Gould v. Worldwide Apparel LLC

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Shane Gould, Respondent,

v.

Worldwide Apparel LLC, f/k/a MusclePharm Sportswear
LLC, and Drew Ciccarelli, Appellants.

Appellate Case No. 2016-002469

Appeal From Charleston County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2019-UP-262
Heard April 1, 2019 – Filed July 17, 2019

REVERSED AND REMANDED

Desa Ballard and Harvey M. Watson, III, both of Ballard
& Watson, of West Columbia, and Theodore Harry
Huge, of Charleston, and William Stephen Harris, of
Johns Island, both of Harris & Huge, LLC, for
Appellants.
John E. Schmidt, III and Melissa Javon Copeland, of
Schmidt & Copeland, LLC, of Columbia, for
Respondent.

PER CURIAM: In this action under the South Carolina Payment of Wages Act,
S.C. Code Ann. §§ 41-10-10 to -110 (Supp. 2018), Appellants, Worldwide Apparel,
LLC and Drew Ciccarelli, challenge an order granting summary judgment to
Respondent Shane Gould. Appellants argue summary judgment was improper
because genuine issues of material fact existed as to the operative terms of
employment. We agree and, therefore, reverse and remand.

This court reviews the grant of a summary judgment motion under the same
standard applied by the trial court pursuant to Rule 56(c), SCRCP. Jackson v.
Bermuda Sands, Inc., 383 S.C. 11, 14 n.2, 677 S.E.2d 612, 614 n.2 (Ct. App. 2009).
Rule 56(c), SCRCP, provides that summary judgment shall be granted when "the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law." Further,
"[w]hen a circuit court grants summary judgment on a question of law, this [c]ourt
will review the ruling de novo." Wright v. PRG Real Estate Mgmt., Inc., 426 S.C.
202, 212, 826 S.E.2d 285, 290 (2019).

"In determining whether any triable issues of fact exist, the evidence and all
inferences [that] can be reasonably drawn from the evidence must be viewed in the
light most favorable to the nonmoving party." Hancock v. Mid-S. Mgmt. Co., 381
S.C. 326, 329–30, 673 S.E.2d 801, 802 (2009). "Summary judgment should not be
granted even when there is no dispute as to evidentiary facts if there is disagreement
concerning the conclusion to be drawn from those facts." Lanham v. Blue Cross &
Blue Shield of S.C., Inc., 349 S.C. 356, 362, 563 S.E.2d 331, 333 (2002). "On appeal
from an order granting summary judgment, the appellate court will review all
ambiguities, conclusions, and inferences arising in and from the evidence in a light
most favorable to the non-moving party below." Id.

Further, "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 in order
to withstand a motion for summary judgment." Hancock, 381 S.C. at 330, 673
S.E.2d at 803; see also Radcliffe v. S. Aviation Sch., 209 S.C. 411, 420, 40 S.E.2d
626, 630 (1946) ("A scintilla of evidence is any material evidence that, if true, would
tend to establish the issue in the mind of a reasonable jury." (quoting In re Crawford,
205 S.C. 72, 30 S.E.2d 841, 849 (1944))); Bethea v. Floyd, 177 S.C. 521, 181 S.E.
721, 724 (1935) (defining "scintilla" as the smallest trace). "At the summary
judgment stage of litigation, the court does not weigh conflicting evidence with
respect to a disputed material fact." S.C. Prop. & Cas. Guar. Ass'n v. Yensen, 345
S.C. 512, 518, 548 S.E.2d 880, 883 (Ct. App. 2001). Moreover, "[s]ummary
judgment is not appropriate where further inquiry into the facts of the case is
desirable to clarify the application of the law." Id.

Here, Appellants assert deposition testimony and copies of text messages
between Gould and Ciccarelli show that the imminent sale of MusclePharm
Sportswear greatly reduced the amount of time Appellants needed Gould's assistance
and, thus, Ciccarelli and Gould agreed on reduced hours and compensation.
Appellants argue these material issues of fact precluded summary judgment. On the
other hand, Gould asserts that the attempted changes in his working hours and
compensation were void because they were not in writing, as required by the
Payment of Wages Act (the Act), and also constituted an illegal agreement
purporting to contravene the Act's provisions. Therefore, Gould argues, he is
entitled to judgment as a matter of law.

