Berry v. Spang ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Robert F. Berry, Respondent,
v.
Scott A. Spang, Wells Fargo Clearing Services, LLC,
f/k/a Wells Fargo Advisors, LLC, Wachovia Securities
Financial Holdings, LLC, Wells Fargo & Company, and
Wells Fargo Bank, N.A., Appellants.
Appellate Case No. 2017-001690
Appeal from Lexington County
G. Thomas Cooper, Jr., Circuit Court Judge
Opinion No. 5792
Submitted June 1, 2020 – Filed January 13, 2021
AFFIRMED
Sarah Patrick Spruill, of Haynsworth Sinkler Boyd, PA,
of Greenville; Adam Noah Yount and Pierce Talmadge
MacLennan, both of Haynsworth Sinkler Boyd, PA, of
Charleston; and Frederick T. Smith, of Charlotte, North
Carolina, for Appellants.
Mitchell Willoughby, Elizabeth Ann Zeck, and Chad
Nicholas Johnston, all of Willoughby & Hoefer, PA, of
Columbia, for Respondent.
LOCKEMY, C.J.: Scott A. Spang, Wells Fargo Clearing Services, LLC, f/k/a
Wells Fargo Advisors, LLC, Wachovia Securities Financial Holdings, LLC, Wells
Fargo & Company, and Wells Fargo Bank, N.A. (collectively, Appellants) appeal
the circuit court's denial of their motion to dismiss and compel arbitration of
Robert F. Berry's claims. Appellants argue the circuit court erred by (1) denying
their motion to reconsider or amend when they provided supporting documentation
to establish Berry's agreement to resolve his claims through mandatory FINRA1
arbitration and (2) denying their motions to dismiss and reconsider when public
records and publicly available FINRA rules established Berry was obligated to
arbitrate his claims against Appellants as a condition of his admitted registration as
a FINRA-regulated broker. We affirm.2
FACTS/PROCEDURAL HISTORY
Berry commenced this action against Appellants in 2017, asserting various causes
of action including wrongful termination, breach of contract, and defamation.
Berry alleged that, in 2014, Appellants forced him to resign from his position as a
Wealth Manager and Senior Vice President with Wells Fargo Advisors.3 He
claimed this was in retaliation for his challenges to changes in his compensation
arrangement and his refusal to participate in an allegedly illegal cross-selling
program. In addition, Berry alleged that in 2016, he learned Wells Fargo Advisors
had filed a Form U5 termination notice, which appeared on his official record. The
Form U5 stated Wells Fargo Advisors had permitted him to resign, and it noted
that his branch office manager had discovered several binders of customer
information in the trunk of Berry's vehicle.
Appellants filed a motion to dismiss or stay the action pending arbitration, which
the parties and the court treated as a motion to compel arbitration. They attached a
supporting memorandum, three Forms U4, and the affidavit of Beverly W.
Jackson. The three Forms U4 were dated November 5, 1994, January 16, 1995,
1
"FINRA" is the abbreviation for Financial Industry Regulatory Authority, Inc.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
3
Berry stated he joined the brokerage firm of "Wheat Butcher Singer" in 1994; in
1997, First Union Corporation acquired Wheat Butcher Singer, and the firm
became "Wheat First Union"; in 2001, the firm's parent company merged with
Wachovia Corporation, and its name changed to "Wachovia Securities"; finally, in
2008, "Wells Fargo" acquired "Wachovia," and the retail brokerage changed to
"Wells Fargo Advisors" in 2009. Berry asserted that due to the 2009 acquisition,
he became an employee of Wells Fargo Clearing Services, LLC, formerly known
as Wells Fargo Advisors, LLC, and its parent company, Wachovia Securities
Financial Holdings, LLC (collectively, Wells Fargo Advisors).
and September 28, 1995, respectively. Each form included the following
language:
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 the organizations
indicated in Item 10 as may be amended from time to
time . . . .
Item 10 included the abbreviation "SRO"4 and the heading "to be registered with,"
and a list of ten SROs appeared with a box above each that the registrant could
select. All three forms listed Wheat First Securities, Inc. as the firm name. On the
1994 form, the boxes next to the following SROs were selected in Item 10: ASE
(the American Stock Exchange), NASD (National Association of Securities
Dealers), NYSE (the New York Stock Exchange), and PHLX (the Philadelphia
Stock Exchange). Only the November 1994 form designated any SROs.
