Conner v. City of Forest Acres

• Citation: 560 S.E.2d 606,348 S.C. 454
• Decision Date: 11 February 2002
• Docket Number: No. 25410.,25410.
• Court: South Carolina Supreme Court
• Parties: Evelyn H. CONNER, Respondent, v. CITY OF FOREST ACRES, J.C. Rowe, and Lewis Langley, Petitioners.

348 S.C. 454

560 S.E.2d 606

Evelyn H. CONNER, Respondent, v. CITY OF FOREST ACRES, J.C. Rowe, and Lewis Langley, Petitioners.

No. 25410.

Supreme Court of South Carolina.

Heard January 9, 2002.

Decided February 11, 2002.

Rehearing Denied April 1, 2002.

Kathryn Thomas, of Gignilliat, Savitz & Bettis, of Columbia, for petitioners.

Henry Hammer and Howard Hammer, of Hammer, Hammer, Carrigg & Potterfield, and Scott Elliott, of Elliott & Elliott, P.A., all of Columbia, for respondent.

WALLER, Justice:

This is a wrongful discharge action. The trial court granted petitioners summary judgment on all claims. The Court of Appeals reversed and remanded. Conner v. City of Forest Acres, Op. No. 99-UP-433 (S.C. Ct.App. filed August 18, 1999). This Court granted certiorari to review the Court of Appeals' decision. We affirm in part, and reverse in part.

FACTS

Respondent Evelyn Conner worked for the City of Forest Acres ("the City") as a police dispatcher. She was hired in July 1984 and was terminated in October 1993. At the time of her termination, J.C. Rowe was the Chief of Police, and Corporal Lewis Langley was her immediate supervisor. Beginning in November 1992, Conner received numerous reprimands for such things as violating the dress code, tardiness, performing poor work, leaving work without permission, and using abusive language. In July 1993, Conner was evaluated as unsatisfactory¹ and placed on a 90-day probation. She was reprimanded twice in August 1993, and her October 1993 evaluation showed only slight improvement; therefore, the City terminated her on October 7, 1993.

Conner filed a grievance, and at the hearing before the grievance committee, she disputed many of the reprimands.² The grievance committee voted 2-1 to reinstate Conner. The City Council, however, rejected the grievance committee's decision and voted to uphold Conner's termination. During her employment, Conner received two employee handbooks. After receiving each one, Conner signed an acknowledgment form. The 1993 acknowledgment³ stated as follows:

I acknowledge that I have received a copy of the City of Forest Acres Personnel Policy and Procedures Manual (Adopted July 1, 1993). I understand that I am responsible for reading, understanding, and abiding by the contents of these policies and procedures. I further understand that all the policies contained herein are subject to change as the need arises. I further understand that nothing in these policies and procedures creates a contract of employment for any term, that I am an employee at-will and nothing herein limits the City of Forest Acres's rights for dismissal.

On page 1 of the handbook, entitled INTRODUCTION, there is the following language:

IMPORTANT NOTICE

MANY OF THE POLICIES CONTAINED IN THIS HANDBOOK ARE BASED ON LEGAL PROVISIONS, INTERPRETATIONS OF LAW, AND EMPLOYEE RLATIONS PRINCIPLES, ALL OF WHICH ARE SUJECT TO CHANGE. FOR THIS REASON, THIS HANDBOOK IS CONSIDERED TO BE A GUIDELINE AND IS SUBJECT TO CHANGE WITH LITTLE NTICE. THE HANDBOOK DOES NOT CONSTITUTE A CONTRACT OF EMPLOYMENT FOR ANY TERM.

NOTHING IN THIS HANDBOOK SHALL BE COSTRUED TO CONSTITUTE A CONTRACT. THE CITY HAS THE RIGHT, AT ITS DISCRETION, TO MODIFY THIS HANDBOOK AT ANY TIME. NOTHING HEREIN LIMITS THE CITY'S RIGHTS TO TERMINATE EPLOYMENT. ALL EMPLOYEES OF THE CITY ARE AT-WILL EMPLOYEES. NO ONE EXCEPT THE CITY ADMINISTRATOR HAS THE AUTHORITY TO WAIVE ANY OF THE PROVISIONS OF THIS HANDBOOK,

OR MAKE REPRESENTATIONS CONTRARY TO THE PROVISIONS OF THIS HANDBOOK.

This same language appears on the last page of the handbook.

The handbook contained a section entitled "Code of Conduct." In this section, the handbook states that conduct "reflecting unfavorably upon the reputation of the City, the Department, or the employee will not be tolerated." Furthermore, this section advises that:

This code of conduct is designed to guide all employees in their relationship with the City.

The following is a non-exclusive list of acts which are considered a violation of the Code of Conduct expected of a City employee, and such conduct will be disciplined in accords with its seriousness, recurrence, and circumstances. Degrees of discipline are given under the section entitled "Discipline" in this manual.

