Wage Theft Cases

Michael A. Camara & another vs. Attorney General & another. Bristol. November 4, 2010. January 25, 2011. Present: Spina, Cowin, Cordy, Botsford, & Gants, JJ. Attorney General. Labor, Wages. Contract, Employment. Words “Special contract.” An employer’s written policy, under which an employee found by the employer to be at fault in an accident involving the employer’s vehicles could agree to a deduction from his or her earned wages in lieu of discipline, constituted a “special contract” in contravention of G. L. c. 149, § 148, a provision of the Massachusetts Wage Act (Wage Act) [759-761]; further, the wage deductions made by the employer under the policy did not amount to valid set-off deductions within the meaning of § 150 of the Wage Act, where, given that the employer served as the sole arbiter making a unilateral assessment of liability and damages, no clear and established debt existed [761-764], Civil action commenced in the Superior Court Department on April 15, 2008. The case was heard by David A. McLaughlin, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Karla E. Zarbo, Assistant Attorney General (Anita Maietta, Assistant Attorney General, with her) for the Attorney General. Thomas E. Pontes for the plaintiffs. Shannon Liss-Riordan, Ian O. Russell, & Audrey R. Richardson, for Massachusetts Employment Lawyers Association & others, amici curiae, submitted a brief. ABC Disposal Service, Inc. We shall refer to a single plaintiff. Division of administrative law appeals (DALA). Botsford, J. In this case we consider whether the written policy of the plaintiff ABC Disposal Service, Inc. (ABC), under which a worker found by ABC to be at fault in an accident involving company trucks may agree to a deduction from earned wages in lieu of discipline, violates a key provision of the Massachusetts Wage Act, G. L. c. 149, § 148 (§ 148). In ruling on the plaintiff’s appeal from a decision of the division of administrative law appeals (DALA), a judge in the Superior Court concluded that the written policy was consistent with § 148. Giving deference to the Attorney General’s reasonable interpretation of the Wage Act, G. L. c. 149, §§ 148 and 150, and in agreement with DALA, we conclude that the statute prohibits wage deductions associated with an employer’s unilateral determination of an employee’s fault and damages; and that the ABC policy, by withholding employees’ wages, contravenes the Wage Act. We therefore reverse the judgment of the Superior Court. Background. The facts are not contested. ABC is a Massachusetts corporation with a usual place of business in New Bedford. The plaintiff, Michael Camara, is its vice-president and qualifies as a statutory employer of ABC’s employees within the meaning of the Wage Act. ABC provides curbside collection and disposal of solid waste and recycling for participating households and small businesses. ABC employees driving company trucks have on occasion caused damage to the trucks and to personal property of third parties. In an effort to promote safety and to decrease careless driving, ABC in recent years established a policy whereby drivers determined to be at fault are given an option of either accepting disciplinary action or entering into an agreement to set off the damages against their wages. The determination of fault is made after the ABC safety officer reviews records related to the incident and reports his findings to the safety manager. If the safety manager, in consultation with ABC management, determines the incident was a “preventable accident,” see note 6, supra, she offers the driver a choice of making payment for the damages or accepting discipline. The findings of the safety manager as to whether an accident was preventable and the amount of damages are final and not subject to any appeal process. A driver determined by ABC to be at fault may enter into a written agreement with ABC for the payment of the cost of the damage by way of a setoff against wages due to the employee. Some drivers have chosen to accept disciplinary action instead of paying damages. Of those employees who have agreed to permit a setoff by ABC, the average setoff is fifteen dollars to thirty dollars per week. In no instance has a driver’s pay, net of setoffs for driver fault, fallen below minimum wage standards. Between 2003 and 2006, ABC’s costs attributable to damage done to vehicles and personal property has been reduced by seventy-eight per cent. ABC attributes this reduction to implementation of this policy. The fair labor standards division of the Attorney General’s office conducted an audit of the deductions made by ABC from June, 2004, through March, 2006. The audit revealed that ABC deducted $21,487.96 from the wages of twenty-seven employees during this time period in accordance with the policy at issue. In February, 2007, the Attorney General issued a civil citation against Camara and ABC for an intentional violation of G. L. c. 149, § 148; the citation required payment of $21,487.96 in restitution and assessed a $9,410 civil penalty. On the plaintiff’s timely appeal, an administrative magistrate within DALA issued a decision upholding