             THE STATE OF SOUTH CAROLINA 

                  In The Supreme Court 


   Michael Cunningham, Respondent/Petitioner,

   v.

   Anderson County, Petitioner/Respondent.

   Appellate Case No. 2013-000678



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                 Appeal from Anderson County 

        The Honorable Alexander S. Macaulay, Circuit Court 

                             Judge 



                      Opinion No. 27568 

         Heard March 18, 2015 – Filed September 2, 2015 



                          REVERSED


   William W. Wilkins and Kristen E. Small, both of
   Nexsen      Pruet,    LLC, of   Greenville,  for
   Petitioner/Respondent.

   John S. Nichols, of Bluestein, Nichols, Thompson &
   Delgado, LLC, of Columbia, and Brian P. Murphy, of
   Stephenson & Murphy, LLC, of Greenville, for
   Respondent/Petitioner.
       JUSTICE HEARN: This case arises from the termination of Michael
Cunningham as the county administrator for Anderson County. Cunningham
brought this action alleging breach of contract, wrongful discharge, and violation
of the Payment of Wages Act. The trial court granted summary judgment in favor
of the County on all causes of action. The court of appeals affirmed the trial court
on the breach of contract and Payment of Wages claims, but reversed and
remanded the wrongful discharge claim. Cunningham v. Anderson Cnty., 402 S.C.
434, 741 S.E.2d 545 (Ct. App. 2013). The County contends the court of appeals
erred by reversing the trial court's grant of summary judgment on the wrongful
discharge claim because Cunningham has never argued he is a noncontractual, at-
will employee. We agree and reverse the portion of the court of appeals' opinion
reversing and remanding that claim.1

                 FACTUAL/PROCEDURAL BACKGROUND
       During the November 18, 2008 Anderson County Council meeting, the
seven member council—three of whom had not been reelected earlier that month—
voted 5-2 to enter into a Master Employment Agreement (the Contract) with
Cunningham, employing him as the new county administrator. Cunningham
signed the Contract for employment the following day. The term of his
employment was three years, and the Contract would perpetually renew absent
ninety days' notice. The Contract provided that the administrator "serve[s] at the
pleasure of [the council]" and although it indicated that nothing could prevent the
council from terminating Cunningham, those terms were subject to other
limitations provided in the "Termination and Severance Pay" section. Under that
section, the County could only terminate Cunningham for cause if he was
convicted of any crime involving personal gain or of moral turpitude; refused to
perform the duties of his office; or suffered a serious illness requiring more than
ninety days' absence. If the council terminated Cunningham without cause, he
would be entitled to "all pay and financial benefits remaining on his contract for
the balance of the contract period" as well as compensation for "all earned sick
leave, vacation, holidays, compensatory time and other accrued benefits."
Additionally, the Contract provided that Cunningham would receive "additional
1
 Cunningham also filed a petition for certiorari, which this Court initially granted.
Although we disagree with the County's contention that Cunningham's petition was
untimely, we nevertheless dismiss that writ of certiorari as improvidently granted.
severance pay . . . based upon the length of his total service to the County, and
computed at the rate of one month aggregate compensation under this Agreement
for every two years of such service."

      The newly constituted county council, which began serving in January of
2009, immediately passed a resolution condemning the manner in which
Cunningham was hired. The new council later offered Cunningham another
contract of employment which was expressly at-will and contained none of the
"parachute" provisions entitling him to severance for termination without cause,
which Cunningham rejected. The council thereafter recommended Cunningham be
terminated. Cunningham requested a hearing and upon its conclusion, the council
voted 5-2 to terminate him.

       Cunningham subsequently brought this action alleging breach of contract,
wrongful discharge, and requesting payment under the Payment of Wages Act. He
argued he was due severance and sick leave under the Contract, and that he was
wrongfully discharged in violation of public policy because he refused to commit
the criminal act of discharging employees for political reasons.

       The parties filed cross-motions for summary judgment. The trial court
granted summary judgment in favor of the County on all claims. Specifically, it
found the contract was unenforceable against the new council and that because
Cunningham had never argued he was an at-will employee, he could not claim he
was wrongfully discharged in violation of public policy. Cunningham appealed,
and the court of appeals affirmed the portion of the trial court's order finding the
Contract unenforceable. Cunningham, 402 S.C. at 450, 741 S.E.2d at 554.
However, it reversed and remanded on the issue of wrongful discharge stating the
"illegality of [the Contract], . . . relegated Cunningham to an at-will status" and he
should therefore not be precluded from proceeding on the wrongful discharge
claim. Id. at 456, 741 S.E.2d at 557. The County petitioned for a writ of certiorari
which the Court granted.

