THE STATE OF SOUTH CAROLINA In The Supreme Court

Francis P. Maybank and Jane H.P. Maybank, as trustee for the Francis P. Maybank Family Insurance Trust, Plaintiffs,

Of whom Francis P. Maybank is the Respondent/Appellant,

v.

BB&T Corporation, Branch Banking and Trust Company, Successor in mer ger to Branch Banking and Trust Company of SC, and St erling Capital Management, LLC, Successor in merger to BB&T Asset Management, LLC, Appellants/Respondents.

Appellate Case No. 2014-002638

Appeal from Greenville County

The Honorable Edward W. Mill er, Circuit Court Judge

Opinion No. 27640 Heard November 3, 2015 – Filed June 3, 2016

AFFIRMED IN PART AND REVERSED IN PART

C. Mitchell Brown, D. Larry Kristinik, Brian P. Crotty, Michael J. Anzelmo, all of Columbia, and William S. Brown, of Greenville, all of Nelson Mullins Riley and Scarborough, LLP, for Appellants/Respondents.

Mitchell Willoughby, John M.S. Hoefer, Tracey C. Green, Chad N. Johnston, all of Willoughby and Hoefer, P.A., of Columbia, and Bruce W. Bannister, of Bannister,Wyatt and Stalvey, LLC, of Greenville, for Respondent/Appellant.

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 A ct (UTPA). Maybank brought this action allegi ng he received faulty investm ent advice from Branch Banking and Trust (BB&T) Company (the Bank) through BB&T Wealth Management (Wealth Management) a nd BB&T Asset Management (Asset Management), all opera ting under the corporate umbrella of BB&T Corporation (collectively, Appellants). Appellants appeal on numerous grou nds, and Maybank appeals the trial court's denial of prejudgment interest. We a ffirm in part and reverse in part.

FACTUAL/PROCEDUR AL BACKGROUND

I. BACKGROUND

Because of the numerous BB&T entities involved and their intert wined relationships, we begin by briefly highlighting the role of eac h Appellant. The Bank is a subsidiary of BB&T Corporation and is its largest ass et—comprising ninety-eight percent of the cor poration's holdings. The Bank o ffers traditional banking services along with insurance, trust, and wealth manage ment services. Wealth Management oversees finan cial portfolios, keeping abreas t of clients' financial situations, needs, a nd risks. Asset Management, an i ndependent corporate entity, through investme nt advisors or brokers, makes recommendations about investment strategies and products as well as assists clients in entering investments with third parties.

In 1999, the Bank offered well- established commercial middle-ma rket 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 corpo rate finance, equity underwriting and distri bution, and advisory services.

The Bank continued to follow an expansion strategy, and in 2001 , it became interested in acquiring Southeas tern Trust Company (Southeastern), an independent investment firm with offices in Greenville, Columbia, Charleston, and Anderson, which had been founded by Maybank. Southeastern serve d as thetrustee or personal representative for clients' wills and trusts in addition to acting as investment manager and advisor to individuals, companies, and p rofit-sharing

trusts.

Raised in South Carolina, Maybank graduated from Harvard Univer sity and moved to New York City in 1957 to work for Fiduciary Trust Comp any. He later operated his own trust firm on Wa ll Street for many years, retu rning to South

Carolina in 1989 to found Southeastern. In November 2001, Maybank sold his

interest in Southeastern to th e 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 Depar tment with a five-year employm ent contract and an annual salary of $100,000. His duties included promoting th e 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 h is brokerage account with Scott & Stringfellow. This allowed him to defer t he tax liability and to enjoy annual dividends of approximately $400,000.

In 2004, the Bank created Wealth M anagement, which included the Trust Department in which Maybank worked . The former Southeastern cl ients who

transferred to the Bank's Trust Department became Wealth Manage ment clients. Around the same time, the Bank, t hrough Asset Management, began to market "alternative investment strategie s" to clients with substantial net worth and highly concentrated stock positions.

In order to effectuate these alte rnative investment strategies, clients executed a wealth management agreement (WMA), establishing a contractual relationship

between the Bank and Asset Mana gement. Under the WMA, the Bank served as the advisor for the designated assets and thereby had the abili ty to advise and provide professional guidance on available BB&T products. Weal th 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 a s the account's investment adv isor. Under its terms, the Bank had total discretion to invest in securities from the Wealth Management portfolio. 1

1 Although Wealth Management portfolio advisors were neither tra ined norOne of the new strategies touted by the Bank and Asset Manageme nt 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 in vestment bank for an upfront p ayment of approximately seventy-five to ninety percent of its value. Sig nificantly, title to the stock is not transferred for two to three years, thereby deferr ing capital gains taxes and allowing the customer to receive dividends and the benefit of appreciation. A Prepaid provides four meaningful benefits for its holder: (1) p rotection against a collapse of the stock, (2) immedi ate liquidity, (3) an opportun ity to partially participate in future gains, and (4) an opportunity to receive dividends. 2

In mid-2006, Maybank attended a m eeting between a long-time cli ent of his and representatives from Wealth M anagement 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 f or Asset Management to address proceeds in the event the client decided to purchase a Prepaid. Anthony Mahfoo d, a Wealth Management advisor, was also pr esent. Although Maybank had pre vious knowledge about Prepaids through wr itten presentations circulat ed within BB&T, it was this meeting that piqued Maybank's personal interest in this alternative investment product.

licensed to make any trades or investments, they were experienc ed in BB&T's platform investment strategies a nd products. According to Davi d Fisher, head of Wealth Management, a portfolio manager's job was to be an "issu e spotter" so as to identify opportunities and inform clients of potential BB&T pro ducts that could best serve clients' needs. In Fisher's words, portfolio manage rs possessed a general knowledge that was "a mile wide and an inch deep." Asset Management's role was to connect the client to a given product. Essentially, Asset M anagement served as an investment advisor, for which it received compensation, but it neither made the trade nor sold a security. Asset Management served as a middle -man between the client and groups like Scott & Stringfellow, which executed the security

transaction.

2 In addition to fees connected with a Prepaid and any subsequen t rollovers, it is undisputed a Prepaid is a risky strategy and a hedge. It has n o diversification and may not effectively minimize a cl ient's risk—primarily because future dividends could be reduced or eliminated by the company.In light of his concentrated position in BB&T Corporation stoc k, Maybank spoke with Kapoor following the meeting about his interest in e ntering into a Prepaid, along with his investment objectives and risk toleranc e. 3 As of 2006, the 246,000 shares of BB&T stock he had received in 2001 remained i n his brokerage account with Scott & Stringfellow. At Kapoor's recommendation, Maybank communicated with Mahfood, who then asked Shawn Gibson, a membe r of Asset Management's alternative invest ment team, to prepare illustrati ons of the anticipated Prepaid's terms.