the Attorney General’s citation. The plaintiff sought review of the DALA decision in the Superior Court pursuant to G. L. c. 30A, § 14. After a hearing, a Superior Court judge (motion judge) granted the plaintiff’s motion for judgment on the pleadings, reversing the DALA decision and invalidating the Attorney General’s citation. The Attorney General appealed to the Appeals Court, and we transferred her appeal to this court on our own motion. Discussion. In the Superior Court, ABC challenged DALA’s decision as being based on an error of law. See G. L. c. 30A, § 14 (7) (c). We grant de novo review of questions of law in administrative decisions. Electronic Data Sys. Corp. v. Attorney Gen., 454 Mass. 63, 65 (2009) (Electronic Data), citing Belhumeur v. Labor Relations Comm’n, 432 Mass. 458, 463 (2000), cert, denied, 532 U.S. 904 (2001). However, the Attorney General’s reasonable interpretation of the Wage Act is entitled to deference. See Electronic Data, supra at 69, quoting Smith v. Winter Place LLC, 447 Mass. 363, 367-368 (2006) (“Insofar as the Attorney General’s office is the department charged with enforcing the wage and hour laws, its interpretation of the protections provided thereunder is entitled to substantial deference, at least where it is not inconsistent with the plain language of the statutory provisions”). Section 148 of the Wage Act requires prompt and full payment of wages due. It provides in pertinent part: “Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week .... No person shall by a special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty ...” (emphasis added). G. L. c. 149, § 148. General Laws c. 149, § 150 (§ 150), in turn, authorizes the Attorney General to “make complaint” against any employer who violates § 148 and limits employers’ defenses as follows: “On the trial no defence for failure to pay as required, other than the attachment of such wages by trustee process or a valid assignment thereof or a valid set-off against the same, or the absence of the employee from his regular place of labor at the time of payment, or an actual tender to such employee at the time of payment of the wages so earned by him, shall be valid” (emphasis added). G. L. c. 149, § 150. The Attorney General interprets the “special contract” language in § 148 as generally prohibiting an employer from deducting, or withholding payment of, any earned wages. She argues that this prohibition cannot be overcome by an employee’s assent, both because § 148 makes the “special contract” prohibition unconditional and for reasons of public policy. In her view, regardless of an employee’s agreement, there can be no deduction of wages unless the employer can demonstrate, in relation to that employee, the existence of a valid attachment, assignment or setoff as described in § 150, a condition she claims that the ABC setoff policy does not meet. We find the Attorney General’s interpretation of § 148 to be a reasonable one. It is consistent with the statute’s purpose, which is “to protect employees and their right to wages.” Electronic Data, 454 Mass, at 70. See Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 720 (2002) (“purpose of the weekly wage law is clear: to prevent the unreasonable detention of wages”). Here, instead of receiving, for example, $400 a week in net pay, an ABC employee would take home only $370 to $385 pursuant to an agreement that applies only to that employee. Given the undisputed manner in which the ABC policy operates, we agree with the Attorney General that even if the arrangement is voluntary and assented to, it still represents a “special contract,” in the sense that it contains “peculiar provisions that are not ordinarily found in contracts relating to the same subject matter.” Black’s Law Dictionary 373 (9th ed. 2009). This interpretation of the term, as the Attorney General contends, clearly furthers the Wage Act’s overarching policy of protecting employees’ rights to wages. Cf. DiFiore v. American Airlines, Inc., 454 Mass. 486, 497 (2009) (interpreting term “service charge” in G. L. c. 149, § 152A [section of Wage Act protecting tips], to protect wage earners from risk that employers may seek to use special contracts to avoid compliance with statute). The plaintiff disputes this interpretation of § 148. It claims, and the motion judge agreed, that it has not violated the section’s special contract prohibition because all wages were properly credited to each affected employee, and the deductions conferred an “immediate benefit” in the form of reduced liability for him or her. Relying on Buhl v. Viera, 328 Mass. 201, 202 (1952), it contends that because an employee is liable to an employer for loss resulting from the employee’s own negligence, and because ABC’s employees have voluntarily agreed to make repayments for actual amounts expended by way of a deduction, those employees have not given up statutory rights to earned wages. This argument lacks merit. As noted above, and as the plaintiff acknowledges, the affected employees have in fact received lower pay under ABC’s policy, directly as a consequence of the policy’s provisions that apply only to certain employees