author: GRIFFIS, P.J., RUSSELL, J.,

text:
    Tyrell WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00081-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.
    Rehearing Denied July 24, 2012.
    Leslie S. Lee, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Tyrell Williams was convicted in the Bolivar County Circuit Court of sexual battery under Mississippi Code Annotated section 97 — 3—65(1)(d) (Supp.2011) and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. On appeal, Williams argues the circuit court erred in denying his motion to suppress his confession because he did not knowingly and voluntarily waive his constitutional rights. We find no error and affirm.

FACTS

¶ 2. On January 30, 2009, Ann Smith, a thirteen year old, walked home from school in afternoon. Ann testified that when she passed Williams’s house he called her to come over towards him. Williams, twenty-four years old at the time, forced Ann into his house. Ann testified that once she was inside Williams forced Ann to the bedroom and locked the door. Williams and Ann then had sexual intercourse and oral sex.

¶ 3. Ann went to her house after the incident. Her mother noticed that Ann was acting unusual and asked her what was wrong. After her mother discovered Ann’s underwear was wet, Ann told her mother what happened. Then, her mother took Ann to North Sunflower Medical Center for a sexual assault examination.

¶ 4. Williams was arrested for the sexual battery of Ann. Officer Jeff Joel interviewed Williams at the time of his arrest. Officer Joel testified he informed Williams of his Miranda rights, and Williams signed a waiver of those rights. Williams confessed to the sexual battery to Officer Joel. In Williams’s statement, he confessed to sexual intercourse and oral sex with Ann. However, Williams stated Ann approached him and offered to have sex with him. Williams stated Ann told him she was eighteen, and he believed Ann.

¶ 5. Williams did not have anyone else present with him in the interview with Officer Joel. Officer Joel testified Williams was able to answer his questions and provide details of the incident. The trial court granted Williams’s motion for a mental examination. Williams was first examined at the Mississippi State Hospital by Dr. Gilbert S. Macvaugh. Dr. Macvaugh found that Williams had an IQ of 53, which was slightly above that of the average mentally-incompetent adult. Dr. Mac-vaugh found Williams was competent to stand trial, but the doctor was unable to say if Williams was competent to waive his constitutional rights at the time of Williams’s confession.

¶ 6. After Dr. Macvaugh’s examination, Williams was examined by Dr. Robert McMichael and Dr. Amanda L. Gugliano at Mississippi State Hospital. Both Dr. McMichael and Dr. Gugliano found Williams to be competent to stand trial. The doctors also found Williams to have the present capacity to waive or assert his constitutional rights. However, the doctors were unable to say whether or not Williams had the capacity to waive or assert his rights at the time he made his confession on July 23, 2009.

¶ 7. Outside the presence of the jury, the trial court held a suppression hearing regarding Williams’s confession. Glandra Williams, Williams’s mother, testified at the hearing that Williams does not live alone, work, or drive, and he heavily relies on Glandra for help understanding information. Glandra did testify that Williams could dress and bathe himself. According to Glandra, Williams did not graduate from high school or receive his GED. Williams also has only lived on his own for a short period of two-months when he was around the age of twenty-one. Glandra has taken Williams to see mental health workers about every month or every other month since he was five-years-old.

¶ 8. Officer Joel was also called to testify during the suppression hearing. Officer Joel testified he read Williams his Miranda rights and reviewed each right individually. Officer Joel stated that he explained the interview process to Williams and again asked if he wanted to waive his Miranda rights. Williams signed his name to the waiver of rights during the interview. Officer Joel testified that he believed Williams understood what was going on during the interview. Officer Joel testified that at the end of the interview Williams stated that he should not have talked to Officer Joel and that he was in trouble now.

¶ 9. The trial court found after the testimony from the fact witnesses that Williams understood his rights. Williams was convicted of sexual battery and sentenced to twenty years in the custody of the Mississippi Department of Corrections.

STANDARD OF REVIEW

¶ 10. “Once the trial judge has ‘determined, at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.’” Applewhite v. State, 753 So.2d 1039, 1041 (¶ 10) (Miss.2000) (quoting Sills v. State, 634 So.2d 124, 126 (Miss.1994)). “This Court will reverse [the] trial court’s finding that a confession is admissible only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence.” Duplantis v. State, 644 So.2d 1235, 1243 (Miss.1994) (citing Willie v. State, 585 So.2d 660, 665 (Miss.1991) (overruled on other grounds)).

ANALYSIS

¶ 11. Prior to trial, Williams attempted to suppress his confession. The trial court denied the motion. The trial court found Williams knowingly, intelligently, and voluntarily waived his Miranda rights and made the incriminating statements. Williams contends this was error.

¶ 12. When a criminal defendant objects to the admission of his confession, arguing it was involuntary, the trial court must conduct a hearing outside the presence of the jury. Cox v. State, 586 So.2d 761, 764 (Miss.1991). At the hearing, the burden is on the State to prove voluntariness beyond a reasonable doubt. Id. at 763. The State may meet this burden and establish its prima facie case by presenting the testimony of a witness with personal knowledge — -which will usually be a police officer who was present when the confession was made — that the confession was voluntarily given, without any coercion, threats, or offers of reward. Id. If that is done, the defendant must show otherwise. Id. The trial judge sits as the finder of fact, weighs the evidence, and ultimately decides whether the State has met its burden. Jackson v. State, 778 So.2d 786, 789 (¶ 16) (Miss.Ct.App.2001). If the trial judge finds the confession was voluntary, we must affirm if the correct legal standard was applied and the finding was supported by the evidence. Cox, 586 So.2d at 763.

¶ 13. Here, the trial court applied the correct legal standard, and its finding was supported by the evidence. At the pretrial hearing, the State presented testimony from Officer Joel who was present during the confession. Officer Joel testified he read Williams his Miranda rights, and Williams signed a waiver of those rights. Officer Joel stated that Williams appeared to understand his rights at the time he was questioned. Officer Joel testified Williams was responsive to his questions, and Williams even offered a defense to the crime. Williams freely offered that he believed Ann to be eighteen years old. Although Williams has an undisputed low IQ, the Mississippi Supreme Court has held that “[t]he mild mental retardation of the defendant does not render a confession per se involuntary; rather, the defendant’s mental abilities are but one factor to be considered.” Harden v. State, 59 So.3d 594, 605 (¶ 26) (Miss.2011).

¶ 14. Williams relies on the evidence that he has a Full Scale IQ of 53. Williams also points to the statements from the Mississippi State Hospital doctors indicating they could not form an opinion to whether he was competent to waive his constitutional rights with Officer Joel. However, the doctors unanimously found Williams was able to waive his constitutional rights and to stand trial. Williams’s mother testified at the pretrial hearing that Williams does not live alone and he has difficulty understanding things. She testified that he is able to handle basic life tasks such as dressing and bathing himself. Faced with these competing versions of events, the trial court found the officer’s testimony was credible. As this Court has previously stated, determining the credibility of witnesses and weighing the evidence is a role for the trial judge in a suppression hearing, and we give deference to his factual findings. Jackson, 778 So.2d at 789 (¶ 16).

