Alicia Pearson v. Richland County

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Alicia Pearson, Respondent,

v.

Richland County, Appellant.

Appellate Case No. 2022-001470

Appeal From Richland County
L. Casey Manning, Circuit Court Judge

Opinion No. 6097
Heard October 15, 2024 – Filed January 29, 2025

REVERSED AND REMANDED

Andrew F. Lindemann, of Lindemann Law Firm, P.A., of
Columbia, for Appellant.

Donald Gist, of Gist Law Firm, PA and Erica Katherine
McCrea, of Merritt, Webb, Wilson & Caruso, PLLC,
both of Columbia, for Respondent.

KONDUROS, J.: Richland County (the County) appeals a circuit court order
granting Alicia Pearson a jury trial on her breach of contract claim. The County
argues Pearson was not entitled to a jury trial because a breach of contract claim
against the government was not recognized in 1868 when the adoption of our state
constitution enshrined the right to a jury trial. We reverse and remand.

FACTS
Pearson began working for the County as an accountant in January of 2017. In this
action, she alleges she was unfairly criticized and her competency was questioned
in front of her co-workers in retaliation for filing a grievance regarding a racially
offensive comment made by the County Transportation Director. Pearson also
alleges she was "functionally demoted" in the form of changes in responsibility and
supervision after bringing to light instances in which she was directed to process
certain requests she claimed were incomplete and went against policy.

In her complaint, Pearson alleged breach of contract, promissory estoppel, and
whistleblower retaliation and requested a jury trial. Pearson argued the County
breached her employment contract, specifically the retaliation policy in its
employee handbook, when she was "the victim of retaliation and demotion." The
County filed a motion to transfer to a non-jury docket and a motion for summary
judgment. Relying on Unisys Corp. v. South Carolina Budget & Control Board
Division of General Services Information Technology Management Office,1 the
County argued Pearson was not entitled to a jury trial because there was no
constitutional right to a jury trial for a breach of contract claim against a sovereign
at the time the constitution was adopted, and therefore, no such right exists now.

The circuit court found Pearson was entitled to a jury trial for the breach of
contract claim; however, it denied her requests for a jury trial on her promissory
estoppel and whistleblower claims. Regarding its refusal to transfer Pearson's
breach of contract claim to the non-jury docket, the court stated the County was not
entitled to sovereign immunity because our supreme court had abolished the State's
total sovereign immunity. The circuit court further reasoned that based on case
law, when the State "consents to a contract, it consents to suit on that contract." In
applying this reasoning to the case, the circuit court explained the County
consented to be sued when it contracted with Pearson to secure her employment.
The circuit court also found that the County provided Pearson with a handbook
containing policies that created a contractual relationship between the two.2 This
appeal followed.

1
346 S.C. 158, 551 S.E.2d 263 (2001).
2
While the circuit court alluded to Pearson's handbook argument in its order and
denied the County's request for summary judgment based on the lack of a contract,
Pearson did not move for summary judgment on the matter and does not assert on
appeal that the circuit court finally determined the handbook issue. Based on our
disposition of the case, we decline to reach the question of whether the handbook
created contractual duties between Pearson and the County and leave that issue for
trial. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518
STANDARD OF REVIEW

"Whether a party is entitled to a jury trial is a question of law." Verenes v.
Alvanos, 387 S.C. 11, 15, 690 S.E.2d 771, 772 (2010). "An appellate court may
decide questions of law with no particular deference to the trial court." Id. at 15,
690 S.E.2d at 772-73. "As to questions of law, this court's standard of review is de
novo." Citizens for Quality Rural Living, Inc. v. Greenville Cnty. Plan. Comm'n,
426 S.C. 97, 102, 825 S.E.2d 721, 724 (Ct. App. 2019).

LAW/ANALYSIS

The County contends the circuit court erred in finding Pearson was entitled to a
jury trial on her breach of contract claim against the County. We agree.

Article I, section 14 of the South Carolina Constitution "secures the right to a jury
trial only in cases in which that right existed at the time of the adoption of the
constitution in 1868." Unisys, 346 S.C. at 172, 551 S.E.2d at 271. 3 "The right to a
jury trial does not apply to actions against the sovereign that were not recognized
in 1868." Id. "At the time our constitution was adopted in 1868, the State was
immune from suit on a contract." 4 Id. at 173, 551 S.E.2d at 271. However, even
when the doctrine of sovereign immunity existed, a governmental agency could be
sued by consent. See Hodges v. Rainey, 341 S.C. 79, 92, 533 S.E.2d 578, 584
(2000) (acknowledging that in 1934, "the State was protected by total sovereign
immunity and could only be sued in tort or in contract when the State consented").
In discussing the nature of this consent, the Supreme Court of South Carolina
remarked, "That a state cannot be sued in any of its courts without its express
consent, which can only be given by the legislative authority, is a proposition so
universally conceded as to render any argument or authority to support it wholly
unnecessary." Lowry v. Thompson, 25 S.C. 416, 419, 1 S.E. 141, 143 (1886).
overruled by Washington v. Whitaker, 317 S.C. 108, 114-15, 451 S.E.2d 894, 898

