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 merger to Branch Banking and 

Trust Company of SC, and Sterling 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. Miller, 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 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. 

FACTUAL/PROCEDURAL BACKGROUND 

I. BACKGROUND 

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 well as assists clients in entering 

investments with third parties. 

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. The former Southeastern clients who 

transferred to the Bank's Trust Department became Wealth Management clients. 

Around the same time, the Bank, through Asset Management, began to market 

"alternative investment strategies" to clients with substantial net worth and highly 

concentrated stock positions. 

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.1 

1 Although Wealth Management portfolio advisors were neither trained nor 
 

 

 

 

 

 

 

 

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 holder: (1) protection against a 

collapse of the stock, (2) immediate liquidity, (3) an opportunity to partially 

participate in future gains, and (4) an opportunity to receive dividends.2 

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. 

licensed to make any trades or investments, they were experienced in BB&T's 

platform investment strategies and products. According to David Fisher, head of 

Wealth Management, a portfolio manager's job was to be an "issue spotter" so as to 

identify opportunities and inform clients of potential BB&T products that could 

best serve clients' needs. In Fisher's words, portfolio managers 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 Management 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 subsequent rollovers, it is 

undisputed a Prepaid is a risky strategy and a hedge. It has no diversification and 

may not effectively minimize a client's risk—primarily because future dividends 

could be reduced or eliminated by the company. 
 

 

 

 

 

 

 

 

 

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.3 As of 2006, the 

246,000 shares of BB&T stock he had received in 2001 remained in his brokerage 

account with Scott & Stringfellow. At Kapoor's recommendation, Maybank 

communicated with Mahfood, who then asked Shawn Gibson, a member of Asset 

Management's alternative investment team, to prepare illustrations of the 

anticipated Prepaid's terms. 

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 investments." The Addendum stated it was an addition to 

the WMA between the Bank, the advisor, and Maybank, even though Maybank 

had not yet executed a WMA with the Bank and Asset Management. 

On August 11, 2006, Wealth Management presented Maybank with a letter 

(Approval Letter), which approved Maybank entering into a Prepaid 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 Corporation, but signed 

by both Mahfood and Oliver. Express authorization by BB&T Corporation was 

necessary because the BB&T Code of Ethics prohibited BB&T employees from 

using BB&T Corporation stock in any transaction deemed to be speculative, 

including Prepaids. The letter stated "a [Prepaid] may allow Mr. Maybank to 

reduce the risk of his concentrated position in BB&T, while raising cash to create a 

diversified portfolio." It further stated "implementation of this [Prepaid] will 

protect Mr. Maybank from an extraordinary reduction in the overall value of his 

investment portfolio and resulting net worth. It will also help him achieve 

important diversification goals we have discussed throughout the financial 

planning process." Oliver signed the Approval Letter as Executive Vice President, 

Secretary, and General Counsel for BB&T Corporation. A handwritten 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 horse-raising 

business. 

4 Although the Approval Letter uses Maybank's name throughout, as 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 under proceeds 

from the [Prepaid]." 

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 the fact that at this point in time the account was still not subject 

to any WMA. 

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 division. At that time, he 

believed he had been damaged by Appellants' mismanagement in the amount of 

$3,500,000. Dissatisfied with Appellants' response, Maybank decided to pursue 

legal action. 

II. LITIGATION 

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.5 

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. 

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 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 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 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. 

6

 Because Maybank had two Prepaids, he was returned two separate fees. 
 

 

III. EVIDENCE PRESENTED 

At trial, Maybank testified that based on his employment with the Bank, he 

believed Appellants were responsible and knowledgeable on both financial matters 

and fiduciary interests, and consequently, he sought their advice and services. 

He testified he expressly told Appellants about his financial concerns and he 

wanted to secure his assets. Maybank contended Appellants represented they had 

special expertise in alternative investment strategies, and they recommended he 

enter into a Prepaid as a way to avoid risk, protect his dividends from his BB&T 

Corporation stock, address his debt issues, defer his tax liability, 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 Appellants as his 

fiduciaries because his prior experience had been in the limited capacity of 

managing trusts and investments like stocks and bonds, not in the areas of options 

or other derivative products. 

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 submitted the WMA as evidence of the expansion of the 

Bank's fiduciary role with Maybank through Wealth Management and Asset 

Management. Maybank put forth evidence Wealth Management never intended to 

fulfill—and could not fulfill—the duties and obligations outlined in the WMA. 

For example, Walters's deposition testimony revealed that Wealth 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 policies and procedures. Walters also testified 

he believed someone within the Bank or Asset Management would have addressed 

the duties and obligations outlined in the WMA. 