¶ 15. The dissent finds the doctors’ inconclusive reports and Williams’s mother’s testimony as overwhelming evidence that the confession was involuntary. The dissent quotes a portion of Dr. Macvaugh’s report regarding Williams’s functional capacity. However, Dr. Macvaugh’s did not conclusively state that Williams lacked the capacity to waive his constitutional rights at the time of his interview with Officer Joel. In fact, Dr. Macvaugh’s report went on to qualify the quoted statement by the dissent and stated:

Although he claimed during this evaluation that he did not understand his rights when he made a statement to law enforcement, the defendant appeared to have a least some basic familiarity with these rights and was able to spontaneously recite some of the standard wording. However, his actual understanding of these rights, i.e., comprehension of the terms and phrases used in the Miranda warnings; appreciation of the role of defense counsel in the situation, etc., appeared rather limited because of intellectual disability and his lack of experience in these situations (as evidenced by his confusion regarding the terms “appeal” and “appoint”). Assessment of his capacity in this regard is further complicated by his apparent attempts to retrospectively malinger memory deficits for the time period in which he made a statement to law enforcement officials.

¶ 16. Due to Williams’s ability to malinger memory defects, offer a defense freely to his crime, his mother’s testimony that Williams performs his basic life tasks by himself, and Officer Joel’s testimony that Williams understood his rights, we cannot find overwhelming evidence that Williams did not voluntarily waive his rights. The appellant in this circumstance has a “heavy burden in attempting to reverse [a circuit judge’s determination in a preliminary hearing that a confession is admissible] on appeal.” Applewhite, 753 So.2d at 1041 (¶ 10). Further, we must affirm if the correct legal standard was applied and the finding was supported by the evidence. Cox, 586 So.2d at 763. We find the evidence supports the circuit judge’s finding that the confession was voluntary and that Williams did not meet his burden of proof on appeal.

¶ 17. Because the circuit court applied the correct legal standard and the findings were supported by the evidence, we affirm the circuit court’s denial of Williams’s motion to suppress his confession.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON MAXWELL AND FAIR, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

RUSSELL, J.,

dissenting:

¶ 19. The majority finds that the circuit court properly concluded that Tyrell Williams possessed the mental capacity to knowingly and intelligently waive his Miranda rights and denied his request to suppress his statement. I find that the evidence does not support such a finding; therefore, I must respectfully dissent.

¶ 20. The Mississippi Supreme Court has held that the mere giving of Miranda warnings, no matter how meticulous, no matter how often repeated, does not render admissible any inculpatory statement thereafter given by the accused. Moore v. State of Mississippi, 493 So.2d 1301, 1302 (Miss.1986). The rights of which the accused is Miranda-warned must thereafter be waived — intelligently, knowingly, and voluntarily. Id. Whether there has been an intelligent, knowing, and voluntary waiver is essentially a factual inquiry to be determined by the trial judge from the totality of the circumstances. Id. For a waiver of one’s Miranda rights to be considered valid, the State must prove beyond a reasonable doubt that “the waiver [was] made voluntarily, knowingly[,] and intelligently.” Coverson v. State of Mississippi, 617 So.2d 642, 647 (Miss.1993). In the instant case, the circuit court conducted a pretrial suppression hearing outside the presence of the jury and concluded that the State met its burden by proving the validity of Williams’s waiver beyond a reasonable doubt. I disagree.

¶ 21. Three trained medical professionals hired by the State provided the circuit court with findings after conducting mental evaluations of Williams. In the forensic screening evaluation conducted by Dr. Macvaugh, Dr. Macvaugh reported that Williams had an IQ of 53. He also noted that according to the transcript of Williams’s statement to Officer Jeff Joel, when advised of his Miranda rights, Williams replied “okay” to each one of those rights, and there was no attempt made by Joel to ensure that Williams understood his rights beyond simply stating that he did. Dr. Macvaugh reported that,

the defendant may have demonstrated deficits in his capacity to make a knowing and intelligent waiver of his right to silence and his right to legal counsel at the time of his statement to law enforcement, particularly in light of his severely low IQ and limited reading comprehension skills, as measured by standardized testing. In my opinion, it is unlikely that a defendant with an IQ in the low 50s and reading comprehension skills at the second to third grade level would be capable of making a competent waiver of these rights.

However, Dr. Macvaugh went on to find that he was unable to form any valid conclusions regarding Williams competence to waive or assert his rights, either at the time of his statement or at the time of evaluation.

¶ 22. Both Drs. McMichael and Gugli-ano were unable to form an opinion regarding whether or not Williams had the capacity to knowingly and intelligently waive his Miranda rights at the time of his statement after over two months of forensic service evaluations at the Mississippi State Hospital. Furthermore, the intelligence tests indicated that Williams intellectual functioning was in the extremely low range, which is consistent with mild mental retardation. Both doctors found that Williams had an intellectual disability and recommended that complex legal standards be explained to Williams in simple language.

¶ 23. Williams’s mother, Glandra Williams testified that Williams did not complete high school nor does he have a GED, that he has received mental health care since he was five years old, that she receives a disability check for his mental condition, that he takes medication for his mental health, that he does not drive and does not live alone, and has only worked for a couple of days moving shopper carts at a grocery store. She further testified that Williams is very dependant upon her to explain things to him, and she informed Joel of Williams’s inability to understand prior to his interrogation. In fact, she testified that she would have to explain this particular case to him after they would leave the attorney’s office. On cross, Glandra specifically testified that Williams did not understand his Miranda rights.

¶ 24. The only testimony received by the circuit court to indicate Williams understood the Miranda warning came from Joel, who administered the warning. Joel provided testimony that his general practice during suspect interviews is to inform the suspect of the charges against them, go over their rights with them, instruct them to ask questions if they do not understand, start the interview process, and then read their rights to them again. Joel went on to testify that he believed Williams understood completely what was going on.

¶ 25. The majority is correct that the three state physicians determined Williams to be competent to stand trial, but that is not the issue at hand. None of medical experts provided evidence that Williams was able to make a voluntary, knowing, and intelligent waiver of his Miranda rights on August 29, 2009. I respectfully disagree with the majority’s conclusion that the evidence presented supports a finding beyond a reasonable doubt that Williams knowingly and intelligently waived his Miranda rights.

¶ 26. I find that the circuit court’s finding was contrary to the overwhelming weight of the evidence and constitutes manifest error. For these reasons, I dissent.

