Breach of Contract Cases

Henry C. Suominen, Jr. vs. Goodman Industrial Equities Management Group, LLC, & others. No. 09-P-1896. Suffolk. October 14, 2010. February 11, 2011. Present: Lenk, Smith, & Milkey, JJ. Labor, Wages, Failure to pay wages. Contract, Employment, Promissory estoppel. Practice, Civil, Notice of appeal, Instructions to jury, Directed verdict, Judgment notwithstanding verdict, Special verdict. Joint and Several Obligation. In a civil action, a Superior Court judge did not abuse her discretion in denying a motion to dismiss an appeal for failure timely to pay a docketing fee, on the ground of excusable neglect by counsel. [730-731] At the trial of a civil action alleging, inter alia, promissory estoppel, the judge erred in declining to instruct the jury on the element of detriment; therefore, the defendants were entitled to a new trial. [731-733] At the trial of a civil action alleging, inter alia, promissory estoppel, the defendants were not entitled to judgment in their favor as a matter of law, and the judge did not err in denying the defendants’ motion for judgment notwithstanding the verdict, where the plaintiff presented sufficient evidence of detriment to send the case to the jury. [733-734] At the trial of a civil action alleging, inter alia, promissory estoppel, in which neither the jury instructions on that claim nor the special questions on the verdict form drew a distinction between the liability of the defendants (the employer real estate development firm and its principal) and at which the jury found for the plaintiff employee, the judge did not clearly err in his implicit finding, under Mass.R.Civ.P. 49(a), that the employer’s principal was acting in a personal capacity when he made his promises to the employee. [734-736] At the trial of a civil action, the judge correctly dismissed the plaintiff employee’s claim that the failure of the defendants (the employer real estate development firm and its principal) to pay him amounts he claimed to be owed as a share of the “promote” (i.e., a type of profit enjoyed by a real estate developer) at the time he was fired constituted a violation of the Wage Act, G. L. c. 149, § 148, where such promote payments were not commissions within the meaning of the Wage Act, regardless of whether they were due and payable at the time the plaintiff was fired. [737-738] Civil action commenced in the Superior Court Department on May 3, 2005. The case was tried before Ralph D. Gants, J., and a motion to dismiss an appeal was heard by Margaret R. Hinkle, J. Ronald M. Jacobs for the plaintiff. Tyler E. Chapman for Goodman Industrial Equities Management Group, LLC, & another. Steven E. Goodman was a codefendant. The following defendants were joined solely on reach and apply claims: AG/GFI Winston-Salem, LLC; GFI Commerce, LLC; GFI Merrimack, LLC; GFI Littleton, LLC; AG/GFI Hampstead, Inc.; AG/GFI Duncan, LLC; AG/GFI Bradford, LLC; GFI Westminster Square, LLC; GFI Ayer, LLC; GFI Milford, LLC; GFI Tyngsboro, LLC; GFI Telluride, LLC; GFI Bedford, LLC; CB/GFI Salem, LLC; CB/GFI Littleton, LLC; GFI Auburn, LLC; and AG/GFI Worcester, LLC. Milkey, J. The plaintiff, Henry C. Suominen, Jr., was employed as the construction manager of defendant Goodman Industrial Equities Management Group, LLC (GIE), a small real estate development firm. In that position, he enjoyed an annual salary of $225,000. After he was fired in 2004, Suominen filed an action against GIE and its principal, defendant Steven E. Goodman, alleging that Goodman had broken a promise to pay him certain compensation in addition to his salary. Following a seven-day trial in Superior Court, the jury ruled in Suominen’s favor on some of his claims, including one based on promissory estoppel. The trial judge entered judgment awarding him a total of $1,729,243.01 in damages, the overwhelming bulk of which rested on the promissory estoppel claim. On appeal, the defendants argue that the trial judge should not have allowed that claim to go to the jury, and that, in any event, the judge’s instructions on the claim were erroneous. Defendant Goodman also argues that there was insufficient basis for his being held personally liable. By way of cross appeal, Suominen claims that the trial judge erred in granting a directed verdict as to one of his other claims. He also argues that the defendants’ appeal is not properly before us because of their failure — without sufficient excuse — to make timely payment of a docketing fee. We affirm in part and reverse in part. Specifically, we conclude that the judge correctly ruled on the directed verdict (and other) motions, but that a material omission in the jury instructions entitles the defendants to a new trial. Background. 