The circuit court held a hearing on Appellants' motion. Appellants argued brokers
wishing to work in the securities industry must sign a Form U4, register with and
be licensed through FINRA, and abide by FINRA's rules. They asserted Berry
completed a Form U4 in 1994 when he began working for the predecessor entity
and the arbitration provision contained within the form was binding upon Berry
and Wells Fargo Advisors. In addition, Appellants argued Berry was a registered
representative or associated person under FINRA and that FINRA Rule 13200(A)5
bound the parties to arbitration.
Berry neither admitted nor denied that he was registered with FINRA or that he
was a registered associate of Wells Fargo Advisors. He argued Appellants, as the
parties seeking to compel arbitration, failed to satisfy their burden to prove that
4
SRO refers to a "self-regulatory organization." See Dean v. Heritage Healthcare
of Ridgeway, LLC, 408 S.C. 371, 386 n.12, 759 S.E.2d 727, 735 n.12 (2014)
(noting a self-regulatory organization (SRO) is a forum that "must operate in strict
compliance with the Securities and Exchange Act of 1934").
5
FINRA Rule 13200(A) provides that "a dispute must be arbitrated under the Code
if the dispute arises out of the business activities of a member or an associated
person and is between or among. . . Members and Associated Persons." According
to the FINRA rules, "the Code," as referenced in Rule 13200, "means the Code of
Arbitration Procedure for Industry Disputes." FINRA Rule 13100(h).
FINRA rules applied, that Berry was registered with FINRA, or that an agreement
to arbitrate existed. Berry argued Jackson's affidavit was insufficient to
authenticate the Forms U4 and Appellants were not parties to any of the forms. In
addition, Berry asserted the form designated SROs that no longer operated
arbitration forums. He agreed that there was a "consolidation" of the NASD and
NYSE arbitration forums in 2007, and he conceded the new entity became FINRA.
However, Berry contended neither NASD nor NYSE continued to operate a
separate arbitration forum and the court could not substitute FINRA for NASD in
the agreement. He acknowledged FINRA operated an arbitration forum but
asserted the arbitration clause in the Form U4 failed because Item 10 did not
include FINRA as a possible forum.
In response, Appellants suggested the court take judicial notice that, in the
mid-2000s, NASD turned over its responsibilities for the regulation of the financial
services industry, broker-dealers, and brokers to, and "essentially morphed" into, a
newly created entity called FINRA. In addition, Appellants argued it was routine
in the financial industry for disputes of this nature to proceed to arbitration and that
they were entitled to enforce the arbitration agreement contained in the Forms U4
because Berry laid out the "transformation" of Wheat First Securities into Wells
Fargo Advisors.
The circuit court took the matter under advisement and instructed the parties to
provide proposed orders. Thereafter, the circuit court issued an order denying
Appellants' motion to stay and compel arbitration. The court concluded (1)
Appellants did not properly authenticate the forms; (2) the three Forms U4 did not
satisfy Appellants' burden to prove the existence of an agreement by Berry to
arbitrate his dispute with Appellants; and (3) even assuming an arbitration
agreement arose between the parties by virtue of the 1994 Form U4, the agreement
was void because the arbitration forums specified in the agreement no longer
existed. Specifically, the circuit court concluded the 1994 and 1995 Forms U4 did
not establish an agreement to arbitrate because Appellants were not parties to the
forms. The court reasoned that the predecessor, Wheat First, was the named firm
on the forms, and the forms contained no language stating that an arbitration
obligation would extend to successors or assigns of that firm. The court noted that
even if it were appropriate to take judicial notice of FINRA Rule 13200,
Appellants failed to show it applied to Berry such that it would bind him to its
arbitration procedure. The court concluded the selection of the designated forums
constituted an integral term of the arbitration clause in the 1994 form. It found that
because none of the identified forums existed and Appellants failed to show the
court could simply substitute FINRA as a forum, the arbitration agreement was
impossible to perform and void.