      . To protect the identity of the victim and her family, we use a fictitious name.

      . At the suppression hearing, Williams’s IQ was stated as 52; however, his medical records show his Full Scale IQ to be 53.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Honda DOWNS and Robert Downs, Appellants v. Peter L. ACKERMAN, Appellee.
    No. 2011-CA-00089-COA.
    Court of Appeals of Mississippi.
    June 26, 2012.
    Rehearing Denied Nov. 27, 2012.

      Kenneth M. Altman, Michael Scott Bishop, attorneys for appellants.
    H. Benjamin Mullen, Pascagoula, attorney for appellee.
    Before LEE, C.J., ROBERTS, and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On September 7, 2007, Honda Downs and Dr. Peter L. Ackerman were involved in a car accident when Acker-man’s Lexus automobile struck the rear of Downs’s Oldsmobile automobile. Downs suffered injuries as a result of the accident, and she later filed suit against Ack-erman for damages arising out of the accident. Ackerman admitted liability for the accident several times throughout the course of the trial. The jury awarded Downs $20,000 in damages, which were less than the medical bills she presented into evidence as reasonable and necessary medical expenses. Downs filed a motion for a judgment notwithstanding the verdict (JNOV), a motion for a new trial, and, alternatively, a motion for an additur. The circuit judge denied these motions. Downs now appeals.

¶ 2. Central to correct resolution of this case is the issue of whether the amount of the verdict indicated bias, passion, or prejudice on the part of the jury or was against the overwhelming weight of the evidence. Also relevant to proper disposition is an examination of Ackerman’s claim that though Downs’s medical expenses were reasonable and necessary, they were not all proximately caused by Ackerman’s negligence.

PACTS AND PROCEDURAL HISTORY

¶ 3. At 9:30 a.m. on September 7, 2007, Downs was driving on Highway 90 in Jackson County, Mississippi, to make a deposit at Hancock Bank for her employer, the Kellwóod Company. She was stopped at a traffic light when Ackerman’s vehicle struck the rear end of her vehicle. Downs testified the impact was severe, and she estimated Ackerman’s speed at about forty-five miles per hour. Downs was transported by ambulance from the scene of the accident to the hospital at Keesler Air Force Base, where she was examined, x-rayed, and an MRI was conducted.

¶ 4. After several visits with nurse practitioners at Keesler, Downs began seeing Dr. John McCloskey, a neurosurgeon, in June 2008, when she complained of neck pain and tenderness; soreness in the right shoulder and scapular area; constant numbness, tingling, and swelling of her fingers and hands; and visual problems. Dr. McCloskey testified to the following via video deposition: “The three problems that I saw were the posttraumatic neck pain and right shoulder pain; and the visual problems, her posttraumatic visual problems; and, then, I suspected that she had posttraumatic bilateral carpal tunnel syndrome.” He also stated that Downs suffered from discogenic pain, which is “pain from an injured disc in your neck.” Discs “are frequently injured or ruptured with heavy lifting or rear-end auto[mobile] accidents.” Dr. McCloskey attributed Downs’s medical problems to the accident because Downs clearly indicated that she did not have the described injuries and problems prior to the accident. Additionally, he recommended Downs see Dr. Terry Millette, a neurologist and neuro-ophthalmologist, to help explain the vision problems she was experiencing. Dr. McCloskey testified that he last saw Downs in July 2009, and she was still struggling with neck pain, headaches, limitation of motion in her shoulder and neck, pain between her shoulder blades, numbness, tingling and swelling of her hands, numbness of her legs, and significant visual problems. He testified that he believed “within a reasonable medical probability, that Honda Downs suffered permanent injuries.”

¶ 5. Dr. Terry Millette testified via video deposition. According to Dr. Millette, Downs has a “very typical abnormality that patients with a high cervical problem experience.” The abnormality was a “failure to suppress [the] vestibulo-ocular reflex,” resulting in feelings of unsteadiness. He diagnosed Downs with central disequilibrium syndrome and found that this condition is permanent, requiring her to be under the care of a physician for medications and therapy. The purpose of any treatment would be to diminish her symptoms and not “fix” her. He further explained that Downs “has a high cervical injury from extension — flexion, extension phenomenon resulting in damaged disk and facet joints, which cause disequilibrium, chronic head and neck pain, and unsteadiness and secondary muscular spasm, which is sympathetic to the underlying spinal condition.” Like Dr. McCloskey, Dr. Millette also related Downs’s injuries to the accident. Dr. Millette found that Downs should receive a twenty percent impairment rating and that she could attempt to go back to work as the store manager, but it would be difficult for her to maintain gainful employment. On cross-examination, Dr. Millette agreed that prior to Downs’s visits with him, the medical personnel at Keesler’s hospital evaluated her gait as normal and steady; however, in his notes and evaluation, he found Downs was “careful in her ambulation. Which, people with an impaired tandem gait will be careful or appear to be overly cautious at times.” Also on cross-examination, Dr. Millette was questioned on several documents he filled out for GENEX, a company handling Downs’s workers’ compensation claim, approximately a year and a half before trial. In the documents, he indicated that no other diagnostic studies were recommended and that Downs should continue her present medications for treatment purposes. Dr. Millette also indicated that Downs had then reached maximum medical improvement; however, he clarified that maximum medical improvement does not mean that the patient is well, just that the patient has improved to the maximum degree she is capable of improving. The letter also showed that Dr. Millette agreed that Downs could perform her regular work with no restrictions. Lastly, he indicated in the GENEX documents that she was under no impairment. The findings in the GENEX documents appeared to contradict what Dr. Millette had testified to in his trial deposition with regard to Downs’s future treatment and ability to work.

¶ 6. Finally, Dr. Terry Smith also testified via .video deposition, and his ultimate conclusion was that the treatment Downs received was necessary and reasonable based upon her injuries and symptoms.

¶ 7. Prior to the beginning of trial, both parties agreed that all Downs’s medical bills and records would be introduced into evidence; however, Downs objected to the introduction of three GENEX documents in the voluminous stack of medical bills and records. As was explained above, the GENEX documents contained information regarding Downs’s medical information that were filled out by Dr. Millette. In favor of having the documents introduced into evidence, Ackerman argued that the documents should be allowed because they fell within the business-record- exception to the hearsay rule found in Mississippi Rule of Evidence 803. He elaborated by stating that the documents are a basis for Dr. Millette’s opinions regarding Downs’s injuries and treatment, and the jury should have the opportunity to have the documents in front of them during deliberations. Downs countered Ackerman’s argument on the ground that the documents were not a record made at the time of treatment or kept in the regular course of business and were not properly authenticated. Downs further stated that the documents were “[i]n fact, ... a summary asking questions and responding to questions from an outside person as to this patient’s care and treatment.” Further, Downs argued that Dr. Millette had been asked about these documents at his deposition; therefore, these documents would be duplicative, which could lead to jury confusion. Downs also had concerns with the references to workers’ compensation made on the documents. For example, the documents refer to Downs as a “claimant” and the Kellwood Company as her “employer.” The documents consistently refer to the accident as the “work injury”; inquire into her possible “work status”; refers to her maximum medical recovery; and also ask for a percentage of Downs’s impairment. Although not explicitly stated, Downs ultimately argued that pursuant to Mississippi Rule of Evidence 403, the documents should have been excluded because the “probative value [was] substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or ... needless presentation of cumulative evidence.” The circuit judge allowed the GENEX documents into evidence.

