author: IRVING, J., CARLTON, J.,

text:
    SANDERSON FARMS, INC., Appellant v. Debra F. JOHNSON, Appellee.
    No. 2009-WC-00840-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2010.
    Rehearing Denied May 24, 2011.
    Certiorari Denied Aug. 25, 2011.

      Douglas S. Boone, Laurel, attorney for appellant.
    John T. Ball, Natchez, attorney for ap-pellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. On October 19, 2001, Debra F. Johnson filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission), alleging that she had suffered bilateral carpal tunnel syndrome while working at Sanderson Farms, Inc. Following a hearing, an administrative judge (AJ) concluded that Johnson had developed bilateral carpal tunnel syndrome on August 16, 2000, and awarded her temporary total disability benefits in the amount of $173.43 per week for the period commencing August 16, 2000, and ending November 22, 2003. The AJ later found that Johnson had suffered a permanent disability of ten percent to each hand and awarded her $173.43 per week for the period commencing November 22, 2003, and continuing for forty weeks. Sander-son Farms appealed to the Commission. The Commission affirmed the AJ’s finding of compensability for bilateral carpal tunnel syndrome and the award of temporary total disability benefits; however, the Commission reduced the amount of Johnson’s permanent disability rating to five percent in accordance with the medical bilateral impairment rating assigned to Johnson by one of her treating physicians. Sanderson Farms appealed to the circuit court, which affirmed the Commission’s decision. It is from that decision that Sanderson Farms now appeals, setting forth the following issues, which we quote verbatim:

1. The Mississippi Workers’ Compensation Commission (hereinafter referred to as MWCC) erred in finding that the Claimant suffered a com-pensable injury as such decision was not supported by substantial evidence and, in fact, is contrary to the overwhelming weight of the evidence.
2. The MWCC erred in ordering temporary total disability benefits in the amount of $173.43 each week beginning August 16, 2000 and continuing through November 22, 2003, as such is not supported by substantial evidence but, in fact, is contrary to the overwhelming weight of the evidence.
3. The MWCC erred in awarding penalties and interest as such was not supported by substantial evidence but, in fact, was contrary to the overwhelming weight of the evidence.
4. The MWCC erred in not excluding the testimony of Dr. [John] Passman and of Dr. [Robert] Haimson as such violated Daubert standards and Evi-dentiary Rule 702 of the Mississippi Rules of [Evidence] which require that expert testimony be based on reliable data and not conelusory statements. Dr. Haimson’s and Dr. Passman’s testimonies] w[ere] admitted over objections notwithstanding neither had any data or scientific evidence to support their conelusory statements as to causation. Such was error.
5. The MWCC erred in not giving greater weight to the testimony of Dr. Nortin Hadler who presented ... un-refuted scientific evidence that Claimant’s alleged carpal tunnel syndrome was not related to the limited employment of Claimant.
6. The MWCC erred in giving any weight to the testimonies] of Dr. Passman and Dr. Haimson as neither based [his] opinion on any scientific data indicating that the limited work exposure of the Claimant at Employer’s place of employment caused or contributed to the Claimant’s alleged carpal tunnel syndrome.
7. The MWCC erred in calculating Claimant’s weekly wage at $260.15 as such was not supported by substantial evidence and was against the overwhelming weight of the evidence.
8. The MWCC erred in finding that Claimant did not reach MMI [ (maximum medical improvement) ] until November 22, 2003, as such was not supported by substantial evidence and against the overwhelming weight of the evidence.
9. The MWCC erred in awarding 20 weeks of permanent partial disability benefits (5% for each upper extremity) as such is not supported by substantial evidence and is against the overwhelming weight of the evidence.

¶ 2. Although Sanderson Farms lists these nine issues, its brief is focused almost entirely on attacking the medical testimony offered by Johnson, asserting that it was received in violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (Miss.2003). We find, as did the circuit court, that the Commission is not required to strictly follow the rules of evidence and, more specifically, the dictates of Daubert, as embraced by McLemore. We further find that there is ample medical evidence to support the Commission’s findings. Therefore, we affirm the judgment of the circuit court, which affirmed the Commission’s decision.

FACTS

¶ 3. Johnson began working at Sander-son Farms on August 12, 2000. Initially, she was responsible for pulling the intestines from chickens. Then, approximately one week after she began working, she was transferred to another job where she worked as a backup to a machine that is designed to cut the windpipes of chickens. Johnson was responsible for cutting the windpipes that were missed by the machine. To perform this task, Johnson held the chicken in her left hand and used scissors in her right hand. Both of Johnson’s jobs required her to perform repetitive, manual work.

¶4. Shortly after changing positions, Johnson began to experience swelling and pain in her hands. She reported these problems to her supervisor, Bernita Smith. At some point thereafter, Johnson saw Dr. David McGraw at the Catchings Clinic in Woodville, Mississippi. Dr. McGraw placed Johnson on medical leave in November 2000. Dr. Lee Voulters performed an electromyogram (EMG) and a nerve conduction study (NCS) on June 25, 2001, which confirmed that Johnson suffered from bilateral carpal tunnel syndrome. Specifically, Dr. Voulters found that: “This study shows evidence of a median nerve entrapment neuropathy at the wrists, bilaterally, i.e., bilateral carpal tunnel syndrome. This is a neuropraxic type injury, right greater than left.” After the June 25 tests, Dr. McGraw wrote a letter “to whom it may concern,” stating that “this condition is usually caused by or aggravated by repetitive use of the hand and wrist.” He then referred Johnson to Dr. John Passman, a board-certified orthopedic surgeon.

¶ 5. Johnson first saw Dr. Passman on August 21, 2001, at which point Johnson informed him that she had suffered from pain in both of her hands since August 2000. Johnson attributed the pain to her work at Sanderson Farms. On June 24, 2003, Dr. Passman wrote a letter to Sand-erson Farms’ attorney, stating that Johnson had had a second EMG and NCS on May 23, 2003, that indicated that she had “mild bilateral carpal tunnel syndrome worse on the left side.” Then, on August 22, 2003, Dr. Passman’s partner, Dr. Robert Haimson, performed a carpal tunnel release on Johnson’s left wrist. The release did not provide Johnson any significant improvement; therefore, she declined further surgery.

¶ 6. Dr. Passman concluded that Johnson had reached maximum medical improvement sometime in 2003, even though he continued treating her until December 2005. Dr. Passman’s final diagnosis of Johnson was bilateral carpal tunnel syndrome. He opined that Johnson had suffered a five-percent physical-impairment rating in each upper extremity. He further opined that Johnson should refrain from performing work that would cause her to experience pain in her hands or would require flexion of the wrists. Dr. Passman also opined that it is possible for a person to develop carpal tunnel syndrome after only a few months of using scissors to cut the necks of chickens.

¶ 7. Dr. Haimson saw Johnson regularly after he performed the carpal tunnel release on her in 2003. He concluded that Johnson had reached maximum medical improvement three to six months after the carpal tunnel release was performed. In a letter written on June 30, 2004, to Sander-son Farms’ attorney, Dr. Haimson noted that he had performed a follow up EMG that showed “some decreased nerve conduction in the area of the carpal tunnel consistent with some degree of residual or recurrent carpal tunnel syndrome.” He further concluded that: “Based upon her recounting of the history of her condition and description of the work she [had] performed at the Sanderson Chicken Factory, I believe that it is medically probable that her carpal tunnel [syndrome] was the direct result of her employment at the chicken company.”

¶ 8. Dennis Lewis and Lisa Caine, two of Johnson’s supervisors while she was employed at Sanderson Farms, testified. Neither Lewis nor Caine recalled Johnson ever complaining about pain in her wrists. Further, Lewis testified that Johnson was only responsible for cutting the windpipes of approximately three chickens per minute. Finally, Lewis stated that Johnson was terminated in December 2000 for failure to report to work for three days.

¶ 9. Smith, a nurse at Sanderson Farms, testified via deposition that Johnson came to her office on September 13, 2000, and again on November 27, 2000. According to Smith, Johnson complained of soreness on September 13 and of problems with her hands on November 27. Smith could not recall Johnson coming to visit her on any other occasion.

¶ 10. Johnson provided testimony via deposition and again before the Commission. Johnson stated that her duties were changed during her second week at Sand-erson Farms. According to Johnson, her hands began to hurt shortly after she began using scissors to cut the chickens’ necks. Johnson stated that both of her hands were affected, her right hand more than her left. Johnson stated that she informed her supervisors of the problem that she was experiencing and that she also went to see one particular nurse at least twice and another approximately thirty to forty times during the course of her employment at Sanderson Farms. Johnson stated that the nurse that she frequently saw often failed to notate the time that she saw her.

¶ 11. Johnson saw Dr. McGraw and was under his care until he released her to return to light-duty work in March 2001. According to Johnson, it was at that point that she discovered that her employment with Sanderson Farms had been terminated the previous December. Johnson testified that per company policy, she contacted Lewis on a daily basis from November 2000 until March 2001, because she was unaware that she had been terminated. Johnson explained that she returned to Sanderson Farms and was informed by Caine that she should wait six months and reapply for a position in the freezer. She stated that she declined to follow up on employment possibilities at Sanderson Farms because she could not work in the freezer.

