ACTING CHIEF JUSTICE HEARN:
This appeal arises from a total verdict of $17,199,306 rendered in favor of Francis P. Maybank for claims sounding in contract, tort, and the South Carolina Unfair Trade Practices Act (UTPA). Maybank brought this action alleging he received faulty investment advice from Branch Banking and Trust (BB&T) Company (the Bank) through BB&T Wealth Management (Wealth Management) and BB&T Asset Management (Asset Management), all operating under the corporate umbrella of BB&T Corporation (collectively, Appellants). Appellants appeal on numerous grounds, and Maybank appeals the trial court's denial of prejudgment interest. We affirm in part and reverse in part.
Because of the numerous BB&T entities involved and their intertwined relationships, we begin by briefly highlighting the role of each Appellant. The Bank is a subsidiary of BB&T Corporation and is its largest asset — comprising ninety-eight percent of the corporation's holdings. The Bank offers traditional banking services along with insurance, trust, and wealth management services. Wealth Management oversees financial portfolios, keeping abreast of clients' financial situations, needs, and risks. Asset Management, an independent corporate entity, through investment advisors or brokers, makes recommendations about investment strategies and products as
In 1999, the Bank offered well-established commercial middle-market lending, investment counseling, insurance, and trust services. As part of an effort to offer increasingly sophisticated and diversified financial products, it acquired Scott & Stringfellow brokerage firm, which specialized in corporate finance, equity underwriting and distribution, and advisory services.
The Bank continued to follow an expansion strategy, and in 2001, it became interested in acquiring Southeastern Trust Company (Southeastern), an independent investment firm with offices in Greenville, Columbia, Charleston, and Anderson, which had been founded by Maybank. Southeastern served as the trustee or personal representative for clients' wills and trusts in addition to acting as investment manager and advisor to individuals, companies, and profit-sharing trusts.
Raised in South Carolina, Maybank graduated from Harvard University and moved to New York City in 1957 to work for Fiduciary Trust Company. He later operated his own trust firm on Wall Street for many years, returning to South Carolina in 1989 to found Southeastern. In November 2001, Maybank sold his interest in Southeastern to the Bank, receiving 246,000 shares of BB&T Corporation stock in exchange. As a result of the acquisition, all of Southeastern's employees began working for the Bank, including Maybank, who became a senior vice president in the Trust Department with a five-year employment contract and an annual salary of $100,000. His duties included promoting the Bank's services to Southeastern's existing customers and overseeing client transition to the Bank. This was a shift from his previous work experience as a trust officer. In order to avoid substantial capital gains taxes due to the high value of the BB&T Corporation stock, Maybank placed his newly acquired stock in his brokerage account with Scott & Stringfellow. This allowed him to defer the tax liability and to enjoy annual dividends of approximately $400,000.
In 2004, the Bank created Wealth Management, which included the Trust Department in which Maybank worked.
In order to effectuate these alternative investment strategies, clients executed a wealth management agreement (WMA), establishing a contractual relationship between the Bank and Asset Management. Under the WMA, the Bank served as the advisor for the designated assets and thereby had the ability to advise and provide professional guidance on available BB&T products. Wealth Management portfolio advisors served as liaisons between clients and Asset Management. Specifically, Wealth Management oversaw the portfolio account, serving as its custodian. By signing the WMA, a client hired Asset Management to handle the discretionary account and serve as the account's investment advisor. Under its terms, the Bank had total discretion to invest in securities from the Wealth Management portfolio.
One of the new strategies touted by the Bank and Asset Management included a variable prepaid forward contract (Prepaid) that was directed at customers with concentrated stock positions. A Prepaid is an investment contract by which a stock is sold to an investment bank for an upfront payment of approximately seventy-five to ninety percent of its value. Significantly, title to the stock is not transferred for two to three years, thereby deferring capital gains taxes and allowing the customer to receive dividends and the benefit of appreciation. A Prepaid provides four meaningful benefits for its
In mid-2006, Maybank attended a meeting between a long-time client of his and representatives from Wealth Management and Asset Management. The purpose of the meeting was to discuss the client's concentrated position in a particular stock and the advisability of Prepaids. Kristopher Kapoor attended the meeting as a portfolio manager for Asset Management to address proceeds in the event the client decided to purchase a Prepaid. Anthony Mahfood, a Wealth Management advisor, was also present. Although Maybank had previous knowledge about Prepaids through written presentations circulated within BB&T, it was this meeting that piqued Maybank's personal interest in this alternative investment product.
In light of his concentrated position in BB&T Corporation stock, Maybank spoke with Kapoor following the meeting about his interest in entering into a Prepaid, along with his investment objectives and risk tolerance.
In July 2006, Maybank was given a Concentrated Stock Risk Management Addendum (Addendum), which outlined a general description of the strategies of various single-stock products, including a Prepaid. Also included within the Addendum was the fee schedule to use the services of "BB&T professionals," which explained a "one-time-upfront advisory fee from your Account, based upon the principal value of the
On August 11, 2006, Wealth Management presented Maybank with a letter (Approval Letter), which approved Maybank entering into a Prepaid with BB&T.