and only in certain circumstances. This arrangement fits squarely within the concept of a special contract, regardless whether the affected employees receive any “immediate benefit” from it. The possible existence of such a benefit is relevant only to whether the reduction in pay represents “a valid set-off” deduction under § 150. We turn to that question. The Attorney General interprets the valid set-off defense in § 150 as strictly limited in scope and not applicable to ABC’s policy. Valid setoffs enumerated in § 150, she states, all implicitly involve some form of due process through the court system, or occur at an employee’s direction and in the employee’s interests. ABC’s deductions therefore do not qualify: ABC has not shown that any of the employees are legally liable for damages, or that, with respect to third parties, ABC was legally required to make payments on an employee’s behalf by a judgment that “could not have been avoided.” See Buhl v. Viera, 328 Mass, at 202-203, quoting Keljikian v. Star Brewing Co., 303 Mass. 53, 54 (1939). The plaintiff argues that its wage adjustments represent valid set-off deductions within the meaning of § 150. It views recouping costs from an employee who caused damage in an accident in which the employee was at fault as analogous to a setoff to correct an employee’s misappropriation of an employer’s funds, an arrangement the plaintiff contends has been found permissible because it merely returns to the employer funds that “as a matter of law the employee would owe.” See Mayhue’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1198 (5th Cir. 1972), cert, denied, 409 U.S. 1108 (1973). See Brennan v. Veterans Cleaning Serv., Inc., 482 F.2d 1362, 1369 (5th Cir. 1973). The plaintiff asserts that in this case, ABC performed thorough investigations and made findings of fault before entering into set-off agreements with employees; as such, the debts were “clear and established.” See Somers v. Converged Access, Inc., 454 Mass. 582, 593 (2009) (Somers). We disagree. We wrote in Somers that “we understand the term [“valid set-off” in § 150] ... to refer to circumstances where there exists a clear and established debt owed to the employer by the employee.” Id. Contrary to the plaintiff’s characterization, Somers rejected a theory of damages that was not expressly in the statute and ran counter to the legislative purpose of protecting employees’ interests. Id. at 592-593. An arrangement whereby ABC serves as the sole arbiter, making a unilateral assessment of liability as well as amount of damages with no role for an independent decision maker, much less a court, and, apparently, not even an opportunity for an employee to challenge the result within the company, does not amount to “a clear and established debt owed to the employer by the employee.” See id. at 593. The option afforded ABC’s employees to choose “voluntarily” to accept either wage deductions or discipline offers them only unpalatable choices. This procedure does not come close to providing an employee the protections granted a defendant in a formal negligence action. Contrast Buhl v. Viera, 328 Mass, at 202-204. Conclusion. The statutory language and the interplay of §§ 148 and 150 of the Wage Act reflect that employee deduction agreements of the type at issue in this case constitute special contracts that § 148 prohibits unless the deductions are valid setoffs for clear and established debts within the meaning of § 150. For the reasons we have discussed, we do not find the deductions prescribed by the plaintiff’s policy to be setoffs for clear and established debts. Accordingly, we agree with the Attorney General that the plaintiff violated § 148. We vacate the judgment and order of the Superior Court and remand for entry of judgment affirming DALA’s decision upholding the Attorney General’s citation. So ordered. General Laws c. 149, § 148 (§ 148) and § 150 (§ 150), are referred to collectively in this opinion as the Wage Act. We acknowledge the amicus brief of the Massachusetts Employment Lawyers Association, the Greater Boston Legal Services, the Brazilian Women’s Group, Centro Presente, the Chelsea Collaborative, The Chinese Progressive Association, the Massachusetts Coalition for Occupational Safety and Health, the Massachusetts Immigrant and Refugee Advocacy Coalition, the Massachusetts Jobs with Justice, Metrowest Worker Center, Project Voice, and the American Friends Service Committee, in support of the Attorney General. The parties filed with DALA a statement of agreed facts in connection with their cross motions for summary decision. The administrative magistrate adopted these facts as findings. On hiring, employees are informed in writing of the “accident reporting procedures,” which essentially memorialize the terms of the policy at issue. The procedures provide that the company can impose disciplinary action on an employee who causes a preventable accident, and that an employee who has caused a preventable accident may opt to pay for the damage, or to receive a suspension and ninety days’ probation; depending on the severity of the accident, termination of employment is also a