*1 reasons, judgment below foregoing Accordingly, hereby AFFIRMED. ANDERSON, JJ., concur.

GOOLSBY

491 S.E.2d 577 Respondent, Morgan FUTCH, James GEORGETOWN, INC., Appellant. OF McALLISTER TOWING No. 2697. Appeals of South Carolina. Court March 1997. Heard July Decided 1997. Sept. 1997. Rehearing Denied *2 Medich, Marvin Infinger D. and Julie O. both of Sinkler & Charleston, Boyd, for appellant. Jones, T. both of McNair

Robert L. Widener and Celeste Firm, Columbia, for respondent. Law HEARN, Judge. Inc., appeals from the Towing Georgetown,

McAllister in in verdict its favor grant trial refusal to a directed judge’s Futch. reverse wages by Morgan this action for James We entry judgment favor of McAllister. and remand for

I. FACTS lawsuit, pilot Futch had worked as a harbor for Prior to this Towing years. employment for several Under his contract, brought on each vessel Futch received a commission In December Futch received a Georgetown’s port. into him advising employment from the that his company notice Thereafter, began terminate at the end of 1993. would Assey starting competing Norman plans to make with *3 continuing to work for McAllister. Acts company while name, filing regis- preparation reserving corporate included Authority, pur- forms with the Ports tration and insurance clients, with McAllister’s sub- chasing tugboats, meeting two NationsBank, seeking a loan to letters mitting application towing to Futch’s new service. The commit- employ of intent represented approximately contained in these letters ments McAllister’s customers. eighty-five ninety-five percent in August discovering McAllister fired Futch 1998 after competing company. Futch and an associate had formed a At time, $4,200 commissions, but Futch had accrued this amount. pay McAllister declined actual punitive damages, Futch instituted this action for Act, asserting causes of action under the contract, conversion, and breach of contract accom- breach of by a fraudulent act. McAllister answered and counter- panied disloyalty. claimed based Futch’s upon verdict, McAllister’s motion for directed the denying After jury trial submitted the case to the on Futch’s judge breach $4,200.1 jury contract claim. The awarded Futch The trial figure represents approximation percent 1. This of Futch’s ten com- ($34,706) during of the total revenues received McAllister mission judge damages pursuant Payment trebled these to the Wage $3,150 Statute and awarded Futch in attorney fees. McAllis- ter appeals, asserting the trial erred in judge refusing its agree. motion for directed verdict. We II.SCOPE OF REVIEW verdict, On from an appeal denying order a directed appellate courts view the evidence and all reasonable infer ences therefrom in a light most favorable to the non-moving party. If the evidence as a whole is susceptible only one inference, reasonable See the motion should be granted. Co., Ice Kennedy Equip. Custom 171, 174, 271 S.C. (1978). determination, In making S.E.2d this court not ignore should facts opposing unfavorable Barber, Bultman v. party. 277 S.C. 281 S.E.2d Gamble, (1981); Love v. 203, 207-08, 448 S.E.2d (Ct.App.1994). 878-79

III.ISSUES First, McAllister argues two issues on appeal.

asserts the trial judge should have directed a verdict because only reasonable inference was that Futch breached his loyalty, him thereby barring from recovering wages. Second, it argues judge the trial should not have trebled 41-10-80(0 damages § under S.C.Code Ann. (Supp.1996) be- good dispute cause a faith parties existed between the con- cerning loyalty. Futch’s breach of We need not reach McAl- lister’s second argument disloyal because we find Futch was law, as a matter of thus forfeiting his Accord- compensation. the trial ingly, judge should have directed a verdict in McAllis- ter’s favor.