¶ 12. According to Johnson, she had not had any problems with either her hands or her wrists prior to her employment at Sanderson Farms. However, Johnson acknowledged having been involved in a motor-vehicle accident in 1994, wherein she had suffered head and back injuries and was hospitalized for ten days. Johnson was involved in another motor-vehicle accident in 1996, wherein she was struck by a drunk driver. Johnson testified that she did not suffer any injuries as a result of the 1996 accident. Johnson also acknowledged that she had worked at a sewing company for ten years prior to her employment at Sanderson Farms; however, Johnson again stated that she had not experienced any problems with her hands or wrists until after she started working at Sanderson Farms. Johnson also testified that she applied for social-security benefits in 1994 and that she was denied benefits. The record reflects that Johnson also filed an application for disability benefits with the Social Security Administration on April 24, 2001, wherein she stated that she was unable to work because of a disabling condition that began on November 23, 2000. This request was also denied. Then, on August 16, 2001, Johnson submitted a request for reconsideration with the Social Security Administration, wherein she provided the following reasons as to why she was seeking reconsideration:

I suffer with a severe and disabling lower back condition, and severe headaches. I had a motor vehicle accident in 1994, in which I hurt my right leg, and knee. My left shoulder goes numb. My right hand has bilateral [sic] carpal tunnel syndrome. My right hand stays in constant pain. I am not able to bend over due to the severe pain in my back. I also have severe pain in my left hand.

¶ 13. Dr. Lon Alexander performed an independent medical examination of Johnson. Dr. Alexander reviewed the EMG and NCS performed by Dr. Voulters, as well as medical records from Dr. Passman and Dr. L.J. Owens. In a clinical note dated March 27, 2002, Dr. Alexander stated that his physical examination of Johnson led him to conclude that “there is no objective evidence of carpal tunnel syndrome.” However, he noted that the EMG and NCS “show evidence of a median nerve entrapment neuropathy at the wrist that is bilateral carpal tunnel syndrome.” Dr. Alexander stated:

It seems unlikely to me that the work regimen that she described would cause carpal tunnel syndrome. It may have caused an irritation to her median nerve, but this would have resolved with cessation of the repetitive injury, in my opinion. Therefore, I am ill equipped to state beyond a reasonable degree of medical certainty that the brief period of time in which she pursued any sort of repetitive activity at Sanderson Farms would be the cause for surgical release for ... entrapped median nerves.
A repeat electromyogram and nerve conduction study performed now may be probative. That is to say, if one were to opine that the short course of manual labor that is being postulated as the proximate causative agent for median nerve entrapment is endorsed, then one could also opine that with cessation of this activity, the impairment should update. However, that is to say, perhaps electromyogram and nerve conduction studies done now would be normal. Again, I remain unconvinced that that which I have had described to me, and the duration thereof, would be the proximate causative agent of any sort of median nerve entrapment, with this opinion being rendered to a reasonable degree of medical certainty.

¶ 14. At his deposition on January 30, 2003, Dr. Nortin Marvin Hadler, a rheu-matologist, was qualified as an expert “not only in the medical field as a medical doctor, but [as] an expert in the field of workplace musculoskeletal disorders.” Dr. Hadler testified that he did not examine Johnson but that he had reviewed her medical records and concluded that she did not have carpal tunnel syndrome. He reached this conclusion because Johnson had not shown classic symptoms of carpal tunnel syndrome when she visited Dr. McGraw and because her EMG and NCS results were not compelling. According to Dr. Hadler, even if he were to conclude that Johnson had carpal tunnel syndrome, that would not necessarily mean that it resulted from her work at Sanderson Farms. Specifically, Dr. Hadler testified that he does not believe that carpal tunnel syndrome occurs as a result of repetitive activity.

¶ 15. Following the hearing, the AJ found that Johnson developed bilateral carpal tunnel syndrome while working at Sanderson Farms. Therefore, as noted, he awarded her temporary total disability benefits in the amount of $173.43 per week from the date of injury — August 16, 2000 — to the date that she reached maximum medical improvement, November 22, 2003. The AJ then concluded that he did not have enough information regarding any permanent injuries that Johnson might have sustained, so he ordered Johnson to see Dr. Rahul Vohra to obtain an impairment rating and any work restrictions that she may require. The AJ then held the issue of permanent disability in abeyance pending the results of Dr. Voh-ra’s evaluation. An independent medical examination with Dr. Vohra was scheduled for March 15, 2007; however, Johnson arrived late for her appointment, and Dr. Vohra would not see her. The examination was rescheduled, but Johnson was late again, and Dr. Vohra, as he had done before, refused to see her. The AJ, without the benefit of Dr. Vohra’s opinion, found that Johnson had suffered a permanent disability of ten percent to each arm. As we have already noted, the Commission affirmed the AJ’s finding that Johnson developed bilateral carpal tunnel syndrome while working at Sanderson Farms but reduced her impairment rating to five percent to each arm.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 16. In its sole issue, Sanderson Farms argues that the Commission’s decision that Johnson suffered a work-related injury, i.e. carpal tunnel syndrome, is arbitrary and capricious, as the decision was not based upon medical opinions supported by scientific evidence. Sanderson Farms argues that it presented competent, medical evidence to the Commission which compels the conclusion that carpal tunnel syndrome is not caused or contributed to by repetitive work.

¶ 17. An appellate court’s review of a decision of the Commission is “limited to whether the Commission’s decision is supported by substantial evidence.” Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010) (citing Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245-47 (Miss.1991)). It is well settled that “[t]he Workers’ Compensation Commission is the trier and finder of facts in a compensation claim, the findings of the Administrative Law Judge to the contrary notwithstanding.” Id. (quoting Smith v. Container Gen. Corp., 559 So.2d 1019, 1021 (Miss.1990)). An appellate court will only reverse a decision of the Commission “where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. (citing Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994)).

¶ 18. Sanderson Farms asserts that the AJ erred in relying on the opinions of Drs. Passman and Haimson to conclude that Johnson developed carpal tunnel syndrome while working at Sanderson Farms. The crux of Sanderson Farms’ argument is that the AJ should have given more attention to the opinion of Dr. Hadler, who opined that carpal tunnel syndrome cannot occur from repetitive work activities.

¶ 19. Dr. Hadler has an extensive body of work on the subject of carpal tunnel syndrome. Specifically, he has written numerous articles and several books regarding carpal tunnel syndrome. Dr. Hadler surmises that it is no longer tenable to conclude that carpal tunnel syndrome arises as a result of repetitive motion. Dr. Hadler offered several cross-sectional and longitudinal studies that he relied on to reach his conclusion. Finally, Dr. Hadler concluded that carpal tunnel syndrome is a function of the psychosocial activities of a person’s life.

¶ 20. This is a classic case of conflicting opinions among physicians. Here, as noted, Johnson’s treating physicians, Drs. Passman and Haimson, testified that Johnson developed carpal tunnel syndrome while working at Sanderson Farms. Moreover, Drs. McGraw and Voulters made the initial diagnosis. As noted, Dr. Hadler reached the opposite conclusion. It has long been established that the Commission is the ultimate fact-finder. Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss.2005) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1123-24 (Miss.1992)). Further, “[t]he Commission is also the ultimate judge of the credibility of witnesses.” Id. (citing Miller Transporters, Inc. v. Guthrie, 554 So.2d 917, 918 (Miss.1989)). An appellate court is required to affirm the decision of the Commission when substantial, credible evidence exists to support its decision. Id. (citing Smith, 607 So.2d at 1124). Therefore, the Commission was entitled to find the testimonies of Drs. Passman and Haimson more compelling than Dr. Ha-dler’s.

¶21. Sanderson Farms also asserts that the deposition testimonies of Drs. Passman and Haimson should have been excluded pursuant to the standard announced in Daubert and filed a motion to exclude their testimonies pursuant to Rule 702 of the Mississippi Rules of Evidence. Additionally, in support of its contention, Sanderson Farms seems to suggest that our decision in Fresenius Medical Care and Continental Casualty Co. v. Woolfolk ex rel. Woolfolk, 920 So.2d 1024 (Miss.Ct.App.2005) stands for the proposition that experts testifying before the Commission must meet the Daubert standard. It is clear that we made no such finding in Fresenius. There we said:

Because we find that there is no substantial evidence supporting a critical fact assumed and relied upon by Dr. [Lynn] Stringer — that the call from the patient to [Stella] Woolfolk emotionally upset Woolfolk and induced stress in her — we do not find it necessary to reach the merits of whether Dr. Stringer’s testimony complied with the Dau-bert standard. We do point out, however, that the Workers’ Compensation Commission operates under a relaxed evidentiary standard. See Miss.Code Ann. § 71-3-55(1) (Rev.2000); M.W.C.C. Procedural Rule 8 (1993).

Id. at 1029 (¶ 19).

¶ 22. Daubert requires that expert testimony be relevant and based on reliable information. Daubert, 509 U.S. at 597, 113 S.Ct. 2786. Sanderson Farms contends that the testimonies of Drs. Passman and Haimson are not reliable because their conclusions are not “based on data that will stand up to scientific inquiry.”

¶ 23. In addressing the Daubert issue, the circuit court opined as follows:

The Workers’ Compensation Commission operates under a relaxed evidentia-ry standard. See Miss.Code Ann. § 71-3-55(1) (Rev.2000); M.W.C.C. Procedural Rule 8 (1993). The Commission may look to rules of evidence or procedure which apply to courts of law to aid in the consideration of evidence, but it is not bound to strictly follow the rules proscribed for courts of law. Walters v. Blackledge, [220 Miss. 485] 71 So.2d 433, 446 (1954). The Commission may choose to look to M.R.E. 702 and McLe-more for instruction, but if an alleged expert falls short of the McLemore standards, the Commission has the right to relax the formal rules of evidence and admit the testimony if the evidence is “relevant and competent,” and the admission will help satisfy the overriding concern of how “best to ascertain the rights of the parties.” Miss.Code Ann. § 71-3-55(1) (Rev.2000); M.W.C.C. Procedural Rule 8(fn. 2).
This Court finds that the testimonies] of two orthopedic surgeons, both of whom had treated the claimant, and many other patients throughout their careers, for carpal tunnel syndrome, [were] both relevant and competent, pursuant to Mississippi statutes and rules. Id.

