RITA M. RICHARDS AND CAROLINE J. RICHARDS, CO-EXECUTRICES OF THE ESTATE OF JAMES G. RICHARDS, AND HELEN RICHARDS
AMERIPRISE FINANCIAL, INC., AMERIPRISE FINANCIAL SERVICES, INC., RIVERSOURCE LIFE INSURANCE COMPANY AND THOMAS A. BOUCHARD Appellants RITA M. RICHARDS AND CAROLINE J. RICHARDS, CO-EXECUTRICES OFTHE ESTATE OF JAMES G. RICHARDS AND HELEN RICHARDS
AMERIPRISE FINANCIAL, INC., AMERPRISE FINANCIAL SERVICES, INC., RIVERSOURCE LIFE INSURANCE COMPANY AND THOMAS A. BOUCHARD Appellants RITA M. RICHARDS AND CAROLINE J. RICHARDS, CO-EXECUTRICES OF THE ESTATE OF JAMES G. RICHARDS, AND HELEN RICHARDS
AMERIPRISE FINANCIAL, INC., AMERIPRISE FINANCIAL SERVICES, INC., RIVERSOURCE LIFE INSURANCE COMPANY, AND THOMAS A. BOUCHARD AppellantsRITA M. RICHARDS AND CAROLINE J. RICHARDS, CO-EXECUTRICIES OF THE ESTATE OF JAMES G. RICHARDS AND HELEN RICHARDS
AMERIPRISE FINANCIAL, INC., AMERIPRISE FINANCIAL SERVICES, INC., RIVERSOURCE LIFE INSURANCE COMPANY AND THOMAS A. BOUCHARD Appellants
from the Order October 17, 2017 In the Court of Common Pleas
of Allegheny County Civil Division at No(s): G.D. 01-006614
from the Order Entered February 15, 2018 In the Court of
Common Pleas of Allegheny County Civil Division at No(s):
from the Order Dated March 20, 2018 In the Court of Common
Pleas of Allegheny County Civil Division at No(s): GD
from the Judgment Entered May 8, 2018 In the Court of Common
Pleas of Allegheny County Civil Division at No(s): G.D.
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER [*] J.
us are four appeals of Ameriprise Financial, Inc., Ameriprise
Financial Services, Inc., Riversource Life Insurance Company,
and Thomas A. Bouchard (collectively "Ameriprise"),
from judgment and orders entered by the Court of Common Pleas
of Allegheny County, following remand from this Court with
directions to the trial court to recalculate damages after we
vacated its award of punitive damages. See Richards v.
Ameriprise Fin., Inc., 152 A.3d 1027 (Pa.Super. 2016)
(Richards I). The appeals have been consolidated for our
review. We affirm the judgment in part, and reverse it in
part. The order dated October 17, 2017, which amended the
verdict and judgment, is affirmed in part and reversed in
part. The orders awarding appellate and post-appeal attorney
fees are vacated, and the case is remanded for further
proceedings consistent herewith.
briefly summarize the underlying action. In 1994,
Plaintiffs' decedent James G. Richards and Helen Richards
retained Richard Bouchard, a representative of IDS Insurance,
the predecessor to Ameriprise, as their financial advisor.
Mr. Bouchard induced the couple to purchase a $100, 000
universal life insurance policy to avoid a reduction in
income should Mr. Richards die first. Mr. Bouchard
represented that annual premiums for the life of the policy
would remain level at $6, 000, payable at the rate of $500
per month. Based on those representations, the Richards
applied for the policy and Ameriprise accepted their
application. The application, as well as the policy they
subsequently received, was consistent with the information
provided by Mr. Bouchard.
2000, Mr. Bouchard advised Mr. Richards that a $15, 053.59
prepayment in excess of the $500 monthly premium was needed
to avoid lapse of the policy. The Richards complied, and
continued to pay $500 per month until Mr. Richards's
death on February 20, 2005. Upon Mr. Richards's death,
Ameriprise paid the $100, 000 death benefit to Mrs. Richards.