IV.LAW A. Act legislature Our enacted the Wage Payment protect Act to employees unjustified from the retention of wages by the Multimedia, Inc., employer. Rice v. 95, 98, 318 S.C. 456 disputed period, argues $720 time in addition to employment owed him under their contract. 316 (1995). 381, prevent occurring, To this harm from

S.E.2d 383 an provides: employer separates 41-10-50 “When an section reason, any employer shall payroll from the employee hours wages employee forty-eight all due to the within pay may which separation regular payday the time of the next § thirty days.” (Supp. Ann. 41-10-50 not exceed S.C.Code 1996). 41-10-80(C) remedy employee a to the provides

Section employer pay wages fails to due. It states: when an as any pay wages employee In case of failure to due to employee 41-10-40 or 41-10-50 the required Section to three times may equal recover a civil action an amount of the costs and reason- unpaid wages, plus the full amount may as the court allow. attorney’s able fees 41-10-80(0 (Supp.1996). §Ann. S.C.Code Employee’s Loyalty B. Breach of contrary employee an has a agreement, Absent following with his the termination right compete Brower, Products, Lowndes Inc. v. of his 259 employment. (1972). 761, 322, 335, An employee, S.C. 191 S.E.2d 767 however, duty disloyal looking has a “not to do acts to future Id.; Competitive 30 C.J.S. Adverse or Interest competition.” (1992). 113, Employer with Although employ § at 182-83 privilege making pretermination plans ee has the to com disloyal his if he solicits pete employer, employee with Id. This employer’s loyalty customers. continues v. employment. Young the term of throughout undiminished 566, (1985); McKelvey, 286 S.C. 333 S.E.2d Co., 489, 491-92, Berry Goodyear Tire & Rubber 270 S.C. 551, 30 C.J.S. Skill and Care (1978); 242 S.E.2d 552-53 Required Employee, Duty Employer Exclusively to Serve (1992). 112, §§ 111 at & 181-82 general agent guilty disloyalty

The rule is that an Forest Co. v. Ocean compensation.2 forfeits all principal commonly 2. This rule of law is known as the "faithless servant doc- See, e.g., County Hosp., App.3d trine.” Roberto v. Brown Gen. 59 Ohio (1989). N.E.2d Woodside, recognize We that Ocean Forest Co. v. (1937), agent S.E. 413 involved an who was denied his commission on

317 (1987) Woodside, 428, 442, 192 413, (applying 420 184 S.C. S.E. statute); also, Riffe, see Oil Co. Tex. v. e.g., former Wilshire of (10th denied, 843, 1061, Cir.), 406 1062 cert. 396 U.S. 90 F.2d (1969) 105, rule that an (adopting agent 24 L.Ed.2d 92 S.Ct. duty loyalty for of the of al compensation forfeits breach may properly per of his services have been though part formed); Trading Niedermeyer, American Timber & Co. (1976) 1135, 1211, P.2d 1223 (holding employee 276 Or. 558 must return re duty loyalty compensation who breached of Indus., Inc. v. during period disloyalty); ceived of Chelsea (1983) 1, 320, (holding 389 449 N.E.2d 326-27 Gaffney, Mass. to forfeit the to disloyal employee required right “can be of compensation retain or receive his for conduct violation (Second) duties”); fiduciary Restatement the Law of of (1958) (“An § 469 is entitled to no Agency agent compensation of his for conduct which is disobedient which is breach of if such conduct constitutes a wilful and duty loyalty; service, of his contract or he is not entitled deliberate breach for services for compensation properly performed even compensation which no apportioned.”).3 collecting employer misappropriated those funds because he however, position disagree, use. We with the dissent’s funds to his own compensa- holding supports that Ocean-Forest’s Futch’s entitlement disloyalty did not occur "in the transaction of his tion because Futch’s view, agency.” job In the dissent's unless Futch's with business, acquiring included the solicitation of his actions in customers employ while in McAllister’s would not result in for his own business general princi- compensation. not the his forfeiture of We do believe employee's ples recited in Ocean-Forest about an breach of the Moreover, loyalty peculiar the subse- are limited to that case's facts. Products, Brower, 322, quent 191 cases of Lowndes Inc. v. (1972), Corp., S.C. 761 and Schuermann v. American KA-RO 295 S.E.2d 64, (1988), general the rule of Ocean-Forest 367 S.E.2d 159 extend beyond interpretation. dissent’s restrictive the jurisdictions rejected bright-line general rule in favor 3. Some have the employment balancing the nature of the relation of a test that examines by employer ship, type disloyalty, and the benefit received Serv., Mulei, See, e.g., during period disloyalty. Jet Courier Inc. v. 486, (Colo. 1989) (imposing compensation if 771 P.2d 494 total bar to Elevator, customers); employee employer’s Inc. v. solicits Hartford 280, Lauer, (1980) (allowing 94 Wis.2d 289 N.W.2d forfeiture by the extent of the difference between the harm suffered employer during period disloyal employer and the benefits received Pleasanton, (1903) ty); Va. 43 S.E. Jackson v. Act, passage