After being presented with the Approval Letter, Maybank executed a Prepaid with Bear Stearns — a three-year contract in which Maybank pledged 220,000 shares of BB&T Corporation stock with a value of $9,318,364 in exchange for upfront proceeds of $7,120,000. The Bank charged Maybank $32,614 for the advice and recommendation to enter into the first Prepaid. Of the $7,120,000 in upfront proceeds derived from the Prepaid, $2,470,000 was applied by BB&T to Maybank's margin debts from Southeastern. The remaining $4,650,000 was placed into a Wealth Management portfolio account, notwithstanding
Subsequently, on August 23, 2006, Maybank entered into a WMA with the Bank and Asset Management. The WMA served as the umbrella for the various services BB&T was offering to Maybank through Wealth Management and Asset Management. The WMA established the Bank would (1) gather information about the client's investment objectives, risk, financial situation, and needs; (2) make a recommendation to the client; and (3) coordinate and supervise the account. The WMA stated the Bank will do what is in the "best interest" of the client. Further, the WMA also governed the portfolio account with the $4,650,000 in proceeds from the Prepaid after Maybank's margin debt had been paid.
By the end of 2008, the value of BB&T Corporation stock had dropped precipitously as a result of the national financial crisis. Due to his concentrated stock position, Maybank suffered a considerable loss. Accordingly, Maybank was concerned about his income stream, which had been supplied by the rather substantial dividends paid by BB&T Corporation stock and tied to the Prepaid. This concern was further fueled by the fact that the initial Prepaid would expire in August 2009. Maybank therefore discussed the expiration of the first Prepaid with Mahfood and Gibson, primarily focusing on whether he should roll the first Prepaid into a second one.
In January 2009, Appellants assisted Maybank in the execution of a second Prepaid with Deutsche Bank, a global investment bank and securities trading and brokerage firm. When the transaction was completed, Maybank discovered he had incurred costs and fees of nearly $1,300,000 from the roll-over. Thereafter, during the second quarter of 2009, BB&T Corporation decreased its dividend significantly. As a result, Maybank received an annual dividend of $230,000, in contrast to the approximately $400,000 annual dividend he had been receiving previously.
In August 2010, Maybank requested a meeting with personnel of the Bank to discuss the significant losses he sustained, which he believed were the result of mismanagement and a failed investment strategy. He met with Fisher, the head of Wealth Management, and Ross Walters of the Greenville
In December 2011, Maybank filed this lawsuit against Appellants, alleging numerous causes of action arising from Appellants' financial investment advice, including breach of fiduciary duty, breach of contract, negligence, breach of contract accompanied by a fraudulent act, constructive fraud, violations of the South Carolina Uniform Securities Act of 2005 (Securities Act), and violations of the UTPA. Maybank asserted that in preparation for his retirement, he engaged Appellants to develop an investment plan that reflected his goals of diversification, steady income, tax sheltering, and the ability to protect his wealth for his grandchildren through the Francis P. Maybank Family Life Insurance Trust (the Trust), established in 1993. He contended Appellants' investment plans were aggressive, risky, and involved a complex system of derivative trading with BB&T Corporation stock — which he characterized as an uncommon investment approach for someone seeking financial advice for retirement. Maybank alleged he lost substantial sums of money because of this faulty investment advice.
Following the removal of this action to federal district court by Appellants and the subsequent remand, the parties jointly moved for the case to be assigned to the Greenville Business Court (then) Pilot Program. Maybank filed an amended complaint, which added the Trust as a plaintiff.
In November 2012, Maybank received a letter from Wealth Management stating he was being refunded for the one-time advisory fee that was charged in connection with the services Asset Management had provided for the Prepaids. The letter (Refund Letter) stated, "Recently, as part of a review of client accounts we discovered that a fee was charged to your account that we wish to refund to you. While we are not required to rebate these fees, we choose to do so as a reflection of our
The Refund Letter did not disclose that the refund of fees was actually motivated by an inquiry by the Securities and Exchange Commission (the SEC) into Asset Management's fee practices. At the time of the refund, the SEC expressed concerns over the upfront charges and associated fees for selling alternative investments. This investigation was qualified both as "out of the bounds" of the SEC and in a "gray area" of regulation. According to Fisher, the investigation was prompted because the fees charged were "broker-esque." Maybank's refund was part of approximately $1,000,000 in fees refunded by Wealth Management.
Essentially, Maybank's theory of the case was that Appellants' recommendation of alternative investment strategies and products like Prepaids, which generated fees and profit for the Bank and BB&T Corporation, caused grave financial damage to clients like Maybank. He contended he relied on Appellants to advise him in their capacity as fiduciaries. Maybank alleged Appellants willfully and wantonly deceived him. He specifically claimed he relied on two key documents in trusting Appellants: the Approval Letter and the WMA.
Conversely, Appellants characterized the case as one involving a sophisticated businessman with fifty years in the investment advisory industry who fully appreciated the risks involved in his investments. They claimed it was Maybank who ultimately decided a Prepaid was an ideal solution to his retirement needs. Appellants pointed to the fact that Maybank went on to unwind and roll over his Prepaid three more times himself — without any involvement by BB&T. Moreover, according to Appellants, Maybank received $1,500,000 in dividends during the six years the Prepaids were in effect, monies he would never have received had he sold his BB&T Corporation stock in 2006.