possible outcome. The parties’ joint statement of agreed facts uses the terms “preventable accident” and “at fault” essentially interchangeably. The term setoff is not defined in G. L. c. 149, § 150. A setoff is generally defined as “something that is set off against another thing[;] ... the discharge of a debt by setting against it a distinct claim in favor of the debtor.” Webster’s Third New International Dictionary 2078 (1993). The record does not contain information concerning the average weekly wages of ABC employees who drive its trucks. The $400 figure used as an example in the text is a hypothetical one, used for illustrative purposes. The reduction by fifteen to thirty dollars per week, however, is based on the parties’ statement of agreed facts. The Attorney General represents in her brief that the audit of ABC performed by the fair labor standards division in her office followed the division’s receipt of a number of complaints by employees of ABC that the company had made improper deductions from their pay. The plaintiff does not address the point in its brief. Complaints of this nature would appear to call into question the nature of the assent of at least some employees. The term “special contract” is not defined in the Wage Act. We give statutory language an effect consistent with its plain meaning and in light of the legislative purpose unless to do so would achieve an illogical result. Sullivan v. Brookline, 435 Mass. 353, 360 (2001), and cases cited. See Boston Professional Hockey Ass’n v. Commissioner of Revenue, 443 Mass. 276, 287 (2005) (ordinary meaning may be understood from dictionary definition). The court in Mayhue ’s Super Liquor Stores, Inc. v. Hodgson, 464 F.2d 1196, 1198 (5th Cir. 1972), cert, denied, 409 U.S. 1108 (1973), stated, as the plaintiff argues, that if an agreement between an employer and an employee required the repayment of moneys “that the employee himself took or misappropriated,” the agreement would not run afoul of the Federal Fair Labor Standards Act (FLSA) —• the Federal minimum wage law — 29 U.S.C. §§ 201 et seq., because “[a]s a matter of law the employee would owe such amounts to the employer, and as a matter of fact, the repayment of moneys taken in excess of the money paid to the employee in wages would not reduce the amount of his wages.” However, the court actually held in that case that May-hue’s, the employer, was in violation of the FLSA and implementing regulations because the agreement required the employer’s cashiers to “voluntarily repay” missing funds that represented cash shortages “occurring] through misappropriation, theft, or otherwise” (emphasis added), id., and there was no evidence that the cash shortages in question “were the result of theft on the part of the cashiers or were in any way different from the usual losses which are to be expected where cashier employees handle a large number of transactions. . . . [T]his agreement tended to shift part of the employer’s business expense to the employees and was illegal to the extent that it reduced an employee’s wage below the statutory minimum.” Id. at 1198-1199. The plaintiff’s policy at issue, providing as it does for a setoff against ABC’s employees’ wages based on an entirely unilateral and untested judgment by the employer of fault and amount of damage, seems more similar to the proscribed voluntary repayment program used by Mayhue’s than to a plan for the recovery of admittedly misappropriated funds; like the latter program, the plaintiff’s policy shifts to the ABC employees some of what appear to be the ordinary costs of doing business as a trash-pickup enterprise. The plaintiff argues that in reversing DALA, the motion judge properly relied on Brennan v. Veterans Cleaning Serv., Inc., 482 F.2d 1362, 1369 (5th Cir. 1973) (Brennan), a case where the court found an employer subject to the minimum wage requirements of the FLSA could make set-off deductions from an employee’s wages to cover wage advances made by the employer to the employee as well as to recoup the employer’s reimbursements

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

TIMOTHY G. KORNEGAY, Plaintiff v. ASPEN ASSET GROUP, LLC, C. STEVE CLARDY, MICHAEL H. CLARDY, CARLTON S. CLARDY, JR., ROCKING B. FARMS, LLC, BASIC ELECTRIC COMPANY, INC., and EARTH PRODUCTS COMPANY, LLC, Defendants No. COA09-71 (Filed 1 June 2010) 1. Employer and Employee— compensation — existence of agreement — offer and acceptance In a contract action over disputed employment compensation, there was sufficient evidence of an offer and acceptance to warrant denial of defendant’s motion for JNOV where plaintiff testified that he was offered the job in a conversation with defendant Steve Clardy, with the written agreement to follow. 2. Employer and Employee— existence of contract — reference to profits — not unduly vague The trial court did not err in denying the defendant’s motion for a JNOV in an employment contract action that concerned the division of profits. Plaintiff’s evidence was sufficient to require that a jury decide whether a contract existed; no case was found suggesting that a reference to “profits” in an alleged contract is not sufficiently specific or certain to give rise to a contract. 