1. The defendants’ business. Goodman is a real estate developer who focused on the redevelopment of existing, run-down industrial properties. Each targeted property was acquired by a deal-specific limited liability company that Goodman created solely for that purpose (referred to at trial as a “deal company” or “deal entity”). Although the deal entity purchased the property, the actual redevelopment work there was done by GIE, the limited liability company that Goodman had set up as his over-all real estate management company. That work included rehabilitating the buildings for a new use, securing permits for that use, and the like. Some of the projects were sold after they were redeveloped, while others were retained. 2. Suominen’s hiring. Suominen began working for Goodman as a consultant in February of 1999, and he became GIE’s “construction manager” in June of that year. In that position, Suominen oversaw the day-to-day redevelopment work of many, but not all, of Goodman’s projects. His initial starting salary at GIE was $100,000, which was $35,000 less than his most recent prior job. He was willing to accept the reduced salary because of the potential that he could share in the “upside” of the projects on which he worked. Before Suominen had been hired, Goodman had committed to working out some kind of profit-sharing plan with him, although the details of such a scheme had not been resolved before Suominen started work. 3. The parties’ negotiations. By the end of 1999, the parties were well along toward working out such profit-sharing details, with the discussions having evolved in the context of the specific development projects on which Suominen was working at the time. In fact, by January of 2000, the discussions had progressed to the point that Goodman directed his lawyer to draft “equity sharing agreements” for these projects. Under those drafts, Suominen and David Heller, GIE’s chief financial officer, were to receive a percentage of the “promote” that each of the projects realized (if any). As the testimony at trial revealed, “promote” (also known as a “promoted interest”) is a term of art used in the real estate development field. It refers to a species of profit that developers can enjoy — in addition to the return on any equity they invested — if their projects become extremely successful. What portion of profit, if any, is to go to the developer as a “promote” is determined by agreement between the developer and investors at the start of a development deal. Not every real estate development deal is structured so as to include a “promote”; in some cases, a developer’s potential profit comes only from return on equity or the payment of a separate “development fee.” In the January, 2000, drafts, the precise percentage of the promote that was to go to Suominen was left blank. Shortly thereafter, however, Goodman informed Suominen that he was willing to part with thirty-five percent of his promote, and that he did not care how Suominen and Heller split it. Suominen and Heller quickly agreed between themselves that Suominen should take two-thirds of their joint share, or a resulting 23.33% of the over-all promote. Suominen reported this back to Goodman, and they had what Suominen variously characterized as a “nod of the head,” a “handshake round,” and a “semi-congratulatory type of thing.” At this point (early 2000), Suominen believed he had reached a full agreement under which he would receive a 23.33% share of the promote that otherwise would have gone to Goodman. He viewed his promised share of the promote, and not his salary, as his “primary expectation of compensation,” and he testified that he “would have left” his employment had he learned that his understanding of what he was to receive was incorrect. At the end of 2000, Suominen had the 23.33% figure inserted into the draft documents for two then-current projects. He also modified the documents in a few other respects. For example, he added his own signature line, and he inserted a provision clarifying that the agreement would survive his termination or death. Suominen in fact signed his modified drafts, and he presented them to Goodman for his signature in December of 2000. Goodman declined to sign the documents, claiming that his doing so would require him to amend certain financial disclosure documents he had just filed. He confirmed with Suom-inen, however, that their deal was still on. In March of 2001, Goodman’s attorney forwarded to the parties a draft generic version of an equity sharing agreement that could be tailored for any specific deal (or at least those that were structured to include a promote). Moreover, the following month, Goodman acknowledged at a deposition in a separate action that Suominen and Heller had “an expectation when [Goodman did] a deal they’ll get a part of it,” and that they had an “interest” in thirty-five percent of the promote on particular projects. Goodman never signed any equity sharing agreement