At trial, Maybank testified that based on his employment with the Bank, he believed Appellants were responsible and
Maybank also presented the video deposition testimony of Walters, head of Greenville's Wealth Management division, who stated that while he held a Series 7 broker license and Series 24 broker license, and although he had general knowledge as an investment broker, he did not have the training or expertise to provide advice or make recommendations about any particular investment strategy. Walters further agreed he did not know how to advise a client with a concentrated stock position. Moreover, he admitted he did not have the knowledge or experience to inform a client how to assemble a well-managed and balanced portfolio.
Maybank introduced the Approval Letter to demonstrate the selling points used by BB&T for the strategies and representations made to him. Maybank testified he relied on the Approval Letter in deciding to enter into the first Prepaid in 2006. He further stated he believed Appellants had thoroughly researched the financial products and determined a Prepaid was best for his specific situation, as outlined in the Approval Letter. Maybank testified that based on the language of the Approval Letter, he assumed it was specifically tailored to him and his needs; however, he later learned it was merely a form letter. Maybank submitted into evidence the form letter that was used for all customers in Maybank's situation, which stated analysis and review had been done for the customer whose name was then filled into a blank.
Maybank also established, through the deposition testimony of Walters, that the Bank knew at the time Maybank entered into the WMA that the contract contained errors, misstatements, and deliberate misrepresentations. Walters testified he knew wealth advisors were using the inaccurate WMA, but he did not review the WMA signed by Maybank and therefore did not question it. Walters testified because Maybank was a wealth advisor, he would have known Asset Management handled that portion of the advising and the transaction. He stated it was Maybank's job to know such information and if he did not, he was "incompetent." Walters testified he believed the contract was fulfilled in principle. He claimed the errors in the WMA were the result of an "oversight on our attorneys' part."
Maybank entered the Refund Letter into evidence to further his theory Appellants engaged in unfair and deceptive business practices. Appellants' representatives testified repeatedly the Refund Letter was indicative of their corporate values, and it chose to refund the fees because they were inconsistent with the 2012 billing practices.
Three expert witnesses also testified for Maybank: Professor John Freeman, Dr. Craig McCann, and Dr. Oliver Wood. Their testimony covered the topics of fiduciary relationships, securities, and damages.
In their defense, Appellants painted a markedly different picture. They concentrated on Maybank's professional experience, the fact he was informed and aware of the contracts he
Testimony by the Bank's employees suggested Maybank was not open to advice and was set in his ways. For example, Kapoor explained that during his meeting to discuss Maybank's goals and overall financial situation, he realized Maybank was a "100 percent equity guy" who preferred stocks. Kapoor acknowledged that a more diversified portfolio would have been a better option for Maybank, and they discussed the importance of diversification multiple times. A personal trust specialist for Wealth Management and a former employee of Southeastern testified that Maybank's financial philosophy over the years was "all equities." Gibson testified he generally remembered Maybank being involved in conversations about how to guide the transaction and how it would be structured. He also stated Maybank never indicated he was giving complete discretion to Appellants to determine how best to handle his concentrated stock position.
Appellants additionally put forth evidence and testimony Maybank was fully informed about the contracts he entered. They submitted into evidence extensive documentation provided to Maybank in his capacity as a client and in his role as a wealth management advisor. For example, Appellants entered into evidence sales presentations and materials on alternative investments and Prepaids given to Wealth Management and Asset Management employees. This evidence was used by Appellants to support their argument of Maybank's knowledge, but on cross-examination, Maybank's counsel used the evidence to support Maybank's contention the advisors possessed inadequate information on Prepaids. The jury also heard from multiple employees who testified they were not allowed to provide investment advice. Additionally, Appellants presented testimony that Gibson insisted Maybank seek advice from a tax lawyer before entering into the first Prepaid, and that Maybank proceeded to unwind and roll over his Prepaid three additional times without any assistance from BB&T.
In addressing the obligations of the WMA, Walters testified at trial that the Bank had the responsibility of gathering information about a client's investment objective and risk tolerance, making a recommendation to the client regarding an investment program, and supervising the services of the investment advisor. He stated that each obligation of the WMA was fulfilled by either the Bank or Kapoor of Asset Management. On cross-examination, however, Walters conceded the WMA stated "the [B]ank shall" perform the three responsibilities outlined in the WMA, not Asset Management. Further, he agreed the responsibilities were not completed by the Bank nor could they be completed by the Bank.
Appellants suggested Maybank's only viable option was to enter into a Prepaid because he was living beyond his means. They emphasized that rather than cutting expenses, Maybank chose to borrow on the margin. By July 2006, Maybank had a margin debt of $2,700,000 secured by his BB&T Corporation stock, which was invested at Scott & Stringfellow.
Appellants' financial expert, Robert Thorne, testified that as of July 2006, Maybank would have been in a "predicament" if
Because of the securities violation claim, Appellants devoted considerable effort in discovery and at trial to establish their employees did not advise Maybank or sell securities. Paul Merolla, an employee of Asset Management, testified that Asset Management and its employees did not buy and sell securities for its clients or for its own accounts. He further testified Asset Management was "simply advising Maybank as to managing his asset pool." The actual sale was done by a myriad of separate companies. In Maybank's particular circumstance, the Prepaids were contracted with Bear Stearns and Deutsche Bank. Thus, to avoid liability on the securities claim, Appellants were adamant that no BB&T entity sold securities.
