author: CHANDLER, Justice, for the Court:

text:
    MISSISSIPPI STATE AND SCHOOL EMPLOYEES’ LIFE AND HEALTH PLAN and Catalyst RX d/b/a Catalyst RX, Inc. v. KCC, INC., an Alabama Corporation d/b/a Vital Care of Meridian.
    No. 2011-CA-01716-SCT.
    Supreme Court of Mississippi.
    March 7, 2013.

      Wilson D. Minor, Alan M. Purdie, Grenada, William A. Davis, attorneys for appellants.
    Richard N. Kessler, Ned Milenkovich, Peter T. Berk, George H. Ritter, Jackson, attorneys for appellee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   CHANDLER, Justice, for the Court:

¶ 1. Mississippi Code Section 83-9-6(3) provides that “[a] health insurance plan, policy, employee benefit plan or health maintenance organization” may not prohibit a participant from selecting a pharmacy that has agreed to meet the terms, requirements, and reimbursement set forth by the insurer, or deny such a pharmacy the right to participate as a contract provider under the policy or plan. Miss.Code Ann. § 83-9-6(3) (Rev.2011). KCC, Inc., d/b/a Vital Care of Meridian (“Vital Care”) filed a complaint against the Mississippi State and School Employees’ Life and Health Plan (“the Plan”) and the Plan’s pharmacy benefits manager, Catalyst Rx (“Catalyst”), alleging that the Plan and Catalyst had violated Section 83-9-6 by designating Walgreens Pharmacy as the sole provider of specialty pharmacy services. Later, Vital Care moved for partial summary judgment on the question of whether Section 83-9-6 applied to the Plan. The Chancery Court of the First Judicial District of Hinds County granted Vital Care’s motion for partial summary judgment, and the Plan and Catalyst have appealed.

¶ 2. This Court finds that Section 83-9-6 applies to the Plan because it applies to “all health benefit plans providing pharmaceutical services benefits, including prescription drugs, to any resident of Mississippi” and is not ambiguous. Miss.Code Ann. § 83-9-6(1). Therefore, we affirm the grant of partial summary judgment in favor of Vital Care.

FACTS

¶ 3. Vital Care filed its complaint on April 30, 2010. Vital Care alleged that, since 1997, it has provided specialty pharmacy services to residents of Mississippi. Specialty pharmacy services involve dispensing and monitoring use of specialty drugs used for complex medical conditions, such as cancer, multiple sclerosis, and HIV/AIDS. Vital Care’s specialty pharmacy services include expertise in complex medical conditions, dispensing complex medications in specialized containers at the appropriate temperature, tailored patient counseling, medication compliance programs, and medical office support. Vital Care alleged that, since 2006, it has participated as an approved provider of specialty pharmacy services under the Plan, and that it has agreed and will continue to agree to provide specialty pharmacy services that meet the Plan’s terms and requirements and the Plan’s terms of reimbursement.

¶ 4. Vital Care alleged that, before October 2009, the Plan and Catalyst decided to close the Plan’s specialty pharmacy network effective January 1, 2010, at which time Walgreens Specialty Pharmacy would become the sole approved provider of specialty pharmacy services under the Plan. This decision was made and implemented by the State and School Employees’ Health Insurance Management Board, which administers the Plan. Miss.Code Ann. § 25-15-303(3) (Supp.2012). Vital Care alleged that the Plan and Catalyst took this action after Catalyst received an eight-million dollar payment from Wal-greens “in conjunction with forming an entity related to specialty pharmacy services and extending contracts with Wal-greens for mail order and specialty pharmacy services.” Vital Care alleged that the Plan and Catalyst’s actions violated Section 83-9-6, because Vital Care continues to meet or exceed all requirements for participation in the Plan and has agreed to the terms of reimbursement. Vital Care alleged that closure of the Plan’s specialty pharmacy network will cause it to lose a significant number of customers.

¶ 5. Vital Care requested injunctive relief pursuant to Section 83-9-6(6), which provides that “[a] violation of this section creates a civil cause of action for injunctive relief in favor of any person or pharmacy aggrieved by the violation.” Miss.Code Ann. 88-9-6(6) (Rev.2011). Vital Care requested preliminary or permanent injunc-tive relief to enjoin the Plan and Catalyst from excluding Vital Care from the Plan’s specialty pharmacy network, and from informing Plan beneficiaries that Vital Care is not an approved provider of specialty pharmacy services. Vital Care also requested a declaratory judgment that the Plan’s decision to close the specialty pharmacy network and select an exclusive provider for specialty pharmacy services violates Section 88-9-6.

¶ 6. After the Plan and Catalyst answered the complaint, Vital Care moved for partial summary judgment limited to the question of whether Section 83-9-6 applies to the Plan. The Plan and Catalyst filed responses, and Vital Care filed a reply to each response. A hearing occurred on October 18, 2010. The chancellor found that no genuine issue of material fact existed and that Section 83-9-6 applies to the Plan. Finding that there was no just reason for delay, the chancellor entered a final judgment under Mississippi Rule of Civil Procedure 54(b), and granted the parties’ joint request for a stay pending appeal. The Plan and Catalyst have appealed.

STANDARD OF REVIEW

¶ 7. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). This Court affords de novo review to the grant or denial of summary judgment. Miss. Dep’t of Env. Quality v. Pac. Chlorine, Inc., 100 So.3d 432, 439 (Miss.2012).

LAW AND ANALYSIS

A. Whether Section 8S-9-6 Applies to the Plan

¶ 8. The narrow question before the Court is whether Section 83-9-6 applies to the Plan. Section 83-9-6, enacted in 1994, is known as an “Any Willing Provider” statute. . Miss. Laws, 1994, Ch. 475 § 1. Section 83-9-6(1) provides:

83-9-6. Pharmaceutical services and prescription drug benefits
(1) This section shall apply to all health benefit plans providing pharmaceutical services benefits, including prescription drugs, to any resident of Mississippi. This section shall also apply to insurance companies and health maintenance organizations that provide or administer coverages and benefits for prescription drugs. This section shall not apply to any entity that has its own facility, employs or contracts with physicians, pharmacists, nurses and other health care personnel, and that dispenses prescription drugs from its own pharmacy to its employees and dependents enrolled in its health benefit plan; but this section shall apply to an entity otherwise excluded that contracts with an outside pharmacy or group of pharmacies to provide prescription drugs and services.

Miss.Code Ann. § 83-9-6(1) (Rev.2011) (emphasis added). Subsection (2)(c) states that “ ‘Health benefit plan’ means any entity or program that provides reimbursement for pharmaceutical services.” Subsection (8) states, in part:

(3) A health insurance plan, policy, employee benefit plan or health maintenance organization may not:
(a) Prohibit or limit any person who is a participant or beneficiary of the policy or plan from selecting a pharmacy or pharmacist of his choice who has agreed to participate in the plan according to the terms offered by the insurer;
(b) Deny a pharmacy or pharmacist the right to participate as a contract provider under the policy or plan if the pharmacy or pharmacist agrees to provide pharmacy services, including but not limited to prescription drugs, that meet the terms and requirements set forth by the insurer under the policy or plan and agrees to the terms of reimbursement set forth by the insurer; ....

Miss. Code Ann. § 83-9-8(3). Subsections (6)-(9) provide:

(6) A violation of this section creates a civil cause of action for injunctive relief in favor of any person or pharmacy aggrieved by the violation.
(7) The Commissioner of Insurance shall not approve any health benefit plan providing pharmaceutical services which does not conform to this section.
(8) Any provision in a health benefit plan which is executed, delivered or renewed, or otherwise contracted for in this state that is contrary to this section shall, to the extent of the conflict, be void.
(9) It is a violation of this section for any insurer or any person to provide any health benefit plan providing for pharmaceutical services to residents of this state that does not conform to this section.

