author: BARNES, J.,

text:
    MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellant v. Kevin HARBIN d/b/a H & H Electronics, Appellee.
    No. 2007-CC-01778-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.

      Albert B. White, Madison, attorney for appellant.
    A.E. (Gene) Harlow, Grenada, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. The Mississippi Department of Employment Security (MDES) appeals the decision of the Hinds County Circuit Court which found that Franklin Glasper, an unemployment benefits claimant, was not an employee, but an independent contractor, of H & H Electronics (H & H). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 30, 2002, Glasper filed an unemployment benefits claim with MDES. In his initial claim for benefits, Glasper reported that he was employed from April 15, 2002, through June 12, 2002, as a satellite installer for Kevin Harbin, who owned H & H. However, no wages were reported for Glasper for unemployment tax purposes by H & H. After investigating the matter, MDES determined that there was an employer/employee relationship between H & H and Glasper; thus, the agency determined that his wages and the wages of all other employees in his class should be reported and unemployment taxes paid. H & H appealed this decision.

¶ 3. After a telephonic hearing on the matter, Timothy Rush, the MDES hearing officer, issued an opinion on April 29, 2003, affirming the MDES decision. H & H appealed to the MDES Board of Review (at that time the Commission), which affirmed the hearing officer’s decision. On August 25, 2003, H & H appealed to the Hinds County Circuit Court. On July 6, 2007, the circuit court reversed the decision of MDES, finding that Glasper was an independent contractor, not an employee ofH&H.

¶ 4. MDES now appeals to this Court, asserting that: (1) the circuit court erred in failing to find the MDES decision was supported by substantial evidence and thus should have been affirmed; (2) the circuit court erred in failing to affirm the MDES decision finding Glasper was an employee of H & H; (3) H & H failed to meet its burden in proving that Glasper was an independent contractor; and (4) the circuit court acted arbitrarily and capriciously in substituting its opinion for that of MDES.

STANDARD OF REVIEW

¶ 5. This Court’s standard of review for administrative appeals is well established. The findings of fact from the MDES Board of Review’s opinion are conclusive in the absence of fraud and if supported by the evidence. Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991); Miss.Code Ann. § 71-5-531 (Supp.2008). An administrative agency’s conclusions will remain undisturbed unless the agency’s order is: (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) in violation of the employee’s statutory or constitutional rights. Miss. Dep’t of Employment Sec. v. Good Samaritan Pers. Servs., 996 So.2d 809, 812(¶ 6) (Miss.Ct.App.2008) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)). On appeal, “[a] rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.” Id. (quoting Sprouse v. Miss. Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994)).

ANALYSIS

¶ 6. As all of MDES’s issues relate to whether there was substantial evidence to support MDES’s decision that Glasper was an employee of H & H, we shall discuss them together.

¶ 7. The requirements for an employer-employee relationship to be established are explained in section 71-5-11(J)(14) (Supp.2008) of the Mississippi Code Annotated:

Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.

The factors this Court must consider when determining whether an employee-employer or independent contractor relationship exists are as follows:

(1) The extent of control exercised over the details of the work;
(2) Whether or not the one employed is engaged in a distinct occupation or business;
(3) The skill required in the particular occupation;
(4) Whether the employer supplies the tools and place of work for the person doing the work;
(5) The length of time for which the person is employed;
(6) The method of payment, whether by the time or by the job; and
(7) Whether or not the work is a part of the regular business of the employer.

PDN, Inc., 586 So.2d at 841-42 (citing Miss. Employment Sec. Comm’n v. Plumbing Wholesale Co., 219 Miss. 724, 732, 69 So.2d 814, 818 (1954)). In determining whether an individual is an employee or an independent contractor, the central issue is “whether the employer has the right to exercise control over the work of the employee.” Estate of Dulaney v. Miss. Employment Sec. Comm’n, 805 So.2d 643, 646(¶ 13) (Miss.Ct.App.2002).

¶ 8. On MDES’s “workers independent contractor questionnaire,” Glasper indicated he was paid by commission and by the job; his hours and days of work were listed as “any,” and he was not given instructions or directions on the daily performance of his duties. However, Glasper stated that he believed he was an employee of the company because “[he] worked for the company and they cut [his] checks.”

¶ 9. At the telephonic hearing in January 2003, the following individuals participated: Jimmy Taylor, Field Tax Representative for MDES; Harbin; Harbin’s attorney; and Glasper. Information was gathered about Harbin’s business and the installers’ work. H & H is a satellite television installation company, which had been in business since 2001. It holds contracts with multiple companies that sell satellites, such as Radio Shack. Glasper was hired by Harbin, the sole proprietor of the business, to perform installations for H & H. Harbin had five or six individuals working as installers, and he testified that he considered all of these workers to be independent contractors. Harbin testified that Glasper signed an independent contractor agreement upon his hiring, but he not could find the executed copy, only a blank form, which was submitted into evidence.

¶ 10. How the business worked is that Harbin would contact Glasper, or another installer, and provide a work order and the customer’s information, such as preferred time of installation. The installer would then set up a time with the customer to install the satellite. If an installer was busy, Harbin testified he would merely send the order to another installer. Harbin provided the satellite itself and connecting cables. The installer provided all of his own tools. Generally, the installers would call Harbin at the end of each day, at their convenience, to ascertain if any work orders had been placed for the next day. Glasper stated the reason he no longer worked for H & H is that Harbin stopped sending him work.

¶ 11. As far as payment, the installer was paid by the job as follows: fifty dollars per satellite receiver box and seventy dollars for a two-receiver box installation. The customers received free installation when they bought their equipment. The company where the satellite was purchased would pay H & H, and H & H would then pay the installer. Harbin kept a portion of the money paid to H & H by the satellite sales companies. The installers received 1099 tax forms, not W-2s.

¶ 12. Harbin testified there was no set time for the installers’ work schedule. He would merely fax or hand-deliver the work orders to the installers, who would then contact the customers on their own phones, in their own time and work out an installation time. The installers’ only investment in terms of expenses was for their vehicles, cell phone, and tools used on the job. The parties acknowledged there was no workshop at H & H, and Harbin did not provide Glasper a “place to work.” The installers were also required to provide their own independent contractor insurance; Glasper, however, did not carry such insurance because when Harbin hired him, Glasper was in a “bind.” Thus, Harbin told him he could purchase it later. Harbin explained that he did not train installers; he only hired individuals with experience in the business and who were familiar with the national electrical code and its guidelines.

¶ 13. Before the installer was paid by H & H, there was a process of verifying that the installation was complete and the customer was satisfied, which entailed receiving the customer’s signature on the work order stating such. The installer would return the work order to H & H, which would then hold back the installer’s payment for two weeks. If the customer was not satisfied, the installer had to return and remedy the problem. If he did not, another installer was sent, and the original installer’s paycheck would be deducted. Glasper could hire other individuals to assist him in his work if he desired.

¶ 14. The MDES Board of Review adopted the hearing officer’s decision, finding that an employer-employee relationship existed based on the following:

The mere fact that the claimant might have signed an independent contractual agreement does not in any way negate the direction and control that the employer had over the claimant in assigning him his work task and requiring that he adhere to strict guidelines in completing his work before he was compensated. The claimant did not have the freedom to go directly to the source from which the employer was receiving their work orders. The employer, not the residential customer, was paying the claimant a portion of the money that the employer received for installing the satellite equipment. The employer did provide the materials and supplies needed to install the system. The claimant was subject to the control and direction of the employer in the way that the equipment was to be installed and the standards to which he was to adhere to.... It is without dispute that the duties performed by the claimant were an integral part of the employer’s daily operations and services. The mere fact that the claimant may be issued a Form 1099 for tax purposes does not mean the claimant was not subject to this employer or under the conditions of master/servant relationship. The employer reserved the right to exercise control over the end result of the claimant’s job performance by holding the claimant to standards accepted and used by the employer to install the satellite systems. The claimant could not deviate from these standards without recourse from this employer.

¶ 15. We find, however, after studying the record, that MDES’s decision is not supported by substantial evidence. According to the factors enumerated in PDN, Inc., the evidence shows Glasper was acting as an independent contractor, not an employee of H & H. Foremost, Harbin did not exercise any control over the installation of the satellite dishes; he merely took the work orders. If a dish was installed incorrectly, the installer had to correct it at his own expense. Glasper had the freedom to hire subcontractors if he needed assistance. Glasper had specialized training, which was not provided by Harbin, to install the equipment, and he had to meet certain safety and electrical guidelines. Glasper could work for others if he desired, and he made his own schedule. Harbin did not supply tools or a place of work for Glasper, who was employed for approximately two months by Harbin. Glasper was paid by the job by H & H. We find, as did the circuit court, the right of control Harbin exercised over Glasper did not rise to the level of an employer-employee relationship.

¶ 16. We affirm the circuit court’s reversal of the MDES’s decision that Glas-per was an employee of H & H, as there is a lack of substantial evidence in the record to support the MDES’s decision.

¶ 17. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . Glasper actually filed his claim with the "Mississippi Employment Security Commission,” which was the name of the agency prior to its becoming a department of the executive branch of government.

      . Taylor acknowledged that he had never personally spoken with Glasper; he stated that he was testifying solely based on documents that were completed by Glasper. He had no personal knowledge about the facts to which he testified.


source: Caselaw Access Project

license: Public Domain

text:
    Michael King CARLISLE, Appellant, v. Katrina Yvonne CARLISLE, Appellee.
    No. 2007-CA-01253-COA.
    Court of Appeals of Mississippi.
    April 28, 2009.

