Civil Practice – Appeals – Contract – Banks & Banking – Promissory Note – Attorney’s Fees – S.C. Law

East Bay Co. v. Baxley Commercial Properties, LLC (Lawyers Weekly No. 11-16-0873, 15 pp.) (Robert C. Hunter, J.) Appealed from Wake County Superior Court. (Paul Gessner, J.) N.C. App. Unpub. Click here for the full-text opinion.

Holding: Even though a party need not formally object and except to a discovery ruling in order to preserve the issue for appeal, the record must show that the appealing party made his objection known to the trial court. Since the record does not show that defendant objected to the trial court’s order compelling discovery, and since defendant did not refer to the order in the notice of appeal, we lack jurisdiction to consider the order compelling discovery.

We dismiss defendant’s appeal in part and affirm in part.

Likewise, without any indication that defendant objected to the trial court’s substitution of East Bay Co. for the original plaintiff, Regions Bank, and without the court’s order being specifically referenced in the notice of appeal, we do not have jurisdiction to review the order of substitution.

Even though the notice of appeal does not refer to the court’s order granting partial summary judgment for plaintiff, we do have jurisdiction to review the summary judgment order: the record contains defendant’s written opposition to plaintiff’s motion for summary judgment; the order resolved defendant’s liability but did not determine the amount of damages, rendering the order interlocutory and not immediately appealable; and the order clearly involves the merits and necessarily affects the judgment for plaintiff.

Defendant argues he was deprived of a reasonable opportunity to conduct discovery. However, the record does not show that defendant filed any discovery requests in the two months between the order making East Bay a party and the partial summary judgment order. Therefore, the trial court did not err in proceeding to rule on plaintiff’s motion for summary judgment.

Finally, defendant argues that the attorney’s fee awarded to plaintiff “is excessive and unreasonable under the laws of North Carolina.” However, the promissory notes and the guaranty agreement at issue specify that they are to be “construed according to the laws of the State of South Carolina.”

Defendant’s insistence that this issue is governed by N.C. law, when it  is  evident  from the record that it is controlled by South Carolina law, and his failure to cite any relevant South Carolina authority substantially frustrates our  ability to review this argument.

While we do not believe that defendant intended to mislead this court, we decline to delve into the law of another state when defendant has failed to adequately brief the issue. Accordingly, this contention is dismissed, and the trial court’s final judgment is affirmed.

Dismissed in part and affirmed in part.