author: CARLSON, Presiding Justice,

text:
    Michael KELLY v. STATE of Mississippi.
    No. 2010-KA-01923-SCT.
    Supreme Court of Mississippi.
    Feb. 23, 2012.

      Robert D. Evans, Greenville, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. On February 1, 2009, Michael Kelly was charged with reckless driving at the location of the ZipTrip Store in Hum-phreys County. On March 5, 2009, Kelly was found guilty of this charge in justice court, and he paid a fine of $114. Arising out of the same facts, a Humphreys County grand jury handed down a two-count indictment against Kelly on September 10, 2009. Count I charged Kelly with the aggravated assault of Tiffany Walker (by hitting Walker while driving his truck). Count II charged Kelly with felony malicious mischief for the destruction of a Master-Bilt outdoor ice machine. Count II of the indictment is not an issue in today’s case.

¶ 2. Kelly moved for dismissal of his indictment, asserting his double-jeopardy rights. The trial court denied Kelly’s motion. Aggrieved, Kelly filed with us a Petition for Permission to Appeal from an Interlocutory Order, and a three-justice panel of this Court granted Kelly’s petition pursuant to Beckwith v. State, 615 So.2d 1134, 1146 (Miss.1992), to consider’s Kelly’s double-jeopardy claim. Having now considered the merits of Kelly’s double-jeopardy claim, we affirm the trial court’s denial of Kelly’s motion to dismiss.

JURISDICTION

¶ 3. Since this is an appeal simply from the denial of a motion to dismiss, an obvious issue is whether we have jurisdiction to consider it. Generally, an appeal may be taken in a criminal case only from a final judgment. Miss.Code Ann. § 9-3-9 (Rev. 2002). However, in certain limited circumstances, we may entertain interlocutory appeals. Beckwith, 615 So.2d at 1142-43; Miss. R.App. P. 5.

¶ 4. In our seminal decision in Beckwith, we held that, “[b]ecause of the unique nature of the denial by a circuit court of a colorable double jeopardy claim, involving as it does the Constitutional right not to be prosecuted for the offense, it is final. This Court is authorized to treat it as a ‘final judgment’ ... [under] Miss.Code. Ann. § 9-3-9....” Beckwith, 615 So.2d at 1146.

¶ 5. In Beckwith, this Court cited Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) for the proposition that “the double jeopardy clause protected an accused beyond that of being twice convicted for the same offense, it protected the accused ‘against being twice put to trial for the same offense.’ ” Beckwith, 615 So.2d at 1138 (emphasis in original). Hence,

[o]rders denying motions to dismiss an indictment on double jeopardy ... grounds are likewise immediately ap-pealable ... Refusals to dismiss an indictment for violation of the Double Jeopardy Clause ... are truly final and collateral, and the asserted rights ... would be irretrievably lost if review were postponed until trial is completed.

Id. at 1141.

¶ 6. The United States Supreme Court is in accord with our position on this jurisdictional issue, as it has held that “pretrial orders rejecting claims of former jeopardy ... constitute ‘final decisions’ and thus satisfy the jurisdictional prerequisites of 28 U.S.C. § 1291.” Abney, 431 U.S. at 662, 97 S.Ct. at 2042. See also Flanagan v. United States, 465 U.S. 259, 270, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978).

¶ 7. Consistent with today’s discussion, we find that prejudgment double-jeopardy appeals are reviewed on an interlocutory basis; therefore Kelly’s double-jeopardy claim is properly before this Court.

WHETHER DOUBLE JEOPARDY APPLIES IN THIS CASE

¶ 8. “We apply a de novo standard of review to claims of double jeopardy.” Boyd v. State, 977 So.2d 329, 334 (Miss.2008) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)). “The constitutional protection at issue, commonly known as the double-jeopardy clause, is enforceable against the states through the Fourteenth Amendment. Its protection prohibits, inter alia, multiple punishments for the same offense.” Boyd, 977 So.2d at 334 (citing Brown, 731 So.2d at 599). “[A] conviction can withstand [a] double-jeopardy analysis only if each offense contains an element not contained in the other.” Boyd, 977 So.2d at 334 (citing Powell v. State, 806 So.2d 1069, 1074 (Miss.2001)). “If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both.” Id.

¶ 9. Kelly argues that reckless driving is a lesser-included offense of aggravated assault in this case. Since Kelly entered a plea of guilty to reckless driving, he argues that to try him for aggravated assault would violate the prohibition against double jeopardy. Both the United States and Mississippi Constitutions provide protections against double jeopardy, providing in the case of the U.S. Constitution that no “person [shall] be subject for the same offense to be twice put in jeopardy of life or limb.... ” U.S. Const, amend. V. See also Miss. Const, art. Ill § 22 (1890). There is no argument but that the two charges arose out of the same set of facts.

¶ 10. This guarantee, enforceable against the states through the Fourteenth Amendment, assures three separate protections: (1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense. U.S. v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). This case deals with the protection against a second prosecution for the same offense after conviction.

¶ 11. The trial court applied the double-jeopardy test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Block-burger test instructs courts to determine whether each offense contains an element not present in the other; if not, they are labeled the same offense, for double-jeopardy purposes. The rule plainly states that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger 284 U.S. at 304, 52 S.Ct. 180. This Court has held that “[t]o determine whether double-jeopardy protections apply, we look to the ‘same-elements’ test prescribed by the United States Supreme Court in Blockburger .... ” Graves v. State, 969 So.2d 845, 847 (Miss.2007) (internal citation omitted).

¶ 12. In today’s case, Kelly was found guilty of misdemeanor reckless driving. Mississippi Code Section 63-3-1201 (Rev. 2004) states:

Any person who drives any vehicle in such a manner as to indicate either a wilful or wanton disregard for the safety of persons or property is guilty of reckless driving. Reckless driving shall be considered a greater offense than careless driving.

The present indictment against Kelly cites Mississippi Code Section 97-3-7(2)(a) (Rev. 2006), which states:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

Applying this test, the trial court held that, to prove aggravated assault, no element requires proof of a willful or wanton disregard for the safety of person or property. The trial court also held that to prove reckless driving, no element requires proof of injury nor attempt to injure. Therefore, the trial court found that each offense had elements not contained in the other and denied Kelly’s motion to dismiss.

¶ 13. Kelly argues that it was error for the trial court to make its decision solely based on Blockburger, and in particular urges the application of a different test from Grady v. Corbin, 495 U.S. 508, 509, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Kelly further argues that this Court has recognized that reckless driving, under certain conditions, is a lesser offense of aggravated assault, which would invoke his double-jeopardy rights. See Brooks v. State, 18 So.3d 833, 841 (Miss.2009). Kelly cites the case of Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2227-28, 53 L.Ed.2d 187 (1977), which held that a “greater offense is ... by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Kelly also attempts an analogy to Illinois v. Vitale, 447 U.S. 410, 419-20, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). The United States Supreme Court, in Vitale, stated that if “a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses [of manslaughter and failing to reduce speed] are the same .... trial on the latter charge would constitute double jeopardy....” Id. at 419-20, 100 S.Ct. 2260.

¶ 14. In response, the State argues that Grady was explicitly overruled by U.S. v. Dixon, 509 U.S. at 704, 113 S.Ct. 2849. The State contends that, according to Dixon, both Brown and Vitale merely stand for the proposition that it is double jeopardy to prosecute for a lesser-included offense after a defendant already has been prosecuted for the greater offense. The State further argues that Brooks established only that reckless driving could be a lesser offense for the purposes of jury instructions, not that it was a lesser-included offense in the double-jeopardy setting.

¶ 15. Kelly cites Grady for the proposition that “the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element to an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady, 495 U.S. at 508, 110 S.Ct. 2084. Unfortunately for Kelly, that holding in Gh-ady was explicitly overruled in Dixon. The Dixon Court found that the “same-conduct” rule of Grady was wholly inconsistent with other Supreme Court precedent and the “clear common-law understanding of double jeopardy,” instead reinstating the “same-elements” test of Blockburger. Dixon, 509 U.S. at 711, 113 S.Ct. 2849. Kelly’s attempt to invoke the dead letter of the Grady rule cannot prevail. The standard for double-jeopardy analysis is the Block-burger “same-elements” test, not the Grady “same-conduct” test.

¶ 16. Dixon similarly clarified and put into context two other cases on which Kelly relies—Brown v. Ohio and Illinois v. Vitale, both of which stand for the proposition that prosecution of a lesser-included offense is barred by prior prosecution of a greater-included offense. See Brown v. Ohio, 432 U.S. 161, at 168, 97 S.Ct. 2221, and Illinois v. Vitale, 447 U.S. at 419-20, 100 S.Ct. 2260. Dixon found that the holding in Brown “rests squarely upon the existence of a lesser included offense.” Dixon, 509 U.S. at 706, 113 S.Ct. 2849. Similarly, Vitale is “merely an application of the double jeopardy bar to lesser and greater included offenses.” Dixon, 509 U.S. at 707, 113 S.Ct. 2849.

