author: BEAM, JUSTICE, KING, JUSTICE,

text:
    Rita Breece MCINTOSH v. MISSISSIPPI REAL ESTATE COMMISSION
    NO. 2015-SA-01086-SCT
    Supreme Court of Mississippi.
    05/25/2017

      ATTORNEYS FOR APPELLANT: K. F. BOACKLE, JOE S. DEATON, III, RICHARD JASON CANTERBURY
    • ATTORNEYS FOR APPELLEE: WILLIAM HOLCOMB HUSSEY, JOHN L. MAXEY, II
   BEAM, JUSTICE,

FOR THE COURT:

¶1. Rita McIntosh appeals from the Rankin County Circuit Court’s judgment affirming the Mississippi Real Estate Commission’s disciplinary order against McIntosh, finding that McIntosh had engaged in “improper dealing.” According to the order, McIntosh, as exclusive agent'of the seller, interjected herself into the lender’s appraiser selection process and then tried to keep the selected appraiser from completing the appraisal assignment. The Commission imposed a ninety-day suspension, plus a thirty-day suspension held in abeyance, along with eight months’ probation and continuing education courses.

¶2. Because we find that McIntosh’s alleged conduct did not constitute improper dealing as contemplated by the Mississippi Real Estate Brokers License Act, we reverse the circuit court’s judgment and render judgment in favor of McIntosh.-

FACTS.

¶ 3. -McIntosh holds a -real estate broker’s license issued by the Commission pursuant to Mississippi Code Section 73-35-1 to 73-35-35. In December 2013, McIntosh executed an exclusive listing agreement for the sale of a home located in Pearl, Mississippi. The sellers wanted to list the property for $134,000; but McIntosh suggested a $126,300 listing price, based on her calculations of the sale prices per square foot in the area.

¶ 4. A prospective buyer expressed interest in the property through the buyer’s real estate agent, Deborah Hines. Hines informed McIntosh on or about January 18 or 19, 2014, that the prospective buyer wanted to make an offer of the listing price of $126,300.

¶!5. That same day, McIntosh asked Hines what lender the buyer had chosen for mortgage financing. Hines told McIntosh, Red Rock Mortgage. McIntosh expressed concern about Red Rock, having had a difficult time getting Red Rock to the closing table in the past. Hines reassured McIntosh she had' done - numerous transactions with- Red Rock and its loan processor, April Lowery. McIntosh then requested Hines to advise Red Rock not to use Logan Long as-an appraiser for the Pearl property. McIntosh said her agency had a history of at least seven Federal Housing Administration (FHA) • appraisals coming in below the sales price due to Long. To McIntosh’s knowledge, Long was the only appraiser with whom they had these issues. Hines declined McIntosh’s request but provided McIntosh with Lowery’s contact information at Red Rock.

¶ 6. The next day, the seller accepted the buyer’s offer. That same day, McIntosh sent an email to Lowery, copying buyer’s agent Hines, which stated:

I have no problem with any knowledgeable and qualified FHA appraiser; however we have had some real seemingly unfair experiences with an appraiser, Logan Long. I hope that he is not on your list and if there is a way to opt out if he should be selected. We have a history of at least 7 FHA appraisals that have come in below sales price by Mr. Long. To my knowledge, he is the only appraiser that we have had these consistent and on going issues with.

¶7. Hines replied: “l don’t know this guy [and you] know we can’t pick [an] Appraiser. ...” To which McIntosh responded: “I know, I am just hoping he is not on the Red Rock list. We had another sale bite the dust last week in Bainbridge and he was the FHA appraiser.”

¶ 8. Lowery responded to McIntosh by email: “We do not choose the appraiser, the FHA Appraisal Management company chooses. Logan Long is in their rotation list. I hope we don’t have any appraisal issues.”

¶ 9. On February 3, 2014, McIntosh learned Long had been engaged by the buyer’s lender to appraise the subject property. McIntosh received a text message from Long at approximately 3:15 p.m. that afternoon, requesting information regarding access to the property for appraisal inspection. McIntosh replied to Long’s text: “Hold up Logan I will get back to [you].” McIntosh did not get back to him.

¶10. Minutes after learning Long was the appraiser for her client’s property, McIntosh communicated with Hines and included a copy of Logan’s text she had just received: “Look at this .... It’s that appraiser that [has] killed every one [of the] sales every time. Please ask [Lowery at Red Rock] if there is any way we can pass on him. Anyone but him.”

¶ 11. Hines replied: “You will have to call [Lowery], I can’t request any Appraisal Person. The value is in the house so [hopefully] we won’t have any problems.”

¶ 12. McIntosh responded to Hines: “[You] don’t know him. Spiteful.”

¶ 13. The next day, on February 4, Long texted McIntosh again, requesting access to the property. Long asked if there was any news on the property and explained that the appraisal was due two days later, on February 6. McIntosh did not respond to Long’s second request.

¶ 14. Shortly after receiving Long’s second text, McIntosh communicated with Hines and included a copy of Long’s second text.

¶ 15. Long later testified that he was required to update the status of his appraisal assignment through an online web portal. Long reported to Real Shield that he had received no reply from McIntosh regarding access to the property to complete his appraisal. Real Shield responded by online message and instructed Long: “It’s got a key, MLS, vacant. Go anytime per agent.” Long thereafter went and conducted the appraisal and turned it in to the lender.

¶ 16. Long appraised the value of the subject property at $117,000, which was less than the contract price of $126,300. Lowery communicated the information to both Hines and McIntosh in an email:

Good afternoon, I received the appraisal for [the property]. It seems we have a problem with the appraised value of $117,000 and the sales price of $126,300. I have attached a detail letter from the appraiser stating why the value was determined to be what it is. Please advise how to proceed at this point. The borrowers are coming in the office today at 4:30 to bring additional information for the loan. ...

¶17. McIntosh responded to Lowery, copying Hines: “No way in Hell. So sorry for all involved. Please tell [Hines] not to bring in the Buyers until, unless we can get this resolved.” McIntosh added: “Not acceptable. Who did the appraisal? Did Logan Long go in after I asked him to wait?”

¶ 18. Lowery responded, requesting that McIntosh refrain from such language in her correspondence as Lowery believed it reflected on McIntosh’s image as a realtor. McIntosh replied she wasn’t concerned about her image and asked for a copy of the appraisal submitted by Logan to his client, the buyer’s lender, Red Rock. McIntosh also made clear to Lowery that Long had not obtained her permission to enter her client’s property to perform his appraisal inspection.

¶ 19. McIntosh later testified that she was shocked by the appraisal because she initially believed the house was 1,350 square feet, and there was “no way” the house could have appraised at the value assessed by Long. McIntosh also maintained throughout the proceedings that Long had not been authorized to complete the appraisal, stating: “Regardless of what he says, [Logan] entered into the property without permission, ... when permission had been explicitly denied.”

¶ 20. McIntosh admitted that, upon discussing the appraisal with her client, McIntosh realized the client was mistaken about the actual square footage used in the original listing price. Long’s appraisal had reflected a lesser square footage than McIntosh had calculated. Accordingly, McIntosh and her clients decided to renovate a garage storage closet into an office accessible from the house in order to increase the square footage. They then requested Long appraise the house again. Long conducted another appraisal and thereafter valued the property at $120,000.

¶ 21. McIntosh testified that if Long had “kept his first math, [the value] would have been around [$]125[,000], which would have been doable for the seller without a lot of pain. It wouldn’t have been a hard decision. But that did not happen.”

¶ 22. After Long’s second appraisal, McIntosh spoke with Sean Cornwell, Lowery’s boss at Red Rock, to inquire about her options. According to McIntosh, her conversation with Cornwell occurred during the “dispute valuation process” and Cornwell had described to her “where he allowed [McIntosh] to submit additional comps to the underwriter.” McIntosh said she had no intention of filing a “complaint,” and she was just trying to get more information. McIntosh stated:

I did mention to Sean Cornwell [that] I should visit the Mississippi Appraisal Board in an attempt to see why Long’s value per square foot decreased with his second appraisal. ... I merely stated my displeasure with the appraiser who had been selected, and whom I knew from prior experiences had a history of arriving at value opinions that I believed were not supported by appropriate market data and based on what I believe to be his incorrect interpretations of appraisal methodology and regulations. ...

If 23. Long filed a complaint with the Commission on February 20, 2014, claiming that McIntosh had violated provisions of the Dodd-Frank Act and Mississippi law by attempting to have the appraisal steered to “anyone but him” before he was engaged by the buyer’s lender. Logan testified he heard about McIntosh’s communications from Hines and Lowery. Despite the complaint, the parties closed on the house in March 2014, for $120,000—the amount of Long’s second appraisal.

¶ 24. The Commission requested and received information and responses from Long, McIntosh, Hines, and Lowery. After its investigation, the Commission proceeded on its own complaint against McIntosh, alleging she had engaged in “improper dealing” in violation of the Mississippi Real Estate Brokers License Act, as amended, Sections 73-35-1 to 73-35-35, specifically Section 73-35-21(l)(m).