      Michael C. Barefield, Long Beach, attorney for appellant.
    William E. Tisdale, attorney for appel-lee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Michael Carlisle appeals the judgment of the Chancery Court of Harrison County, which granted Katrina Carlisle a divorce from him and awarded her certain marital property and attorney’s fees. Mr. Carlisle argues that the record shows no proof of service upon him and no notice of trial; thus, the judgment should be set aside. Finding the judgment proper, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. The Carlisles were married in June 1996. The couple had no children. They separated in July 2006. Mrs. Carlisle filed for divorce on November 14, 2006, on the grounds of habitual cruel and inhuman treatment, irreconcilable differences, desertion, habitual drug usage, or adultery. She requested an equitable distribution of the businesses and personal property of the parties, as well as attorney’s fees.

¶ 3. On June 18, 2007, a hearing was held on the matter in the Harrison County Chancery Court. Mr. Carlisle was called in open court and did not appear for the hearing, nor had he filed an answer, filed other pleadings, or entered an appearance in this cause. Two witnesses, Mrs. Car-lisle and another woman, testified to Mr. Carlisle’s adultery during the marriage. The chancellor entered an order granting Mrs. Carlisle a divorce on the ground of adultery, title to certain real property, and $2,000 in attorney’s fees. The order indicates that Mr. Carlisle “was personally served with Rule 4 process on December 16, 2006”; however, the case docket in the record does not show a return of process having been filed. Mr. Carlisle appealed in July 2007, raising the issue of improper service of process and notice of the hearing.

¶ 4. In an attempt to supplement the record, Mrs. Carlisle attached documents to her alleged “record excerpts” showing when Mr. Carlisle was served. However, in August 2008, this Court granted Mr. Carlisle’s motion to strike these documents. Subsequently, this Court, on its own initiative, pursuant to Mississippi Rule of Appellate Procedure 10(e), requested that the chancery court supplement the record to reflect what the court relied upon in making its determination that Mr. Carlisle was served with process on December 16, 2006. In December 2008, in response to this Court’s order to identify all evidence relied upon in making the finding that Mr. Carlisle was personally served with process, the chancery court supplemented the record to include two additional documents: the summons issued by the chancery court clerk to Mr. Carlisle dated November 16, 2006, and the proof of service, which was signed by the process server indicating personal service on Mr. Carlisle. The chancellor also responded with a supplemental order explaining that when Mr. Carlisle did not appear at the hearing, he asked Mrs. Carlisle’s counsel for proof that Mr. Carlisle had been served, at which point Mrs. Carlisle’s counsel then provided the summons return indicating that personal service had been perfected on Mr. Carlisle on December 16, 2006. The chancellor reviewed the document and then returned it to Mrs. Car-lisle’s counsel.

¶ 5. Both parties filed supplemental briefs in response to the chancery court’s supplementation of the record. Understandably, Mr. Carlisle no longer argues lack of service of process; instead, he concentrates on the lack of notice of the divorce hearing.

STANDARD OF REVIEW

¶ 6. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Wilburn v. Wilburn, 991 So.2d 1185, 1190(¶ 10) (Miss.2008) (quoting Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶8) (Miss.2002)). Reversal of a chancellor’s findings of fact occurs only when there is no “substantial credible evidence in the record” to justify his finding. Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002) (citing Henderson v. Henderson, 757 So.2d 285, 289(¶ 19) (Miss.2000)).

¶ 7. Whether the chancery court has jurisdiction to hear a particular matter is a question of law, and this Court will apply a de novo standard of review. In re Adoption of D.N.T., 843 So.2d 690, 697(¶12) (Miss.2003) (citing Burch v. Land Partners, L.P., 784 So.2d 925, 927(¶7) (Miss.2001)).

ANALYSIS

¶ 8. In his initial brief, Mr. Carlisle claimed that the record was devoid of any proof that service of process was delivered to him. He argued that the chancery court thus had no personal jurisdiction over him because service of process was not completed within 120 days, pursuant to Mississippi Rule of Civil Procedure 4(h).

¶ 9. According to the chancery court order supplementing the record, Mr. Carlisle was personally served with Rule 4 process, as required in divorce cases, on December 16, 2006. Mrs. Carlisle properly served Mr. Carlisle within 120 days of the filing of the complaint, as required by Rule 4(h). Additionally, according to Rule 4(f), the person serving the process is required to make proof of service promptly to the court. However, “[fjailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f). The chancery court’s supplementation of the record establishes that the proof of service document was presented to the chancellor by Mrs. Carlisle’s counsel at the divorce hearing on June 18, 2007. Therefore, the chancery court was correct in determining that it had personal jurisdiction over Mr. Car-lisle.

¶ 10. The record also shows that no notice of the divorce hearing was given to Mr. Carlisle, as he complains. Rule 40(b) of the Mississippi Rules of Civil Procedure states that notice of setting of the trial docket must be sent to “all attorneys and parties without attorneys.” King v. King, 556 So.2d 716, 718 (Miss.1990). However, while notice of hearings must be sent to those that have answered complaints, “[tjhere is no obligation to mail notice of hearings to those who have failed to answer and thus have not made an appearance in the case.” Stinson v. Stinson, 738 So.2d 1259, 1261(¶7) (Miss.Ct.App.1999). As explained in Stinson, also a divorce case, a party who does not answer the complaint is not recognized by the rules as participating in the action. Id. at 1262(¶ 10).

¶ 11. In his supplemental brief, Mr. Carlisle argues that Rawson v. Buta, 609 So.2d 426 (Miss.1992) is controlling and supports his argument that the chancellor erred in not notifying him of the hearing. In Rawson, the supreme court held that Mississippi Code Annotated section 93-5-7 (Supp.1992) “does not bar a defendant from presenting proof rebutting the plaintiffs proof, although he or she may not have filed an answer.” Rawson, 609 So.2d at 430. Mr. Carlisle argues that because he was not given notice of the divorce hearing, he was not given an opportunity to present evidence rebutting Mrs. Car-lisle’s claims, in opposition to Rawson. However, Rawson is distinguishable from the instant case. The issue in Rawson was not notice of the hearing, which the defendant apparently received, as he was physically present and represented by counsel at the hearing, but the defendant’s presentation of evidence at the hearing. Furthermore, in Rawson, the defendant answered the complaint, albeit in an untimely manner, and filed a counter-complaint for divorce. Id. at 428-29. Thus, the defendant could be viewed as actively participating in his own defense, unlike Mr. Carlisle, who chose to ignore the proceeding entirely until a judgment was rendered against him. In Rawson, before the divorce hearing, the chancellor granted the plaintiffs motion to strike the defendant’s answer as untimely and proceeded to hear the action as uncontested, instructing the defense attorney that he could offer no proof at the hearing (although he did cross-examine the plaintiffs witnesses). Id. at 429, 432. The supreme court found the chancellor erred in this instruction. Id. at 430. In the instant case, Mr. Car-lisle made no appearance, timely or otherwise, before the chancery court. Therefore, he was not given notice of the hearing pursuant to Rule 40(b). Rawson is simply inapplicable.

¶ 12. In analyzing the procedural rules in conjunction with the state’s divorce statutes, we find Mississippi law is clear that “failure to answer a complaint, even one for divorce, allows the trial court to proceed without the defendant.” Stinson, 738 So.2d at 1261(¶ 7). While no divorce by default judgment may be obtained, a claimant is not barred from obtaining an uncontested divorce. Lindsey v. Lindsey, 818 So.2d 1191, 1194(¶ 13) (Miss.2002). “A defendant’s failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancellor has authority to grant the divorce despite the absence of the defendant.” Stinson, 738 So.2d at 1263(¶ 15) (citing Rawson, 609 So.2d at 430).

¶ 13. Mr. Carlisle did not file an answer or otherwise respond to the complaint that had been served on him. Nor did he, or any counsel, file an entry of appearance until after the June 18, 2007, judgment. Therefore, since he did not respond to the court regarding this action, the court was not required under the rules to send him notice of the divorce hearing. Accordingly, we find that the chancery court’s judgment is proper.

¶ 14. THE JUDGMENT OP THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . It should go without saying that a document cannot be a record "excerpt” if it is not contained in the record itself. However, we find with some frequency parlies trying to correct the record informally, as was attempted by Mrs. Carlisle, rather than following the procedure outlined in Mississippi Rule of Appellate Procedure 10(e).

      . These documents had been filed with the chancery court after the notice of appeal had been filed.

      . Mr. Carlisle does not argue that he had a defense to the judgment to disprove the ground of adultery or any other substantive proof that would show the divorce was improperly granted. Nor does he attack the chancery court's property distribution or grant of attorney’s fees.


text:
    EMC ENTERPRISE, INC., A Louisiana Corporation, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2007-CC-01770-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.