Appellants moved for a directed verdict at the close of Maybank's case and again at the close of all evidence. Notably, Appellants argued, in an effort to defeat the securities claim, that: "[Maybank and the Trust] have not presented any evidence that BB&T Corporation offered or sold any securities. They have also not presented any evidence that any securities were offered or sold to the Trust by any [Appellants]." Conversely, to defeat the UTPA claim, Appellants' counsel argued that because a Prepaid was a security, the securities exemption in the UTPA controlled. Maybank and the Trust voluntarily dismissed the claims for negligence and fraud. The trial court denied Appellants' motions.
The jury returned a verdict in favor of Maybank and against all Appellants on five claims: (1) breach of contract, (2) breach of fiduciary duty, (3) violation of the UTPA, (4) constructive fraud, and (5) negligent misrepresentation.
Appellants then moved for judgment notwithstanding the verdict (JNOV) on forty grounds and for a new trial absolute or, in the alternative, for a new trial nisi remittitur. Appellants also filed a motion to compel an election of remedies. Maybank filed motions for attorneys' fees and costs and to treble damages under the UTPA. Appellants opposed the motions and filed three motions directed to Maybank's requests for additional UTPA remedies.
The trial court denied all of Appellants' motions. The trial court found the jury's punitive damages award of $5,000,000 was appropriate. Further, the trial court found the evidence supported the jury's conclusion a violation of the UTPA had occurred. The trial court found Appellants' conduct to be both willful and knowing and therefore granted Maybank's motion to treble the award of actual damages from $3,100,000 to $9,300,000. Further, the trial court granted Maybank's motion for attorneys' fees and costs under the lodestar analysis,
Appellants filed a motion to alter or amend judgment, which the trial court denied, and Appellants and Maybank appealed. This Court certified the appeal pursuant to Rule 204(b), SCACR.
I. Whether the trial court erred in finding personal jurisdiction over BB&T Corporation.
II. Whether the trial court erred in denying Appellants' motion for a new trial based upon Freeman's lack of qualification to testify as to the Prepaids.
III. Whether the trial court erred in denying Appellants' motions for JNOV as to the UTPA, breach of fiduciary duty, breach of contract, negligent misrepresentation and constructive fraud, speculative damages, the statute of limitations, and punitive damages.
IV. Whether the trial court erred in trebling the actual damages under the UTPA.
V. Whether the trial court abused its discretion in awarding attorneys' fees and costs to Maybank under the UTPA.
VI. Whether the trial court erred in denying Maybank's motion for prejudgment interest.
Appellants argue the trial court lacked personal jurisdiction over BB&T Corporation and therefore the claims against it should be dismissed. Specifically, they contend BB&T Corporation is a North Carolina corporation with no offices, employees, or operations in South Carolina, and at no time did BB&T Corporation provide any services to Maybank or other South Carolina customers. As such, they assert finding personal jurisdiction was improper, as South Carolina courts have no authority to enforce a decision over an out-of-state business with no significant ties to the State. Because we find BB&T Corporation waived its right to contest personal jurisdiction by actively participating in litigation, we decline to reach the merits of Appellants' arguments.
Personal jurisdiction is a court's authority to rule and enforce a decision over the parties of a lawsuit. Lime-house
Maybank argued BB&T Corporation waived its right to assert a personal jurisdiction defense because it failed to timely contest personal jurisdiction in a motion to dismiss and actively participated in litigation for more than one year. The trial court agreed, finding BB&T Corporation waived personal jurisdiction in failing to argue their motion until a month before trial. Alternatively, the trial court found there was sufficient evidence to invoke personal jurisdiction over BB&T Corporation.
Rule 12(h)(1), SCRCP, provides a defense is waived if "it is neither made by motion under this rule or included in a responsive pleading or an amendment." No South Carolina case has squarely addressed whether personal jurisdiction is waived if a party continues to participate in litigation after challenging personal jurisdiction in their initial responsive pleading to a court. However, the language of Rule 12(h)(1) is substantially similar to the Federal Rules of Civil Procedure. In construing the South Carolina Rules of Civil Procedure, our Court looks for guidance to cases interpreting the federal rules. Gardner v. Newsome Chevrolet-Buick, Inc., 304 S.C. 328, 330, 404 S.E.2d 200, 201 (1991).
A number of federal courts have determined "a delay in challenging personal jurisdiction by motion to dismiss may result in waiver, even where the defense was asserted in a timely answer.'" Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999) (citation omitted) (internal quotation and alteration marks omitted); see also Peterson v. Highland Music, Inc., 140 F.3d 1313, 1318 (9th Cir. 1998) ("Rule 12(h)(1)[, FRCP,] specifies the minimum steps that a party must take in order to preserve a defense."); Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1296-97 (7th Cir. 1993) (finding waiver of personal jurisdiction defense by defendant's conduct, though acknowledging the waiver specifically provided for by Rule 12(h), FRCP, did not occur); Yeldell v. Tutt, 913 F.2d 533, 538 (8th Cir. 1990) (finding Rule 12(h), FRCP, "`sets only the outer limits of waiver; it does not preclude
Considerable pretrial activity occurred in this case. BB&T Corporation timely answered and addressed personal jurisdiction by stating it "reserve[d] its objection based on the Court's lack of in personam jurisdiction." Following this reservation, BB&T Corporation did not wait for the trial court to rule whether it could properly exercise personal jurisdiction over BB&T Corporation. Rather, BB&T Corporation, along with the other Appellants, removed the case to federal court. During this time, BB&T Corporation further engaged in the litigation by filing an amended answer to Maybank's amended complaint, filing a corporate disclosure, opposing remand, and opposing a motion for attorneys' fees.