¶25. This section, which was amended and renumbered in 2016, prohibits “[a]ny act or conduct, whether of the same or a different character than hereinabove specified, which constitutes or demonstrates bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealing.” The statute is now designated as Section 73-35-21(l)(n), and contains the following provision:

However, simple contact and/or communication with any mortgage broker or lender by a real estate licensee about any professional, including, but not limited to, an appraiser, home inspector, contractor, and/or attorney regarding a listing and/or a prospective or pending contract for the lease, sale and/or purchase of real estate shall not constitute violation of this section.

Miss. Code Ann. § 73-35-21 (Supp. 2016).

¶ 26. In the complaint, the Commission alleged the facts at issue and then referenced the Dodd-Frank Act.

¶ 27. After service of the complaint, negotiations ensued between McIntosh and the Commission for entry of an agreed order in lieu of a formal hearing. The Commission offered disciplinary terms that included a thirty-day suspension. McIntosh declined the offer and elected to have a formal hearing.

¶28. Following the hearing, the Commission issued a disciplinary order, signed by Robert Praytor, imposing a ninety-day suspension, plus a thirty-day suspension held in abeyance, eight months’ probation and continuing education courses. In the order, the Commission found that the evidence undisputably showed that McIntosh acted to have . Long’s assignment “either not be consummated or to not cooperate with his efforts to complete the assignment.” The order then stated, “In either case the independence of Mr. Long to perform the appraisal was threatened.” ■ ■

¶29. As-did the. complaint, the order noted that “[r]ecent legislative and regulatory enactments pursuant to the Dodd-Frank legislation attempted to enforce and assure the independence of appraisal practices,”—referencing a certain provision .of Dodd-Frank. The order, however, then stated that McIntosh was not charged with violating Dodd-Frank, and McIntosh’s conduct constituted “improper dealing” pursuant to former Section 73-35-21(l)(m).

¶30. McIntosh appealed to the Rankin County Circuit Court, which affirmed the Commission’s order. McIntosh now appeals to this Court raising a number of issues. Because we find that McIntosh’s conduct did not constitute improper dealing in this instance, we discuss only the merits of that question. Additional facts, as necessary, will be related in the discussion.

STANDARD OF REVIEW

¶31. As reiterated in Harris v. Mississippi Real Estate Commission, 500 So.2d 958, 962 (Miss. 1996) (quoting Eidt v. City of Natchez, 421 So.2d 1225, 1231-32 (Miss. 1982), superseded on' other grounds)),“courts cannot enter the field of the administrative agency.” Thus, the scope of judicial review of an administrative agency order is limited to whether or not the’ Commission’s order is (1) supported by substantial evidence, (2) arbitrary or capricious, (3) beyond the power of the administrative agency to make,, or (4) violated some statutory or constitutional right of the complaining party. Id.

¶ 32. The Commission has the authority to revoke or suspend the license of a broker under Mississippi Code Section 73-35-21. This authority, however, should be used judiciously'and- cautiously since the right given to the Commission also takes from the licensee the right to do business and make a living in the practice of his or her profession. Id. The burden of proof placed upon the Commission to revoke or suspend a broker’s license is clear, and convincing evidence. Miss. Real Estate Comm’n v. White, 586 So.2d 805, 808 (Miss. 1991).

DISCUSSION

Whether McIntosh’s conduct constituted improper dealing.

¶ 33. As mentioned, the Legislature recently amended Section 73-35-21(l)(m), now numbered Section 73-35-21(l)(n), by prescribing that “simple' contact and/or communication with any mortgage broker or lender by a. real estate licensee about any professional, but not limited to, an appraiser, ... shall not constitute-a violation of this section.” See Miss. Code-Ann. § 73-35-21(l)(n) (Supp. 2016). As Section 73-35-21 was being amended and modified while the appeal- of this case was pending, we apply Section 73-35-21(l)(n). See USPCI of Mississippi, Inc. v. State ex rel. McGowan, 688 So.2d 783, 786-87 (Miss. 1997) (“An amended act is ordinarily construed as if the original, statute had been repealed, and as far as any action after the adoption of the amendment is concerned, as if the statute had been originally.enacted in its amended form.”).

' ¶ 34. Here, McIntosh’s. communications with the lender asking if her client could “opt out” if Long was selected to conduct the appraisal, did not constitute “improper dealing” as contemplated by Section 73-35-21(l)(n). Again, this section plainly states that “simple contact and/or communication with any mortgage broker or lender by a real estate licensee about ... an appraiser ... shall not constitute a violation of this section.” Prior to Long’s selection, McIntosh merely communicated her concerns about a particular appraiser, and she asked what her client’s options were if he were selected. Further, McIntosh qualified her communications by saying that she had no problem with any other qualified appraiser conducting the appraisal.

¶ 35. As to McIntosh’s conduct after Long’s selection, we acknowledge that this presents a closer question, but we conclude, nonetheless, that this did not constitute improper dealing on the facts of this case.

¶36. Based on the Commission’s disciplinary order, McIntosh’s conduct constituted improper dealing because it “threatened” appraiser independence. As mentioned, the Commission found that McIntosh acted either to have Long’s appraisal assignment not be consummated or to not cooperate with Long’s efforts to complete the assignment. The Commission said that “[i]n either case, the independence of [Long] to perform the appraisal was threatened.” The Commission then said:

Mr. Robert Praytor, Administrator of the Commission and the Mississippi Appraisal Board, testified as an expert witness qualified in real estate practices under the Real Estate License Law by virtue of his experience, education and training. In his opinion, McIntosh’s actions were improper dealing when she stepped outside her limited responsibility which was solely to her client, the seller. He further stated McIntosh had no part in the selection of the appraiser and her only role was to cooperate with the process to further the transaction. It was his opinion this was a serious violation of the license law ....

¶ 37. Finally, the Commission concluded that “[t]he above and foregoing described acts of [McIntosh] constitutes ... improper dealing.”

¶ 38. First, it may be true that Praytor holds the opinion that the Commission’s rulés and regulations provide that real estate agents should “play no part in the selection of the appraiser,” and that McIntosh’s “only role was to cooperate with the process.” But the Commission made no finding that McIntosh’s conduct violated any of its rules and regulations, and we find no such violation.

¶39. Second, and moreover, while the “threat” to appraiser independence is no doubt a legitimate concern, the same threat exists, however, with a seller’s right to contract. As the dissent points out, a seller may include an opt-out or restriction clause that precludes prospective buyers from using a certain lender and/or appraiser. While the dissent is of course correct that should have been done here, nothing in the record sufficiently illustrates to us that a licensee would, or should, know this is an option for his or her clients. This is problematic because it indicates ambiguity in this area between two divergent interests and/or concerns—the former which potentially could infringe upon the latter, without proper guidelines from the Commission.

¶ 40. The ambiguity here becomes even more apparent given Praytor’s above-mentioned response with regard to the question posed about preexisting conflicts between a licensee and an appraiser. Praytor’s response suggests that the same conduct now charged to constitute improper dealing would not have constituted such if McIntosh had proceeded differently somehow. In fairness to Praytor, who obviously is very knowledgeable in this entire area, we think he likely meant—as Justice King calls attention to, and we agree with—the buyer’s right to contract. But this still circles us back to our previous concern: how would a licensee know this is an option for his or her clients? Praytor’s response also raises—in addition to others—this question: What constitutes a conflict, and who decides that? At the hearing, the Commission refused to get into the matter because Long said he was prohibited by certain appraisal rules from discussing prior appraisals he performed where McIntosh was the seller’s broker. This is another conundrum we see.

¶ 41. In short, there simply are too many gaps here that need to be filled in by the Commission, but which cannot be done through ad-hoc sanctioning along the way. The Commission, under the Act conferring upon it the authority to regulate real estate business conducted in this state, has the authority to adopt rules and regulations necessary for the conduct of that business. . Miss. Code Ann. § 73-35-35 (Rev. 2012). But it must do so with adequate specificity and notice to its licensees that comports with due process.-

¶ 42. Here, we find that, while some of McIntosh’s conduct following Long’s selection may, in the opinion of some, have been improper, it did not constitute “improper dealing” in this instance. This is not to say that such conduct may not be sanctionable in the future, were the Commission to set forth clear rules and regulations proscribing such conduct, that do not exceed its rulemaking authority. But none yet exists.

CONCLUSION

¶ 43. For these reasons, we reverse the circuit court’s judgment and render judgment in favor of McIntosh.

¶ 44. REVERSED AND RENDERED.

DICKINSON AND RANDOLPH, P.JJ., KITCHENS, MAXWELL AND CHAMBERLIN, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C. J., AND COLEMAN, J.

KING, JUSTICE,

DISSENTING:

¶ 45. Because this is a close case, as the majority admits, and because of the deferential standard of review we must afford the agency’s decision, I respectfully dissent.