We agree with the opinion of the learned circuit judge. Clearly, the testimonies offered by Drs. Passman and Haimson are relevant and are based on reliable information, as they acted as Johnson’s treating physicians and concluded, based on her EMG and NCS results, that she in fact suffered from carpal tunnel syndrome. Thus, it cannot be reasonably argued that their opinions are not based on objective evidence and are not “based on data that will stand up to scientific inquiry.”

¶ 24. We find that substantial, credible evidence exists to support the Commission’s decision that Johnson developed compensable bilateral carpal tunnel syndrome while working at Sanderson Farms. As noted, Johnson’s EMG and NCS that were performed on June 25, 2001, confirmed the diagnosis. Further, Dr. McGraw stated that carpal tunnel syndrome is “usually created by or aggravated by repetitive use of the hand and wrist.” We recognize that Dr. Hadler disagrees with this theory and asserts that’ carpal tunnel syndrome is not caused by repetitive motion. However, Dr. Hadler’s position has yet to be adopted in the medical community and has been specifically rejected by the Commission. We find that the Commission’s position does not run afoul of any evidentiary rule or the holding in McLemore. Therefore, Sanderson Farms’ contention that there was no competent evidence before the Commission upon which it could legitimately base its finding is wholly without merit.

¶ 25. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶ 26. I respectfully dissent and write briefly to state the basis of my disagreement. I respectfully submit that the record reflects insufficient evidence showing that Debra Johnson suffered bilateral carpal-tunnel syndrome. I also submit that the record reflects insufficient evidence of any such work-related injury as a consequence of her employment at Sanderson Farms, Inc. I would reverse the Mississippi Workers’ Compensation Commission’s decision, as I find it erroneous and contrary to the overwhelming weight of the evidence. See Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1009-10 (Miss.1994).

      . In her petition to controvert, Johnson averred that her injury occurred in August 2000; she did not state a specific date of injury.

      . The Mississippi Supreme Court adopted the Daubert standard in McLemore, 863 So.2d at 39 (¶ 5).

      . Johnson was terminated from Sanderson Farms on December 28, 2000.

      . The record does not specify the location of the soreness or the specific problem with Johnson’s hands.

      . It is not clear how Dr. Owens was involved with Johnson's treatment.

      . Dr. Vohra specializes in physical medicine and rehabilitation.

      . The AJ noted in his opinion that Johnson's attorney had informed him that Johnson had difficulty securing transportation to her appointments.

      . Rule 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    HUGH DANCY COMPANY, INC. and Valley Forge Insurance Company, Appellants v. Thurman MOONEYHAM, Appellee.
    No. 2010-WC-00439-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Aug. 25, 2011.

      John Lewis Hinkle IV, Ridgeland, attorney for appellants.
    Michael Wayne Darby Jr., Batesville, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Thurman Mooneyham suffered an injury while on the premises of Hugh Dan-cy Company, Inc. (Dancy). Mooneyham filed a claim to receive workers’ compensation, alleging that he had sustained a work-related injury. After a hearing, the Administrative Judge (AJ) found that Mooneyham worked as an employee of Dancy and had sustained a work-related injury. Dancy and Valley Forge Insurance Company, the insurance carrier, appealed to the Mississippi Workers’ Compensation Commission, which affirmed the order of the AJ. Dancy and Valley Forge then appealed to the Circuit Court of De-Soto County. The circuit court affirmed the decision of the Commission.

¶ 2. Dancy and Valley Forge now appeal, asserting the following issues: (1) the Commission erred in determining that Mooneyham was an employee of Dancy at the time of his injury, and (2) the Commission erred in failing to determine that Mooneyham worked as an independent contractor. Finding no error, we affirm the judgment of the circuit court, which affirmed the decision of the Commission.

FACTS

¶3. On May 18, 2006, Mooneyham received injuries from a fall that took place while on the premises of Dancy. Mooney-ham filed a petition to controvert, alleging that he had sustained a work-related injury. A hearing occurred on May 15, 2008, in Senatobia, Mississippi, before an AJ for the Commission. At the hearing, Mooney-ham testified that he had worked for Dan-cy for more than fifty years before leaving the company in late 2004. Shortly after his departure, Mooneyham visited the Dancy worksite to visit with old acquaintances. Despite conflicting testimony as to whether Mooneyham eventually requested to return to Dancy for work purposes, or whether a Dancy employee actually requested that Mooneyham return to Dancy, the AJ found that in late 2005 or early 2006, Pam Guess, Dancy’s office manager, asked Mooneyham to return to Dancy to help clean out the closed Dancy construction shop. Mooneyham testified that he then began to spend four days a week at the Dancy shop subsequent to the request to return. Guess testified that upon Mooneyham’s return to Dancy, he was not put on payroll; he possessed no set work schedule; and he reported to no one.

¶4. However, during his return to the company, Mooneyham received four checks from Dancy. These checks included: (1) check no. 21628, dated December 15, 2005, for $82.00, for “reimbursement”; (2) check no. 21629, dated December 15, 2005, for $600.00, for “services rendered”; (3) check no. 21884, dated March 16, 2006, for $12.87, for “parts reimbursement”; and (4) check no. 21835, dated March 16, 2006, for $500.00, for “shop help.” Guess testified at the hearing that check no. 21629 and check no. 21835 were not paychecks, and Dancy withheld no taxes or any other amounts from those payments. However, upon the AJ’s review of the evidence, the AJ found check no. 21629 constituted a payment of services rendered as noted on the check’s notation.

¶ 5. After the hearing, the AJ issued an order finding that Mooneyham was an employee of Dancy on May 18, 2006, and, thus, sustained a compensable work-related injury. Dancy and Valley Forge appealed the ruling to the Commission, which subsequently affirmed the AJ’s order. Dancy and Valley Forge then appealed the decision of the Commission to the circuit court, which affirmed the Commission’s decision. Aggrieved, Dancy filed this appeal.

STANDARD OF REVIEW

¶ 6. This Court utilizes a well-established standard of review when considering an appeal of a Workers’ Compensation Commission decision. Concert Sys. USA, Inc. v. Weaver, 33 So.3d 1186, 1188 (¶ 10) (Miss.Ct.App.2010). “The standard of review by which an appellate court resolves a workers’ compensation case is that of substantial evidence; however, where the issue is one of law and not of fact, the standard of review is de novo.” Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998). Absent an error of law, we must affirm the Commission’s decision if there is substantial evidence to support the Commission’s decision. Id. (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1125 (Miss.1992)). In a workers’ compensation case, the Commission is the trier and finder of facts. Radford v. CCA-Delta Corr. Facility, 5 So.3d 1158, 1163 (¶ 20) (Miss.Ct.App.2009). If supported by substantial evidence, the appellate court is bound by the determination of the Commission “even though the evidence would convince [us] otherwise, were we the fact[-]finder.” Barnes v. Jones Lumber Co., 637 So.2d 867, 869 (Miss.1994) (citation omitted). On the other hand, reversal is proper where the Commission has misapprehended the controlling legal principles, as the standard of review in that event is de novo. Shelby, 724 So.2d at 506 (¶8).

DISCUSSION

I. EMPLOYEE STATUS

¶ 7. Dancy and Valley Forge argue that Mooneyham failed to possess employee status at the time of injury; thus, he fails to fall within the scope of coverage for workers’ compensation benefits. Dancy and Valley Forge argue, in the alternative, that even if this Court finds an employment relationship to exist, Mooneyham worked for Dancy as an independent contractor, and his avenue for recovery lies in an independent tort action.

¶8. The resolution of this issue begins with a consideration of the language of the workers’ compensation statute, Mississippi Code Annotated section 71-3-3 (Rev.2000). This statute defines the term “employee” as “any person ... in the service of an employer under any contract of hire ... [,] written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors.... ” Miss. Code Ann. § 71-3-3(d) (Rev.2000). This Court has acknowledged that a contract of hire is required to meet the definition of “employee” as defined by Mississippi Code Annotated section 71 — 3—3(d) (Rev.2000). See Walls v. N. Miss. Med. Cntr., 568 So.2d 712, 715 (Miss.1990). The case of Mathis v. Jackson County Board of Supervisors, 916 So.2d 564, 569 (¶ 12) (Miss.Ct.App.2005) interpreted the elements required to establish a contract of hire as set forth in Mississippi Code Annotated section 71-3-3(d). In Mathis, the Court explained that, though not rigidly applied in workers’ compensation cases, the elements required of a contract of hire include mutual consent, consideration, and the right of control. Id.

A.MUTUAL CONSENT

¶ 9. When determining if a contract of hire exists, one must first consider the element of mutual consent. Id. at (¶ 13). The Mathis Court explained that the term “mutual assent,” which is interchangeable with the term “consent,” is defined as a “meeting of the minds of both ... parties to a contract; the fact that each agrees to all the terms and conditions, in the same sense and with the same meaning as the others.” Id. (citing Black’s Law Dictionary, 6th ed.1991).