with Suominen. In fact, his attorney testified that, at an unspecified time, Goodman informed him that he was no longer interested in pursuing such an agreement. According to the attorney, Goodman decided that such an arrangement was too constraining. However, Goodman never informed Suominen of his change in plan. 4. The Milford distributions. In April of 2001, Goodman refinanced property in Milford that one of his deal companies owned. This resulted in a large inflow of cash (presumably because the redevelopment work that had been done at the property added significant value). He had twenty-five percent of those proceeds invested in GIE, and in May of 2000, he had the remainder distributed to himself, Suominen, and Heller. Suominen was given 23.33% of the money distributed. On several later occasions, Goodman had operating profits from the Milford project distributed to himself, Suominen, and Heller. On those occasions, Suominen again received 23.33% of the distributions. 5. The events of 2002 and 2003. As a result of the Milford distributions, Suominen in 2001 earned approximately $60,000 above his baseline salary of $100,000. In 2002, however, there were no projects that had reached the point of generating distributions. Feeling strapped for cash, Suominen asked Goodman to raise his salary to $225,000, and Goodman agreed. In 2003, various projects were at the point of completion, prompting Heller, who as previously noted served as GIE’s chief financial officer, to ask Suominen if his profit-sharing arrangement with Goodman was still in place. Suominen understood that it was, but no compensation above his increased salary was forthcoming even as deals began closing. 6. Suominen’s firing. On March 18, 2004, Suominen and Goodman finally met to discuss Suominen’s compensation. They testified to markedly different versions of the meeting. In Goodman’s version, the meeting was primarily focused on concerns he claims to have had at the time regarding Suominen’s performance. In Suominen’s version, the meeting was primarily focused on the compensation that Goodman owed, with Goodman testing out various arguments about how the money might not be due. Shortly thereafter, Goodman had Heller draft a history of the equity sharing issues, which he had Heller backdate to make it appear as if the document had been drafted on January 1, 2003. On July 12, 2004, Goodman fired Suominen at a face-to-face meeting. At the meeting, they discussed a transition period in which Suominen could continue to work on some of the existing projects, although not as an employee. Suominen did in fact continue to work under the belief that he would be compensated for such work as a consultant at the rate of his most recent annual salary. By electronic mail message (e-mail) sent on August 5, 2004, Goodman directed Suominen not to do any additional work, and he refused to pay Suominen for the work that Suominen had done after the date he had been fired. 7. Suominen’s claims and the jury’s special verdict. Suom-inen brought an action in Superior Court seeking damages both for the period that he was a salaried employee and for the brief period he worked as a consultant after being fired. Only the claims covering the former period remain live, and among those, the only ones still in play relate to Goodman’s promise to pay Suominen a 23.33% share of the promote. At trial, Suominen’s principal theory of recovery was that he had entered into a binding contract for the promised compensation with both GIE and Goodman personally. The defendants argued to the jury that no such promise had ever been made, and that Goodman at most had led Suominen to believe that a discretionary bonus might come his way. The defendants also argued that, in any event, there was never a “meeting of the minds,” because any agreement would have to be on a deal-specific basis (given that the amount of the promote, or even whether a deal included any promote, varied by the deal). They further argued that Goodman would never have agreed to give Suominen a set percentage of profits on those deals that made money, without Suominen having to share in the losses of those deals that lost money. For whatever reason, the jury rejected Suominen’s contract claims. However, the jury ruled in Suominen’s favor on his fail-back theory of promissory estoppel. Specifically, the jury answered “yes” to all of the following special verdict questions: “Did Goodman promise or represent to Suominen that he would receive 23.33 percent of the ‘promote’ on any development projects? “Did he make this promise or representation with the intent of inducing Suominen to continue his employment at GIE or with the reasonable expectation that it would induce him to continue such employment? “Did Suominen rely on this promise or representation by continuing his employment at GIE? “Did Suominen act reasonably in relying on this promise or representation?” Over the defendants’ protest, the jury were not separately asked to determine whether Suominen suffered detriment from relying on Goodman’s promise. The jury found that Suominen was unlawfully denied a share of the promote on eight projects, for total promissory estoppel damages of $1,216,623 (with prejudgment interest, $1,711,005. 