An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-901
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 18 March 2014


STEPHEN PIGNATIELLO,
     Plaintiff,

       v.                                     Henderson County
                                              No. 10 CVS 1303
SYNOVUS FINANCIAL CORP. d/b/a
NATIONAL BANK OF SOUTH CAROLINA,
and SEVEN FALLS, LLC,
     Defendants.


       Appeal by plaintiff from judgment entered 17 December 2012

by Judge       Mark E. Powell      in Henderson County          Superior Court.

Heard in the Court of Appeals 5 February 2014.


       David R. Payne, P.A., by David R. Payne, for plaintiff-
       appellant.

       Nelson Mullins Riley & Scarborough, LLC, by T. William
       McGee, III, and Jeffrey W. Norris & Associates, PLLC, by
       Jeffrey W. Norris, for defendant-appellee Synovus Financial
       Corporation.


       BRYANT, Judge.


       Where    the   record   fails    to   support    plaintiff’s     assertion

that    defendant      Synovus     Financial      Corporation      acted     as    a

developer or an agent thereof, we affirm the trial court’s grant

of   summary    judgment    dismissing       plaintiff’s    claims    alleging     a
                                          -2-
violation       of   the     Interstate   Land    Sales       Full    Disclosure       Act.

Where plaintiff fails to present to the trial court his argument

that summary judgment is improper because there are outstanding

discovery       requests,      this   argument     is    not    preserved        for    our

review.

    On 3 August 2010, plaintiff Stephen L. Pignatiello filed a

verified        complaint       against        defendants       Synovus         Financial

Corporation          d/b/a     The    National        Bank     of     South      Carolina

(hereinafter “NBSC”) and Seven Falls, LLC, in Henderson County

Superior Court.         The complaint alleged that on 29 November 2007,

Pignatiello signed a consumer loan note / security agreement for

a principal amount of $650,000.00 payable to NBSC.                           Secured by a

Deed of Trust, the loan was acquired to purchase a real estate

lot in an undeveloped residential area.

    In 2006, NBSC loaned to Seven Falls, LLC, in excess of

$25,000,000.00         for      the   purpose      of        acquiring,        improving,

developing, marketing, and selling real estate on 1,600 acres of

undeveloped land in Henderson County to be known as the Seven

Falls Golf and River Club (hereinafter “the Development”).                               At

the time Pignatiello filed his 2010 complaint, there had been

little     or    no     development       of    the     1,600        acres     purchased.

Pignatiello alleged that he has lost the use and enjoyment of
                                           -3-
his property and that the property value of the lot purchased at

the time his complaint was filed was “grossly below the original

appraisal value used by NBSC.”

       In   his     complaint,    Pignatiello       alleged       that   both    Synovus

Financial Corp. and Seven Falls, LLC, were responsible for the

failure      to    make    progress   on    the     Development.          Pignatiello

alleged that NBSC and Seven Falls, LLC, were “essentially co-

owners”     of     the    1,600   acres,    intricately       intertwined        in   the

development,        marketing,     financing,       and    sale    of    lots    at   the

Development for a joint profit.                  He further alleged that: “NBSC

lent   its       name    and   prestige    to     the     sales    efforts      assuring

prospective lot owners at the Development that it was fully

funding the development and promised infrastructure”; “NBSC bank

officers          and     employees       solicited        consumers,        including

[Pignatiello], to consider buying lots at the development”; NBSC

and Seven Falls, LLC, hosted events in 2007 and 2008 to induce

consumers to purchase lots in the Development; “NBSC’s presence

and sponsorship at the . . . event[s] showed its support and

backing of the Seven Falls’ financial viability; “[b]ecause of

NBSC’s and Seven Falls’ joint efforts, many consumers at [these]

event[s] were unable to distinguish agents of NBSC from agents

of Seven Falls.”          And finally, Pignatiello alleged that “[p]rior
                                           -4-
to financing Seven Falls, NBSC knew or should have known that

Seven Falls was inexperienced and undercapitalized and therefore

knew or should have known that [Pignatiello’s] purchase of a lot

in the Seven Falls development would be a serious financial

risk.”