B. CONSIDERATION

¶ 10. Moving to the second element of a contract of hire, the Mathis Court defined the term “consideration” as “(a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.” Mathis, 916 So.2d at 569 (¶ 15) (citing Marshall Durbin Food Corp. v. Baker, 909 So.2d 1267, 1273 (¶ 14) (Miss.Ct.App.2005)). The fact that an employer does not provide a direct monetary wage to the worker is of “little or no consequence.” Id. (quoting Walls, 568 So.2d at 717). In addition, the payment to the worker is not required to be money; rather, it may be anything of value. Walls, 568 So.2d at 717. If an expressed or implied contract of hire exists, a volunteer may even be considered to be an employee. Mathis, 916 So.2d at 569 (¶ 16) (citing Dunn, Mississippi Workers Compensation, § 122 (3d Ed.1990)); see also Sullivan v. Okolona, 370 So.2d 921, 924 (Miss.1979) (finding that the Workers’ Compensation Act applies to volunteers).

C. RIGHT OF CONTROL

¶ 11. The right of control constitutes the last element of the contract of hire. Mathis, 916 So.2d at 570 (¶ 19). “The right of control, rather than the fact that an employer exercises that control, determines the status of parties as employer and employee for compensation purposes.” Id. (citing Wade v. Traxler, 232 Miss. 592, 604-05, 100 So.2d 103, 109 (1958)). The right of control may be established by showing that a potential employer provided the equipment to the worker and had the right to fire the worker. Id. (citing Boyd v. Crosby Lumber & Mfg. Co., 250 Miss. 433, 440, 166 So.2d 106 (1964)). “Where one issues directions and instructions, that is evidence of one’s right of control.” Id. (citing Walls, 568 So.2d at 718). In this case, the AJ, as well as the Commission in affirming the order of the AJ, found all the elements for a contract of hire satisfied herein and that an implied employment contract existed.

¶ 12. The record contains the opinion of the AJ identifying the following substantial evidence to support the Commission’s finding that Mooneyham possessed employee status with Dancy. The AJ found as follows:

[T]he key question here is whether Mr. Mooneyham and Dancy had an implied contract of hire when Mr. Mooneyham fell [on] May 18, 2006. (Obviously, they did not have an express contract.)[.] To answer that question it is first necessary to determine whether mutual consent existed.
On that point, the office manager, Ms. Guess, requested Mr. Mooneyham to work in the Dancy construction shop. She added that she had made that request at Mr. Simpson’s direction. Although Mr. Simpson, who managed Dancy, could not recall whether he had instructed Ms. Guess to call Mr. Moo-neyham, it seems highly unlikely to the Administrative Judge that Ms. Guess would have made that contact without Mr. Simpson’s approval. At any rate, Mr. Mooneyham accepted that offer and reported to the Dancy facility. According to the Court of Appeals in Mathis, that offer and that acceptance are sufficient to show mutual consent, and the Administrative Judge agrees that those facts meet the first requirement of a contract of hire.
Continuing to the second element of a contract of hire, consideration, there is no dispute that during the period from December 15, 2005, through March 16, 2006, Dancy gave Mr. Mooneyham four checks:
1. Check no. 21628, dated December 15, 2005, for $32.00, for “reimbursement.”
2. Check no. 21629, dated December 15, 2005, for $600.00, for “services rendered.”
3. Check no. 21834, dated March 16, 2006, for $12.87, for “parts reimbursement.”
4. Check no. 21835, dated March 16, 2006, for $500.00, for “shop help.”
As for the first check, the office manager, Ms. Guess, testified that Dancy used that check to reimburse Mr. Mooney-ham for his mileage and for a part and a vehicle inspection sticker that he had purchased for Dancy. In addition, Mr. Mooneyham testified that Dancy paid for some of his gasoline. The Administrative Judge interprets that statement by Mr. Mooneyham to mean that Dancy paid mileage to Mr. Mooneyham.
Based on that uncontradicted testimony from Ms. Guess and Mr. Mooneyham, it is clear to the Administrative Judge that check no. 21628 was to reimburse Mr. Mooneyham for expenses that he had incurred on behalf of Dancy. Those expenses and the reimbursement check indicate that Mr. Mooneyham had began [sic] working for Dancy before December 15, 2005, when the check was dated. That same day Dancy also issued check no. 21629 for $600.00 to Mr. Mooneyham for “services rendered.” Ms. Guess and the Dancy vice president, Mr. Sanders [sic], testified that this check represented merely an expression of gratitude at Christmas to a well-beloved former employee. Of course, there is no evidence in the record to indicate that any other former employee received a Christmas bonus.
In other words, Dancy asks the Administrative Judge to believe that on the same day the corporation gave Mr. Moo-neyham a check to reimburse him for expenses incurred for Dancy (check no. 21628 for $32.00), Dancy wrote the next check in its ledger (check no. 21629 for $600.00) to Mr. Mooneyham for a Christmas present that had nothing to do with any work that Mr. Mooneyham had recently performed for Dancy. That assertion is simply incredible and not worthy of belief. The more likely explanation is that Mr. Mooneyham resumed working for Dancy in late 2005 and that Dancy gave both of those checks to Mr. Mooneyham in recognition of that work.
Of course, assuming arguendo that neither of those checks has anything to do with any work by Mr. Mooneyham for Dancy, the stubborn facts remain that three months later on March 16, 2006, Dancy gave two more checks to Mr. Mooneyham [ — ] check no. 21834 for “parts reimbursement” and check no. 21835 for “shop help.” Indeed, Ms. Guess and Mr. Simpson testified at the hearing that check no. 21835 was paid to Mr. Mooneyham because he had helped a Dancy employee, Mr. Sanders, in the closed construction shop. In addition, in their depositions Ms. Guess and Mr. Simpson testified that the cheek was given to Mr. Mooneyham for helping Mr. Sanders dispose of scrap metal. Also, Mr. Mooneyham testified that he received all of the checks because of his work for Dancy. Finally, there is no doubt that when check no. 21834 and check no. 21835 were issued to Mr. Moo-neyham on March 16, 2006, he had worked [ — ] and was working [ — ] four days a week in the Dancy shop.
Taking all of the credible evidence together, the Administrative Judge must conclude that those four checks and Mr. Mooneyham’s service to Dancy constitute the requisite consideration for an implied contract of hire between Dancy and Mr. Mooneyham. That conclusion would be the same even if all of the checks, except check no. 21835, dated March 16, 2006, for “shop help,” were for some reason excluded.
The third and last element of a contract for hire is the right of control. On this point hangs Dancy’s argument that Mr. Mooneyham was an independent contractor, instead of an employee.
In support of that argument, Dancy relies on the testimonies] of Ms. Guess and Mr. Simpson to the effect that Mr. Mooneyham had no fixed work schedule, that no one kept records of his work attendance, and that Mr. Mooneyham did not report to anyone.
Of course, Ms. Guess and Mr. Simpson knew that Mr. Mooneyham worked in the shop. They also knew that he did what he had been told to do: clean up the shop, inventory the equipment there, determine what equipment should be disposed of, and locate persons who were willing to buy the unneeded equipment. Finally, Dancy undoubtedly had the power to fire Mr. Mooneyham.
Considering those facts, along with the holdings in Mathis, that the “elements of ... mutual consent, consideration, and right of control ... are not rigidly applied in workers’ compensation cases,” id. at 569, and that “[t]he right of control, rather than the fact that an e[m]ployer exercises that control, determines the status of parties as employer and employee for compensation purposes,” id. at 570, the Administrative Judge finds that Dancy had the right of control concerning Mr. Mooneyham, even if Dancy chose to exercise that right to a very limited extent.
For all of those reasons, the Administrative Judge finds that when Mr. Mooney-ham fell on May 18, 2006, an implied contract of hire existed between Dancy and Mr. Mooneyham, as required by Section 71 — 3—3(d). The Administrative Judge, therefore, further finds that Mr. Mooneyham was a Dancy employee on May 18, 2006, and that, in accordance with the facts and the stipulation of the parties, he sustained a work-related injury when he fell in the Dancy shop on that day.
The Administrative Judge wishes to add that the outcome of this case does not represent a fulfillment of the adage that no good deed goes unpunished. Although it is true that originally Dancy allowed Mr. Mooneyham simply to visit his friends at the worksite, it is also true that when he was injured on May 18, 2006, he was no longer a mere visitor[,] and he was not a mere volunteer. Instead, on that day Mr. Mooneyham was an employee providing service to Dancy. Dancy may have chosen, for its own purposes and for its own benefit, to regard Mr. Mooneyham as something other than an employee, but under the law of this state he was an employee for workers’ compensation purposes[,] and he received a work-related injury.

¶ 13. This Court recognizes the limited standard of review that appellate courts utilize when reviewing findings of the Commission. We acknowledge that this Court is not the trier of fact, and, absent any error of law, we only reverse where the decision of the Commission lacks the requisite evidentiary support of substantial evidence. In the case at bar, the record demonstrates that substantial evidence exists to meet the elements of a contract of hire as set out in Mathis. Therefore, we find no abuse of discretion in the Commission’s decision, which affirmed the order of the AJ, that a contract of hire existed and that Mooneyham meets the statutory definition of “employee” for workers’ compensation purposes. Therefore, we affirm the judgment of the circuit court that affirmed the Commission’s finding that Mooneyham was an employee of Dancy at the time of injury; thus, his employment status fell within the scope of coverage of the workers’ compensation benefits.