87). The trial judge eventually concluded that the defendants each should face joint and several liability for those damages, and he entered a judgment to that effect on September 25, 2008. How the judge came to this conclusion, and other facts relevant to the parties’ particular claims, are developed further below as the issues arise. Discussion. 1. Jurisdiction over the defendants’ appeal. Before reaching the merits of the defendants’ arguments, we must decide whether those arguments are properly before us. The defendants filed a notice of appeal on October 9, 2008, and Suominen filed a cross appeal two weeks later. Once the parties received notice of the assembly of the record, Suominen, but not the defendants, timely paid a docketing fee. See Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001) (generally requiring payment of docketing fee within ten days of receipt of notice of assembly of record). Some five days after the payment period had run, Suominen filed a motion to dismiss the defendants’ appeal in Superior Court pursuant to Mass.RA.P. 10(c), as amended, 417 Mass. 1602 (1994). In the defendants’ opposition to the motion and at a hearing on the motion, the lawyer who was serving as the lead on the case at the time sought to explain his neglect. Specifically, he documented how his failure to pay the docketing fee was caused by a significant personal crisis that temporarily had rendered him unable to function and, in his words, “a catatonic zombie.” Based on this showing, the motion judge (who was not the trial judge) found “excusable neglect,” and she denied the motion to dismiss. Suominen challenges that ruling in his cross-appeal. We see no good reason to repeat the details of the personal crisis that counsel faced. Instead, we find it sufficient to state that the appellate rales are not so unforgiving as to render the motion judge’s conclusion that the neglect here was “excusable” an abuse of her discretion. We proceed then to a discussion of the defendants’ claims. 2. The merits of the defendants’ appeal, a. Detriment. The defendants focus on Suominen’s promissory estoppel claim, the foundation of almost all of the damages assessed against them. Reduced to basic terms, promissory estoppel “consists simply of a promise that becomes enforceable because of the promisee’s reasonable and detrimental reliance.” Rooney v. Paul D. Osborne Desk Co., 38 Mass. App. Ct. 82, 83 (1995). The defendants focus principally on whether any reliance was “detrimental,” something that the Supreme Judicial Court recently reaffirmed was a separate element of a promissory estoppel claim. Anza-lone v. Administrative Office of the Trial Ct., 457 Mass. 647, 661 (2010), citing Sullivan v. Chief Justice for Admn. & Mgmt. of the Trial Ct., 448 Mass. 15, 27-28 (2006). The defendants claim two different sorts of errors related to detriment. First, they argue that the judge erred by not separately charging the jury on detriment and by not having them determine whether this element was present. Second, they argue that the evidence of detriment was insufficient as matter of law, and that the judge therefore erred in not granting their motion for directed verdict. We address these claims in that order. (i) Jury instructions. The jury were specifically asked whether, and did find that, Suominen continued his employment at GIF in reliance on Goodman’s promises. The judge had initially intended to charge the jury with answering an additional special question: whether Suominen had “suffered some detriment, that is, some financial injury as a result of relying on this promise or misrepresentation. ” However, at the charge conference, the judge decided to eliminate that separate question, citing the potential for jury confusion that including the question might cause. In the judge’s view, the question was unnecessary, because if the jury determined that Suominen continued his employment in reliance on the promise, this by itself established sufficient detriment as matter of law. After the charge was given, the defendants renewed their objection to the absence of an instruction or special question on detriment. We disagree with the trial judge’s conclusion that Suominen’s continuing his employment was sufficient by itself to establish his detriment as matter of law. In our view, the judge erred by conflating continued employment — the action Suominen took in reliance on the promises — and detriment. That this was error is best illustrated by reference to the facts. Although Suominen began his employment at GIE in 1999 at a salary somewhat below the one at his most recent earlier employment, he earned compensation above that level in 2001 as a result of the Milford distributions. Then, in late 2002, Suominen requested and received a 125% raise, putting his base salary at a level at almost twice what he was making before joining GIE. He also never alleged that he forwent any other job opportunities or business ventures by staying with