    Pignatiello sought recovery from Synovus Financial Corp.

and Seven Falls, LLC,           for violations of            the Interstate Land

Sales     Full    Disclosure       Act,    breach    of      contract,    breach   of

fiduciary duty and constructive fraud, fraud in the inducement,

fraudulent        misrepresentation,             negligent      misrepresentation,

unfair     and      deceptive      trade     practices,        negligence,     civil

conspiracy, and defamation.               Pignatiello also sought injunctive

relief as to NBSC; however, on 1 December 2010, Pignatiello

agreed to withdraw all requests for injunctive relief.

    In     answer     to   Pignatiello’s         complaint,     Synovus    Financial

Corp. submitted a counterclaim alleging that Pignatiello was in

default     under    the    terms     of    the     promissory     note    requiring

repayment    of     the    loan.      Synovus      Financial     Corp.    sought   to

recover the principal amount of $650,000.00, plus interest of

$52,431.71 plus $133.561 per day from 6 December 2010, late

fees, costs, and attorney’s fees.
                                              -5-
       On   23    August       2012,    Synovus        Financial        Corp.    submitted      a

motion for summary judgment or in the alternative, a motion to

enforce      a    mediated      settlement         agreement         reached     between      the

parties      on    29   March     2012.           In   an   accompanying          memorandum,

Synovus Financial Corp. argued that all of Pignatiello’s claims

should be dismissed because he failed to plead or establish that

there existed a joint venture between Synovus Financial Corp.,

the lender, and Seven Falls, LLC, the developer.                               The matter was

heard 1 October 2012 during the civil session of Polk County

Superior Court, the Honorable Mark Powell, Judge presiding.                                    On

26    October     2012,    the     trial      court     entered         an    order    granting

summary judgment in favor of defendants Synovus Financial Corp.

and Seven Falls, LLC, with respect to all claims asserted in the

complaint.          Furthermore,            the     trial       court        granted   summary

judgment “in favor of Defendants . . . with respect to all

claims      asserted      in    the    counterclaim         .    .    .   .”      Pignatiello

appeals.

                           _________________________________

       On appeal, Pignatiello raises the following issues: whether

the    trial      court    erred       in   granting        summary       judgment      (I)    by

determining that Synovus Financial Corp. was not a developer;

and (II) where there were outstanding discovery requests.
                                   -6-
                                         I

      Pignatiello argues that the trial court erred in granting

summary judgment in favor of Synovus Financial Corp. as there

was   sufficient   evidence   suggesting       that   Synovus    acted   as   a

developer    for   purposes   of   the       Interstate   Land   Sales   Full

Disclosure Act.    We disagree.

      We review a trial court’s grant of summary judgment de

novo.    McCutchen v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d

620, 625 (2006).     Summary judgment is to be “rendered forthwith

if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

any party is entitled to a judgment as a matter of law.”                 N.C.

Gen. Stat. ' 1A-1, Rule 56(c) (2013).

            If the [party moving for summary judgment]
            satisfies its burden of proof, the non-
            moving   party   cannot  rest   upon   [his]
            pleadings, and must set forth specific facts
            showing that there is a genuine issue for
            trial. The opposing party need not convince
            the court that he would prevail on a triable
            issue of material fact but only that the
            issue exists.

Strickland v. Lawrence, 176 N.C. App. 656, 661-62, 627 S.E.2d

301, 305 (2006) (citations and quotations omitted).

      The Interstate Land Sales Full Disclosure Act (“ILSFDA”) is
                                             -7-
codified at 15 U.S.C. ' 1701 et seq.                       “[The Act] is designed to

prevent false and deceptive practices in the sale of unimproved

tracts of land by requiring developers to disclose information

needed by potential buyers.”                      Flint Ridge Dev. Co. v. Scenic

Rivers      Ass'n,    426     U.S.    776,    778       (1976).     “These          disclosure

requirements are designed to protect purchasers by ensuring that

prior to purchasing certain types of real estate, a buyer is

apprised      of     the    information           needed    to    insure       an    informed

decision.”         Long v. Merrifield Town Ctr. Ltd. P'ship, 611 F.3d

240,   245    (4th     Cir.    2010)       (citation       and    quotations         omitted).

“[S]ince the Act provides for liability for misstatements or

omissions in the statutorily required Statement of Record and

Property Report or in statements made to offerees of lots in a

subdivision,         logically       the    statute      should     be     interpreted       to

include      within    its    scope        only    those    engaged      in    the    selling

effort.”       Bartholomew v. Northampton Nat. Bank of Easton, 584

F.2d 1288, 1293 (3d Cir. 1978).