      David B. Grishman, Jackson, Benjamin Corey Windham, attorneys for appellant.
    Albert B. White, Madison, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. EMC Enterprises, Inc. (“EMC”) appeals the Circuit Court of Hinds County’s decision to affirm the denial of its appeal by the Mississippi Department of Employment Security Board of Review (Board of Review). Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In order to address the issues in the present case adequately, we must discuss antecedent events. In 1995, Mary Stevens, a product demonstrator (demonstrator) for EMC, a Louisiana corporation which provides demonstration services to manufacturers, food brokers, and marketing companies, filed a claim for unemployment benefits with the Mississippi Employment Security Commission (now the Mississippi Department of Employment Security, or “MDES”). On February 5, 1996, MDES issued a decision stating that it considered the EMC demonstrator to be an independent contractor. The letter explained that this decision was based on a previous ruling by the Board of Review on appeal. That ruling involved a similarly-situated company and stated that an employer/employee relationship did not exist. However, the 1996 decision expressed that it was the personal opinion of Dale Smith, the MDES Chief of Contributions and Status, that the demonstrators and their supervisors, who were performing services for EMC in Mississippi, should be considered employees.

¶ 3. The present case specifically concerns the application for unemployment benefits filed on April 18, 2004, by Donis C. Chatham, a demonstrator for EMC. On June 4, 2004, the MDES claims examiner ruled that Chatham had not refused work and, therefore, was not disqualified from receiving unemployment benefits. However, no determination regarding the charge-ability of EMCs account was made at that time. EMC filed an appeal on June 13, 2004, as to whether Chatham was disqualified from receiving unemployment benefits as she was an independent contractor.

¶ 4. On June 28, 2004, MDES sent a letter to EMC informing the company that it was conducting an investigation to determine whether Chatham, and all other workers in that class, were employees or independent contractors. MDES requested that EMC complete an “Independent Contractor Questionnaire” and return the forms by July 9, 2004. The attorney for EMC, David Grishman, timely submitted the forms, along with an “Application to Perform Contract Services” completed and signed by Chatham. On July 6, 2004, a telephonic hearing was held before a referee with the MDES Appeals Department regarding Chatham’s disqualification of benefits. Grishman represented the company at the hearing. Chatham did not participate in the hearing.

¶ 5. On July 21, 2004, the MDES referee rendered a decision finding not only that an “employer/employee” relationship existed between Chatham and EMC, but also that this classification applied to “all others in this class.” The decision, which stated that an appeal could be taken within ten days from the date of the letter, was mailed to EMC’s address of record. When no notice of appeal was received within the ten-day period, MDES sent EMC a status report on August 9, 2004, and informed EMC that wage reports should be completed and returned by August 24, 2004. Subsequently, EMC contacted Grishman on August 11, 2004, to discuss the status of the appeal, This was when EMC discovered that MDES had not notified Grishman of the decision. Grishman immediately contacted MDES to advise it of this omission. Grishman then followed up with a letter detailing the issue and requesting an appeal. On November 30, 2004, MDES conducted a telephonic hearing to determine whether EMC had good cause for not filing a timely appeal. On December 7, 2004, the MDES referee issued a decision finding that EMC’s appeal of the July 21, 2004, decision was untimely.

¶ 6. On December 6, 2004, EMC received two Employer’s Quarterly Wage Reports for the periods ending June 30, 2004, and September 30, 2004, based on the new classification of its workers. On December 9, 2004, EMC filed the first of four written requests for hearing, as authorized by Mississippi Code Annotated section 71-5-365 (Rev.2000), to contest EMC’s tax liability. Eventually, in a letter dated February 23, 2005, MDES scheduled a hearing for March 16, 2005, regarding the tax assessments. Over strong objection by EMC, the referee limited the scope of the hearing to the assessment issue, stating that he lacked jurisdiction to hear the employee/independent contractor issue. Furthermore, the referee advised EMC that the issue of the classification of demonstrators was currently being addressed in a pending appeal before the Board of Review to determine whether EMC had filed a timely appeal. However, the referee was unaware of the current status of that appeal. EMC had not been notified of the pending appeal prior to this point; therefore, it moved to adjourn the hearing until the timeliness issue could be resolved. The referee denied EMC’s request. EMC continued to object stating that MDES had violated EMC’s right to due process as MDES had failed to respond to EMC’s requests for information and to adhere to the administrative procedure set forth in section 71-5-365. In its defense of the wage assessments, EMC also attempted to present evidence regarding the workers’ classifications, but the referee said he could only forward such information to the Board of Review. Pursuant to the statements made at the March 16th hearing, EMC wrote a letter on March 17, 2005, to the Board of Review requesting that it be allowed to present its evidence as to why it should be entitled to appeal the classification of demonstrators. This was followed by three subsequent letters reiterating EMC’s position; however, MDES did not respond.

¶ 7. The Board of Review issued a decision on May 20, 2005, which affirmed the December 7, 2004, decision denying EMC a hearing due to its untimely appeal. The May 20, 2005, decision notified EMC that it had thirty days to appeal the decision to circuit court; however, the decision did not address the wage-assessment issue. On June 9, 2005, EMC filed a “Complaint and Appeal of Decision by Mississippi Department of Employment Security” with the Hinds County Circuit Court. After reviewing the complaint, Albert White, the attorney for MDES, realized that the May 20, 2005, decision did not address the Quarterly-Wage-Assessment issue. Consequently, on July 18, 2005, the Board of Review issued a letter amending its May 20, 2005, decision, which, along with affirming the denial of EMC’s appeal based on untimeliness, also affirmed the referee’s decision that EMC had failed to provide sufficient evidence that the Quarterly Wage Assessments were incorrect.

¶ 8. On June 26, 2007, the circuit court affirmed the December 7, 2004, decision by MDES, stating that the notice sent to EMC was sufficient; therefore, EMC’s appeal was filed untimely. Based on this holding, the circuit court declined to address the issue of whether the demonstrators were employees or independent contractors. MDES claims that, as the appeal as to Chatham’s determination of eligibility was filed untimely, EMC should not be allowed to challenge the legal classification of the workers in question. Although EMC has fully briefed this Court on the issue of whether demonstrators are employees or independent contractors, we find, as did the circuit court, that we must first address the issue of the timeliness of EMC’s appeal.

STANDARD OF REVIEW

¶ 9. Our review of an administrative appeal is well established. In the absence of fraud and if supported by substantial evidence, “an order from the Board of Review of the [MDES] on the facts is conclusive in the lower court[.]” Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). We will not disturb the decision of an administrative agency “on appeal unless it 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.’ ” Pub. Employees’ Ret. Sys. v. Dozier, 995 So.2d 136, 138(¶ 7) (Miss.Ct.App.2008) (citation omitted). “A rebuttable presumption exists in favor of the administrative agency’s decision and findings, and the challenging party has the burden of proving otherwise.” Cummings v. Miss. Dep’t of Employment Sec., 980 So.2d 340, 344(¶ 13) (Miss.Ct.App.2008). However, “[i]f an agency’s decision is not based on substantial evidence, it will be deemed arbitrary and capricious.” Case v. Pub. Employees’Ret. Sys., 973 So.2d 301, 310(¶ 20) (Miss.Ct.App.2008) (citing Pub. Employees’ Ret. Sys. v. Allen, 834 So.2d 50, 53(¶ 10) (Miss.Ct.App.2002)). “[E]mployment security contribution assessments are an excise tax and, therefore, every doubt as to their application must be resolved in favor of the taxpayer and against the taxing power.” PDN, Inc., 586 So.2d at 840.

I. Whether MDES’s failure to provide adequate notice to EMC’s attorney denied EMC due process or provided “good cause” for the untimely appeal.

¶ 10. We find no precedent directly interpreting the ten-day time limit for filing a notice of appeal under the pertinent statute, Mississippi Code Annotated section 71-5-355 (Supp.2008). However, MDES submits that cases where the Mississippi Supreme Court has applied the fourteen-day deadline for appealing unemployment benefit cases are instructive. We agree. In Wilkerson v. Mississippi Employment Security Commission, 630 So.2d 1000, 1002 (Miss.1994), the Mississippi Supreme Court determined that an appeal which was filed one day late was untimely filed. The supreme court strictly construed the fourteen-day time period for filing a notice of appeal, holding that the statutory time limit for appeal under section 71-5-517 of the Mississippi Code of 1972 Annotated cannot be extended “absent a showing of some event not caused by a party affecting that party’s substantial rights.” Id. at 1001. Likewise, in Mississippi Employment Security Commission v. Edwards, 763 So.2d 194, 196(¶ 6) (Miss.Ct.App.2000), this Court stated that:

If the notice of a referee’s determination is mailed to a party’s last known address, notice of appeal within fourteen days of the mailing date is a necessary prerequisite to obtaining further review of a determination of eligibility. Barring some circumstance constituting “good cause” for failing to file a notice seeking further review, the matter ends with the expiration of the fourteen[-]day appeal period if an appeal notice is not filed.

(Internal citations omitted) (denial of unemployment benefits case).

¶ 11. In Booth v. Mississippi Employment Security Commission, 588 So.2d 422 (Miss.1991), the Mississippi Supreme Court addressed a factual scenario similar to the one before the Court. Booth, who was represented at his initial benefits hearing by his attorney, received written notice of an appeal regarding an MDES decision awarding him benefits. Id. at 426. However, Booth’s attorney did not receive the notice. Booth claimed that the failure to notify his attorney of record violated his minimum due process requirements. Id. The supreme court noted that although Rule 5(b) of the Mississippi Rules of Civil Procedure requires that an attorney representing a party receive service unless otherwise ordered by the court, “the Rules of Civil Procedure are inapplicable to administrative proceedings.” Id. at 427 (citation omitted). Minimum due process will be found where notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. As Booth admitted that he had received timely notification of the appeal, the court found that the notice given to Booth satisfied the minimum due process requirement.