¶ 17. Kelly argues that Mississippi has recognized that, under certain conditions, reckless driving is a lesser offense of aggravated assault. Kelly bases this argument on his reading of our decision in Brooks. In that case, a defendant was charged with aggravated assault, and this Court held that the defendant was entitled to a jury instruction on the lesser-nonin-eluded offense of reckless driving “the same as if it were a lesser-ineluded charge.” Brooks, 18 So.3d at 839-40 (citing Moore v. State, 799 So.2d 89, 91 (Miss.2001)). The argument that this analogy to a lesser-ineluded charge, in the context of jury instructions, transforms reckless driving into an actual lesser-ineluded charge of aggravated assault for double-jeopardy purposes has no merit. The Court specifically held in Brooks that “reckless driving is a separate and distinct offense from aggravated assault” and is a nonincluded offense of that crime. Brooks at 839. Furthermore, in Brooks, we specifically held that aggravated assault does not have the same elements as reckless driving:

There is no intent requirement in the reckless-driving statute, which simply criminalizes driving a vehicle in a manner that indicates a wilful or wanton disregard for the safety of persons or property. Miss.Code Ann. § 63-3-1201 (Rev. 2004). Therefore, the evidence to support a verdict of guilt of reckless driving does not necessarily prove guilt of aggravated assault, under Rowland, because a conviction for aggravated assault requires proof of intent. Rowland, 531 So.2d at 631-32.[]

Brooks, 18 So.3d at 841. Kelly’s argument that this Court has recognized reckless driving as a lesser-ineluded offense of aggravated assault for double-jeopardy purposes is meritless.

CONCLUSION

¶ 18. The United States Supreme Court made clear in Dixon that the standard for a double-jeopardy analysis of two charges arising out of the same facts remains the Blockburger “same-elements test,” which likewise remains the rule in Mississippi as set out in Graves v. State, 969 So.2d 845, 847 (Miss.2007). The law is that prosecution of a greater offense, for double-jeopardy purposes, bars the prosecution of any lesser offense included therein. However, this Court has never held that reckless driving may be a lesser-ineluded offense of aggravated assault for double-jeopardy purposes. Indeed, each charge contains elements that the other does not. To prove aggravated assault, it is not necessary to prove the element of willful or wanton disregard for the safety of person or property, nor of driving a vehicle. To prove reckless driving, it is not necessary to prove the elements of injury or attempt to injure. Since each of these charges contains separate elements, the prosecution of Kelly for aggravated assault does not violate his double-jeopardy rights, and that contention is without merit.

¶ 19. For the reasons discussed, the Humphreys County Circuit Court order denying Michael Kelly’s motion to dismiss his aggravated-assault indictment is affirmed, and the case is remanded to the circuit court for further proceedings consistent with this opinion.

¶ 20. AFFIRMED AND REMANDED.

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

      . Count I of the indictment, charging Kelly with aggravated assault, stated, inter alia, that Kelly had caused “serious bodily injury to Tiffany Walker ... by driving his truck at a high rate of speed ... hitting her with [his] truck.”

      . Rowland v. State, 531 So.2d 627 (Miss.1988).


source: Caselaw Access Project

license: Public Domain

text:
    Arvind KUMAR, Individually and d/b/a Holiday Inn of Columbus, Tony Savage and Tracey Savage v. Shanna LOPER.
    No. 2009-CT-02037-SCT.
    Supreme Court of Mississippi.
    Feb. 23, 2012.

      John W. Crowell, Columbus, attorney for appellants.
    Dewitt T. Hicks, Jr., Columbus, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court:

¶ 1. Arvind Kumar, individually and d/b/a Holiday Inn of Columbus, Tony Savage, and Tracey Savage (defendants) appeal the Lowndes County Circuit Court’s denial of their motion to set aside a default judgment which was entered against them based on a complaint filed by Shanna Lop-er. Before the complaint was filed, the defendants’ attorney, Ed Pleasants, had written a letter to Loper’s attorney denying Loper’s claims. However, once the complaint was filed in circuit court, the defendants did not file a formal answer to the complaint. The only further communication Loper’s counsel received from Pleasants was a phone call stating that he would no longer be representing the defendants. After a default judgment as to liability was entered, without notice to the defendants, the circuit court set a date for a hearing to assess damages, again without notice to the defendants. The Court of Appeals found that, since the defendants had clearly expressed their intent to defend against Loper’s claims, they were entitled to notice prior to the entry of the default judgment. Thus, the Court of Appeals reversed the judgment of the Lowndes County Circuit Court and remanded the case for further proceedings. Thereafter, we granted Loper’s petition for a writ of certiorari. We vacate the judgment of the Court of Appeals and remand the case for further proceedings.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Arvind Kumar operated the Holiday Inn in Columbus. Tracey Savage managed the bar and lounge at the Holiday Inn. Two of the employees Tracey supervised were her son, Tony Savage, who cleaned and stocked the bar, and her cousin, the plaintiff, Shanna Loper, who worked as a cocktail waitress. Loper held the job for four months.

¶ 3. The circumstances surrounding Lop-er’s leaving her employment on July 25, 2008, are disputed. The defendants allege that Loper was fired because she forged a customer’s credit-card ticket and offered sex for money to another customer. In addition, the defendants allege that Loper drank on the job and made unwanted sexual contacts with customers and other employees. Loper claims that she was not fired, but rather quit the position because she was sexually harassed by Tony.

¶ 4. On August 6, 2008, counsel for Lop-er sent a demand letter to Kumar asserting claims of sexual harassment and intentional infliction of emotional distress. On August 18, 2008, Kumar’s attorney, Pleas-ants, responded to Loper’s demand letter. He stated that his letter served as notice that he was representing the defendants in this matter, and that the defendants denied Loper’s claims. The attorneys also exchanged several e-mails about certain evidence related to Loper’s claims, and Pleasants consistently maintained that the defendants denied all claims. No efforts to resolve the claims were ever made.

¶ 5. On December 9, 2008, Loper filed her complaint in the circuit court. In her complaint, Loper asserted that Tony had sexually harassed her at work, and that Tracey and Kumar were responsible for Tony’s actions, in their capacities as Tony’s supervisor and employer, respectively. However, the defendants alleged that Lop-er’s actual employer was Mit-Sar, LLC, a limited-liability company controlled by Ku-mar and his wife. Mit-Sar is not a party in this case. Tony was served with process on December 9, 2008. Kumar and Tracey were served on December 12, 2008.

¶ 6. After the complaint had been filed, Loper’s attorney spoke with Pleasants, who stated that he no longer represented the defendants and that he thought another local attorney, Taylor Smith, might be handling the case. However, neither attorney, nor any other attorney, ever made an appearance on behalf of the defendants, and no answer was ever filed. Sometime thereafter, the defendants became unable to locate Pleasants.

¶ 7. The circuit court entered a default judgment as to liability on February 24, 2009, and a hearing was held later to determine damages. Again, the defendants were not provided notice of the hearing. On June 11, 2009, the circuit court entered an order awarding Loper $100,000 in damages, for which Kumar, Tracey, and Tony were jointly and severally liable. Thereafter, Kumar’s attorney discovered the existence of the default judgment while representing Kumar in an unrelated matter.

¶ 8. On June 17, 2009, the defendants filed a motion to set aside both the judgment as to liability and the award of damages. On August 11, 2009, the defendants filed an answer denying liability and setting out several affirmative defenses. At the hearing to set aside the default judgment, Tracey testified that she had called Pleasants after the defendants had received Loper’s demand letter. Pleasants had responded with a copy of a letter stating that he was representing the defendants in the matter. Tracey testified that she was aware that she had thirty days to answer the complaint, and that she had weekly contact with Pleasants inquiring as to the status of filing an answer.

¶ 9. Tracey stated that Pleasants brought her a copy of the answer and told her that it had been filed within the time allowed. She offered her copy of the answer into evidence at the hearing. In Tracey’s copy of the answer, the date line was left blank, stating: “Respectfully submitted, this the _th day of January, 2009.” Tracey testified that, as she believed that the answer had been filed, she had no reason to believe that further action was required on her part at that time. She stated that she was waiting on their attorney to let her know what to do next. She said that she was shocked to learn that a default judgment had been entered against them.

¶ 10. Following the hearing on the defendants’ motion to set aside the default judgment, the circuit court found that no one had made an appearance on behalf of the defendants, and that, therefore, they were not entitled to notice of the hearing on the default judgment. Thus, the defendants’ motion to vacate the default judgment was denied. Aggrieved, the defendants appealed, and this Court assigned the case to the Court of Appeals.

PROCEEDINGS BEFORE THE COURT OF APPEALS

¶ 11. The Court of Appeals reversed and remanded, finding that the letter from the defendants’ original attorney to Lop-er’s counsel, although sent prior to the filing of the complaint, sufficiently expressed the defendants’ intent to defend against Loper’s claims. Kumar v. Loper, 80 So.3d 833, 836, 2011 WL 2185588 at *4, ¶ 18 (Miss.Ct.App.2011), reh’g denied (Aug. 30, 2011), cert. granted, 73 So.3d 1168 (Miss.2011). Hence, the Court of Appeals opined that the defendants were entitled to three days’ notice of the hearing on the default judgment. Based on this reasoning, the Court of Appeals did not address the three-prong test to be applied in determining whether the trial court abused its discretion in refusing to set aside the default judgment. Thereafter, Loper filed a petition for writ of certiorari, which this Court granted.

DISCUSSION

¶ 12. The standard of review for a circuit court’s denial of a motion to set aside a default judgment is abuse of discretion. American States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (Miss.2009) (citing Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987)). “On questions of law, appellate courts use a de novo standard of review.” Estate of Davis v. O’Neill, 42 So.3d 520, 524 (Miss.2010) (citations omitted). The trial court’s “discretion must be exercised in accordance with the provisions of Rules 55(c) and 60(b) as well as the supplementary criteria given validity in the decisions of this Court.” Pittman, 501 So.2d at 388.