JERRIAN O. LOCKETT, Plaintiff v. SISTER-2-SISTER SOLUTIONS, INC. and ROSA S. LOCKETT (aka ROSA SUTTON), Defendants No. COA09-1387 (Filed 4 January 2011) 1. Corporations— piercing corporate veil — allegation not sufficient The trial court did not err by granting summary judgment for defendant Lockett on a breach of contract claim arising from plaintiffs employment termination. Plaintiff alleged that the corporate veil should be pierced to reach Lockett but did not provide a forecast of evidence to oppose defendant’s motion. 2. Civil Procedure— summary judgment — deposition not considered — no prejudice The trial court should have reviewed a deposition plaintiff attempted to offer in opposition to a motion for summary judgment, but there was no prejudice because plaintiff offered the deposition on a different issue and did not offer evidence that may have created a genuine issue of fact on the issue at hand. 3. Employer and Employee— Wage and Hour Claim — summary judgment for defendant The trial court did not err by granting summary judgment for defendant Lockett on a Wage and Hour claim arising from plaintiff’s employment termination where plaintiff did not offer evidence to support the existence of a genuine issue of material fact. 4. Trials— directed verdict — based upon ruling of prior judge The trial court erred by directing a verdict for defendant Sister-2-Sister and dismissing plaintiff’s breach of contract claim in an action arising from an employment dispute. The trial court was not free to conclude that the contract was legally unenforceable because of prior rulings by two courts. 5. Trials— enforceability of contract — ruling by first judge determinative A trial court did not err by basing its determination of whether a contract was enforceable on a prior determination by another judge where defendant argued that the second judge had the benefit of hearing evidence and could properly reconsider the conclusion of the first. The first and second judge based their conclusions on the law and the face of the contract, which are not affected by evidence of a person’s intent or understanding. Furthermore, one superior court judge may not correct another’s errors of law. 6. Contracts— enforceability — at-will doctrine — erroneous ruling prejudicial There was prejudice from the court’s erroneous ruling that the parties’ employment contract was unenforceable where granting a new trial placed plaintiff in an improved position. 7. Attorney Fees— amount — findings not sufficient The trial court abused its discretion in the amount of attorney fees it awarded to plaintiff in an employment termination case where the court did not enumerate any findings as to counsel’s skill or hourly rate or as to the nature and scope of the legal services rendered. Appeal by plaintiff from orders entered 6 November 2008 by Judge Howard Manning and 13 November 2008, 16 March 2009, and 20 April 2009 by Judge Allen Baddour in Chatham County Superior Court. Heard in the Court of Appeals 25 March 2010. Lewis Phillips Hinkle, PLLC, by Brian C. Johnston and Elliot I. Brady, for plaintiff-appellant. Wilson & Reives, PLLC, by Antwoine L. Edwards, for defendants-appellees. JACKSON, Judge. Jerrian O. Lockett (“plaintiff”) appeals the trial court’s 6 November 2008 order, which granted summary judgment in favor of defendant Rosa S. Lockett (“Lockett”) as to his breach of contract claim; 13 November 2008 order, which granted summary judgment in favor of Lockett as to the claim pursuant to the North Carolina Wage and Hour Act; 16 March 2009 orders, which directed verdict in favor of defendant Sister-2-Sister Solutions, Inc. (“Sister-2-Sister”), dismissed plaintiff’s breach of contract claim, and awarded attorneys’ fees to plaintiff; and 20 April 2009 order, which denied plaintiff’s motion to amend judgment. For the reasons stated herein, we affirm in part, reverse in part, and remand in part. Plaintiff and Lockett were husband and wife when this action commenced. Lockett and her sister formed Sister-2-Sister in 2000 or 2001, and Lockett directed the day-to-day business of Sister-2-Sister throughout its lifetime. Lockett’s sister left Sister-2-Sister in 2002 or 2003. Plaintiff had been employed by Sister-2-Sister at various times prior to the summer of 2006. During the summer of 2006, plaintiff and Lockett