In July 2006, Maybank was given a Concentrated Stock Risk Manag ement Addendum (Addendum), which outline d a general description of th e strategies of various single-stock products, including a Prepaid. Also inclu ded within the Addendum was the fee schedule to use the services of "BB&T prof essionals," which explained a "one-time-upf ront advisory fee from your Acco unt, based upon the principal value of the inve stments." The Addendum stated it was an addition to the WMA between the Bank, the a dvisor, and Maybank, even though Maybank had not yet executed a WMA with t he Bank and Asset Management.

On August 11, 2006, Wealth Management presented Maybank with a letter (Approval Letter), which approved Maybank entering into a Prepa id with BB&T. 4 The Approval Letter was written by Mahfood to Patricia Oliver, the Executive Vice President, Secretary, and General Counsel for BB&T Corpora tion, but signed by both Mahfood and Oliver. Express authorization by BB&T Corp oration was necessary because the BB&T Code of Ethics prohibited BB&T emplo yees from using BB&T Corporation stock in any transaction deemed to be sp eculative, including Prepaids. The letter stated "a [Prepaid] may allow M r. Maybank to reduce the risk of his concentrated position in BB&T, while rai sing cash to create a diversified portfolio." It further stated "implementation of t his [Prepaid] will protect Mr. Maybank from an extraordinary reduction in the over all value of his investment portfolio and resulting net worth. It will also hel p him achieve important diversification goals we have discussed throughout the financial planning process." Oliver signed the Approval Letter as Execut ive Vice President, Secretary, and General Counsel f or BB&T Corporation. A handwri tten note under

3 Maybank had significant life expenses at this time, including paying for graduate school and private school for his children and grandchildren, as well as expenses connected with owning two farms, a home in Charleston, and a ho rse-raising

business.

4 Although the Approval Letter us es Maybank's name throughout, a s discussed infra , it is actually a form letter.Oliver's signature stated: "This approval by General Counsel is conditioned on Mr. Maybank not purchasing additional shares of BB&T Corporation un der proceeds from the [Prepaid]."

After being presented with the Approval Letter, Maybank execute d a Prepaid with Bear Stearns—a three-year contract in which Mayban k pledged 220,000 shares of BB&T Corporation stock with a value of $9,318 ,364 in exchange for upfront proceeds o f $7,120,000. The Bank charged Maybank $32,614 for the advice and recommendation to enter into the fir st 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 remai ning $4,650,000 was placed into a Wealth Management portfolio accoun t, notwithstanding the fact that at this point in time the account was still not subject to any WMA.

Subsequently, on August 23, 2006, M aybank entered into a WMA wi th the Bank and Asset Management. The W MA served as the umbrella for the various services BB&T was offering to Ma ybank through Wealth Management and Asset Management. The WMA established the Bank would (1) gather info rmation about the client's investment objectives , risk, financial situation, and needs; (2) make a recommendation to the client; a nd (3) coordinate and supervise the account. The

WMA stated the Bank will do what is in the "best interest" of t he 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 dro pped precipitously as a result of the national financial crisis. Du e to his concentrated stock position, Maybank suffered a considerable loss. Accordin gly, Maybank was

concerned about his income stre am, which had been supplied by t he rather substantial dividends paid by BB &T Corporation stock and tied t o the Prepaid. This concern was further fueled by the fact that the initial Pr epaid would expire in August 2009. Maybank therefore di scussed the expiration of the first Prepaid with Mahfood and Gibson, primarily foc using on whether he should rol l the first Prepaid into a second one.

In January 2009, Appellants assist ed Maybank in the execution o f a second Prepaid with Deutsche Bank, a global investment bank and securi ties trading and brokerage firm. When the trans action was completed, Maybank di scovered 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 divi dendsignificantly. As a result, Maybank received an annual dividend of $230,000, i n contrast to the approximately $400,000 annual dividend he had b een receiving previously.

In August 2010, Maybank requested a meeting with personnel of t he Bank to discuss the significant losses he sustained, which he believed were the result of mismanagement and a failed investment strategy. He met with Fi sher, the head of Wealth Management, and Ross Walters of the Greenville division. At that time, he believed he had been damaged by Appellants' mismanagement in th e amount of $3,500,000. Dissatisfied with Appellants' res ponse, Maybank decided to purs ue legal action.

II. LITIGATION

In December 2011, Maybank filed th is lawsuit against Appellants , alleging numerous causes of action arising from Appellants' financial in vestment advice, including breach of fiduciary duty, breach of contract, neglige nce, 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 retirem ent, he engaged Appellants to develop an investment plan that reflected his goa ls of diversification, steady income, tax sheltering, and the ability to protect his w ealth for his grandchildren through the Franc is P. Maybank Family Life Insurance Trust (the Trust), established in 1993. He contended Appellants' investme nt plans were aggressive, risky, and involved a complex system of derivative trading with BB&T Corporation stock—which he chara cterized as an uncommon investm ent approach for someone seeking financial a dvice for retirement. Maybank a lleged he lost substantial sums of money becaus e of this faulty investment adv ice.

Following the removal of this action to federal district court by Appellants and the subsequent remand, the p arties jointly moved for the ca se to be assigned to the Greenville Business Court (then) Pilot Program. Maybank fi led an amended complaint, which added the Trust as a plaintiff. 5

In November 2012, Maybank receive d a letter from Wealth Managem ent stating he was being refunded for the one-time advisory fee tha t was charged in connection with the services Asset Management had provided for the Prepaids.

5 The jury did not return a verdict on any claims for the Trust, and the Trust did not appeal.The letter (Refund Letter) stated, "Recently, as part of a revi ew of client accounts we discovered that a fee was charged to your account that we wi sh to refund to you. While we are not required to rebate these fees, we choose to do so as a reflection of our corporate values." It also explained, "This fee would not have been charged under our current billing practices." Maybank was returned fees in the total amount of $79,682.19. 6

The Refund Letter did not disclo se that the refund of fees was actually motivated by an inquiry by the Securities and Exchange Commissi on (the SEC) into Asset Management's fee prac tices. At the time of the refu nd, 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 "broke r-esque." Maybank's refund was part of a pproximately $1,000,000 in fees r efunded 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 Corporati on, caused grave financial damage to clients lik e Maybank. He contended he reli ed on Appellants to advise him in their capacity as fiduciaries. Maybank alleged A ppellants willfully and wantonly deceived him. He specifically claimed he relied o n two key documents in trusting Appellants: the Approval Letter and the W MA.

Conversely, Appellants character ized the case as one involving a sophisticated businessman with fifty years in the investment ad visory 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 involveme nt by BB&T. Moreover, according to Appella nts, 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.