I. Whether a Letter Sent Before a Case is Filed May Constitute an Appearance.

¶ 13. In her petition for writ of certio-rari, Loper argues that the Court of Appeals erred by holding that the circuit court committed error when the circuit court found that the letter from the defendants’ attorney to Loper’s counsel, sent prior to the filing of the complaint, did not constitute an appearance under Mississippi Rule of Civil Procedure 55(b). We agree with Loper.

¶ 14. Rule 55(b) requires, in part, that “[i]f the party against whom judgment by default is sought has appeared in the action, he (or if appearing by a representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application....” Miss. R. Civ. P. 55(b). The comment to this rule states that the purpose of this notice requirement is “to protect those parties who, although delaying in a formal sense by failing to file pleadings within the thirty day period, have otherwise indicated to the moving party a clear purpose to defend the suit.” Miss. R. Civ. P. 55(b) cmt.

¶ 15. This Court’s caselaw has liberalized the definition of an “appearance” for Rule 55(b) purposes. In Holmes v. Holmes, 628 So.2d 1361, 1363-64 (Miss.1993), this Court held as follows:

Traditionally, for an action to constitute an appearance, one had to file documents in or actually physically appear before a court. Trust Co. Bank. v. Tingen-Millford Drapery Co., 119 F.R.D. 21, 22 (E.D.N.C.1987). Today, however, those requirements have been relaxed considerably for Rule 55 purposes. “Courts now look beyond the presence or absence of such formal actions.... ” Lutomski v. Panther Valley Coin Exchange, 653 F.2d 270, 271 (6th Cir.1981). The appearance commanded by Rule 55(b) has been defined broadly and interpreted liberally and is not limited to formal court appearances. Heleasco Seventeen, Inc. v. Drake, 102 F.R.D. 909, 912 (D.Del.1984).

Id. at 1363-64 (citations omitted). This Court has held that “[o]nce a party has made an indicia of defense or denial of the allegations of the complaint such party is entitled to at least three days[’] written notice of the application for default judgment.” Wheat v. Eakin, 491 So.2d 523, 525 (Miss.1986).

¶ 16. The Court of Appeals noted that the language of defense counsel’s letter, responding to Loper’s demand letter, submitted before Loper filed her complaint commencing suit, indicated a clear intent to defend against Loper’s claims. This Court has recognized that informal contacts between parties, including the exchange of letters, might constitute an appearance under Rule 55(b). Holmes, 628 So.2d at 1364 (citing H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 692 (D.C.Cir.1970)). Loper argued that the letter was insufficient in this case because it was sent before the complaint was filed, and that, thus, the present facts were distinguishable from those in Holmes. The Court of Appeals was not persuaded by this logic, and found this case to be analogous to Holmes. Kumar v. Loper, 2009-CA-02037-COA *3, ¶¶ 16-17.

¶ 17. The Court of Appeals further noted that Loper was aware of the defendants’ express intent to defend against Loper’s claims, yet Loper moved for a default judgment without any notice to the defendants or to their attorney. The Court of Appeals cited its own precedent in Tucker v. Williams, 7 So.3d 961, 967-68 (Miss.Ct.App.2009), in which it held that “[a] statement that one will file a counterclaim is obviously a statement indicative of intent to defend a claim. Consequently, the Williamses were obligated to provide Tucker and H & G’s attorney three days’ notice of the hearing on their application for default judgment....” Id.

¶ 18. The defendants further cite Rogillio, 10 So.3d at 476, to support their position. In Rogillio, this Court refused to set aside a default judgment against American States, where that entity relied on a discussion between its claims specialist and Rogillio’s attorney. Id. at 475. The contents of that discussion were disputed as to any announcement of intent to defend and contest coverage. This Court also surveyed several previous cases and announced:

Although an appearance need not be a formal entry of appearance or a physical presence in court, in the illustrative cases summarized above, the defendants either 1) served or sent a document to the plaintiff indicating in writing the defendant’s intent to defend, 2) filed a document with the court indicating in writing the defendant’s intent to defend, or 3) had counsel communicate to opposing counsel the defendant’s intent to defend.

Id. at 476.

¶ 19. Mississippi Rule of Civil Procedure 3(a) provides that “[a] civil action is commenced by filing a complaint with the court.” Miss. R. Civ. P. 3(a). The comment provides that “[t]he purpose of Rule 3(a) is to establish a precise date for fixing the commencement of a civil action. The first step in a civil action is the filing of the complaint with the clerk or judge. Accord, Bacon v. Gardner, 23 Miss. 60 (1851).” Miss. R. Civ. P. 3 cmt. This Court’s precedent is well settled that an appearance for the purposes of notice under Mississippi Rule of Civil Procedure 55(b) need not be so formal as a motion in court, and that an exchange of letters may suffice. However, in the cases cited by the parties and by the Court of Appeals, such communication always took place after a case had been commenced by filing a complaint in court. This Court has never gone so far as to hold that an appearance may occur before an action has been filed; that is, legally commenced.

¶ 20. Neither Holmes, Tucker, nor Rogillio, nor any other authority of which we are aware, involves a case factually similar to today’s case, where the sole alleged appearance occurred before the complaint was filed. Thus, today we find that, for Rule 55(b) purposes, an appearance cannot be entered before a case has been filed. No “free pass” is available for parties who preemptively but informally respond to potential complaints, but fail, in due diligence, to respond to the actual complaint later filed in court. Parties are not required to be aware of all informal communication concerning related matters occurring in the months, and sometimes years, leading up to the filing of a formal complaint, which officially commences the litigation in court. Instead, we hold that the appearance requirement under Mississippi Rule of Civil Procedure 55(b) cannot be satisfied until after an action has been commenced in court as provided under Mississippi Rule of Civil Procedure 3(a).

¶ 21. The defendants also make the argument that the call from Pleasants to Loper’s attorney, stating that he no longer represented the defendants and that Taylor Smith might be taking over their representation, constituted an appearance. We are not persuaded by this argument. That telephone call did not include indicia of defense or denial of the allegations of the complaint. It did not meet the requirements of a Rule 55(b) appearance.

¶ 22. The defendants in this case did not enter an appearance under the meaning of the rule, and therefore did not qualify for notice of the hearing. Thus, we are constrained to find that the Court of Appeals erred in finding that the defendants made an appearance, for Rule 55(b) purposes. But this finding does not end our inquiry.

II. Whether the trial court abused its discretion in refusing to set aside the default judgment.

¶ 23. We now turn to our review of the circuit court’s failure to grant the defendants’ motion to set aside the default judgment. Mississippi Rule of Civil Procedure 55(c) states that “[f]or good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Getting straight to the point, given the clear weight of our caselaw, as well as the facts and circumstances peculiar to this particular case, the circuit court’s failure to grant the defendants’ motion to set aside the default judgment constituted an abuse of discretion.

¶ 24. This Court has stated that “[wjhere there is a reasonable doubt as to whether or not a default judgment should be vacated, the doubt should be resolved in favor of opening the judgment and hearing the case on its merits.” McCain v. Dauzat, 791 So.2d 839, 843 (Miss.2001) (quoting Southwestern Sur. Ins. Co. v. Treadway, 113 Miss. 189, 199, 74 So. 143, 146 (1917)). This Court will not reverse unless the trial court has abused its discretion, however, such “discretion must be exercised in accordance with the provisions of Rules 55(c) and 60(b) as well as the supplementary criteria given validity in the decisions of this Court.” Guaranty Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987). Mississippi Rule of Civil Procedure 60(b) provides, in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

Miss. R. Civ. P. 60(b).

¶25. This Court has stated that “[ajscertaining the meaning of the provisions of Rule 55(c) and Rule 60(b)(5) and (6) with any degree of precision simply may not be done for the language is hopelessly open textured. A consideration of the criteria of those rules together boils down almost to a balancing of the equities. ...” Pittman, 501 So.2d at 388. As a result, this Court applies a three-prong balancing test, considering:

(1)the nature and legitimacy of the defendant’s reasons for his default, i.e., whether the defendant has good cause for the default;
(2) whether [the] defendant in fact has a colorable defense to the merits of the claim, and
(3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.

Rogillio, 10 So.3d 463, 468 (citing H & W Transfer & Cartage Serv., Inc. v. Griffin, 511 So.2d 895, 898 (Miss.1987)).

¶ 26. The first prong of this test favors the defendants. In analyzing this prong, this Court has examined the “story” of the defendants and, taking it as true, considered whether it amounted to good cause. H & W Transfer & Cartage Serv., 511 So.2d at 899 (Miss.1987). This Court has stated that “[a]s a general rule, the ‘extraordinary relief provided for by Rule 60(b), will be granted ‘only upon an adequate showing of exceptional circumstances,’ and gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief.” Accredited Sur. & Cas. v. Bolles, 535 So.2d 56, 58 (Miss.1988) (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)). Here, the defendants claim that they maintained regular contact with their attorney, Pleasants. The defendants state that their attorney informed them that he had filed an appearance, and even showed them an undated copy of the answer he claimed to have filed. This undated copy of the answer is in the record.

¶ 27. Under these facts, the defendants were not aware of, and ought not reasonably to have been aware of, this failure, or of their attorney’s purported withdrawal from the case. The defendants were never made aware of the attorney’s withdrawal, and they believed that he was still diligently defending their case. Tracey testified that, since she was told by Pleasants that the answer had been filed, she had no reason to believe that further action was required on her part at that time. While it is the responsibility of the parties to ensure that their attorneys diligently represent them, this sort of egregious misconduct on the part of the attorney (taking Tracey’s testimony to be true for the purposes of discussing the issue before us) was not common or predictable. This misconduct went beyond negligence, ignorance, or carelessness and constituted exceptional circumstances. The defendants did everything that prudent defendants would be expected to do in such circumstances. Hence, we find that the defendants had good cause for their default.