Miss.Code Ann. § 83-9-6(6)-(9).

¶ 9. The Plan does not dispute that it is a “health benefit plan” as defined in Section 83 — 9—6(2)(c), or that Section 83-9-6(1) applies to “all health benefit plans.” The Plan contends that, because other statutes conflict with Section 83-9-6, there is ambiguity as to whether Section 83-9-6 applies to the Plan. The Plan argues that, due to this ambiguity, this Court must engage in statutory construction and reach the conclusion that the Legislature did not intend for Section 83-9-6 to apply to the Plan. Vital Care argues that Section 83-9-6 is not ambiguous, because the word “all” plainly encompasses all health benefit plans, including the Plan.

¶ 10. “When the language used by the legislature is plain and unambiguous ... and where the statute conveys a clear and definite meaning ... the Court will have no occasion to resort to the rules of statutory interpretation.” Miss. Ethics Comm’n v. Grisham, 957 So.2d 997, 1001 (Miss.2007) (quoting Marx v. Broom, 632 So.2d 1315, 1318 (Miss.1994)). “Courts have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the legislature.” Grisham, 957 So.2d at 1001 (quoting Marx, 632 So.2d at 1318). If a statute is deemed ambiguous and the Court resorts to statutory construction, then “all statutes in pari materia are taken into consideration and the legislative intent is deduced from the consideration as a whole.” Id. at 1002 n. 8 (quoting Williams v. Farmer, 876 So.2d 300, 303 (Miss.2004)).

¶ 11. Section 83-9-6 is not ambiguous. The statute states that it applies to all health benefit plans, and the Plan undis-putedly is a health benefit plan. The Plan makes several arguments that, due to conflicts with other statutes, Section 83-9-6 is ambiguous. We address each argument in turn.

1. Section 83-1-101

¶ 12. Section 88-9-6 is contained within Title 83, which is titled “Insurance.” Chapter 1 of Title 83 is titled “Department of Insurance.” Under Mississippi Code Section 83-1-1, the Department of Insurance is “charged with the execution of all laws (except as otherwise specifically provided by statute) now in force ... relative to all insurance and all insurance companies, corporations, associations, or orders.” Miss.Code Ann. § 83-1-1 (Rev.2011). Section 83-1-101 sets out the jurisdiction of the Department of Insurance, stating:

§ 83-1-101. Department of Insurance; jurisdiction; exception
Notwithstanding any other provision of law to the contrary, and except as provided herein, any person or other entity which provides coveraye in this state for medical, surgical, chiropractic, physical therapy, speech pathology, audiology, professional mental health, dental, hospital, or optometric expenses, whether such coverage is by direct payment, reimbursement, or otherwise, shall be presumed to be subject to the jurisdiction of the State Department of Insurance, unless the person or other entity shows that while providiny such services it is subject to the jurisdiction of another agency of this state, any subdivisions thereof, or the federal government.

Miss.Code Ann. § 83-1-101 (Rev.2011) (emphasis added).

¶ 13. The Plan argues that it is subject to the jurisdiction of another agency, namely, the State and School Employees’ Health Insurance Management Board (“the Board”). The Plan submitted the affidavit of the Commissioner of Insurance, Mike Chaney, stating that the Department of Insurance does not regulate the Plan. Rather, the Plan is administered by the Board, which is under the umbrella of the Department of Finance and Administration. Under Section 25-15-5, the Board “administers] the plan and is authorized to adopt and promulgate rules and regulations for its administration.” Miss.Code Ann. § 25-15-5 (Rev.2010). It must develop a five-year strategic plan for the Plan, which must address:

(a) Changing trends in the health care industry, and how they [affect] delivery of services to members of the plan.
(b) Alternative service delivery systems.
(c) Any foreseeable problems with the present system of delivering and administering health care benefits in Mississippi.
(d) The development of options and recommendations for changes in the plan.

Miss.Code Ann. § 25-15-5 (Rev.2010). The Board has “the sole authority to promulgate rules and regulations governing the operations of the insurance plans and shall be vested with all legal authority necessary and proper to perform this function including ... defining the scope and coverages provided by the insurance plan.” Miss.Code Ann. § 25-15-303(3)(a) (Rev. 2010). The State Insurance Commissioner sits on the Board. Miss.Code Ann. § 25-15-303(2)(c) (Rev.2010).

¶ 14. The Plan argues that Section 83-1-101 creates ambiguity. It argues that, because the Plan is not subject to the jurisdiction of the Department of Insurance, then Section 83-9-6, an insurance statute, cannot apply to the Plan. However, a finding that Section 83-9-6 applies to the Plan would not subject the Plan to the jurisdiction of the Department of Insurance. Section 83-9-6 is self-executing because it creates a private right of action for aggrieved participants and pharmacies. Miss.Code Ann. § 83-9-6(6) (Rev.2011). Although Section 83-9-6(7) states that “[t]he Commissioner of Insurance shall not approve any health benefit plan providing pharmaceutical services which does not conform to this section,” that subsection relates only to health insurance plans that, unlike the Plan, are required to obtain the Commissioner’s approval. Miss.Code Ann. 83-9-6(7) (Rev.2011). Further, as noted by Vital Care, Section 83-1-101 excludes the Plan only from the jurisdiction of the Department of Insurance, not from the entire Insurance Code.

¶ 15. The Plan cites an Attorney General’s Opinion which examined the statutes cited above and concluded that “the provisions of Title 83, ... which are placed squarely within the jurisdiction of the Department of Insurance, are not applicable to the State and School Employees Health Insurance Plan.” Martinson, Miss. Op. Atty. Gen.2002-0668 (Dec. 6, 2002). However, the Attorney General’s Opinion focused on Sections 83-9-31 and 83-9-5. Section 83-9-31 deals with coverage for alcoholism care and treatment; Section 83-9-5 sets out the required provisions for insurance policies. Miss.Code Ann. 83-9-31 (Rev.2011); Miss.Code Ann. 83-9-5 (Supp.2012). Both of those sections deal with the scope and coverage of an insurance policy, matters soundly within the jurisdiction of the Board under Section 25-15-303(3). An Attorney General’s Opinion is merely persuasive authority, Pratt v. Gulfport-Biloxi Regional Airport Authority, 97 So.3d 68, 75 n. 4 (Miss.2012), and we reject the Opinion’s broad conclusion that no part of Title 83 applies to the Plan.

¶ 16. Further, another section of Title 83, Section 83-9-8, specifically states that it applies to the Plan. Section 83-9-8 prevents insurers from denying coverage of cancer drugs on the ground that the drug has not been approved by the Food and Drug Administration. Miss.Code Ann. § 83-9-8(1) (Rev.2011). Section 83-9-8 provides a definition of “insurance policy” stating that “the term shall include all health insurance plans for the state and its political subdivisions.” Miss.Code Ann. § 83-9-8(3)(a). Because Section 83-9-8 deals with the scope and coverage of an insurance policy, a matter committed to the Board, the Legislature specifically announced that the section applies to the Plan. The specific applicability of Section 83-9-8 to the Plan shows that the Plan does not have a blanket exemption from the entire Insurance Code.