       In    his     complaint,       Pignatiello          raises   five       claims    that

defendants      violated       the    ILSFDA       as    codified     at      15    U.S.C.   ''

1703(a)(1)(B),          1703(a)(2)(A),             1703(a)(2)(B),          1703(a)(2)(C),

1703(a)(2)(D).
                                   -8-
    Section 1703 of Title 15, entitled “Requirements respecting

sale or lease of lots,” imposes restrictions upon developers and

agents.        See   15   U.S.C.   '     1703(a)   (2012)   (“Prohibited

activities[.] It shall be unlawful for any developer or agent .

. . .”).

           For the purposes of [Chapter 42], the term--

           . . .

           (5)   “developer”  means   any  person   who,
           directly or indirectly, sells or leases, or
           offers to sell or lease, or advertises for
           sale or lease any lots in a subdivision;

           (6) “agent” means any person who represents,
           or acts for or on behalf of, a developer in
           selling or leasing, or offering to sell or
           lease, any lot or lots in a subdivision; but
           shall not include an attorney at law whose
           representation of another person consists
           solely of rendering legal services[.]

Id. § 1701(5), (6).

    In his complaint, Pignatiello makes the following pertinent

allegations:

           9.   NBSC and Seven Falls acted in concert
           with each other and each is a “developer” or
           “agent” as defined by ILSA.

           . . .

           13. NBSC and Seven Falls were intricately
           intertwined in the development, marketing,
           financing,  and  sale   of   lots   at   the
           Development  and  intentionally   associated
           themselves to engage in and carry out a
                                  -9-
          business venture for profit (as essentially
          co-owners) for which they combined their
          efforts,   property,  money,   skill,   and
          knowledge.

However, these are conclusory allegations and “Rule 56(e) [of

our North Carolina Rules of Civil Procedure] clearly precludes

any party from prevailing against a motion for summary judgment

through reliance on . . . conclusory allegations unsupported by

facts.”   Nasco Equip. Co. v. Mason, 291 N.C. 145, 152, 229

S.E.2d 278, 283 (1976).       The complaint provided the following

allegations   of   specific   conduct   in   support   of   Pignatiello’s

ILSFDA claims.

          20. NBSC lent its name and prestige to the
          sales   efforts  assuring   prospective   lot
          owners at the Development that it was fully
          funding    the  development   and    promised
          infrastructure.

          21. NBSC    bank   officers   and   employees
          solicited consumers, including Plaintiff, to
          consider buying lots at the Development.

          . . .

          25. . . . [O]n or about June 9, 2007, NBSC
          and Seven Falls hosted the Grand Opening of
          the Seven Falls Development on the grounds
          of Seven Falls in order to induce consumers
          into purchasing lots at Seven Falls. . . .

          26. NBSC’s presence and sponsorship at the
          Grand Opening event showed its support and
          backing of the Seven Falls development and
          was   an  effort   to  convince  consumers,
          including   Plaintiff,   of   Seven   Falls
                         -10-
    financial viability. Because       of NBSC’s and
    Seven Falls’ joint efforts,       many consumers
    at this event were unable         to distinguish
    agents of NBSC from agents of     Seven Falls.

    . . .

    29. On or about June 7, 2008, NBSC and
    Seven Falls hosted the Grand Opening of the
    Arnold Palmer Golf Academy at Seven Falls.

    . . .

    31. In or about October 2008, as part of
    Defendants’ scheme to induce consumers to
    purchase lots and/or Villas at Seven Falls,
    NBSC   and   Seven   Falls   hosted   another
    promotional event at the Development . . .
    as part of Defendants’ scheme to induce
    consumers such as Plaintiff to purchase[]
    lots and/or Villas at Seven Falls. . . .

    . . .

    41. Synovus and NBSC made these promises
    and assurances to Plaintiff and others in
    participation   and  in    furtherance of
    Defendants’ scheme.

On appeal, Pignatiello asserts that

    NBSC solicited lot-purchasers of Seven Falls
    by inviting them to informal sessions and
    lavish social gatherings. The bank provided
    these interested parties with free food and
    drink, introduced them to celebrities, and
    entertained     them     with    professional
    musicians.   Even more telling, is the fact
    that NBSC placed its name and corporate logo
    adjacent to that of Seven Falls on numerous
    marketing materials and financing offers.
    Further,   NBSC   funded  production  of   an
    informational DVD series aimed at assuring
    lot owners that the project was well
                                        -11-
               underway.