Appellants then moved the court to reconsider or amend its order pursuant to Rules
59(e) and 60, SCRCP, asserting they obtained more recent Forms U4 that
established (1) an enforceable arbitration agreement between Berry and Wells
Fargo Advisors existed and (2) Berry was registered with FINRA, which provided
an independent basis to compel arbitration of his claims. Appellants attached the
additional forms and an affidavit of Michael Zuhr. The circuit court summarily
denied the motion but noted it considered the submissions of the parties. This
appeal followed.
ISSUES ON APPEAL
1. Did the circuit court err by refusing to reconsider its order denying the motion to
compel arbitration when Appellants submitted an affidavit and newly discovered
evidence showing Berry agreed to arbitrate his claims?
2. Did the circuit court err by denying the motion to compel arbitration when
public records and FINRA rules established Berry was obligated to arbitrate his
claims against Appellants as a condition of his admitted registration with FINRA?
STANDARD OF REVIEW
"Appeal from the denial of a motion to compel arbitration is subject to de novo
review." New Hope Missionary Baptist Church v. Paragon Builders, 379 S.C.
620, 625, 667 S.E.2d 1, 3 (Ct. App. 2008). "Nevertheless, a circuit court's factual
findings will not be reversed on appeal if any evidence reasonably supports the
findings." Gissel v. Hart, 382 S.C. 235, 240, 676 S.E.2d 320, 323 (2009).
"The admission of evidence is within the discretion of the [circuit] court and will
not be reversed absent an abuse of discretion. An abuse of discretion occurs when
the conclusions of the [circuit] court either lack evidentiary support or are
controlled by an error of law." State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262,
265 (2006) (citation omitted).
LAW/ANALYSIS
I. Evidentiary Issues
Additional Evidence
Appellants first argue the circuit court erred by refusing to consider the additional
Forms U4 they submitted with their motion to reconsider filed pursuant to Rules
59(e) and 60(b), SCRCP. We find this argument is without merit. The circuit
court's order denying the motion to reconsider indicated it considered the
submissions of the parties.
Judicial Notice
Appellants argue that pursuant to Rule 201, SCRE, the circuit court erred by
declining to take judicial notice of FINRA's rules, the content and use of the Form
U4, and facts publicly available through FINRA's "statutorily-mandated
'BrokerCheck' website." We find this argument is unpreserved. See Elam v. S.C.
Dep't of Transp., 361 S.C. 9, 23, 602 S.E.2d 772, 779-80 (2004) ("Issues and
arguments are preserved for appellate review only when they are raised to and
ruled on by the [circuit] court."). In denying the motion to compel, the circuit
court declined to rule upon Appellants' request that it take judicial notice of FINRA
Rule 13200. In their motion to reconsider, they did not argue the circuit court
failed to rule on this request, nor did they request that the court take judicial notice
of any other matters. Therefore, we find Appellants' arguments that the circuit
court failed to take judicial notice of the foregoing facts are unpreserved. See
Elam, 361 S.C. at 24, 602 S.E.2d at 780 (noting a party must file a Rule 59(e),
SCRCP, motion when "an issue or argument has been raised, but not ruled on, in
order to preserve it for appellate review").
Authentication
Appellants argue the circuit court erred by failing to consider on authentication
grounds the Forms U4 dated 1994 and 1995 that it submitted at the hearing. We
agree.
"A party offering evidence must meet '[t]he requirement of authentication . . . as a
condition precedent to admissibility.'" Deep Keel, LLC v. Atl. Private Equity Grp.,
LLC, 413 S.C. 58, 64, 773 S.E.2d 607, 610 (Ct. App. 2015) (alteration and
omission in original) (quoting Rule 901(a), SCRE ("The requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.")). "'[T]he burden to authenticate . . . is not high' and requires
only that the proponent 'offer[ ] a satisfactory foundation from which the jury could
reasonably find that the evidence is authentic.'" Id. (alterations and omissions in
original) (quoting United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014)).
We conclude the circuit court abused its discretion by excluding the 1994 and 1995
Forms U4 submitted with the motion to compel based on Rule 901(a), SCRE.6
Jackson attested that, as a paralegal of Wells Fargo & Company, she had "access to
certain personnel records of current and former employees . . . and related
corporate entities." In addition, she stated "[t]he [attached] Form U4 for Mr. Berry
show[ed] that he was employed by Wheat First Securities Inc. at the time of its
filing." We acknowledge Jackson's affidavit did not explain what a Form U4 was,
identify the actual custodian of the document, or indicate that it was a true and
correct copy. However, because the burden to authenticate is low, we find the
foregoing was sufficient to satisfy Rule 901, SCRE, and the circuit court erred by
excluding these documents. We now turn to the question of whether these forms
established an agreement to arbitrate between the parties.