2. Section 25-15-303(3) (a)

¶ 17. Section 25-15-303(3)(a) states that the Board has “the sole authority to promulgate rules and regulations governing the operation of the insurance plans and shall be vested with all legal authority necessary and proper to perform this function including ... defining the scope and coverages provided by the insurance plan.” Miss.Code Ann. § 25-15-303(3)(a). The Plan argues that its authority to define the scope and coverages provided by the Plan conflicts with Section 83-9-6. We disagree, because Section 83-9-6 does not interfere with the Plan’s scope and coverage. Section 83-9-6 requires the Plan to allow the participation of all providers that meet the Plan’s terms and requirements and terms of reimbursement. This requirement does not interfere with the Board’s mandate to define the Plan’s scope and coverage. The Board defines the scope and coverage for specialty drugs by determining what drugs the Plan will cover, what rates of reimbursement will apply, and whether the Plan will have a separate network for specialty drugs. But, once the Board makes these scope and coverage determinations, Section 83-9-6 restricts the Plan from excluding providers that agree to the Plan’s terms and requirements and terms of reimbursement. No conflict or ambiguity is created by Section 25-15-303(3)(a).

3. Section 83-9-8

¶ 18. Section 83-9-8 prevents insurers from denying coverage of cancer drugs on the ground that the drug has not been approved by the Food and Drug Administration. Miss.Code Ann. § 83-9-8(1) (Rev. 2011). Section 83-9-8 defines “insurance policy” as including “all health insurance plans for the state and its political subdivisions.” Miss.Code Ann. § 83-9-8(3)(a). The Plan argues that, as in Section 83-9-8, when the Legislature intends for an insurance statute to encompass the Plan, it expressly provides that the State is within the statute’s reach. The Plan contends that, because Section 83-9-6 does not expressly state that it applies to the State, the statute does not apply to the Plan.

¶ 19. Section 83-9-8 deals with the scope and coverage of insurance policies by requiring them to cover cancer drugs unapproved by the FDA. But under Section 25-15-303(3), defining the scope and coverage of the Plan is committed to the Board. Therefore, the Legislature had to include specific language to make Section 83-9-8 applicable to the Plan. In contrast, Section 83-9-6 does not interfere with the Board’s authority to define the scope and coverage of the Plan, and no specific language was needed to include the Plan. The Plan was included by the language “all health benefit plans.” Section 83-9-8 does not create ambiguity as to the applicability of Section 83-9-6 to the Plan.

k. Deference

¶ 20. An agency’s interpretation of its governing statutes is reviewed de novo, but with deference to the agency’s interpretation. Diamond Grove Center, LLC v. Miss. State Dep’t of Health, 98 So.3d 1068, 1071 (Miss.2012). This Court has held that “unless an agency’s interpretation of a [governing] statute ‘is repugnant to the plain meaning thereof, [the courts are] to defer to the agency’s interpretation.’ ” Id. (quoting Queen City Nursing Center, Inc. v. Miss. State Dep’t of Health, 80 So.3d 73, 84 (Miss.2011)). But “[t]his does not mean that we ‘yield judgment or opinion’ to an agency’s statutory interpretation; indeed, ‘[t]he ultimate authority and responsibility to interpret the law, including statutes, rests with this Court.’ ” Id. While the agencys interpretation is “an important factor that usually warrants strong consideration,” we give no weight to an agency interpretation that “is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, or contrary to the unambiguous language or best reading of a statute.” Id. (citing statute. Dialysis Solution, LLC v. Miss. State Dep’t of Health, 31 So.3d 1204, 1211 (Miss.2010)).

¶ 21. The Plan argues that this Court must defer to the Board’s construction of its governing statute, Section 25-15-303(3), which grants the Board the sole authority to define the scope and coverage of the Plan. The Board argues that it examined Section 25-15-303(3) and determined that Section 83-9-6 does not apply to the Plan, and that this agency decision is entitled to deference. But because Section 83-9-6, which applies to “all health benefit plans” is not ambiguous, the Board’s interpretation is contrary to the unambiguous terms of Section 83-9-6 and no deference is due.

¶ 22. Further, even if Section 83-9-6 were ambiguous, no deference would be due to the Board’s determination that it is not governed by Section 83-9-6. This Court has stated that it gives deference to an agency’s interpretation of its governing statutes because of “our realization that the everyday experience of the administrative agency gives it familiarity with the particularities and nuances of the problems committed to its care which no court can hope to replicate.” Miss. Methodist Hosp., 21 So.3d at 606 (quoting Gill v. Miss. Dep’t of Wildlife Conservation, 574 So.2d 586, 593 (Miss.1990). While agency deference applies to an agency’s interpretation of its governing statutes, no deference is due to an agency’s attempt to select the statutes that govern its operations.

B. Applicability of the Chancellor’s Decision to Catalyst

¶23. Catalyst argues that Section 83-9-6 does not apply to Catalyst, because Catalyst is the Plan’s third-party administrator, not a “health benefit plan[ ] providing pharmaceutical services benefits,” an insurance company, or a health maintenance organization. Miss.Code Ann. § 83-9-6. Catalyst makes two arguments: (1) that the chancellor did not address whether Section 83-9-6 applies to Catalyst, and (2) that the “lower court’s decision applying the statute to Catalyst is wrong as a matter of law.” Catalyst admits, however, that if the statute applies to the Plan, then Catalyst, as the Plan’s agent, cannot perform any act that the Plan could not perform.

¶ 24. We have examined the chancellor’s Order granting summary judgment and Order of Certification of Final Judgment, and find that the chancellor did not hold that Section 83-9-6 applies to Catalyst. The Order states:

The Court hereby finds that no genuine issue of material fact exist[s] as to the question of whether Mississippi Code Annotated 83-6-9[sic] applies to the Mississippi State and School Employees’ Life and Health Plan (“the Plan”). The Court finds that Section 83 — 6—9[sic] does apply to this matter. Therefore, the Plaintiff is entitled to a partial summary judgment as a matter of law, to that effect.

The final judgment order states:

Vital Care asserted two claims for relief in its Complaint: (1) a request for an injunction requiring the Defendants to allow Vital Care to provide specialty pharmacy services to Plan participants and (2) a declaratory judgment that the Any Willing Provider Statute, Mississippi Code 83-9-6, applies to the Plan and the Defendants’ actions violate the Any Willing Provider Statute. On August 4, 2010, Vital Care filed a Motion for Partial Summary Judgment seeking a declaration from this Court that Mississippi Code Annotated 83-9-6 applies to the Plan. After hearing argument of counsel on this matter, the Court ... granted Vital Care’s Motion for Partial Summary Judgment, finding that Section 83-9-6 applies to the Plan (“the Order”).

(Emphasis added.)

¶ 25. It is plain from the chancellor’s orders that the grant of partial summary judgment was limited to the question of whether Section 83-9-6 applies to the Plan. The chancellor did not hold that Section 83-9-6 applies to Catalyst. Because the chancellor did not hold that Section 83-9-6 applies to Catalyst, this issue is without merit.

CONCLUSION

¶ 26. Section 83-9-6 applies to the Plan because it applies to “all health benefit plans providing pharmaceutical services benefits, including prescription drugs, to any resident of Mississippi” and is not ambiguous. Therefore, we affirm the grant of partial summary judgment in favor of Vital Care.

¶ 27. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . At the hearing, counsel for Catalyst stated that the Plan pays an average of $2,000 per prescription for specialty drugs. The participant’s co-payment is $65. These drugs represent .4% of all prescriptions filled, but represent more than sixteen percent of the Plan’s total prescription drug expenditure. The Plan argued that it made Walgreens the exclusive provider in order to contain the increasing costs the Plan was spending on specialty drugs.

      . The question of whether the designation of Walgreens to be the exclusive provider of specialty drugs violates Section 83-9-6 is not before the Court, because it was not encompassed by the chancery court’s grant of partial summary judgment. See M.R.C.P. 54(b) (providing for entry of final judgment on fewer than all of the claims before the court).

      . There is no evidence in the record, such as meeting minutes, showing that the Board engaged in any statutory analysis before designating Walgreens as the sole provider.


source: Caselaw Access Project

author: RUSSELL, J., for the Court:

license: Public Domain

text:
    Dorothy KNIGHT, Appellant v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, Appellee.
    No. 2010-CC-01586-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 15, 2012.