                               ISSUE PRESENTED
     Did the court of appeals err in reversing the trial court's grant of summary
judgment for the County on Cunningham's claim for wrongful discharge?
                              STANDARD OF REVIEW

       "The purpose of summary judgment is to expedite disposition of cases which
do not require the services of a fact finder." Dawkins v. Fields, 354 S.C. 58, 69,
580 S.E.2d 433, 438 (2003) (internal quotation omitted). In reviewing a grant of
summary judgment, the Court applies the same standard applied by the circuit
court pursuant to Rule 56(c), SCRCP. Stevens & Wilkinson of S.C., Inc. v. City of
Columbia, 409 S.C. 568, 576, 762 S.E.2d 696, 700 (2014). Accordingly, summary
judgment is appropriate where there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP.
When determining whether any triable issues of fact exist, the Court views the
evidence and all reasonable inferences that may be drawn in the light most
favorable to the non-moving party. Evening Post Pub. Co. v. Berkeley Cnty. Sch.
Dist., 392 S.C. 76, 81–82, 708 S.E.2d 745, 748 (2011). To withstand a summary
judgment motion 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.
Turner v. Milliman, 392 S.C. 116, 122, 708 S.E.2d 766, 769 (2011).

                                LAW/ANALYSIS

      The County argues the court of appeals erred in holding Cunningham had
alleged a claim for wrongful termination as an alternative to his breach of contract
claim. We agree.

       The court of appeals affirmed the trial court by holding Cunningham's
Contract was unenforceable against the new county council. However, it reversed
and remanded the case for Cunningham to argue he was wrongfully discharged as
an at-will employee under the public policy exception. Unlike the trial court, the
court of appeals found Cunningham had preserved the argument he was an at-will
employee because he submitted a supplemental filing likening his case to Stiles v.
American General Life Insurance Co, 335 S.C. 222, 516 S.E.2d 449 (1999). We
find a mere reference to the Stiles case in a document filed with the court
insufficient to preserve the argument.

      In Stiles, the Court addressed a certified question of whether an employee
under an at-will contract with a thirty-day notice provision may maintain an action
for wrongful discharge in violation of public policy. Id. at 226, 516 S.E.2d at 451.
In answering in the affirmative, the Court noted that in this case, "the employee
does not have an alternate remedy based on an allegation of wrongful discharge."
Id. The court of appeals accordingly took the reference to Stiles as enough to
conclude Cunningham argued he was an at-will employee with a contract.

        We disagree with the court of appeals that Cunningham advanced the
argument that he was an at-will employee. Initially, the memorandum contains no
reference to Cunningham having an at-will status. Although he claims his
employment agreement "does not limit the reasons for which Anderson County
could terminate [him]," he also repeatedly refers to having a contract for a definite
term.2 Nothing precluded Cunningham from making alternative arguments based
on whether he was deemed a contractual or at-will employee; however, he did not
do so. In his complaint, Cunningham clearly alleged that his employment was "for
a term pursuant to a written agreement." There is no mention in his pleading that
his employment was at-will. Additionally, the trial court specifically found, in its
order granting summary judgment in favor of the County, that "[a]t no point in this
litigation has Cunningham ever alleged that he was an at-will employee . . . ."
Cunningham's assertion that he has always argued he is an at-will employee is
belied by his pleadings and significantly, by the trial court's clear finding to the
contrary.

      Moreover, there is a distinction between Cunningham arguing he is a
noncontractual at-will employee, as the remand would allow, and arguing, as he
does before this Court, that he is at-will pursuant to the Contract. Equally as
important, any suggestion that Cunningham was claiming at-will status is in direct

2
  We recognize the notions of contractual employment and at-will employment are
not always mutually exclusive. E.g. Cape v. Greenville Cnty. Sch. Dist., 365 S.C.
316, 319, 618 S.E.2d 881, 883 (2005) (holding the employment contract at issue,
while for a definite term, was terminable at-will). Nevertheless without more, a
contract for a definite term and an at-will contract are distinct. See id., 365 S.C. at
319, 618 S.E.2d at 883 (holding that an employment contract for an indefinite term
is presumptively terminable at-will and a contract for a definite term is
presumptively terminable only upon just cause but these presumptions can be
altered by express contract provisions); Stiles, 335 S.C. at 227, 516 S.E.2d at 451
(Toal, J., concurring) ("Employment in South Carolina has been classified as either
for a definite term or at-will.").
contravention to the primary thrust of his argument before the trial court: that he
was a contract employee and that the County had breached that contract.
Cunningham has consistently declined to plead alternatives which might limit his
remedy, instead requesting damages for both breach of contract and wrongful
discharge under the Contract.3 The court of appeals' opinion effectively gives
Cunningham an opportunity to make an argument he has never made before. We
hold Cunningham is limited to the allegations in his complaint and his chosen
strategy before the trial court. Because he has not preserved the argument he is an
at-will employee, we find the court of appeals' remand erroneous.