¶ 8. Downs filed suit against Ackerman on May 1, 2009, for damages arising out of the accident. In her complaint, Downs sought to recover her past and future medical expenses, past and future lost wages, pain and suffering, and mental and emotional distress. An agreed order was entered on September 28, 2010, allowing Sentry Insurance Company, Downs’s employer’s workers’ compensation carrier, to intervene to protect its subrogation claim which then exceeded $30,000. Downs’s presented $20,800.30 in medical bills and approximately $10,500 in past lost wages at the trial held in the Jackson County Circuit Court, which began on October 19, 2010, and ended on October 20, 2010. Although Downs did not claim any property loss, both vehicles suffered significant damage. The collision caused $7,363.87 worth of damage to Downs’s Oldsmobile and over $10,000 worth of damage to Ack-erman’s Lexus. Downs and Robert, her husband, also testified at trial concerning the impact the accident has had on their daily lives. Downs testified that, prior to the accident at issue, she had never been in a car accident. Both Downs and Robert ■indicated that Downs had become increasingly withdrawn and rarely enjoyed time out with her friends since the accident. They described this sort of behavior as quite a contrast from Downs’s life before the accident. Valerie Yager, Downs’s friend and former co-worker, also testified to the changes in Downs’s personality since the accident and confirmed that she and Downs were no longer close as a result of the accident. Ackerman was also called as an adverse witness where he described his involvement in causing the accident, and he admitted liability for the accident. In his opening statement, Ack-erman’s attorney stated, “[Ackerman] accepts responsibility for this accident.... And we understand that there are consequences ... from an act of negligence-” Again, in Ackerman’s attorney’s closing argument, it was reiterated that “[Ackerman] accepted responsibility for causing the accident ... [and Acker-man] also accepts responsibility for the consequences that flow from causing that accident.” Ackerman did not call any witnesses nor present any evidence in his case in chief. Both sides rested, jury instructions were read, and closing arguments were heard. Specifically, the jury was given an instruction that the verdict should be returned in the following form:

We, the jury, find for the Plaintiffs and assess their damages as follows:

Honda Downs.

$-

Robert Downs.

$-

¶ 9. The jury began deliberations, and during deliberations, the jury sent three questions to the circuit judge: Did Dr. Ackerman have insurance?; How much did insurance pay toward medical bills?; Of the amount of medical bills not covered by car insurance, what were the out-of-pocket expenses? The circuit judge responded with the following written statement: ‘You are not to concern yourself with these issues. You are to concentrate on the evidence and testimony presented at trial. Continue to deliberate.” The jury returned a general verdict in proper form awarding Downs $20,000 in damages and Robert $0.00 in damages. Feeling aggrieved by the jury’s verdict, Downs filed a motion for a JNOV, a motion for an addi-tur, and, alternatively, a motion for a new trial. After a hearing on the post-trial motions held on December 16, 2010, the circuit judge denied Downs’s motions. Downs perfected the current appeal.

¶ 10. On appeal, she raises the following two issues:

I. Whether the circuit court erred in allowing the GENEX documents, which reference a collateral source, into evidence if the sole purpose of the documents was to impeach a witness.
II. Whether allowing the GENEX documents into evidence led to confusion and bias among the jurors resulting in such an inadequate award of damages that judicial intervention is necessary.
STANDARD OF REVIEW

¶ 11. When reviewing a circuit judge’s decision to admit or deny evidence, the standard of review this Court employs is abuse of discretion. Istiphan v. City of Madison, 81 So.3d 1200, 1206 (¶ 13) (Miss.Ct.App.2012) (quoting Walker v. State, 55 So.3d 212, 216 (¶ 14) (Miss.Ct.App.2011)). This Court also employs the abuse-of-discretion standard when it reviews a circuit court’s denial of a motion for a new trial or additur. Upchurch ex rel. Upchurch v. Rotenberry, 761 So.2d 199, 206 (¶ 26) (Miss.2000) (quoting Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995)).

ANALYSIS

¶ 12. In her brief, Downs argues that the circuit court erred in failing to grant her motion for an additur because the jury’s verdict of $20,000 did not adequately compensate her for her medical bills, lost wages, future medical treatments, or pain and suffering. An additur or remittitur may be granted pursuant to Mississippi Code Annotated section 11 — 1— 55 (Supp.2011), which states the following:

The supreme court or any other court of record in a case in which monetary damages were awarded may overrule a motion for a new trial or affirm on direct or cross[-]appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of the credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only.

Also relevant in this case is Mississippi Code Annotated section 41-9-119 (Supp. 2011), which states “[pjroof that medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.” An “opposing party may, if desired, rebut the necessity and reasonableness of the bills by proper evidence.” Jackson v. Brumfield, 458 So.2d 736, 737 (Miss.1984). At trial and without objection, Downs produced her medical bills totaling $20,800.30. She also provided testimony through Dr. Smith that the medical bills presented were necessary and reasonable for the treatment of her injuries and symptoms. Further, both Dr. Millette and Dr. McCloskey testified that the accident was the cause of Downs’s injuries because she had never complained of the symptoms prior to the accident. On appeal, Downs asserts that Ackerman failed to offer any contradictory evidence as to the injuries she sustained and that mere cross-examination of her medical experts, standing alone, is insufficient to rebut a prima facie showing of necessary and reasonable medical bills. Under the facts as presented in this record, we agree.