II. INDEPENDENT CONTRACTOR

¶ 14. As Issue I is case-dispositive, the remaining issue is rendered moot.

¶ 15. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR.

      . Due to health reasons, Mooneyham failed to attend the hearing and testified through his deposition.

      . Pam Guess, Dancy's office manager, and Mooneyham testified through their depositions that Guess contacted Mooneyham requesting that he return to Dancy to help in the closed shop. Vernon Simpson, Dancy’s vice president, testified through his deposition that he failed to recall directing Guess to call Mooneyham and request his return to Dancy, but he could not dispute that Guess had called and extended the invitation to Mooneyham to return.

      .Guess testified that this check was possibly payment for an inspection sticker, parts, or gas.

      . At the hearing, Guess and Simpson testified that Dancy had given this check to Mooney-ham as a Christmas bonus.

      . Simpson testified that Dancy had paid this amount to Mooneyham for his help with inventorying the equipment and parts in the closed shop.

      . In Mathis, Charles Mathis requested permission from the superintendent of the Whispering Pines Golf Course to marshal the course in exchange for free personal use of a golf cart. Mathis, 916 So.2d at 567 (¶ 2). While moving golf carts from the clubhouse to the shed, Mathis suffered an injury. Id. at 568. This Court affirmed the Jackson County Circuit Court’s finding that Mathis was an employee of Whispering Pines for the purposes of workers’ compensation. Id. at 567 (¶1).

      . The Mathis Court explained that while a volunteer can be considered an employee, a "mere volunteer,” one who provides services without the knowledge or consent of a putative employer, is not an employee. Mathis, 916 So.2d at 569 (¶ 16).

      . While this Court is limited to a determination of whether the findings of the Commission are supported by substantial evidence, the Commission in this case did not provide its own findings of fact; rather, it affirmed those of the AJ. As such, we will examine the findings of fact of the AJ. See McDowell v. Smith, 856 So.2d 581, 585 (¶ 10) (Miss.Ct.App.2003).

      . Mr. Mooneyham contends, and several witnesses testified, that returning to work for Dancy improved his emotional health. Mr. Mooneyham further argues that this alleged improvement qualifies as consideration. Because the Administrative Judge finds that consideration exists based on other facts, there is no need to reach that issue. The Administrative Judge notes, however, that the Court of Appeals in Mathis at 569 and the Mississippi Supreme Court in Walls v. North Miss. Med. Cntr., 568 So.2d 712, 717 (Miss.1990), held that the consideration for a contract for hire in the workers’ compensation context "may be anything of value.” Indeed, in Walls at 718, the Supreme Court determined that the training as a student nurse that Walls received from the North Mississippi Medical Center qualified as consideration.


author: MYERS, J.,

text:
    Corey LEWIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00733-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.
    Rehearing Denied June 21, 2011.
    Certiorari Denied Aug. 25, 2011.

      Corey Lewis, Appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   MYERS, J.,

for the Court:

¶ 1. On June 8, 2006, Corey Lewis pleaded guilty to armed robbery. Pursuant to an agreed recommendation, he was sentenced to twenty years, with twelve years suspended and eight to serve in the custody of the Mississippi Department of Corrections. On May 8, 2008, Lewis filed a motion for post-conviction relief (PCR), seeking to set aside his guilty plea. Lewis contended that: (1) the trial court failed to advise him of his right to appeal his sentence; (2) he did not admit to all of the elements of the offense; (3) he received constitutionally ineffective assistance of counsel; and (4) his sentence was illegal. The circuit court dismissed Lewis’s PCR motion without an evidentiary hearing, and Lewis appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 2. A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2010). “On appeal, this Court will affirm the summary dismissal of a PCR petition if the petitioner has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009) (internal quotations omitted). We review the dismissal of a PCR motion for an abuse of discretion, and we will not disturb the trial court’s factual findings unless they are shown to be clearly erroneous. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009); Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). But we will reverse and remand for a hearing if the movant has “alleged facts which require further inquiry in the expanded setting of an evi-dentiary hearing.” Mitchener v. State, 964 So.2d 1188, 1192-93 (¶ 10) (Miss.Ct.App. 2007) (quoting Jones v. State, 949 So.2d 872, 873 (¶ 3) (Miss.Ct.App.2007)).

DISCUSSION

1. Factual Basis for Guilty Plea

¶ 3. Lewis contends that, in offering his plea, he did not admit to all of the elements of the crime of armed robbery. In particular, Lewis asserts that he did not state that he knowingly committed the crime or that he knew armed robbery was a criminal act. Lewis maintains, instead, that he was only the driver of the car used in the robbery and that he did not know the intentions of his passengers or that a robbery had been committed.

¶ 4. Before the trial court may accept a guilty plea, the court must determine that there is a factual basis for the plea. URCCC 8.04(A)(3).

¶ 5. Lewis’s claim that he did not admit to knowingly committing the crime of armed robbery is belied by the record in this case. In his petition to enter a plea of guilty, Lewis stated:

My lawyer advises me that the elements of the charge to which I am pleading guilty are as follows:
unlawfully take from the person and presence of another property by placing the person in fear of immediate injury to the person by the exhibition of a deadly weapon.
I submit the following facts I state to be true, and feel that all of the above elements are proven by these facts:
I unlawfully took from the person money by placing the person in fear of immediate injury to his person by the exhibition of a deadly weapon.

Therefore, I am guilty and ask the Court to accept my plea of guilty. During the plea colloquy, the State gave the following factual basis for the plea:

On or about June 15, 2004[,] two individuals entered Bob’s Furniture Store, Bailey Avenue, Jackson, Mississippi[.][B]oth had guns, both participated in robberies. One of these individuals was Corey Lewis. Lewis and Christian Robinson were apprehended across the street, or in the area of Bob’s Furniture Store, just shortly after the robbery occurred. They were [patted] down and found to have material and money that was implicated in the robbery of Bob’s Furniture Store. At that point both these individuals were taken downtown, both Robinson and Lewis confessed and signed confessions that they participated in the robbery of Bob’s Furniture Store.... All this occurred within the First Judicial District of Hinds County, Mississippi.

After this, the following exchange occurred:

THE COURT: You’ve heard the statement of the Assistant District Attorney. Do you admit that each and every one of those facts as stated is true and correct?
LEWIS: Yes, sir.
THE COURT: Do you therefore admit your guilt to this crime?
LEWIS: Yes, sir.

¶ 6. The record firmly establishes a factual basis for Lewis’s guilty plea. This issue is without merit.

2. Right to Appeal the Sentence; Legality of Sentence

¶ 7. In his next issues, Lewis argues that the trial court failed to advise him of his right to appeal his sentence. Lewis contends that he would have successfully appealed his sentence, based upon his age and the harshness of the sentence imposed. When Lewis pleaded guilty in June 2006, Mississippi Code Annotated section 99-35-101 (Rev.2007) denied an appeal from the circuit court to the supreme court “in any case where the defendant enters a plea of guilty.” However, this section was not interpreted to deny the defendant the right to appeal the sentence given as a result of that plea. See Trotter v. State, 554 So.2d 313, 315 (Miss.1989) (“an appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself’). Nonetheless, we have previously held that the circuit court is not required to inform the defendant of his right to a direct appeal of his sentence after he enters a guilty plea. Cook v. State, 990 So.2d 788, 793 (¶ 11) (Miss.Ct.App.2008).

¶8. Lewis also contends that he was illegally sentenced under the armed robbery statute when he was at best an accessory to the crime. He also denies using a gun in the robbery. These claims are, again, belied by his own sworn statements in the record.

¶ 9. Lewis also asserts that the sentence violated his right to equal protection under the United States Constitution because it was a product of racial bias. Lewis claims that a white defendant would not have received the same sentence. He offers nothing in support of this allegation, and the claim fails because “[c]onelusory allegations alone, without concrete facts to support those allegations, are an insufficient basis for this Court to grant the requested relief.” Bates v. State, 914 So.2d 297, 299 (¶ 7) (Miss.Ct.App.2005).

¶ 10. Generally, “[sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Hoops v. State, 681 So.2d 521, 537 (Miss.1996). “Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Id. at 538. For the crime of armed robbery, Lewis faced a potential maximum sentence of life imprisonment. The trial court followed the agreed recommendation — which stemmed from a plea agreement — and sentenced Lewis to serve only eight years. Lewis’s sentence has not been shown to be illegal.

¶ 11. These issues are without merit.

3. Ineffective Assistance of Counsel

¶ 12. Lewis argues that he received constitutionally ineffective assistance of counsel for several reasons.

¶ 13. “In order to prevail on the issue of whether his defense counsel’s performance was ineffective, [the petitioner] must prove that his counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A petitioner is required to “allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735 (¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). The burden of proof for both prongs rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 14. Lewis first asserts that his counsel was deficient in allowing the circuit court to accept his guilty plea without determining that Lewis knew he had a right to appeal his sentence. We have already addressed this contention and found it to be without merit. Lewis next claims that defense counsel was deficient for allowing him to plead guilty without knowing the elements of the offense or the maximum and minimum punishments for the offense. These claims are belied by the record, as the sworn petition to enter of a plea of guilty clearly demonstrates that Lewis knew the elements of armed robbery and the maximum and minimum sentences provided by the statute. Moreover, during the plea colloquy, the trial judge again advised Lewis of the sentence he faced:

THE COURT: Do you understand that the minimum sentence for this particular crime is three years in the penitentiary, and the maximum is life in prison?
LEWIS: Yes, sir.