6 Because Maybank had tw o Prepaids, he was returned two separate fees.III. EVIDENCE PRESENTED

At trial, Maybank testified that based on his employment with t he Bank, he believed Appellants were respons ible and knowledgeable on both financial matters and fiduciary interests, and consequently, he sought their advi ce and services. He testified he expressly told A ppellants about his financial c oncerns and he

wanted to secure his assets. M aybank contended Appellants repr esented they had special expertise in alternative investment strategies, and the y recommended he enter into a Prepaid as a way to avoid risk, protect his divide nds from his BB&T Corporation stock, address his debt issues, defer his tax liabi lity, and generate cash proceeds. Maybank testified he had no prior experience with or real knowledge of Prepaids. He further testified he relied on the advice of Appe llants as his fiduciaries because his prior experience had been in the limite d capacity of managing trusts and investments like stocks and bonds, not in t he areas of options or other derivative products.

Maybank also presented the video deposition testimony of Walter s, head of Greenville's Wealth Management di vision, who stated that while he held a Series 7

broker license and Series 24 broke r license, and although he ha d general knowledge as an investment broker, he did not have the training or expertise to provide advice or make recommendations about any particular inv estment strategy. Walters further agreed he did not know how to advise a client w ith a concentrated stock position. Moreover, he adm itted he did not have the know ledge or experience to inform a client how to assemble a well-managed an d balanced portfolio.

Maybank introduced the Approval Le tter to demonstrate the selli ng points used by BB&T for the strategies and representations made to him . Maybank testified he relied on the Appr oval Letter in deciding to enter into the first Prepaid

in 2006. He further stated he be lieved Appellants had thoroughly researched the financial products and determined a Prepaid was best for his sp ecific situation, as outlined in the Approval Letter. M aybank 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 May bank's situation, which stated analysis and review had been done for the customer whose name was

then filled into a blank.Maybank also submitted the WMA as evidence of the expansion of the Bank's fiduciary role with Mayba nk through Wealth Management an d Asset Management. Maybank put forth evi dence Wealth Management never intended to fulfill—and could not fulfill—the duties and obligations outlin ed in the WMA. For example, Walters's deposition testimony revealed that Wealt h Management did not gather the information required under the WMA. Further, he testified Wealth Management did not advise; rather, that service was provided by Asset Management based on the Bank's po licies and procedures. Walters also testified

he believed someone within the Bank or Asset Management would h ave addressed the duties and obligations outlined in the WMA.

Maybank also established, through the deposition testimony of W alters, that the Bank knew at the time Maybank entered into the WMA that the contract contained errors, misstatements, and deliberate misrepresentati ons. 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 k nown Asset Management handled that portion of the advising and the transac tion. He stated it was Maybank's job to know such in formation and if he did not, h e was "incompetent." Walters testified he believed the contract was fulfilled in principle. He claimed the errors in the WMA were the result of an "oversig ht on our attorneys' part."

Maybank entered the Refund Letter in to evidence to further his theory Appellants engaged in unfair and deceptive business practices. Appellants' representatives testified repeat edly the Refund Letter was indi cative 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 J ohn Freeman, Dr. Craig McCann, and Dr. Oliver Wood. Their testimony covered the topics of fiduciary relationships, securities, and damages.

In their defense, Appellants pain ted a markedly different pictu re. They concentrated on Maybank's profe ssional experience, the fact he was informed and aware of the contracts he was entering, and their theory that Prepaids were the only option for Maybank based on his fi nancial circumstances. Appel lants also focused extensively on the role Wealth Management and Asset Management employees played in the execution of the services rendered.Testimony by the Bank's employees suggested Maybank was not ope n to advice and was set in his ways. For example, Kapoor explained that during his meeting to discuss Maybank's goals and overall financial situat ion, he realized Maybank was a "100 percent equity guy" who preferred stocks. K apoor acknowledged that a more diversified portfolio would have been a better option for Maybank, and they discussed the importance of diversification m ultiple times. A personal trust specialist for Wea lth Management and a former em ployee of Southeastern testified that May bank's financial philosophy over the years was "all equities." Gibson testified he generally r emembered Maybank being involved in conversations about how to guide the transaction and how it wou ld be structured. He also stated Maybank never in dicated he was giving complete d iscretion to Appellants to determine how best to handle his concentrated sto ck position.

Appellants additionally put forth evidence and testimony Mayban k was fully informed about the contracts he entered. They submitted into e vidence extensive documentation provided to Maybank in his capacity as a client a nd in his role as a wealth management advisor. For example, Appellants entered int o evidence sales presentations and materials on a lternative investments and Prep aids given to Wealth Management and Asset Management employees. This evidenc e was used by Appellants to support their argument of Maybank's knowledge, but on crossexamination, Maybank's counsel us ed the evidence to support May bank's contention the advisors possess ed inadequate information on Pre paids. The jury also heard from multiple employees who testified they were not allowed to provide investment advice. Additionally, Appellants presented testimon y 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.

To refute Maybank's reliance on the Approval Letter, Mahfood te stified he

believed the letter was a necessa ry part of the paperwork requi red to execute the recommended strategy because Maybank was an employee of the Ban k and held concentrated stock in BB&T Corporation. Mahfood acknowledged he did not conduct any analysis to confirm a ny of the promises or represen tations made in the letter even though he signed it. This was supported by Kapoor' s testimony that wealth advisors were not authorized to make any recommendations to Maybank. Mahfood explained he would have spoken up if something appeared "out of whack." Subsequently, Mahfood te stified he did not analyze or formally review Maybank's file. Similarly, Walte rs explained at trial he could not provide

investment advice.In addressing the obligations of the WMA, Walters testified at trial that the Bank had the responsibility of g athering information about a cl ient's investment objective and risk tolerance, making a recommendation to the cl ient regarding an investment program, and supervising the services of the investm ent advisor. He stated that each obligation of the WMA was fulfilled by either the Bank or Kapoor of Asset Management. On cross-ex amination, however, Walters co nceded the WMA stated "the [B]ank shall" perform the three responsibilitie s outlined in the WMA, not Asset Management. Further, he agreed the responsibili ties were not completed by the Bank nor could t hey be completed by the Bank.

Appellants suggested Maybank's onl y viable option was to enter into a Prepaid because he was living beyond his means. They emphasize d 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 Cor poration stock, which was invested at Scott & Stringfellow. 7 Because Gibson admitted he did not have an independent reco llection of his discussion with Maybank, he

testified he assumed he would ha ve believed a Prepaid was a goo d strategy for Maybank.

Appellants' financial expert, Robert Thorne, testified that as of July 2006, Maybank would have been in a "predicament" if he sold his stock because it was trading extremely low and he would have faced significant capit al gains taxes.

Thorne further stated that if Maybank sold the stock, he would lose the dividend, which was providing an annual in come of $400,000. Therefore, i t was Thorne's opinion that taking a "hedge" on a Prepaid was Maybank's best o ption.