1113. In 2000, this Court found in Hubbard v. Canterbury, 805 So.2d 545, 549 (¶ 11) (Miss.Ct.App.2000), that because Samuel Hubbard submitted $4,094.53 in medical bills, there was prima facie evidence to support a finding that the medical bills were reasonable and necessary; however, Rose Canterbury could rebut this evidence by presenting proper evidence. We found that Canterbury only relied on her own testimony and the argument that she impeached Hubbard’s and Hubbard’s expert witnesses’ testimonies to rebut the necessity and reasonableness of treatment. Id. at 550 (¶ 17). The case was affirmed on the condition that Hubbard accept a $1,592.53 additur; if Hubbard declined, a new trial on damages was ordered to be held. Id. at 551 (¶ 17). Because Hubbard is factually similar to the current case, we apply the same analysis. In the current case, Ackerman relied only on the cross-examination of Downs’s expert witnesses to rebut the prima facie evidence that her medical bills were necessary or reasonable. Ackerman asserts that he successfully disputed much of Downs’s treatment by impeaching her experts on cross-examination, which resulted in a jury verdict for less than Downs’s total medical bills. Our review of the record does not indicate that reasonable and fair-minded jurors could have concluded that Downs’s reasonable and necessary medical expenses were not causally related to the car collision. At trial, Ackerman did attempt to elicit testimony from Downs’s expert witnesses that Downs’s injuries could have resulted from lifting heavy boxes at work; however, there was very minimal testimony presented to show that this activity, as opposed to the accident, was a proximate cause of her injuries. Like in Hubbard, Ackerman relied solely on his attempts to impeach the expert witnesses when making his case to rebut the prima facie evidence presented; his evidence was insufficient to rebut that Down’s medical bills were reasonable and necessary to treat her injuries proximately caused by the accident.

¶ 14. Additionally, in Hubbard, 805 So.2d at 549 (¶ 9), this Court found that “[ejvidence of bias, prejudice, or passion may be inferred by contrasting the amount of damages with the amount of the verdict.” In that case, the jury awarded Hubbard $2,500 even though he presented $4,094.53 in medical bills. This Court found that this discrepancy indicated bias, passion, or prejudice. The supreme court has held similarly when presented with cases in which a jury awarded less than the uncontested damages. See generally Maddox v. Muirhead, 738 So.2d 742 (Miss.1999); Brown v. Cuccia, 576 So.2d 1265 (Miss.1991); Jackson v. Brumfield, 458 So.2d 736 (Miss.1984). Also, there is evidence of juror confusion in this case when the jury asked multiple questions during its deliberations regarding what amount of money insurance provided for Downs’s medical bills and how much was out-of-pocket expenses. This seems to indicate the confusion in determining an appropriate award to compensate Downs for her injuries and damages since the jurors may well have concluded that she had already been compensated for her medical expenses and lost wages from another source. Based on the evidence in this record, we are compelled to conclude that the jury’s verdict in favor of Downs for only $20,000 is against the overwhelming weight of the credible evidence and does not adequately compensate her for all of her claimed damages.

¶ 15. It is incumbent on us that we recognize the very recent supreme court decision of Thompson v. Nguyen, 86 So.3d 232 (Miss.2012), in which a similar issue involving motions for an additur or a new trial were addressed. Karen Thompson was stopped at a red light when the vehicle behind her driven by Dung Thi Hoang Nguyen bumped into her rear bumper. Id. at (¶2). Neither car was damaged, and neither Thompson nor Nguyen complained of any injuries. Id. Several days after the accident, Thompson complained of neck pain, so she visited her physician who prescribed pain medication and physical therapy. Id. at (¶ 3). An MRI showed a preexisting degenerative-disc disease associated with disc bulges. Id. at (¶ 4). Approximately three years after the accident, Thompson underwent surgery to treat the abnormal discs. Id. She then filed suit against Nguyen to recover $234, 316.49 in damages. Id. At trial, Thompson explained that her symptoms began after the accident and caused her to suffer daily debilitating neck pain. Id. at (¶ 5). Thompson also presented the testimony of her physician Dr. James Martin, who “admitted that Thompson had preexisting disc disease, but testified that — to a reasonable degree of medical certainty — -Thompson’s injuries were ‘caused or at least aggravated by the accident.’ ” Id. at (¶ 6). Also, Thompson’s neurosurgeon testified her symptoms were related to the accident. Id. However, her doctors also testified that they knew nothing about the circumstances of the accident, such as the speed of and damage to the vehicles. Id. at (¶ 7). They also acknowledged that Thompson’s migraines and degenerative disc disease existed prior to the accident and related to the same discs Thompson complained are injured by the accident. Id. At the end of trial, a jury awarded Thompson $9,131, which was the exact amount of her physical-therapy bills. Id. at (¶ 10). The circuit judge denied Thompson’s motions for addi-tur or new trial, and this Court reversed and remanded the case for a trial on damages, finding that the jury was confused because they only deliberated for three- and-a-half hours and asked the circuit judge several questions during deliberation. Id. at (¶ 19). The supreme court took the case on certiorari and found this Court erred in reversing and remanding for a new trial; it affirmed the circuit court’s denial of Thompson’s motions for additur or new trial. Id. at (¶ 33). The jury asked the circuit judge the following five questions during deliberations:

1. Can we see the police report?
2. Were the transcripts of the videos entered into evidence? If yes, we do not have them.
3. Can we have a dictionary (preferably medical)?
4. We feel we have too much information to fully and reasonably make a decision[;] is there any chance that we can return tomorrow?
5. Can we speak with you, the judge, in private? Do we need to write two statements?

Id. at (¶ 20). Based on those questions, the supreme court found that there was no confusion on the part of the jury’s award; therefore, the circuit judge did not abuse his discretion in failing to grant Thompson’s motions for an additur or new trial. Id. at (¶21). Additionally, the supreme court disagreed with this Court’s finding that since the verdict was only four percent of the requested damages then the verdict was a result of bias, passion, or prejudice. Id. at (¶ 22).

¶ 16. While we acknowledge the supreme court’s holding, the ease before us, we believe, is factually distinguishable from Thompson. In the current case, the jury asked several questions relating to insurance and the amount of damages insurance had paid on behalf of Downs’s medical bills. As was stated above, the jury’s questions much more strongly indicate their confusion as to how to award damages since they should not have been considering any collateral sources of compensation available to Downs. The contested GENEX documents were before the jury in the jury room, and the jury was fully aware that Downs was injured while in the scope of her employment with Kell-wood; therefore, workers’ compensation was also available to help cover the costs of the accident. Further, the actual accident in the current case was more severe as was demonstrated in the pictures of Downs’s vehicle and Ackerman’s vehicle introduced at trial. Downs had to be extracted from her damaged vehicle by ambulance personnel. Further, Downs was transported from the scene of the accident to the hospital via ambulance, as opposed to Thompson, who did not see a doctor until several days after the accident. This was not a mere “fender bender” impact as was the circumstance in Thompson. Downs presented her medical bills totaling $20,800.30 as prima facie evidence that her medical bills were reasonable and necessary. These, as well as other facts, distinguish the current case from the holding in Thompson; therefore, we find Thompson inapplicable in this instance. Downs’s case provides a much stronger indication that based on the weight of the evidence and the jury’s confusion, a motion for an addi-tur or a new trial on damages should have been granted.