The Act's purpose is "to protect employees from the unjustified and wilful
retention of wages by the employer." Rice v. Multimedia, Inc., 318 S.C. 95, 98, 456
S.E.2d 381, 383 (1995). Yet, the Act "does not prohibit an employer from asserting
valid defenses or disputing payment in good faith." Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 605, 518 S.E.2d 591, 594 (1999). The provision on
which the outcome of the present case hinges is section 41-10-30(A) of the South
Carolina Code (Supp. 2018), which states,

Every employer shall notify each employee in writing at
the time of hiring of the normal hours and wages agreed
upon,1 the time and place of payment, and the deductions
[that] will be made from the wages, including payments to
insurance programs. The employer has the option of
giving written notification by posting the terms
conspicuously at or near the place of work. Any changes
in these terms must be made in writing at least seven

1
Both Ciccarelli and Gould testified that their agreement for Gould to be paid
$10,000 per month was not in writing. Gould stated that he did not want a written
agreement at that time.
calendar days before they become effective. This section
does not apply to wage increases.

(emphases added). Section 41-10-30 "is a notice statute. It is intended to provide
the employee with the information requisite to make an educated decision whether
or not to accept employment." Carolina All. for Fair Emp't v. S.C. Dep't of Labor,
Licensing, & Regulation, 337 S.C. 476, 491, 523 S.E.2d 795, 803 (Ct. App. 1999).

Gould contends the language of section 41-10-30(A), i.e., "[a]ny changes in
these terms must be made in writing at least seven calendar days before they become
effective," is self-enforcing. Gould argues the Act "provides that any downward
change in the rate of pay of an employee is not effective without seven days' advance
written notice." Gould does not cite any case law to support this assertion.

Appellants counter that the use of the word "effective" in section 41-10-30(A)
is "merely used as a timing mechanism for the giving of written notice, not a
potential nullification of an act." In other words, the use of the words "they become
effective" merely provides the temporal starting point for determining the date on
which the employer must provide notice to the employee. Appellants also argue that
the exchange of text messages met the writing requirement of section 41-10-30(A)
and, even if these messages did not satisfy the writing requirement, the Act's only
penalty for violating the writing requirement is set forth in S.C. Code Ann. § 41-10-
80(A) (Supp. 2018), which states,

Any employer who violates the provisions of Section 41-
10-30 must be given a written warning by the Director of
the Department of Labor, Licensing, and Regulation or his
designee for the first offense and must be assessed a civil
penalty of not more than one hundred dollars for each
subsequent offense.

"The cardinal rule of statutory construction is that we are to ascertain and
effectuate the actual intent of the legislature." Burns v. State Farm Mut. Auto. Ins.
Co., 297 S.C. 520, 522, 377 S.E.2d 569, 570 (1989). "In interpreting a statute, the
court will give words their plain and ordinary meaning[] and will not resort to forced
construction that would limit or expand the statute." State v. Johnson, 396 S.C. 182,
188, 720 S.E.2d 516, 520 (Ct. App. 2011). "Thus if the words are unambiguous,
[the court] must apply their literal meaning." CFRE, LLC v. Greenville Cty.
Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011).
Under the plain meaning rule, it is not the province of the
court to change the meaning of a clear and unambiguous
statute. Where the statute's language is plain,
unambiguous, and conveys a clear, definite meaning, the
rules of statutory interpretation are not needed and the
court has no right to impose another meaning.

S.C. Energy Users Comm. v. S.C. Pub. Serv. Comm'n, 388 S.C. 486, 491, 697 S.E.2d
587, 590 (2010) (citation omitted). Further, "[t]he intention of the legislature must
be gleaned from the entire section and not simply clauses taken out of context."
Singletary v. S.C. Dep't of Educ., 316 S.C. 153, 162, 447 S.E.2d 231, 236 (Ct. App.
1994).