II. Denial of the Motion to Compel Arbitration
A. Agreement to Arbitrate
Forms U4
In their reply brief, Appellants argue the circuit court erred by rejecting Berry's
agreements to arbitrate based on the alleged failure of the choice of forum. In
addition, they argue the circuit court erred by finding no agreement between Wells
Fargo Advisors and Berry existed because Wells Fargo Advisors was not listed as
the firm on the 1994 and 1995 Forms U4. We disagree.
"The policies of the United States and this State favor arbitration of disputes."
New Hope Missionary Baptist Church, 379 S.C. at 630, 667 S.E.2d at 6.
"However, arbitration is a matter of contract[,] and a party cannot be required to
submit to arbitration any dispute [that] he has not agreed to submit." Gissel, 382
S.C. at 241, 676 S.E.2d at 323. "Arbitration is available only when the parties
involved contractually agree to arbitrate." Towles v. United HealthCare Corp., 338
S.C. 29, 37, 524 S.E.2d 839, 843-44 (Ct. App. 1999). "The initial inquiry to be
made by the [circuit] court is whether an arbitration agreement exists between the
6
The circuit court made no finding as to authentication of the records Appellants
submitted with their post-hearing motion. Therefore, its ruling as to authentication
did not extend to those documents.
parties." Hous. Auth. of City of Columbia v. Cornerstone Hous., LLC, 356 S.C.
328, 334, 588 S.E.2d 617, 620 (Ct. App. 2003). "The determination of whether an
arbitration agreement exists is 'a matter to be forthwith and summarily tried by the
[c]ourt.'" Id. at 335, 588 S.E.2d at 620 (quoting Jackson Mills, Inc. v. BT Capital
Corp., 312 S.C. 400, 404, 440 S.E.2d 877, 879 (1994)).
"In order to have a valid and enforceable contract, there must be a meeting of the
minds between the parties with regard to all essential and material terms of the
contract." Grant v. Magnolia Manor-Greenwood, Inc., 383 S.C. 125, 130, 678
S.E.2d 435, 438 (2009). "[O]nly if the choice of forum is an integral part of the
agreement to arbitrate, rather than an 'ancillary logistical concern[,]' will the failure
of the chosen forum preclude arbitration." Id. at 131, 678 S.E.2d at 438 (quoting
Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir. 2000)).
"Whe[n] designation of a specific arbitral forum has implications that may
substantially affect the substantive outcome of the resolution, . . . it is neither
'logistical' nor 'ancillary.'" Id. at 132, 678 S.E.2d at 439 (holding when the parties'
agreement stated disputes arising between the parties "shall be resolved by binding
arbitration administered by the National Health Lawyers Association," the specific
designation of that organization as an arbitrator was an "integral term of th[e]
arbitration agreement" and the organization's unavailability to arbitrate the parties'
dispute rendered the agreement unenforceable).
In Dean v. Heritage Healthcare of Ridgeway, LLC, our supreme court found that a
"named arbitral forum is not a material term to agreements in which the parties
agree to arbitrate 'in accordance with' the named forum's rules, absent other
evidence to the contrary" but opined that "when parties elect for a proceeding [to
be] 'administered by' a named forum, that forum should be viewed as integral to
the arbitration agreement, absent other evidence to the contrary." 408 S.C. 371,
384, 759 S.E.2d 727, 734 (2014). However, the Dean court distinguished cases in
which the parties agreed to arbitrate "in accordance with" the rules of an SRO. See
id. at 386 n.12, 759 S.E.2d 727, 735 n.12 (distinguishing two cases in which the
parties agreed to arbitrate "'in accordance with' a named forum's rules" because
those "cases involve[d] federal securities law and the decision to arbitrate before
a[n SRO]," which is a forum that "must operate in strict compliance with the
Securities and Exchange Act" (quoting Deeds v. Regence Blueshield of Idaho, 141
P.3d 1079, 1082 (Idaho 2006))); id. ("In contrast to the SROs, which are closely
governed by the Securities and Exchange Commission and have developed
complex regulatory schemes for overseeing arbitration of securities disputes, the
AAA simply provides a list of potential arbitrators from which the parties can
choose, as well as procedural rules for conducting the arbitration, and coordinates
the logistics of setting up the parties with the chosen arbitrator. . . . Unlike the
SROs, arbitration 'in accordance with the applicable rules of the AAA' is not
dependent on the AAA overseeing the arbitration." (quoting Deeds, 141 P.3d at
1082)).