¶ 12. However, the Booth court concluded by “strongly recommending]” that MDES “re-evaluate its rules regarding notice and process.” Id. at 428. EMC argues that MDES’s failure to provide notice to its attorney of record, years after the supreme court’s recommendation in Booth that MDES re-evaluate its rules, violated EMC’s right to due process and/or constituted “good cause” for EMC’s failure to file a timely appeal.

¶ 18. MDES admitted that it was not uncommon to notify attorneys of decisions; however, this is usually done in cases where the attorney submits a written request for notification. MDES argued that, due to the number and variety of matters with which the department deals, it would be impractical to send every determination to persons or entities claiming to be a representative of an employer without specific instructions. MDES never received any such written notice from Grishman.

¶ 14. Even though MDES failed to follow the supreme court’s recommendation, EMC has failed to cite any authority that would permit this Court to disregard Booth. While the supreme court did leave open the possibility that it might revisit this issue of the constitutionality of notice provided by MDES, we are bound by Booth’s holding that notice to the party is sufficient to satisfy due process requirements in administrative matters and that notice to counsel is not constitutionally required. Accordingly, we affirm the circuit court’s decision that EMC was not denied due process by MDES’s failure to notify EMC’s attorney of the July 21, 2004, decision.

¶ 15. EMC next argues that MDES’s failure to notify Grishman of its decision resulted in EMC’s untimely appeal and should warrant “good cause” to allow an out-of-time appeal. In Mississippi Department of Employment Security v. Good Samaritan Personnel Services, Inc., 996 So.2d 809, 813(¶ 10) (Miss.Ct.App.2008), this Court stated that under the MDES appeals statutes, the time period for filing a notice of appeal “may be relaxed or extended if there is a showing of ‘good cause’ by the appellant that the mailing to the last known address was not ‘reasonably calculated, under all the circumstances, to apprise’ the party of the decision.” (Citations omitted) (denial of unemployment benefits case). “Good cause is established when there is sufficient evidence to show that a party failed to receive the mailing due to delays in the mail or because of an act beyond the party’s control.” Id. at 813-14(¶ 12) (quoting Miss. Employment Sec. Comm’n v. Marion County Sheriffs Dep’t, 865 So.2d 1153, 1157(¶ 10)); see also Cane v. Miss. Employment Sec. Comm’n, 368 So.2d 1263, 1264 (Miss.1979) (erroneously mailing the notice of the decision to the claimant’s previous address constitutes good cause) (denial of unemployment benefits case).

¶ 16. In the present case, MDES sent notice of the July 21, 2004, decision to EMC’s correct address. As the circuit court judge noted in her order, all preceding correspondence from MDES to EMC had been responded to in a timely fashion. Further, the notice contained no indication that EMC’s counsel was being provided a copy so as to mislead EMC in any way. Consequently, as EMC admits that it received timely notice of the July 21, 2004, decision, we affirm the circuit court’s determination that good cause was not shown for EMC’s failure to file a timely notice of appeal. This issue is without merit.

II. Whether EMC was required to remit quarterly wage assessments for June 30, 2004, and September 30, 2004.

¶ 17. As to the wage assessment issue, EMC repeatedly petitioned MDES to request a hearing concerning its June 30, 2004, and September 30, 2004, Quarterly Wage Assessments. A hearing regarding the assessments was held on March 16, 2005. However, the sole argument presented by EMC at the hearing was that the assessments were improperly based on the classification of the workers as employees, which the referee did not have jurisdiction to address based on the December 7, 2004, ruling. Sandra Watson, the Vice-President of Operations for EMC, testified that, other than her opinion that the demonstrators were not employees, she could not offer any proof that the assessments were incorrect. Watson also acknowledged that she had the ability to determine the amounts paid to the demonstrators. However, she stated that she had not done so as EMC’s records were not kept on a quarterly basis and that it would be time consuming to do so. EMC has never challenged any aspect of the assessment other than the fact that the demonstrators were classified as employees rather than independent contractors, which was not timely appealed. Therefore, we find no error in the imposition of June 30, 2004, and September 30, 2004, Quarterly Wage Assessments. This issue is without merit.

III. Whether Product Connections bars MDES from re-litigating the classification of product demonstrators.

¶ 18. EMC contends that this Court should reverse the decisions by MDES and the circuit court and find that MDES should have been barred by the doctrines of res judicata and collateral estoppel from re-litigating the issue of the classification of EMC’s product demonstrators based on both the February 1996 decision by the Board of Review, which was discussed previously, and the recent decision by this Court in Mississippi Department of Employment Security v. Product Connections, LLC., 963 So.2d 1185 (Miss.Ct.App. 2007). In Product Connections, the same claimant, Chatham, applied for unemployment benefits pursuant to work performed for another company, Product Connections, LLC (PC). Id. at 1186(¶ 1). Factually, this case is almost identical to the one before us here. Chatham worked for PC as a demonstrator. As in the present case, MDES found that Chatham was an employee, not an independent contractor. However, on appeal, the circuit court reversed the ruling of MDES, finding that Chatham was an independent contractor. Id. This Court affirmed the circuit court’s ruling finding that the hearing officer misstated the relationship between PC and Chatham and that there was no substantial evidence to support MDES’s decision. Id. at 1189 (¶¶ 11-12).

¶ 19. As we have found EMC’s appeal of the July 21, 2004, decision to be untimely filed, the issue of whether EMC’s demonstration workers are independent contractors or employees is not properly before this Court. We recognize, however, that as a result of this case, Chatham will be considered an employee of EMC, yet as a result of Product Connections, she will be considered an independent contractor of PC for doing basically identical work. While EMC argues that this result is “absurd” and “unfair,” we find that the disparity is caused by EMC’s failure to file a timely appeal, not any error or unfairness in the law. Counsel for MDES stated at oral argument, however, that based upon the untimely appeal, MDES intends to continue to treat all of EMC’s demonstrators, not just Chatham, as employees, rather than as independent contractors, yet will treat demonstrators of all other companies as independent contractors in accordance with our ruling in Product Connections. Counsel admitted that this “could have the appearance of an unfair result” and advised that MDES would look to this Court’s decision in this case to “instruct” it on this matter as to the future classification of such workers. This Court, however, has “no power to issue advisory opinions.” Evans v. Moore, 853 So.2d 850, 855(¶ 24) (Miss.Ct.App.2003) (citation omitted). We cannot, therefore, advise or instruct MDES as to the applicability of the Product Connections decision to EMC’s demonstrators, other than Chatham. The question as to what point in time MDES is required to revisit its treatment of EMC’s demonstrators based on the ruling in Product Connections is not before us. We would, however, trust that in light of MDES’s perception of “the appearance of an unfair result,” MDES would closely scrutinize any authority it believes justifies or requires any continuing inequality of treatment.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The letter was mailed to Russell Hollrah, an attorney located in Washington, D.C., who was apparently representing EMC in that matter.

      . MDES argues that it never received any request to mail notices of its decisions to Grishman, although it admitted at oral argument that it lias made an effort to send notice to attorneys on a customary basis. At the telephonic hearing, the referee asked Grish-man whether there was any communication given to MDES asking that notifications be sent to him. Grishman said that he had no written documentation to that effect.

      . Although EMC vehemently argues that MDES was statutorily obligated to schedule a hearing on the issue within fifteen days of such request, we find this a misstatement of the applicable law. Mississippi Code Annotated section 71-5-365 states: “Upon receipt of such petition within the fifteen days allowed, the commission shall fix the time and place for a hearing and shall notify petitioner thereof.” (Emphasis added). The correct reading of the statute is that if the petition for rehearing is submitted within fifteen days of MDES's assessment of the amount of contributions, then MDES shall fix a time and place for hearing. There is no statutory time limitation on when MDES shall schedule such hearing. In addition, MDES explained in its reply to EMC that the agency had undergone an extensive reorganization during that period, which contributed to the delay.

      . The supreme court stated that: "[T]his Court at this time does not hold that diere is a constitutional requirement for notice to the attorney for the claimant as long as notice to the claimant is ‘reasonably calculated' to apprise the claimant of necessary information.” Booth, 588 So.2d. at 428 (emphasis added).

      . As no employee-wage information was available from EMC, MDES consulted the North American Code Classification for the local-wage information for that class of worker. That amount was then multiplied by the highest number of workers for the given quarter. Using this formula, MDES assessed that the total taxable wages for each quarter at issue was $11,907 (plus interest and penalties).

      . Miss. Dep't. of Employment Sec. v. Product Connections, LLC., 963 So.2d 1185 (Miss.Ct.App.2007).


author: IRVING, J., for the Court.

text:
    Lynn LAUGHLIN, Appellant v. The PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellee.
    No. 2008-SA-00341-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.

      George S. Luter, attorney for appellant.
    Mary Margaret Bowers, attorney for ap-pellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Lynn Laughlin filed an application for disability benefits with the Public Employees’ Retirement System (PERS). The PERS Medical Board (Medical Board) denied Laughlin’s request for benefits after concluding that she was not permanently disabled. Laughlin appealed to the Disability Appeals Committee (Committee), which recommended to the PERS Board of Trustees that the benefits be denied. The Board of Trustees agreed with the recommendation. Laughlin then appealed to the Hinds County Circuit Court, which affirmed the decision of the Board of Trustees. Aggrieved, Laughlin appeals and asserts: (1) that the circuit court erred in finding that PERS’s decision to deny her benefits is supported by substantial evidence and (2) that her due process rights to a fair hearing were violated.

¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 3. On April 11, 2003, Laughlin filed an application for non-duty related disability benefits. Thereafter, on April 22, 2003, she resigned from her position with the Calhoun County Public School System after working for over ten years as a teacher. The Medical Board first reviewed Laughlin’s case on August 28, 2003. A PERS disability benefit analyst requested that Dr. David Collipp, a former member of the Medical Board, perform an independent medical examination of Laughlin.

¶ 4. Dr. Collipp examined Laughlin on October 7, 2003. He noted that Laughlin had undergone neck surgery sixteen years earlier and had undergone followup neck surgery in 1999. Dr. Collipp also noted that Laughlin had had a second surgery in 1999. Additionally, Dr. Collipp stated that Laughlin was evaluated for bursitis of her left hip and that she complained of neck, low back, left hip, right hand, and right arm pain.

¶ 5. Dr. Collipp’s physical examination revealed that Laughlin had no abnormal pain behaviors or pain magnification. He concluded that Laughlin had normal tone and motor power for her bilateral upper and lower limbs, as well as normal bilateral upper and lower limb ranges of motion, which included her shoulders, elbows, wrists, digits, hips, knees, and anides. Dr. Collipp also noted that Laughlin had a decreased cervical range of motion. Dr. Collipp also made the following notation: “[n]ormal gross mental status examination is demonstrated, with some passive-aggressive, and narcissistic personality traits noted.” Finally, Dr. Collipp concluded that Laughlin is capable of performing the work described in her job description.

¶ 6. Thereafter, on November 3, 2003, the Medical Board denied Laughlin’s request for disability benefits, finding that “there was insufficient objective evidence to support the claim that [her] medical condition prevents [her] from performing [her] duties as described as a [t]eacher.” Laughlin then appealed to the Committee on December 29, 2003, and PERS’s executive director, Frank Ready, set a hearing for January 24, 2004. Laughlin’s attorney promptly requested a continuance. He asked that the hearing be postponed until April. Ready granted Laughliris request for a continuance; however, he declined to set the hearing for April, setting it instead for February 20, 2004. Again, Laughlin’s attorney requested that the hearing be scheduled for a later date, arguing that he had not had sufficient time to determine if Laughlin’s medical files were complete. Ready denied Laughliris attorney’s request and noted that Laughlin’s attorney would have had sufficient time to review Laughliris medical records by the February 20 hearing date.

¶ 7. At the beginning of the hearing on February 20, the parties introduced a composite exhibit consisting of Laughlin’s medical file, membership file, and the PERS staff data sheet. The medical file contained the statement and medical records of the following additional physicians who had examined or treated Laughlin: Drs. R. Franklin Adams, O. Lynn Ham-blin, Edward R. Field, and R.A. McGuire. Laughliris admission and discharge records from Baptist Memorial Hospital for June 18, 2003, July 12 and 23, 1999, and September 20, 1999, were also included in the medical file.

¶ 8. Dr. Adams, a rheumatologist, noted that Laughliris principle diagnosis was scoliosis and spondylosis and her secondary diagnosis was fibromyalgia. Dr. Adams also noted that Laughlin’s “disability is manifest mainly by [the] level of pain.” However, on the “Statement of Examining Physician” form that Dr. Adams completed, he did not indicate that Laugh-lin suffered any permanent partial impairments, nor did he indicate whether she had reached maximum medical improvement. Also, Dr. Adams did not list any restrictions on the form where such restrictions were called for. After a thorough review of Dr. Adams’s medical records, we did not find any suggestion by Dr. Adams that Laughlin, despite experiencing severe pain, was permanently disabled. Dr. Hamblin declined to make a determination as to whether Laughlin was disabled because she concluded that she was not qualified to do so. On the other hand, Dr. Field, who completed his “Statement of Examining Physician” form on May 5, 2003, stated that he had seen Laughlin thirteen times in the last year and noted that she was at maximum medical improvement as of the date that he completed the form. Dr. Field concluded that Laughliris principal diagnosis was left SI joint dysfunction, which he opined was severe and that her secondary diagnosis was left pes bursitis, which he opined was mild. However, he did not find that Laughlin suffered from any permanent partial impairments, and as to restrictions, he stated the following: “self-limiting — pain reports with prolonged standing, walking, and sitting; pain reported with squatting and bending.” According to Dr. Field, Laugh-lin had a fair prognosis for recovery. Dr. McGuire, a back specialist, noted that Laughliris principal diagnosis was mild bursitis and concluded that she has a good prognosis for recovery. Dr. McGuire also concluded that Laughlin had reached maximum medical recovery.

¶ 9. During the hearing, Laughlin was examined by Drs. Joseph Blackston and Mark Meeks, as well as by a hearing officer. Laughlin testified about her duties as a teacher and the medical problems that she had experienced. She explained that she was employed as a computer applications teacher and that she taught over a hundred students per day, about twenty-one students per hour. Laughlin also testified that in addition to her classroom duties, she was required to work “outside duty5’ for an hour each day and “ball game duties” approximately three times a year.

¶ 10. During her examination by Dr. Blackston, Laughlin stated that even though she returned to work following her neck surgeries in 1999, she continued to have pain in her neck and right shoulder. Laughlin also stated that she still experiences pain in her arms and weakness in her right arm. Specifically, Laughlin testified that her right arm has been weaker than her left arm since the surgery that she had approximately fifteen years earlier. Dr. Blackston noted that Laughlin had been referred to Dr. Field, an orthopedic surgeon, by Dr. Adams. Dr. Blackston pointed out that Dr. Field diagnosed Laughlin as having scoliosis and referred her to Dr. McGuire. Laughlin testified that Dr. McGuire concluded that she had developed chronic bursitis in her hip. According to Laughlin, Dr. McGuire suggested that she wait seven months to see if the bursitis cleared up, but she stated that after seven months, the bursitis remained. Laughlin also noted that she only saw Dr. McGuire on that one occasion.

¶ 11. Dr. Blackston asked Laughlin about a functional capacity examination (FCE), which had been performed by David Brick, a licensed, registered occupational therapist. The report, also prepared by Brick, reflects that Laughlin can perform “light medium work.” Dr. Black-ston then asked Laughlin to state what is the heaviest thing she might be required to lift in a given work day. Laughlin responded that she often lifted boxes of computer paper, CPUs, and on occasion, “two-hundred-pound students.” Dr. Blackston then pointed out that according to the FCE, she could lift between twenty and twenty-five pounds. Laughlin then stated that she tries not to exert herself in that manner and added that following the FCE she could not get out of bed for two days. Laughlin testified that most of her problems are with her hips, thighs, shoulder, neck, and arm.

¶ 12. During her examination by Dr. Meeks, Laughlin stated that in December 2002, she had experienced dizziness and pain to the point where she could no longer perform her duties as a teacher. Laughlin further stated that she had been working on a part-time basis since the spring of 2002, per Dr. Adams’s suggestion. Dr. Meeks directed Laughlin’s attention to Dr. Field’s notes from February 14, 2003, following her FCE, wherein he noted that: “[The FCE] showed essentially that she is a light to medium worker. Right now, she is not in school and is much better. She states that she can’t handle the stress of that anymore. She may get a job elsewhere.”

¶ 13. During further questioning by Dr. Meeks, Laughlin described her pain and how that pain is exacerbated by stressful situations. Laughlin explained that she was diagnosed with fibromyalgia in 1999 but noted that Dr. Field does not believe that fibromyalgia exists. Laughlin also noted that the fibromyalgia is secondary to the other problems that she suffers from.

¶ 14. In addition to the statements from Laughlin’s treating physicians, the Committee also considered Laughlin’s principal’s statement that Laughlin cannot perform the job of a teacher. The principal explained:

Teachers are required to constantly monitor students and their work. This requires constant walking, standing and bending over. Long days are frequent due to extra-curricular activities (7:30 a.m.-9:00 p.m.). Fine manipulation skills are constantly required of Ms. Laughlin due to her job as a teacher of computer [classes]. The above dut[ies] are painful for Ms. Laughlin.

¶ 15. Finally, the Committee also considered Brick’s findings that Laughlin met light-medium work ranges during the evaluation and that this would meet or exceed the work ranges required to be a teacher, leading to the ultimate conclusion that “[u]nless there is anything else medically to offer, she could be released back to her full and regular work duties.”

¶ 16. Following the hearing, the Committee recommended to the Board of Trustees that Laughlin’s request for disability benefits be denied, concluding that she is not permanently disabled within the definition provided in sections 25-11-113 and 25-11-114 of the Mississippi Code Annotated (Supp.2008). The Board of Trustees agreed with the Committee’s recommendation, and the circuit court affirmed the Board of Trustees’ decision. Laughlin now appeals.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 17. An appellate court’s “review of an administrative agency’s findings and decisions is limited: ‘an agency’s conclusions must remain undisturbed unless the agency’s order: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights.’ ” Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284(¶ 13) (Miss.2005) (quoting Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425(¶ 11) (Miss.2000)).

¶ 18. Laughlin asserts two reasons for her contention that the circuit court erred in finding substantial evidence to support PERS’s decision to deny her disability benefits. First, she contends that she proved that she meets the statutory definition of' disability, which is defined in Mississippi Code Annotated section 25-11-113(1)(a) (Supp.2008) as:

the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by the Public Employees’ Retirement System (Section 25-11-101 et seq.) that is actually offered and is within the same general territorial work area, without material reduction in compensation....