¶ 46. As the majority notes,- “courts cannot enter the field of the administrative agency.” Harris v. Miss. Real Estate Comm’n, 500 So.2d 958, 962 (Miss. 1986); Maj. Op. ¶ 31, This Court will reverse an administrative agency decision only when 1) the decision is not supported by substantial evidence, 2) the decision is arbitrary and capricious, 3) the decision was beyond thé power of the agency, or 4) the decision violated a statutory or constitutional right of the complaining party. Id. The majority does not contend that the Mississippi Real Estate Commission’s (MREC) decision was arbitrary and capricious, was beyond its power to make, or violated any of McIntosh’s statutory or constitutional rights. Thus, the sole issue is whether the Commission’s decision was supported by ' substantial evidence! “Recognizing the peculiar expertise of administrative agencies when acting within their proper sphere, 'we have consistently refused to overturn any administrative agency’s finding based upon substantial evidence.” Id. (quoting Eidt v. City of Natchez, 421 So.2d 1225, 1231-32 (Miss. 1982)). “The agency charged with regulating certain activities knows how to police its own. This seems especially true where an agency commission comprised of fellow practitioners, as is the Real Estate Commission, sits in judgment of one of its own.” Harris, 500 So.2d at 963. The MREC is both the trier of facts and the judge of witness credibility. Nelson v. Miss. State Bd. of Veterinary Med., 662 So.2d 1058, 1062-63 (Miss. 1995). Additionally, an agency’s interpretation of the statute under which it operates, such as the MREC’s interpretation of Section 73-35-21(l)(n), is entitled to great deference, “and must be upheld unless it is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Queen City Nursing Ctr., Inc. v. Miss. State Dep’t of Health, 80 So.3d 73, 84 (Miss. 2011) (quoting Miss. State Dep’t of Health v. Baptist Mem’l Hosp.-Desoto, Inc., 984 So.2d 967, 981 (Miss. 2008)).

¶47. The majority attempts to claim that the Commission used some “ambiguous” definition of improper, but improper dealing has been explicitly defined .by our Court of Appeals, so licensees are on notice as to what constitutes improper dealing, and the meaning is clear and unambiguous. “Improper” is defined as “[ijncorrect, unsuitable or irregular” or “[fjraudulent or otherwise wrongful.” Improper, Black’s Law Dictionary (10th ed. 2014). “Dealing” is defined as “[tjhe business activities or relationships that someone is involved in” or “[tjhe activity of buying, selling, or doing business with people.” Dealing, Black’s Law Dictionary (10th ed. 2014). Thus, taking unfair financial advantage of someone is not. required to meet the definition of “improper dealing.” Such may be found simply with “incorrect” or “irregular” business activities.

¶48. Indeed, as noted, the Mississippi Court of Appeals has defined the term. In Farris v. Mississippi Real Estate Commission, the real estate agents argued that to find improper dealing, some sort of fraudulent or bad faith intent must exist and harm must be inflicted on one or more parties. Farris v. Miss. Real Estate Comm’n, 994 So.2d 229, 232 (Miss. Ct. App. 2008), cert. denied (November 6, 2008). In that case, the real estate brokers were using contracts, and forms with a Century 21 (Tennessee-based) logo for Mississippi Farris Realty, transactions, without the knowledge of Century 21. Id. at 231-32. The Court of Appeals cited the sixth edition of Black’s Law Dictionary and noted that “[ijmproper is defined as ‘[njot suitable, ‘unfit,’ ‘not suited to the character, time, and place,’ or ‘not in accordance with fact, truth, or right procedure.’ ” Id. at 233; see also Ryan v. Miss. Real Estate Comm’n, 2017 WL 412996, 217 So. 3d 725 (Miss. Ct. App. Jan. 31, 2017). While the court acknowledged that no evidence existed that the brokers intended to defraud or misrepresent facts, it found “substantial evidence in the record that they-engaged in improper dealing” because they used “Tennessee contracts, which did not comply with Mississippi law .... These are unsuitable practices that are not in accordance with correct procedure for real estate practice in Mississippi ..." Farris, 994 So.2d at 233. The court thus concluded that substantial evidence existed that the brokers’ actions constituted improper dealing. Id. In Palmer v. Mississippi Real Estate Commission, the Court of Appeals found substantial evidence of improper dealing even though the conduct only allegedly posed a risk to an investor in the secondary market. Palmer v. Miss. Real Estate Comm’n, 14 So.3d 67, 73 (Miss. Ct. App. 2008). In the sale, the seller provided the buyer with the down payment, which was not reflected in the' documents, thus, “[ajn investor in the secondary market would not be aware of the.details of the transaction and in particular since it would not be alerted that the down payment by the buyer had actually not originated from her funds.” Id. In such situations, where a buyer does not invest substantial equity, the probability of default increases. Id. Thus, the real estate brokers’ actions in the case constituted improper dealing, because it “was a high-risk loan characterized as a low-risk loan by the actions of the seller, all unbeknownst, to HUD and the lender.” Id.; see also Gussio v. Miss. Real Estate Comm’n, 122 So.3d 783, 787 (Miss. Ct. App. 2013) (By MREC rule, a failure to respond to MREC written communications was deemed improper dealing; brokers failed to respond to written communications, and thus were guilty of improper dealing).

¶ 49. Turning to the facts at hand, even assuming retroactive application of the new statutory language, McIntosh did more than simply communicate about an appraiser. She actively tried to block Long from being chosen as the appraiser in multiple communications with multiple people, all while failing to put any opt-out clause or restriction in the contract. Coupled with the fact that 'after Long was chosen, she actively denied him, the assigned appraiser, entry into the property, attempted to have him removed as appraiser, and protested when he did gain entry to the property, it is certainly reasonable to conclude that McIntosh engaged in irregular or unsuitable business activities. While this Court, if we sat as the trier of fact and judge of witness credibility, may have made a different finding than that of the MREC, that is not the operative standard of review. The standard of review is one of deference, both to the MREC’s findings, and to its interpretation of “improper dealing.’’ Under the deferential standard of review, substantial evidence certainly exists that McIntosh engaged in improper dealing, or irregular business activities, with her attempted interference with the appraisal process. Indeed, the majority admits that this is a close case, .that a* contractual opt-out “should have been done here,” and that' this exact conduct may constitute improper dealing “in the' future.” But the majority decides that due to some “ambiguity” that does not exist, as the term is clear and has been defined by the courts, it should both ignore the deferential standard of review and engage in fact-finding, and it therefore reverses the Commission.

1Í.50. This Court is not .the trier of fact or the judge, of witness credibility in an agency proceeding. I believe that the majority in this case engages in fact-finding and fails to give the agency decision the deference it is due under our standard of review. Because the decision of the MREC is .supported by substantial evidence, I would affirm it, and therefore I respectfully dissent.

WALLER, C.J., AND COLEMAN, J., JOIN THIS OPINION. ’

      . According to the record, the buyer in this case was Lowery’s brother-in-law. '

      . Real Shiejd was the appraisal management company (AMC) used by Red Rock in this instance. Later, at the hearing before the Commission in this case, it came out that Real Shield is not registered in Mississippi to do business as an AMC—a violation of Mississippi Code Section 73-34-103 (Rev, 2012). Robert Praytor, administrator for the Commission, testified this fact was immaterial to the complaint against McIntosh.

      . When McIntosh's client had purchased the property, the garage and a storage room had been converted to a bedroom and a closet. The client later restored the garage. When the property was listed, the client forgot about the heated and cooled area previously used as a closet.

      . According to McIntosh, the square-foot price based on Logan’s first appraisal was $91.80 per square foot. Jhat amount decreased to $88.00 per square foot upon Logan's second appraisal.

      . In addition to signing the disciplinary order, Praytor oversaw the investigation of McIntosh, signed the complaint, and testified as an expert witness at the hearing. The circuit ■ court expressed concern with this procedure, but found nonetheless that it has been approved by appellate courts in other administrative cases. The record also shows that, as administrator for the Commission, Praytor has direct oversight over the Mississippi Appraisal Board.

      . The majority repeatedly asks how a licensee would know they could put an opt-out in a contract. This question is befuddling. Why would a licensee not know that? People ask .that all manner of unique provisions be placed into real estate contracts, an opt-out provision is no different.


source: Caselaw Access Project

author: KING, JUSTICE, DICKINSON, PRESIDING JUSTICE,

license: Public Domain

text:
    Andy BARLOW, D.C. v. MISSISSIPPI STATE BOARD OF CHIROPRACTIC EXAMINERS
    NO. 2016-SA-00110-SCT
    Supreme Court of Mississippi.
    05/25/2017

      ATTORNEYS FOR APPELLANT: JOHN H. OTT, TODD BRENTLEY OTT
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LEYSER Q. HAYES, WILLIAM JEFFREY JERNIGAN, DAVID K. SCOTT
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   KING, JUSTICE,

FOR THE COURT:

¶ 1. Dr. Andy Barlow was disciplined by the Mississippi State Board of Chiropractic Examiners for advertising in violation of the statutes governing chiropractors. Dr. Barlow appealed to the circuit court, alleging that the statute governing chiropractic advertising had 'been implicitly amended or repealed, that the statute governing chiropractic advertising violated his First Amendment rights, and that the Board was without authority to assess the costs of the investigation to him. The circuit court affirmed the Board, and Dr. Barlow appealed, to this Court, making the same arguments, as well as arguing that the circuit court erred by failing to afford him a “de novo appeal,” Because Dr. Barlow’s arguments on whether he should be disciplined lack merit, this Court affirms the judgments of the Board and circuit court' on those issues. However, because the Board lacked authority to directly assess Dr. Barlow the costs of its investigation, this Court reverses the judgments of the circuit court and Board on the issue of costs and renders judgment for Dr. Barlow on that issue.