Because of the securities viola tion claim, Appellants devoted c onsiderable effort in discovery and at trial to establish their employees d id not advise Maybank or sell securities. Paul Merolla, an employee of Asset Managem ent, testified that Asset Management and its employ ees did not buy and sell securit ies for its clients

or for its own accounts. He furt her testified Asset Management was "simply advising Maybank as to managing his asset pool." The actual sa le was done by a myriad of separate companies. In Maybank's particular circumst ance, 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.

7 Evidence was introduced that th is debt was related to outstand ing business debt

from Southeastern.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] hav e not presented any evidence that BB&T Corporation o ffered 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, Appel lants' counsel argued that because a Prepaid was a security, the securities ex emption in the UTPA controlled. Maybank and the Trust voluntarily dismissed the cl aims for negligence

and fraud. The trial court de nied Appellants' motions.

IV. VERDICT

The jury returned a verdict in favor of Maybank and against all Appellants on five claims: (1) breach of c ontract, (2) breach of fiduciary duty, (3) violation of the UTPA, (4) constructive fraud, and (5) negligent misrepresen tation. 8 The jury returned a verdict in favor of Appellants on all other claims, including the securities claim. The jury awarded Maybank $3,100,000 in actua l damages and $5,000,000 in punitive damages against all Appellants.

Appellants then moved for judgment notwithstanding the verdict (JNOV) on forty grounds and for a new trial absolute or, in the alternati ve, for a new trial nisi

remittitur . Appellants also filed a motion to compel an election of reme dies. Maybank filed motions for attorneys' fees and costs and to treb le damages under the UTPA. Appellants opposed the motions and filed three motio ns directed to Maybank's requests for additi onal UTPA remedies.

The trial court denied all of Appellants' motions. The trial c ourt found the jury's punitive damages award of $5,000,000 was appropriate. F urther, the trial court found the evidence supported the jury's conclusion a viol ation 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 aw ard of actual damages from $3,100,000 to $9,300, 000. Further, the trial cour t granted Maybank's motion for attorneys' fees and costs under the lodest ar analysis, 9

8 Significantly, the trial court used the verdict form created b y Appellants with

minimal modifications.

9 The lodestar analysis "is designed to reflect the reasonable time and effort involved in litigating a case, a nd is calculated by multiplying a reasonable hourly rate by the reasonable time expended." S.C. Dep't of Transp. v. Revels , 411 S.C. 1,reducing the request by twenty percent and awarding attorneys' fees of $2,654,295 and costs of $245,011. Appellan ts' motion for an election of r emedies was denied because the trial court found the evidence supporting the UTPA verdict was

distinct from the conduct suppor ting the common law causes of a ction for which punitive damages were awarded. T hus, the trial court entered a judgment for $17,199,306 against all Appellant s. Finally, the trial court d enied Maybank's motion for prejudgment interest.

Appellants filed a motion to alter or amend judgment, which the trial court denied, and Appellants and Mayba nk appealed. This Court certif ied the appeal pursuant to Rule 204(b), SCACR.

ISSUES PRESENTED 10

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 qualif ication to testify as to the Prepaids.

III. Whether the trial court erred in denying Appellants' motions fo r JNOV as to the UTPA, breach of fiduciary du ty, breach of contract, neglige nt misrepresentation and construc tive fraud, speculative damages, the statute of limitations, and punitive damages.

IV. Whether the trial court erred in trebling the actual damages un der the UTPA.

V. Whether the trial court abused its discretion in awarding attor neys' fees and costs to Maybank under the UTPA.

VI. Whether the trial court erred in denying Maybank's motion for p rejudgment

interest.

5, 766 S.E.2d 700, 702 (2014) (quoting Layman v. State , 376 S.C. 434, 457, 658 S.E.2d 320, 332 (2008)).

10 Appellants raised ten issues on appeal with numerous subparts which we have

condensed to these six issues.LAW/ANALYSIS

I. PERSONAL JURISDICTION

Appellants argue the trial court lacked personal jurisdiction o ver BB&T Corporation and therefore the claims against it should be dismi ssed. Specifically, they contend BB&T Corporation is a North Carolina corporation w ith 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 custome rs. As such, they assert finding personal jurisdiction was improper, as South Car olina courts have no authority to enforce a decision over an out-of-state business w ith no significant ties

to the State. Because we find BB& T Corporation waived its righ t 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 enforc e a decision over the parties of a lawsuit . Limehouse v. Hulsey , 404 S.C. 93, 104, 744 S.E.2d 566, 572 (2013). Personal jurisdiction over a nonresident is resolv ed upon the facts of

each case. State v. NV Sumatra Tobacco Trading, Co. , 379 S.C. 81, 88, 666 S.E.2d 218, 221 (2008).

Maybank argued BB&T Corporation waived its right to assert a pe rsonal jurisdiction defense because it failed to timely contest person al jurisdiction in a motion to dismiss and actively participated in litigation for m ore than one year. The trial court agreed, finding BB&T Corporation waived persona l jurisdiction in failing to argue their motion until a month before trial. Alte rnatively, the trial court found there was sufficient evidence to invoke personal ju risdiction over BB&T Corporation.

Rule 12(h)(1), SCRCP, provides a defense is waived if "it is ne ither made by motion under this rule or included in a responsive pleading or an amendment." No South Carolina case has squarely addressed whether personal jur isdiction is waived if a party continues to participate in litigation after challen ging 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 Cou rt looks for guidance to cases interpreting the federal rules. Gardner v. Newsome ChevroletBuick, Inc. , 304 S.C. 328, 330, 404 S.E.2d 200, 201 (1991).A number of federal courts have determined "a delay in challeng ing personal jurisdiction by motion to dismiss may result in waiver, even wh ere the defense was asserted in a timely answer.'" Hamilton v. Atlas Turner, Inc. , 197 F.3d 58, 60 (2d Cir. 1999) (citation omitted) (in ternal quotation and alteratio n marks omitted); see also Peterson v. Highland Music, Inc. , 140 F.3d 1313, 1318 (9th Cir. 1998) ("Rule 12(h)(1)[, FRCP,] specifies the m inimum 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 o f personal jurisdiction defens e 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 do es not preclude waiver by implication.'" (quoting Marquest Med. Prods. v. EMDE Corp. , 496 F. Supp. 1242, 1245 n.1 (D. Col. 1980))).

Considerable pretrial activity occurred in this case. BB&T Co rporation timely answered and addressed pe rsonal jurisdiction by stating it "reserve[d] its objection based on the Court's lack of in personam jurisdiction." Following this reservation, BB&T Corporation di d not wait for the trial court to rule whether it could properly exercise personal jurisdiction over BB&T Corpora tion. Rather, BB&T Corporation, along with the other Appellants, removed the case to federal court. During this time, BB&T Co rporation further engaged in t he litigation by filing an amended answer to Mayba nk's amended complaint, filing a corporate disclosure, opposing remand, and opposing a motion for attorney s' fees.