                                 CONCLUSION

        Accordingly, we reverse the court of appeals' remand of the case for a
determination of whether Cunningham was an at-will employee, and affirm the
trial court's grant of summary judgment.

PLEICONES and KITTREDGE, JJ., concur. BEATTY, J., dissenting in a
separate opinion in which TOAL, C.J., concurs.




3
  Cunningham admits as much at the summary judgment hearing when he states
that "just because you have a contract doesn't mean you give up the right to sue in
court. They are not the same. It's not alternative causes of action."
      JUSTICE BEATTY: I respectfully dissent. I would affirm the Court of
Appeals' well-reasoned decision. Like the majority, I would affirm the Court of
Appeals on the Breach of Contract and the Payment of Wages Act claims. I depart
from the majority when it asserts that the Court of Appeals erred in remanding the
wrongful discharge claim for further consideration. The majority grounds its
conclusion on a perceived failure of Cunningham to argue that he was an at-will
employee when he asserted a public policy violation by the County Council. I
view the pleadings and the record differently.

       Cunningham's Complaint clearly sets forth a second cause of action entitled
"Wrongful Discharge - Public Policy." Throughout these proceedings,
Cunningham has argued that the County had the right to terminate him at any time.
In a County Council meeting and by letter, prior to his termination, Cunningham
acknowledged his at-will employment status. Cunningham told Council members
"what I offered was a willingness to continue to work under my current conditions,
which is as the Council views it as an at-will employee. I have no desire to argue
that point." This statement was introduced at trial and considered by the trial judge
and the Court of Appeals.

       It is important to recognize that, at the time of termination of employment,
Cunningham was an acknowledged at-will employee. Some of the alleged
conduct, which violated public policy, took place while he was an at-will employee
under the supervision of the new County Council. Therefore, the Breach of
Contract cause of action should have no bearing on the wrongful discharge cause
of action even under the majority's view of the claims. In my view, the majority
errs when it conflates the two.

       The majority finds significance in Cunningham's statement that "It's not
alternative causes of actions." The majority interprets this statement to mean that
Cunningham only advanced one claim, Breach of Contract. Considering the
statement in what I believe to be its proper context, it appears that Cunningham
meant that he was making two independent claims and, thus, because one is
grounded on a contract for employment for a specific period of time he was not
precluded from bringing a wrongful discharge claim as an at-will employee.
Specifically, Cunningham argued "just because you have a contract doesn't mean
you give up the right to sue in court. They are not the same. It's not alternative
causes of action. They address very different things. They exist independently of
each other."

       Moreover, under our jurisprudence, a contract of employment for a
determined period of time does not necessarily eliminate at-will employment or
vice versa. 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, while a contract for a definite term is presumptively terminable
only upon just cause. These are mere presumptions, however, which the parties
can alter by express contract provisions."); Prescott v. Farmers Tel. Coop., 335
S.C. 330, 335, 516 S.E.2d 923, 925 (1999) ("Of course, an employer and employee
may choose to contractually alter the general rule of employment at-will and
restrict their freedom to discharge without cause or to resign with impunity.");
Stiles v. Am. Gen. Life Ins. Co., 335 S.C. 222, 516 S.E.2d 449 (1999) (holding that
an employee under an at-will contract with a thirty-day notice provision may
maintain an action for wrongful discharge in violation of public policy); see also
Shivers v. John H. Harland Co., 310 S.C. 217, 423 S.E.2d 105 (1992) (recognizing
that when an employee is wrongfully discharged under a contract for a definite
term, the measure of damages is generally the wages for the unexpired portion of
the term, but concluding that trial judge correctly limited employee's recovery to
the amount of pay and other benefits the employee would have received during the
fifteen-day notice period).

       In my view, the record reflects evidence that Cunningham asserted his at-
will status, which allows him to pursue a wrongful discharge claim under the
public policy exception. However, assuming Cunningham did not argue that he
was an at-will employee, the issue is still preserved because of the necessary
inference inherent in the claim itself. A wrongful discharge claim premised on the
public policy exception necessarily infers that the plaintiff asserts the status of an
at-will employee.

       It is undisputed that Cunningham was a County employee. Under our
jurisprudence, an employment contract may be either at-will or for a determined
period of time. County argued, and the trial judge agreed, that Cunningham's
contract, for a determined period of time, was void because it attempted to bind a
future County Council. By operation of law, Cunningham was an at-will employee
at the time he was terminated. As such, his wrongful discharge claim, which was
premised on a violation of public policy, survived and should be considered on the
merits.

TOAL, C.J., concurs.