¶ 19. To support her contention, Laugh-lin argues that the testimonies of two of her former colleagues, Diane Simon and Karen Owens, lend support to her contention that she is disabled to the point that she can no longer perform the duties of a schoolteacher. Simon taught with Laugh-lin during Laughlin’s final years and testified that she often observed that Laughlin appeared to be “almost in constant pain.” Simon farther testified that, as a result, she and other teachers would often cover Laughlin’s “outside duty.” Owens testified that Laughlin often complained about suffering from neck, shoulder, and hip pain.

¶ 20. Second, Laughlin contends that the Committee erred in finding that “there is nothing in the record from Dr. Adams that states Ms. Laughlin is medically disabled.” Laughlin points out that Dr. Adams noted that her “disability is manifest mainly by [the] level of pain.” Accordingly, Laughlin argues that the Committee improperly dismissed her complaints of pain, concluding that it could not award her disability benefits because “[plain, unfortunately cannot be measured objectively.” Laughlin contends that pain can rise to a level that constitutes a disability and relies on Selders v. Sullivan, 914 F.2d 614 (5th Cir.1990) to support her contention.

¶ 21. Before we address the holding in Selders, we return briefly to a discussion of the medical findings of Dr. Adams. Laughlin is correct that Dr. Adams stated that her “disability is manifest mainly by [the] level of pain.” However, a proper assessment of Dr. Adams’s medical findings requires that this statement not be considered in isolation. As noted, Dr. Adams also did not indicate that Laughlin suffered any permanent partial impairment and did not place any restrictions on her. It seems only logical that if Dr. Adams considered Laughlin to be permanently disabled, he would have indicated that she suffered permanent impairment and would have coupled that finding with permanent restrictions. Therefore, we conclude that Dr. Adams was simply expressing an opinion regarding the level of pain that Laughlin was experiencing, rather than expressing an opinion that she was disabled because of the level of pain. We now return to our analysis of Selders.

¶ 22. In Selders, Curtis Selders appealed from the district court’s decision in favor of the Secretary of Health and Human Services which denied his application for Supplemental Security Income benefits following an on-the-job accident. Id. at 616-17. The United States Court of Appeals for the Fifth Circuit affirmed, finding that the decision of the administrative law judge was supported by substantial evidence. Id. at 616-18. The Selders court found as follows:

Selders claims to have the non-exertional impairments of significantly subaver-age mental capacity, chronic pain, and anxiety. Pain may constitute a non-ex-ertional impairment that can limit the jobs a claimant would otherwise be able to perform. There must be clinical or laboratory diagnostic techniques which show the existence of a medical impairment which could reasonably be expected to produce the pain alleged. Pain constitutes a disabling condition under the Social Security Act only when it is “constant, unremitting, and wholly unresponsive to therapeutic treatment.” There was substantial evidence here, however, from which the ALJ could conclude that Selders’[s] pain did not limit his ability to perform light work. The various tests, x-rays, and diagnoses repeatedly indicated that Selders had no significant orthopedic or neurological problems.... There was no medical evidence to support chronic pain of a nature that would limit Selders’[s] work abilities entirely, and several of the doctors who examined him indicated that he could return to work and resume normal activities.

Id. at 618-19 (internal citations omitted). We note at the outset that Selders is distinguishable from our case, as Selders was seeking a determination of disability pursuant to the provisions of the Social Security Act, not pursuant to the provisions of the Mississippi Public Employees’ Retirement System. Nevertheless, we fail to see how Selders helps Laughlin’s position. In fact, it appears that Laughlin and Selders aré similarly situated. As was the case with Selders, no doctor in Laughlin’s case concluded that the pain that she alleges to experience prevents her from returning to work. As a matter of fact, the record reveals the opposite, as Dr. Collipp concluded that Laughlin is capable of working, specifically as a schoolteacher. Further, the FCE specifically indicates that Laugh-lin “could be released ... to her full and regular work duties,” unless there was something else to be offered medically. Each of the physicians’ medical records indicate that Laughlin either had reached maximum medical improvement or that the physicians had nothing else to offer her medically.

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

¶ 24. We now turn to Laughlin’s argument as it relates to her due process rights being violated. It is well settled that “[a]dministrative proceedings should be conducted in a fair and impartial manner, free from any suspicion of prejudice or unfairness.” Dean v. Pub. Employees’ Retirement Sys., 797 So.2d 830, 837(¶ 27) (Miss.2000) (citing McFadden v. Miss. State Bd. of Med. Licensure, 735 So.2d 145, 158(¶ 53) (Miss.1999)). Laughlin asserts that her due process rights to a fair hearing were violated in two respects: (1) when her request for a continuance was denied and (2) when a PERS employee was instructed, during Laughlin’s hearing, not to answer questions regarding the number of independent examinations that Dr. Collipp had performed for PERS in the previous year. We briefly address both of Laughlin’s contentions.

¶ 25. First, Laughlin asserts that Ready erred in denying her attorney’s request that the hearing be scheduled for April because she did not have sufficient time to “ensure that all medical records [were] obtained, that medical reports from treating or consultive physicians that may [have been] helpful to the prosecution of her disability case be obtained, and that lay opinions ... that may be helpful to her case be obtained.” As noted, Laughlin appealed PERS’s initial decision in December 2003, and Ready granted Laughlin’s attorney’s request to postpone the hearing from January 26, the date the hearing was initially scheduled to be heard, until February 20. We find no error with Ready’s decision, as there is nothing in the record which suggests that Ready treated Laugh-lin unfairly or that she was prejudiced by his decision to deny her a continuance. The record reflects that Laughlin had at least forty-two days to gather documents in preparation for the hearing. The record further reflects that on the day of the hearing, Laughlin did not indicate or suggest in any manner whatsoever that she needed additional time or that there were pertinent medical records which she had not been able to obtain. Therefore, we find no merit to this issue.

¶ 26. Second, Laughlin claims that she was not afforded a fair hearing because Ready instructed Sharon Roberts, a PERS employee, not to answer a question regarding the number of independent medical examinations that Dr. Collipp had performed for PERS in the previous year. On this point, the record reflects the following exchange between Roberts and Laughlin’s áttorney:

Q. What was the date of the last time Dr. Collipp reviewed [a case]?
A. Probably in April.
Q. Of 2003?
A. Yes.
Q. Now, I assume Dr. Collipp got paid for his services on the medical board?
A. Yes.
Q. And Dr. Collipp, you would agree, has done in the past independent medical examinations for the Retirement System?
A. I would not—
Q. I said in the past?
A. In the past, but I would say in the last — since I’ve been an analyst, I don’t believe he has because it would be a conflict of interest.
* * * *
Q. But it’s you[r] testimony that Dr. Collipp did not, in any manner, review Ms. Laughlin’s claim.
A. He did not.
Q. Did you ever discuss it with Dr. Collipp whether or not he ever reviewed it?
MS. BOWERS: I’m going to object. She testified that Dr. Collipp was not a member of the medical board. When her case was reviewed, he was no longer reviewing any files with PERS.
MR. LUTER: I’ve got a right to ask a few questions with regard to this case. If she says no, then that’s her answer, but I’ve got a right to ask a few questions of her.
HEARING OFFICER: I think she did answer that. He was no longer on the medical board as of May of 2003.
MR. LUTER: My question was, is she, herself, aware of whether of not Dr. Collipp ever reviewed any of Ms. Laughlin’s file.
A. I’m not aware that he did. Not to my knowledge.
Q. Not to your knowledge. Now, in the past, let’s say year, how many independent medical examinations has Dr. Collipp performed for the Retirement System?
MR. READY: Sharon, don’t answer that.
MR. LUTER: I want the record to reflect that the Executive Director is telling her not to answer.
HEARING OFFICER: I think the record should reflect that she’s already answered [that] she is not aware of any.
MR. LUTER: I just want the record to reflect that the Executive Director, Frank Ready, has directed her not to answer my question about how many independent medical examinations [Dr. Collipp] has performed for the Retirement System this year, and that’s a public record, and he’s directed her not to answer that question.
HEARING OFFICER: I think the record will reflect exactly what happened. Anything else, Mr. Luter?

¶27. Laughlin fails to inform us how the answer to the question of how many independent medical examinations Dr. Col-lipp had performed for PERS in the previous year would have aided her in her quest to receive disability benefits. The critical point of concern is not that Dr. Collipp performed a number of independent medical examinations for PERS but that he did not sit on the Committee that reviewed Laughlin’s claim and Roberts attested to this point. Thus, we fail to see how Ready’s instruction to Roberts denied Laughlin a fair and impartial hearing. We find no merit to this issue.

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

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

      . Dr. Collipp ceased being a member of the Medical Board in May 2003.


author: IRVING, J.,

text:
    CITY OF VICKSBURG, Mississippi and Civil Service Commission of City of Vicksburg, Appellants v. Anthony LANE, Appellee.
    No. 2008-CA-00287-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.

      Nancy Davis Thomas, Vicksburg, Bobby R. Robinson, attorneys for appellants.
    Ramel L. Cotton, Jackson, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. On July 19, 2006, the Board of May- or and Aldermen of the City of Vicksburg (Board) terminated Anthony Lane from the Vicksburg Police Department (VPD). Lane appealed the Board’s decision to the Vicksburg Civil Service Commission (Commission), and the Commission upheld the termination. Lane then appealed the Commission’s decision to the Warren County Circuit Court, which also upheld the termination. However, the circuit court also found that Lane’s July 22, 2005, suspension was issued because he was indicted for criminal charges. The circuit court further found that because Lane was acquitted of those charges, the Board should issue him back pay.