negotiated the terms of an employment contract (“the contract”) so that plaintiff would return to North Carolina from his job in Texas. The contract provided, in part, that it could be terminated only for cause: “[Plaintiff] will not be dismissed from Sister 2 Sister One Transportation unless contract has been broken, or not [fulfilling his duty as indicated above.” Plaintiff alleges that on or about 31 July 2007, Sister-2-Sister terminated plaintiff’s employment and that, at that point, plaintiff had not been paid for work he had performed during July 2007. On 11 January 2008, plaintiff filed his complaint against Sister-2Sister and Lockett (“defendants”), alleging breach of contract and violation of the North Carolina Wage and Hour Act (“Wage and Hour Act”). As part of his complaint, plaintiff alleged that Sister-2-Sister “has no independent identity apart from . . . Lockett,” and the trial court, therefore, should “pierce the corporate veil and treat [Sister-2Sister] as the alter ego of. .. Lockett.” On or about 17 October 2008, defendants moved for partial summary judgment as to plaintiff’s breach of contract claim. At the 30 October 2008 hearing on the motion, plaintiff attempted to introduce deposition testimony from Lockett, but the trial court would not receive it. On 6 November 2008, the trial court granted the motion as to Lockett and denied it as to Sister-2-Sister, concluding, inter alia, that plaintiff and Sister-2-Sister “entered into an enforceable contract for employment on or about August 9, 2006 [,] which contract provided that plaintiff could only be terminated for cause.” Lockett then moved for summary judgment as to plaintiff’s claim based upon the Wage and Hour Act, and on 13 November 2008, the trial court granted her motion and dismissed her from the action. At the close of plaintiff’s evidence during the 26 February 2009 trial, Sister-2-Sister moved for a directed verdict. On 16 March 2009, the trial court entered a directed verdict in favor of Sister-2-Sister and dismissed plaintiff’s breach of contract claim, concluding, inter alia, Pursuant to the holding of the Court of Appeals in Freeman v. Hardee’s Food Systems, Inc., 3 N.C. App. 435, 165 S.E.2d 39 (1969), among other cases, the August 10, 2006 employment contract executed by plaintiff and [Sister-2-Sister] is not an enforceable employment contract, and plaintiff’s employment with [Sister-2-Sister] was terminable at the will of either party. On the same date, the trial court entered judgment in favor of plaintiff as to his claim pursuant to the Wage and Hour Act. The trial court awarded plaintiff $840.00 for unpaid wages, $840.00 for liquidated damages, $7,500.00 for reasonable attorneys’ fees, and $344.00 for costs for filing and service fees. On 26 March 2009, plaintiff moved for amendment of judgment, which was denied on 20 April 2009. Plaintiff now appeals the trial court’s 6 November 2008, 13 November 2008, 16 March 2009, and 20 April 2009 orders. Plaintiff first argues that the trial court erred by granting summary judgment in favor of Lockett as to the breach of contract claim, because there exists a genuine issue of material fact as to her individual liability for breach of contract. We disagree. We review a trial court’s grant of summary judgment de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006) (citing Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004)). “Summary judgment is appropriate when ‘there is no genuine issue as to any material fact’ and ‘any party is entitled to a judgment as a matter of law.’ ” Id. (quoting N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005)). We previously have explained, “The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact. Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.” Wilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661 (2007) (quoting Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003), aff’d, 358 N.C. 131, 591 S.E.2d 521 (2004) (per curiam)). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. N.C. Gen. Stat. § 1A-1, Rule 56(e) (2007) (emphasis added). Here, defendants filed portions of plaintiffs deposition, an affidavit from the chairman of the Board of Directors for Sister-2-Sister, Sister-2-Sister’s bylaws, and a memorandum of law in support of their motion for partial summary judgment. However, no evidence from plaintiff in opposition to the motion appears in the record. During the hearing on the motion, the trial court asked plaintiffs counsel, “What about the argument... that defendant makes that [Lockett] should not be a party to this case?” Plaintiffs counsel responded, Well, Your Honor, I — I think that question — if you — if you look at our complaint here, paragraphs 4, 5, 6, and 7,1 have alleged that the [trial] [c]ourt should pierce the corporate veil and hold defendant Rosa Lockett individually