      George S. Luter, attorney for appellant.
    Jane L. Mapp, Katherine Lester Trundt, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J., for the Court:

¶ 1. Dorothy Knight filed an application for disability benefits with the Public Employees’ Retirement System (PERS). Knight’s application was denied by the PERS Medical Board, and she appealed to the PERS Disability Appeals Committee (Committee). The Committee recommended to the PERS Board of Trustees (Board) that the benefits be denied. The Board agreed with the recommendation and denied disability benefits to Knight. Knight appealed to the Circuit Court of the First Judicial District of Hinds County, which affirmed the decision of the Board. Knight appeals that decision, arguing it was not supported by substantial evidence. Upon review, we find no error. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Knight was employed as a committee assistant for the Mississippi State Senate for over twenty-five years. As a committee assistant, Knight was required to be on her feet, run up and down stairs, stand at the copy machine, prepare for committee meetings, and perform other administrative and clerical tasks. During session, Knight was required to work a minimum of nine to fourteen hours per day. According to Knight’s supervisors and colleagues, she rarely missed a day of work and was a hard-working, devoted employee.

¶ 3. On April 28, 2006, Knight filed an application for retirement benefits with PERS seeking non-duty related disability benefits. Knight resigned a few months later. On her medical-information form, Knight stated that her disability consisted of the following:

Severe pain in feet; numbness in feet causing me to feel off balance. Have had pain for 17 years; has become more severe last 2 years. My feet are numb all the time now; however, I can still feel the pain coming from inside my feet. Also, both feet are red and look as though they have fever. They also stay swollen most of the time. I have broken capillaries on top of both feet. Every step I take is painful.

¶ 4. Several hearings were held before the Committee. Knight confirmed she had problems with her feet for the past seventeen or eighteen years, and she resigned her position with the Mississippi Senate because these problems became more severe in the last two or three years. Specifically, Knight testified: she had pain inside her feet; her feet would turn red and feel hot as though they had a fever; she had a “stabbing” or “throbbing” or “burning” sensation at times; and every step was “totally agonizing.” Knight felt as though someone was trying to push a fist through the bottom of her foot. She also complained of numbness in her feet all the way up through her knees. According to Knight, she felt as though she was wearing a pair of body socks half way up her legs. Knight stated she had pain in her feet all the time, but she would experience excruciating pain every once in a while. Knight testified that the only problems preventing her from working were her feet and, toward the end of her time at the Senate, her restless-leg syndrome (RLS).

¶ 5. Knight testified she never asked her employer for accommodations such as a scooter, rolling wheelchair, or walking device because such accommodations were not really possible as a committee assistant. According to Knight, such devices would be an obstacle because she was required to jump up and go on a regular basis. Knight testified she tried different types of shoes to help relieve her pain, along with shoe inserts, but neither helped alleviate her problems. She stated she never tried orthopedic shoes, and she never wore tennis shoes at work. Instead, she only wore flats. Knight noted that at the time of the hearing, she wore nothing but Keds tennis shoes. Knight stated she avoided going out to lunch to avoid being on her feet. Knight confirmed she did not apply for benefits from the Social Security Administration.

¶ 6. According to Knight, Dr. Yawn, now deceased, diagnosed Knight with peripheral neuropathy back in 1988 or 1989. Knight’s sister, Bettie Knight (“Bettie”), stated she personally attempted to obtain these records, but she was unable to do so. Knight herself testified that Dr. Yawn’s records had been transferred to Dr. Ann Meyers, but Dr. Meyers destroyed the records after holding them for a seven-year period.

¶ 7. Dr. Richard Weddle, a neurologist, performed a nerve-conduction study, which turned out to be normal. Dr. Weddle informed Knight she did not have peripheral neuropathy. Dr. Weddle also told Knight he did not know what was causing her foot pain. Instead, he diagnosed Knight with vascular headaches, RLS, and some edema of her feet with some discolored skin probably due to venous insufficiency.

¶ 8. Knight was evaluated by Dr. Alan R. Moore, who also conducted a nerve-conduction study, which was normal. He further stated there was no evidence of neuropathy contributing to feet pain, and the examination was more consistent with an orthopedic process.

¶ 9. In accordance with the Committee’s request, Knight was evaluated by Dr. Samuel H. Peeples, an internist, who conducted an independent medical examination. Dr. Peeples’s report in pertinent part states:

The patient’s symptoms are very suggestive of peripheral neuropathy. The symptoms[,] as she describes them to me[,] are severe enough that it would suggest the possibility of disability. The difficulty is that her nerve conduction studies were normal just two years ago. Also[,] the fact that Dr. Weddle, her neurologist, has not stated on forms or in his progress notes that there symptoms are severe enough for disability. It is possible that she may need repeat nerve conduction studies since she says that her symptoms have worsened, and we may need to obtain Dr. Weddle’s opinion about this. At this point, I cannot state that she is disabled, although she seems to be a truthful patient. It does appear that her symptoms are aggravated a great deal by her work.

¶ 10. The Committee also referred Knight to Dr. Phillip Blount, an orthopedic surgeon. Dr. Blount reviewed three elec-trodiagnostic evaluations, all of which failed to demonstrate peripheral neuropa-thy. He opined that Knight’s complaints were not related to her work as a committee assistant. Dr. Blount stated that he would defer to Dr. Weddle, the neurologist, for peripheral neuropathy judgment. He did acknowledge that “[i]t is well known in the medical literature that un-myelinated type C pain fibers can cause painful neuropathy!,] and these are not detected on routine electrodiagnostic evaluations”; therefore, he found it was possible that she did have a peripheral neuro-pathy which was not detected on nerve-conduction studies or needle EMG. He noted that Knight had some arthritic changes in her feet. Dr. Blount indicated Knight had reached maximum medical improvement, and he gave her a seventeen percent whole-person impairment rating based on gait and mobility. He recommended referral to an orthotist for shoe modifications to include a metatarsal bar to offload her metatarsal head and to provide cushioning to the soles of her feet. Finally, Dr. Blount opined Knight was suitable for sedentary work, but she should not be asked to walk long distances.

¶ 11. Dr. B.T. Sullivan, a podiatrist, informed Knight that she had a broken bone on the top of her right foot, several broken toes, and a bunion on each foot. He eventually performed surgery to correct most of these problems. According to Knight, Dr. Sullivan opined the numbness in her feet and her other foot pain had nothing to do with the broken bones or bunions.

¶ 12. The Mississippi Senate Comptroller testified Knight could not perform her job because the rigors of working for the Legislature during session required a minimum of nine to fourteen hours per day, and the job demanded that she constantly be on her feet. She further stated Knight could no longer perform her job without enduring debilitating pain, but if this pain was corrected, she could continue to work. Finally, she stated that all positions for which Knight would be qualified would require similar or increased job duties.

¶ 13. Three senators who personally worked with Knight testified on her behalf. Each testified they personally observed Knight’s health decline to the point she could no longer function. They observed Knight humped over, with her neck drawn to one side. This was the first time any neck issues were brought up before the Committee, as Knight had not previously complained of any problems with her neck. Knight then testified she did have some problems with her neck and slouching over, and she went to a chiropractor for an adjustment, which seemed to help. The senators also testified it was obvious to them how much pain Knight was in on a daily basis, and it was heartbreaking to watch her suffer. They also stated Knight would complain about the pain in her feet.

¶ 14. Janet Trotter, who worked with Knight, testified she observed Knight in great pain, particularly in the past two or three years. She stated people at work were always asking what was wrong with Knight. Trotter testified, despite Knight’s pain, she had one of the strongest work ethics she had ever seen.