Moreover, following the federal court's remand to state court, BB&T Corporation continued to parti cipate in litigation and discover y, 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 i ts active participation in the extensive d iscovery leading up to trial, B B&T Corporation

reasserted this defense a mere o ne month prior to the start of trial.

In our opinion, BB&T Corporation gambled that it could argue pe rsonal jurisdiction on the eve of trial after actively participating i n litigation over the course of two and a half years. After considering the circumst ances of this case, we find BB&T Corporation waived any possible personal jurisdict ion defense, and

it was well within the trial court's discretion to find BB&T Co rporation waived its personal jurisdiction defense.II. EXPERT QUALIFICATION

Appellants argue the trial court erred in permitting Freeman to testify as an expert witness with respect to Pre paids because he had no prior experience with Prepaids and only posse ssed a general knowle dge 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 absen t an abuse of

discretion. Fields v. J. Haynes Waters Builders, Inc. , 376 S.C. 545, 555, 658 S.E.2d 80, 85 (2008). An abuse of discretion occurs when the d ecision of the trial court is unsupported by the evidence or controlled by an error of law. Ledford v. Pa. Life Ins. Co. , 267 S.C. 671, 675, 230 S.E.2d 900, 902 (1976). A trial court 's ruling on the admissibility of an expert's testimony constitute s an abuse of discretion when the ruling is manifestly arbitrary, unreasonabl e, or unfair. Fields

v. Reg'l Med. Ctr. Orangeburg , 363 S.C. 19, 25–26, 609 S .E.2d 506, 509 (2005).

To warrant reversal based on the admission or exclusion of evid ence, the appellant must prove both the error in t he ruling and resulting prejudice

. Id

.

Under Rule 702, SCRE, a witness can be qualified as an expert i f the witness has "specialized knowledge [that] will assist the trier of fact to understand the

evidence or to determine a fact i n issue." In determining a wi tness'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 expe rt in the field of finance to testify as to the proper conduct for financial advisors, planning professiona ls, and trustees. Prior to Appellants' objection, Freeman testified he had served as an investment advisor, a securities arbitrator, and a law school professor te aching on securities regulation, corporations, agency, and white collar crime. On d irect examination during voir dire, Freeman stated that in preparing to give his opinions about investment products, he had conduc ted his own research by readi ng articles on Prepaids, reviewing sales litera ture, and speaking to Maybank a nd McCann.

On cross-examination during voir dire, Freeman conceded his act ual experience with Prepaids was limited in that he had never advis ed 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 anyarticles or other materials on Prepaids. However, Freeman stat ed his lack of experience was consistent with h is opinion that Prepaids were n ot viable long-term

investments.

Given our deferential standard of review, we find there is evid ence to support the trial court's decision to qualify Freeman as an exp ert witness. Freeman had experience with securities a nd alternative investments stra tegies, 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 expe rt unqualified when he admitted he had no knowledge, skill, experience, tra ining, or education specifically related to cruise control systems). Accordingly, we affirm the trial court in qu alifying Freeman as

an expert. 11

III. JNOV MOTIONS 12

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 b y viewing the evidence and all reasonable inferences in the light most favora ble 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 dire cted 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 grant ed only if no

11 Moreover, we find Freeman's testimony did not prejudice Appellants. Appellants extensively cross-examined Freeman on his experience and qualifications. Additionally, Freeman's testimony was cumulati ve to that of McCann, who testified extensively concerning the unsuitability of Prepaids without objection from Appellants. Therefore, even if we were to hold that Freeman's testimony was admitted in error, reversal would not b e warranted. See Austin v. Stokes-Craven Holding Corp. , 387 S.C. 22, 41, 691 S.E.2d 135, 145 (2010) (finding that even if the trial court erred in qualifyin g the expert witness, there was no prejudice because witness's testimony was cumulati ve to other testimony).

12 In addition to the challenges discussed in detail below, Appel lants argue the trial court erred in failing to grant their motion for JNOV on the cl aims for breach of fiduciary duty, breach of contract , negligent misrepresentation , constructive fraud, speculative damages, and the statute of limitations. Because w e find ample evidence in the record supporti ng the jury's verdict on each of those claims, we affirm them pursuant to Rule 220, SCACR.reasonable jury could have reach ed the challenged verdict." Gastineau v. Murphy

, 331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998). In deciding suc h motions, neither the trial court nor the appellate court has the authority to de cide credibility issues or to resolve conflicts in the testimony or the evidence. Welch v. Epstein , 342 S.C. 279, 300, 536 S.E.2d 408, 419 (2000).

A. UTPA

Appellants argue the trial court erred in failing to grant JNOV because Prepaids are exempt from the UTPA as a matter of law, and there fore, the trial court erred in submitting the question to the jury and in uphol ding 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. § 39-5-2 0(a) (1985). "To recover in an action under the UTPA, the plaintiff must show: (1) the defendant engaged in an unfair or deceptiv e act in the conduct of trade o r commerce; (2) the unfair or deceptive act affected public interest; and (3) the p laintiff 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 pr actices 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 perm itted 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 exempti on is on the party claiming the exemption. Id.

Appellants moved for a directed verdict and JNOV, asserting tha t Prepaids fell under the UTPA's industry exemption. The trial court deni ed the motions, finding Appellants failed to carry their burden of proving the exemption applied. Specifically, the trial court noted it was undisputed that Appe llants were not registered to sell securities as broker-dealers, thus explainin g the SEC investigation into Appellants' fees that appeared to be "broker-esque." More over, the trial court found Appellants presented no evidence that Prepaids were a reg istered security or initial public offering that was regulated by another administr ative body.Appellants now assert the trial court erred in submitting the i ssue of whether Prepaids were subject to the UTPA to the jury because it is a q uestion 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. 13 Nevertheless, we find the trial court correctly submitted the issue to the jury based

on the alternative theories o f relief posited by Maybank and ba sed on Appellants' position at trial that they were not subject to the Securities Act, and that they did

not effectuate transactions and sell securities.

Appellants' own expert, Thorne, testified a Prepaid was not a s ecurity. He stated no sale occurred on the date the Prepaid was entered, an d he believed the Prepaid was a contract. Furthermore, Fisher's testimony was th at a Prepaid and the practice of advising on alternative investments created a gray area in the view of the SEC. Thus, through the tes timony of their own witnesses, A ppellants put forth evidence that was susceptible to more than one reasonable infer ence regarding the applicability of the exemption. Therefore, we find no error in the trial court 's decision to submit this question to the jury. 14

13 See, e.g.

, Chechele v. Sperling , 758 F.3d 463, 471 (2d Cir. 2014) (explaining a Prepaid transaction was a sale o f stock and qualified as the sa le of an underlying security); Anschutz Co. v. Comm'r , 664 F.3d 313, 326 (10th Cir. 2011) (finding the entry into a Prepaid established a security interest).