¶ 28. The second prong strongly favors the defendants. The defendants deny Loper’s allegation of sexual harassment. The defendants, indeed, deny that Loper ever quit due to the alleged harassment; they allege that Loper was fired after, among other things, fraudulently using the credit card of a customer and forging that customer’s signature, and offering to perform sexual acts for a different customer in exchange for money. Thus, the defendants unquestionably have a colorable defense to the merits of the claims asserted by Loper.

¶ 29. The final prong is the nature and extent of the prejudice which may be suffered by the plaintiff if the default judgment is set aside. The fact that Lop-er would be forced to continue pursuing this litigation is not considered “cognizable prejudice.” Bailey v. Georgia Cotton Goods Co., 543 So.2d 180, 183 (Miss.1989). However, this Court has found that the fact that “the injured plaintiff is without a resolution to her claim for that period of time [i.e., the period of delay caused by the defendant’s default]” constitutes prejudice. Pittman, 501 So.2d at 388. Of course, this Court is sensitive to such concerns in a case of alleged sexual harassment and consequent emotional distress. Thus, the third prong weighs in Loper’s favor.

¶ 30. However, in noting the prejudice to the plaintiff if the default judgment is set aside, as this prong requires, we also note the prejudice to the defendants caused by the default judgment, which we have found was entered through no lack of diligence on their part. If the circuit court’s judgment were allowed to stand, the defendants would be compelled to surrender $100,000 to Loper, without an appropriate opportunity to defend themselves.

¶ 31. Although the defendants extensively briefed the three-prong test in both their Motion to Set Aside the Default and their Motion for Reconsideration, the trial judge did not explicitly address this three-prong test in his orders denying those motions. Both orders, however, claim to have reviewed the relevant pleadings. The defendants allege that the trial judge did not, in fact, apply the three-prong test required by this Court’s case-law. That claim cannot be evaluated based on the record before us. However, we can state with certainty that, if the trial judge failed to apply the test, he abused his discretion. On the other hand, even if the trial judge did apply the familiar three-prong test, we are constrained to find on the record before us that it was an abuse of discretion not to grant the defendants’ motion to set aside the default.

¶ 32. The Comment to Mississippi Rules Civil Procedure 1 states that “[p]roperly utilized, the rules will tend to discourage battles over mere form and to sweep away needless procedural controversies that either delay a trial on the merits or deny a party his day in court because of technical deficiencies.” In today’s case, the circuit court denied the defendants their day in court due to a technical deficiency that was outside the scope of their knowledge.

CONCLUSION

¶ 33. While the requirements for an appearance under Mississippi Rule of Civil Procedure 55(b) are liberal, an appearance cannot occur before an action is commenced: that is, before a complaint or other formal pleading has been filed to commence the legal action in court. Therefore, we respectfully disagree with the reasoning of the Court of Appeals that a letter sent before the filing of a case may constitute an appearance. Nevertheless, the circuit court’s denial of the defendants’ motion to set aside the default judgment was an abuse of discretion, under the three-prong analysis that this Court must apply. We thus vacate the judgment of the Court of Appeals. This case is reversed and remanded to the Circuit Court of Lowndes County for further proceedings consistent with this opinion.

¶ 34. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS REVERSED AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

      .The defendants were listed as "Arvind Ku-mar, Individually and d/b/a Holiday Inn of Columbus, Bhavna Kumar, Tony Savage and Tracey Savage." Bhavna Kumar, Arvind Ku-mar’s ex-wife, although named as a defendant, was never served with process, and she has never entered an appearance.

      . At oral arguments, counsel stated that Pleasants had "disappeared off the face of the earth.”

      . Since Bhavna Kumar had never been served with process, judgment was not entered against her.

      . "(1) the nature and legitimacy of the defendant’s reasons for his default, i.e., whether the defendant has good cause for the default....”

      . "(2) whether [the] defendant in fact has a colorable defense to the merits of the claim....”


author: KING, C.J.,

text:
    Timothy W. JORDAN, Glenn E. Grose and Johnny Grose, Appellants v. STATE of Mississippi, Appellee.
    No. 2008-KA-01761-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2010.
    Rehearing Denied June 7, 2011.
    Certiorari Granted Sept. 8, 2011.
    Certiorari Dismissed Feb. 16, 2012.

      George T. Holmes, Leslie S. Lee, Hunter Nolan Aikens, Joshua Aaron Turner,
    Jackson, Alan Todd Alexander, Oxford, attorneys for appellants.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. In 2006, Krystal Jordan, Timothy Jordan, Glenn Grose, and Johnny Grose were indicted for sexual battery, gratification of lust, and child neglect of A.B., Krystal and Tim’s then three-year-old daughter. Krystal pled guilty to three counts of sexual battery and felony child abuse. Because the trial court denied Tim’s motion for a severance, the remaining defendants underwent a joint trial where Krystal testified against them. All three men were convicted of the charges. Aggrieved, Tim, Glenn, and Johnny appeal separately, raising several issues for the Court’s review.

For the sake of judicial efficiency, we have grouped their issues as follows:

I. Did the trial court err by denying Tim’s motion for severance;
II. Did the trial court err by allowing the State to amend the dates contained in the indictment, expanding the time in which the alleged offenses occurred;
III. Did the trial court err by allowing improper hearsay testimony, including the forensic interview, to be admitted into evidence under the tender-years exception;
IV. Did the trial court err by allowing the State to ask Krystal leading questions;
V. By allowing Camelia Fondren and Pammie Davidson to testify, did the trial court erroneously allow improper legal opinions, comments on the evidence, and bolstering of Krystal’s veracity;
VI. Did the trial court err by not allowing the defense to cross-examine Gloria Hollis Becerril regarding her pending drug charge; and
VII. Is the verdict against the overwhelming weight of the evidence?

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Numerous witnesses testified during this trial. Because the State bore the burden of proving that the defendants committed the crimes charged beyond a reasonable doubt, we will focus on the State’s witnesses.

I. The State’s Case-In-Chief

a. Martha Hester Grose

¶ 3. Martha Hester Grose is A.B.’s maternal great-grandmother. Martha testified that on October 30, 2005, she had received Tim’s permission to keep A.B. for a few days. On the first night, A.B. complained of pain whenever she urinated and during her bath. Curious, Martha looked and saw that A.B.’s legs and inner thighs were red. Martha asked A.B. if anyone had “hurt her down there,” and A.B. replied yes. Martha testified that A.B. named Tim, Krystal, Johnny, and Glenn as the perpetrators. Martha did not report the alleged abuse that night.

b. Gloria Hollis Becerril

¶ 4. The next morning, Martha took A.B. to Gloria Hollis Becerril, who is A.B.’s maternal grandmother, and relayed A.B.’s allegations to Gloria. Gloria checked the child’s genitalia and saw that it was red and “raw.” Gloria questioned A.B. about the alleged abuse; and again, A.B. named Krystal, Tim, Glenn, and Johnny as the perpetrators. Gloria testified that A.B. specifically told her that Tim had sexually assaulted her in the shower. Afterwards, Gloria called the Department of Human Services (DHS) to report the alleged abuse.

¶ 5. Gloria also testified regarding A.B.’s behavior following the allegations of sexual abuse. A.B. would masturbate, grab peoples’ private parts, express a desire to touch someone or to have someone touch her, abuse the family dog, physically assault and fondle her baby sister, and simulate oral sex with food.

¶ 6. On cross-examination, Gloria testified that she was afraid that A.B. would accuse her of sexual abuse. The defense elicited from Gloria that she once had a sexual relationship with Glenn and also questioned Gloria about her pending drug charge.

c.Rhiannon Shaw

¶ 7. Before this incident, DHS had received a few anonymous calls regarding Krystal’s drug abuse, alleged prostitution, and possible child neglect. On October 31, 2005, Rhiannon Shaw, a DHS family protection specialist, received a phone call from Gloria. Gloria reported that A.B.’s bottom was “raw” and that A.B. had disclosed that Krystal, Tim, Glenn, and Johnny had touched her inappropriately. Shaw instructed Gloria not to question A.B. anymore, and she immediately scheduled a forensic interview and medical examination of A.B.

¶ 8. Via a two-way mirror, Shaw observed the forensic interview, which was conducted on November 3, 2005, by Ejeera Joiner of Family Crisis Services. The jury viewed the forensic interview. After-wards, Shaw was questioned about the interview. Shaw testified that A.B. stated that Krystal, Tim, Glenn, and Johnny had touched her “nu-nu.” A.B. also said that Tim, Glenn, and Johnny touched her “nu-nu” with their penises, and A.B. demonstrated the acts using anatomically correct dolls.

¶ 9. During cross-examination, Shaw testified that AB.’s statements were inconsistent at times, and Joiner did lead A.B. on some questions. For instance, A.B. did not name Glenn as a perpetrator until Joiner asked about Glenn specifically. Also, Joiner asked A.B. about her grandmother, and A.B. stated that her grandmother had touched her as well.

d.Tomiko Mackey

¶ 10. Tomiko Mackey, a licensed clinical social worker, was accepted as an expert in the field of forensic interviewing. Through Finding Words Mississippi, Mackey conducted forensic interviews and trained others in the field.