¶ 15. Knight’s sister, Bettie, testified Knight had some falls due to her poor balance. She also stated Knight would wake up screaming and holding her feet in the middle of the night when they lived together. Bettie testified she saw Knight’s head hit the bathroom floor and turn black and blue after a fall on one occasion. Knight’s friend, Ellis Morrison, testified he has seen Knight fall in the kitchen many times, and she fell in the doctor’s office just days prior to the hearing.

¶ 16. The Committee submitted its proposed statement of facts, conclusions of law, and recommendations to the Board of Trustees, which provided in part:

The employer’s certification of job description states that Ms. Knight does her job but with pain. Pain is subjective[,] and there is no way to measure it. There is no statutory provision wherein an award of disability can be granted for pain when no objective reason for that pain can be produced. We have no proof of a medical illness that is causing Ms. Knight’s pain. We have noted that she has some arthritis of the feet but that does not explain the complaints of sock like numbness and fever. We cannot recommend disability without persuasive and credible objective medical evidence of a disability. Thus, in this case, we cannot recommend Ms. Knight’s request for disability be approved.

¶ 17. The question before us is whether there is substantial evidence to support the PERS’s decision to deny Knight disability benefits. Finding no error, we affirm.

DISCUSSION

¶ 18. We begin by noting, “[t]his Court applies a limited standard of review to the decisions of administrative agencies.” Stevison v. Pub. Employees Ret. Sys., 966 So.2d 874, 878 (¶ 15) (Miss.Ct.App.2007) (citing Pub. Employees Ret. Sys. v. Ross, 829 So.2d 1238, 1240 (¶ 11) (Miss.2002)). We will reverse an agency’s decision only when it is “unsupported by substantial evidence, was arbitrary and capricious, was beyond the power of the agency to make, or violated some constitutional or statutory right of the complaining party.” Id. (citing Ross, 829 So.2d at 1240 (¶ 8)).

¶ 19. “ ‘Substantial evidence’ has been defined as “that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Id. at 878-79 (¶ 16) (citing Pub. Employees Ret. Sys. v. Dishmon, 797 So.2d 888, 892 (¶ 13) (Miss.2001)). Further, “[t]o be substantial, the evidence must be something more than a mere scintilla or suspicion.” Id. at 879 (¶ 16) (citing Pub. Employees Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000)). Our supreme court has defined substantial evidence as “relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Pub. Employees Ret. Sys. v. Cobb, 839 So.2d 605, 609 (¶ 14) (Miss.Ct.App.2003) (quoting Marquez, 774 So.2d at 425 (¶ 13)).

¶ 20. Additionally, “[i]f an agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Stevison, 966 So.2d at 879 (¶ 16) (quoting Marquez, 774 So.2d at 430 (¶ 35)). A decision by an administrative agency is arbitrary “if not done .according to reason or judgment, but depending on the will alone.” Id. (quoting Miss. State Dep’t of Health v. Natchez, 743 So.2d 973, 977 (¶ 13) (Miss.1999)). “An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Id.

¶21. The applicant for disability benefits has the burden of proving her right to compensation. Cobb, 839 So.2d at 609 (¶ 15) (citing Thompson v. Wells-La mont Corp., 362 So.2d 688, 641 (Miss.1978)). If evidence was lacking at the agency level, this lack of evidence may become the substantial evidence on appellate review to support a disposition affirming the agency’s determination. Id. at 609-10 (¶ 16). Thus, the substantial-evidence requirement may be satisfied “by an appellate determination that the agency’s conclusion that the claimant’s evidence was so lacking or so unpersuasive that she failed to meet her burden[.]” Id. at 609 (¶ 16).

¶ 22. There is a rebuttable presumption “in favor of the action of an administrative agency, and the burden of proof is on the party challenging an agency’s action.” Marquez, 774 So.2d at 425 (¶ 11) (citing Brinston v. Pub. Employees Ret. Sys., 706 So.2d 258, 260 (¶ 6) (Miss.Ct.App.1998)). “In administrative matters, the agency, and not the reviewing court, sits as [the] finder of fact.” Cobb, 889 So.2d at 609 (¶ 12) (citing Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296 (Miss.1990)). “That fact-finding duty includes assessing the credibility of witnesses and determining the proper weight to give to a particular witness’s testimony.” Id. (citing Walker Mfg. Co. v. Butler, 740 So.2d 315, 325 (¶ 46) (Miss.Ct.App.1998)). This Court “is obligated to afford such determinations of credibility in the fact-finding process substantial deference when reviewing an administrative determination on appeal[,] and the court exceeds its authority when it proceeds to re-evaluate the evidence and makes its own determination of the trustworthiness of some particular testimony.” Id. (citing Smith v. Jackson Const. Co., 607 So.2d 1119, 1123-24 (Miss.1992)).

¶ 23. Our Legislature created a retirement system to provide retirement benefits and other benefits to state employees. Miss.Code Ann. § 25-11-101 (Rev.2010). Pursuant to Mississippi Code Annotated section 25-11-113(l)(a)-(b) (Supp.2011), disability benefits may be awarded as follows:

Upon the application of a member or his employer, any active member ... may be retired ... provided that the medical board, after an evaluation óf medical evidence that may or may not include an actual physical examination by the medical board, certifies that the member is mentally or physically incapacitated for the further performance of duty, that the incapacity is likely to be permanent, and that the member should be retired; however, the board of trustees may accept a disability medical determination from the Social Security Administration in lieu of a certification from the medical board. For the purposes of disability determination, the medical board shall apply the following definition of disability: the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System ... that is actually offered and is within the same general territorial work area, without material reduction in compensation.
Any inactive member ... is not eligible for a disability retirement allowance unless the disability occurs within six (6) months of the termination of active service and unless satisfactory proof is presented to the board of trustees that the disability was the direct cause of withdrawal from state service.

¶ 24. Applying this statute, “[t]he question before the PERS Medical Board, the Disability Committee, and the Board of Trustees was whether or not [the applicant’s] claim met the statutory requirements for receipt of permanent disability benefits.” Marquez, 774 So.2d at 425 (¶ 14). Thus, there are two requirements that must be satisfied before an applicant is determined disabled. Id. First, the medical board must evaluate the medical evidence and “certify that the applicant is ‘mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired.’ ” Id. “Second, the medical board must apply the statutory definition of ‘disability’ ” as set forth in the above-stated statute. Id. at 426 (¶ 14).

¶ 25. In Laughlin v. Public Employees Retirement System, 11 So.3d 154, 155 (¶¶ 3-4) (Miss.Ct.App.2009), a teacher applied for disability benefits claiming she was permanently disabled primarily due to pain. Following a hearing, disability benefits were denied, and the teacher appealed. Id. at 158 (¶ 16). The teacher argued that the testimonies of two of her former coworkers supported her claim for disability. Id. at (¶ 19). These colleagues testified: they observed the teacher in pain; they would cover her shifts at times; and the teacher often complained about her pain. Id. at 158-59 (¶ 19). The teacher further argued her doctor’s conclusion that her “disability [was] manifested] mainly by the level of pain” supported an award of disability benefits. Id. at 159 (¶ 20). Finally, the teacher argued “the Committee improperly dismissed her complaints of pain, concluding that it could not award her disability benefits because ‘pain, unfortunately[,] cannot be measured objectively.’ ” Id. This Court found the doctor was merely expressing an opinion regarding the level of pain, not an opinion that the teacher was disabled. Id. at 159 (¶ 21). We also distinguished Lynn Laughlin’s case from two other cases where disability benefits were awarded as follows:

[W]e think it is appropriate to mention two opinions rendered by this Court: Stevison v. [Pub. Employees Ret. Sys.], 966 So.2d 874, 875 (¶ 1) (Miss.Ct.App.2007) and [Pub. Employees Ret. Sys.] v. Waid, 823 So.2d 595, 598 (¶ 12) (Miss.Ct.App.2002). In each of these cases, on facts very similar to the facts in today’s case, we either reversed or approved the circuit court’s reversal of PERS’s decision denying disability benefits to the claimants. However, these cases are distinguishable from the case before us, as in each of them a physician stated emphatically that the claimant was disabled. See Stevison, 966 So.2d at 880 (¶ 19); Waid, 823 So.2d at 598 (¶ 10). Unlike the physicians in Stevison and Waid, all of the physicians in our case either offered no opinion regarding Laughlin’s disability or concluded that she was not disabled.