S.E.2d 591, 598 (1999) (holding the appellate court may decline to address
remaining issues when the disposition of a prior issue is dispositive).
3
"The right of a trial by jury shall be preserved inviolate." S.C. Const. art. I, § 14.
4
Sovereign immunity was ultimately abolished by McCall v. Batson. McCall v.
Batson, 285 S.C. 243, 329 S.E.2d 741 (1985), superseded by statute S.C. Code
Ann. §§ 15-78-10 to -20 (2005) (the Tort Claims Act). Nevertheless, we are
constrained by our supreme court's ruling in Unisys to conclude that Pearson does
not have the right to a jury trial.
(1994) (explaining sovereign immunity implicates a jurisdictional requirement as
opposed to an affirmative defense that must be pled). The court further explained

The consent of the state to be sued must be given in
express terms or at least in terms so clear and
unambiguous as necessarily to imply consent; and it has
been held that statutes authorizing suits against a state,
being in derogation of its sovereignty, should be
construed strictly, although not so strictly as to exclude a
case clearly coming within their terms, for the
construction should be such as to carry out the legislative
intent.

U. S. Cas. Co. v. State Highway Dep't of S.C., 155 S.C. 77, 83, 151 S.E. 887, 890
(1930), overruled by McCall, 285 S.C. at 250 n.73, 329 S.E.2d at 745 n.73 (italics
added) (quoting 36 Cyc. 913). 5

Pearson relies heavily on Kinsey Construction Co. v. South Carolina Department
of Mental Health, 272 S.C. 168, 170, 249 S.E.2d 900, 902 (1978) 6, in which the
supreme court considered whether the State could be sued on a contract for the
construction of an alcohol and drug addiction center in Richland County pursuant
to a statute giving the Department of Mental Health all of the powers incident to
corporations. The court found "that whenever the State of South Carolina pursuant
to statutory authority enters into a valid contract, the State implicitly consents to be
sued and waives its sovereign immunity to the extent of its contractual
obligations." Id. at 172, 249 S.E.2d at 903. Kinsey certainly signaled the law was

5
Some cases also suggest the state could be sued prior to the abolishment of
sovereign immunity if the claim was based on a taking as implicated by the United
States Constitution. See Chesterfield County v. State Highway Department of
South Carolina, 181 S.C. 323, 329-30, 187 S.E. 548, 550 (1936) ("In the case of
Chick Springs Water Co. v. Highway Department, [178 S.C. 415, 183 S.E. 27
(1935)], . . . this court laid down the principle that: 'No act of General Assembly is
needed for suit against [the] state to recover just compensation for private property
taken for public purpose (Const. art. 1, § 17).'").
6
overruled by McCall, 285 S.C. at 248 n.11, 329 S.E.2d at 743 n.11 with regard to
the abrogation of sovereign immunity and by Unisys, 346 S.C. at 167, 551 S.E.2d
268 to the extent Kinsey stated section 15-77-50 of the South Carolina Code (2005)
constitutes a blanket waiver of sovereign immunity as opposed to being a venue
statute.
moving toward an expansion of the right to sue the State in contract. However, we
conclude Pearson's reliance on Kinsey is misplaced. Even if we assume the
implicit consent discussed in Kinsey retroactively applied to 1868, the facts in this
case are not analogous, and the legal theory for the existence of Pearson's
contract—promises contained in an employment handbook—is not based on any
statutory authority which Kinsey recognizes as a necessary basis to infer the State's
consent to be sued. Furthermore, this legal theory was not recognized in our state
until the 1980s. See Small v. Springs Indus., Inc., 292 S.C. 481, 485-86, 357 S.E.2d
452, 455 (1987) ("[A] majority of states has determined that a handbook can alter
the employment status. South Carolina, as a progressive state which wishes to see
that both employer and employee are treated fairly, now joins those states."
(citations omitted)).

Based on the rule set forth in Unisys, we conclude Pearson was not entitled to a
jury trial on her breach of contract claim against the County. Therefore, the circuit
court's order is

REVERSED AND REMANDED.

GEATHERS and VINSON, JJ., concur.