initiated this action against Ameriprise by writ of summons
in 2001, and a complaint was filed on July 30,
2008. They sought damages for negligent and
fraudulent misrepresentation, breach of fiduciary duty,
negligent supervision, and violation of the Unfair Trade
Practice and Consumer Protection Law ("UTPCPL"), 73
P.S. § 201-9.2, arising from the 1994 sale of the
universal life insurance policy. The damages consisted of the
$15, 053.59 lump sum payment made in 2000 to prevent the
policy from lapsing, but which was contrary to the terms of
claims for breach of fiduciary duty and negligent supervision
were dismissed at summary judgment. The remaining
misrepresentation and UTPCPL claims were tried non-jury for
three days in November 2014. The court entered a verdict in
favor of Plaintiffs solely on the UTPCPL claim and calculated
actual damages at $15, 053.59 plus interest, for a total of
$34, 006.44, awarded treble damages of $102, 019.32, and
punitive damages in the amount of $50, 000. As directed,
Plaintiffs' counsel submitted a petition for attorney
fees and costs pursuant to § 201.9-2 of the UTPCPL.
Thereafter, the trial court awarded $84, 072.50 in attorney
fees and $1, 759.58 in costs to the law firm of Behrend and
Ernsberger, and $26, 840 in attorney fees for Massa Law
appealed, and thereafter, on March 9, 2015, filed a
praecipe for judgment on the verdict in the amount
of $264, 691.40. The judgment reflected the award of treble
damages of $102, 019.32, punitive damages of $50, 000, and
attorney fees and costs totaling $112, 672.08. It did not
include $34, 006.44 indicated on the verdict slip for the
actual loss sustained. Plaintiffs filed a motion to correct
the judgment on April 15, 2015, averring that the amount of
the judgment should be corrected to include the $34, 006.44
in addition to treble damages of $102, 019.32, for a total of
$136, 025.76 in liability damages. The trial court denied the
motion on April 15, 2015, without explanation.
Court subsequently reversed the award of punitive damages,
affirmed the remainder of the judgment, and remanded the case
to the trial court with the direction to recalculate the
damages excluding the $50, 000 punitive damages award.
Richards I. Ameriprise sought allocatur
from the Supreme Court, but its petition was denied.
Richards v. Ameriprise Fin., Inc., 170 A.3d 992 (Pa.
remand, Plaintiffs filed a pleading styled as a "Motion
to Amend the Verdict to Conform to the Superior Court's
Published Opinion Dated December 16, 2016." Plaintiffs
averred therein that, "pursuant to" this
Court's memorandum, the verdict should be
"recalculated to include," inter alia,
"$34, 006.44 in restitution." In support thereof,
Plaintiffs attached as an exhibit the last page of our
Opinion concluding that the attorney fees were proportionate
to the damages, and referencing Plaintiffs' receipt of
"$34, 006.44 in restitution and $102, 019.32 in treble
damages as a result of counsels' services in the face of
corporate adversaries with greater resources than
[Plaintiffs], and counsel did so on a contingent basis for
approximately thirteen years." Richards I,
supra at 1039.
trial court granted Plaintiffs' motion and amended the
November 13, 2014 jury verdict and judgment to award $34,
006.44 in restitution damages in addition to treble damages,
increasing the award of liability damages to $136, 025.76.
Order, 10/17/17. The court also subtracted the $50, 000
punitive damage award. Id. Ameriprise's timely
appeal from the order amending the verdict and judgment was
docketed at 1719 WDA 2017.
November 22, 2017, Plaintiffs filed a second petition seeking
counsel fees and costs for work performed from December 2014
through November 2017, which included the first appeal and
preparation of the second fee petition. Plaintiffs'
Attorney Kenneth Behrend, whose hourly rate had previously
been approved at $400, sought fees at the rate of $600 per
hour. The rates of his associate, Kevin Miller, Esquire, and
Attorney Rudolph Massa, formerly $275 per hour, were
increased to $500 per hour. Paralegal Donna Lonzo's
hourly rate, formerly $125 per hour, was increased to $190
per hour. Thus, all hourly rates reflected a substantial
increase in the rates approved by the trial court for
bringing the case to trial, which this Court affirmed on
appeal. See Richards I, supra.
Plaintiffs' second petition sought attorney fees of $153,
172 for the Behrend Law Firm, which included a $51, 000 fee
solely for preparation of the second fee petition itself, $2,
800 for the Massa Law Group, and a $12, 000 charge for
preparation of a petition to publish.
support of the reasonableness of Mr. Behrend's $600
hourly rate, Plaintiffs offered affidavits or certifications
from six attorneys located throughout the Commonwealth who
regularly performed fee-shifting work; bar fee surveys; and
contemporaneously-maintained time records. Ameriprise filed a
motion to strike the petition, which the trial court denied
on December 19, 2017. After a hearing, the court granted
Plaintiffs' fee petition in its entirety, awarding $153,
172 to Behrend and Ernsberger, $2, 800 to Massa, Butler and
Giglione, and $789 in costs. Order, 2/13/18. Ameriprise
timely appealed, complied with Pa.R.A.P. 1925(b), and the
appeal was docketed at 354 WDA 2018.