FACTS AND PROCEDURAL HISTORY

¶ 2. Based upon two patient complaints against Dr. Andy Barlow, D.C., the Mississippi State Board of Chiropractic Examiners brought a formal complaint against Dr. Barlow. The complaint charged Dr. Barlow with several violations, including violations surrounding his advertising. The complaint alleged that Dr. Barlow advertised using professional designations other than “chiropractor,” “doctor of chiropractic,” “D.C.,” or “chiropractic physician” in violation of Mississippi Code Sections 73-6—25(l)(a) and 73-6-19(l)(b).

¶ 3. At the hearing on the complaint, the advertisements, in which Dr. Barlow advertised as D.C., and also as DACNB, FACFN, and as a “Chiropractic- Neurologist,” were entered into evidence. Dr. Barlow and Dr. Patterson, the Board member assigned to investigate the complaint, both testified that Dr. Barlow’s certifications in neurology required 1,600 hours of continuing education to achieve. Dr. Patterson testified that “[hjaving a chiropractic neurology degree would have—you would have a much better understanding of neurological issues that may be going in the body and be able to recognize other issues.” The patient who made the complaint stated that she was confused by the advertisements as a “board certified chiropractic neurologist.” She noted that the emphasis was on “neurologist” and that “chiropractic” seemed like a mere adjective.

¶ 4. On March 31, 2014, the Board issued its final order. The Board concluded that “[t]he clear and convincing evidence establishes cause to discipline the Respondent under Section 73-6-19(l)(b) for violations of Section 73-6-25(l)(a) by using professional designation in his printed advertisements other than the term ‘chiropractor,’ ‘doctor of chiropractic,’ ‘D.C.,’ or ‘chiropractic physician.’” The Board ordered that “[a] monetary penalty is imposed upon the Respondent in the amount of Five Hundred Dollars ($500.00).” It also ordered that “[t]he Respondent shall pay to the Board the costs associated with its investigation and prosecution of this matter in the amount of $3216.00.” On April 1, 2014, counsel for Dr. Barlow wrote the Board and asked the Board to provide him with the legal authority for the Board’s assessment of investigative expenses, and also noted that the order' contained no breakdown of the costs assessed. In an undated letter, the Board responded that in assessing the monetary penalty, the Board considers the. cost of investigation. It stated that Dr. Barlow committed at least five separate violations of Section 73-r 6-25(1). It concluded that “[i]f this explanation is not satisfactory to you and Dr. Barlow, the Board can correct its Order to reflect the full monetary penalty authorized by Section 73-6-19.”

¶ 5. On April 24, 2014, Dr.' Barlow appealed to the Hinds County Circuit Court. After briefing on the issue, the circuit court entered an order affirming the decision of the Board in full. It stated that “[i]t is not the position of this Court to act as a fact finder.” It continued that

[i]n this case, the Board believed the facts conclusively proved the Appellant’s discipline and subsequent monetary penalty was for good cause. Having reviewed the record and being otherwise thoroughly advised in the premises, the Court finds that the Board followed the statute, and likewise opines that Appellant’s disciplinary action was made in ‘good faith for cause’ and supported by substantial evidence.
.IT IS, THEREFORE, ORDERED and ADJUDGED that there was sub-staptial evidence before the Board to support its order and that the Board’s order was not. arbitrary and capricious, was not beyond the power of the administrative agency to make, nor did it violate some statutory or constitutional rights of the Appellant.

It consequently did not find error in the Board’s actions.

¶ 6. Dr. Barlow appeals to this Court, raising several issues: 1) whether the circuit court erred in failing to act as factfin-der when Dr. Barlow was entitled to a “de novo appeal;” 2) whether Section 73-6-25(l)(a) was amended or repealed by implication by Section 41-121-1, et seq.; 3) whether Section 73-6-25(l)(a) impermissi-bly infringes on Dr. Barlow’s First Amend-: ment right to free, speech; and 4) whether the Board’s decision, particularly regarding costs assessed, was unsupported by substantial evidence,' was arbitrary and capricious, was beyond the scope or power granted the agency by the Legislature, and violated Barlow’s statutory and constitutional rights. .

ANALYSIS

1. Standard of Review

¶ 7. To be entitled to. reversal, of an agency decision, the aggrieved party must show that 1). the decision was not supported by substantial evidence, 2) the decision was arbitrary and capricious, 3) the decision was beyond the power of the administrative agency, or 4) the decision violated the party’s statutory or constitutional rights. Equifax, Inc. v. Miss. Dep’t of Revenue, 125 So.3d 36, 41 (Miss. 2013). “This Court reviews questions of law de novo.” Id. We . therefore review Dr. Bar-tow’s first three issues de novo, and his fourth to determine whether the Board’s decision, was supported by substantial evidence, was arbitrary and capricious, was beyond the power of the agency, or violated Bartow’s rights.

2. De Novo Appeal

¶ 8. The statutory provision regarding appeal from a disciplinary decision of the Board provides that, within thirty days of the decision; the aggrieved party “shall have the right of a de novo appeal to the circuit court.” Miss, Code Ann. § 73-6-19(5) (Rev. 2012). Dr. Bartow contends that this “de novo appeal” requires the circuit court to act as factfinder-on the administrative record before it.

¶ 9. In Equifax, this Court examined a statute that provided that the chancery-court, in appeals from the Mississippi State Tax Commission, “shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised.” Equifax, 125 So.3d at 41 (quoting Miss. Code Ann. § 27-77-7(4) (2005)). The Court found that, even though the law said “de novo,” the

petitioner must raise and prove one or more of the following: the agency’s decision was unsupported by substantial evidence, the agency’s decision was arbitrary and capricious, the agency’s decision was beyond the power of the administrative agency to make, and/or the agency’s decision violated the complaining party’s statutory or constitutional right.

Id. Thus, the issues to be tried “de novo” under the statute are to be tried within the confínes of the deference given to agency decisions. The Court noted that confusion may stem from the statute’s instruction to “try the case de novo” because “de novo” means “anew,” and “anew” means a second time, afresh. Id. at 42. The Court explained that the court hearing was actually the first hearing conducted before a judicial tribunal, thus “[i]n the absence of a prior proceeding, no trial anew can occur.” Id. “In the absence of a prior proceeding, no trial anew can occur. Thus, the instruction to ‘try the case de novo’ is misdirected.” Id.

¶ 10. This concept applies with even more force to Section 73-6-19(5). The original (nonjudicial) proceeding was before the Board. The appeal from the Board to the circuit court is the first appeal. Thus, there can be no appeal “anew” in the absence of a prior appeal and the instruction that the petitioner has a right to a “de novo appeal” is misdirected. The appeal is for the limited purpose of examining whether the Board’s “decision was supported by substantial evidence, was not arbitrary and capricious, was within the [Board’s] power to make, and did not violate [Dr. Barlow’s] statutory and constitutional rights.” Id. Thus, because Dr. Barlow was not entitled to have the circuit court act as factfinder on the administrative record before it, this issue is without merit.

3. The Effect of Section 41-121-1, et seq., on Section 73-6-25(l)(a)

¶ 11. Section 73-6-25(l)(a) provides that “[t]he members of the chiropractic profession, licensed or unlicensed, are hereby prohibited from ... use of any other professional designation other than the term ‘chiropractor,’ ‘doctor of chiropractic,’ ‘D.C.’ or ‘chiropractic physician[.]’” Miss. Code Ann. § 73-6-25(l)(a) (Rev. 2012).

¶ 12. In 2012, the Legislature passed “The Patient’s Right to Informed Health Care Choices Act.” Miss. Code Ann. § 41-121-1 (Rev. 2013). The Act states:

The Legislature finds and declares that:

(a) There are a multitude of professional degrees using the term “doctor,” including Medical Doctor (M.D.); Doctor of Osteopathic Medicine (D.O.); Doctor of Dental Surgery (D.D.S.); Doctor of Podiatric Medicine (D.P.M.); Doctor of Optometry (O.D.); Doctor of Chiropractic (D.C.); Doctor of Nursing Practice (D.N.P.); Doctor of Pharmacy (Pharm.D.); and other designations which may be used by health care practitioners.
(b) Choosing a health care provider is one of the most important decisions a patient makes, which should be supported by full disclosure from their health care provider. There are differences regarding the training and qualifications required to earn the professional degrees described in and subject to this chapter. These differences often concern the training and skills necessary to correctly detect, diagnose, prevent and treat serious health care conditions.
(c) There is a compelling state interest in patients being promptly and clearly informed of the actual training and qualifications of their health care practitioners who provide health care services. This chapter aims to provide public protection against potentially misleading and deceptive health care advertising that cause patients to have undue expectations regarding their medical treatments and outcomes.