liable for the acts of the corporation. And certainly I think that the inquiry as to whether or not the [trial] [c]ourt should pierce the corporate veil is a fact question. And there is — there is absolutely material facts in question on whether or not it’s appropriate to pierce the corporate veil here. And I haven’t seen any case law in defendant’s brief to the contrary that — that there is no basis to — -to pierce the corporate veil in this case. So I — I think, Your Honor, that’s a fact question and absolutely inappropriate for a summary judgment. Plaintiff relies solely upon the allegations of alter ego within his complaint, which contravenes the standards set forth in North Carolina General Statutes, section 1A-1, Rule 56(e). Defendants provided evidence that Lockett was acting within the authority vested in her by Sister-2-Sister when she terminated plaintiff’s employment, and in response, plaintiff did not “ ‘produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.’ ” Wilkins, 185 N.C. App. at 672, 649 S.E.2d at 661 (quoting Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003), aff'd, 358 N.C. 131, 591 S.E.2d 521 (2004) (per curiam)). As part of his first argument, plaintiff also contends that Lockett’s deposition testimony — which plaintiff’s counsel proffered to the trial court during the summary judgment hearing — should have been considered prior to the trial court’s ruling upon the motion. Although we agree with plaintiff’s argument, he was not prejudiced by the trial court’s decision not to review Lockett’s deposition testimony. Initially we note that the trial court was required to review all of the evidence properly presented to it prior to ruling upon a motion for summary judgment. See Schneider v. Brunk, 72 N.C. App. 560, 564, 324 S.E.2d 922, 925 (1985) (“The trial court must consider all papers before it, including the pleadings and any depositions.”) (citing Estrada v. Jaques, 70 N.C. App. 627, 643, 321 S.E.2d 240, 251 (1984)). Even though a trial court may exclude from its consideration an untimely affidavit, N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007) (“If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may .. . proceed with the matter without considering the untimely served affidavit[.]”), this rule does not apply to the introduction of other evidence such as depositions, Pierson v. Cumberland County Civic Ctr. Comm’n, 141 N.C. App. 628, 635, 540 S.E.2d 810, 815 (2000) (“Rule 56(c) does not specify that these other forms of evidence [pleadings, depositions, answers to interrogatories, and admissions on file] be presented at any particular time, much less prior to the hearing. Therefore, we have no basis to conclude that plaintiffs [by first offering certain evidence when the summary judgment hearing was underway] violated the mandates of Rule 56(c)[.]”). Therefore, the trial court should have reviewed Lockett’s deposition — which plaintiff attempted to introduce during the course of the hearing — prior to ruling upon defendants’ motion for summary judgment. Nonetheless, in the case sub judice, the trial court’s error did not prejudice plaintiff, because plaintiff did not attempt to introduce the evidence — specifically, the depositions of the members of Sister-2Sister’s Board of Directors — that he now contends would create a genuine issue of material fact as to Lockett’s individual liability. In his brief, plaintiff argues that the depositions of the members of Sister-2Sister’s Board of Directors show[] that the Board had no first-hand knowledge of the allegations made by Rosa Lockett regarding [p]laintiff’s performance of his duties and voted to terminate [p]laintiff’s employment with Sister-2-Sister based solely upon her recommendations. The deposition testimony also shows that the Board conducted no independent investigation of the allegations of Rosa Lockett and made no effort whatsoever to verify the substance thereof. (Internal citations omitted). Although plaintiff contends that the “deposition testimony offered to the trial court at the 30 October 2008 hearing in opposition to [defendants’ [m]otion . . . was that of Rosa Lockett and the members of the Board of Directors of Sister-2Sister[,]” the trial transcript discloses that he offered only Lockett’s deposition. Plaintiff offered Lockett’s deposition to the trial court twice during the summary judgment hearing. The first time, plaintiff’s counsel stated, As I understand defendant’s argument is is that the contract itself, taking apart whether or not my client did duties number 1 through 7, whether or not this is a valid contract because it doesn’t have, as defendant’s counsel argues, a definite period. I do have a copy of defendant Rosa Lockett’s deposition testimony that I think is — may I approach? The trial court then declined to accept the proffered deposition. Later in the