Moreover, following the federal court's remand to state court, BB&T Corporation continued to participate in litigation and discovery, which spanned more than one year, and in fact BB&T Corporation submitted its own responses to discovery requests separate from the other Appellants. After its active participation in the extensive discovery leading up to trial, BB&T Corporation reasserted this defense a mere one month prior to the start of trial.
In our opinion, BB&T Corporation gambled that it could argue personal jurisdiction on the eve of trial after actively participating in litigation over the course of two and a half years. After considering the circumstances of this case, we find BB&T Corporation waived any possible personal jurisdiction defense, and it was well within the trial court's discretion to find BB&T Corporation waived its personal jurisdiction defense.
Appellants argue the trial court erred in permitting Freeman to testify as an expert witness with respect to Prepaids because he had no prior experience with Prepaids and only possessed a general knowledge of securities. We disagree.
The qualification of a witness as an expert is within the trial court's discretion, and this Court will not reverse that decision absent an abuse of discretion. Fields v. J. Haynes
Under Rule 702, SCRE, a witness can be qualified as an expert if the witness has "specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." In determining a witness's qualifications as an expert, the trial court should not have a solitary focus, but rather should make a broad inquiry. J. Haynes Waters Builders, Inc., 376 S.C. at 556, 658 S.E.2d at 86. "The test for qualification of an expert is a relative one that is dependent on the particular witness's reference to the subject." Wilson v. Rivers, 357 S.C. 447, 452, 593 S.E.2d 603, 605 (2004).
Maybank offered Freeman as an expert in the field of finance to testify as to the proper conduct for financial advisors, planning professionals, and trustees. Prior to Appellants' objection, Freeman testified he had served as an investment advisor, a securities arbitrator, and a law school professor teaching on securities regulation, corporations, agency, and white collar crime. On direct examination during voir dire, Freeman stated that in preparing to give his opinions about investment products, he had conducted his own research by reading articles on Prepaids, reviewing sales literature, and speaking to Maybank and McCann.
On cross-examination during voir dire, Freeman conceded his actual experience with Prepaids was limited in that he had never advised a client with respect to a Prepaid, nor had he taught any courses, designed a training program to educate investment advisors, written any training materials, or published any articles or other materials on Prepaids. However,
Given our deferential standard of review, we find there is evidence to support the trial court's decision to qualify Freeman as an expert witness. Freeman had experience with securities and alternative investments strategies, of which Prepaids are a type. See Watson v. Ford Motor Co., 389 S.C. 434, 448, 699 S.E.2d 169, 176 (2010) (finding an expert unqualified when he admitted he had no knowledge, skill, experience, training, or education specifically related to cruise control systems). Accordingly, we affirm the trial court in qualifying Freeman as an expert.
When reviewing the trial court's ruling on a motion for a directed verdict or JNOV, this Court applies the same standard as the trial court by viewing the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Elam v. S.C. Dep't of Transp., 361 S.C. 9, 27-28, 602 S.E.2d 772, 782 (2004). The trial court must deny a motion for a directed verdict or JNOV if the evidence yields more than one reasonable inference or its inference is in doubt. Strange v. S.C. Dep't of Highways & Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994). Moreover, "[a] motion for JNOV may be granted only if no reasonable jury could have
Appellants argue the trial court erred in failing to grant JNOV because Prepaids are exempt from the UTPA as a matter of law, and therefore, the trial court erred in submitting the question to the jury and in upholding the jury's finding of a UTPA violation. We disagree.
The UTPA declares "unfair or deceptive acts or practices in the conduct of any trade or commerce ... unlawful." S.C. Code Ann. § 39-5-20(a) (1985). "To recover in an action under the UTPA, the plaintiff must show: (1) the defendant engaged in an unfair or deceptive act in the conduct of trade or commerce; (2) the unfair or deceptive act affected public interest; and (3) the plaintiff suffered monetary or property loss as a result of the defendant's unfair or deceptive act(s)." RFT Mgmt. Co. v. Tinsley & Adams L.L.P., 399 S.C. 322, 337, 732 S.E.2d 166, 174 (2012).
However, the UTPA provides an industry exemption for certain practices and transactions if the activity or transaction in question is subject to other regulation. See S.C. Code Ann. § 39-5-40 (1985) (explaining the UTPA expressly exempts certain practices and transactions by providing that it is inapplicable to "[a]ctions or transactions permitted under laws administered by any regulatory body or officer acting under statutory authority of this State or the United States"). The burden of proving an exemption is on the party claiming the exemption. Id.
Appellants moved for a directed verdict and JNOV, asserting that Prepaids fell under the UTPA's industry exemption. The trial court denied the motions, finding Appellants failed to carry their burden of proving the exemption applied. Specifically, the trial court noted it was undisputed that Appellants were not registered to sell securities as broker-dealers, thus explaining the SEC investigation into Appellants' fees that
Appellants now assert the trial court erred in submitting the issue of whether Prepaids were subject to the UTPA to the jury because it is a question of law. We recognize section 35-1-102(29) of the South Carolina Code (Supp. 2014) provides that the definition of a security includes an "investment contract," and that courts in other jurisdictions have held as a matter of law that a Prepaid is a security.