3. Employer and Employee— contract — compensation provisions — divisible Two portions of a disputed employment contract concerning compensation were divisible where two promises by defendant Steve Clardy were in exchange for two distinct return promises by plaintiff. The promises were not interdependent in any way. 4. Employer and Employee— wage and hour claim — bonus— notice of forfeiture In a wage and hour claim, there was nothing to suggest that a bonus was not due plaintiff under N.C.G.S. § 95-25.7 where defendants contended that plaintiff was notified that defendants were forfeiting the bonuses before plaintiff earned them. The General Assembly did not intend to allow a bonus or commission to be cancelled or forfeited with the use of a notice as vague as the memo in question here. 5. Employer and Employee— compensation — bonuses for real estate investments — reasonable time for resale The trial court did not err by allowing plaintiff to proceed under the “reasonable time for resale” rule in an action involving bonuses for real estate investments. 6. Employer and Employee— wage and hour claim — failure to pay bonuses — statute of limitations The trial court properly rejected defendant’s statute of limitations defense to a wage and hour claim concerning the failure to pay bonuses. 7. Discovery— sanction — additional time offered — witness made available for deposition The trial court did not abuse its discretion in choosing as a discovery sanction an order that plaintiff make the witness available for a deposition and that defendants could have additional time. The trial court prepared a well-reasoned order of 14 pages and included a careful discussion of why the trial court had reached its decision. 8. Damages and Remedies— new trial denied — remittitur The trial court did not abuse its discretion by denying defendants’ motion for a new trial on both liability and damages in an employment compensation action. The judgment was based on competent evidence, including both the jury’s finding of a breach of contract and the amount of damages ultimately awarded as a result of the remittitur. 9. Damages and Remedies— remittitur accepted — appeal on separate damages claim not barred A plaintiff who accepted remittitur of the jury damages on a contract claim was not barred from bringing a cross-appeal on liquidated damages and attorney fees on a wage and hour claim, which is a separate claim for relief with separate remedies. 10.Employer and Employee— wage and hour claim — liquidated damages — decided by court rather than jury The trial court did not err in a wage and hour claim by deciding the issue of liquidated damages rather than submitting it to the jury. Plain statutory language requires the employer to show “to the satisfaction of the court” that its actions were in good faith and based on reasonable grounds. 11. Constitutional Law— right to trial by jury — liquidated damages — property rights not involved A liquidated damages issue in a wage and hour claim was properly decided by the trial court where defendant asserted that the failure to submit the claim to the jury violated his constitutional right to a jury trial in actions respecting property. There is no basis for distinguishing between liquidated damages under the Wage and Hour Act and punitive damages and Rule 11 sanctions, which do not involve property rights and a constitutional right to a jury trial. 12. Employer and Employee— wage and hour claim — waiver of defenses The issue of waiver of defenses to a wage and hour claim was not addressed where plaintiff impliedly consented to trial of the issue. 13. Damages and Remedies— liquidated damages — denied The trial court did not err by denying plaintiff liquidated damages on an employment compensation claim where plaintiffs arguments required the adoption of his construction of the evidence concerning the existence of a contract. The trial court had denied plaintiff’s motions for a directed verdict and a JNOV oh that issue. 14. Employer and Employee— compensation claim — findings — sufficiently specific Findings of fact were sufficiently specific where they were adequate to set out the factual basis for the trial court’s conclusions and to explain its rationale. 15. Attorney Fees— denial of motion — employment compensation action The trial court did not abuse its discretion by denying plaintiff’s motion for attorney fees in an action involving employment compensation. Appeal by defendants and cross-appeal by plaintiff from judgment entered 5 February 2008 and order and modified judgment entered 4 June 2008 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 June 2009. Bishop, Capitano & Moss, P.A., by J. Daniel Bishop and Joseph W. Moss, Jr., for plaintiff. James, McElroy & Diehl, P.A., by Gary S. Hemric, John S. Arrowood, John R. Buric, and Preston O. Odom, III, for defendants. GEER, Judge. This appeal arises out of a dispute over an alleged bonus compensation scheme between plaintiff Timothy G. Kornegay and his employer, defendant Aspen Asset Group, LLC (“Aspen”), which is owned by defendants C. Steve Clardy (“Steve