¶ 15. Lewis also contends that defense counsel was deficient for allowing him to plead guilty when he was, according to his representations, “only an accessory or an aider and abettor.” This is contradicted by Lewis’s own sworn statements in the plea petition and during the plea colloquy. The Mississippi Supreme Court has held that “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.” Young v. State, 781 So.2d 1120, 1122-28 (¶ 10) (Miss.1999). Lewis makes various other allegations, but they are supported only by assertion in his brief. The supreme court has stated that, in cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 16. Lewis fails to demonstrate that he received ineffective assistance of counsel. This issue is without merit.

4. Supplementation of the Record on Appeal

¶ 17. In his final issue, Lewis takes issue with the record on appeal. Lewis apparently believes that the transcript of the plea hearing is not part of the record, and he contends that the State should bear responsibility for this, as he properly designated it as part of the record.

¶ 18. As the transcript of the plea hearing is found in the record, we find this issue moot.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The portion of the petition handwritten by Lewis appears as italics.

      . Lewis does not mention his age in his brief, but the sentencing order states he was born on September 19, 1980.

      .Section 99-35-101 of the Mississippi Code Annotated was amended, effective July 1, 2008, to provide that "where [a] defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-35-101 (Supp.2010).

      . Among other things, Lewis claims defense counsel should have gotten him a suspended sentence as a "youthful offender” and that he had a factual defense to the charges, which defense counsel failed to investigate.


author: PER CURIAM. MURDOCK, Justice SHAW, Justice

text:
    Terry SURLES, sheriff of St. Clair County; Richard J. Minor, district attorney of St. Clair County; and Bob Riley, Governor of the State of Alabama v. CITY OF ASHVILLE; American Legion, Post 170; and Shooting Star Entertainment Group, LLC. State of Alabama v. City of Ashville; American Legion, Post 170; and Shooting Star Entertainment Group, LLC.
    1080826 and 1081015.
    Supreme Court of Alabama.
    Jan. 14, 2011.

      Kendrick E. Webb and Gary L. Willford, Jr., of Webb & Eley, P.C., Montgomery; and Billy R. Weathington, Jr., of Weath-ington, Moore, Weisskopf & Hill, P.C., Moody, for appellant Sheriff Terry Surles.
    Henry T. Reagan, Office of Governor Bob Riley, for appellant Governor Bob Riley; and J. Richard Minor, district atty., David Barber, Office of Governor Bob Riley; and Bruce Rogers and Charles K. Hamilton of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for appellant District Attorney Richard Minor.
    Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., and Cheairs Porter, special asst. atty. gen., for the State.
    Jeff Friedman, P. Thomas Dazzio, Jr., and Lee T. Patterson of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham; and Phillip Matthew Abbott of Abbott & Davis, LLC, Pell City, for appellee Shooting Star Entertainment Group, LLC; William J. Trussell, Pell City, for appellee the City of Ashville; and Kenneth S. Steely, Mobile, for appellee American Legion, Post 170.
    Roy S. Moore and Benjamin D. Dupré, Foundation for Moral Law, Montgomery, for amicus curiae Foundation for Moral Law, in support of the appellants.
    I. Nelson Rose, Encino, California; and Kirkland E. Reid of Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, L.L.P., Mobile, for amicus curiae I. Nelson Rose, in support of the appellees.
   On Rehearing Ex Mero Motu

PER CURIAM.

This Court’s opinion of January 29, 2010, is withdrawn, and the following is substituted therefor. These appeals are from a ruling of the St. Clair Circuit Court upholding an ordinance adopted by the City of Ashville (“the City”) regulating bingo games within the City. On rehearing ex mero motu, we dismiss these appeals because there is no justiciable controversy.

Facts and Procedural History

On July 22, 1992, Amendment No. 542, Ala. Const. 1901 (now Local Amendments, St. Clair County, § 2 (Off.Recomp.)), was ratified. That amendment, which applies only to St. Clair County, states: “The operation of bingo games for prizes or money by certain nonprofit organizations for charitable, educational, or other lawful purposes shall be legal in St. Clair County....” This authorization, however, is “subject to the provisions of any resolution or ordinance by the county governing body or the governing bodies of the respective cities and towns within their respective jurisdictions as provided by law regulating such operation.” The amendment goes on to specify the authority of these governing bodies to regulate bingo games.

Act No. 91-710, Ala. Acts 1991, the “St. Clair County Bingo Act,” and an act amending it, Act No. 93-687, Ala. Acts 1993, regulate the operation of bingo games in St. Clair County. Both acts define “bingo” as “that game commonly known as bingo where numbers or symbols on a card are matched with numbers or symbols selected at random.”

On December 22, 2008, the city council of the City adopted City Ordinance No. 2008-0011 (“the ordinance”). The ordinance sets forth rules and regulations for licensing, permitting, and operating “machine bingo games” within the City. Among other things, the ordinance sets forth definitions of “bingo,” “bingo games,” and “machine bingo games.” The ordinance provides that no entity may operate machine bingo games without a permit from the City and provides a process for acquiring such a permit.

Subsequently, American Legion, Post 170 (“Post 170”), applied for a “machine-bingo permit” to operate electronic bingo games at a “machine-bingo facility,” and Shooting Star Entertainment Group, LLC (“Shooting Star”), applied for a permit to establish such a machine-bingo facility. On December 30, 2008, the City filed a declaratory-judgment action, naming as defendants Post 170, Shooting Star, and the sheriff of St. Clair County, Terry Surles. The complaint essentially alleged that Sheriff Surles had indicated that he believed that “electronic, video, or machine bingo” was illegal and that he had “advised that when licensees or permitees [sic] start up machine bingo operations” pursuant to the ordinance, the participants would be arrested. The City thus sought a judgment declaring that the ordinance

“is in compliance with the Constitution and the laws of the State of Alabama, that electronic, video or machine bingo is lawful in St. Clair County, Alabama, and is authorized by the Constitution and that licenses or permits issued to [Post 170 and Shooting Star] are consistent and in compliance with [the ordinance], and with the Constitution and laws of the State of Alabama; that any participant playing or in possession of electronic or video bingo machines authorized by [the ordinance] and pursuant to permits and/or licenses issued by the [City], [is] in compliance with the laws of the State of Alabama, including its Constitution.”

Both Shooting Star and Post 170 were later realigned as plaintiffs.

Sheriff Surles answered the complaint and filed a counterclaim for a declaratory judgment. The counterclaim asserted that the City “seeks to allow [Post 170 and Shooting Star] to operate ... an illegal lottery/gambling operation that they classify as machine bingo” and sought a judgment declaring that “machine bingo” uses instruments that are “gambling devices” under Alabama law. Further, Sheriff Surles sought a declaration that the operation of such “machine-bingo” devices is forbidden by Ala. Const. 1901, art. IV, § 65, and Ala.Code 1975, §§ 13A-12-23, -27, -30, and -70, and that the operations proposed by the City, Post 170, and Shooting Star are illegal lotteries or gambling schemes. Further, Sheriff Surles sought a declaration that the ordinance is unconstitutional under Amendment No. 542, which, he argued, required that bingo be played on “cards” that are to be taxed, and that the ordinance violated Act No. 91-710 and Act No. 93-687.

On February 3, 2009, Richard J. Minor, the district attorney of St. Clair County, filed a complaint and a motion to intervene in the case as a defendant. Minor alleged that, as district attorney of St. Clair County, he was charged with enforcing state law. Post 170 and Shooting Star, he alleged, sought to operate bingo-gaming devices that were illegal under both Ala. Const. 1901, art. IV, § 65, and Amendment No. 542. Neither the ordinance nor the local acts regulating bingo in St. Clair County, Minor contended, could authorize those devices. The trial court granted Minor’s motion to intervene.

Trial was held on March 17, 2009. On March 30, 2009, the trial court entered an order upholding the ordinance.

Sheriff Surles and District Attorney Minor filed a notice of appeal (case no. 1080826). The attorney general filed a notice of appearance in the trial court and also filed a separate notice of appeal (case no. 1081015). We consolidated the appeals for the purpose of writing one opinion.

Governor Bob Riley filed several motions in this Court, seeking to intervene as an appellant in these appeals or to file an amicus curiae brief on behalf of Sheriff Surles or District Attorney Minor in case no. 1080826. This Court ultimately granted the Governor’s motion to intervene. Minor and the Governor have filed a joint brief; Sheriff Surles has filed his own brief; and the attorney general has filed a brief on behalf of the State of Alabama.

Discussion

On appeal, Sheriff Surles, District Attorney Minor, and Governor Riley argue that the definition of “bingo” provided in the ordinance is unconstitutionally broad and that the ordinance conflicts with precedent of this Court holding that local amendments excepting bingo from the general prohibition on lotteries in § 65 of the Alabama Constitution must be narrowly construed to encompass only the game commonly known as bingo. This Court’s original opinion addressed the merits of the issues on appeal; however, before certificates of judgment were issued, this Court, ex mero motu, placed the cases on rehearing to determine whether the trial court had jurisdiction over the underlying action.

This Court must sua sponte recognize and address the lack of subject-matter jurisdiction owing to the lack of justiciability-

“ ‘ “[Jjusticiability is jurisdictional,” Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998); hence, if necessary, “this Court is duty bound to notice ex mero motu the absence of subject matter jurisdiction.” ’ Baldwin County [v. Bay Minette], 854 So.2d [42] at 45 [ (Ala. 2003) ] (quoting Stamps [v. Jefferson County Bd. of Educ.], 642 So.2d [941] at 945 n. 2 [ (Ala.1994) ]). If we determine that a complaint fails to state a justicia-ble claim, we are obliged to conclude that the trial court lacked jurisdiction over that complaint; such a complaint therefore would not require the filing of a responsive pleading.”