¶ 2. Aggrieved, the Board appeals and asserts: (1) that the circuit court erred in determining that Lane’s July 22, 2005, suspension was “implicitly affirmed” by the Commission and (2) that the circuit court erred in awarding Lane back pay.

¶ 3. We find merit to both issues raised by the Board. Therefore, we reverse and render that portion of the judgment of the circuit court finding that the Commission implicitly affirmed Lane’s suspension and awarding back pay.

FACTS

¶ 4. Lane was employed with the VPD and assigned to work at the Vicksburg High School as a resource officer. The VPD was informed that Lane had been involved with a female student at the school. The VPD investigated the matter, and Lane admitted to having a sexual relationship with the student. On May 12, 2005, the VPD sent Lane a letter informing him that the Board was going to convene at a future date to address the VPD’s recommendation to suspend him for twenty days without pay for conduct unbecoming an officer. The letter further stated that Lane had a right to be present and/or have representation at the Board hearing. Lane chose not to appear. The Board accepted the recommendation of the VPD and ordered the suspension. Lane served the twenty-day suspension and returned to the VPD.

¶ 5. On July 21, 2005, Lane was indicted for sexual battery against a child, and on July 22, 2005, the Board sent Lane a letter suspending him indefinitely without pay because of the indictment. The letter stated that the suspension was to stay in effect “until the court issue[d] a decision.” The letter further stated that if Lane desired to appeal the Board’s decision, he must do so within ten days of the letter’s date. Lane did not appeal.

¶ 6. On June 12, 2006, Lane was acquitted of the charge. Soon after his acquittal, he petitioned for reinstatement to the VPD. The Board’s response was to set a pre-termination hearing instead. Thereafter, the Board terminated Lane on the grounds of “conduct unbecoming an officer, loss of public trust and respect, and violation of his oath as a police officer.”

¶ 7. Lane appealed the termination to the Commission, which affirmed. Lane then appealed to the Warren County Circuit Court. In the circuit court, Lane argued, as he had done before the Commission, that his termination was violative of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The circuit court agreed with the Commission’s decision that double jeopardy did not apply and affirmed the Commission’s decision, upholding Lane’s termination.

¶ 8. Additionally, the circuit court addressed Lane’s July 22, 2005, suspension even though only the termination decision had been appealed. The court’s order stated in pertinent part:

The Court now addresses the second suspension of [Lane] on July 22, 2005. Said suspension was without pay and was implicitly affirmed by the order of the Civil Service Commission.
The second suspension was brought due to [Lane] being indicted by Warren County Grand Jury. The suspension letter of July 22, 2005 stated in part that “... the Board of Mayor and Alderman met in a Special Call Meeting on Thursday[,] July 21, 2005 and voted to suspend [Lane] indefinitely without pay because of the charges filed against [Lane]. [Lane’s] suspension will stay in effect until the Court issues a decision. ...”
It is unquestioned that the charges referred to in said letter were the criminal charges in the Circuit Court of Warren County. Since a jury of Warren County after a trial, found [Lane] not guilty and a judgment of acquittal was rendered by the Circuit Court, then the suspension without pay was without merit. [Lane] having been acquitted of the criminal charges that he was suspended for should have been reimbursed for said time that he was suspended without pay. That time specifically being from July 22, 2005 (date of second suspension letter) until the date of July 19, 2006 (date of termination letter).

(Emphasis added).

¶ 9. Additional facts, as necessary, will be addressed in the analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. The civil service commission reviews the employment decisions of a city to remove, suspend, demote, or discharge a civil service employee. Miss. Code Ann. § 21-31-23 (Rev.2007). A commission is authorized to reverse a city’s disciplinary action if it was made for political reasons, religious reasons, or was not made in good faith for cause. Id. Decisions of the commission are appealed to the circuit court of the county within which the municipality is located. Id. On appeal, the circuit court’s standard of review is limited to determining whether the act of the commission was or was not made in good faith for cause. Id. In City of Jackson v. Froshour, 530 So.2d 1348, 1355 (Miss.1988) (quoting City of Meridian v. Hill, 447 So.2d 641, 643 (Miss.1984)), our supreme court stated the appellate court’s standard of review as follows:

On appeal here, the question before [the appellate court] is whether or not the action of the Civil Service Commission was in good faith for cause. Intertwined with this question is whether or not there was substantial evidence before the Civil Service Commission to support its order and whether it is arbitrary, unreasonable, confiscatory, and capricious.

¶ 11. Here, the Board argues that the circuit court erred in finding that the July 22, 2005, suspension of Lane was “implicitly affirmed” by the Commission because the July 22, 2005, suspension was not appealed to the Commission as required by law. We find this argument persuasive.

¶ 12. Section 21-31-23 states that “[n]o person in the classified civil service ... shall be removed, suspended, demoted or discharged, or any combination thereof, except for cause.... ” The statute further describes the appellate process afforded to a civil service employee when he has been removed, suspended, demoted, or discharged by his employer. The statute states in pertinent part:

Any person so removed, suspended, demoted, discharged or combination thereof may, within ten (10) days from the time of such disciplinary action, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. The investigation shall be confined to the determination of the question of whether such disciplinary action was or was not made for political or religious reasons and was or was not made in good faith for cause. ...
⅜ ⅜ ⅜ ⅜
The findings of the commission shall be conclusive and binding unless either .the accused or the municipality shall, within thirty (30) days from the date of the entry of such judgment or order on the minutes of the commission and notification to the accused and the municipality, appeal to the circuit court of the county within which the municipality is located.
***‡
The said circuit court shall thereupon proceed to hear and determine such appeal. However, such hearing shall be confined to the determination of whether the judgment or order of removal, discharge, demotion, suspension or combination thereof made by the commission, was or ivas not made in good faith for cause, and no appeal to such court shall be taken except upon such ground or grounds.

(Emphasis added).

¶ 13. The only disciplinary action that Lane appealed was his termination, which occurred on July 19, 2006. Pursuant to section 21-31-23, the circuit court was confined strictly to a determination of whether the termination was made in good faith for cause. Lane did not appeal the suspension that was given him on July 22, 2005. Had he desired to appeal that suspension, he was required to do so within ten days of July 22, 2005. Further, the July 22, 2005, suspension was not mentioned anywhere in Lane’s notice of appeal of his termination. It follows then that, according to section 21-31-23, the only matter that could have come before the circuit court on appeal was the termination. Accordingly, the circuit court lacked jurisdiction to address the July 22 suspension and, therefore, erred in finding that the Commission “implicitly affirmed” the suspension.

¶ 14. Next, the Board argues that the circuit court erred in ordering back pay to Lane. As previously stated, the circuit court determined that the July 22 suspension was based on the outcome of Lane’s criminal trial, and since the trial resulted in an acquittal, the suspension lacked merit. However, since Lane did not appeal that suspension, the circuit court did not have jurisdiction to address any consequences which may have flowed from it.

¶ 15. Since the circuit court addressed the suspension, notwithstanding its lack of jurisdiction, we briefly address this issue also to dispel any notion that the Board owes Lane back pay. In deciding that Lane was entitled to back pay, the cii'cuit court heavily relied on the following language from the letter suspending Lane:

The Board of Mayor and Alderman met in a Special Call Meeting on Thursday July 21, 2005 and voted to suspend you indefinitely without pay because of the charges filed against you. Your suspension will stay in effect until the Court issues a decision. ...

(Emphasis added). After noting the language quoted above, the circuit court stated:

It is unquestioned that the charges referred to in said letter were the criminal charges in the Circuit Court of Warren County. Since a jury of Warren County after a trial, found [Lane] not guilty and a judgment of acquittal was rendered by the Circuit Court, then the suspension without pay was without merit.

However, the circuit court failed to address the remaining contents of the letter. The suspension letter further stated that “the Vicksburg Police Department will review your employment status with them once your legal issues have been resolved.” From this language, it cannot be concluded that the Board promised Lane that he would be given back pay or reinstated if he were acquitted. The only promise made to Lane was that his employment status would be “reviewed” after the case was over. Upon a review of his employment status, the Board decided that because of additional disclosures made during the trial, Lane’s employment should be terminated.

CONCLUSION

¶ 16. We find that the decision of the Commission was made in good faith for cause and that there was substantial evidence before the Commission to support its order. Therefore, we reverse and render that portion of the judgment of the circuit court finding that the Commission implicitly affirmed Lane’s suspension and awarding back pay.

¶ 17. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Lane did not file a cross-appeal challenging the portion of the judgment upholding his termination.


author: KING, C.J., for the Court.

text:
    Sarah ATTABERRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00878-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.

      Sarah Attaberry, Appellant, pro se.
    Office of the Attorney General, by Billy L. Gore, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Sarah Attaberry filed her motion for post-conviction relief on February 14, 2008. The Circuit Court of Jones County denied the motion. Aggrieved, Attaberry appeals, raising the following four issues:

I. Whether she received ineffective assistance of counsel;
II. Whether she was properly indicted for burglary;
III. Whether the trial judge erred by not recusing himself from her case; and
IV. Whether she entered an intelligent and voluntary guilty plea.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Attaberry was indicted for burglary under cause number 2006-78-kr2, alleging that she broke and entered the residence of Diane Haggins in Laurel, Mississippi with the intent to steal. She was also indicted for burglary and grand larceny under cause number 2006-268-kr2, alleging that she broke and entered the home of Elizabeth Mulloy in Laurel, Mississippi with the intent to steal and that she felo-niously took jewelry belonging to Zane Lambert with the intent to permanently deprive her thereof.