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 was entering, and their theory that Prepaids were the only 

option for Maybank based on his financial circumstances. Appellants 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 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 crossexamination, 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. 

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

believed the letter was a necessary part of the paperwork required to execute the 

recommended strategy because Maybank was an employee of the Bank and held 

concentrated stock in BB&T Corporation. Mahfood acknowledged he did not 

conduct any analysis to confirm any of the promises or representations 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 testified he did not analyze or formally review 

Maybank's file. Similarly, Walters 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 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.7 Because Gibson admitted he 

did not have an independent recollection of his discussion with Maybank, he 

testified he assumed he would have believed a Prepaid was a good 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 capital gains taxes. 

Thorne further stated that if Maybank sold the stock, he would lose the dividend, 

which was providing an annual income of $400,000. Therefore, it was Thorne's 

opinion that taking a "hedge" on a Prepaid was Maybank's best option. 

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. 

7 Evidence was introduced that this debt was related to outstanding 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] 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. 

IV. VERDICT 

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.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 actual 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 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,9 

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

minimal modifications. 

9 The lodestar analysis "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." 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. Appellants' motion for an election of remedies was denied 

because the trial court found the evidence supporting the UTPA verdict was 

distinct from the conduct supporting the common law causes of action for which 

punitive damages were awarded. Thus, the trial court entered a judgment for 

$17,199,306 against all Appellants. Finally, the trial court denied Maybank's 

motion for prejudgment interest. 

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. 

ISSUES PRESENTED10 

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. 

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 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. Limehouse v. Hulsey, 404 S.C. 93, 104, 744 S.E.2d 566, 

572 (2013). Personal jurisdiction over a nonresident is resolved 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 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 ChevroletBuick, 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 

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 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. 
 

 

 

II. EXPERT QUALIFICATION 

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 Waters Builders, Inc., 376 S.C. 545, 555, 658 

S.E.2d 80, 85 (2008). An abuse of discretion occurs when the decision 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 constitutes an abuse of 

discretion when the ruling is manifestly arbitrary, unreasonable, 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 evidence, the appellant 

must prove both the error in the ruling and resulting prejudice. Id. 

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, Freeman stated his lack of 

experience was consistent with his opinion that Prepaids were not viable long-term 

investments. 

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.11 

III. JNOV MOTIONS12 

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 

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 cumulative 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 be 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 qualifying the expert witness, 

there was no prejudice because witness's testimony was cumulative to other 

testimony). 

12 In addition to the challenges discussed in detail below, Appellants argue the trial 

court erred in failing to grant their motion for JNOV on the claims for breach of 

fiduciary duty, breach of contract, negligent misrepresentation, constructive fraud, 

speculative damages, and the statute of limitations. Because we find ample 

evidence in the record supporting the jury's verdict on each of those claims, we 

affirm them pursuant to Rule 220, SCACR. 
 

 

 

 

reasonable jury could have reached the challenged verdict." Gastineau v. Murphy, 

331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998). In deciding such motions, neither 

the trial court nor the appellate court has the authority to decide 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 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 appeared to be "broker-esque." Moreover, the trial court 

found Appellants presented no evidence that Prepaids were a registered security or 

initial public offering that was regulated by another administrative body. 
 

 

 

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.13 

Nevertheless, we find the trial court correctly submitted the issue to the jury based 

on the alternative theories of relief posited by Maybank and based 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 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.14 

13 See, e.g., Chechele v. Sperling, 758 F.3d 463, 471 (2d Cir. 2014) (explaining a 

Prepaid transaction was a sale of stock and qualified as the sale 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 issue based on 

waiver, issue preservation, and collateral estoppel. First, Maybank argues that 

because Appellants suggested the jury charge and consequently did not object to it, 

the issue is unpreserved. Normally, a party is required to object 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 amounts to Appellants 

simply playing the hand they were dealt, somehow precludes Appellants from 

arguing this issue on appeal. We also reject Maybank's arguments this issue is 

unpreserved or Appellants should be estopped from arguing they were involved in 

securities-related conduct because Appellants consistently argued 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 arguably inconsistent 

with others. We therefore disagree a procedural bar precludes this Court from 

reaching the merits of whether the motion for JNOV should have been granted as 
 

 

 

 

 

We also find sufficient evidence in the record to support the jury'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 found Appellants liable 

for violating the UTPA: the WMA, the Approval Letter, and the Refund 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 reasonable inferences in the 

light most favorable to the nonmoving party, and may only reverse 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, the trial judge is 

concerned with the existence of evidence, not its weight."). For example, Walters 

testified Appellants knew the WMA presented to Maybank contained 

misrepresentations, and Appellants could not fulfill the three stated promises 

outlined in it. While Appellants put forth evidence the obligations of the WMA 

were fulfilled, testimony was introduced that Appellants knew for 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 court, nor the trial 

court has authority to decide credibility issues or to resolve conflicts in the 

testimony or the evidence." (citation omitted) (internal quotation and alteration 

marks omitted)). Further, the policies and procedures of the Bank expressly 

prohibited Maybank's portfolio advisors from performing the very duties the Bank 

promised it would provide for him. Moreover, both Fisher and Walters admitted 

Appellants did not notify Maybank or any customer that the promises 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. 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 

to the UTPA claim. 
 