¶ 17. Because of our finding that the circuit judge abused his discretion in failing to grant Downs’s motion for an additur or her motion for a new trial, we reverse and remand this case for the circuit judge to grant an appropriate, suggested addi-tur. If either of the parties fails to accept the additur granted by the circuit court, a new trial on damages shall be held. See Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900, 909 (Miss.2007); Davis v. Walters, 54 So.3d 272, 279 (Miss.Ct.App.2010).

¶ 18. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT 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 AND GRIFFIS, P.JJ., ISHEE, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. BARNES, J„ CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Robert Downs, Downs’s husband, was involved in the original suit, as he filed a loss of consortium claim. He was awarded no damages at trial, and he is not involved in this appeal.


author: LEE, C.J.,

text:
    ONE 1970 MERCURY COUGAR, VIN # 0F9111545940; One 1992 Ford Mustang, Vin # FACP44E4NF173360; One Ford Mustang; and $355.00 U.S. Currency, Appellants v. TUNICA COUNTY, Mississippi, Appellee.
    No. 2010-CA-02039-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2012.
    Rehearing Denied Jan. 15, 2013.

      Marvin David Miller, John M. Collette, attorneys for appellants.
    John Thomas Lamar III, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

¶ 1. In conjunction with Willie Hampton’s arrest for possession of narcotics, the Tunica County Sheriffs Department seized several items of Hampton’s personal property. The County filed a complaint for forfeiture, which was granted after a five-year delay. Hampton, acting pro se, filed an appeal challenging the delay. The issue was addressed by this Court. After determining there were insufficient facts to make a decision as to the reasonableness of the delay, we remanded the case for a hearing. A hearing was held, and the circuit court found that Hampton’s due-process right to a speedy trial was not violated. Aggrieved with the circuit court’s decision on remand, Hampton now appeals a second time.

FACTS AND PROCEDURAL HISTORY

¶ 2. A warrant was issued for Hampton’s arrest for alleged violations of controlled-substance laws. On March 21, 2000, Hampton was arrested at his home by federal and state law-enforcement agencies. After Hampton was arrested, the Tunica County Sheriffs Department (the County) seized a 1970 Mercury Cougar, two Ford Mustangs, and $355 in cash. Nine days later, the County filed a complaint for forfeiture in the Tunica County Circuit Court. Hampton filed his answer on November 1, 2000. On November 15, 2000, the County asked for a stay of discovery because of Hampton’s ongoing federal narcotics case. The circuit court entered an order staying all discovery until the conclusion of the federal criminal and civil cases.

¶ 8. The next recorded action was on December 17, 2001, when Hampton filed a document entitled “Replevin.” In this motion, Hampton requested that the circuit court dismiss the forfeiture petition. The next action of record occurred three years later on December 20, 2004, when the County filed a new petition for forfeiture. Ten days later, Hampton’s attorney withdrew as counsel. Hampton then filed numerous pro se pleadings in the circuit court. On January 31, 2005, Hampton filed a motion for failure to prosecute. On February 18, 2005, the circuit clerk filed a motion to dismiss for want of prosecution. A hearing was noticed, and the circuit court entered an order on March 8, 2005, granting the forfeiture petition in favor of the County.

¶ 4. Hampton appealed to the Mississippi Supreme Court, and his case was assigned to this Court. Finding insufficient evidence to reach a decision on the alleged speedy-trial violation, we held as follows:

We reverse and remand in order to allow the parties to present a record that would allow analysis by this Court under the Barker standards. On remand, Tu-nica County will have an opportunity to explain the delay[,] and Hampton will have an opportunity to explain why he did not request a hearing for three years. Hampton would also have an opportunity to detail just what actual prejudice he may have suffered.

One 1970 Mercury Cougar, VIN No. 0F9111545940 v. Tunica County, 936 So.2d 988, 992-93 (¶ 19) (Miss.Ct.App.2006). In the opinion, we also noted it was impossible to determine if the delay was reasonable because “the record is silent as to when the [federal] criminal proceedings concluded.” Id. at 992 (¶ 17).

¶ 5. On July 15, 2010, the circuit court held a hearing pursuant to the remand instructions. Hampton’s attorney and the County’s attorney were present at the hearing. Hampton was present via telephone, as he was in prison in Colorado. The County stated for the record the relevant dates of the state and federal proceedings and entered a timeline into evidence. According to the County’s timeline, the federal criminal action resulted in a conviction of life imprisonment on July 11, 2001. However, the circuit court’s order dated November BO, 2000, stayed the action pending a final adjudication of the federal civil action as well as the criminal action. The federal civil action was not dismissed until August 24, 2009. The County argued it was following the circuit court’s order in waiting for the conclusion of both the federal civil and criminal actions, and this was the main reason for the delay. Hampton did not present evidence at the hearing. Instead, he argued the hearing was illegal because he was not physically present. The circuit court concluded that although “some prejudice” may have resulted from the delay, the delay was caused mainly by the federal proceedings and Hampton’s imprisonment in Colorado. The circuit court reaffirmed its original decision.

¶ 6. Hampton now appeals a second time, arguing the circuit court erred by (1) not allowing the presentation of evidence regarding a speedy trial, and (2) not allowing him to be physically present at the hearing. Finding no merit to Hampton’s issues, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 7. The standard of review regarding claims of speedy-trial violations is as follows:

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial!] credible evidence. If no probative evidence supports the circuit court’s finding of good cause, this Court will ordinarily reverse. The [S]tate bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

DeLoach v. State, 722 So.2d 512, 516 (¶ 12) (Miss.1998) (internal citations omitted).

DISCUSSION

I. HEARING ON REMAND

¶ 8. Hampton argues the circuit court’s judgment should be reversed a second time because he was prevented from presenting evidence of the Barker factors on remand.

¶ 9. The United States Supreme Court has set out four factors that must be considered in determining whether a defendant’s constitutional right to a speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his rights, and (4) whether the defendant has been prejudiced by the delay. Id. Although the issue in Barker was the right to a speedy trial in a criminal prosecution, the United States Supreme Court and this Court have adopted the Barker test for civil forfeiture actions. United States v. Eight Thousand Eight Hundred & Fifty Dollars in U.S. Currency, 461 U.S. 555, 556, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983); One 1970 Mercury Cougar, 936 So.2d at 992 (¶ 16).

¶ 10. The circuit court held a hearing on the Barker factors pursuant to the remand instructions. However, Hampton argues he is entitled to another hearing because the circuit court refused to allow him to present evidence. Hampton bases this argument on the following statement made by the circuit court judge during the remand hearing: “Mr. Hampton, this proceeding is not that of the merits. We’re here procedurally.... We are not here to try your case. We’re not here to involve ourselves with evidence.”