Miss. Code Ann. § 41-121-3 (Rev. 2013). The Act goes on to define the categories of health care practitioners and includes “[practitioners of chiropractic, signified by the letters ‘D.C.’ or the words chiropractor, doctor of chiropractic or chiropractic physician.” Miss. Code Ann. § 41-121-5(c)(v) (Rev. 2013). The Act requires that “[a]n' advertisement for health care services that names a health care practitioner must identify the type of license held according to the definitions under this chapter. The advertisement shall be free from any and all deceptive or misleading information.” Miss. Code Ann. § 41-121-7(1) (Rev. 2013).

¶ 13. Dr. Barlow argues that the provision in Section 41-121-3 providing for “a compelling state interest in patients being promptly and clearly informed of the actual training and qualifications of their health care practitioners” requires him to inform his patients of his DACNB and other certifications, and thus implicitly repeals or amends the provision of Section 73-6-25(l)(a) that restricts chiropractors to a short list of titles. The Board focuses its rebuttal argument on the concept that Section 41-121-3 does not implicitly repeal or amend Section 73-6-25. But this Court need not even perform that analysis, because Section 41-121-3 simply does not mean what Dr. Barlow claims it means.

¶ 14. The Act very clearly has the purpose of ensuring that patients can differentiate among the different types of doctors. Indeed, the Act requires that advertisements must identify the type of license held according to the. Act’s definitions. Miss. Code Ann. § 41-121-7(1) (Rev. 2013). The only license that the record reveals that Dr. Barlow holds is a doctor of chiropractic. His additional certifications are not licenses. Nor are they included in the Act’s definitions, which identify only the category of “practitioners of chiropractic.” The Act in no way requires that a practitioner reveal every certification he or she possesses. Taken to its logical conclusion, Dr. Barlow’s interpretation of Section 41-121-3 would even require that he reveal his certification as a Diplomat of Pastoral Science from the Pastoral Medical Association. Viewing the Act as a whole, instead of one sentence in isolation, it is very clear that the purpose of the Act is for the various types of doctors to reveal the type of doctors they are, i.e., to reveal the particular licenses they hold, so that a patient will not, for example, show up to a dentist’s office for prenatal care. Because Section 41-121-3 is completely consistent with Section 73-6-25, and because Dr. Barlow’s interpretation of Section 41—121— 3 is simply incorrect, Section 41-121-3 clearly does not repeal or amend, implicitly or otherwise, Section 73-6-25.

4. First Amendment

¶ 15. Dr. Barlow argues that Section 73-6-25 impermissibly infringes on his First Amendment right to free speech. First Amendment protection has been extended to commercial speech. In re R.M.J., 455 U.S. 191, 199, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). The government may proscribe commercial speech that is misleading or related to unlawful activity. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Specifically, advertising for professional services presents special possibilities for deception due to the “public’s comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the ‘product.’” In re R.M.J., 455 U.S. at 202, 102 S.Ct. 929. Thus, advertising for professional services is “especially susceptible to abuses that the States have a legitimate interest in controlling.” Id. Therefore, “regulation—and imposition of discipline— are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive.” Id. If'the advertising is not misleading, the State must assert a substantia! interest in regulating the speech, and the interference “must be in proportion to the interest served.” Id.

¶ 16. In this case, the testimony of three witnesses, the patient, and Drs. Patterson and Rutherford, evinced that the advertisements at issue were misleading. Dr. Barlow did not define the acronyms he placed behind his name, and he referred to himself as a ■ “.chiropractic neurologist,” which the witnesses testified led to confusion for patients that they were seeing a medical doctor. Because evidence exists that the advertisements at issue were actually misleading, this Court need not analyze the issue further. Based on the specific facts of this case, the discipline for the advertisements did not violate -Dr. Barlow’s First Amendment rights.

5. Costs

¶ 17. Dr. Barlow argues that' the Board’s assessment of a $3,216 fee for “the costs associated with its investigation and prosecution of this matter” was beyond the Board’s statutory authority, and was not supported by substantial evidence. The Board ' makes several arguments in response. First, it argues that the Board is allowed to consider the costs of investigation in determining the amount of penalties. Second, the Board alleges in its brief that Dr. Barlow committed at least eight violations, and that for each of these the Board was allowed to assess a $500~$1,000 penalty, thus the total of $3,216 was less than what it was allowed to assess. Third, the Board seems to argue that it offered in its letter to correct the terminology in its order, and that Dr. Barlow should have allowed it to do so and wrongly prevented it from doing so by filing his appeal. Dr. Barlow is correct that the Board lacked authority to directly assess him the costs of the investigation, and each of the Board’s arguments will be addressed below.

¶ 18. The governing statute allows the Board to assess monetary penalties for violations found. However, it does not explicitly allow the Board to assess the costs of the investigation to the party disciplined. The Legislature has clearly and explicitly allowed the governing bodies of many professions to recoup the costs of an investigation. While it is problematic that the Board may be discouraged from investigating if it cannot recoup fees, and while it is entirely possible that the lack of authority for the chiropractic board, as well as for several other professional boards, to recoup those fees may be a mere oversight by the Legislature, this Court cannot read that authority into the statute where it does not exist. The Legislature has shown ■that, when it wants to specifically provide that a professional governing body can recoup investigatory costs, it is perfectly willing to do so.

¶ 19. The Board argues that in assessing a penalty for each violation, it is allowed to consider the costs of its investigation. The Board has wide discretion in determining what penalty, between $500 and $1,000, to assess. Certainly, the Board may consider its costs when determining the penalty, and this Court recognizes the Board’s right so to do. But, by the very plain language of the Board’s final order, that is not what occurred here. It simply did not make the findings'in this case to support that the costs were part of the penalty assessed. The Board assessed Dr. Barlow a $500 penalty under the statute, and then separately chargéd him a $3,216 fee that was specifically described1 as1 serving to recoup the costs associated with the investigation. The fee was explicitly and specifically separated from the statutory penalty the Board dealt Dr. Barlow. Thus, it is clear that this was not a penalty within which the Board considered its costs. It was a fee separate and apart from the penalty assessed.

¶ 20. Second, the Board essentially argues that the penalty is harmless error, because it is less than what it could have assessed Dr. Barlow for his at least eight violations. The problem with this argument is that the Board made utterly no findings in its order or otherwise as to how many violations Dr. Barlow committed. In fact, it explicitly fined him for only one violation, by assessing the $500 penalty, and only one $500 penalty. In its undated letter to Dr. Barlow, the Board claimed that Dr. Barlow had committed at least five violations. Now, in its brief on appeal, that number has changed again to at least eight violations. Yet, the findings of fact must govern, and the findings of fact do not quantify the number of violations. Thus, this Court cannot know for certain how many violations the Board found at its hearing, and the penalty the Board assessed indicates it found only one. This argument therefore fails.

¶21. The Board also alleges that Dr. Barlow should have told it that he wanted it to correct the terminology in its order. Dr. Barlow had thirty days to appeal the order. Miss. Code Ann. § 73-6-19(5) (Rev. 2012). He appealed the order to the circuit court on the twenty-fourth day, so he certainly was not rushing to circumvent Board action. Moreover, the record contains no indication as to the date the Board asked Dr. Barlow to request a correction to its final order. It may be that the letter was sent after he had filed his appeal. The Board cannot claim the benefit of an undated letter, with no indication in the record as to when the letter was sent and/or received. Moreover, the argument that Dr. Barlow was required to request that the Board correct its order, especially when the order was clear in the first place, is spurious.

¶ 22. Because assessing the costs of investigation to Dr. Barlow was beyond the power of the Board, and because the order clearly and specifically stated that the $3,216 fee was for costs of the investigation, specifically distinguishing the fee from the statutory monetary penalty assessed, and because the Board failed to make any findings regarding the number of violations committed by Dr. Barlow (which is especially noteworthy given that the Board has since changed its argument from Dr. Barlow having committed at least five violations to Dr. Barlow having committed at least eight violations), this Court reverses and renders the $3,216 assessed to Dr. Barlow in this case.

CONCLUSION

¶ 23. This Court affirms the judgments of the Board and circuit court in part, and reverses and renders in part. Dr. Barlow’s arguments regarding the standard of review of the circuit court, the implicit Repeal of Section 73-6-25, and the violation of his First Amendment rights are all without merit. However, the Board did not have the authority to impose the costs of the investigation directly on Dr. Barlow and this Court reverses and renders the $3,216 assessment in favor of Dr. Barlow.

¶ 24. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

WALLER, C.J., RANDOLPH, P.J., KITCHENS, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J.

DICKINSON, PRESIDING JUSTICE,

SPECIALLY CONCURRING:

¶25. A commercial advertisement may be false or—as in the case before us— truthful. A factfinder may find a truthful advertisement to be actually misleading where it actually has misled one or more members of the public. The factfinder may find the same advertisement to be potentially misleading where no person actually claims to have been misled.

¶26. For reasons unexplained by the United States Supreme Court, the First Amendment provides protection for truthful advertisements that are potentially misleading, but no protection where a single, random person—whether reasonably or not—claims to have been misled. In other words, the Supreme Court has concluded that identical speech in identical contexts receives varying degrees of protection from the First Amendment based solely upon a single random individual’s subjective confusion.

¶27. In 1982, the Supreme Court held that “[tjruthful advertising related to lawful activities is entitled to the protections of the First Amendment,” and “States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.”

