any contractual intent to create an at-will employment relationship, that relegated Cunningham to an at-will status.
The County also argues that even if Cunningham could invoke the public policy exception to the at-will employment doctrine, the facts alleged in the complaint would not entitle him to relief because they do not establish a violation of public policy. We disagree. Cunningham alleged that the County conditioned his continued employment on his agreement to engage in acts that would violate S.C.Code Ann. § 16-17-560, which prohibits discharging a citizen from employment
Further, during the motions hearing, counsel for the County admitted that if the circuit court denied the County's summary judgment motion as to Cunningham's legal ability to assert the wrongful discharge cause of action and as to the sufficiency of the allegations in the complaint, then the parties would have to engage in further discovery. Counsel for both parties represented to the circuit court that they had an agreement to allow discovery on this cause of action if the circuit court denied summary judgment on it. Both counsel further agreed to allow the County the option of submitting another summary judgment motion on the wrongful discharge claim after the completion of discovery. "Summary judgment is a drastic remedy and must not be granted until the opposing party has had a full and fair opportunity to complete discovery." Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439 (2003) (citation omitted).
Finally, Cunningham has demonstrated the likelihood of uncovering additional relevant evidence during discovery. See Dawkins, 354 S.C. at 69, 580 S.E.2d at 439 (holding that when the nonmoving party requests a delay in ruling on a summary judgment motion until further discovery may be completed, the party must demonstrate the likelihood that further discovery will uncover additional relevant evidence). Cunningham testified in his deposition that Eddie Moore, who had recently been elected but had not yet taken office, stated to him: "`[T]here are lots of employees that there's problems with ... If I were to give you a list of employees to fire, would you get rid of them?" Cunningham responded by indicating that there would have to be a reason for a termination and "some demonstration of some attempt to remedy the situation in
Based on the foregoing, we reverse the grant of summary judgment on the wrongful discharge claim and remand the claim to the circuit court so that the parties may engage in further discovery.
Accordingly, we affirm the circuit court's grant of summary judgment to the County as to Cunningham's causes of action for breach of contract and violation of the Payment of Wages Act. We reverse the circuit court's grant of summary judgment to the County as to Cunningham's wrongful discharge cause of action and remand to the circuit court to allow the parties to engage in further discovery.
HUFF and THOMAS, JJ., concur.
(emphasis added). The County maintains that this argument is not preserved because the circuit court did not rule on it and Cunningham did not file a Rule 59(e) motion seeking a ruling. Cunningham responds that because the trial court viewed the contract in its entirety as void, it would have been futile for him to seek a ruling on the severability argument. Assuming, without deciding, this precise issue is preserved for review, we reject Cunningham's argument. Because the circuit court correctly ruled that the contract was void in its entirety, no part of contract is valid or enforceable against the 2009 Council.