Appellants' own expert, Thorne, testified a Prepaid was not a security. He stated no sale occurred on the date the Prepaid was entered, and he believed the Prepaid was a contract. Furthermore, Fisher's testimony was that a Prepaid and the practice of advising on alternative investments created a gray area in the view of the SEC. Thus, through the testimony of their own witnesses, Appellants put forth evidence that was susceptible to more than one reasonable inference regarding the applicability of the exemption. Therefore, we find no error in the trial court's decision to submit this question to the jury.
We also agree with the trial court that the Approval Letter constitutes further evidence Appellants knowingly misrepresented their efforts and the extent of their review of Maybank's financial situation, which provides additional support for the jury's finding of a UTPA violation. On its face, the letter appeared to specifically address Maybank's needs, explicit goals, and financial concerns, which Maybank testified he discussed with Kapoor, Gibson, and Mahfood. However, the testimony established that in actuality, the Approval Letter was a fill-in-the blank form letter not tailored to any single client. Moreover, the record also includes evidence the Approval Letter condoned a conflict of interest between Maybank's financial interest and Appellants. Accordingly, we affirm the trial court's finding that the Approval Letter is evidence upon which the jury could have found a UTPA violation.
Further, we find the Refund Letter is evidence of a deceptive practice that supports the jury's finding of a UTPA violation. Although the Refund Letter was sent by Appellants after the commencement of litigation, it concerned prior fees charged to Maybank and other clients that were subsequently questioned by the SEC. A reasonable jury could have found the Refund Letter supported Maybank's assertion of deception rather than being a reflection of ostensible corporate values.
As to the impact on the public interest,
Appellants contend the trial court erred in denying their motion for JNOV on Maybank's claim for punitive damages because such damages are barred by the WMA's limitation on liability clause. We agree.
Paragraph F.1 of the WMA states, in pertinent part:
(Emphasis added).
Over Appellants' objection, the question of the enforceability of this clause was submitted to the jury, which awarded $5,000,000 in punitive damages to Maybank. In denying Appellants' motion for JNOV, the trial court held the clause was contrary to public policy and that its enforcement would be unconscionable. Further, the trial court held the clause unenforceable as to the common law causes of action of constructive fraud, breach of fiduciary duty, and negligent misrepresentation because these claims were not included within the scope of the services provided by the WMA. Specifically, the trial court found the parties did not contract for Appellants to make misrepresentations, and the jury found Appellants' actions were "intentional, reckless, and fraudulent."
When a contract is entered into freely and voluntarily, contractual limitations are normally enforced. Ellis v. Taylor, 316 S.C. 245, 248, 449 S.E.2d 487, 488 (1994). This Court has generally upheld limitations of liability and exculpatory clauses, finding they are commercially reasonable. See, e.g., Gladden v. Boykin, 402 S.C. 140, 144-45, 739 S.E.2d 882, 884 (2013)
However, notwithstanding our general acceptance of limitation of liability provisions and exculpatory clauses, the law disfavors such provisions, and courts must strictly construe the language of the provision against the drafter. Pride v. S. Bell Tel. & Tel. Co., 244 S.C. 615, 619, 138 S.E.2d 155, 157 (1964); McCune, 364 S.C. at 248, 612 S.E.2d at 465. Moreover, should a court find the provision violates public policy or is unconscionable, the court may declare the provision unenforceable. Pride, 244 S.C. at 621, 138 S.E.2d at 157. Nevertheless, a court's ultimate duty is confined to interpreting the contractual provisions agreed to by the parties — regardless of their wisdom or folly, apparent unreasonableness, or any failure of the parties to guard their interests carefully. B.L.G. Enters., Inc. v. First Fin. Ins. Co., 334 S.C. 529, 535, 514 S.E.2d 327, 330 (1999).
In determining the public policy of this State, our courts must rely on legislative enactments whenever possible. Gladden, 402 S.C. at 143, 739 S.E.2d at 883. The trial court's sole basis for finding Paragraph F.1 violative of public policy was that the parties were not in an equal bargaining position. Maybank offers no additional legal basis upon which this Court could find the limitation on liability contrary to our public policy. We acknowledge our jurisprudence has stated a
Somewhat similarly, a challenged contractual provision is examined to determine whether it is unconscionable due to both an absence of meaningful choice and oppressive, one-sided terms. Simpson v. MSA of Myrtle Beach, Inc., 373 S.C. 14, 25, 644 S.E.2d 663, 669 (2007). The absence of meaningful choice on the part of one party is generally indicative of a fundamental unfairness of the bargaining process in the contract. Id. In analyzing the absence of meaningful choice, courts should consider, inter alia, the nature of the injuries, any disparity in the parties' bargaining power, the level of sophistication of the parties, whether there is an element of surprise in the challenged clause, and the conspicuousness of the clause. Id.