¶ 28. When the Legislature enacted Mississippi Code Section 73-6-25, it did what the United States Supreme Court has said it cannot do. Regardless of truth, legality, disclaimers, or whether anyone actually has been misled, Section 73-6-25 imposes an absolute prohibition against chiropractors using any professional designation other than those listed in the statute. Thus, the Legislature has crafted a statute lacking adequate consideration for the First Amendment concerns it creates.

¶ 29. According to In Re R.M.J. a statute may not ban truthful advertisements which have not misled anyone, nor may it ban truthful advertisements with appropriate disclaimers. But here, Section 73-6-25 survives by the skin of its teeth. Dr. Barlow’s advertising related to a lawful activity—operating a chiropractic practice—and nothing suggests he lacked the expertise he claimed, or that he does not possess the professional designation in his advertisement: “Chiropractic Neurologist.” In fact, the Board’s own investigator testified that Dr. Barlow’s “chiropractic neurology degree” required him to take an additional 1,600 hours of continuing education above that required of a Doctor of Chiropractic, and that a person with “a chiropractic neurology degree would have—you would have a much better understanding of neurological issues that may be going in the body and be able to recognize other issues.” And Dr. Barlow provided uncontra-dicted testimony that his area of expertise included chiropractic neurology. So. the question is whether Dr. Barlow’s “[truthful advertising related to lawful activities is entitled to the protections of the First Amendment,” preventing the State from placing an absolute ban on it.

¶ 30. One would think so. But, for reasons unapparent and seemingly inexplicable, the United States Supreme Court has held that while “States may not place an absolute prohibition on certain types of potentially misleading information,” they may place an absolute prohibition on the exact same truthful commercial speech related to a lawful activity if it has actually misled or confused some customer or patient.

¶ 31, Here, the Board heard testimony from a single patient that Dr. Barlow’s advertisement had confused her. For that reason, and that reason alone, Section 73-6-25 is not unconstitutional as' applied in this case. In other woi'ds, but for one individual’s subjective—and arguably unreasonable—confusion, this statute as- applied in this case would violate the First Amendment because it does not allow for appropriate disclaimers to truthful advertisements that potentially are misleading.

COLEMAN, J., JOINS THIS OPINION.

      . One of those patients did not attend the hearing, and the Board thus did not address her complaints, and none are at issue in this appeal.

      . The Board found that clear and convincing evidence was not established for any of the alleged violations, except for the advertising violations. The other violations are not at issue in this appeal.

      . DANCB stands for "Diplómate of the American Chiropractic Neurology Board.”

      . FACFN stands for "Fellow of the American College of Functional Neurology,”

      . We do not hold that Section 73-6-25 may never infringe upon First Amendment rights, but simply that it does not do so in ■ this particular case. We note that the United States Supreme Court has frowned upon absolute restrictions on advertising regarding certifications. "[T]he States may not place an absplute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in way that is not deceptive.” Id. at 203, 102 S.Ct. 929; see also Peel v. Attorney Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990) (plurality opinion) (finding an absolute bar on lawyer advertising a certification violated the First Amendment, where there was no showing that the burden on the bar association of distinguishing between certifying boards that are bona fide and those that are bogus would be significant, and where there' was "a complete absence of any evidence of deception in the present case.”); see also American Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099 (9th Cir. 2004) (California legislature could regulate which "medical professionals could use the -designation "board certified” by determining which boards met certain qualifications; the court noted that the legislature did not ban medical professionals from advertising that they had a certification from a nonqualifying board or organization; the legislature had simply prohibited them from using the words "board certified” in that case). Barlow did not place evidence other than his own testimony in the ■record that this certification was indeed a reliable certification from a bona fide organization. Under the particular facts of this specific case, we simply cannot find a First Amendment violation.

      . The statute provides that, in lieu of revocation, suspension, or cancellation of a license, the Board may levy
      (a) For the first violation, a monetary penalty of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) for each violation.
      (b) For the second and each subsequent violation, a monetary penalty of not less than One Thousand Dollars ($1,000.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00) for each violation.
      Miss. Code Ann. § 73-6-19(6) (Rev. 2012).

      . The Legislature has specifically provided that the governing bodies of many professions may recoup the costs of an investigatory proceeding from the party disciplined. See, e.g., Miss. Code Ann. § 73-1-29(7) (architects); Miss.- Code Ann. § 73-2-16(8) (landscape architects); Miss. Code Ann, § 73-4-19(7) (auctioneers); Miss. Code Ann, § 73-9-6 l(4)(d) (dentists); Miss. Code Ann. § 73-ll-57(6)(d) (funeral services providers); Miss. Code Ann. § 73-13-37(7) (engineérs); Miss. Code Ann. §§ 73-13-89 & 73-13-37 (land surveyors); Miss. Code Ann. § 73-17-15(l)(b) (nursing home administrators); Miss, Code Ann. § 73-21—103(l)(d)(iii) (phármacists); Miss. Code Ann. § 73-23-64(7) (physical therapists); Miss. Code Ann. § 73-25-30 (physicians); Miss. Code Ann. § 73-33-11(5) (public accountants); Miss. Code Ann. § 73-42-34(3) (athlete agents); Miss. Code Ann. § 73-53-23(7) (social • workers); Miss. Code Ann. §§ 73-54-29 & 73-53-23 (marriage and family therapists); Miss. Code Ann. § 73-63-43(7) (geologists); Miss. Code Ann. § 73-67-27(3)(d) (massage therapists); Miss. Code Ann. § 73-73-31(8) (interior designers); Miss. Code Ann. § 73-75-19(2) (behavior analysts).

      .. To the- extent this may be an oversight by the Legislature, we encourage the Legislature to update, the statute; however, this Court cannot add to the statute what the Legislature did not provide. .

      . It even stated that Dr. Barlow "must pay the monetary penalty and costs assessed herein within thirty (30) working days following the date of the entry of this Final Order.” (Emphasis added.)

      . The changing number of violations alleged by the Board over the course of this litigation, from no specified number to at least five to at least eight, illustrates why the administrative record and findings of fact must govern.

        .In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982) ("Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information.”); see also Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91, 100-01, 110 S.Ct. 2281, 2288, 110 L.Ed.2d 83 (1990) ("The facts stated on petitioner’s letterhead are true and verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and that three States have licensed him to practice law. There is no contention that any potential client or person was actually misled or deceived by petitioner’s stationery.”).

      . In re R.M.J., 455 U.S. at 203, 102 S.Ct. 929 (emphasis added).

      . Miss. Code Ann. § 73—6—25(l)(a) (Rev. 2012) ("The members of the chiropractic profession, licensed or unlicensed, are hereby prohibited from: (a) Making ... use of any other professional designation other than the term 'chiropractor,' 'doctor of chiropractic,’ 'D.C.' or 'chiropractic physician.’”) (emphasis added).

      . In re R.M.J., 455 U.S. at 203, 102 S.Ct. 929.

      . Id.

      . Id. (“Misleading advertising may be pro- ' hibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information.’’); see also Peel, 496 U.S. at 100-01, 110 S.Ct. 2281 ("The facts stated on petitioner's letterhead are true and verifiable. It is undisputed that NBTA has certified petitioner as a civil trial specialist and that three States have licensed him to practice law. There is no contention that any potential client or person was actually misled or deceived by -petitioner’s stationery.”).


author: KITCHENS, JUSTICE,

text:
    Leslie B. SHUMAKE, Jr. v. Katarina Sitton SHUMAKE
    NO. 2015-CA-01622-SCT
    Supreme Court of Mississippi.
    05/25/2017

      ATTORNEYS FOR APPELLANT: LESLIE B. SHUMAKE, JR. (PRO SE), OLIVE BRANCH, A. E. (RUSTY) HARLOW, JR., GRENADA
    ATTORNEY FOR APPELLEE: T. JACKSON LYONS, JACKSON
    BEFORE DICKINSON, P.J., KITCHENS AND COLEMAN, JJ.
   KITCHENS, JUSTICE,

FOR THE COURT:

¶ 1. Leslie Shumake appeals the judgment of the Chancery Court of DeSoto County that found him in contempt for failure to pay his alimony obligations, denied his motion to modify alimony, and placed an equitable lien on his law practice to secure the payment of future alimony. Mr. Shumake argues that the chancellor erred by imposing the equitable lien, abused his discretion by failing to grant the motion to modify alimony, erred by rejecting his inability-to-pay defense to the contempt action, erred in the award of attorney fees, and erred by awarding Ms. Shumake the unpaid balance of the arrear-age on the parties’ former first mortgage.

¶ 2. We affirm on all issues except the chancellor’s award of attorney fees for Ms. Shumake’s successful contempt action. We reverse the attorney fee award and remand for the chancellor to subtract the fees attributable to Ms. Shumake’s defense of Mr. Shumake’s modification action.

FACTS

¶ 3. The parties were divorced by a final judgment entered on February 20, 2009. Shumake v. Shumake, 156 So.3d 900, 902 (Miss. Ct. App. 2013). The chancellor ordered Mr. Shumake to pay Ms. Shumake permanent periodic alimony in the amount of $5,750 per month. Id. On March 12, 2009, Ms. Shumake filed a complaint for citation of contempt, arguing that Mr. Shu-make had failed to pay the amount of alimony ordered. Id. Mr. Shumake answered, counterclaimed for contempt, and filed a complaint for modification, arguing that his bankruptcy filing was a material change in circumstances. Id.

