Miller v. Fairfield Communities, Inc.

• Decision Date: 17 May 1989
• Docket Number: No. 1366,1366
• Court: South Carolina Court of Appeals
• Parties: , 118 Lab.Cas. P 56,550, 4 IER Cases 997 Ronald H. MILLER and Jan Miller, Appellants, v. FAIRFIELD COMMUNITIES, INC., Joe Takacs and Bob Albertson, Respondents. . Heard

Page 16

382 S.E.2d 16

299 S.C. 23, 118 Lab.Cas. P 56,550,

4 IER Cases 997

Ronald H. MILLER and Jan Miller, Appellants, v. FAIRFIELD COMMUNITIES, INC., Joe Takacs and Bob Albertson Respondents.

No. 1366.

Court of Appeals of South Carolina.

Heard May 17, 1989.

Decided July 3, 1989.

Allan R. Holmes, of Gibbs & Holmes, Charleston, for appellants.

Thomas A. Bright, and Thomas H. Keim, Jr., both of Haynsworth, Baldwin, Miles, Johnson, Greaves & Edwards, Greenville, for respondents.

CURETON, Judge:

Appellants Ronald and Jan Miller sued Respondent Fairfield Communities, Inc. and two of it officers Joe Takacs and Bob Albertson (hereafter Fairfield) for wrongful termination of Ronald Miller's employment. The Millers also alleged violations of the Unfair Trade Practices Act. The trial court granted Fairfield's motion for summary judgment and the Millers appeal. We affirm.

Mr. Miller was employed by Fairfield as a golf professional at its resort on Edisto Island. Mrs. Miller worked as a real estate agent for the Lyons Company, a competitor of Fairfield, in the real estate business on Edisto Island. It is undisputed Mr. Miller was an at-will employee.

In July 1986, Bob Albertson, regional manager for Fairfield, and Joe Takacs, Mr. Miller's immediate supervisor, met with Mr. Miller to discuss a perceived conflict of interest. The conflict emanated from the belief by several Fairfield sales people that Mr. Miller was improperly allowing his wife's customers to utilize the company's resort facilities, primarily the golf course. Mr. Albertson advised Mr. Miller that his wife's employment with the Lyons Company was unacceptable and conditioned Mr. Miller's continued employment with Fairfield on Mrs. Miller resigning from her employment with the Lyons Company. After discussing the situation with his wife, Mr. Miller tendered his resignation to Fairfield.

The Millers' complaint alleges three causes of action: wrongful discharge in violation of public policy; violation of the Unfair Trade Practices Act; and tortious interference with Mrs. Miller's employment contract. The trial court dismissed with prejudice the tortious interference cause of action for failure to state a claim upon which relief may be granted. The Millers have not appealed the dismissal.

In response to Fairfield's motion for summary judgment, the Millers contended the ultimatum given Mr. Miller by Fairfield "would have required [him] to violate the law." They specifically claim Fairfield's demand would have required Mr. Miller to conspire with his wife to end her employment with the Lyons Company in violation of Section 40-57-240, Code of Laws of South Carolina, 1976. They also argued Fairfield's attempts to wrongfully injure a competitor, impair contractual relations, and destroy public interests protected by state criminal laws governing the practice of the real estate profession are classic violations of the Unfair Trade Practices Act.

After reviewing the parties' briefs and considering their oral arguments, the trial court granted Fairfield's motion for summary judgment. The court held the Millers failed to present any evidence Mr. Miller was discharged for refusing to violate the laws of this state. The court further held Fairfield's actions were unconnected with trade or commerce and did not as a matter of law fall within the scope of the Unfair Trade Practices Act. We agree.

I.

"Where the retaliatory discharge of an at-will employee constitutes violation of a clear mandate of public policy, a cause of action in tort for wrongful discharge arises." Ludwick v. This Minute of South Carolina, Inc., 287 S.C. 219, 225, 337 S.E.2d 213, 216 (1985). The public policy exception is applicable where an employer requires an at-will employee to violate the law as a condition of retaining his employment. Id.

Mr. Miller argues Fairfield's demands would require his wife to violate provisions of Section 40-57-170 of the Code which violations he claims are punishable as a misdemeanor under Section 40-57-240. The Millers view Fairfield's demand as necessitating Mrs. Miller transferring her listings to another brokerage firm without the consent of the Lyons Company. They argue such a transfer would violate Section 40-57-170(7). They also argue Mrs. Miller's willful failure to honor her promises to property owners that she would personally market their real estate ¹ would violate Section 40-57-170(4) which prohibits "[a]ny conduct in a real estate transaction which demonstrates bad faith, dishonesty, untrustworthiness or incompetency in such a manner as to endanger the interest of the public."

The Millers refer to Section 40-57-240 as providing criminal penalties for violation of the provisions of Section 40-57-170. They no doubt refer to the old version of Section 40-57-240. Effective March 28, 1986, Section 40-57-240 was amended to provide penalties only for brokers, salesmen, counsellors, etc., who fail to renew or register their licenses. Act No. 353, 1986 S.C. Acts 2552. The amendment deleted a provision relative to penalties for violation of other provisions of Chapter 57 and the punishment therefor. As we interpret Section 40-57-170, as amended, while a violation of the prohibitions of the Section subjects a person to certain administrative sanctions such violation does not subject one to criminal penalties.

The Millers also argue that to subject an employee to civil penalties or sanctions as a condition of his continued employment is contrary to a clear mandate of public policy. From the discussion in Ludwick it seems clear the Supreme Court did not consider public policy outside the sphere of criminal sanctions. The Supreme Court may want to consider this question and pass upon it. We choose not to expand the public policy exception to include the case before us. This is in keeping with the emerging trend of both state and federal courts. See Adler v. American Standard Corp., 830 F.2d 1303 (4th Cir.1987). In Adler the court was asked to interpret Maryland's employment-at-will exception. In refusing to expand the exception the court noted: "[l]imitation of the claim for abusive discharge to situations involving the actual refusal to engage in illegal activity, or the intention to fulfill a statutorily prescribed duty, ties abusive discharge claims down to a manageable and clear standard". Id. at 1307.

Additionally, we find no fact question exists regarding whether Mrs. Miller's resignation from the Lyons Company would violate Section 40-57-170. The Millers claim her resignation would require her to either transfer her listings to another real estate company, in which event she would violate Section 40-57-170(7), or require her to abandon her responsibilities to the sellers who listed their properties with her thereby violating Section 40-57-170(4). We disagree. The listing agreements are between the Lyons Company and the sellers, not between Mrs. Miller and the sellers. ² While Mrs. Miller may have induced the sellers to list their properties with the Lyons Company on the promise she would personally service the listing agreements, we refuse to hold that to require her to violate these confidences contravenes a clear mandate of public policy. ³

Mr. Miller next contends Fairfield required him, as a condition of his continued employment, to tortiously interfere with the contractual relationships existing between Mrs. Miller and her customers which condition violates a clear mandate of public policy. Again, we disagree. As discussed earlier, the listing...