UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

POWELL FISHER, 

Plaintiff-Appellant,

v.  No. 02-1673

WHEAT FIRST SECURITIES,

INCORPORATED; WILLIAM H. ROGERS,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Margaret B. Seymour, District Judge.

(CA-01-136-4-24)

Argued: February 26, 2003

Decided: April 8, 2003

Before LUTTIG and MICHAEL, Circuit Judges, and

Robert E. PAYNE, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: William Reynolds Williams, WILLCOX, BUYCK &

WILLIAMS, P.A., Florence, South Carolina, for Appellant. Ricardo

Juan Nunez, Legal Division, WACHOVIA SECURITIES, INC.,

Richmond, Virginia, for Appellees. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Jesse Powell Fisher appeals an order of the United States District

Court for the District of South Carolina confirming an arbitration

award granted to Fisher’s former employer, Wheat First Securities,

Inc. (Wheat First), by a National Association of Securities Dealers

(NASD) arbitration panel. Fisher argues that the district court erred

in concluding that the arbitration panel had jurisdiction over a counterclaim filed by Wheat First against him. Because we conclude that

Fisher agreed to arbitrate the counterclaim at the time he submitted

his own claims to arbitration, we affirm the judgment of the district

court. 

I.

On July 7, 1998, Fisher accepted employment with Wheat First as

a senior vice president and branch manager for the firm’s offices in

Charleston and Myrtle Beach, South Carolina. (First Union Securities,

Inc. is the successor in interest to Wheat First. For clarity’s sake, the

parties continue to refer to the corporate defendant as Wheat First. We

do the same.) Fisher’s position at Wheat First provided him with several perks, including a generous bonus schedule and profit overrides.

As a condition of his employment, Fisher filed a Form U-4, Uniform

Application for Securities Industry Regulation. The Form U-4, which

is a contract between Fisher, the NASD, and the securities exchanges,

included the following provision: 

I agree to arbitrate any dispute, claim or controversy that

may arise between me and my firm, or a customer, or any

other person, that is required to be arbitrated under the rules,

constitutions, or by-laws, of [self-regulatory organizations]

. . . . 

2 FISHER v. WHEAT FIRST SECURITIES
NASD rules provide for arbitration of "any dispute, claim, or controversy arising out of . . . the employment or termination of employment of associated person(s) with any member." 

On March 17, 1999, Fisher signed a promissory note to Wheat

First, agreeing to repay a loan of $761,008.00. This sum represented

85 percent of the amount that remained due to Fisher under his staged

bonus plan. (The loan was essentially an advance on bonus payments

that Fisher would otherwise receive over the course of five years.)

The parties agreed that one-fifth of the promissory note would be forgiven each year on the anniversary of Fisher’s employment with

Wheat First. The promissory note provided that: 

In the event of the separation of service of [Fisher] with

Wheat and/or its affiliates for any reason . . . the full amount

of any unpaid balance shall become due and payable immediately and any amount outstanding to the credit of or due

[Fisher] by Wheat and/or its affiliates shall be used for the

repayment of the unpaid balance. 

The promissory note also provided that in the event of default in the

payment of the note, Fisher authorized First Wheat to confess a judgment against him in the Circuit Court of the City of Richmond, Virginia. The note further provided that:

Wheat and [Fisher] hereby expressly intend to except this

Note and any dispute arising hereunder from any arbitration

requirement arising with respect to the employment relationship between Wheat and [Fisher], and otherwise agree to,

and do hereby, waive any right to arbitration of any dispute

or matter concerning this Note. 

According to Fisher, the forum selection clause of the promissory

note was attractive because it avoided one of the risks associated with

arbitration: NASD’s bylaws provide for expulsion from NASD membership and license revocation for a member’s failure to pay an arbitration award. In addition to signing the promissory note, Fisher also

assigned, in writing, all of his "salary, commissions, wages, [and]

bonuses" to Wheat First as security for repayment of the note. 