hearing, plaintiff’s counsel again offered the deposition, stating, And if the [e]ourt is at all inclined to look at the client or the parties’ intentions as to this agreement, I believe the [c]ourt has to take a look at the defendant, Rosa Lockett’s, deposition testimony because she clearly states that not only was there — clearly the only reason [plaintiff] could have been terminated was for his failure to perform the exact seven duties that are set forth in the contract. And if Your Honor would like to review it, I can hand up a copy of the relevant portions of the deposition testimony. The trial court proceeded directly to making its ruling without addressing plaintiff’s offer of evidence. Not only did plaintiff fail to argue that Lockett’s deposition supported a genuine issue of material fact as to her individual liability pursuant to the contract, focusing instead upon its support of the contract’s enforceability, but he also failed to offer depositions from any of the board members which he now contends would support the denial of defendants’ motion for partial summary judgment. Because plaintiff did not attempt to introduce evidence that may have created a genuine issue of material fact as to Lockett’s individual liability and instead, relied upon “the mere allegations ... of his pleading,” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2007), there existed no genuine issue of material fact as to Lockett’s individual liability based upon the evidence before the trial court. Accordingly, the trial court did not err in granting Lockett’s motion for partial summary judgment as to plaintiff’s breach of contract claim. Second, plaintiff contends that the trial court erred by granting summary judgment in favor of Lockett as to the claim pursuant to the Wage and Hour Act, because there exists a genuine issue of material fact as to her individual liability pursuant to the Wage and Hour Act. Based upon our holding, supra, that plaintiff did not offer evidence to support the existence of a genuine issue of material fact as to Lockett’s individual liability, we also hold that the trial court did not err in granting summary judgment in favor of Lockett as to plaintiff’s claim pursuant to the Wage and Hour Act. Plaintiff’s third contention is that the trial court erred by directing verdict in favor of Sister-2-Sister and dismissing plaintiff’s claim for breach of contract. We agree.- We review a trial court’s ruling upon a motion for directed verdict de novo. Austin v. Bald II, L.L.C., 189 N.C. App. 338, 342, 658 S.E.2d 1, 4 (citing Denson v. Richmond Cty., 159 N.C. App. 408, 411, 583 S.E.2d 318, 320 (2003)), disc. rev. denied, 362 N.C. 469, 665 S.E.2d 737 (2008). This Court previously has held: It is well-established “that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another’s errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action. Although an exception has been established for orders that do not resolve an issue but direct some further proceeding prior to a final ruling, “when the [trial] judge rules as a matter of law, not acting in his discretion, the ruling finally determines the rights of the parties unless reversed upon appellate review.” Cail v. Cerwin, 185 N.C. App. 176, 181, 648 S.E. 2d 510, 514 (2007) (internal citations omitted) (alteration in original). We also have held that a trial judge has the power to modify or change an interlocutory order “where (1) the order was discretionary, and (2) there has been a change of circumstances.” Stone v. Martin, 69 N.C. App. 650, 652, 318 S.E. 2d 108, 110 (1984); see also State v. Duvall, 304 N.C. 557, 562-63, 284 S.E. 2d 495, 499 (1981) (judge can overrule a denial of a motion for special jury venire, a discretionary motion, previously entered by another judge if “new evidence” is presented). Iverson v. TM One, Inc., 92 N.C. App. 161, 164, 374 S.E.2d 160, 162-63 (1988). “[T]he denial of a motion for summary judgment is an interlocutory order[.]” Id. at 164, 374 S.E.2d at 163. In the case sub judice, the 6 November 2008 and 16 March 2009 orders both found as fact that the contract at issue, on its face, was for an undefined period of time. They both also found that the contract provided that plaintiffs employment could be terminated only for cause. Additional findings in the two orders related only to the identity of the parties and none mentioned or alluded to witness testimony. However, the two trial courts came to mutually exclusive conclusions of law based upon these findings. On 6 November 2008, the trial court concluded as a matter of law that plaintiff and Sister-2-Sister “entered into an enforceable contract for employment on or about August 9, 2006[,] which contract provided that plaintiff could only be terminated for cause.” Based upon our case law, another trial court was not free to conclude, as of 16 March