14 Maybank additionally challenges Appellants' argument on this i ssue based on waiver, issue preservation, and collateral estoppel. First, Ma ybank argues that because Appellants suggested the j ury charge and consequently d id not object to it, the issue is unpreserved. Normally, a party is required to obj ect to the opposing party's suggested charge to preserve the matter for appeal. Creech v. S.C. Wildlife & Marine Res. Dep't , 328 S.C. 24, 36, 491 S.E.2d 571, 577 (1997). However, we find the facts here are easily distinguishable. Following the denial of their motion for directed verdict as to the UTPA claim, Appellants offered a charge on this issue. We decline to hold that this trial strategy, which amou nts to Appellants simply playing the hand they were dealt, somehow precludes Appe llants from arguing this issue on appeal. We also reject Maybank's argumen ts this issue is unpreserved or Appellants should be estopped from arguing they were involved in

securities-related conduct becaus e Appellants consistently argu ed they did not participate in the sale of the Prepaid. Appellants were placed in the position of defending numerous causes of action, some of which were arguabl y inconsistent

with others. We therefore disa gree a procedural bar precludes this Court from reaching the merits of whether the motion for JNOV should have been granted asWe also find sufficient evidence in the record to support the j ury's finding of a UTPA violation. In responding to Appellants' post-trial motions, the trial court cited three specific instances in which the jury could have fou nd Appellants liable for violating the UTPA: the WMA, the Approval Letter, and the R efund Letter. We agree with the trial court the WMA constitutes evidence upon which a jury could conclude Appellants violated the UTPA. Cf. Elam , 361 S.C. at 27–28, 602 S.E.2d at 782 (stating that in reviewing a trial court's ruling denying a motion for JNOV, appellate courts must view the evidence and all reasonabl e inferences in the light most favorable to the nonmoving party, and may only rever se the trial court if there is no evidence to support its decision); Curcio v. Caterpillar, Inc. , 355 S.C. 316, 320, 585 S.E.2d 272, 274 (2003) ("In considering a JNOV, t he trial judge is

concerned with the existence of evidence, not its weight."). F or example, Walters testified Appellants knew the WM A presented to Maybank containe d misrepresentations, and Appellants could not fulfill the three stated promises outlined in it. While Appellants put forth evidence the obliga tions of the WMA were fulfilled, testimony was in troduced that Appellants knew f or more than three years this document was incorrect to the extent it outlined the duties that would be performed as promised by Wealth Management. Cf. Curcio , 355 S.C. at 320, 585 S.E.2d at 274 ("When considering a JNOV, neither an appellate c ourt, nor the trial court has authority to decide credibility issues or to resolve conflicts in the testimony or the evidence." (citation omitted) (internal quotat ion and alteration marks omitted)). Further, the policies and procedures of the B ank expressly prohibited Maybank's portfolio a dvisors from performing the ver y duties the Bank promised it would provide for him. Moreover, both Fisher and W alters admitted Appellants did not notify Maybank or any customer that the prom ises made through the WMA would not be fulfilled. As such, we affirm the trial court 's finding that the WMA constitutes evidence upon which the jury could have found a

UTPA violation.

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. Howev er, the testimony established that in actuality, the Approval Letter was a fill-i n-the blank form letter not tailored to any single client . Moreover, the record also i ncludes evidence the

to the UTPA claim.Approval Letter condoned a conflic t of interest between Maybank 's financial interest and Appellants. Accordin gly, we affirm the trial cour t's finding that the Approval Letter is evidence upon which the jury could have foun d a UTPA

violation.

Further, we find the Refund Letter is evidence of a deceptive p ractice that supports the jury's finding of a UTPA violation. Although the Refund Letter was sent by Appellants after the commencement of litigation, it con cerned prior fees charged to Maybank and other clie nts that were subsequently que stioned by the SEC. A reasonable jury could have found the Refund Letter supp orted Maybank's assertion of deception rather tha n being a reflection of ostensible corporate values.

As to the impact on the public interest, 15 we find the fact the Approval Letter as well as the Refund Letter were utilized by BB&T Corporation for multiple customers would allow a jury to conclude that these deceptive p ractices affected the public. We thus agree with the trial court that under the evidence adduced at trial, the question of whether M aybank's claim under the UTPA f ell under the UTPA's industry exemption was for the jury. Moreover, we find sufficient evidence exists to uphold the jury verdict as to this cause of action. Accordingly, we find the trial court did not err in refusing to grant Appell ants' motion for JNOV

on this issue.

B. Punitive Damages

Appellants contend the trial cour t erred in denying their motion for JNOV on Maybank's claim for punitive damages because such damages are b arred by the WMA's limitation on liability clause. We agree.

Paragraph F.1 of the WMA s tates, in pertinent part:

F. Limitation of Liability and Indemnification . Client

agrees:

15 See Daisy Outdoor Advert. Co. v. Abbott , 322 S.C. 489, 493, 473 S.E.2d 47, 49 (1996) ("Since 1986, South Carolina courts have required that a plaintiff bringing a private cause of action under UTPA allege and prove the defenda nt's actions adversely affected the public interest.").1. Bank and Investment Advisor shall not be liable with respect to their services under this Agreement except for any loss attributable to their negligence or willful

misconduct. In no event shall Bank or Investment Advisor be liable for any incidental, indirect, special, consequential or punitive damages

.

(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 cou rt held the clause was contrary to public policy a nd that its enforcement would be unconscionable. Further, the trial court held the clause unenforceable as to th e 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 fo und 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, contrac tual limitations are normally enforced. Ellis v. Taylor , 316 S.C. 245, 248, 449 S.E.2d 487, 488 (1994)