1111. Mackey testified that Joiner had followed the proper protocol during A.B.’s forensic interview. But Mackey took issue with some of Joiner’s methods of questioning. First, Mackey indicated that Joiner had asked A.B. several questions at once without giving her an opportunity to respond. Second, Mackey mentioned several times that Joiner had questioned A.B. about the defendants in groups instead of addressing each defendant individually. And third, Mackey testified that Joiner had improperly led A.B. when she inquired about Glenn.

¶ 12. Despite these issues, Mackey observed that A.B. was able to disclose the events, and she consistently named Tim, Glenn, and Johnny as the perpetrators. As a result, Mackey opined that AB.’s disclosures were consistent with those of a child who had been sexually abused,

e.Dr. Thomas Fowlkes

¶ 13. Dr. Thomas Fowlkes, who specializes in emergency medicine and correctional medicine, treated Krystal for alcohol and drug abuse and psychiatric illness while she was incarcerated at the Lafayette County Detention Center. Dr. Fowlkes testified that Krystal had expressed a desire to commit suicide, so he prescribed her an antidepressant. Dr. Fowlkes also put Krystal on antipsychotic medication. When asked about Krystal’s mental capacity, Dr. Fowlkes testified that Krystal was tested and determined to be mildly retarded, which stemmed from her drug use.

f.Krystal Jordan

¶ 14. Krystal admitted she had a history of drug abuse, and she had a sexual relationship with all three defendants. Krystal stated that AB.’s sexual abuse began when she was pregnant with C.B., Krystal and Tim’s youngest daughter. During Krystal’s pregnancy, Tim asked Krystal if he could have sex with A.B. Krystal agreed, and she assisted Tim in sexually penetrating the child while they were in the shower. Krystal testified that A.B. screamed and yelled for help during the sexual assault. During subsequent sexual assaults, Krystal drugged the child with Lortab to keep her calm. Krystal also testified that Tim sexually assaulted A.B. a second time in their home.

¶ 15. After C.B. was born in May 2005, Krystal and Tim, along with their children, moved to Johnny’s trailer. Krystal testified that Tim continued to sexually abuse A.B. Eventually, Glenn found out about Tim’s acts and requested to have sex with A.B. as well; Krystal obliged. Krystal described one incident in which Glenn and Tim took turns sexually assaulting A.B. When Johnny learned that the other men were having sex with A.B., he requested to have sex with her as well. Johnny is wheelchair bound and suffers from rheumatoid arthritis, making it difficult for him to use his hands. Because of Johnny’s physical impairments, Krystal helped Johnny sexually assault A.B. by removing their clothes and by sitting A.B. on top of Johnny. Krystal also described how she taught A.B. to perform oral sex on Johnny. Krystal testified that, in total, Glenn had sex with A.B. approximately three or four times, and Johnny had sex with A.B. twice.

¶ 16. On cross-examination, the defense presented several letters that Krystal wrote to the defendants while they were incarcerated; Krystal denied writing some of the letters. However, in these letters, Krystal maintained her innocence and that of the defendants. When questioned regarding specific passages in the letters, Krystal claimed that she could not recall what her words meant. The defense also questioned Krystal about her plea agreement. Krystal had difficulty answering the questions, but she did acknowledge that she received a plea deal and stated that she did not think the State would take away her plea deal if she did not testify against the defendants.

g. Pammie Davidson

¶ 17. Pammie Davidson was employed with the district attorney’s office as the victim’s advocate coordinator, and she helped prepare Krystal for trial. The State questioned Davidson about prior statements that Krystal made to her regarding Tim, Glenn, and Johnny. The defense objected on the ground of hearsay. However, the trial court allowed Davidson’s testimony as a prior consistent statement under Mississippi Rule of Evidence 801(d)(1)(B).

h. Camelia Fondren

¶ 18. Next, the State called Krystal’s attorney, Camelia Fondren. The defense objected arguing that: (1) Fondren was not disclosed as a witness; (2) they were not prepared to examine her; (3) any information that Fondren could relay was protected by the attorney/client privilege; and (4) Fondren’s testimony would amount to hearsay. The State countered that Fondren’s testimony was admissible as a prior consistent statement under Mississippi Rule of Evidence 801(d)(1)(b). The trial court allowed Fondren’s testimony and gave the defense an opportunity to question Fondren before she took the stand.

¶ 19. On direct-examination, Fondren testified about the particulars of Krystal’s plea agreement with the State. Fondren stated that she had talked to Krystal extensively about her involvement in the crimes against A.B. Krystal admitted to Fondren that she had helped Tim, Glenn, and Johnny sexually assault A.B. Based on this, Fondren felt as if Krystal was justified in pleading guilty to the charges. Fondren approached the State to negotiate a plea deal for Krystal. The State offered to recommend that Krystal serve a total of twenty years with ten years suspended in exchange for her cooperation in this case.

¶ 20. During Fondren’s cross-examination, the defense elicited that Krystal was also charged with sexual battery against Martha. On the same day that Krystal entered her guilty plea, this charge of sexual battery was dropped.

¶ 21. After Fondren’s testimony, the defense moved for a mistrial. The defense argued that Fondren’s testimony was improper opinion testimony and prejudicial to the defendants. The defense argued that Fondren’s testimony was used to suggest that since Krystal pled guilty, Tim, Glenn, and Johnny were also guilty.

¶ 22. The trial court ruled that the defense opened the door to Fondren’s testimony by implying that Krystal’s plea deal was obtained by fraud. Further, the trial court explained that this made the testimony relevant and admissible as to whether there was a legitimate basis for Krystal’s guilty plea. Accordingly, the trial court denied the motion.

i. Dr. Tanya King

¶ 23. Dr. Tanya King, a pediatrician with training in the area of child abuse and neglect, examined A.B. at the request of DHS. Dr. King testified that A.B.’s genitalia were red and inflamed. She found bruising on both sides of the opening of A.B.’s vagina. Dr. King testified that A.B.’s hymen was not torn. But a young girl’s vagina is small, and the hymen is recessed, making it difficult for the perpetrator to totally penetrate the child. Also, Dr. King testified that A.B.’s anus was dilated, which typically results from repeated penetration by an object. Dr. King testified that she had never seen a child’s anus damaged to that degree.

j. Robin Smith

¶ 24. Robin Smith was A.B.’s therapist. She testified that A.B. consistently disclosed to her that Krystal, Tim, Glenn, and Johnny had touched her inappropriately. Smith also testified regarding A.B.’s behavioral issues. A.B. used vulgar language, exhibited cruelty toward the family dog and her sister, touched other children and adults inappropriately, expressed desires to touch someone or to have someone touch her, rubbed the private parts of models in magazine ads, and ate her own feces. Smith testified that A.B.’s behavior was consistent with that of a child who has been sexually abused. . Smith also stated that A.B. would revert to these behaviors whenever she was questioned about her sexual battery, which negatively impacted A.B.’s psychological health.

II. Timothy Jordan’s Case-In-Chief

¶ 25. Tim’s character witnesses testified that Tim was a good father and would not hurt his child. In addition, Alice Jordan, Tim’s mother, and Danielle Fortner, Tim’s niece, testified that they babysat A.B. A.B. never complained to them about vaginal pain, and they did not notice anything abnormal about the child’s genitalia. Also, Donald Jordan and Carlee Hudson, two of Tim’s siblings, testified that they never heard the child complain of genital pain.

¶ 26. Tim admitted to using drugs and drinking alcohol. Tim also admitted having knowledge of Krystal’s extramarital affairs, including participating in a ménage á trois with Glenn and Krystal. But Tim denied sexually abusing his daughter. Tim testified that he did not know that A.B. was sexually abused in 2005, and he did not think that Glenn or Johnny would hurt A.B. Tim also testified regarding several letters Krystal wrote to him while he was incarcerated. In those letters, Krystal proclaimed their innocence and denied knowing who had sexually abused A.B.

III. Glenn Grose’s Case-In-Chief

¶ 27. Glenn presented several character witnesses, who testified that Glenn would not harm a child. The witnesses also acknowledged Glenn’s drug and alcohol problem. Stacey Lindsey, who dated Glenn, testified that Glenn could not function sexually when he was intoxicated or “high.”

¶ 28. Glenn admitted that he had a history of drug and alcohol abuse. He also testified that he does not like to have sex when he is “using.” Glenn also admitted participating in a ménage á trios with Tim and Krystal. But Glenn stated that A.B. was asleep on the floor during the sexual encounter, and the child was not involved in the act. Glenn testified that he had no idea that A.B. was being sexually abused. Glenn mentioned several other men who had been around A.B., but he did not suggest that the other men were responsible for A.B.’s sexual battery. Glenn also testified that Krystal had written him several letters while he was incarcerated. In those letters, Krystal proclaimed their innocence and stated that she did not know who had sexually assaulted A.B.

IV. Johnny Grose’s Case-In-Chief

¶ 29. Johnny presented several witnesses, who testified about his physical condition, general character, and interactions with A.B. Sherry Powell, Johnny’s home health nurse testified that Johnny was wheelchair bound and had rheumatoid arthritis, which made it difficult for him to use his hands. Margie Tidwell, Johnny’s sister, relayed the same information about Johnny’s physical condition. Tidwell observed A.B. around Johnny, and she testified that there was not much interaction between the two. Also, Tidwell disclosed that she made the initial report to DHS because Krystal was not taking care of her children and having sex with three of her brothers, which caused arguments in their family. Mary Sue Williams, Johnny’s ex-girlfriend, testified that she and Johnny were sexually intimate. But because of Johnny’s physical condition, sex was difficult, and she had to do all of the “work.”