We find the failure of the choice of forum invalidated the agreements contained in
the 1994 and 1995 Forms U4. Here, all three of the Forms U4 Appellants
submitted with their motion to compel arbitration listed "Wheat First Securities,
Inc." as the firm name, and the only SROs selected were the ASE, NASD, NYSE,
and PHLX. Even if any of these SROs still existed, the parties did not dispute they
no longer provided arbitration services. We find the arbitration forum was a
material and integral term of the agreement, and because the indicated
organizations no longer existed or provided arbitration services, there was no
enforceable agreement to arbitrate.
Further, we find none of the Forms U4 established an agreement to arbitrate
between Berry and Appellants. First, the agreements contained in the 1994 and
1995 Forms U4 were between Berry and a firm that no longer existed, and they
contained no language binding successors or assigns to the named firm.
Appellants, therefore, could not enforce any purported agreement to arbitrate
contained therein. Second, the 1999 and 2014 Forms U4 that Appellants submitted
with their motion to reconsider likewise failed to establish an enforceable
agreement to arbitrate between Berry and Appellants. Jackson's affidavit stated
"Wachovia Securities Financial Holdings, Inc." was the parent company of Wells
Fargo Clearing Services, LLC, formerly known as Wells Fargo Advisors, LLC,
and an "indirect subsidiary of Wells Fargo & Company." She attested "Wheat
First Securities, Inc." was "the predecessor in interest to Wells Fargo Advisors,
LLC" and gave the history of the mergers and acquisitions that resulted in the
creation of this entity. The 1999 Form U4 designated "Everen Securities" as the
firm name7 and contained the same arbitration clause that was included on the
1994 and 1995 Forms U4. However, this form contained no language indicating it
bound successors and assigns to the named firm. Further, FINRA was not yet in
existence and therefore was not included as an SRO on the 1999 Form U4.
Finally, the 2014 Form U4 designated Wells Fargo Advisors as the firm and
FINRA as an SRO, but it contained no arbitration agreement. Therefore, although
we acknowledge the 2014 form indicated Berry was registered with FINRA in
2014, we find neither the 1999 nor the 2014 form established Berry agreed to
arbitrate his claims against Appellants. See Towles, 338 S.C. at 37, 524 S.E.2d at
7
Zuhr attested Everen Securities was a predecessor of Wells Fargo Advisors.
843-44 ("Arbitration is available only when the parties involved contractually
agree to arbitrate."); Cornerstone Hous., LLC, 356 S.C. at 334, 588 S.E.2d at 620
("The initial inquiry to be made by the [circuit] court is whether an arbitration
agreement exists between the parties.").
FAA
Appellants contend the Federal Arbitration Act (the FAA)8 applies to "the
arbitration agreement found in the Form U4 [that] every registered representative
must complete to sell securities in the United States and compels arbitration for
claims such as those raised here." We disagree.
Even if a contested arbitration agreement complies with the FAA, the parties "must
still have agreed, as a matter of general state contract law, to arbitrate." See York v.
Dodgeland of Columbia, Inc., 406 S.C. 67, 80, 749 S.E.2d 139, 145 (Ct. App.
2013).
Appellants rely upon Stokes v. Metropolitan Life Insurance Co., 351 S.C. 606, 610,
571 S.E.2d 711, 713 (Ct. App. 2002) to support their argument. We acknowledge
that if an enforceable arbitration agreement in fact existed between the parties, the
FAA would apply, and Stokes supports this conclusion. See id. at 610, 571 S.E.2d
at 713. However, the parties in Stokes did not dispute the continued existence of
the named forum or that an agreement between the parties to arbitrate in fact
existed. See id. Further, the parties in Stokes did not raise the question of whether
the party seeking to compel arbitration was a party to the Form U4. Here, as we
stated, none of the Forms U4 contain an agreement between the parties to arbitrate
their disputes. Therefore, the FAA does not apply.