Since the current our appellate courts have not considered wages may whether be employee’s withheld for an of the duty breach *6 41-10-80(C) However, of loyalty. provides only section that due, employee “may wages an recover” thus room for leaving employer the to assert viable defenses such as breach of the Moreover, duty loyalty. of the is employee law clear that an not types is entitled to benefits and certain of compensation See, upon owed to him of the duty loyalty. e.g., breach of Corp., Schuermann v. American KA-RO 367 (1988); Berry, S.E.2d 160 270 S.C. at 242 S.E.2d at (decided statute). under former

V. DISCUSSION whether, The issue this court must consider is under Act, the Wage Payment employee’s an of loyalty breach trumps employer’s duty an A pay wages. plain reading of the Act requires pay McAllister to compensa However, tion which Futch was due. this statutory require ment does not supplant employee’s the common law of duties loyalty fidelity. 41-10-50, § § Ann. See S.C.Code 41-10- (Supp.1996); § see also S.C.Code Ann. 41-10-60 (Supp. 1996) (requiring unconditional payment wages of conceded due). We find in the Act nothing directly indirectly which abrogates duty the common law of loyalty employ owed to an byer If employee. duty loyalty by is breached customers, solicitation of we hold that wages forfeiture of appropriate.

Here, associate, the fact that Futch and his Norman Assey, held pretermination meetings with customers prior time to operation of their own towing company is not dispositive of whether Futch breached his loyalty to Rather, McAllister Towing. key inquiry is whether Futch’s meetings with McAllister’s customers amounted to Lowndes, solicitation. employee Under has the privilege making preparations compete with his former after termination of his employment. 259 S.C. at

(apportioning payment properly by services rendered and untainted disloyalty). however, to the does not extend privilege, at 767. This S.E.2d customers. Id. employer’s solicitation of the impermissible to the holdings Berry, Lowndes Applying Young, case, reasonable inference at the only there was one present motion for a grant trial refused to McAllister’s judge time the as a matter of law disloyal Futch was directed verdict: to terminat- prior he solicited McAllister’s customers because First, loan to Nati- application Futch’s ing employment. prospective intent from onsBank contains two letters of employ Futch’s expressly agree clients. These letters letter, Second, another which did proposed towing service.4 to Futch the loan is addressed accompany application, not discussed employment proposal and references an alone Third, proposal express- Futch’s loan Futch and the drafter.5 of an “account to the letters of intent as evidence ly refers recommencing an immediate and capable “ensuring] base” Indeed, this account begin source as we operations.” revenue *7 ninety-five to represented eighty-five percent potentially base customers, by letters of commit- of McAllister’s as evidenced Fourth, although Futch stated once ment Futch received. customers, in he made his statement that he did not solicit responsibilities his while em- response question to a about Furthermore, part- Futch’s business ployed with McAllister.6 Inc., 22, 1993, Ship Agency, Brunswick dated March 4. A letter from by Captain Morgan today plans part: pleased in "I am to learn states towing Captain Assey a new service in the Futch and Norman to start fully support Georgetown.... intention will be to their [0]ur Port of recommending principals who use the We will be to all our efforts. towing compa- employ Georgetown to the services of this new Port of 23, 1993, letter, Inchcape Shipping from ny.” A second dated March [Captain part: glad employ Futch's and in "I will be to Services states Assey's] towing Captain of their new service.” services letter, February by Georgetown and written Steel 5. This dated Shipping Superintendent Planning Corporation’s of Production and states, Futch, given great part: Captain I have a deal in "Dear thought my a while back.... If we to the discussion we had in office virtually leave and go you, it certain McAllister would chose to with 'eggs Georgetown's Steel’s That would mean that all of not return. you no recourse but to advise that would be in one basket’.... I have stay with interests of all concerned for us we feel it is in best McAllister.” disloyalty testimony denying posits in itself 6. The dissent that Futch's jury. When asked whether he to submit the case to the was sufficient ner, Assey, Norman admitted he and Futch had solicited Finally, customers.7 if personally even Futch did not solicit customers, McAllister’s clearly the evidence shows that Futch’s partner acted on his behalf and knowledge. with his