¶ 30. Johnny admitted having a sexual relationship with Krystal. He denied sexually abusing A.B. and testified that he had no knowledge that A.B. was being sexually abused.

ANALYSIS

I. Motion for Severance

¶ 31. Tim argues that the trial court erred by denying his motion for severance. Glenn and Johnny did not join in this motion. The State argues that neither defendant implicated each other in the alleged crimes; thus, Tim suffered no prejudice and severance was not required.

¶ 32. The grant or denial of a motion for severance is within the trial court’s sound discretion. Sanders v. State, 942 So.2d 156, 158 (¶ 10) (Miss.2006) (quoting Uniform Rule of Circuit and County Court 9.03). Thus, we review the trial court’s ruling for an abuse of discretion. Id.

¶ 33. Co-defendants are not automatically entitled to separate trials. Id. at (¶ 11). When determining whether to grant or deny a motion to sever, the trial court considers (1) whether a co-defendant attempts to exonerate himself at the expense of another co-defendant, and (2) whether the weight of the evidence goes more to the guilt of one co-defendant over another. Id. In this case, the trial court ruled that there was no evidence that the co-defendants’ defenses were in conflict.

¶ 34. Tim maintains that his defense and that of his co-defendants were diametrically opposed, and all sought to exculpate themselves at the expense of the others. On the contrary, a review of the record shows that neither co-defendant implicated another co-defendant in the crime. In fact, Tim testified that he did not think Glenn and Johnny would hurt A.B. Also, the evidence did not go more toward the guilt of any one defendant over the other. We find that the defendants were not prejudiced by the joint trial. Thus, the trial court did not abuse its discretion by denying Tim’s motion for severance.

II. Amendment to the Indictment

¶ 35. Initially, each count of the indictment alleged that the event occurred in a particular month. But the State amended each count in the indictment expanding the time to stretch over several months. Tim, Glenn, and Johnny argue that the trial court erred by allowing the State to amend the indictment because: (1) it was an improper amendment to the substance of the indictment; (2) changing the dates was prejudicial to their defense; (3) the amendment , made all of the counts identical; and (4) the amendment confused the jury.

¶ 36. An indictment may not be amended if the amendment is one of substance, except by action of the grand jury. Spears v. State, 942 So.2d 772, 774 (¶ 6) (Miss.2006). But the indictment may be amended if the change is simply to the form of the indictment. Id. “It is well settled ... that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Id. (quoting Miller v. State, 740 So.2d 858, 862 (¶ 13) (Miss.1999)).

¶ 37. Mississippi Code Annotated section 99-7-5 (Rev.2007) specifically addresses allegations of time in an indictment and provides that:

An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly....

Moreover, Uniform Rule of Circuit and County Court 7.06 provides that the failure to state the correct date in an indictment does not render the indictment insufficient.

¶ 38. Time is not an essential element of the crimes of sexual battery, gratification of lust, and child abuse. See Miss. Code Ann. § 97-3-95(l)(d) (Rev.2006); Miss.Code Ann. § 97-5-23 (Rev.2006); Miss.Code Ann. § 97-5-39(l)(c) (Rev. 2006). Therefore, the amendment was one of form; thus, it was allowable. Tim’s, Glenn’s, and Johnny’s defenses were simply that they had not sexually abused A.B. This defense could have been presented no matter what dates were alleged in the indictment. See Leonard v. State, 972 So.2d 24, 29 (¶ 18) (Miss.Ct.App.2008). Thus, we find that the defendants were not prejudiced by the amendment to the indictment. This issue is without merit.

III. Tender-Years Exception, Forensic Interview, and Hearsay

¶ 39. Tim, Glenn, and Johnny argue that the tender-years exception was not properly applied in this case because: (1) A.B. was not unavailable to testify; (2) A.B.’s statements were not reliable, including those made during the forensic interview; and (3) the statements were testimonial in nature, violating their right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 40. When reviewing the admission of evidence, we will not disturb the trial court’s ruling absent a finding of abuse of discretion. Hobgood v. State, 926 So.2d 847, 852 (¶ 11) (Miss.2006). Under Mississippi Rule of Evidence 803(25), statements made by a child regarding sexual abuse may be admissible as an exception to the hearsay rule. In pertinent part, the trial court must determine that: (1) “the time, content, and circumstances of the statement provide substantial indicia of reliability”; and (2) the child “is unavailable as a witness ... [and] there is corroborative evidence of the act.” Id.

¶ 41. The supreme court has held “that there is a rebuttable presumption that a child under the age of twelve is of tender years.” Veasley v. State, 735 So.2d 432, 436 (¶ 16) (Miss.1999). At the time these alleged events occurred, A.B. was three years old. Thus, there existed a re-buttable presumption that A.B. was a child of tender years. Based on A.B.’s behavioral issues, Smith, A.B.’s therapist, opined that further questioning about the events would negatively affect A.B.’s mental health. We find that the trial court did not abuse its discretion by determining that A.B.’s health and welfare would be greatly affected by testifying and that she was unavailable as a witness. See Britt v. State, 844 So.2d 1180, 1184 (¶¶ 12-14) (Miss.Ct.App.2003).

¶ 42. The trial court conducted a thorough examination to determine whether A.B.’s statements possessed substantial indicia of reliability. Using the twelve factors listed in the comment to Rule 808(25), the trial court determined that: (1) A.B. had no motive to lie; (2) the general character of the declarant was a neutral factor given A.B.’s age; (3) she repeated her statements to multiple persons; (4) the statements were spontaneous; (5) the timing of the declarations was a neutral factor; (6) the relationship between A.B. and the witnesses favored admission; (7) whether A.B.’s recollection was faulty was a neutral factor; (8) the statements were certainly made; (9) the persons testifying about the statements were credible; (10) A.B.’s age did not favor admission; (11) most of A.B.’s statements were made in a non-suggestive environment; and (12) the statements were not fabricated. Overall, the trial court determined that A.B.’s statements possessed substantial indicia of reliability.

¶ 43. Tim, Glenn, and Johnny argue that A.B.’s statements were inconsistent during the forensic interview, and the questions were sometimes leading. But the trial court determined that, as a whole, A.B.’s statements possessed substantial in-dicia of reliability because the statements were repeated in non-suggestive environments. We find that there is substantial evidence to support the trial court’s ruling.

¶ 44. In Crawford, the United States Supreme Court held that under the Confrontation Clause of the Sixth Amendment, testimonial hearsay was not admissible unless the defendant had an opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59, 124 S.Ct. 1354. The Mississippi Supreme Court has determined that “a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Hobgood, 926 So.2d at 852 (¶ 12).

¶ 45. In this case, A.B.’s forensic interview was set up by DHS and administered by a non-profit entity; it did not arise based on a police investigation. Contra Williams v. State, 970 So.2d 727, 734 (¶ 22) (Miss.Ct.App.2007) (finding that because law enforcement was closely involved in obtaining a forensic interview, it was testimonial in nature). Also, statements A.B. made to Smith occurred in the course of therapy. See Hobgood, 926 So.2d at 852 (¶ 13). Because the statements were not testimonial in nature, we find that the defendants’ Sixth Amendment rights were not violated. However, even if the forensic interview were to be classified as testimonial, its admission would be harmless error. In the forensic interview, A.B. identified Tim, Glenn, Johnny, and Krystal as the persons who had sexually abused her. This same information was admitted into evidence through the testimony of Krystal, A.B.’s mother, who was a participant and a direct eyewitness to the sexual abuse of A.B. by the appellants. Thus, this issue is without merit.

IV. Leading Questions in Krystal’s Direct-Examination

¶ 46. Johnny is the only defendant who raises this issue. Whether to allow leading questions rests within the trial court’s discretion. Harris v. State, 979 So.2d 721, 730-31 (¶ 29) (Miss.Ct.App.2008). “Unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision. This is because the harm caused is usually speculative and likely inconsiderable and only the trial court was able to observe the demeanor of the witness to determine the harm.” Id. at 731 (¶ 29) (quoting Mosby v. State, 749 So.2d 1090, 1093 (¶ 9) (Miss.Ct.App.1999)).

¶ 47. Based on our review of the record, the State asked Krystal leading questions in an effort to get her to describe details of events. For instance, the State asked Krystal several leading questions to describe Krystal’s teaching A.B. to perform oral sex on Johnny. The trial court was in the best position to determine whether leading questions were necessary to develop Krystal’s testimony. Because of Krystal’s diminished mental capacity, the trial court allowed the State to ask her leading questions. Based upon our review of the record, we cannot find that the trial court abused its discretion. This issue is without merit.

V. Pammie Davidson’s and Camelia Fondren’s Testimonies

¶ 48. Whether to grant or deny a motion for a mistrial is within the sound discretion of the trial court and will be reviewed for an abuse of discretion. Rollins v. State, 970 So.2d 716, 720 (¶ 10) (Miss.2007).

A. Pammie Davidson

¶ 49. Under this assignment of error, only Johnny argues that the trial court erred by allowing Davidson’s testimony as a prior consistent statement. It is important to note that Johnny failed to object to Davidson’s testimony at trial. However, since Tim objected, we will address this issue on the merits.

¶ 50. Mississippi Rule of Evidence 801(d)(1)(B), which provides that:

A statement is not hearsay if.... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

The supreme court has held that “a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but it was inadmissible if made afterwards.” Owens v. State, 666 So.2d 814, 816 (Miss.1995).