 

 

 

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,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 practices affected 

the public. We thus agree with the trial court that under the evidence adduced at 

trial, the question of whether Maybank's claim under the UTPA fell 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 Appellants' motion for JNOV 

on this issue. 

B. Punitive Damages 

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: 

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 defendant'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 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) (upholding a limitation of 

liability provision in a home inspection agreement which confined the liability of 

the inspection company to "a sum equal to the amount of the fee paid by the client 

for this inspection," and finding the clause neither unconscionable 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 voluntarily 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) (upholding a 

release which explicitly and unambiguously limited paintball range'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 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 

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 pronouncement, we find 

it unpersuasive in this instance. It is true that a contract for services between an 

individual and a large corporation will frequently involve some disparity of 

bargaining power. However, this is not a case where an ordinary investor seeks 

financial services from a more knowledgeable company. Rather, Maybank has an 

extensive history as a trust advisor. Therefore, we cannot agree that the policy in 

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

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, 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 to Paragraph F.1, we find the clause is neither violative of public 

policy nor unconscionable. Under its terms, it does not deprive Maybank of all 

damages arising under the contract but merely limits the type of damages he is 

entitled to recover. Specifically, Maybank is precluded from seeking 

consequential damages, indirect damages, special damages, or punitive damages in 

claims arising from his relationships with Appellants; he is still entitled to actual 

damages. While clauses limiting liability are to be strictly construed, we find no 

reason to ignore the plain language of the clause based on either 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 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, 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 their provisions, if 

practical). Reading them thusly, we find the claims of constructive fraud, breach 

of fiduciary duty, and negligent misrepresentation are not outside the scope of the 

limitation of liability clause. 

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.

16 Here, however, 

Maybank proceeded only on constructive fraud and dismissed his claim for actual 

fraud prior to trial. Constructive fraud is distinguishable from actual fraud in that 

constructive fraud does not require the element of intent to deceive. See Ardis v. 

Cox, 314 S.C. 512, 516, 431 S.E.2d 267, 270 (Ct. App. 1993) (noting 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 there is 'fraud, 

misrepresentation or violations of the Tennessee Consumer Protection 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 involving 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 against liability for 

fraud or intentional misrepresentation"). 
 

 

 

 

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 very nature, 

there can be no union of purpose where one party is intentionally deceiving the 

other through fraud. However, the jury's finding of constructive fraud is not equal 

to a finding of actual fraud and is thus not sufficient to thwart 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 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). 

IV. TREBLING 

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). 

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 misrepresentation. As with 

constructive fraud, no specific intent to deceive is necessary to support either 

verdict. 
 

 

 

 

 

 

We again note limitation of liability provisions and exculpatory clause are 

disfavored and will be strictly construed 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 explicitly limit 

statutory or multiple damages when they drafted the WMA, and we decline to 

extend its terms to prohibit the statutory treble damages awarded to Maybank 

under the UTPA. Cf. Simpson, 373 S.C. at 29–30, 644 S.E.2d at 671 (finding an 

arbitration agreement unconscionable when it purported to restrict a consumer 

from receiving the statutorily-mandated treble damages to which she might 

otherwise have been entitled in her underlying UPTA claim, because courts "will 

not enforce a contract which is violative of public policy, statutory law, or 

provisions of the Constitution" (emphasis added) (citation omitted)). 

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. 

V. ATTORNEYS' FEES AND COSTS 

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 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 occurs when the 

conclusions of the trial court are either controlled by an error 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) (citation 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 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." 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; and the customary 

legal fees for similar services. 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 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 relating to 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 recoverable 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. 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., 795 P.2d 1006, 1013 

(N.M. 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. 

VI. PREJUDGMENT INTEREST 

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 absent an abuse of discretion."); Butler Contracting, Inc. v. Court St., 

L.L.C., 369 S.C. 121, 133, 631 S.E.2d 252, 259 (2006) ("The proper test for 

determining whether prejudgment interest 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 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.