. This Court has generally uphe ld 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) (upholding a limitation of liability provision in a home insp ection agreement which confin ed the liability of the inspection company to "a sum equal to the amount of the fee paid by the client for this inspection," and findi ng the clause neither unconscion able nor violative of public policy); Huckaby v. Confederate Motor Speedway, Inc ., 276 S.C. 629, 630, 281 S.E.2d 223, 224 (1981) (finding plaintiff's action against speedway for injuries sustained during a race was barred by a waiver and release volu ntarily signed by plaintiff prior to entering the racetrack); McCune v. Myrtle Beach Indoor Shooting Range, Inc. , 364 S.C. 242, 248, 612 S.E.2d 462, 465 (Ct. App. 2005) (uphol ding a release which explicitly and un ambiguously limited paintball ra nge's liability for negligence); S.C. Elec. & Gas Co. v. Combustion Eng'g, Inc. , 283 S.C. 182, 192, 322 S.E.2d 453, 459 (Ct. App. 1984 ) (enforcing the language of an exculpatory clause in a contract for the sale of a boiler).However, notwithstanding our general acceptance of limitation o f liability provisions and exculpatory clauses, the law disfavors such prov isions, and courts must strictly construe the langua ge of the provision against th e 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. M oreover, should a court find the provision violates public policy or is unconscionable, the court may decl are 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 provi sions agreed to by the parties—regardless of their wis dom or folly, apparent unreasona bleness, 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 vi olative 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 lim itation on liability contrary to our public policy. We acknowledge our jurisprudenc e has stated a party should not be permitted to contractually insulate himself from liability where the parties are not on roughly equal bargaining terms. Pride , 244 S.C. at 619–20, 138 S.E.2d at 157. While recognizing the breadth of this prono uncement, we find it unpersuasive in this instance. It is true that a contract for services between an individual and a large corporati on will frequently involve some disparity of bargaining power. However, this is not a case where an ordinar y investor seeks

financial services from a more knowledgeable company. Rather, Maybank has an extensive history as a trust advisor. Therefore, we cannot agr ee that the policy in

this state is to decline enforcem ent of such a contract on this basis alone.

Somewhat similarly, a challenge d contractual provision is exami ned to

determine whether it is unconsci onable due to both an absence o f 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 me aningful choice on the part of one party is generally indicative of a fundament al 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 t he parties, whether there is an element of surprise in the challenged clause, and t he conspicuousness of

the clause. Id.However, only in rare circumstances has an appellate court inva lidated a contract on the basis of unconscionability. For example, our c ourts have found that numerous one-sided provisions cumulatively impact the oppressiv e 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 unconscionabili ty spoke English, had the ability to consult an atto rney, or faced other circumst ances that made signing the contract in a particular instance grossly inequitab le. See Holler , 364

S.C. 256, 269–70, 612 S.E.2d 469, 4 76–77 (Ct. App. 2005) (decla ring a prenuptial agreement unconscionable when a Ukrainian woman averred she was forced to sign the agreement because at the time, she was pregnant, did n ot speak English, and faced immediate deportation unless she married, but she lacked the funds or time to consult an attorney or translator).

Turning to Paragraph F.1, we find the clause is neither violati ve of public policy nor unconscionable. Under its terms, it does not depriv e Maybank of all damages arising under the contract but merely limits the type o f damages he is entitled to recover. Specifically, Maybank is precluded from seeking consequential damages, indirect damages, special damages, or pu nitive damages in claims arising from his relationships with Appellants; he is st ill entitled to actual damages. While clauses limiting liability are to be strictly c onstrued, we find no reason to ignore the plain language of the clause based on eith er public policy or unconscionability grounds.

Turning next to the scope of the exculpatory clause, the trial court held the clause only applied to "services under the [WMA]," and the comm on 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 constructi ve fraud, breach of fiduciary duty, and negligent mi srepresentation preclude the en forcement of the

clause because these claims aros e from Appellants' "intentional , reckless, and

fraudulent" conduct.

The cardinal rule of contract interpretation is to ascertain an d 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 relations hip between Maybank and A ppellants, and the common law causes of ac tion are subject to the limitations contained in Paragraph F.1. The tri al court erred in relying solely on the services listed in the WMA and ignoring t he 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 on e 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, 468 (Ct. App. 1997) (explaining where multiple documents form the terms of a contract the documents will be interpreted so as to give effect to all of th eir provisions, if practical). Reading them thusly, we find the claims of constru ctive fraud, breach of fiduciary duty, and negligent misrepresentation are not outs ide the scope of the limitation of liability clause.

We also disagree with the trial court's finding that the jury v erdicts of constructive fraud, breach of fi duciary duty, and negligent misrepresentation preclude the enforcement of the clause because these claims aro se from Appellants' "intentional, reckless, and fraudulent" conduct. It is true th at 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 h ave refused to enforce limitations on liability where actual fraud is involved

. 16 Here, however, Maybank proceeded only on constructive fraud and dismissed his claim for actual fraud prior to trial. Constructi ve fraud is distinguishable fr om actual fraud in that constructive fraud does not require the element of intent to de ceive. See Ardis v.

Cox , 314 S.C. 512, 516, 431 S.E.2d 267, 270 (Ct. App. 1993) (notin g that constructive fraud removes the element of intent found in actual fraud).

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.

16 See

, e.g. , Roopchan v. ADT Sec. Sys., Inc. , 781 F. Supp. 2d 636, 660 (E.D. Tenn. 2011) ("Courts will enforce exculpatory clauses unless th ere is 'fraud, misrepresentation or violations of the Tennessee Consumer Prote ction Act.'" (citation omitted)); J.A. Jones Constr. Co. v. City of Dover , 372 A.2d 540, 545 (Del. Super. Ct. 1977) ("Even if a contract purports to give a general exoneration from 'damages,' it will not protect a party from a claim involv ing its own fraud or bad faith."); Houghland v. Sec. Alarms & Servs., Inc. , 755 S.W.2d 769, 773 (Tenn. 1988) (holding exculpatory "clauses do not ordinarily protect a gainst liability for fraud or intentional misrepresentation").Schmauch , 354 S.C. 648, 672, 582 S.E.2d 4 32, 444 (Ct. App. 2003). More over, beyond the patent unfairness inhe rent in enforcing a contract i nduced through intentional fraud, giving legal effect to such a contract viola tes a fundamental principle of contract law: there must be a meeting of the minds . By its very nature, there can be no union of purpose where one party is intentional ly deceiving the other through fraud. However, the jury's finding of constructi ve fraud is not equal to a finding of actual fraud and is thus not sufficient to thwa rt enforcement of the exculpatory clause. 17

Accordingly, we find the trial court erred in failing to grant JNOV to Appellants on the award of punitive damages based on the limita tion of liability clause found in the WMA. Thus, because Appellants are not subj ect to punitive damages, we need not address the Appellants' argument that Mayb ank must elect between the allegedly inconsiste nt 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 rema ining issues when decision reg arding a prior issue is dispositive).

IV. TREBLING

Appellants contend the trial cour t erred in trebling damages be cause the WMA limits Maybank's recovery of statutory treble damages under the UTPA, and their alleged conduct did not constitute "willful or knowing" v iolations of the UTPA. Appellants further argue there is no evidence they knew or should have

known their conduct violated t he UTPA. We disagree.

The UTPA provides for treble dam ages upon a finding of a willfu l violation

of the Act. See S.C. Code Ann. § 39-5-140(a) (Supp. 2014). A willful violatio n 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 asc ertained that his conduct viola ted the UTPA,

such conduct is willful within t he meaning of the statute. Wright v. Craft , 372 S.C. 1, 23–24, 640 S.E.2d 486, 498 (Ct. App. 2006).