Bedsole v. Goodloe, 912 So.2d 508, 518 (Ala.2005).

Although the Declaratory Judgment Act, codified at Ala.Code 1975, §§ 6— 6-220 through -232 (“the Act”), provides for actions to declare the legal rights, status, and relations of parties, the Act does not “ ‘ “empower courts to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.” ’ ” Bruner v. Geneva County Forestry Dep’t, 865 So.2d 1167, 1175 (Ala.2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963) (emphasis added in Stamps)).

“This Court has emphasized that declaratory-judgment actions must ‘settle a “bona fide justiciable controversy.” ’ Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala.2003) (quoting Gulf South Conference v. Boyd, 369 So.2d 553, 557 (Ala.1979)). The controversy must be ‘ “definite and concrete,” ’ must be “‘real and substantial,”’ and must seek relief by asserting a claim opposed to the interest of another party ‘ “upon a state of facts which must have accrued.” Baldwin County, 854 So.2d at 45 (quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969)). ‘ “Declaratory judgment proceedings will not lie for an ‘anticipated controversy.’ ” ’ Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ.App.1999)).”

Bedsole, 912 So.2d at 518.

As noted above, the City’s complaint alleged that Sheriff Surles had indicated that he believed that certain bingo games authorized under the ordinance would be illegal and that he had “advised that when licensees or permitees [sic] start up machine bingo operations” pursuant to the ordinance, the participants would be arrested. The City thus sought a judgment declaring that any future participant playing or in possession of electronic or video bingo machines authorized by the ordinance would be in compliance with Alabama law.

The City’s complaint describes merely anticipated conduct accompanied by a request, which assumes that the anticipated conduct will take place, for an advisory opinion as to the validity of the ordinance authorizing such conduct. However, to be appropriate for judicial determination, a controversy must be justicia-ble. “ ‘ “A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.... ” Anderson, Actions for Declaratory Judgments, Volume 1, § 14.’ ” Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003) (quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969) (emphasis added in Copeland)). “Thus, ‘[declaratory judgment proceedings will not lie for an “anticipated controversy.” ’ ” Creola Land Dev., Inc. v. Bentbrooke Hous., L.L.C., 828 So.2d 285, 288 (Ala.2002) (quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ.App.1999)). A bona fide justicia-ble controversy necessary for a declaratory-judgment action is present where “ ‘legal rights are thwarted or affected [so as] to warrant proceedings under the Declaratory Judgment statutes.’ ” Creola Land Dev., 828 So.2d at 288 (quoting Town of Warrior, 275 Ala. at 114, 152 So.2d at 662).

“A case is justiciable when the party ‘ “has been injured in fact.” ’ Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164, 166 (Ala.2002) (quoting State v. 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999)). Moreover, a justiciable controversy requires the parties to seek remedies from having sustained damage as opposed to seeking advice from the Court.”

Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592, 594 (Ala.2003).

In the instant action, there exists only an anticipated controversy; there has been no damage or injury to the parties, nor have any legal rights been thwarted or affected. Thus, the City’s action seeks only advice — not the resolution of a yet realized controversy. Such an action is nonjusticiable. Ex parte Johnson, 993 So.2d 875, 884 (Ala.2008) (“[A]ny attempt to obtain a declaratory judgment as to a hypothetical future controversy is beyond the subject-matter jurisdiction of the circuit courts.”). Therefore, the trial court was without subject-matter jurisdiction; its judgment is void and will not support these appeals, which we now dismiss.

1080826 — ON REHEARING EX MERO MOTU: OPINION OF JANUARY 29, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

1081015 — ON REHEARING EX MERO MOTU: OPINION OF JANUARY 29, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

COBB, C.J., and LYONS, WOODALL, STUART, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

BOLIN and SHAW, JJ., dissent.

MURDOCK, Justice

(concurring in the result).

I concur in the result. See Redtop Market, Inc. v. State of Alabama ex rel. Arthur Green, 66 So.3d 204, 208 n. 1 and accompanying text (Ala. 2010) (Murdock, J., concurring specially).

SHAW, Justice

(dissenting).

I respectfully dissent to withdrawing this Court’s original opinion and dismissing these appeals on rehearing ex mero motu. In our original opinion in this case, this Court unanimously held that the definition of “bingo” in Ordinance No. 2008-0011 (“the ordinance”) failed to comply with applicable law and that the ordinance was therefore unconstitutional. Specifically, we held that the definition of bingo in the ordinance impermissibly deviated from that definition of bingo found in Barber v. Cornerstone Community Outreach, Inc., 42 So.3d 65 (Ala.2009). Subsequently, this Court, ex mero motu and before the issuance of certificates of judgment in these appeals, placed these appeals on rehearing and ordered briefs addressing whether the trial court, in light of this Court’s decision in Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587 (Ala.2010), had subject-matter jurisdiction over the claims of the parties. Concluding that the trial court lacks jurisdiction for reasons unrelated to Tyson, the majority withdraws the Court’s original opinion and now holds that the declaratory-judgment action in this case presents an impermissible request for an advisory opinion. I respectfully disagree.

I.

It is correct that some portions of the action below sought a declaration as to the legality of certain future conduct, namely, the operation of certain gaming machines and facilities pursuant to the ordinance. That conduct had not yet occurred. Such actions are not maintainable. Specifically, in Baldwin County v. Bay Minette, 854 So.2d 42 (Ala.2003), this Court held that a declaratory-judgment action was nonjusti-ciable because it sought a declaration regarding an anticipated factual scenario:

“The County does not describe an existing dispute that is ‘definite and concrete,’ or ‘real and substantial.’ Copeland v. Jefferson County, 284 Ala. [558,] 561, 226 So.2d [385,] 387 [ (1969) ]. Nowhere does the County allege that this, or any similar, scenario has, in fact, occurred. It merely argues that such a scenario could occur. It does not involve a dispute with any permitee [sic] who would be affected by conflicting regulations. In other words, the County alleges nothing more than an ‘anticipated controversy,’ for which ‘[declaratory judgment proceedings will not lie.’ Creola Land Dev.[, Inc. v. Bentbrooke Hous., L.L.C.,] 828 So.2d [285,] 288 [ (Ala.2002) ].”

854 So.2d at 46.

However, I disagree with the conclusion that all the claims at issue in the underlying case involve anticipated conduct. First, there appears to be no dispute that, under the plain language of the Declaratory Judgment Act, Ala.Code 1975, § 6-6-220 et seq., a municipality may test the validity of an ordinance through a declaratory-judgment action: “[a]ny person ... whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.” Ala. Code 1975, § 6-6-223 (emphasis added). See, e.g., City of Piedmont v. Evans, 642 So.2d 435 (Ala.1994); Barber v. Fields, 624 So.2d 532 (Ala.1993).

Second, the dispute in this case is whether the ordinance is constitutional on its face, not whether some future conduct or factual scenario is valid or legal. The ordinance was enacted and is currently in effect and operation; it is not merely proposed. The City has begun operating its regulatory scheme put in place by the ordinance, and entities have actually applied for the permits authorized by the ordinance. Sheriff Surles and District Attorney Minor contend that the ordinance is unconstitutional.

I see no factual development that needs to unfold in order to make ripe for review the simple determination whether the ordinance complies with Alabama law. Indeed, the issue originally addressed by this Court was not whether any future conduct pursuant to the ordinance violated Alabama law, the issue was whether the ordinance, as written, complies with Alabama law. This is a pure question of law for the answer to which we compare the text of the ordinance against our body of statutory law, constitutional law, and caselaw. This is illustrated in our previous decision in a virtually identical action: City of Piedmont v. Evans, 642 So.2d 435 (Ala.1994). In that case, the City of Piedmont (“Piedmont”) filed a declaratory-judgment action against the local district attorney seeking a judgment declaring whether an ordinance enacted by Piedmont, which purported to allow bingo gaming, was constitutional. This Court affirmed the trial court’s judgment declaring that the definition of “bingo” in Piedmont’s ordinance unconstitutionally provided for an illegal lottery. 642 So.2d at 437. The actual conduct occurring pursuant to the ordinance was not material to the analysis. Indeed, certain conduct discussed in that case did not comply with the ordinance; nevertheless, the ordinance was held unconstitutional on its face.

Whether American Legion, Post 170, and Shooting Star Entertainment Group, LLC, operate machines as described in the ordinance, which we originally held would be impermissible, or whether they operate games that strictly comply with the description of bingo found in Barber would not be determinative as to whether the ordinance is lawful, would not create more adversity between the parties, and would not solidify the bounds and extent of the controversy, because their conduct is immaterial. Further, such conduct would not convert an examination of the legality of the ordinance from an “abstract proposition” to a “real and substantial” controversy, because the controversy in this case is whether the ordinance complies with the law. This controversy came into being when the ordinance was enacted. See, e.g., Tobe v. City of Santa Ana, 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145, 1152 (1995) (“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.”). I thus see no need for conduct pursuant to the ordinance to occur in order to create a “realized controversy”; such facts are not material.