¶ 3. The cases were consolidated, and on March 30, 2007, Attaberry entered a guilty plea to all charges. After a thorough inquiry, the trial court accepted Attaberry’s plea as knowing and voluntary. On the first count of burglary, the trial court sentenced her to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years of post-release supervision. On the second count of burglary, the trial court sentenced her to serve fifteen years in the custody of the MDOC, with five years suspended and five years of post-release supervision. On the charge of grand larceny, the trial court sentenced her to serve ten years in the custody of the MDOC. All sentences were ordered to run concurrently. The trial court also ordered Attaberry to participate in the trial court’s community service program; to pay a $2,000 fine; and to pay restitution to the victims.

¶ 4. On February 14, 2008, Attaberry filed her motion for post-conviction relief, arguing that she received ineffective assistance of counsel and that her plea was involuntary. The trial court dismissed the motion, finding that Attaberry failed to voice any objection to her trial counsel’s representation during the guilty plea proceeding, and she entered an intelligent and voluntary guilty plea. Aggrieved, Attaber-ry timely filed this appeal.

ANALYSIS

¶ 5. Mississippi Code Annotated section 99-39-11(2) (Rev.2007) provides that a trial court may dismiss a motion for post-conviction relief “[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....” When reviewing the trial court’s dismissal of a motion for post-conviction relief, this Court will not disturb the trial court’s findings of fact unless they are clearly erroneous. Williams v. State, 872 So.2d 711, 712(2) (Miss.Ct.App.2004). However, issues of law are reviewed de novo. Id.

I. Ineffective Assistance of Counsel

¶ 6. To succeed on a claim of ineffective assistance of counsel, the defendant must prove that: (1) her trial counsel’s performance was deficient, and (2) that trial counsel’s deficiency prejudiced her defense. Cole v. State, 918 So.2d 890, 894(10) (Miss.Ct.App.2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a “strong but rebuttable presumption that [trial counsel’s] performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Covington v. State, 909 So.2d 160, 162(4) (Miss.Ct.App.2005) (citing Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). The defendant may rebut this presumption upon a showing that her trial counsel committed “unprofessional errors of substantial gravity,” and but for trial counsel’s errors, she would not have entered a guilty plea. Cole, 918 So.2d at 894(10) (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)).

¶ 7. Attaberry claims that her trial counsel failed to adequately represent her and failed to prepare a reasonable defense. She also claims that her trial counsel failed to inform her that her prior criminal history would not be a factor during her guilty plea proceeding. To prove that trial counsel’s pretrial preparation was insufficient, the defendant “must provide specific acts or omissions by [her] attorney which would create substantial questions of fact concerning [her] attorney’s assistance.” Rankins v. State, 839 So.2d 581, 583(8) (Miss.Ct.App.2003). Besides her bare assertions, Attaberry has failed to provide this Court with any specific acts or omissions which would cause us to question her trial counsel’s assistance. Thus, this argument is without merit.

¶ 8. Next, Attaberry claims that her trial counsel erred by not requesting that the trial judge recuse himself from her case based upon him previously being victimized and his personal relationship ■with two of the victims in her case. Based upon the circumstances surrounding a case, a judge must recuse himself if a reasonable person knowing all of the circumstances would doubt whether the judge could remain impartial. Brooks v. State, 953 So.2d 291, 295(15) (Miss.Ct.App.2007). “There is a presumption that a judge is impartial and unbiased in every case before him.” Id. Thus, the defendant must prove allegations of bias beyond a reasonable doubt. Id. at 296. Besides her bare allegations, Attaberry provides no evidence or affidavits in support of her allegations that would cause us to question the trial judge’s impartiality.

¶ 9. This Court has held that “[i]f a prisoner’s motion for post-conviction relief does not contain any affidavits, other than the prisoner’s own to support the prisoner’s allegations, then the motion may be dismissed.” Brown v. State, 963 So.2d 577, 579(9) (Miss.Ct.App.2007) (quoting Edwards v. State, 796 So.2d 1040, 1042(5) (Miss.Ct.App.2001)). Attaberry’s bald allegations of ineffective assistance of counsel are insufficient to pass the Strickland test. Thus, we find that the trial court did not err by dismissing Attaberry’s claim of ineffective assistance of counsel.

II. Indictment for Burglary

¶ 10. On appeal, Attaberry argues that she was not properly indicted for burglary. Once again, Attaberry claims that her trial counsel failed to investigate the circumstances surrounding her case, suggesting that there was no evidentiary basis for the crimes charged. Specifically, she argues that nothing was taken from the victims’ homes; one of the victims threatened to murder her; and another victim made inappropriate sexual advances toward her. Attaberry also maintains that she was under the influence of mood altering substances during the commission of these crimes. She contends that the foregoing should have been mitigating factors in regard to her sentencing.

¶ 11. In this assignment of error, Attaberry essentially attempts to persuade this Court that she did not commit the crimes to which she pled guilty. However, “[t]he question of a petitioner’s guilt will not be litigated on appeal.” Roby v. State, 861 So.2d 368, 371(11) (Miss.Ct.App.2003). A review of the record reveals that Attaberry failed to raise any objection regarding her indictment before entering her guilty plea. She also admitted that there was a legal and factual basis for the entry of her plea. By entering her guilty plea, Attaberry waived any complaints regarding non-jurisdictional defects in the indictment. See Hentz v. State, 852 So.2d 70, 76(17) (Miss.Ct.App.2003). She also failed to raise any error regarding her indictment to the trial court in her motion for post-conviction relief. Thus, we are procedurally barred from considering this issue on appeal. See Harris v. State, 811 So.2d 373, 374(7) (Miss.Ct.App.2001).

¶ 12. Attaberry argues that the circumstances surrounding her case should have been mitigating factors in her sentence. However, sentencing is within the sound discretion of the trial court, and this Court will not disturb the sentence as long as it is within the limits prescribed by the law. Jones v. State, 976 So.2d 407, 414(23) (Miss.Ct.App.2008). Attaberry does not argue that her sentence is outside of the permissible sentencing range. Thus, we do not find any error on behalf of the trial court in regard to her sentence. This argument is without merit.

III. Recusal

¶ 13. Attaberry maintains that the trial judge was biased against her because he had been burglarized twice, and he had a personal relationship with two of the victims involved in her case. Thus, she argues that the trial judge erred by not recusing himself from her case.

¶ 14. As previously discussed, there is a presumption that a trial judge is impartial and unbiased in every case which comes before him. Brooks, 953 So.2d at 295(15). Attaberry never filed a motion requesting the trial judge to recuse himself from her case. Besides her bare allegations, Attaberry has not provided this Court with any affidavits to support her allegations of bias against the trial judge. A motion for post-conviction relief may be dismissed if the petitioner does not provide affidavits in support of her allegations. Brown, 963 So.2d at 579(9). Attaberry has failed to provide any evidence rebutting the presumption, and we do not find anything in the record which would cause us to question the trial judge’s impartiality. Accordingly, we find that this issue is without merit.

IV. Intelligent and Voluntary Guilty Plea

¶ 15. Before accepting a defendant’s guilty plea, the trial court must determine that: (1) the defendant entered an intelligent and voluntary guilty plea, and (2) there was a factual basis for the guilty plea. Grimes v. State, 812 So.2d 1094, 1096(6) (Miss.Ct.App.2001) (quoting URCCC 8.04(A)(3)).

¶ 16. Attaberry argues that her trial counsel told her that the trial judge' had been burglarized, thereby intimidating her and forcing her to enter a guilty plea. Besides her bare assertion, she offers no evidence in support of this allegation. During her guilty plea proceeding, the trial judge asked Attaberry if anyone had threatened her into entering her guilty plea, and she assured him that she was not threatened. The trial judge asked her if she was satisfied with her trial counsel’s assistance, and she said that she was. The trial judge also asked Attaberry if she was under the influence of drugs, and she stated that she was not. Based on Attaberry’s sworn responses during her guilty plea proceeding, the trial judge found that she entered an intelligent and voluntary guilty plea. We find no evidence that Attaberry entered her guilty plea under any coercion or threat.

¶ 17. Next, Attaberry argues that she was never informed that she was ineligible for parole, and if she had known that she was ineligible for parole, she would not have entered a guilty plea. The supreme court has held that:

It will, not be suggested by anybody that, before accepting a plea of guilty to an offense with respect to which parole is a possibility the judge must determine whether the defendant understands the nature of parole, his eligibility therefor, and the circumstances in which it may thereafter be granted. The reason is, of course, that eligibility for parole is not a “consequence” of a plea of guilty, but a matter of legislative grace. It is equally true that noneligibility for parole is not a “consequence” of a plea of guilty.

Alexander v. State, 605 So.2d 1170, 1173-74 (Miss.1992) (quoting Ware v. State, 379 So.2d 904, 907 (Miss.1980)). Because it is not required that a defendant be informed of her eligibility for parole before entering her guilty plea, we find that this issue is without merit.

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

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