¶ 11. The County was allowed to enter an exhibit into evidence, and there is no indication the circuit court prevented Hampton from doing the same. Regardless, Hampton made clear he was not putting on evidence at the hearing because he was not physically present. When asked to present his case, Hampton complained he had been “extremely prejudiced,” but he did not give any specific information. He then complained his prior attorney was incompetent. Hampton concluded by stating: “So this is what I’m saying for the record, if I’m not present, like the Supreme Court mandated, this is an illegal ... hearing. I’m not afforded my due process. So with that, I would like to end.”

¶ 12. Although Hampton contended throughout the hearing he was acting pro se, he had an attorney physically present at the hearing. The attorney did not speak, but his name is on the cover page on the transcript as appearing for Hampton. Next to the attorney’s name, the words “not counsel” appear in parentheses. When Hampton was asked about the attorney, Hampton responded: “He’s not my attorney. [He] is only, only to represent my appearance in court. That’s all. Nothing else.” In his brief, Hampton argues he had thirty-four exhibits to present at the hearing, but he was unable to present them because he was not physically present. Hampton offers no explanation why the attorney who was physically present could not have presented the exhibits.

¶ 13. We find the circuit court properly conducted the hearing on remand as instructed by this Court. Hampton was given an opportunity to present a record but failed to do so. Further, Hampton chose to proceed pro se, even though hired counsel was present. We find no merit to Hampton’s contention that he was prevented from presenting evidence.

¶ 14. Applying the Barker factors, we must rely on the evidence available. As to the first factor, the length of the delay, the five-year delay weighs heavily in favor of Hampton.

¶ 15. As to the second factor, the reason for the delay, much of the delay was due to the circuit court’s order staying the proceedings until the federal civil charges were adjudicated. The federal civil action was not dismissed until August 24, 2009. The County asserts that in 2004 when it realized Hampton’s federal civil action had been stalled indefinitely, it filed a motion to proceed with the forfeiture hearing. A hearing was scheduled for February 24, 2005, but Hampton did not participate despite being noticed. From this hearing, the order of forfeiture was entered. As the delay was mainly due to the circuit court’s order staying the action, this factor weighs in favor of neither party.

¶ 16. The third factor is the assertion of the right to a speedy trial. Although it was the State’s duty to prosecute the case, the circuit court’s order stayed the case pending the resolution of the civil, as well as criminal, federal cases. Hampton argues the circuit court had no authority to stay the action pending the federal civil charge. See Miss.Code Ann. § 41-29-179(1) (Rev.2009). However, Hampton did not challenge this or ask the circuit court to lift the stay at any point. Hampton cannot now bring this argument for the first time on appeal. Brown v. State, 995 So.2d 698, 703 (¶ 21) (Miss.2008). Hampton did not assert his right to a speedy trial until January 31, 2005. This factor weighs in favor of the County.

¶ 17. As to the fourth and most critical factor, prejudice to the defendant, Hampton has presented no evidence. Hampton argues he subpoenaed seventeen witnesses to testify regarding how he was prejudiced, but he could not present these witnesses because he was not physically present at the hearing. Again, Hampton chose not to testify or present evidence at the hearing. Factor four weighs in favor of the County.

¶ 18. We cannot find the circuit court erred in holding Hampton’s right to a speedy trial was not violated. Although the length of the delay weighs in Hampton’s favor, Hampton failed to offer any proof as to the remaining three Barker factors despite having several opportunities. Most importantly, a “due[-]process violation cannot be established absent a showing of prejudice to the appellant.” Jackson v. State, 910 So.2d 658, 665 (¶ 17) (Miss.Ct.App.2005) (quoting United States v. Tucker, 8 F.3d 673, 676 (9th Cir.1993)). Hampton put on no proof of prejudice.

¶ 19. We find the circuit court made the correct decision with the evidence available. This issue is without merit.

II. PHYSICAL PRESENCE AT THE HEARING

¶ 20. Hampton argues he was denied due process because he was not physically present at the hearing. Hampton was incarcerated in Colorado, and he was present at the hearing by telephone. We can find no authority for Hampton’s proposition that he had a constitutional right to be physically present at a civil forfeiture hearing. This issue is without merit.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.


author: GRIFFIS, P.J.,

text:
    Xiaoyan Li “Shannon” MONTGOMERY, Appellant v. Linda A. STRIBLING, Individually, Appellee.
    No. 2011-CA-01049-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2012.
    Rehearing Denied Mar. 12, 2013.
    Certiorari Denied June 20, 2013.

      James L. Gray, Picayune, attorney for appellant.
    Linda A. Stribling, appellee, pro se.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This case considers whether a trial court may disregard admissions that are made by a party’s failure to respond to requests for admissions under Rule 36 of the Mississippi Rules of Civil Procedure.

¶2. After a bench trial, the Circuit Court of Harrison County determined that the plaintiff, Xiaoyan Li “Shannon” Montgomery, failed to meet her burden of proof in the claims she asserted against Linda Stribling. The circuit court entered a judgment in favor of Stribling. From this judgment, Montgomery appeals and argues that the court committed error when: (1) it denied her motion to deem admitted the requests for admissions, (2) it failed to enter a judgment when the admissions were sufficient to establish her claims for breach of contract and fraud, and (3) it failed to enter a judgment for damages based on the evidence admitted at trial.

FACTS

¶ 3. In her complaint, Montgomery brought claims for breach of contract, fraud, and unjust enrichment against several defendants: Russell Benet, doing business as Lagniappe Construction and Real Estate Consulting, LLC (“Lagniappe”); Stribling, individually; and Elite Modular Structures, LLC (“Elite”). The circuit court granted Montgomery a summary judgment against Benet in the amount of $84,929. Prior to trial, Montgomery asked to dismiss Elite because the LLC had not been formed until after the events that are the subject of this litigation. In this appeal, Montgomery’s claims against Stribling are in issue.

¶4. Montgomery owns a fishing camp and rental cabins in Hancock County, Mississippi. The business is known as The Cabins at Shoreline Park. In 2005, Hurricane Katrina damaged the office building and apartment on the property.

¶ 5. In March of 2008, Stribling contacted Montgomery to inquire about lodging availability for Benet. Stribling was a general contractor of construction projects. Benet worked for Stribling. Montgomery and Stribling agreed upon an arrangement that allowed Benet to live in one of the cabins.

¶ 6. In May of 2008, Benet arranged a meeting between Montgomery and Stri-bling to discuss rebuilding the office and apartment. Benet later entered into an agreement with Montgomery to remodel and construct the office and apartment for $100,000. Benet then tore down the existing structure using a remodeling permit. Because the structure was completely torn down, the City of Bay St. Louis issued a stop-work order and required that a building permit for new construction be obtained for work to continue.