This conclusion is demonstrated in Chorba-Lee Scholarship Fund, Inc. v. Hale, 60 So.3d 279 (Ala.2010). In Chorbar-Lee, several nonprofit charities operating bingo-gaming establishments in Jefferson County filed an action seeking a declaration as to the validity of certain newly issued bingo-gaming regulations promulgated by the Jefferson County sheriff. Specifically, the charities argued that Ala. Const. 1901, Amendment No. 386 (now Local Amendments to Ala. Const. 1901, Jefferson County, § 2 (Off.Recomp.)), gave regulatory power over bingo gaming exclusively to local municipalities or the county. Certain local acts purporting to provide such regulatory power to the sheriff, they argued, were in conflict with Amendment No. 386 and were thus unconstitutional.

It is unclear whether the charities operated their gaming facilities after the sheriff s regulations went into effect; in fact, the charities did not acquire permits from the sheriff, arguing that they did not have to do so “so long as they [we]re operating under a license or permit issued by a municipality that ha[d] enacted a bingo ordinance.” 60 So.3d at 284. In any event, whether bingo gaming was being conducted was of no consequence to our analysis whether the regulations promulgated by the sheriff violated Amendment No. 386. Instead, this Court’s analysis simply focused on whether the regulatory activity complied with applicable law.

No different analysis is required in the instant case. Here, as in Chorbar-Lee, the issue is whether the attempts to regulate bingo gaming comply with the local constitutional amendments authorizing such regulation. Whether bingo gaming is actually being conducted adds nothing to the analysis. Stated differently, Chorba-Lee demonstrates that, in the underlying declaratory-judgment action in the instant case, no conduct is necessary to aid in determining the constitutionality of the ordinance.

II.

Further, I see here no jurisdictional bars like those found in Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587 (Ala.2010) (“Tyson ”). In Tyson, Macon County Greyhound Park, Inc., d/b/a Victo-ryLand (“VictoryLand”), commenced an action in the Macon Circuit Court against John M. Tyson, Jr., individually and in his official capacity as special prosecutor and commander of the Governor’s Task Force on Illegal Gaming, seeking injunctive and declaratory relief. Specifically, Victory-Land sought a declaration that certain gaming machines at its facility were legal, as well as an injunction preventing Tyson from seizing them. Tyson contended that the Macon Circuit Court did not have subject-matter jurisdiction over a civil action seeking to enjoin the enforcement of the criminal laws of the State. This Court stated on appeal:

“The general rule is that a court may not interfere with the enforcement of criminal laws through a civil action; instead, the party aggrieved by such enforcement shall make his case in the prosecution of the criminal action:
“ ‘It is a plain proposition of law that equity will not exert its powers merely to enjoin criminal or quasi criminal prosecutions, “though the consequences to the complainant of allowing the prosecutions to proceed may be ever so grievous and irreparable.” Brown v. Birmingham, 140 Ala. [590,] 600, 37 South. [173,] 174 [(1904)]. “His remedy at law is plain, adequate, and complete by way of establishing and having his innocence adjudged in the criminal court.” Id.’
“Board of Comm’rs of Mobile v. Orr, 181 Ala. 308, 318, 61 So. 920, 923 (1913). See also 22A Am.Jur.2d Declaratory Judgments § 57 (2003) (‘A declaratory judgment will generally not be granted where its only effect would be to decide matters which properly should be decided in a criminal action.’).
“ ‘The general rule that courts of equitable jurisdiction will not enjoin criminal proceedings or prosecutions applies ... to prosecutions which are merely threatened or anticipated as well as to those which have already been commenced. The rule extends to ... searches and seizures in the course of investigation of crime....
“ ‘It is not a ground for injunctive relief that the prosecuting officer has erroneously construed the statute on which the prosecution is based so as to include the act or acts which it is the purpose of the prosecution to punish....
‘“If the statute, or interpretation thereof, on which the prosecution is based is valid, the fact that the enforcement thereof would materially injure the complainant’s business or property constitutes no ground for equitable interference, and is not sufficient reason for asking a court of equity to ascertain in advance whether the business as conducted is in violation of a penal statute....’
“43A C.J.S. Injunctions § 280 (2004) (footnote omitted).”

Tyson, 43 So.3d at 589.

Tyson further recognized the danger of “a court exercising equitable jurisdiction ... interfer[ing] with the orderly functioning of the executive branch within its zone of discretion in violation of the separation-of-powers doctrine set forth at § 43 of the Alabama Constitution of 1901....” 43

So.3d at 589-90. We held in Tyson:

“The complaint in this action does not present a situation in which the plaintiff acknowledges that his conduct is prohibited by a statute and then challenges the enforceability of the statute. To the contrary, VictoryLand strenuously maintains its innocence. Entertainment of a civil action for injunctive and declaratory relief under such circumstance cannot be countenanced lest the trial court become involved in a role that should be left to the fact-finder in a criminal proceeding following a plea of not guilty.”

43 So.3d at 590.

Thus, in Tyson, the target of a possible criminal probe filed a declaratory-judgment action seeking a determination as to whether its conduct was legal, and the relief requested sought to interfere with the executive branch’s exercise of its discretion in enforcing the law. Such action, we held, ran afoul of several well established legal principles: that equity generally will not enjoin criminal or quasi-criminal prosecutions; that a declaratory-judgment action will not be entertained for the purpose of deciding matters that should properly be decided in a criminal action; and that the separation-of-powers doctrine of Ala. Const. 1901, § 43, bars a court from interfering with the orderly functioning of the executive branch operating within its zone of discretion.

Certain aspects of the declaratory-judgment action below are clearly impermissible under Tyson. Specifically, the City, Surles, and Minor all attempted to seek a judgment declaring whether anticipated conduct — the operation of electronic machine bingo — would be lawful. The City went even further and sought injunctive relief preventing law enforcement from exercising its discretionary law-enforcement function. This is precisely the type of judicial action this Court in Tyson recognized as impermissible; it is not within the trial court’s power to entertain such claims.

That said, the City, Surles, and Minor all also sought a judgment declaring whether the City’s ordinance falls within the limited grant of authority provided by Amendment No. 542, Ala. Const. 1901 (now Local Amendments to Ala. Const. 1901, St. Clair County, § 2 (Off.Recomp)); Act. No. 91-710; and Act No. 93-687, to enact a regulatory scheme governing bingo in St. Clair County. These claims are the only claims we addressed in our original opinion in these appeals; this Court was presented a pure question of law that raises none of the concerns expressed in Tyson. Specifically, such a declaration does not involve a determination as to whether certain conduct by the parties would violate the criminal law. Indeed, the facts of this case reveal no allegedly illegal conduct taking place, and no criminal law is at issue. Further, such a determination, alone, does not involve the trial court’s using equitable powers to enjoin criminal or quasi-criminal prosecutions. Although the City sought such injunctive relief as one of the many claims presented in this matter, the trial court, under Tyson, does not possess the power to limit law enforcement in such fashion. Thus, these two concerns expressed in Tyson have no application in this case.

Finally, an action under the Declaratory Judgment Act to determine whether the regulatory scheme of the ordinance falls within the authority granted by Amendment No. 542, Act No. 91-710, and Act No. 93-687 to regulate bingo does not ab initio interfere with the discretion afforded the executive branch in enforcing criminal laws. The decision this Court reached in its original opinion — that the ordinance is unconstitutional and that the trial court erred in holding otherwise — did not operate to restrict executive-branch discretion in conflict with § 43. Whether any declaratory-judgment action addressing the constitutionality or legality of an ordinance could in the future operate to restrict executive-branch discretion — or whether § 43 would bar such future restriction — was not an issue in our original decision.

III.

I see no jurisdictional barrier to this Court’s original decision in this matter; therefore, I respectfully dissent from withdrawing the original opinion and dismissing these appeals.

BOLIN, J., concurs.

      . On February 26, 2009, the attorney general filed an acknowledgment of service of Sheriff Surles’s answer and counterclaim and, because the State was being represented by Minor, waived any further service and right to~ be heard at the trial court level. The filing stated:
      "Because, at the trial level, the State is represented in this matter by the Honorable Richard J. Minor, District Attorney of the 30th Judicial Circuit, the Attorney General, having accepted service, hereby waives any further service upon him of any pleadings, discovery and other matters filed in this matter at the trial level, and further waives his right to be heard at the trial level. The Attorney General reserves all rights and privileges, including any notice of pleadings, right to be heard and other matters, on appeal, if any, in this matter.”

      . We held that the definition of bingo in the ordinance deviated from the definition of bingo in Barber because "electronic bingo gaming,” which the ordinance authorized, was not "bingo.” We stated: "[The ordinance's] definition of 'machine bingo game’ indicates that player participation and interaction will actually be performed by a machine.... This is not the game of bingo.... ”

      .Additionally, actions seeking a judgment declaring whether certain conduct violates criminal laws, we have recently noted, are impermissible. See Tyson v. Macon County Greyhound Park, Inc., supra, discussed in Part II, infra.

      . In fact, as discussed below, this Court in our original opinion did not address such anticipated conduct.

      . The word ‘‘person” under this Code section includes a municipality. Ala.Code 1975, § 6-6-220.

      . Sheriff Surles and District Attorney Minor contended that such future conduct would be illegal, but this Court’s original opinion, noting that no actual bingo machines had yet been installed or operated, i.e., that such conduct was merely anticipated, did not address the propriety of any actual machine or gaming activity.

      . Act No. 80-609, Ala. Acts 1980, as amended by Act No. 94-393, Ala. Acts 1994, and later by Act No. 99-415, Ala. Acts 1999.