17 Similarly, we decline to hold that the clause is unenforceable based on of the jury's verdict for breach of fiduciary duty and negligent misre presentation. As with constructive fraud, no specific intent to deceive is necessary to support either

verdict.We again note limitation of liability provisions and exculpator y clause are disfavored and will be strictly c onstrued against the drafter. Pride , 244 S.C. at 619, 138 S.E.2d at 157. Here, the exculpatory clause prohibits "incidental, indirect, special, consequential or punitive damages," but does not specifically prohibit statutory or multiple damages. Appellants failed to e xplicitly limit statutory or multiple damages whe n they drafted the WMA, and we decline to extend its terms to prohibit the statutory treble damages award ed to Maybank

under the UTPA. Cf. Simpson , 373 S.C. at 29–30, 644 S.E.2d at 671 (finding an arbitration agreement unconsciona ble when it purported to restr ict a consumer from receiving the statutorily-mandated treble damages to which she might otherwise have been entitled in her underlying UPTA claim, beca use courts "will not enforce a contract which is violative of public policy, statutory law , or provisions of the Constitution" ( emphasis added) (citation omit ted)).

We find the evidence in the recor d supports the trial court's decision to treble damages. As previously discusse d, the trial court found Appell ants violated the UTPA based on the WMA, the Appr oval Letter, and the Refund Lett er. We find this conclusion is clearly supported by the record. For exampl e, numerous witnesses testified Appellants knew they could not fulfill the terms of the WMA. Further, the Refund Letter was por trayed to the jury as being d isingenuous in its stated laudatory purpose, and the Approval Letter, though seemi ngly tailored specifically to Maybank, was a mere fill-in-the-blank form lett er. Therefore, we find evidence exists to uphold the trial court's decision to tr eble the damages under

the UTPA.

V. ATTORNEYS' FEES AND COSTS

Appellants argue the trial court erred in concluding eighty per cent of the attorneys' fees and costs were attributable to the UTPA claim. Appellants challenge the award of fees and costs on multiple bases, includ ing the sufficiency of documentation, reasonableness, the validity of the enhanceme nt of the award through the lodestar multiplier, and the use of witness fees an d deposition expenses. We disagree.

The decision to award or deny attorneys' fees and costs will no t be disturbed on appeal absent an abuse of discretion. S.C. Dep't of Transp. v. Revels , 411 S.C. 1, 8, 766 S.E.2d 700, 703 (2014). "An abuse of discretion occu rs when the conclusions of the trial court are either controlled by an erro r of law or are based on unsupported factual conclusions." Kiriakides v. Sch. Dist. of Greenville Cty.

, 382 S.C. 8, 20, 675 S.E.2d 439, 445 (2009) (cita tion omitted).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 reason able attorney's fees and costs. ").

Appellants argue the affidavit of attorneys' fees and costs sub mitted by Maybank's counsel was inadequate a nd lacked the necessary detai l that would enable Appellants to respond. They suggest Maybank failed to p rovide detailed billing statements to identify how the billed hours correlated to the claims alleged, especially since Maybank prevaile d on only five of his eleven c laims, and the Trust

lost on all its claims. Moreove r, Appellants suggest the insuf ficiency in the billing

statements make it difficult to ascertain and delineate the wor k completed in furtherance of the UTPA claim—which is the only claim upon whic h 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 r easonable

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 tha t the fees and costs sought were not solely from the UTPA action).

We turn next to the calculation of determining reasonable attor neys' fees under the UTPA and the trial court's application of the lodesta r multiplier. "A lodestar figure is designed to reflect the reasonable time and effort involved in litigating a case, and is calculated by multiplying a reasonabl e hourly rate by the reasonable time expended." Layman v. State , 376 S.C. 434, 457, 658 S.E.2d 320, 332 (2008). Moreover, in some cases of exceptional success an enhanced award may be justified by using a lodestar multiplier. Id . In determining the reasonable time and hourly rate for attorneys' fees, the Court looks to the factors set forth in Jackson v. Speed , which include the nature, extent, and difficulty of the case; the time necessarily devoted to the case; the professional standing of counsel; the contingency of compensation; the beneficial results obtained; a nd the customary legal fees for similar servi ces. 326 S.C. 289, 308, 486 S.E.2d 750, 760 (1997).Here, the trial court's order awarding $2,654,295 in attorneys' fees based on the lodestar multiplier is deta iled and contains a thorough dis cussion of the

Jackson factors used to determine reasona ble attorneys' fees. This mat ter was heavily litigated for several years, involved thirty-two deposi tions, and produced more than 60,000 pages of docum entation. 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 result s for Maybank on five causes of action. We find the trial court's finding of th e base attorney fee award of $1,769,530 was proper, along with applying the 1.5 mul tiplier to reach $2,654,295. Moreover, we agree with the trial court that Mayba nk achieved a successful result in this very complex case. Finally, the exce llent 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 perio d 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. App ellants claim error in allowing Maybank to be awarded costs not specifically statutorily authorized, such as expert witness fees and unnecessary deposit ion expenses. Appellants contend a party "must be able to point to some statu te 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 relating t o the clerk of court entering judgment. Id . at 319, 422 S.E.2d at 132. The statute at issue expressly provided for a limited list of r ecoverable fees, but not costs. Id.

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. Nonethele ss, 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 fe es 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 cour t 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 sam e manner, and may include expert witness fees. See Hale v. Basin Motor Co. , 795 P.2d 1006, 1013 (N.M. 1990) (holding costs in unfair trade practice litigation should not be treatedany differently from other litigation); see also Trimper v. City of Norfolk , 58 F.3d 68, 75 (4th Cir. 1995) (explaining litigation costs include lit igation expenses such as secretarial costs, copying, t elephone costs, and necessary t ravel). 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 aff irm the trial court's award of attorneys' fees and costs.

VI. PREJUDGMENT INTEREST

Turning now to the cross-appeal, Maybank contends the trial cou rt erred in failing to award him statutory p rejudgment interest on the jury 's actual damages. We disagree and affirm pursuant to Rule 220(b)(1), SCACR, and t he 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 inte rest 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 tri al court's decision whether to award prejudgment interest will not be disturbed on appeal absent an abuse of discretion."); Butler Contracting, In c. v. Court St.,

L.L.C. , 369 S.C. 121, 133, 631 S.E.2d 252, 259 (2006) ("The proper te st for determining whether prejudgment in terest may be awarded is whether the measure of recovery, not necessarily the amount of damages, is fixed by conditions existing at the time the claim arose.").

CONCLUSION

As set forth above, we reverse the award of punitive damages ba sed on the limitation of liability clause. As a result, we decline to add ress the election of remedies issue, and affirm on all other grounds.

Acting Justices James E. Lockemy, Jasper M. Cureton, Clifton Ne wman and William H. Seals, Jr., concur.