(dissenting):
I respectfully dissent. I do not agree that McAllister proved as a matter of law that Futch was not entitled to the *321compensation he sought in this action. I would also affirm the trial court’s award of treble damages and attorney fees under S.C.Code Ann. § 41-10-80(C) of the Wage Payment Act.
As a threshold matter, I believe the question of whether Futch was disloyal was a matter for the jury to decide. Futch’s testimony alone denying disloyalty would have been sufficient to warrant the trial court’s denial of McAllister’s motion for directed verdict. Collins & Sons Fine Jewelry, Inc. v. Carolina Safety Sys., Inc., 296 S.C. 219, 223, 371 S.E.2d 539, 541 (Ct.App.1988) (“Because we are not a jury, we do not weigh the evidence and we do not decide matters of credibility.”).
Moreover, while McAllister presented circumstantial evidence that Futch personally solicited McAllister’s customers, it produced no direct evidence that he did so. Although it is apparent that many of McAllister’s customers became aware of Futch’s future plans and committed to him during the time Futch was still working for McAllister, no evidence conclusively demonstrates that Futch was the source of their knowledge or that Futch requested they join him.1 I do not believe the evidence justified a directed verdict in McAllister’s favor, especially considering that McAllister bore the burden of proving Futch’s disloyalty.
*322Secondly, even assuming that McAllister proved Futch’s disloyalty as a matter of law, I believe the case of Ocean-Forest Co. v. Woodside, 184 S.C. 428, 192 S.E. 413 (1937), cited by the majority for the proposition that the general rule is that “an agent guilty of disloyalty to his principal forfeits all compensation,” actually supports Futch’s entitlement to the compensation he sought. In Ocean-Forest, the agent was hired for the specific and sole task of collecting a sum of money and his compensation was on a contingent fee basis. After collecting the money, the agent misappropriated it to his own use. Not surprisingly, the court denied the agent’s claim for commission.
The court in Ocean-Forest did state that the general rule is as indicated by the majority. In the next paragraph, however, the court clarified the rule:
As a general rule, if an agent is guilty of fraud or dishonesty in the transaction of his agency, or wilfully disregards an obligation owing his principal which, by reason of his agency, the law devolves upon him, ... he loses his right to compensation. As stated by the American Law Institute, an agent is entitled to no compensation for conduct which is disobedient or is a breach of his duty of loyalty; such conduct, if constituting a wilful and deliberate breach of his contract of service, disentitles him to compensation for even properly performed services for which no compensation is apportioned.
Id. at 442-43, 192 S.E. at 420 (emphasis added).
Here, unlike in Ocean-Forest, Futch’s alleged disloyalty clearly did not occur “in the transaction of his agency.” It is undisputed Futch fully and capably performed the duties he was to be paid to do. Because his alleged disloyalty concerned acts unconnected with the duties he was required to perform, that disloyalty should not affect his entitlement to compensation for the work he did perform.2
Similarly, it is clear that the compensation at issue in this case is “apportioned” in the contract, as Futch was paid a commission on a per vessel basis. McAllister does not allege Futch failed to perform any of the work for which he seeks *323compensation. Therefore, even if he wilfully and deliberately breached his duty of loyalty, under the rationale of Ocean-Forest, he remained entitled to the compensation at issue.
I would also hold the trial court was correct to award treble damages and attorney fees under the Wage Payment Act.
Section 41-10-80(0) (1996) of the Wage Payment Act states:
In case of any failure to pay wages due to an employee as required by Section 41-10-40 or 41-10-50 the employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable attorney’s fees as the court may allow. Any civil action for the recovery of wages must be commenced within three years after the wages become due.
However, an employer is not liable for penalties under the act when there is a good faith dispute between the employee and employer. Rice v. Multimedia, Inc., 318 S.C. 95, 456 S.E.2d 381 (1995). The trial court’s ruling on the good faith issue will not be reversed on appeal absent an abuse of the trial court’s discretion. See id.
McAllister contends its withholding of Futch’s commissions was based on a good faith dispute. As I have argued, however, because McAllister did not deny that Futch capably performed the duties he was required to perform and McAllister’s allegations of disloyalty were unconnected with those duties, no colorable legal theory supported McAllister’s refusal to pay Futch the compensation he had earned.
I would affirm.
. The letter from Georgetown Steel, cited by the majority, refers to a discussion with Futch, but does not state who initiated the discussion.
The majorily also concludes that "the evidence clearly shows that Futch’s partner [solicited McAllister’s customers] on his behalf and with his knowledge.” However, I do not believe McAllister's agency argument is properly before us. McAllister did not argue before the trial court that Assey's solicitations alone could constitute a breach of Futch’s duty of loyalty, nor did McAllister plead Assey's solicitations as a basis supporting its disloyalty allegations. See McGee v. Bruce Hosp. Sys., 321 S.C. 340, 468 S.E.2d 633 (1996) (an argument raised for the first time on appeal is not preserved for appellate review). Moreover, although it is true that Assey testified that all of his actions in furtherance of the new business were done "collaboratively,” his testimony is in conflict with Futch’s testimony that he never did anything that was disloyal to his job responsibilities with McAllister. See Archie Bell Constr. Co. v. Norman, 311 S.C. 84, 427 S.E.2d 689 (Ct.App.1993) (on a motion for directed verdict, any evidence contrary to or in conflict with the evidence favorable to the nonmoving party must not be considered and the nonmoving party must be given the benefit of every favorable inference that the facts reasonably suggest).
. Whether such disloyalty could give rise to an independent cause of action is another matter.