March 20, 2018, Plaintiffs filed a third fee petition seeking
counsel fees and costs in conjunction with the filing of
their response to Ameriprise's objections to the second
fee petition and a hearing thereon. Ameriprise objected to
the petition, but the trial court granted Plaintiffs'
third fee petition in its entirety, awarding an additional
$38, 934 in fees to Attorney Behrend, $4, 650 to Attorney
Massa, and $17.90 in costs. Ameriprise's appeal was
docketed at No. 557 WDA 2018.
8, 2018, judgment was entered on the amended verdict in favor
of Plaintiffs in the amount of $234, 369.34. Ameriprise's
appeal from the judgment was docketed at 764 WDA 2018.
presents two issues for our review:
1. Whether the trial court erred on remand by awarding
quadruple damages under the UTPCPL?
2. Whether the trial court erred on remand in its awards of
attorneys' fees under the UTPCPL for work on appeal,
which awards included a 50% to 80% increase in counsel's
hourly rate from the rates charged for the trial, included
significant fees for seeking counsel fees and other work
unrelated to the UTPCPL claim, and resulted in a total award
of $331, 480.90 in attorneys' fees for a claim for the
return of a $15, 000 premium payment?
Appellants' brief at 4.
begin with the applicable legal principles that inform our
review. The role of an appellate court in reviewing the trial
court's decision in a non-jury trial is
to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings
of fact of the trial judge must be given the same weight and
effect on appeal as the verdict of a jury. We consider the
evidence in a light most favorable to the verdict winner. We
will reverse the trial court only if its findings of fact are
not supported by competent evidence in the record or if its
findings are premised on an error of law. However, where the
issue . . . concerns a question of law, our scope of review
Richards I, supra at 1034.
first issue involves statutory interpretation of the UTPCPL,
which is a legal question. Thus, "our scope of review is
plenary, and our standard of review is de novo."
Gregg v. Ameriprise Fin., Inc., 195 A.3d 930, 940
pertinent statutory provision is contained in the UTPCPL, 73
P.S. § 201-9.2, "Private actions," which
provides in relevant part:
(a) Any person who purchases or leases goods or services
primarily for personal, family or household purposes and
thereby suffers any ascertainable loss of money or property,
real or personal, as a result of the use or employment by any
person of a method, act or practice declared unlawful by
section 3 of this act, may bring a private action to recover
actual damages or one hundred dollars ($ 100), whichever is
greater. The court may, in its discretion, award up
to three times the actual damages sustained, but not less
than one hundred dollars ($ 100), and may provide such
additional relief as it deems necessary or proper. The court
may award to the plaintiff, in addition to other relief
provided in this section, costs and reasonable attorney
73 P.S. § 201-9.2(a) (emphasis added).
contends, based upon the foregoing statutory language, that
the trial court erred in amending the verdict and judgment
upon remand to award both actual damages in the amount of
$32, 006.44 plus treble damages calculated
by multiplying the actual damages times three. Ameriprise
argues that the trial court effectively awarded quadruple
damages in violation of the UTPCPL. In its memorandum, the
trial court opined that Ameriprise waived this claim when it
did not litigate this alleged error in the first appeal.
Memorandum in Lieu of Opinion, 2/15/18, at unnumbered 3. For
the reasons that follow, we find no waiver.
record reveals the following. The original judgment entered
on the praecipe filed by Ameriprise consisted of
$102, 019.32 in treble damages under the UTPCPL, computed by
multiplying the actual loss of $34, 006.44 times three;
punitive damages of $50, 000; attorney fees of $84, 072.50
for attorney Behrend's law firm and $26, 840 for Massa
Law Group; and $1, 759.58 in costs. The total amount of the
judgment entered on the verdict was $264, 691.40. Plaintiffs
filed a motion to correct the amount of the judgment and
verdict, arguing that Ameriprise made a clerical error in
failing to include $34, 006.44, in addition to treble damages
of $102, 019.32, for a total of $136, 025.76 in liability
damages. By order dated April ...