Futch argues also McAllister did not preserve this issue for appellate request review because it did not a specific jury charge on the “faithless servant doctrine” or on the issue of associate, whether Futch’s Assey, Norman acted as agent. record, however, The clearly shows that jury charges testimony required the jury to consider the nature of Futch’s relationship Assey, with as well as disloyalty the effect of on employee’s right compensation. The trial judge may not name, have mentioned the faithless servant doctrine but he amply explained to the jury employee’s duty of loyalty to consequences of breaching duty. Therefore, we do not believe acquiescence McAllister’s in the charge resulted its failure to preserve the denial of its motion for directed appellate verdict for review.

The judgment is reversed and remanded with directions to judgment enter in favor of McAllister Towing.

REVERSED. J.,

HOWARD, concurs. STILWELL, J., in separate dissents opinion. STILWELL, Judge (dissenting): I respectfully dissent. I do agree not that McAllister proved as a matter of law that Futch was not entitled to the anything had ever "disloyal job responsibilities,” done [his] responded, disagree “No.” We with the dissent that Futch’s character *8 legal culpability ization of his was sufficient to submit the case to the

jury fact, allegation because it was not an legal of but instead a conclusion. See Dep’t Highways Shields v. South Carolina and Pub. 439, 443, 185, denied, Transp., (Ct.App.), 303 S.C. 401 S.E.2d cert. 24, 1991) (April (noting may rule legal that witnesses not state conclu law). opinions sions or response question 7. Assey In to a sought about whether and Futch customers, commitments Assey from McAllister’s stated: "That's right.... support got.... I think their is what we It was to secure for coming [sic] ourself as much as of the business that was into the Port of Georgetown get.” that we could in I compensation sought he this action. would also affirm the court’s award of damages attorney trial treble fees under 41-10-80(C) § S.C.Code Ann. of the Act. matter, I As a threshold believe the question whether disloyal jury Futch was was a matter for the to decide. testimony denying disloyalty Futch’s alone would have been sufficient warrant the trial court’s denial of McAllister’s motion for directed verdict. Collins & Fine Jewelry, Sons Inc., Safety Sys., Inc. Carolina 296 S.C. 371 S.E.2d (“Because (Ct.App.1988) we are not a jury, we do not weigh the evidence and we do not decide matters of credibili- ty.”).

Moreover, while McAllister presented circumstantial evi- customers, dence that Futch personally solicited McAllister’s produced it no direct that Although evidence he did so. it is apparent many that of McAllister’s customers became aware future plans Futch’s and committed to him during time McAllister, working Futch was still for no evidence conclusive- ly demonstrates that Futch was the source of knowledge their requested they join that Futch him.1 I do not believe the justified favor, evidence a directed verdict McAllister’s especially that considering McAllister bore the burden of proving disloyalty. Futch’s Steel, Georgetown majority,