¶ 51. Based on our review of the record, the defense attempted to imply that Krystal had changed her story in exchange for her plea deal. The State attempted to rebut the charge with prior consistent statements. Davidson was allowed to testify about the disclosures Krystal made to her while she was preparing Krystal for trial. But based on the law, Davidson’s testimony did not qualify as a prior consistent statement. Any statement Krystal relayed to Davidson occurred after Krystal had entered her guilty plea and in preparation of trial. However, outside of Davidson’s testimony, there was other substantial proof of A.B.’s allegations against the defendants. Thus, we find that the admission of Davidson’s testimony is harmless error. See id. at 817.

B. Camelia Fondren

¶ 52. Tim, Glenn, and Johnny argue that: Fondren’s testimony should have been excluded due to a discovery violation; the trial court erred by allowing Fondren’s testimony as a prior consistent statement; and Fondren improperly bolstered Krystal’s credibility and gave improper opinion testimony.

¶ 53. In regard to the alleged discovery violation, the defendants argue that Fon-dren’s testimony should have been excluded because the State had failed to identify her as a witness pursuant to Uniform Rule of Circuit and County Court 9.04. The State explained to the trial court and the defendants that Fondren would testify about Krystal’s plea agreement and prior consistent statements regarding who had sexually abused A.B. The trial court allowed the defense an opportunity to question Fondren before she took the stand. Rule 9.04(I)(2) provides that:

If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

The defendants had knowledge of what Fondren would testify to, and they did not claim undue surprise or unfair prejudice or seek a continuance or mistrial after having an opportunity to examine Fondren outside of the presence of the jury. Thus, the defendants waived the discovery-violation issue. See Comby v. State, 901 So.2d 1282, 1287 (¶ 12) (Miss.Ct.App.2004).

¶ 54. During Krystal’s cross-examination, the defense showed that Krystal’s testimony was the product of a plea agreement and implied that Krystal had motivation to fabricate this story against the defendants. Thus, the defense opened the door, allowing the State to present rebuttal evidence. See Jackson v. State, 766 So.2d 795, 808 (¶40) (Miss.Ct.App.2000). Fondren was allowed to testify about the particulars of Krystal’s plea agreement and the disclosures Krystal had made to her about this case. Fondren testified that Krystal originally denied any involvement in the acts. However, as Fon-dren and Krystal established a relationship, Krystal finally admitted her guilt as to the crimes charged against her. Thereafter, the State offered a recommended sentence in exchange for Krystal’s cooperation in the defendants’ cases. Because Krystal admitted to helping the defendants sexually abuse A.B., Fondren opined that Krystal was justified in entering a guilty plea to the charges.

¶ 55. The supreme court has held that an accomplice’s testimony that he or she had previously entered a guilty plea to the same charge that the defendant is being tried for is evidence of a prior consistent statement. Hathorne v. State, 759 So.2d 1127, 1132 (¶ 26) (Miss.1999). In addition, it is at times appropriate for a third person to testify to rebut a charge of improper influence or recent fabrication. Williams v. State, 749 So.2d 159, 164 (¶ 27) (Miss.Ct.App.1999) (citing Hosford v. State, 560 So.2d 163, 168 (Miss.1990)). Based on our review of the record and in light of Krystal’s diminished mental capacity, we find that Fondren’s testimony was a proper rebuttal to the defense’s charge of recent fabrication, and it was not a bolstering of witness credibility. This issue is without merit.

VI. Gloria’s Pending Drug Charge

¶ 56. Glenn is the only defendant who raises this argument. The State made a motion in limine to exclude evidence regarding Gloria’s pending drug charge. The trial court sustained the motion. But defense counsel was allowed to question Gloria about the pending charge during cross-examination. Thus, we find that this issue is moot.

VIL Weight of the Evidence

¶ 57. Tim, Glenn, and Johnny made separate motions for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the trial court denied. In support of their respective motions, the defendants maintained that: A.B.’s statements were inconsistent; Krystal was not a credible witness; and there was no direct evidence linking them to the sexual abuse and child neglect.

¶ 58. A motion for a JNOV challenges the legal sufficiency of the evidence. Pratt v. State, 870 So.2d 1241, 1246 (¶ 13) (Miss.Ct.App.2004). We will not disturb the trial court’s ruling unless, “with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id. at 1247 (¶ 14). On the other hand, a motion for a new trial challenges the weight of the evidence. Id. at 1248 (¶ 20). We will not disturb the trial court’s ruling unless “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 59. The defendants argue that there is no direct evidence linking them to the sexual abuse. They also contend that they were unaware that A.B. had been sexually abused; thus, they cannot be guilty of child neglect. Dr. King’s medical examination of A.B. revealed that the child had been sexually abused. In addition, many witnesses testified that A.B. identified Tim, Glenn, and Johnny as the persons who had abused her. Witness testimony alone is sufficient to secure a conviction. See Lattimer v. State, 952 So.2d 206, 224 (¶ 55) (Miss.Ct.App.2006).

¶ 60. Specifically, Martha and Gloria testified that A.B. disclosed to them that Tim had hurt her “down there.” During the forensic interview, A.B. said that Tim had touched her vagina with his penis, and she demonstrated the act using anatomically correct dolls. Smith testified that A.B. accused Tim of abusing her. A.B. also told Smith about the shower incident. Furthermore, Krystal’s testimony corroborated A.B.’s disclosures. This evidence is sufficient to support Tim’s convictions.

¶ 61. In regard to Glenn, A.B. disclosed to Martha and Gloria that Glenn had hurt her vagina. Although Joiner introduced Glenn’s name into A.B.’s forensic interview, Mackey opined that A.B.’s disclosures were consistent with those of a child who had been sexually abused. During the interview, A.B. said multiple times that Glenn had touched her “nu-nu.” She stated that she saw Glenn’s penis, and Glenn had touched her with his penis. A.B. also revealed to Smith that Glenn had sexually abused her. In addition, Krystal’s testimony corroborated A.B.’s disclosures. This evidence is sufficient to support Glenn’s convictions.

¶ 62. As for Johnny, Martha and Gloria testified that A.B. had named Johnny as one of her abusers. During the forensic interview, A.B. identified Johnny as someone who had touched her “nu-nu,” and she said that she had seen Johnny’s penis. A.B. also revealed this information to Smith. Specifically, Johnny argues that he could not have had sex with A.B. given his physical condition. There was testimony that it was difficult for Johnny to have sex, not that it was impossible. Krystal testified that she helped Johnny penetrate A.B. “[0]nly slight penetration is required to constitute the offense.” Pryer v. State, 958 So.2d 818, 823 (¶ 13) (Miss.Ct.App.2007) (citing Johnson v. State, 626 So.2d 631, 632-33 (Miss.1993)). This evidence is sufficient to support Johnny’s convictions.

¶ 63. The defendants also attack the credibility of the witnesses. It is a long-standing rule that the credibility of a witness is a question for the jury. Smith v. State, 989 So.2d 973, 984 (¶ 40) (Miss.Ct.App.2008). First, the defendants attack A.B.’s credibility because of inconsistent statements she gave during the forensic interview. Yet, testimony from Martha, Gloria, Shaw, and Smith showed consistency in A.B.’s allegations. Also, the testimony regarding A.B.’s behavior — masturbation, fondling others, and so on — showed that A.B. exhibited physical and mental characteristics of a child who had been sexually abused. Based on this evidence, we find that a reasonable jury could have determined that the defendants were guilty beyond a reasonable doubt.

¶ 64. The defendants also attack Krystal’s credibility, labeling her a mildly retarded drug addict. They mainly criticize Krystal for recanting her innocence and maintain that she fabricated the allegations to receive her plea deal. As evidenced by Krystal’s letters that were admitted into evidence, she changed her story. The defense was allowed to cross-examine her on this point and to question her about the plea agreement. Where there is conflicting evidence, it is within the jury’s province to determine the credibility of the witness. See id. After hearing all of the evidence, the jury resolved any conflicts in the evidence in favor of convicting the defendants. The verdicts are not contrary to the overwhelming weight of the evidence. Thus, we will not distui’b the jury’s verdicts. This issue is without merit.

¶ 65. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF CONVICTION OF TIMOTHY JORDAN OF FOUR COUNTS OF SEXUAL BATTERY AND SENTENCE OF LIFE FOR EACH COUNT, WITH THE LIFE SENTENCES TO RUN CONCURRENTLY; ONE COUNT OF GRATIFICATION OF LUST AND SENTENCE OF TEN YEARS; AND ONE COUNT OF CHILD NEGLECT AND SENTENCE OF TEN YEARS, WITH THE TWO TEN-YEAR SENTENCES TO RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THE LIFE SENTENCES, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.

¶ 66. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF CONVICTION OF GLENN GROSE OF THREE COUNTS OF SEXUAL BATTERY AND SENTENCE AS A HABITUAL OFFENDER TO LIFE FOR EACH COUNT AND ONE COUNT OF CHILD NEGLECT AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.

¶ 67. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF CONVICTION OF JOHNNY GROSE OF TWO COUNTS OF SEXUAL BATTERY AND SENTENCE OF LIFE FOR EACH COUNT, WITH THE LIFE SENTENCES TO RUN CONCURRENTLY; ONE COUNT OF GRATIFICATION OF LUST AND SENTENCE OF TEN YEARS; AND ONE COUNT OF CHILD NEGLECT AND SENTENCE OF TEN YEARS, WITH THE TWO TEN-YEAR SENTENCES TO RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THE LIFE SENTENCES, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.

¶ 68. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.