The list enumerates 23 different acts.

The Disciplinary Procedures section of the handbook states that it is the "duty of all employees to comply with, and to assist in carrying into effect the provisions of the personnel policy and procedures." Additionally, he handbook states the following:

Ordinarily, discipline shall be of an increasingly progressive nature, the step of progression being (1) oral or written reprimand, (2) suspension, and (3) dismissal. Discipline should correspond to the offense and therefore NO RQUIREMENT EXISTS FOR DISCIPLINE TO BE PROGRESSIVE. FIRST VIOLATIONS CAN RESULT IN IMMEDIATE DISMISSAL WITHOUT REPRIMAND OR SUSPENSION.

Furthermore, this section states that violations of the code of conduct "are declared" to be grounds for discipline and that discipline "will be used to enforce the City's Code of Conduct." (Emphasis added). Finally, the grievance procedure is outlined in detail. In this section, the handbook states "[i]t is the policy of the City of Forest Acres that all employees shall be treated fairly and consistently in all matters related to their employment." After Conner was terminated, she brought suit against the City, Rowe and Langley. In her original complaint, she alleged five causes of action; an amended complaint contained nine causes of action. After the case was removed to federal court, and then eventually remanded back to state court, only three causes of action remained: breach of contract, breach of contract accompanied by a fraudulent act, and bad faith discharge.

The trial court granted petitioners' motions for summary judgment. The Court of Appeals reversed finding that a jury question existed regarding whether the handbook altered Conner's at-will employment status with the City. The Court of Appeals further found that there was a jury issue as to whether Conner was terminated for cause.

ISSUES

1. Were Rowe and Langley improperly added as respondents to the appeal when the Notice of Appeal only named the City?

2. Did the Court of Appeals err in reversing summary judgment on the breach of contract and bad faith discharge claims?

3. Did the Court of Appeals err in reversing summary judgment on the claim for breach of contract accompanied by a fraudulent act?

DISCUSSION

1. Conner's Appeal Against Rowe and Langley

Petitioners Rowe and Langley argue that the appeal against them should be dismissed because Conner failed to timely serve them a Notice of Appeal. We agree.

When Conner appealed the trial court's decision, she filed a Notice of Appeal which named only "City of Forest Acres" as respondent. The Notice is dated January 12, 1998. In a letter dated January 14, 1998, the Court of Appeals advised Conner's attorney that the caption should read differently, i.e., that the City, Rowe and Langley should be listed as defendants, and the City separately named as respondent. After several extensions were granted to Conner for filing her initial brief, the brief and designation of matter were filed in late May 1998. Thereafter, and in response to the Court of Appeals' request, Conner filed a "corrected" Notice of Appeal and Proof of Service which now named Rowe and Langley as respondents. Rowe and Langley objected. Conner filed a motion to correct the record which Rowe and Langley opposed. The Court of Appeals granted the motion and accepted the backdated Notice of Appeal.

Rowe and Langley argue that the Court of Appeals erred in allowing this "correction" because this was not a typographical error or mere oversight. Instead, they contend Conner initially pursued an appeal against the City only, and this was confirmed by the subsequent correspondence between Conner and the Court of Appeals.

Service of the notice of intent to appeal is a jurisdictional requirement, and the Court has no authority to extend or expand the time in which the notice of intent to appeal must be served. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985).

Clearly, Rowe and Langley were not served with a Notice of Appeal naming them as respondents within the 30-day time period prescribed by Rule 203(b)(1), SCACR. Nonetheless, citing Moody v. Dickinson, 54 S.C. 526, 32 S.E. 563 (1899), Conner argues that clerical errors on a Notice of Appeal will not defeat the appeal.

In Moody, the defendant filed a Notice of Appeal naming "H.J. Moody" as plaintiff. However, "defendant's counsel, having soon afterwards discovered the mistake in the title of his notice of appeal, gave notice to plaintiffs' counsel that he would move ... to amend the notice of appeal by ... adding the names" of the other plaintiffs. Id. at 531, 32 S.E. at 565 (emphasis added). This motion was granted, and plaintiffs appealed. The Court held that there was no error "in allowing the defendant to correct a mere clerical error in the title of his notice of intention to appeal, whereby it is not even claimed that plaintiffs were misled or in any way prejudiced....." Id. at 534, 32 S.E. at 566 (emphasis added).

We find the instant case is factually distinguishable from Moody. Here, the facts indicate that the Notice of Appeal did not contain a mere clerical error. First, Conner did not "soon" after filing the Notice discover any mistake. Second, the Court of Appeals' first correspondence with Conner advising her of the way the caption should read (i.e., with only the City named as respondent and Rowe and Langley named as defendants) should have alerted Conner to this "mistake." It was not until the Court of Appeals invited Conner to "correct" the Notice that Conner took any action. Indeed, the rule of Moody compels us under these facts to find Rowe and Langley were misled into believing they were not part of this appeal by the...