Clardy”), Michael H. Clardy (“Mike Clardy”), and Carlton S. Clardy, Jr. (“Chip Clardy”). Defendants have appealed from the trial court’s denial of their motion for judgment notwithstanding the verdict (“JNOV”), contending plaintiff presented insufficient evidence of an enforceable oral contract. Because we believe the evidence, taken in the light most favorable to plaintiff, was sufficient to allow the jury to determine the existence of an énforceable oral contract, we affirm the trial court’s denial of defendants’ motion for JNOV. Defendants also argue the trial court erred in remitting the jury’s damages award rather than granting defendants’ request for a new trial on both liability and damages. Based upon our review of the jury’s verdict, the evidence, and the issues in dispute, we hold that the trial court did not abuse its discretion in denying a new trial on all issues. Plaintiff has cross-appealed from the trial court’s denial of his motion for attorneys’ fees and liquidated damages under the North Carolina Wage and Hour Act (“NCWHA”). We hold that the trial court’s findings of fact, which are supported by competent evidence, are sufficient to support its denial of liquidated damages and attorneys’ fees. Facts Plaintiff met the Clardys in the early 1970s when he attended high school with Mike and Chip Clardy. Steve Clardy, the father of Mike and Chip, was the boys’ scoutmaster in their Boy Scouts troop. The Clardys own Aspen (an investment holding company that buys, sells, and manages real estate investments), as well as defendants Rocking B. Farms, LLC, Basic Electric Company, Inc., and Earth Products Company, LLC. The parties kept in touch over the years, and when plaintiff left another job in May 1996, he sent the Clardys his resume and told them he was looking for work. After receiving plaintiffs resume, Chip Clardy contacted plaintiff and indicated that Steve Clardy wanted to speak with him about a possible job opportunity. Plaintiff and Steve Clardy met approximately eight times between July and September 1996, discussing various ways that plaintiff might work for the Clardys. The content of those discussions is at the heart of the dispute in this case. Plaintiff contends that in the course of those discussions, he and Steve Clardy entered into an oral employment contract. According to plaintiff, his duties under the contract were to identify and present to the Clardys attractive real estate investment opportunities and, if given approval, to acquire, modify, and resell or lease those properties for profit. In exchange, plaintiff would receive an annual salary of $72,000.00 and bonuses under a compensation scheme based on a system of “origination” and “implementation.” “Origination” included scouting out available properties and determining which properties might be a good investment. “Implementation” involved plaintiff’s performing required due diligence, closing the sale, and handling the improvements and leasing of the property. Plaintiff contends that he was supposed to receive 20% of the profits from investment projects he originated and implemented and would receive “fair” compensation for implementing investment projects that he did not originate. Defendants, on the other hand, argue that the conversations between plaintiff and Steve Clardy were nothing more than negotiations and that the parties intended to enter into a written agreement at a later date. It is undisputed by the parties that no written agreement exists. Although plaintiff and Steve Clardy exchanged several drafts of an agreement, none of the drafts was ever agreed upon or signed. Plaintiff worked for Aspen from 1 October 1996 through 25 June 2004. During his employment, Aspen paid plaintiff $72,000.00 annually, but never paid any bonuses. The parties agree that plaintiff originated eight properties for the Clardys. Plaintiff claims, however, that he also originated one more property, the Love property. After all of these properties had been acquired by Aspen, plaintiff, in one of his paychecks, received a handwritten note dated 27 June 2002 that stated: Sal[ary] same as now 72,000.00 annual. No Bonuses No Commissions No Nothing Until Aspen sees fit & confident we are making money. Subsequently, on 11 September 2003, Aspen sold three of the properties. The other six properties remained unsold as of the trial. On 14 December 2004, plaintiff brought suit against defendants in Mecklenburg County Superior Court. Plaintiff alleged that Aspen breached their contract by failing to pay him bonuses of 20% of the profits of investments he originated and implemented and bonuses of a “fair” percentage of the profits of investments he implemented but did not originate. Plaintiff also asserted claims against all defendants for (1) violation of the NCWHA, (2) quantum meruit, and (3) fraud. The case was ultimately assigned to the Business Court. Defendants moved for summary judgment on 5 April 2006, while plaintiff moved for partial summary judgment on 11 May 2006. On 27 September 2006, the trial court entered an order denying summary judgment on plaintiffs breach of contract claim for the 20% bonus on investments he