Donevant v. Town of Surfside Beach

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Jacklyn Donevant, Respondent,

v.

Town of Surfside Beach, Petitioner.

Appellate Case No. 2015-002533

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Horry County
Deadra L. Jefferson, Trial Court Judge

Opinion No. 27771
Heard October 18, 2017 – Filed February 28, 2018

AFFIRMED

Charles Franklin Thompson Jr., of Malone, Thompson,
Summers & Ott, LLC, of Columbia, for Petitioner.

Henrietta U. Golding and James K. Gilliam, both of
McNair Law Firm, of Myrtle Beach, for Respondent.

JUSTICE FEW: The court of appeals affirmed a jury verdict for Jacklyn Donevant
in her wrongful termination action against the Town of Surfside Beach, finding her
cause of action fit within the public policy exception to the at-will employment
doctrine. Donevant v. Town of Surfside Beach, 414 S.C. 396, 778 S.E.2d 320 (Ct.
App. 2015). The Town contends the court of appeals' decision "greatly expanded
the public policy exception." We find the Town has misinterpreted the court of
appeals' opinion. We affirm.

The court of appeals set forth the facts of the case in detail. 414 S.C. at 399-404,
778 S.E.2d at 322-25. We summarize below those facts necessary to explain our
interpretation of the court of appeals' opinion.

The South Carolina Building Codes Council1 is responsible for adopting the building
code that applies throughout the state. See S.C. Code Ann. §§ 6-9-40(A), 6-9-50(A)
(Supp. 2017); 1 S.C. Code Ann. Regs. 8-236 (2011). The Council has adopted the
International Building Code. See 1 S.C. Code Ann. Regs. 8-800 (Supp. 2017). Each
municipality is responsible for enforcing this building code in its jurisdiction. See
S.C. Code Ann. § 6-9-10(A) (Supp. 2017) (requiring all municipalities enforce the
building code adopted by the South Carolina Building Code Council). Before she
was fired, Donevant served as the Town's "building official," a position each
municipality is required to fill. S.C. Code Ann. § 6-9-30(A) (Supp. 2017). The
building official's responsibilities are defined in the State regulations. See 1 S.C.
Code Ann. Regs. 8-105 (2011) (defining "building official" as "the officer
designated by a local jurisdiction, who is charged with the administration and
enforcement of Building Codes"). Chapter 1 of the building code provides, "The
building official shall . . . enforce compliance with the provisions of this code" and
"shall issue all necessary notices or orders to ensure compliance." Int'l Bldg. Code
§§ 104.2, 104.3 (2006).2

The building code requires anyone "who intends to construct, enlarge, alter, [or]
repair . . . a building . . . shall first . . . obtain the required permit." Int'l Bldg. Code
§ 105.1. The building code further provides, "It shall be unlawful for any person
. . . to erect, construct, alter, . . . [or] repair . . . any building . . . in conflict with or in
violation of any of the provisions of this code." Int'l Bldg. Code § 113.1. Donevant

1
The Council is an agency within the South Carolina Department of Labor,
Licensing, and Regulation. S.C. Code Ann. § 1-30-65 (2005).
2
Although municipalities are not required to adopt Chapter 1, see § 6-9-50(A), the
Town chose to do so. See Surfside Beach, S.C., Ordinance No. 08-0641 (July 8,
2008) (adopting Chapters 1 through 35 of the 2006 Int'l Bldg. Code).
discovered unpermitted construction work she determined to be in violation of the
building code, and she issued a stop work order.3 She was fired a few days later.

Our Legislature established the general public policy of enforcing the building code
in subsection 6-9-5(A) of the South Carolina Code (Supp. 2017), which provides,
"The public policy of South Carolina is to maintain reasonable standards of
construction in buildings and other structures in the State consistent with the public
health, safety, and welfare of its citizens." The Legislature set forth the specific
requirements of that policy by requiring every municipality to enforce the building
code. § 6-9-10(A). As the Town's building official, Donevant was charged by State
and local law to carry out this policy. See supra, discussion of S.C. Code Ann. § 6-
9-30(A), 1 S.C. Code Ann. Regs. 8-105, and Int'l Bldg. Code §§ 104.2, 104.3. When
she discovered construction work being done without a permit, which she correctly
determined to be in violation of the building code, it became her mandatory
responsibility to "ensure compliance."