Laughlin, 11 So.3d at 159 (¶ 23). Therefore, this Court affirmed the judgment of the circuit court denying disability benefits. Id. at 162 (¶ 28).

¶26. Like the Laughlin case, each of Knight’s doctors either offered no opinion regarding Knight’s disability or determined Knight was not disabled. Not a single doctor concluded Knight was permanently incapacitated or incapable of returning to her employment as required under the statute. Although one doctor stated her symptoms were suggestive of peripheral neuropathy, which could suggest the possibility of disability, he ultimately concluded she was not disabled.

¶27. All of Knight’s nerve-conduction studies were normal. Knight admitted she never asked for accommodations at work, and she never sought shoe modifications. Instead, Knight wore flats and Keds tennis shoes. According to Knight and her colleagues, Knight did not miss work due to pain. In sum, this is a case where evidence to support disability is simply lacking. See Cobb, 839 So.2d at 609-10 (¶ 16) (holding that “in something of a paradox, the lack of evidence at the agency level becomes the substantial evidence on appellate review that suggests the necessity of affirming the agency’s determination”).

¶28. We find there is substantial evidence to support the decision of the circuit court in affirming the decision of the Board to deny Knight disability benefits. Therefore, the judgment of the circuit court is affirmed.

If 29. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, P.J., AND CARLTON, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.


author: FAIR, J., for the Court:

text:
    David E. FLEISHER, Appellant/Cross-Appellee v. SOUTHERN AGCREDIT, FLCA f/k/a Land Bank South, FLCA, Appellee/Cross-Appellant.
    No. 2010-CA-01594-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.
    Rehearing Denied Aug. 7, 2012.
    Certiorari Granted Nov. 15, 2012.
    Certiorari Dismissed March 7, 2013.

      Nicholas Van Wiser, Biloxi, Dawn Elizabeth Larsh Norris, Dana Carl Matthews, attorneys for appellant.
    Jeffrey Monroe Williams, Matthew Robert Dowd, Jackson, attorneys for appellee.
   FAIR, J., for the Court:

¶ 1. In February 2009, Southern AgCre-dit filed a complaint in the Stone County Circuit Court against David Fleisher, seeking judgments on four loans that were in default. Following discovery, both parties moved for summary judgment. The trial court granted partial summary judgment to Southern AgCredit. The court found that Fleisher had personally guaranteed the loans, but a fact question still existed as to the amounts owed under the loans. Fleisher’s motion was denied.

¶ 2. In June 2010, a bench trial was held on the issue of whether the value of the properties was sufficient to satisfy the loans held by Southern AgCredit. The trial court found it was not, and Fleisher owed Southern AgCredit a deficiency of $351,300.75 on three of the four loans. The court did not make a ruling on the fourth loan because it was in bankruptcy and under the protection of the automatic stay.

¶ 3. Fleisher now appeals, asserting Southern AgCredit did not meet its burden of proof to establish a deficiency judgment. Southern AgCredit cross-appeals, contending that the trial court erred in not holding Fleisher personally liable for the entire amount of the fourth loan. We affirm on Fleisher’s direct appeal. However, we find Southern AgCredit’s cross-appeal meritorious, so we remand the case to the circuit court for a determination of the amount due under the final guaranty.

FACTS

¶ 4. After Hurricane Katrina struck the Mississippi Gulf Coast in 2005, Fleisher, William M. Adkinson, Lee F. Kennedy, and Robert T. Windham sought to purchase and develop certain tracts of land in the devastated areas. The four men formed a total of twenty-one limited liability companies and named them Mississippi Investors I-XXI. The lawsuit filed by Southern AgCredit that is the issue of this appeal involved four of these LLCs-Mis-sissippi Investors VII, VIII, X, and XIV (MS VII, MS VIII, MS X, and MS XIV). Each investor owned different Florida companies, and each Florida company was a member of the four LLCs.

¶ 5. In 2006, Southern AgCredit issued loans to MS VII, VIII, X, and XIV. The loans were secured by deeds of trust on the land that was purchased. Fleisher, Adkinson, Kennedy, and Windham each signed personal guaranties on the loans. The guaranties stated that each individual was liable for 140% of his 25% ownership interest in the LLCs. Sometime after the loans were closed, Fleisher and Kennedy sold their interests in the four LLCs to Adkinson. However, they were still bound by their personal guaranties on the loans.

¶ 6. Between June and September 2006, Southern AgCredit obtained appraisals for each of the properties. Michael Elliot (Michael), a Mississippi certified general real estate appraiser, performed the appraisals. Michael was an employee of and senior appraiser for Southern AgCredit. Joe Mallard assisted with the appraisals. Mallard was a registered forester and loan officer at Southern AgCredit. Mallard performed timber cruises for each of the properties and prepared a detailed evaluation of the value of the timber. The timber value was included as part of the appraised value of each property. A second appraisal was performed by Michael in March 2008. Mallard did not participate in this appraisal. The revised appraisals did not include any value for timber.

¶7. By August 2008, all of the loans were in default. Southern AgCredit filed suit in the Stone County Circuit Court against Fleisher, Adkinson, Kennedy, and Windham seeking to recover on the loans pursuant to the personal guaranties. Southern AgCredit also sought to recover attorney’s fees and costs in the amount of $80,448.92.

¶ 8. The four LLCs eventually filed for bankruptcy. MS VII, X, and XIV failed to make adequate protection payments on the loans. The bankruptcy court lifted the automatic stay on these three properties, which allowed Southern AgCredit to start foreclosure proceedings. The automatic stay on MS VIII was not lifted because a plan of reorganization had been proposed. In January 2010, a foreclosure auction was held to sell the properties securing the loans for MS VII, X, and XIV. Southern AgCredit was the sole bidder and purchased each piece of property.

¶ 9. Fleisher does not dispute that he is liable under the personal guaranties. Fle-isher’s argument is that he owes nothing to Southern AgCredit because the fair market value of the properties exceeded the amounts owed on the loans when the properties were sold. The trial court disagreed with Fleisher and awarded Southern AgCredit a deficiency judgment. The trial court found the deficiencies on the loans were as follows: MS VII-$299,068; MS X-$326,766.25; and MS XIV-$377,882.17. According to his personal guaranty, Fleisher was responsible for 140% of his 25% share in each of the LLCs. Thus, the amounts owed by Fleisher were determined to be as follows: MS VII-$104,673.80; MS X-$114,368.19; and MS XIV-$132,258.76. The total judgment against Fleisher was $351,300.75. In making these calculations, the trial court took into account the discrepancies between the 2006 and 2008 appraisals. Also, Fleisher was ordered to pay court costs and post-judgment interest of 8% per annum.

¶ 10. In addition to the award given by the trial court, Southern AgCredit sought the full balance of the MS VIII loan because no foreclosure sale had taken place. The balance on this loan was $3,150,000. The trial court found that any judgment regarding MS VIII would be premature because a reorganization plan was pending in the bankruptcy court.

