Hendrix v. Eastern Distribution, Inc.

446 S.E.2d 440, 316 S.C. 34, 10 I.E.R. Cas. (BNA) 57, 1994 S.C. App. LEXIS 49
Court of Appeals of South Carolina·Decided April 4, 1994·No. 2167·Published·Cited by 11 cases

Opinions

Connor, Judge:

Mary Hendrix brought an action against her former employer, Eastern Distribution, Inc., alleging, among other causes of action, breach of an employment contract and breach of contract accompanied by a fraudulent act. The circuit court denied Eastern’s motion for a directed verdict on these two claims. The jury awarded Hendrix $47,375 actual and $150,238 punitive damages. Eastern appeals. We affirm.

On June 1,1988, Hendrix began work for Eastern as a sales representative. At the beginning of her employment with Eastern, Hendrix signed a document prepared by Eastern’s national sales manager, which provided in its entirety:

TERMS OF EMPLOYMENT DATED MAY 25,1988 This Document is not a contract of employment, but detail [sic] in writing the items agreed to by Ed Collier and Mary Hendrix. The agreement was discussed on May 19, 1988 at Eastern Distribution, Inc. in the office of Ed Collier.
1. Date of employment will be June 1,1988.
2. Starting salary shall be $21,000 per year, plus one (1) percent commission on all new accounts obtained from new customers solicited and signed by Mary Hendrix. The salary shall be paid weekly at a rate of $403.85 and commissions earned shall be paid at the end of each business quarter.
3. The starting salary shall be increased to $25,000 per year in six (6) months or $480.77 per week based on the performance of Ms. Hendrix. If performance level has been evaluated in three (3) months to be high and accounts have been generated, the increase will be enacted.
4. Mileage allowance will be at .21 cent [sic] per mile.

[37] This memorandum represents the only written evidence of the agreed terms of her employment.

Eastern terminated Hendrix’s employment on January 31, 1991, allegedly due to “economic conditions.” Hendrix claimed, however, Eastern terminated her because it did not want to continue paying her commissions on accounts and contracts she had developed.

Neither party disputes the existence of a valid employment relationship, the terms of which are strongly disputed. The question before us is whether Eastern breached the contract by terminating Hendrix’s employment. Both parties agree the document is not an employment contract. Rather, the document sets forth certain terms of the oral employment contract which is the subject of this action.

I.

Eastern first argues the circuit court erred in failing to grant its directed verdict motions on the breach of contract and breach of contract accompanied by fraudulent act claims. We affirm.

Although Eastern made directed verdict motions at the close of Hendrix’s case-in-chief, it failed to renew these motions at the close of-all the evidence. This Court, therefore, is precluded from reviewing these issues on appeal. Stokes v. Denmark Emergency Medical Services, — S.C. —, 433 S.E. (2d) 850 (1993); Baker v. Chavis, 306 S.C. 203, 410 S.E. (2d) 600 (Ct. App. 1991). The rule that a judgment notwithstanding the verdict may not be granted unless the moving party moved for a directed verdict at the close of all the evidence is a strict one. Smith v. Ridgeway Chemicals, Inc., 302 S.C. 303, 395 S.E. (2d) 742 (Ct. App. 1990). The rules which govern our appellate jurisdiction and determine which issues are preserved for appeal are equally strict.

II.

Even if the issue were preserved for appeal, we affirm on the merits.

In reviewing the denial of a motion for a directed verdiet, we must view the evidence in the light most favorable to Hendrix, the party opposing the motion. Hope Petty Motors v. Hyatt, — S.C. —, 425 S.E. (2d) 786 (Ct. [38] App. 1993). Viewing the record in this light, there is evidence from which the jury could reasonably infer that although Hendrix was an at-will employee, her employment contract precluded her termination in order for Eastern to avoid paying her commissions.

A contract is an obligation which arises from actual agreement of the parties manifested by words, oral or written, or by conduct. Gaskins v. Blue Cross-Blue Shield of South Carolina, 271 S.C. 101, 245 S.E. (2d) 598 (1978); Moore v. Palmetto State Life Insurance Co., 222 S.C. 492, 73 S.E. (2d) 688 (1952). If an agreement is manifested by words, the contract is said to be express. Thomas v. Lomar, 82 Ga. App. 592, 61 S.E. (2d) 790 (1950). An oral contract is enforceable according to its terms. Disputed terms of a contract are issues of fact which are for the jury’s determination.

In Orsini v. Trojan Steel Corp., 219 S.C. 272, 276, 64 S.E. (2d) 878, 879 (1951), the Supreme Court stated:

The general rule is that under ordinary circumstances a contract to furnish employment permanently, or so long as the employee’s services shall be properly performed, or for a similar indefinite period, is no more than an indefinite hiring, terminable at the will of either party, and is therefore unenforcible [sic] as to its duration.

(Emphasis ours.) See also Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499 (1936) (a contract for permanent employment, so long as it is satisfactorily performed, which is not supported by any consideration other than the obligation of service to be performed on the one hand and wages to be paid on the other, is terminable at the pleasure of either party). However, even if under an Orsini and Shealy “indefinite term” analysis Hendrix were an at-will employee, terminable at Eastern’s pleasure, this does not end the inquiry.

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Hendrix v. Eastern Distribution, Inc., 446 S.E.2d 440, 316 S.C. 34, 10 I.E.R. Cas. (BNA) 57, 1994 S.C. App. LEXIS 49 (S.C. Ct. App. 1994).

446 S.E.2d 440 (Hendrix v. Eastern Distribution, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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