Moreover, a statute "must be read as a whole and sections [that] are part of
the same general statutory law must be construed together and each one given
effect." CFRE, 395 S.C. at 74, 716 S.E.2d at 881 (quoting S.C. State Ports Auth. v.
Jasper Cty., 368 S.C. 388, 398, 629 S.E.2d 624, 629 (2006)). "[The court] therefore
should not concentrate on isolated phrases within the statute." Id. "Instead, [the
court reads] the statute as a whole and in a manner consonant and in harmony with
its purpose." Id. "In that vein, [the court] must read the statute so 'that no word,
clause, sentence, provision or part shall be rendered surplusage, or superfluous,' for
'[t]he General Assembly obviously intended [the statute] to have some efficacy, or
the legislature would not have enacted it into law.'" Id. (citation omitted) (alterations
in original) (quoting State v. Sweat, 379 S.C. 367, 377, 382, 665 S.E.2d 645, 651,
654 (Ct. App. 2008)).

Under the plain meaning rule, Gould's interpretation of section 41-10-30(A)
cannot stand because it would require adding the word "may" (or "will") to the
language "[a]ny changes in these terms must be made in writing at least seven
calendar days before they become effective" to read, "[a]ny changes in these terms
must be made in writing at least seven calendar days before they may/will become
effective." See Johnson, 396 S.C. at 188, 720 S.E.2d at 520 ("In interpreting a
statute, the court will give words their plain and ordinary meaning[] and will not
resort to forced construction that would limit or expand the statute." (emphasis
added)).

Further, if the legislature had intended to impose any consequences for
violation of section 41-10-30 in addition to those imposed by section 41-10-80, it
would have expressly provided for them, and there is no provision in the Act other
than section 41-10-80 addressing the failure of an employer to comply with the
writing requirement of section 41-10-30(A). See id. ("In interpreting a statute, the
court will give words their plain and ordinary meaning[] and will not resort to forced
construction that would limit or expand the statute." (emphasis added)); CFRE, 395
S.C. at 74, 716 S.E.2d at 881 (2011) (holding that a statute "must be read as a whole
and sections [that] are part of the same general statutory law must be construed
together and each one given effect" (quoting S.C. State Ports Auth., 368 S.C. at 398,
629 S.E.2d at 629)); id. ("We therefore should not concentrate on isolated phrases
within the statute."); id. ("Instead, we read the statute as a whole and in a manner
consonant and in harmony with its purpose.").

Even if both Gould's and Appellants' respective interpretations of section 41-
10-30(A) could be viewed as reasonable, the perceived ambiguity would be resolved
by the canon "expressio unius est exclusio alterius" or "inclusio unius est exclusio
alterius," which means "to express or include one thing implies the exclusion of
another, or of the alternative." State v. Leopard, 349 S.C. 467, 472–73, 563 S.E.2d
342, 345 (Ct. App. 2002) (quoting S.C. Dep't of Consumer Affairs v. Rent-A-Center,
Inc., 345 S.C. 251, 256, 547 S.E.2d 881, 883–84 (Ct. App. 2001)); see also Wigfall
v. Tideland Utils., Inc., 354 S.C. 100, 117, 580 S.E.2d 100, 109 (2003) ("We may
apply . . . rules of statutory construction when the meaning of the act is
ambiguous."). This canon supports our conviction that the only consequences the
legislature intended to impose for violating the writing requirement of section 41-
10-30(A) are those specifically set forth in section 41-10-80. There is simply no
indication that the legislature intended to void an oral novation of an oral
employment contract.

Gould also maintains that because the Act prohibits any agreement attempting
to set aside the Act's protections for workers, his lawful salary was "at no
time . . . anything other than the undisputed originally agreed $10,000 per month."
See S.C. Code Ann. § 41-10-100 (Supp. 2018) ("No provision of this chapter may
be contravened or set aside by a private agreement."). This logic is strained.