¶4. After several hearings and various orders, on April 12, 2012, the chancellor ordered Mr. Shumake to pay his former wife $3,250 per month until the completion of his Chapter 13 bankruptcy payments. Id. After completion of the bankruptcy payments, Mr. Shumake’s periodic alimony payments would be raised to $4,225 per month. Id. The chancellor noted that, because the bankruptcy payments were approximately $4,000 per month, Mr. Shu-make would have an additional $4,000 available to meet his alimony obligations once his bankruptcy payments concluded. The chancellor also found Mr. Shumake in arrears in his alimony payments in the amount of $58,550, and ordered him to pay an additional $1,500 per month, following the completion of his bankruptcy payments, until he had fully paid the arrear-age. Id.

¶5. Mr. Shumake appealed from the order of April 12, 2012, and this Court assigned his appeal to the Court of Appeals. The Court of Appeals reversed and rendered the chancery court’s order for Mr. Shumake to pay the $58,550 arrear-age. Id. at 905. This Court granted Ms. Shumake’s petition for 'certiorari, reversed the judgment of the Court of Appeals, and reinstated the chancery court’s order. Shumake v. Shumake, 147 So.3d 352, 356 (Miss. 2014). We held that the chancellor did not abuse his discretion by ordering Mr. Shumake to pay the alimony arrear-age. Id.

¶ 6. On November 14, 2014, Ms. Shu-make filed a complaint for citation of contempt, claiming that Mr. Shumake was in arrears in the amount of $38,600 on his periodic alimony payments. She also complained that, despite Mr. Shumake’s completion of his bankruptcy payments, he had not increased his alimony payments to $4,225 and had failed to pay the additional $1,500 per month toward the $58,550 ar-rearage as ordered. Further, Ms. Shumake claimed that Mr. Shumake had not paid the current arrearage of $10,467.49 on the parties’ first mortgage on the marital dom-idle as ordered in the divorce judgment. She requested interest on the arrearages as well as attorney fees and costs.

¶ 7. Mr. Shumake filed an answer and a countercomplaint for modification of his alimony obligations. He admitted that he had not paid the full amounts ordered by the court, but asserted that he was not in wilful contempt because he had been unable to pay the sums ordered. He argued that the bankruptcy order discharged his responsibility for the amount in arrears on the first mortgage. He argued also that his alimony obligations should be reduced due to his bankruptcy, federal and state tax liabilities, and reduction in income.

¶ 8. After a hearing, the chancellor entered a judgment finding Mr. Shumake in wilful contempt for failing to meet his alimony obligation. The chancellor found that Mr. Shumake had not paid the full amount of periodic alimony that had been ordered. The chancellor awarded Ms. Shumake a judgment in the amount of $65,300 for alimony arrearages covering the period from April 11, 2011, through the date of the hearing, on October 6, 2015. Further, the chancellor awarded Ms. Shumake $10,468 for the unpaid arrearage on the first mortgage. The chancellor awarded three percent interest on those amounts from the date of the judgment. The chancellor found also that the $58,550 alimony arrearage remained unsatisfied in full. To secure Mr. Shumake’s payment of future alimony, the chancellor ordered an equitable lien against all future gross income of his law' practice. Finally, the chancellor denied Mr. Shumake’s motion to modify his alimony obligation. Mr. Shumake appeals.

STANDARD OF REVIEW

¶ 9. This Court reviews the findings of a chancellor for abuse of discretion. Heiter v. Heiter ex rel. Sheffield, 192 So.3d 992, 994 (Miss. 2016). We will leave a chancellor’s findings undisturbed. “unless the chancellor’s decision was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Lewis v. Pagel, 172 So.3d 162, 172 (Miss. 2015).

I. WHETHER THE CHANCELLOR ERRED BY IMPOSING AN EQUITABLE LIEN UPON THE GROSS PROCEEDS OF MR. SHUMAKE’S LAW FIRM.

¶ 10. Mr. Shumake complains that the chancellor erred by imposing an equitable lien on his law practice despite the fact that Shumake’s former wife, in her complaint for citation of contempt, did not specifically request that relief. He contends that he was surprised because he lacked notice that the chancellor might place an equitable lien oh his law practice. He argues that, had Ms. Shumake requested such a lien, he would have prepared a defense and presented evidence. In response, Ms. Shumake argues that the chancellor committed no error because the equitable lien was within her prayer for general relief.

¶ 11. As support.for his argument, Mr. Shumake relies on Holleman v. Holleman, 527 So.2d 90, 93 (Miss. 1988), in which the Court held that a chancery court may not impose a lien to secure the payment of alimony unless such a lien specifically was requested in the pleadings. The Court in Holleman held that the "opposing party is surprised when a lien is imposed that was not specifically pled. Id, As Ms. Shumake argues, Holleman was overruled by Smith v. Smith, 607 So.2d 122, 127 (Miss. 1992). In Smith, this Coml recognized that, in Holleman, “we failed to take cognizance of our changed pleading standards” under the Mississippi Rules of Civil Procedure. Id: Under Rule 8, “a pleading which sets forth a claim for relief ... shall contain ... a demand for judgment for the relief to which [the pleader] deems himself entitled.” M.R.C.P. 8(a)(2). Rule 54(c) provides that: “[e]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings ....” M.R.C.P. 54(c)". Applying these rules, the Court in Smith held that the wife’s prayer for general relief was sufficient to have enabled the chancellor to impose an equitable lien. Smith, 607 So.2d at 127. Accordingly, Ms. Shumake’s prayer for general relief was sufficient to have placed Mr. Shumake on notice that the chancellor could impose any relief to which Ms. Shumake was “entitled by the proof’ and which was “within the jurisdiction of the court to grant.” It is well established that a chancellor is empowered to impose an equitable lien to secure the payment of alimony, especially when the payor has been delinquent. Morgan v. Morgan, 397 So.2d 894, 897 (Miss. 1981). Therefore, this issue is without merit.

II. ■ WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY DENYING MR. SHU MAKE’S MOTION TO MODIFY THE AMOUNT OF HIS ALIMONY OBLIGATION,

12. Because Mr. Shumake’s ap-apbrief is missing pages nine through eleven, his brief includes only "one page of argument on this issue. On this single page, Mr. Shumake argues that the . chancellor erred by denying his motion for a downward modification of his alimony obligation. Specifically, Mr. Shumake challenges the chancellor’s rejection of his argument that fluctuations in the parties’ respective incomes constituted a material change in circumstances.

¶ 13. “The chancellor has the authority to modify periodic alimony ‘upon a finding of a substantial change in circumstances', regardless of any intent expressed by the parties to the contrary.’ ” Holcombe v, Holcombe, 813 So.2d 700, 703 (Miss. 2002) (quoting McDonald v. McDonald, 683 So.2d 929, 931 (Miss. 1996)). The change must be one the parties did not anticipate at the time of the original alimony judgment. Holcombe, 813 So.2d at 703. When a material change in circumstances is found, the chancellor must consider the factors from Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), before ordering any modification of periodic alimony. Steiner v. Steiner, 788 So.2d 771, 776 (Miss. 2001).

¶ 14. The chancellor found that the divorce judgment reflected gross incomes of $222,922 for Mr. Shumake and $14,500 for Ms. Shumake. Mr. Shumake argued that his income'from his law practice had gone down to $194,352, while Ms. Shumake’s ■income had increased to $40,376, and that these fluctuations constituted a material change that could not have been anticipated at the time of the divorce. The chancellor found from Ms. Shumake’s tax returns that she had- earned $24,643 in 2012, $45,138 in ,2013, and $32,763 in 2014. Her financial statement showed a present annual income of $40,376. The chancellor accepted Ms. Shumake’s testimony that, after she had filed her financial statement, her work hours as an office manager at a hair salon were reduced from forty to thirty-two hours per week. The chancellor found that the parties’ income fluctuations since the divorce judgment reasonably could have been anticipated at the time of the original judgment, and that no material change in circumstances had occurred.

¶ 15. Mr. Shumake argues that the chancellor’s finding would preclude a future court’s deciding that changes in income experienced by divorced parties could constitute a material change. In support, he points to the chancellor’s statement that “it was and is reasonably to be expected that the gross income for each party will on average increase over some years and to further anticipate that the gross income may also occasionally dip down over the course of a few years.” Considering that the chancellor’s decision rested upon the particular , facts of this case, Mr. Shu-make’s concerns are unfounded.

¶ 16. Further, the chancellor did not abuse ■ his discretion by' finding that no material change in circumstances had occurred. While Mr. Shumake’s law practice income had declined somewhat, and Ms. Shumake’s income had increased minimally, the financial disparity between the 'parties was not substantially different than it had been at the time of divorce, and the majority of Ms. Shumake’s income came from alimony. See Hockaday v. Hockaday, 644 So.2d 446, 449-50 (Miss. 1994). The chancellor did not clearly err by finding that the income fluctuations were not so substantial that they reasonably could not have been anticipated at the time of the divorce judgment. We find no abuse of discretion in the chancellor’s denial of Mr. Shumake’s motion to modify alimony.