FISHER v. WHEAT FIRST SECURITIES 3
In August of 1999 Wheat First underwent a management change,

and as a result, Fisher’s profit percentages decreased and he no longer

received the guaranteed minimums he claims to have been promised

when hired. On January 12, 2001, Fisher resigned from Wheat First,

claiming that the firm had failed to pay him over $81,000 in profit

bonuses, over $300,000 in profit overrides, and over $200,000 in

wages due. Four days later Fisher filed a diversity action in federal

court against Wheat First and William H. Rogers, Wheat First’s managing director. Fisher asserted three causes of action: (1) common law

breach of contract; (2) violation of the South Carolina Payment of

Wages Statute, see S.C. Code Ann. § 41-10-10, et seq.; and (3) violation of the South Carolina Unfair Trade Practices Act, see S.C. Code

Ann. § 39-5-10, et seq. The defendants moved to compel arbitration

and to stay the federal court proceedings. The parties then consented

to arbitrate the dispute. On March 23, 2001, Fisher filed a Statement

of Claim before the NASD in which he presented the same three

causes of action against Wheat First and Rogers. With the Statement

of Claim, Fisher also submitted a signed NASD Uniform Submission

Agreement. The Uniform Submission Agreement provides that the

"parties hereby submit the present matter in controversy . . . and all

related counterclaims . . . to arbitration." Rogers answered the Statement of Claim; Wheat First answered and asserted a counterclaim

against Fisher alleging non-payment of the promissory note. At that

time Fisher owed $608,808.40 in principal and $36,896.48 in interest

on the note. Fisher responded to Wheat First’s counterclaim by arguing that the NASD arbitration panel lacked jurisdiction over that

claim. The panel rejected his argument and assumed jurisdiction over

the counterclaim. On January 23, 2002, the arbitration panel issued a

decision denying all of Fisher’s claims and awarding Wheat First the

unforgiven balance on the principal due on the promissory note, plus

interest and attorney’s fees. Both Fisher and Wheat First filed motions

in federal court, Fisher to vacate the award and Wheat First to confirm it. Following a hearing on the motions, the district court confirmed the award. Fisher now appeals. 

II.

Fisher asserts on appeal that the district court erred in failing to

vacate the NASD arbitration panel’s award, at least as it relates to

Wheat First’s counterclaim on the promissory note. First, Fisher

4 FISHER v. WHEAT FIRST SECURITIES
argues that Wheat First’s counterclaim was not "related to" his claims

and thus should not have been arbitrated. Second, Fisher argues that

the arbitration panel lacked jurisdiction to hear the counterclaim

because the parties agreed in the promissory note that the note was

excepted from any arbitration requirement arising with respect to their

employment relationship. According to Fisher, when he signed the

Uniform Submission Agreement he believed the waiver in the promissory note would continue to govern any dispute about the note. For

the reasons that follow, we disagree with Fisher and conclude that the

arbitration panel properly asserted jurisdiction over Wheat First’s

counterclaim on the promissory note. 

An arbitration award may be vacated when "the arbitrators

exceed[ ] their powers." 9 U.S.C. § 10(a)(4). We review de novo a

district court’s decision to confirm an arbitration award. First Options

of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). Federal law strongly

favors arbitration. "[A]ny doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration, whether the problem

at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H.

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-25

(1983). When a party questions the scope of an arbitration clause,

doubts are to be resolved in favor of coverage. Am. Recovery Corp.

v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 92 (4th Cir.

1996). That said, arbitration may only be compelled when parties

have agreed to it, and then only to the extent agreed. Zandford v.

Prudential-Bache Sec., Inc., 112 F.3d 723, 727 (4th Cir. 1997). 

The Uniform Submission Agreement completed and signed by

Fisher is a valid and binding contract that has the force of modifying

earlier agreements. See Dean Witter Reynolds, Inc. v. Fleury, 138

F.3d 1339, 1342 (11th Cir. 1998); Piggly Wiggly Operators’ Warehouse Inc. v. Piggly Wiggly Operators’ Warehouse Indep. Truck

Drivers’ Union, Local No. 1, 611 F.2d 580, 584 (5th Cir. 1980); First

Montauk Sec. Corp. v. Menter, 26 F. Supp. 2d 688, 689 (S.D.N.Y.