1. The letter from cited refers to a Futch, discussion with but does not state who initiated the discussion. majorily clearly The also concludes that "the evidence shows that partner Futch’s [solicited customers] McAllister’s on his behalf and with However, knowledge.” agency argu- I do not believe McAllister's properly argue ment is before us. McAllister did not before the trial Assey's court solicitations alone could constitute a breach of loyalty, plead Assey's Futch’s nor did McAllister solicitations as supporting disloyalty allegations. Hosp. a basis its See McGee v. Bruce (1996) (an Sys., argument 321 S.C. 468 S.E.2d 633 raised for the review). Moreover, appeal preserved appellate time first on is not although Assey it is true that testified that all of his actions in further- "collaboratively,” testimony ance of the new were business done testimony anything in conflict with Futch’s that he never did that was disloyal job responsibilities to his with McAllister. See Archie Bell Norman, (on (Ct.App.1993) Constr. Co. v. 427 S.E.2d 689 verdict, any contrary motion for directed evidence to or in conflict with nonmoving party the evidence favorable to the must not be considered nonmoving party given every and the must be the benefit of favorable reasonably suggest). inference that the facts *9 that Futch’s Secondly, assuming proved even law, I as a matter of believe the case of Ocean- disloyalty Woodside, 428, 192 (1937), cited Forest Co. v. S.E. that the rule is by majority proposition general the for the all agent guilty disloyalty principal that “an to his forfeits to actually supports Futch’s entitlement the compensation,” Ocean-Forest, In sought. agent he the was compensation collecting hired for the and sole task of a sum of specific was on a fee money compensation contingent and his basis. it collecting money, agent misappropriated After to his surprisingly, agent’s use. Not the court denied the claim own for commission. in general

The court Ocean-Forest did state that the rule is however, by majority. paragraph, In the next as indicated the court clarified the rule: rule, if general agent guilty dishonesty

As a an is of fraud or agency, wilfully disregards in the transaction his which, obligation owing principal by agen- reason him, ... cy, upon right the law devolves he loses his to Institute, As stated the American Law compensation. to agent compensation is entitled no for conduct which is loyalty; disobedient or is a breach of his such conduct, constituting if a wilful and deliberate breach of his service, him compensation contract of disentitles for even properly performed compensation services which no apportioned. added). 442-43, (emphasis Id. at at 420 S.E. Ocean-Forest, Here, alleged disloyalty unlike in Futch’s clearly did not occur “in the transaction of his It is agency.” Futch undisputed fully capably performed the duties he was to be to do. Because his con- paid alleged disloyalty cerned acts unconnected with the duties he required was perform, disloyalty should not affect his entitlement compensation for the work he did perform.2 in

Similarly, compensation it is clear that the at issue this contract, “apportioned” paid case is as was per allege commission on a vessel basis. McAllister does not Futch failed to perform any of the work for which he seeks disloyalty give independent 2. Whether such could rise to an cause of action is another matter. Therefore, compensation. even if he wilfully deliberately his duty loyalty, breached under the rationale of Ocean- Forest, he remained compensation entitled to the at issue.

I would also hold the trial court was correct to award treble damages attorney Wage fees under the Payment Act. 41-10-80(0) (1996) Section of the Act states: In any case of failure to pay wages employee due to an as required Section 41-10-40 or 41-10-50 the employee may recover a civil action an equal amount to three times the full amount of unpaid wages, plus costs and reason- attorney’s able fees as the court may Any allow. civil action recovery for the of wages must be commenced within three years wages after the become due.

However, an is not penalties liable for under the act is a good dispute when there faith between employee Multimedia, Inc., employer. Rice v. 456 S.E.2d (1995). The trial on ruling good court’s faith issue will not be reversed on appeal absent an abuse of the trial court’s discretion. See id.

McAllister contends withholding its of Futch’s commissions was based on a good dispute. faith As I have argued, however, because deny McAllister did not that Futch capably performed the duties he required perform was and McAllis- allegations disloyalty ter’s were unconnected with those duties, no legal theory supported colorable McAllister’s refusal pay compensation he had earned.

I would affirm.