STANDARD OF REVIEW

¶ 11. An appellate court affords a circuit court judge sitting without a jury the same deference as a chancellor. City of Jackson v. Perry, 764 So.2d 373, 376 (¶ 9) (Miss.2000). That is, after reviewing the entire record, we will affirm if the judge’s findings of fact are supported by substantial, credible evidence and are not manifestly wrong or clearly erroneous. Id. Errors of law are reviewed de novo. Id.

DISCUSSION

1. On Direct Appeal by Fleisher

¶ 12. Fleisher argues he owes no deficiencies on the loans because Southern AgCredit failed to prove the foreclosure sales were just and equitable.

¶ 13. To be entitled to a deficiency judgment, Southern AgCredit bore the burden of proving that it had “endeavored to collect the indebtedness out of the land.” Hartman v. McInnis, 996 So.2d 704, 711 (¶ 22) (Miss.2007) (citing Lake Hillsdale Estates, Inc. v. Galloway, 473 So.2d 461, 466 (Miss.1985)). An additional burden is imposed because Southern AgCredit was the mortgagee and purchased the property at the foreclosure sale. “Where the foreclosing creditor buys at foreclosure, it must give the debtor fair credit for the commercially reasonable value of the collateral.” Id. at (¶ 23) (citation omitted). “To determine the adequacy of the purchase price in satisfying the debt, the mortgagee must establish the fair market value of the property.” Id. (citation omitted). The fair market value is to be determined by the trier of fact, and the appellate court will respect the trial court’s findings when they are supported by reasonable evidence in the record and are not manifestly wrong. Id.

¶ 14. The only issue at trial was whether a deficiency was owed on the loans. Two witnesses testified: Benjamin Elliot for Southern AgCredit and Adkin-son for Fleisher. Elliott was a licensed real estate appraiser and the chief operations and risk management officer for Southern AgCredit. Elliott was not involved in making the loans, but he was responsible for servicing them. The most recent appraisals were done in 2008. The 2008 appraisals concluded that MS VII had a fair market value of $5,954,600; MS X had a fair market value of $1,334,600; and MS XIV had a fair market value of $2,204,600.

¶ 15. Elliott testified that the value of the properties had not changed from 2008 to 2010. He based this on reports and market information relied on by Southern AgCredit and his opinion that the overall market values in the area had not changed. Although timber cruises were performed in 2006, the 2008 appraisals do not reflect any timber values. As to MS VII and X, Elliott testified that no separate timber appraisal was done in 2008 because a significant amount of timber had been cut and the remaining timber was either not mature or undesirable. As to MS XIV, Elliott did not know whether the timber had been cut since 2006, but he believed the land was more for recreational use than for timber production. Elliott testified the deficiency after the foreclosure sale was $2,349,836.42. In determining this amount, Elliott subtracted the foreclosure price from the total amount owed on the loans. At the time of trial, all three properties were for sale. The properties were listed for more than was paid at the foreclosure auction. Southern AgCredit’s attempt to sell the properties included putting up “for sale” signs. Limited inquiries and no offers had been received.

¶ 16. Adkinson was a land developer and had worked in the real estate and construction business for forty-five years. Adkinson testified the LLCs had taken steps to begin developing the properties, such as making down payments, paying interest, having utilities installed, installing roads, obtaining permits, and paying engineering fees. He testified the LLCs spent $33,000,000 above the loan amounts on these efforts. Adkinson believed the properties were worth two to five times the values given by Southern AgCredit. He based this on his own opinion, the amounts he and other investors had invested in the initial phases of development, the lack of timber values in the 2008 appraisals, and the sale price of a portion of the property. The sale Adkinson referenced was 6.28 acres purchased by Mississippi Power Company in 2007 for over $10,000 an acre. Also, Adkinson referred to appraisals he obtained in 2008, but these appraisals were not submitted at trial. Adkinson testified these appraisals valued the land higher than Adkinson estimated at trial. He testified his numbers were “extremely conservative” in comparison to the appraisals. As to the timber, Adkinson testified that in 2007, timber was cut on 270 to 300 acres of MS VII. Approximately 1,200 acres on MS VII were untouched, and no timber was removed from MS X and XIV. In determining the value the timber added to the land, Adkinson testified he used figures provided by Mississippi State University’s website, which he had found through Southern AgCredit’s website. He did not consider the timber value from MS X. He testified that MS X was the highest valued property not because of its timber, but because it had unique characteristics, such as a clear-water creek and large oak trees.

¶ 17. The trial court found the price paid at auction was reasonable. However, the trial court expressed concern that the bids did not include any timber values. In determining the deficiencies owed by Fle-isher, the trial court factored in the timber values. In 2006, the timber on MS VII, X, and XIV was valued at $1,233,200, and the land was valued at $6,304,365. The market value given in the 2006 appraisal was $7,537,500. The 2008 appraisal states that the land value was $5,954,600. The market value in this appraisal was also $5,954,600. Both appraisals state the timber is seven to eight years old. No explanation is given as to why the timber did not age between 2006 and 2008. The 2008 appraisal states that the timber had been “thinned,” but it does not state how much timber had been thinned or why no timber value was calculated. In 2006, 689 acres of pine were given an appraised per-acre price; the remaining timber was given a price per ton. Adkinson testified approximately 300 acres were cleared between 2006 and the time of trial. He testified the timber that was cleared was the lower valued timber. However, no other evidence was presented to support this motion. In the 2006 appraisal, the seven-year-old pine was valued at $300 per acre and the five-year-old pine was valued at $200 per acre. The trial court found that Southern AgCredit had been paid two principal payments of $23,095.89 and $37,600 for the sale of timber on MS VII, which had not been taken into consideration. The trial court gave Fleisher a credit for these amounts. After taking the age and amount of remaining timber into consideration, as well as the extra payments toward principal, the trial court determined the timber value was $1,172,504.11. The trial court then calculated the timber value of MS VII, X, and XIV based on the number of acres of timber remaining on each piece of property. This value was then added to the market value of each piece of property as stated in the 2008 appraisals.

¶ 18. The trial court noted that while the price paid at foreclosure was lower than the appraised values plus the timber values, it was not so low as to shock the conscience under the standard set by the Mississippi Supreme Court. The court has held that “absent any irregularity in the conduct of a foreclosure sale, it may not be set aside unless the sales price is so inadequate as to shock the conscience of the Court ‘or to amount to fraud.’ ” Allied Steel Corp. v. Cooper, 607 So.2d 113, 118 (Miss.1992) (quoting Wansley v. First Nat’l Bank of Vicksburg, 566 So.2d 1218, 1224 (Miss.1990)). In order to shock the conscience, the bid price must be so inadequate that “it would be ‘impossible to state it to a man of common sense without producing an exclamation at the inequality of it.’ ” Id. (quoting Cent. Fin. Servs., Inc. v. Spears, 425 So.2d 403, 405 (Miss.1983)). “The threshold of inadequacy, or what it takes to shock the conscience of the court, has been a somewhat imprecise standard. [The Mississippi Supreme Court has] long followed the rule of thumb of ‘about forty percent’ of fair market value first articulated in Weyburn v. Watkins, 90 Miss. 728, 733-36, 44 So. 145, 145-146 (1907).” Allied Steel, 607 So.2d at 120. A foreclosure sale bid of thirty-six percent of fair market value has been found inadequate. Id.

¶ 19. As to MS VII, the trial court found the fair market value to be $7,127,104.11, and Southern AgCredit bid $4,925,591.67 at foreclosure. The price paid for MS VII was 69% of fair market value. As to MS X, the trial court found the fair market value to be $1,442,075, and Southern AgCredit bid $1,118,824.66 at foreclosure. The price paid for MS X was 98% of fair market value. As to MS XIV, the trial court found the fair market value to be $2,247,600, and Southern AgCredit bid $2,204,600 at foreclosure. The price paid was also 98% of fair market value. These bid prices are not so low as to shock the conscience, and Fleisher alleges no irregularity in the conduct of the foreclosure sale.