Based on the foregoing, we find the Forms U4 did not create an enforceable
agreement between the parties to arbitrate, and we affirm the circuit court's denial
of the motion to compel arbitration.
8
See, e.g., 9 U.S.C. § 2 (providing "an agreement in writing to submit to
arbitration an existing controversy arising out of such a contract . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract").
B. FINRA Rules as Independent Basis to Compel Arbitration
Appellants argue that regardless of whether the Forms U4 established an
enforceable agreement to arbitrate, FINRA Rule 13200 nevertheless required Berry
to arbitrate this dispute. They contend that to sell securities, Berry was required to
have an active Form U4 at all times, and FINRA Rule 13200 mandated arbitration
of all industry disputes. Appellants assert the enforceability of FINRA's rules
mandating arbitration is "so inescapable that courts have repeatedly held that the
rule itself is an enforceable, written agreement to arbitrate," and compelled
arbitration on those grounds. We disagree.
"Arbitration is available only when the parties involved contractually agree to
arbitrate." Towles, 338 S.C. at 37, 524 S.E.2d at 843-44. FINRA Rule 13200(a)
provides,
Except as otherwise provided in the Code, a dispute must
be arbitrated under the Code if the dispute arises out of
the business activities of a member or an associated
person and is between or among:
• Members;
• Members and Associated Persons; or
• Associated Persons.
"The term 'Code' means the Code of Arbitration Procedure for Industry Disputes."
See FINRA Rule 13100(h).
Even assuming Berry was registered as an associated person with FINRA, no
precedent requires us to conclude FINRA Rule 13200, in and of itself, constituted
an enforceable arbitration agreement between Berry and Appellants. Although
Appellants assert courts have uniformly interpreted a similar FINRA rule—Rule
12200—as an enforceable agreement to arbitrate, Rule 12200 pertains to disputes
between members and customers. See Waterford Inv. Servs., Inc. v. Bosco, 682
F.3d 348, 353 (4th Cir. 2012) ("The FINRA Code provides that a customer can
compel arbitration of a dispute 'between a customer and a member or associated
person of a member' when the dispute 'arises in connection with the business
activities of the member or the associated person.'" (quoting FINRA Rule 12200));
Id. ("This provision 'constitutes an "agreement in writing" under the
F[AA,] . . . which binds . . . [a FINRA] member, to submit an eligible dispute to
arbitration upon a customer's demand.'" (second alteration in original) (quoting
Wash. Square Secs., Inc. v. Aune, 385 F.3d 432, 435 (4th Cir. 2004))). We have
been unable to identify any precedent extending the foregoing interpretations to
FINRA Rule 13200. Notwithstanding the language of FINRA Rule 13200, we
conclude the record must demonstrate the parties agreed to arbitrate their disputes,
independent of either party's registration with FINRA. See Towles, 338 S.C. at 37,
524 S.E.2d at 843-44 ("Arbitration is available only when the parties involved
contractually agree to arbitrate."). As we stated, the Forms U4 Appellants included
with their motion to compel arbitration did not demonstrate an agreement to
arbitrate existed between Appellants and Berry. We conclude that without such an
agreement, FINRA Rule 13200 does not bind an associated person to arbitrate his
disputes with a member. Accordingly, even assuming Berry was registered as an
associated person with FINRA, we conclude FINRA Rule 13200 did not constitute
an independent basis upon which to compel him to arbitrate his claims.9 We
therefore affirm the circuit court's denial of the motion to compel arbitration.
CONCLUSION
For the foregoing reasons, the circuit court's ruling denying Appellants' motion to
compel arbitration is
AFFIRMED.
GEATHERS and MCDONALD, JJ., concur.
9
We need not consider Appellants' argument that Berry failed to establish a valid
defense to arbitration because they concede the circuit court did not rule upon this
question. See, e.g., Elam, 361 S.C. at 23, 602 S.E.2d at 779-80 ("Issues and
arguments are preserved for appellate review only when they are raised to and
ruled on by the [circuit] court.").