      . To protect the identity of minor victims of sexual abuse, we substitute fictitious initials for their names.


author: GRIFFIS, P.J.,

text:
    Arvind KUMAR, Individually and d/b/a Holiday Inn of Columbus, Tony Savage and Tracey Savage, Appellants v. Shanna LOPER, Appellee.
    No. 2009-CA-02037-COA.
    Court of Appeals of Mississippi.
    June 7, 2011.
    Rehearing Denied Aug. 30, 2011.
    John W. Crowell, Columbus, attorney for appellants.
    P. Nelson Smith Jr., Columbus, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Arvind Kumar, individually and d/b/a Holiday Inn of Columbus, Tony Savage, and Tracey Savage (collectively “Appellants”) appeal the Lowndes County Circuit Court’s denial of their motion to set aside a default judgment. They claim that because they clearly expressed their intent to defend against the claims made by Shanna Loper, they were entitled to notice of the default hearing. We agree; therefore, the judgment of the circuit court is reversed, and this case is remanded for further proceedings consistent with this opinion.

FACTS

¶ 2. Kumar operates the Holiday Inn in Columbus, Mississippi. Tracey manages the bar and lounge at the Holiday Inn. Tracey hired her son, Tony, to clean and stock the bar. Tracey later hired her cousin, Loper, to work as a cocktail waitress. Loper held the job for four months. Tracey testified that Loper was fired because she forged a customer’s credit-card ticket. Loper claims that she was forced to leave the position because she was sexually harassed by Tony.

¶ 3. On August 6, 2008, counsel for Lop-er sent a demand letter to Kumar asserting claims of sexual harassment and intentional infliction of emotional distress. On August 18, 2008, attorney Ed Pleasants responded to the demand. He stated that his letter served as notice that he was representing the Appellants in this matter. He further stated that the Appellants categorically and emphatically denied every single claim made by Loper. All requests by Loper to resolve her claims outside of litigation were rejected.

¶ 4. The attorneys exchanged several emails about certain evidence related to Loper’s claims. At no time did Pleasants change his position that the Appellants strongly denied all claims. There was never any effort to resolve the claims.

¶ 5. On December 9, 2008, after counsel for Loper had not received any further correspondence from Pleasants, Loper filed her complaint in the circuit court. She stated that Tony had sexually harassed her at work, and Tracey and Ku-mar were responsible as her supervisor and employer. Tony was served with process on December 9, 2008. Kumar and Tracey were served on December 12, 2008. Loper’s attorney spoke with Pleasants after the complaint had been filed. Pleas-ants said that he no longer represented the Appellants and that he thought another attorney would be handling the case. Neither Pleasants nor any other attorney ever made an appearance on behalf of the Appellants, and no answer was filed.

¶ 6. A default judgment was entered by the circuit court, and a hearing was held to determine damages. The Appellants did not receive notice of the hearing. On June 11, 2009, the circuit court entered an order awarding Loper $100,000 in damages.

¶ 7. While representing Kumar in an unrelated matter, Kumar’s attorney discovered the default judgment. On August 11, 2009, the Appellants filed an answer to Loper’s complaint and moved to vacate the default judgment entered against them. At the hearing to set aside the default, Tracey testified that she called Pleasants after the Appellants had received Loper’s demand letter. Pleasants gave her a copy of his letter in response, which stated that Pleasants was representing the Appellants in the matter.

¶ 8. Tracey testified that she called Pleasants immediately after she was served with Loper’s complaint. Tracey was aware that she had thirty days to answer the complaint. She had weekly contact with Pleasants to check on the filing. She said that Pleasants brought her a copy of the answer and told her that it had been filed within the time allowed. She offered her copy of the answer into evidence at the hearing. The date line on the answer was left blank, stating: “Respectfully submitted, this the_th day of January, 2009.”

¶ 9. Tracey said that, once the answer had been filed, she had no reason to believe that any further action was required on her part at that time. She testified that she was waiting on Pleasants to let her know what to do next. She said she was shocked to learn that a default judgment had been entered because she believed the answer had been filed.

¶ 10. Following the hearing, the circuit court found that no one had made an appearance on behalf of the Appellants; therefore, they were not entitled to notice of the hearing on the default judgment. The Appellants’ motion to vacate the default judgment was denied.

STANDARD OF REVIEW

¶ 11. The standard of review for a circuit court’s denial of a motion to set aside a default judgment is an abuse of discretion. McCain v. Dauzat, 791 So.2d 839, 842 (¶ 5) (Miss.2001). Questions of law are reviewed de novo. Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 35 So.3d 1209, 1215 (¶ 17) (Miss.2010).

ANALYSIS

Whether Mississippi Rule of Civil Procedure 55(b) entitled the Appellants to notice of the hearing on Loper’s motion for a default judgment.

¶ 12. The Appellants contend that Pleasants’s response to Loper’s demand letter clearly manifested their intent to defend against Loper’s claims. Loper responds that the Appellants failed to appear and defend against the claims after the complaint was filed. According to Loper, that meant the Appellants were not entitled to notice of the hearing on default.

¶ 13. Rule 55(b) states in part: “If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application.... ” M.R.C.P. 55(b). The comment to Rule 55 states: “The purpose of [the notice requirement] of Rule 55(b) is ... to protect those parties who, although delaying in a formal sense by failing to file pleadings within the thirty day period, have otherwise indicated to the moving party a clear purpose to defend the suit.”

¶ 14. It is evident from the language of Pleasants’s letter that the Appellants indicated a clear intent to defend against Lop-er’s claims. The Mississippi Supreme Court has held that such informal contacts between parties, including the exchange of letters between attorneys, might constitute an appearance under Rule 55(b). Holmes v. Holmes, 628 So.2d 1361, 1364 (Miss.1993) (citing H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 692 (D.C.Cir.1970)).

¶ 15. Loper contends that the letter was insufficient because it happened before the complaint was filed. However, simply because the letter was sent during Loper’s attempts to negotiate a settlement prior to the filing of the complaint does not change the fact that Loper was aware of the Appellants’ intent to defend the suit. Despite this knowledge, Loper failed to give notice to the Appellants of the hearing on default.

¶ 16. In Holmes, Fred M. Holmes filed a complaint for divorce from his wife, Kay Hollingshead Donald Holmes. Holmes, 628 So.2d at 1362. After Kay was served with process, she hired an attorney who wrote a letter to Fred’s attorney. Id. The letter informed Fred’s attorney of his representation of Kay. The letter further expressed a desire to settle the case. Id. During negotiations, Kay failed to file an answer within thirty days. Fred, without giving notice to Kay, presented evidence to the chancellor, and a judgment of divorce was granted. Id. In reversing the judgment of the chancellor, the supreme court stated:

In the case at bar, Mrs. Holmes promptly contacted an attorney. Her attorney wrote her husband’s attorney and informed him that Mrs. Holmes was represented by counsel and that she wished to settle the case if possible; however, he made clear Mrs. Holmes’[s] intent to defend the suit should no settlement be reached. With knowledge of this letter, Mr. Holmes’[s] attorney nevertheless proceeded to secure a divorce by default against Mrs. Holmes. In this regard, his conduct suggests gamesmanship. In the Comment to M.R.C.P. 1, it is stated that “properly utilized, the rules will tend to discourage battles over mere form and to sweep away needless procedural controversies that either delay a trial on the merits or deny a party his day in court because of technical deficiencies.” Conversely, improper utilization of the rules invariably results in the type of gamesmanship and ambush techniques, employed in the case at bar, that the rules were designed to abolish. We refuse to condone such behavior and therefore reverse the judgment of the chancellor and remand for proceedings consistent with the opinion rendered in this cause.

Id. at 1364-65.

¶ 17. Similarly, Loper was aware of the Appellants’ express intent to defend against Loper’s claims, yet Loper moved for a default judgment without any notice to the Appellants or Pleasants. In Tucker v. Williams, 7 So.3d 961, 967-68 (¶ 23) (Miss.Ct.App.2009), we cited the Holmes court’s refusal to condone one party’s attempt to avoid the duty to provide notice under Rule 55(b), stating:

In the matter presently before us, correspondence between attorneys reveals that Boackle relayed Tucker’s and H & G’s intent to file a counterclaim if the Williamses filed their complaint. A statement that one will file a counterclaim is obviously a statement indicative of intent to defend a claim. Consequently, the Williamses were obligated to provide Tucker and H & G’s attorney three days’ notice of the hearing on their application for default judgment. Nothing in the record demonstrates that the Williamses fulfilled their obligation.

¶ 18. We find that the letter from Pleasants to Loper’s counsel, even though it was sent prior to the filing of the complaint, sufficiently expressed the Appellants’ intent to defend against the claims asserted by Loper. The Appellants were entitled to three days’ notice of the hearing on the default judgment. Accordingly, the judgment of the circuit court is reversed. On remand, the circuit court should hold a hearing on default once the Appellants have been given proper notice under Rule 55(b).

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . There is some dispute as to whether Kumar himself or Mit-Sar, LLC, created by Kumar and his wife, operates the franchise of Holiday Inn. Mit-Sar, LLC was not named as a defendant in this case.

      . We realize that Loper’s attorney presented his notes detailing a conversation with Pleas-ants after the complaint was filed in which Pleasants said he was no longer representing the Appellants. However, there is no written proof of this statement by Pleasants that contradicts his initial letter sent to Loper’s counsel. Nor does this explain why notice was not given to the Appellants personally if Loper’s counsel truly believed the Appellants no longer had legal representation in this matter.

      . The default judgment in Tucker was reversed on other grounds.