However, only in rare circumstances has an appellate court invalidated a contract on the basis of unconscionability. For example, our courts have found that numerous one-sided provisions cumulatively impact the oppressive nature of an adhesion contract. See Simpson, 373 S.C. at 36, 644 S.E.2d at 674. Additionally, courts may consider whether the party asserting unconscionability spoke English, had the ability to consult an attorney, or faced other circumstances that made signing the contract in a particular instance grossly inequitable. See Holler v. Holler, 364 S.C. 256, 269-70, 612 S.E.2d 469, 476-77 (Ct. App. 2005) (declaring a prenuptial agreement unconscionable when a Ukrainian woman averred she was forced to sign the agreement because at the time, she was pregnant, did not speak English, and faced immediate deportation unless she married, but she lacked the funds or time to consult an attorney or translator).
Turning next to the scope of the exculpatory clause, the trial court held the clause only applied to "services under the [WMA]," and the common law causes of action did not arise in connection with the services set forth in the WMA. Moreover, the trial court found the jury verdicts of constructive fraud, breach of fiduciary duty, and negligent misrepresentation preclude the enforcement of the clause because these claims arose from Appellants' "intentional, reckless, and fraudulent" conduct.
The cardinal rule of contract interpretation is to ascertain and give legal effect to the parties' intentions as determined by the contract language. Schulmeyer v. State Farm Fire & Cas. Co., 353 S.C. 491, 495, 579 S.E.2d 132, 134 (2003). When the contract's language is clear and unambiguous, the language alone determines its force and effect. Id. A contract must be read as a whole document such that litigants may not create an ambiguity by pointing to a single sentence or clause. Id.
We find the WMA governs all aspects of the investment relationship between Maybank and Appellants, and the common law causes of action are subject to the limitations contained in Paragraph F.1. The trial court erred in relying solely on the services listed in the WMA and ignoring the language of the Addendum and Prepaids. Under general contract rules and plain language, these documents must be read as a whole because they all concerned one course of conduct: Appellants' investment advice. See Reyhani v. Stone Creek Cove Condo. II Horizontal Prop. Regime, 329 S.C. 206, 212, 494 S.E.2d 465,
We also disagree with the trial court's finding that the jury verdicts of constructive fraud, breach of fiduciary duty, and negligent misrepresentation preclude the enforcement of the clause because these claims arose from Appellants' "intentional, reckless, and fraudulent" conduct. It is true that contracts may be avoided based on fraud. Metro. Life Ins. Co. v. Stuckey, 194 S.C. 469, 470, 10 S.E.2d 3, 5 (1940). We further recognize other jurisdictions have refused to enforce limitations on liability where actual fraud is involved.
In general, we refuse to enforce contracts based on fraudulent conduct because a party should not retain the benefits of an agreement that he knowingly and intentionally entered into though deceptive means. Regions Bank v. Schmauch, 354 S.C. 648, 672, 582 S.E.2d 432, 444 (Ct. App. 2003). Moreover, beyond the patent unfairness inherent in enforcing a contract induced through intentional fraud, giving legal effect to such a contract violates a fundamental principle of contract law: there must be a meeting of the minds. By its
Accordingly, we find the trial court erred in failing to grant JNOV to Appellants on the award of punitive damages based on the limitation of liability clause found in the WMA. Thus, because Appellants are not subject to punitive damages, we need not address the Appellants' argument that Maybank must elect between the allegedly inconsistent portions of the jury's award. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (declining to address remaining issues when decision regarding a prior issue is dispositive).
Appellants contend the trial court erred in trebling damages because the WMA limits Maybank's recovery of statutory treble damages under the UTPA, and their alleged conduct did not constitute "willful or knowing" violations of the UTPA. Appellants further argue there is no evidence they knew or should have known their conduct violated the UTPA. We disagree.
The UTPA provides for treble damages upon a finding of a willful violation of the Act. See S.C. Code Ann. § 39-5-140(a) (Supp. 2014). A willful violation is defined by statute as occurring "when the party committing the violation knew or should have known that his conduct was a violation of [the UTPA]." S.C. Code Ann. § 39-5-140(d). Thus, if a person of ordinary prudence who was engaged in trade or commerce could have ascertained that his conduct violated the UTPA, such conduct is willful within the meaning of the statute. Wright v. Craft, 372 S.C. 1, 23-24, 640 S.E.2d 486, 498 (Ct. App. 2006).
We find the evidence in the record supports the trial court's decision to treble damages. As previously discussed, the trial court found Appellants violated the UTPA based on the WMA, the Approval Letter, and the Refund Letter. We find this conclusion is clearly supported by the record. For example, numerous witnesses testified Appellants knew they could not fulfill the terms of the WMA. Further, the Refund Letter was portrayed to the jury as being disingenuous in its stated laudatory purpose, and the Approval Letter, though seemingly tailored specifically to Maybank, was a mere fill-in-the-blank form letter. Therefore, we find evidence exists to uphold the trial court's decision to treble the damages under the UTPA.
Appellants argue the trial court erred in concluding eighty percent of the attorneys' fees and costs were attributable to the UTPA claim. Appellants challenge the award of fees and costs on multiple bases, including the sufficiency of documentation, reasonableness, the validity of the enhancement of the award through the lodestar multiplier, and the use of witness fees and deposition expenses. We disagree.