originated and implemented, but granting summary judgment to defendants on plaintiffs breach of contract claim for the “fair” bonuses on investments he implemented but did not originate. The trial court permitted plaintiff to proceed against (1) all defendants under the NCWHA; (2) only Aspen, Rocking B. Farms, Basic Electric, and Earth Products in quantum meruit; and (3) only Aspen and Steve Clardy for fraud. At the close of plaintiffs case at trial, the trial court directed a verdict in favor of Rocking B. Farms, Basic Electric, and Earth Products.on all claims and in favor of all defendants on the fraud claim. The court further concluded that plaintiff was entitled only to nominal damages on the quantum meruit claim asserted against all defendants. The trial court denied renewed directed verdict motions at the close of all the evidence and submitted the surviving claims to the jury. On 12 December 2007, the jury rendered its verdict, making special findings of fact. It found that plaintiff and Aspen had entered into a contract and that Aspen had breached that contract. It further found that Steve and Mike Clardy, but not Chip Clardy, were statutory employers of plaintiff under the NCWHA. The jury next found that plaintiff had originated and implemented the Love property and that defendants could have sold the six unsold properties for a profit in the exercise of reasonable care and judgment. The jury concluded that plaintiff was entitled to damages in the amount of $996,147.60. Plaintiff moved for entry of judgment on the jury’s verdict and for an award of liquidated damages under the NCWHA in the amount of the verdict, for attorneys’ fees in the amount of $315,802.21, and costs of $9,869.45. At the hearing on plaintiffs motion, plaintiff also submitted a request for prejudgment interest in the amount of $124,518.00. On 5 February 2008, the trial court entered judgment on the jury’s breach of contract verdict in the amount of $996,147.60. The court concluded that the breach of contract amount should also be considered wages under the NCWHA and that Aspen, Steve Clardy, and Mike Clardy were liable jointly and severally for the unpaid wages. With respect to the request for liquidated damages, the trial court found that defendants had acted in good faith in discharging their obligations and had a reasonable basis for believing that their refusal to pay bonuses was not in violation of the NCWHA. The trial court, therefore, exercised its discretion not to award liquidated damages. The court also declined to award attorneys’ fees although it did grant the request for costs. The trial court awarded prejudgment interest as to the three properties that had actually been sold, but declined to award prejudgment interest as to the remaining six properties because the court could not determine when the bonuses on those properties became due. Finally, the court dismissed the claim for quantum meruit since the jury had awarded damages for breach of an express contract. Defendants moved for JNOV or, in the alternative, for (a) a new trial on both liability and damages; (b) a new trial on damages; or (c) remittitur of the damage award. In an order entered 28 April 2008, the trial court concluded that it could not reconcile the jury’s award of $996,147.60 with the evidence admitted at trial and plaintiff’s request to the jury for $825,070.40. The trial court noted that plaintiff had objected to remittitur and, therefore, granted a new trial as to damages only. Subsequently, in an order dated 29 May 2008, the trial court stated that plaintiff had clarified that he did not intend to object to remittitur. The trial court, therefore, denied the motion for a new trial on both liability and damages, and stated that it would be entering an amended judgment. The modified judgment was signed on 29 May 2008 and awarded plaintiff damages in the amount of $825,070.40 with prejudgment interest on only $58,424.00 of the judgment. Defendants timely appealed, and plaintiff cross-appealed. Defendants’ Appeal I. Motion for JNOV. Defendants contend that the trial court erred in denying their motion for JNOV. “When determining the correctness of the denial [of a motion] for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party’s favor, or to present a question for the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991) (internal citations omitted). “A motion for judgment notwithstanding the verdict should be denied if there is more than a scintilla of evidence to support the plaintiff’s prima facie case.” Scarborough v. Dillard’s Inc., 188 N.C. App. 430, 431, 655 S.E.2d 875, 876 (2008), rev’d on other grounds, 363 N.C. 715, 693 S.E.2d 640 (2009). A. Breach of Contract Claim. Defendants first argue that the trial court should have granted their motion for JNOV because plaintiff presented insufficient evidence to create a jury question as to the existence of an enforceable, divisible contract. As an initial matter, defendants’ arguments raise two questions: (1) whether there was an offer and acceptance of the terms of employment, and (2) “if so, were the terms agreed upon sufficiently definite and certain to give rise to a contract enforceable by a court of law?” Williams v. Jones, 322 N.C. 42, 48, 366 S.E.2d 433, 437 (1988) (upholding trial court’s denial of JNOV motion). We address each question separately. 