TD Bank v. Jacobs

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

TD Bank, NA, successor by merger with Carolina First
Bank, Respondent,

v.

David H. Jacobs, Appellant.

TD Bank, NA, successor by merger with Carolina First
Bank, Respondent,

v.

David H. Jacobs and James A. McFarland, Defendants,

Of Whom David H. Jacobs is the Appellant.

Appellate Case No. 2015-000730

Appeal From Richland County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2017-UP-300
Heard May 11, 2017 – Filed July 19, 2017

AFFIRMED

Charles E. Carpenter, Jr., of Carpenter Appeals & Trial
Support, LLC, of Columbia; and Gerald D. Jowers, of
Columbia, for Appellant David H. Jacobs.

John T. Moore, Paul Thomas Collins, Jody Alan
Bedenbaugh, and Allen Mattison Bogan, all of Nelson
Mullins Riley & Scarborough, LLP, of Columbia, for
Respondent.

PER CURIAM: David H. Jacobs appeals the denial of his motion for a new trial,
arguing the trial court erred in (1) excluding evidence about the Troubled Asset
Relief Program (TARP) and the government bailout, (2) excluding documentary
evidence and witness testimony about the sale of the "Heron Lakes I" note, and (3)
effectively overruling decisions made by another judge during summary judgment.
We affirm pursuant to Rule 220(b), SCACR.

1. We find the trial court did not abuse its discretion when it excluded the TARP
and government bailout evidence because there is no relevant link between the
proffered testimony and the issue of whether Jacobs was legally responsible for
paying his guaranty obligations. See Fields v. J. Haynes Waters Builders, Inc., 376
S.C. 545, 567, 658 S.E.2d 80, 92 (2008) ("The admission or exclusion of evidence
is left to the sound discretion of the trial court, and the court's decision will not be
reversed absent an abuse of discretion."). Even if the testimony was relevant, its
probative value was substantially outweighed by the danger of unfair prejudice.
See Rule 403, SCRE ("Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence."); State v.
Cheeseboro, 346 S.C. 526, 547, 552 S.E.2d 300, 311 (2001) ("Evidence is unfairly
prejudicial if it has an undue tendency to suggest a decision on an improper basis,
such as an emotional one.").

2. We also find the trial court did not abuse its discretion when it excluded
evidence regarding Bank's decision to sell the note related to the Heron Lakes I
loan because it was irrelevant and would likely confuse the jury regarding Bank's
obligations to Jacobs. Jacobs argued the evidence showed the disparate treatment
he received from Bank and how they proceeded in bad faith against him.
However, the evidence only showed Bank chose to sell the Heron Lakes I note at a
discounted price for business reasons. Further, that sale had nothing to do with the
guaranties at issue in this case. Finally, Jacobs presented no evidence supporting
his allegation of a personal relationship between a Bank officer and the guarantor
involved in the Heron Lakes I transaction. Accordingly, the Heron Lakes I
evidence does not make any matter at issue more or less probable. See Judy v.
Judy, 384 S.C. 634, 641, 682 S.E.2d 836, 839 (Ct. App. 2009) ("Evidence meets
the test of relevance if it tends to establish or to make more or less probable some
matter in issue upon which it directly or indirectly bears.").

3. As to whether the trial court erred in effectively overruling issues previously
decided by another judge during the summary judgment phase, we note Bank's
motions for summary judgment did not specifically request exclusion of the TARP
and Heron Lakes I evidence. Likewise, the order denying summary judgment did
not include specific rulings concerning these issues. Accordingly, we find the trial
court did not violate Rule 43(l), SCRCP, and this is not a situation where one judge
has overruled another. See Rule 43(l), SCRCP ("If any motion be made to any
judge and be denied, in whole or in part, or be granted conditionally, no subsequent
motion upon the same state of facts shall be made to any other judge in that
action."); Salmonsen v. CGD, Inc., 377 S.C. 442, 454, 661 S.E.2d 81, 88 (2008)
(acknowledging the rule that one circuit judge may not overrule a prior decision or
set aside the order of another circuit judge).

AFFIRMED.

GEATHERS, MCDONALD, and HILL, JJ., concur.