The decision to award or deny attorneys' fees and costs will not be disturbed on appeal absent an abuse of
Generally, attorneys' fees and costs are not recoverable unless authorized by contract or statute. Blumberg v. Nealco, Inc., 310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993). The UTPA permits a successful plaintiff to recover reasonable attorneys' fees and costs. S.C. Code Ann. § 39-5-140(a) ("Upon the finding by the court of a violation of this article, the court shall award to the person bringing such action under this section reasonable attorney's fees and costs.").
Appellants argue the affidavit of attorneys' fees and costs submitted by Maybank's counsel was inadequate and lacked the necessary detail that would enable Appellants to respond. They suggest Maybank failed to provide detailed billing statements to identify how the billed hours correlated to the claims alleged, especially since Maybank prevailed on only five of his eleven claims, and the Trust lost on all its claims. Moreover, Appellants suggest the insufficiency in the billing statements make it difficult to ascertain and delineate the work completed in furtherance of the UTPA claim — which is the only claim upon which attorneys' fees and costs may be awarded.
We find all of Maybank's claims shared the same common facts and required combined efforts throughout the litigation process. The trial court's reduction of fees by twenty percent accounts for a distinction in the claims and the time allotted to defend claims unrelated to the UTPA. We find this to be a reasonable estimation. Cf. Haley Nursery Co. v. Forrest, 298 S.C. 520, 524, 381 S.E.2d 906, 909 (1989) (finding a reduction in fees and costs reflected that the fees and costs sought were not solely from the UTPA action).
We turn next to the calculation of determining reasonable attorneys' fees under the UTPA and the trial court's application of the lodestar multiplier. "A lodestar figure is designed to reflect the reasonable time and effort involved in litigating a case, and is calculated by multiplying a reasonable hourly rate by the reasonable time expended."
Here, the trial court's order awarding $2,654,295 in attorneys' fees based on the lodestar multiplier is detailed and contains a thorough discussion of the Jackson factors used to determine reasonable attorneys' fees. This matter was heavily litigated for several years, involved thirty-two depositions, and produced more than 60,000 pages of documentation. Moreover, there were numerous motions filed by Appellants, including ten separate motions for summary judgment and seven motions in limine. This case took a tremendous amount of time and effort by experienced counsel, which garnered beneficial results for Maybank on five causes of action. We find the trial court's finding of the base attorney fee award of $1,769,530 was proper, along with applying the 1.5 multiplier to reach $2,654,295. Moreover, we agree with the trial court that Maybank achieved a successful result in this very complex case. Finally, the excellent business court judge who tried this case was involved in this matter from the time the federal court remanded the case through the post-trial motions, a period of twenty-one months. Thus, we find the judge acted within his discretion in awarding attorneys' fees and applying the lodestar multiplier.
The trial court also awarded $245,011 in costs to Maybank. Appellants claim error in allowing Maybank to be awarded costs not specifically statutorily authorized, such as expert witness fees and unnecessary deposition expenses. Appellants contend a party "must be able to point to some statute which allows him [to recover specific costs]," which Maybank is unable to do. See Oliver v. S.C. Dep't of Highways & Pub. Transp., 309 S.C. 313, 318, 422 S.E.2d 128, 131 (1992). There, the plaintiff sought recovery of costs pursuant to section 15-37-40 of the South Carolina Code (2005), a general statute
However, this case is distinguishable from Oliver because the UTPA expressly allows for "reasonable costs" arising from litigation. S.C. Code Ann. § 39-5-140. The term "reasonable costs" is undefined. Nonetheless, this Court has previously upheld the award of costs for expert witness fees based on reasonableness. See Lewis v. Lewis, 392 S.C. 381, 394, 709 S.E.2d 650, 656-57 (2011) (upholding the family court's award of expert witness fees in the amount of $23,066.25); Peirson v. Calhoun, 308 S.C. 246, 255, 417 S.E.2d 604, 609 (Ct. App. 1992) (finding the trial court had authority under Rule 26(b)(4)(C) to order the deposing party to pay a reasonable expert witness fee). We therefore believe costs arising from UTPA litigation should be treated in the same manner, and may include expert witness fees. See Hale v. Basin Motor Co., 110 N.M. 314, 795 P.2d 1006, 1013 (1990) (holding costs in unfair trade practice litigation should not be treated any differently from other litigation); see also Trimper v. City of Norfolk, 58 F.3d 68, 75 (4th Cir. 1995) (explaining litigation costs include litigation expenses such as secretarial costs, copying, telephone costs, and necessary travel). Based on the standard of review and the evidence in the record, it was well within the trial court's discretion to grant Maybank costs. Accordingly, we affirm the trial court's award of attorneys' fees and costs.
Turning now to the cross-appeal, Maybank contends the trial court erred in failing to award him statutory prejudgment interest on the jury's actual damages. We disagree and affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: S.C. Code Ann. § 34-31-20(A) (Supp. 2014) ("In all cases of accounts stated and in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law, the legal interest shall be at the rate of eight and three-fourths percent per annum."); Historic Charleston Holdings, L.L.C. v. Mallon, 381 S.C. 417, 435-36, 673 S.E.2d 448, 457-58 (2009) ("The trial court's decision whether to award prejudgment interest will not be disturbed on appeal
As set forth above, we reverse the award of punitive damages based on the limitation of liability clause. As a result, we decline to address the election of remedies issue, and affirm on all other grounds.
Acting Justices James E. Lockemy, Jasper M. Cureton, Clifton Newman and William H. Seals, Jr., concur.