III. WHETHER THE CHANCELLOR’S FINDING THAT MR. SHUMAKE WAS IN WILFUL CONTEMPT WAS BASED ON A MISUNDERSTANDING . OF THE FACTS.

¶ 17. Because Mr. Shumake has presented no briefing on this argument, the Court does not address it. O.W.O. Invs., Inc. v. Stone Inv. Co., Inc., 32 So.3d 439, 446 (Miss. 2010).

IV. WHETHER THE AMOUNT OF ATTORNEY FEES AWARDED TO MS. SHUMAKE WAS ERRONEOUS.

¶ 18. Ms. Shumake requested that the chancellor order Mr. Shumake to pay all the attorney fees she had incurred during the proceedings. The chancellor held that, because Mr. Shumake was in wilful contempt of court, Ms. Shumake was entitled to her reasonable attorney fees incurred in prosecuting the contempt action. The chancellor found from the attorney fee bill submitted by Ms. Shumake that she had incurred $5,460 prior to trial, plus $500 for the motion to compel. Accordingly, the chancellor ordered Mr. Shumake to pay Ms. Shumake’s attorney fees in the amount of $6,000.

¶ 19. In another incompletely briefed argument, Mr.' Shumake contends that the chancellor erred by awarding Ms. Shu-make the total amount of attorney fees reflected by her attorney fee bill because those fees were incurred not only in prosecuting the contempt action, but also in defending his modification action. The fee bill submitted by Ms. Shumake primarily includes charges for prosecuting the contempt action, but also lists some charges for defending the modification action.

¶ 20. A former spouse who successfully prosecutes an action for contempt for failure to pay alimony is entitled to attorney fees without a showing of need. Morreale v. Morreale, 646 So.2d 1264, 1271 (Miss. 1994). However, in an alimony modification action, “[w]here a party is financially able to pay her attorney’s fees, an award of attorney’s fees is not appropriate.” Anderson v. Anderson, 692 So.2d 65, 74 (Miss. 1997). “The award of attorney fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards.” Rogillio v. Rogillio, 101 So.3d 150, 156 (Miss. 2012). “[W]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney fees.” Id.

¶ 21. Because the basis for the attorney fee award was the success of Ms. Shu-make’s contempt action, Mr. Shumake contends, the chancellor should have determined the amount of the fees attributable to defending his modification action and deducted those fees from Ms. Shumake’s attorney fee award. He cites Tidmore v. Tidmore, 114 So.3d 753, 759 (Miss. Ct. App. 2013), in which the Court of Appeals reversed the chancellor’s award of attorney fees in a successful contempt action because the chancellor had awarded the full amount of the attorney fee bill without subtracting the fees attributable to a child support modification action. Ms. Shumake argues that Tidmore does not apply because this case involves a motion for alimony modification, not child support modification.

¶22. Ms. Shumake’s attempt to distinguish this case from Tidmore is unpersuasive. Given the differing standards for awarding attorney fees in a contempt action and in a modification action, Mr. Shu-make is correct that the chancellor erred by failing to subtract the amount of attorney fees Ms. Shumake incurred in defending the motion to modify alimony. Ms. Shumake was not entitled to attorney fees for defending the modification action absent a finding of inability to pay. Because the chancellor applied an incorrect legal standard, we reverse in part and remand this case to the chancery court for a determination of attorney fees due Ms. Shu-make for the contempt proceedings. However, the chancellor, in his discretion, may award Ms. Shumake attorney fees for defending the modification action should he find an inability to pay on Ms. Shumake’s part and relative financial disparity between the parties. See Rogillio, 101 So.3d at 156.

V. THE CHANCELLOR ERRED BY AWARDING MS. SHUMAKE THE UNPAID BALANCE OF THE ARREARAGE OWED ON THE PARTIES’ FORMER FIRST MORTGAGE.

¶ 23. At the time of the divorce, the parties’ first mortgage on the marital domicile, with lender Countrywide, was in arrears. In the divorce judgment, the chancellor ordered that “[t]he current ar-rearage on the first mortgage shall be immediately paid and the mortgage brought current by Leslie [Shumake].” The divorce judgment also provided that “Leslie [Shumake] shall be responsible for, pay for, and hold Katerina [Shumake] harmless on the following other marital debt,” and specified those debts.

¶ 24. At the hearing on Ms. Shumake’s contempt action, it was established that Mr. Shumake never paid the arrearage on the first mortgage as ordered in the divorce judgment.' Mr. Shumake testified that, at the time of the divorce, the arrear-age had been $14,845.20. He testified that, in his bankruptcy, he had discharged his debt to Bank of America, the lender which had assumed the first mortgage, by paying $4,377.71. Ms. Shumake testified that she had been forced to refinance the marital home, and at that time the remaining ar-, rearage had been included in her current mortgage payments.

¶ 25. Mr. Shumake argued that his obligation to pay the first mortgage arrearage had been discharged by his bankruptcy. The chancellor rejected that argument because 11 U.S.C. § 523(a) excepts domestic support obligations incurred in divorce actions from discharge. See 11 U.S.C. § 523(a)(5) (2012). Finding that Mr. Shu-make had provided no authority for his argument that his bankruptcy plan had discharged the debt, the chancellor ordered Mr. Shumake to pay Ms. Shumake the remaining arrearage of $10,468 for the first mortgage.

¶26. On appeal, Mr. Sjiumake renews his argument that his obligation to pay the first mortgage arrears was discharged by the bankruptcy plan. Again, he cites no authority for this proposition. Instead, he argues that, according to the terms of the divorce judgment, his obligation to pay the first mortgage arrearage was an obligation to pay the lender, not to pay Ms. Shumake. He contends that, although he was ordered to pay the first mortgage arrearage, he was not ordered to hold Ms. Shumake harmless from that debt. He argues that the divorce judgment ordered him to “be responsible, pay for, and hold Katerina [Shumake] harmless on the following other marital debt” and that this list of debts did not include the first mortgage arrearage.

¶ 27. We find no merit in Mr. Shumake’s argument that the divorce judgment merely created an obligation to the lender rather than to Ms. Shumake. A review of the divorce judgment indicates that the chancellor ordered Mr. Shumake to pay the first mortgage arrearage “immediately.” Then, the judgment listed “other marital debt” from which Mr. Shumake must hold Ms. Shumake harmless, and ordered Ms. Shumake to pay certain other marital debts. Plainly, the chancellor’s intent was for Mr. Shumake immediately to pay the first mortgage arrearage, and Ms. Shu-make would not be responsible for that debt. In conducting the equitable distribution, the chancellor’s obligation was to allocate responsibility for the marital debts between the parties to the divorce. Mr. and Ms. Shumake already had a legal obligation to the lender. Mr. Shumake’s bankruptcy discharged his obligation to the lender, but not his former wife’s. Because Ms. Shumake ended up paying the debt to the lender, the chancellor did not err by ordering Mr. Shumake to reimburse her for the debt he had failed to pay as ordered.

CONCLUSION

¶ 28. We hold that the chancellor’s imposition of an equitable lien on Mr. Shu-make’s law practice to secure the payment of future periodic alimony was not an abuse of discretion. Further, the chancellor did not err by refusing to modify Mr. Shumake’s alimony obligation. Nor did the chancellor err by awarding Ms. Shumake the remaining arrearage on the first mortgage. However, the chancellor did err by awarding Ms. Shumake the attorney fees reflected by her attorney fee bill without deducting the fees attributable to the defense of the alimony modification action. Therefore, this Court affirms m part and reverses in part and remands for the chancellor to determine the amount of attorney fees owed to Ms, Shumake for her successful contempt action. The chancellor may award any additional attorney fees for the modification action only upon a finding of inability to pay and relative financial dis-. parity between the parties.

-¶ 29. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, COLEMAN AND BEAM, JJ., CONCUR. MAXWELL AND CHAMBERLIN, JJ., NOT PARTICIPATING.

      , We note that, because periodic alimony payments vest when due and "each payment bears legal interest from and after its due date, ...” the chancellor erred by awarding interest from the date of the judgment instead of from the respective dates on which the several payments came due and were unpaid. Rubisoff v. Rubisoff, 242 Miss. 225, 235, 133 So.2d 534, 537 (1961). But, because neither party has raised this issue on appeal, it is not properly before the Court.

      . Although the pro se brief Mr. Shumake submitted to this Court was missing three pages, it is apparent from the arguments in the ap-pellee’s brief that Ms. Shumake had a complete copy of the brief. On March .15, 2017, the writing justice ordered Mr. Shumake to file a complete copy of the' appellant’s brief electronically by 5:00 p.m. on March 20, 2017. Although the order was duly served on Mr. Shumake’s designated Mississippi Electronic Courts recipients, the time expired with no response from Mr. Shumake. Ten days after the due date, Mr. Shumake filed a complete copy of the brief with no explanation for the delay. The brief was struck as untimely filed. Accordingly, the Court will address only those portions of Mr. Shumake’s argument that have been briefed.