¶ 20. Following the standard of review, this Court “will respect the trial court’s findings of fact when they are supported by reasonable evidence in the record and are not manifestly wrong.” Hartman, 996 So.2d at 711 (citations omitted). The record lacked evidence of current timber values. However, the trial court used the evidence available to estimate the fair market value of the property with the timber values. We find that the trial court’s findings are supported by reasonable evidence and not manifestly wrong. Thus, the trial court’s findings regarding the sale price at foreclosure and the deficiency owed by Fleisher are affirmed.

2. On Cross-Appeal by Southern AgCredit

¶ 21. The trial court found it would be premature to award Southern AgCredit a judgment against Fleisher for MS VIII because bankruptcy proceedings were pending. Southern AgCredit argues it is entitled to the deficiency on this loan regardless of the bankruptcy proceedings because of Fleisher’s personal guaranty.

¶ 22. The personal guaranty states: “it ■will not be necessary for Creditor, in order to enforce such payment by Guarantor, first to ... enforce its rights against any security that shall ever have been given to secure the Guaranteed Indebtedness.” Also, provision 6(d) of the agreement states: “Guarantor agrees that [his] obligations under the terms of this guaranty will not be released, diminished, impaired, reduced, or affected by ... bankruptcy.” However, the trial court found that an inequitable result may be reached if Southern AgCredit was allowed to collect from Fleisher before the plan of reorganization is complete. The trial court held:

If that plan is adopted or some modification of that plan is adopted whereby the note continues in force and effect with payments being made thereon, there would be no amounts due and owing by Fleisher as a guarantor. If a judgment were to be entered here in favor of Southern AgCredit and either the Bankruptcy Court approved some reinstatement of the loan or the Bankruptcy Court lifted the stay to allow foreclosure on the subject property, Fleisher would still have a valid and enforceable judgment against him for the full amount claimed by Southern AgCredit even though monies would be being received by Southern AgCredit from either a foreclosure or continuation of payments on the loan by Mississippi Investors VIII. This would be patently inequitable. Further, should there be a foreclosure at a later date, the same analysis concerning fair market value, foreclosure amounts and such would need to be made on the facts and evidence as then may exist.

¶ 23. The MS VIII guaranty establishes that Fleisher is obligated for 35% (140% of his 25% interest) of the unpaid balance due on the MSVIII note. We conclude that Southern AgCredit is entitled to a judgment in that amount now and not later.

¶ 24. The terms of Fleisher’s agreement unquestionably establish that it is a guaranty of payment and not a conditional guaranty. The agreement provides that it is not necessary for Southern AgCredit to “enforce its rights against any security” before proceeding against Fleisher. That is, Southern AgCredit need not foreclose on the property before seeking a monetary judgment.

¶ 25. The situation here is analogous to the one the Mississippi Supreme Court examined in Rea v. O’Bannon, 171 Miss. 824, 832, 158 So. 916, 918 (1935), when it held:

There is no inconsistency in the two remedies here available to [the secured creditor]. He could pursue the foreclosure to conclusion, or, if he deemed it advantageous to himself, he could forego the foreclosure and proceed at law to collect his debt in the law forum.... There is no inconsistency between the legal and equitable remedial rights possessed by a mortgagee in case of a breach, and he may exercise them all at the same time, and resort to one is not a waiver of the other.

¶ 26. This observation has been reaffirmed by our courts in more recent years. See W. Point Corp. v. New N. Miss. Fed. Sav. & Loan Ass’n, 506 So.2d 241, 243 (Miss.1986); Knight Props., Inc. v. State Bank & Trust Co., 77 So.3d 491, 494-95 (¶ 15) (Miss.Ct.App.2011). A similar provision exists in the Uniform Commercial Code, as adopted into Mississippi law. See Miss.Code Ann. § 75-9-601 (Supp.2011) (“After default, a secured party ... [m]ay reduce a claim to judgment, foreclose, or otherwise enforce the claim ... by any available judicial procedure.”). Like the lender in Rea, Southern AgCredit would ordinarily have the option of foreclosing on the property that secures its loan to MS VIII.

¶27. Southern AgCredit cannot foreclose on the MS VIII property because MS VIII is in bankruptcy and is protected by the automatic stay. Nevertheless, Fle-isher guaranteed MS VIII’s loan against default, and MS VIII has defaulted. His guaranty specifically states that bankruptcy of MS VIII is no bar to recovery.

¶ 28. It must be remembered that Fle-isher himself has not filed for bankruptcy. Nor is he, as a codebtor, shielded by the automatic stay that protects MS VIII. In McCartney v. Integra National Bank, 106 F.3d 506 (1997), the Third Circuit Court of Appeals surveyed the law with respect to codebtors like Fleisher. It held as follows:

Although the scope of the automatic stay is broad, the clear language of [11 U.S.C. § 362(a) (1996) ] stays actions only against a “debtor.” [Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir.1991)] (citing Assoc. of St. Croix Condo. Owners v. St. Croix Hotel Corp., 682 F.2d 446, 448 (3d Cir.1982)). As a consequence, “[i]t is universally acknowledged that an automatic stay of proceedings accorded by § 362 may not be invoked by entities such as sureties, guarantors, co-obligors, or others with a similar legal or factual nexus to the ... debtor.” Id. at 1205 (quoting Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1196-97 (6th Cir.1983)); see also United States v. Dos Cabezas Corp., 995 F.2d 1486, 1491-93 (9th Cir.1993) (holding that stay does not preclude government from pursuing deficiency judgment against nondebtor cosignors of promissory note); Croyden Assocs. v. Alleco, Inc., 969 F.2d 675, 677 (8th Cir.1992) (refusing to extend stay to claims against solvent codefendants); Credit Alliance Corp. v. Williams, 851 F.2d 119, 121-22 (4th Cir.1988) (enforcing a default judgment entered against a nondebtor guarantor of a note during the pendency of the corporate obligor’s bankruptcy).

Id. at 509-510 (some citations omitted).

¶ 29. A circuit court does not have the authority, legal or equitable, to deny Southern AgCredit a judgment enforcing its constitutionally protected contractual rights. Nor may the court deny Southern AgCredit the right to utilize all legal means to collect it.

¶ 30. Speculation about what a federal bankruptcy court will do in the future with the MS VIII property is not sufficient reason to deny Southern AgCredit’s contractual rights to a judgment. Likewise, speculation about what Southern AgCredit may do in the future to collect its judgment from Fleisher would be equally inappropriate. It might elect to collect, in whole or in part, from other non-exempt assets. And it may do so in lieu of, or prior to, resort to the real estate currently entangled in bankruptcy proceedings.

¶ 31. In any case, recovery by Southern AgCredit from any source must be properly credited toward a judgment in its favor. Procedures for doing so are well established, including crediting the proceeds of foreclosure on the property now in bankruptcy in the same manner deficiencies were decided on the other notes, should foreclosure ultimately occur.

¶ 32. “[A] primary rationale for refusing to extend the automatic stay to nonbankrupt third parties is to insure that creditors obtain the protection they sought and received when they required a third party to guaranty the debt.” McCartney, 106 F.3d at 510 (internal quotation omitted).

¶ 38. This case is remanded to the trial court for a determination of the amount due under the MS VIII guaranty and for entry of a final judgment in that amount in favor of Southern AgCredit.

¶ 84. THE JUDGMENT OF THE STONE COUNTY CIRCUIT COURT IS AFFIRMED ON DIRECT APPEAL AND REVERSED AND REMANDED ON CROSS-APPEAL FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE SPLIT EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND APPELLEE/CROSS-APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ, CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.