1998). The Uniform Submission Agreement uses broad "related to"

language with respect to counterclaims brought into the arbitrator’s

jurisdiction by the claimant’s submission of the agreement. See Intercity Co. Establishment v. Ahto, 13 F. Supp. 2d 253, 260-61 (D. Conn.

1998) (citing WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 75 (2d

FISHER v. WHEAT FIRST SECURITIES 5
Cir. 1997)). In this case, Wheat First’s counterclaim seeking payment

under the promissory note clearly relates to the claims submitted to

arbitration by Fisher. Fisher’s Statement of Claim lists three causes

of action against Wheat First, all of which concern monies allegedly

owed to him by Wheat First under the terms of his employment agreement. Under the explicit terms of the promissory note, any amounts

owed to Fisher by Wheat First at the time of Fisher’s separation of

service are to be applied toward payment of the note. In addition,

Fisher expressly assigned his wages and bonuses as security for

repayment of the note. Thus, Fisher’s claim for nonpayment of wages

and bonuses and Wheat First’s claim for nonpayment under the promissory note are inherently intertwined. One party’s claim cannot be

fully resolved without addressing that of the other party. Given the

clear relationship between Fisher’s claims and Wheat First’s counterclaim, Fisher knew, or should have anticipated, at the time he filed his

Uniform Submission Agreement that Wheat First would, or at least

could, raise a counterclaim on the note in the arbitration proceedings.

And when Fisher completed, signed, and filed the Uniform Submission Agreement, he was bound by its terms to arbitrate the promissory

note dispute should Wheat First assert it as a related counterclaim. 

Fisher argues nonetheless that he specifically agreed to the terms

of the promissory note because it excepted disputes from arbitration

and thus that it was not his intent to agree to submit that issue to arbitration when he filed the Uniform Submission Agreement. Assuming

arguendo that Fisher properly raises this argument on appeal (defendants claim he does not), we find it unavailing. Courts generally look

to a party’s objective intent in interpreting a contract, First Montauk,

26 F. Supp. 2d at 689, and consider the party’s subjective intent only

when contractual terms are ambiguous, Bridgestone/Firestone, Inc. v.

Prince William Square Assocs., 463 S.E.2d 661, 664 (Va. 1995).

Fisher’s arguments that he did not intend to agree to arbitrate the

promissory note issue fail in the face of the plain language of the Uniform Submission Agreement. While the promissory note excepted

disputes under it from arbitration, Fisher’s filing of the Uniform Submission Agreement unambiguously manifested his agreement to subject disputes involving the note to arbitration because they are related

to his employment claims. Cf. Federated Dep’t Stores, Inc. v. J.V.B.

Indus., Inc., 894 F.2d 862, 870 (6th Cir. 1990) (party does "not retain

6 FISHER v. WHEAT FIRST SECURITIES
the right selectively to omit from arbitration certain claims or counterclaims, however surprising"). 

In sum, we conclude, as did the district court, that when Fisher

completed and signed the Uniform Submission Agreement, he agreed

to submit all related counterclaims, which included the dispute over

the promissory note, to arbitration. The Uniform Submission Agreement validly modifies the earlier agreement in the promissory note to

except disputes about the note from arbitration, and the Uniform Submission Agreement is binding upon Fisher. Because we conclude that

Fisher agreed to submit the counterclaim to arbitration when he filed

the Uniform Submission Agreement, we need not reach Wheat First’s

argument that Fisher also agreed to arbitrate the promissory note dispute when he filed the NASD U-4 Form at the time he accepted

employment with Wheat First. 

III.

For all of the foregoing reasons, the judgment of the district court

is affirmed. 

AFFIRMED

FISHER v. WHEAT FIRST SECURITIES 7