As we read this record and the court of appeals' opinion, Donevant was fired because
she carried out her mandatory responsibility under the law to enforce the provisions
of the building code. The jury charge and the closing arguments are not in the record,
which prevents us from determining the precise factual question the trial court put
before the jury. However, during oral argument at the court of appeals, "the Town
conceded that the reason Donevant was fired is not an issue on appeal." Donevant,
414 S.C. at 408, 778 S.E.2d at 327. Therefore, based on the record as it appears to
us, the question on appeal is whether it is a violation of a clear mandate of public
policy to fire a building official for enforcing the building code. Ludwick v. This
Minute of Carolina, Inc., 287 S.C. 219, 225, 337 S.E.2d 213, 216 (1985). As the
court of appeals held, the answer is "yes." This case fits squarely within the long-
established limits of the public policy exception to the at-will employment doctrine
because firing Donevant for enforcing the building code violates a clear mandate of
public policy. See Barron v. Labor Finders of S.C., 393 S.C. 609, 614, 713 S.E.2d
634, 636-37 (2011) ("Under the 'public policy exception' to the at-will employment
doctrine . . . an at-will employee has a cause of action in tort for wrongful
termination where there is a retaliatory termination of the at-will employee in
violation of a clear mandate of public policy." (citing Ludwick, 287 S.C. 219, 337
S.E.2d 213)).

3
A stop work order is an official document signed by the building official that
requires all construction at the site to cease. Int'l Bldg. Code §§ 114.1-114.3.
The Town makes several arguments to support its contention the court of appeals'
decision expands the public policy exception, each of which we find the court of
appeals effectively refuted. We address in particular only one of those arguments—
the argument Donevant's claim does not fit within the public policy exception
because her decision to issue a stop work order was discretionary under Antley v.
Shepard, 340 S.C 541, 532 S.E.2d 294 (Ct. App. 2000), aff'd as modified, 349 S.C.
600, 564 S.E.2d 116 (2002). In Antley, the court of appeals held the public policy
exception does not apply when an employee is fired for taking action she is
"permitted, but not required" by law, to take. 340 S.C. at 549, 532 S.E.2d at 298.
The Town argues the court of appeals' decision is in conflict with Antley because she
was fired for taking the discretionary action of issuing a stop work order.

We do not read the court of appeals' opinion to be in conflict with Antley.
Distinguishing Antley from this case, the court of appeals explained that "unlike
Antley, where the statutes 'permitted but did not require' the tax assessor to take
action, the statutory and building code provisions at issue here required Donevant's
actions of enforcing compliance with the building code." 414 S.C. at 413, 778
S.E.2d at 329 (quoting Antley, 340 S.C. at 549, 532 S.E.2d at 298) (emphasis in
original). Thus, according to the court of appeals, Antley does not control this case
because Donevant was not fired for taking the discretionary action of issuing the
stop work order. Rather, she was fired for carrying out the building official's
mandatory legal duty to "enforce compliance" with the building code. We agree
with the court of appeals. While some statements in the court of appeals' opinion
may suggest Donevant was fired for taking the discretionary action of issuing the
stop work order,4 the basis of the court's decision—with which we agree—is that the

4
The court of appeals stated "to carry out her legal duty to 'enforce compliance' with
the building code, Donevant issued a stop-work order as she was required to do by
law," 414 S.C. at 413, 778 S.E.2d at 329, and, "By suspending Donevant and
ultimately terminating her for issuing the stop-work order at the Pier Restaurant,
Duckett effectively discharged Donevant for refusing to violate the law," 414 S.C.
at 413, 778 S.E.2d at 330. We do not read these statements to say Donevant was
fired because she chose to issue a stop work order as the means of enforcing the
building code, but to merely explain the particular action she took in fulfilling her
mandatory duty. As the court of appeals also stated, "Donevant was enforcing the
building code and therefore enforcing a clear mandate of public policy when she
issued the stop-work order," 414 S.C. at 415, 778 S.E.2d at 331, and, "the law
required Donevant to take action to enforce compliance with the building code when
she saw unpermitted construction," 414 S.C. at 411, 778 S.E.2d at 328.
public policy exception applies to her claim because she was fired for enforcing the
building code. Under the circumstances of this case, firing Donevant for carrying
out her mandatory responsibility to enforce the building code violates public policy.

The court of appeals' decision is AFFIRMED.

BEATTY, C.J., KITTREDGE, JAMES, JJ., and Acting Justice Donald Bruce
Hocker, concur.