First, the original oral contract for $10,000 per month also violated the writing
requirement. Further, the plain language of section 41-10-100 contemplates an
employee's agreement to waive a protection provided by the Act. See Ross v. Ligand
Pharm., Inc., 371 S.C. 464, 473 n.1, 639 S.E.2d 460, 465 n.1 (Ct. App. 2006)
(discussing section 41-10-100 and stating that South Carolina courts "refuse to allow
employers to ignore the [Act] by claiming their employees had by contract or custom
waived their statutory right to prompt payment of wages." (quoting Futch, 335 S.C.
at 605, 518 S.E.2d at 594)). Appellants' agreement with Gould for his reduced
workload and compensation did not address the writing requirement of section 41-
10-30, much less seek Gould's waiver of that requirement. Cf. Ross, 371 S.C. at 473
n.1, 639 S.E.2d at 465 n.1 (holding that an incentive plan providing for estimated
payment dates rather than dates certain "sought to set aside the requirement of the
Act that Employers must provide a 'time and place of payment' to employees").

In any event, the contents of the text messages exchanged between Gould and
Ciccarelli were sufficient to satisfy the writing requirement. The Act does not place
limits on the nature of the writing or provide a specific definition for the term
"writing." Therefore, we may rely on case law recognizing electronic forms of
communication as a writing. Cf. Mathis v. Brown & Brown of S.C., Inc., 389 S.C.
299, 308–09, 698 S.E.2d 773, 777–78 (2010) (recognizing the language in electronic
mail sent to an employee created a contract for a two-year term of employment);
e.g., Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 577 (D. Md. 2007) (stating
that the definition of "writings, recordings and photographs" in Rule 1001, FRE,
includes evidence that is electronically generated and stored); State v. Legassie, 171
A.3d 589, 598 n.8 (Me. 2017) (observing that a majority of state and federal courts
applying the best evidence rule have concluded that electronically-transmitted
communications such as emails or text messages constitute writings); Dalton v.
Commonwealth, 769 S.E.2d 698, 704 (Va. Ct. App. 2015) ("[T]ext messages
constitute writings for the purposes of the best evidence rule."); State v. Espiritu,
176 P.3d 885, 892 (Haw. 2008) (holding that a text message qualifies as a writing as
defined in Hawaii's rules of evidence "because it consists of letters, words, or
numbers set down by mechanical or electronic recording, or other form of data
compilation").

Based on the foregoing, the writing requirement of section 41-10-30 is an
improper basis on which to preclude a jury from resolving the issues concerning the
existence and terms of a novation between the parties. See Rule 56(c), SCRCP
(allowing summary judgment only when "there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law"); U.S.
Bank Tr. Nat'l Ass'n v. Bell, 385 S.C. 364, 374, 684 S.E.2d 199, 204–05 (Ct. App.
2009) ("When interpreting an oral contract, a court must give effect to the intentions
of the parties. The determination of the parties' intent is a question of fact." (citations
omitted)); 17B C.J.S. Contracts § 1012 (2019) (explaining that the question of the
existence of an oral contract is generally one of fact, unless the evidence is
undisputed and incapable of supporting more than one inference).

Further, the text messages and the related deposition testimony constitute
more than a scintilla of evidence of the parties' intent to adjust Gould's compensation
and phase out his employment. Because these factual issues are material to the issue
of the amount of wages Appellants owed to Gould when Gould filed his complaint,
they should be presented to a jury for resolution. See Rule 56(c), SCRCP (allowing
summary judgment only when "there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law." (emphasis
added)); Hancock, 381 S.C. at 330, 673 S.E.2d at 803 ("[I]n cases applying the
preponderance of the evidence burden of proof, the non-moving party is only
required to submit a mere scintilla of evidence in order to withstand a motion for
summary judgment."); Yensen, 345 S.C. at 518, 548 S.E.2d at 883 ("Summary
judgment is not appropriate where further inquiry into the facts of the case is
desirable to clarify the application of the law."). Therefore, the circuit court erred
by granting summary judgment to Gould.

CONCLUSION

Based on the foregoing, we reverse the circuit court's order granting summary
judgment to Gould and remand for further proceedings. In light of this disposition,
we need not address Appellants' remaining issues. See Futch, 335 S.C. at 613, 518
S.E.2d at 598 (providing that an appellate court need not address remaining issues
when resolution of a prior issue is dispositive).

REVERSED AND REMANDED.

WILLIAMS, GEATHERS, and HILL, JJ., concur.