Pignatiello argues that NBSC “held itself out as a partner, or

at     least    a    backer,     in    connection       with       the   Seven     Falls

Development.”              However,     the        record      does      not     support

Pignatiello’s assertion that Synovus Financial Corp. acted as a

developer or an agent of Seven Falls.

       The     record     reflects    that    in    response       to    Pignatiello’s

interrogatories, Synovus Financial Corp. acknowledged that “NBSC

participated        in    on   site   [sic]    events       paid   for    and    put   on

exclusively by Seven Falls where various lenders were invited to

advertise their rates.            Other than that, NBSC took no part in

the development or proposed amenities of Seven Falls.”                           Synovus

Financial Corp. further responded that “NBSC loaned money to

Seven Falls and Stephen L. Pignatiello.                 NBSC received no monies

other than those expressly required by and through the terms of

the loan agreements.”           Pignatiello makes no showing that Synovus

Financial Corp. and Seven Falls were involved in a joint venture

or shared any profits from the same.                    Synovus Financial Corp.

also    draws       the   attention     of    this     Court       to    Pignatiello’s

deposition testimony in which he testified that he went to only

one “sales-type event” for the Seven Falls Development and “I

think it was after I purchased a lot[.]”                    Pignatiello has failed
                                          -12-
to    submit     authority    or       evidence       to   support        his     conclusory

assertion.

       Reviewing    the     allegations,         responses         to    interrogatories,

and memorandum in support of Synovus Financial Corp.’s motion

for    summary    judgment,       we    find     no    support      for       Pignatiello’s

assertion that Synovus Financial Corp. acted as a developer or

agent of a developer promoting the Seven Falls Golf and River

Club    residential    community.           Therefore,        we        affirm    the    trial

court’s order granting summary judgment against Pignatiello as

to his claims that Synovus Financial violated the ILSFDA.

                                           II

       Next, Pignatiello argues that the trial court improperly

granted summary judgment where Synovus Financial Corp.’s failure

to answer discovery questions prejudiced him and impeded his

ability    to     procure    evidence.            Pignatiello           argues        that   the

discovery       requests     were      targeted       at   uncovering           the    working

relationship between NBSC and Seven Falls, LLC,                               and that by

failing    to    answer     his     discovery       requests,       Synovus       Financial

Corp.   undermined     the     outcome      of      the    case.         We   dismiss        this

argument.

       Pignatiello    cites       Conover      v.     Newton,      297     N.C.       506,   256

S.E.2d 216 (1979), for the proposition that “[o]rdinarily it is
                                       -13-
error for a court to hear and rule on a motion for summary

judgment      when    discovery    procedures,   which     might    lead      to   the

production of evidence relevant to the motion, are still pending

and the party seeking discovery has not been dilatory in doing

so.”    Id. at 512, 256 S.E.2d at 220 (citations omitted).

       On appeal, Pignatiello points out that during the hearing

on     Synovus    Financial     Corp.’s   motion     for    summary       judgment,

counsel for Synovus Financial Corp. argued that Pignatiello had

completely failed to discover or present any evidence.

              [Counsel for Synovus Financial Corp.:] The
              basis of summary judgment, our motion for
              summary judgment against the plaintiff's
              claims is that after 26 months since the
              Complaint was filed in this case, it has
              been pending almost 27 months now, the
              plaintiff has completely failed to discover
              or present any evidence that sufficiently
              plead or prove the claims that are asserted
              against Synovus Bank. Therefore, Judge, we
              believe that summary judgment as to all the
              first party claims are in order.

We note that during the hearing, Pignatiello failed to argue

that his inability to procure evidence supporting his claims was

a    result      of   Synovus     Financial   Corp.’s      failure       to   answer

discovery      requests.        Therefore,    this   argument      has    not      been

preserved for our review.             See N.C. R. App. P. 10(a)(1) (“In

order to preserve an issue for appellate review, a party must

have presented to the trial court a timely request, objection,
                                      -14-
or motion, stating the specific grounds for the ruling the party

desired    the   court   to   make   if   the     specific   grounds   were   not

apparent    from   the    context.    It     is    also   necessary    for    the

complaining party to obtain a ruling upon the party’s request,

objection, or motion.”).        Accordingly, we dismiss this argument.

    Affirmed in part; dismissed in part.

    Judges STEPHENS and DILLON concur.

    Report per Rule 30(e).