1. Whether there was offer and acceptance. Defendants first assert that the discussions between Steve Clardy and plaintiff were merely negotiations to see if they could agree on terms and that the parties intended to enter into a written contract at a later date, which never happened. Our courts have held that when “it appears that the parties are merely negotiating to see if they can agree upon terms, and that the writing is to be the contract, then there is no contract until the writing is executed.” Elks v. North State Ins. Co., 159 N.C. 619, 624, 75 S.E. 808, 811 (1912). Defendants primarily rely upon Cole v. Champion Enters., Inc., 496 F. Supp. 2d 613 (M.D.N.C. 2007), aff’d, 305 Fed. Appx. 122 (4th Cir. 2008) (unpublished), in support of their position. In Cole, the employee sought to enforce an alleged oral agreement regarding conditions for his continued employment, while the defendant employer contended that no agreement had ever been reached. The district court acknowledged that, under North Carolina law, “where the evidence is sufficient to support plaintiffs contention that a definite oral agreement was made by the parties, the contract is complete even though the parties contemplated that they would ultimately reduce the agreement to writing.” Id. at 621. Nevertheless, “if it appears that the parties are merely negotiating to see if they can agree upon terms, and that the writing is to be a contract, then there is no contract until the writing is executed.” Id. at 622. On this point, the court observed: “ ‘If the parties intend to signal their agreement only by the execution of a written document and do not intend to be bound unless and until all parties sign, no amount of negotiation or oral agreement, no matter how specific, will result in the formation of a binding contract.’ ” Id. (quoting Dow Chem. Co. v. Gen. Elec. Co., 2005 WL 1862418, *32, 2005 U.S. Dist. LEXIS 40866, *88 (E.D.Mich. Aug. 4, 2005)). In deciding that no oral agreement was ever reached in Cole, the district court pointed out first that it was undisputed that the oral discussions could not constitute a verbal agreement because, given the nature of the employee’s position, all terms of his employment were subject to approval by the Board of Directors. Id. at 624-25. Although the Board ultimately did approve some of the terms and conditions of employment, the district court concluded that the approval, while necessary, was not sufficient for a contract since several of the terms were too indefinite to be enforceable without further negotiations and, in any event, “the alleged contract that [the employee sought] to enforce differed] in concept fundamentally from what the Board actually considered and approved.” Id. at 625. The court pointed out that, subsequently, the terms included within the Board approval (such as a salary increase) were not put into effect, but rather the parties exchanged draft agreements in which the employee sought revisions that were irreconcilable with the terms

<bold>1. Employer and Employee — wrongful discharge</bold> <bold>— reporting misconduct to management — evidence</bold> <bold>sufficient</bold> <block_quote> The trial court erred by granting defendants' motion for directed verdict on a claim for the wrongful discharge of an at-will employee where the claim was based upon a retaliatory termination after plaintiff reported to management that the company was withholding negative account balance statements from customers, transferring the monies to a separate account, and continuing to invoice customers in violation of N.C.G.S. § <cross_reference>14-100</cross_reference> (obtaining property by false pretenses).</block_quote> <bold>2. Employer and Employee — tortious interference</bold><bold>with contract — termination — wrongful purpose</bold><bold>— evidence sufficient</bold> <block_quote> The trial court erred by granting defendants' motion for directed verdict on a claim for tortious interference with a contract by defendant Smith where plaintiff reported misconduct<page_number>Page 76</page_number> within the company to Smith and was later terminated. Plaintiff forecasted more than a scintilla of evidence that he was terminated for a wrongful purpose.</block_quote> <bold>3. Appeal and Error — preservation of issues</bold><bold>— argument not raised</bold> <block_quote> Plaintiff was deemed to have abandoned an argument on appeal that a corporation ratified the acts of a supervisor in a wrongful termination suit. Plaintiff did not raise the issue in his brief, cite authority, or point to evidence in the record.</block_quote> <bold>4. Unfair Trade Practices — employment dispute</bold><bold>— not an un-fair or deceptive trade practice</bold> <block_quote> The trial court did not err by granting defendants' motion for a directed verdict on plaintiffs claim for unfair and deceptive trade practices after an alleged retaliatory firing. The case involved a simple employment dispute and did not fall with