¶7. In June, Benet arranged another meeting between Montgomery and Stri-bling. Montgomery agreed to pay Stri-bling $12,200 for her assistance in obtaining a construction permit. Montgomery then wrote a check to Elite for $6,100. With the aid of her son, a local attorney, Stribling applied for a construction permit from the city. The city granted Stribling a permit. The permit recorded Stribling as the contractor responsible for the construction project.

¶ 8. After Stribling obtained the permit, Benet installed support poles and poured a concrete slab. The slab was not level, and the poles were not aligned correctly. Neither Benet nor Stribling completed any further construction. They did not repair the defects in the slab or pole alignment.

¶ 9. Throughout this period, Montgomery paid Benet $76,729 toward the project. Benet paid $2,000 to Stribling’s son for attorney’s fees and the remaining $6,100 of the $12,200 that was due to Stribling. Montgomery paid a total of $84,929 of the $100,000 agreed-upon amount. The costs to repair defects in the workmanship of the slab and poles or costs to complete the construction of the apartment and office building were not included in the amount Montgomery paid to Benet and Stribling.

¶ 10. After the complaint was filed, Montgomery’s attorney served discovery requests on Stribling. Specifically, Montgomery propounded the following requests for admissions:

REQUEST FOR ADMISSION NO. 1: Admit or deny that you had an ownership interest in Elite Modular Structures, LLC from May 2008 through October 2008.
REQUEST FOR ADMISSION NO. 2: Admit or deny that you were the sole owner of Elite Modular Structures, LLC from May 2008 through October 2008.
REQUEST FOR ADMISSION NO. 3: Admit or deny that you had sole control and authority over the acts and the contracts made by Elite Modular Structures, LLC from May 2008 through October 2008.
REQUEST FOR ADMISSION NO. 4: Admit or deny that Russell Edward Benet performed construction work or provided services to Elite Modular Structures during 2008, and that he received compensation for such services.
REQUEST FOR ADMISSION NO. 5: Admit or deny that you had knowledge of the fact that Russell Edward Benet was collecting money from Shannon Montgomery after June 80, 2008[,] for a construction project on Highway 608 in Bay St. Louis in 2008 for which Elite Modular Structures, LLC had been issued a permit by the City of Bay St. Louis.
REQUEST FOR ADMISSION NO. 6: Admit or deny that Elite Modular Structures, LLC received some of the money paid by Shannon Montgomery to Russell Edward Benet.
REQUEST FOR ADMISSION NO. 7: Admit or deny that Russell Edward Benet appeared to have authority to act on behalf of Elite Modular Structures, LLC or you concerning the construction of the property of Shannon Montgomery on Highway 603 in Bay St. Louis.
REQUEST FOR ADMISSION NO. 8: Admit or deny that you did not supervise any of the work performed on the property of Shannon Montgomery by Russell Edward Benet or any person under his control or direction.
REQUEST FOR ADMISSION NO. 9: Admit or deny that a contract existed (whether written, oral or implied) between Elite Modular Structures, LLC and Shannon Montgomery [for] the construction of an office and apartment on her property at 10296 Highway 603 in Bay St. Louis, Mississippi.
REQUEST FOR ADMISSION NO. 10: Admit or deny that Shannon Montgomery has paid to you, your son, Elite Modular Structure, LLC or Russell Benet a total of $78,100.00 in 2008 for the obtaining of a construction permit and the construction of an office and apartment on her property at 10296 Highway 603 in Bay St. Louis, Mississippi.
REQUEST FOR ADMISSION NO. 11: Admit or deny that the reasonable costs, labor and materials, for what was actually constructed at 10296 Highway 603 in Bay St. Louis, MS in 2008 is far less than $78,100.00.
REQUEST FOR ADMISSION NO 12: Admit or deny that what was actually constructed at Highway 603 in Bay St. Louis, MS in 2008 is not up to good and workmanlike standards for construction.

¶ 11. Stribling did not answer the requests within thirty days, as required by Rule 36 of the Mississippi Rules of Civil Procedure. Stribling did file a response that was four months late. Thereafter, Montgomery filed a motion for summary judgment and a motion for the circuit court to deem admitted the requests for admission, pursuant to Rule 36. Stribling never filed a motion to withdraw or amend the admissions. The circuit court denied both motions.

¶ 12. On February 8, 2011, this matter was heard at a bench trial. Stribling represented herself at this trial. On May 19, 2011, the circuit court entered a judgment in favor of Stribling.

ANALYSIS

¶ 13. Our analysis begins with the acknowledgment that Stribling failed to file a brief with this Court. Failure “to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error.” Varvaris v. Perreault, 813 So.2d 750, 752 (¶ 5) (Miss.Ct.App.2001) (quoting Dethlefs v. Beau Matson Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). In order to merit reversal, an “appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Id. (quoting Selman v. Selman, 722 So.2d 547, 551 (¶ 13) (Miss.1998)).

1. Whether the circuit court committed reversible error in denying Montgomery’s motion to deem the requests for admissions admitted, due to Stribling’s failure to timely respond under Mississippi Rule of Civil Procedure 36.

¶ 14. In this first issue, Montgomery argues that the trial court abused its discretion to deny her motion to deem the requests for admissions to be admitted. Montgomery asks this Court to enforce Rule 36 of the Mississippi Rules of Civil Procedure. In pertinent part, Rule 36 provides:

(a) A party may serve upon any other party a written request for the admission, for the purpose of the pending action only, of the truth of any matters within the scope of [Mississippi] Rule [of Civil Procedure] 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact.... The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requestiny the admission a written answer or objection addressed to the matter, signed by the party or by his attorney
(b) Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits -of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

(Emphasis added).

¶ 15. Recently, in Boyd v. Boyd, 83 So.3d 409, 416 (¶ 19) (Miss.Ct.App.2011), we acknowledged “that this Court has strictly enforced the application of Rule 36 according to its terms.” (Citing Educ. Placement Servs. v. Wilson, 487 So.2d 1316, 1318 (Miss.1986) (citation omitted)). “[T]he rule of law in this State is that Rule 36 is to be enforced according to its terms. Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” DeBlanc v. Stancil, 814 So.2d 796, 800 (¶ 17) (Miss.2002) (emphasis added). “[D]espite the fact that harsh consequences might result,” the supreme court has explained “rules are promulgated for a purpose.” DeBlanc, 814 So.2d at 801 (¶ 23); see also Earwood v. Reeves, 798 So.2d 508, 516 (¶ 26) (Miss.2001).

¶ 16. In In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 426 (¶ 2) (Miss.2009), the plaintiff argued the chancery court erred in refusing to deem requests for admission admitted despite the defendant’s untimely response. There, the defendant was more than sixty-four days late in responding. Id. at 432 (¶ 27). Similar to Montgomery, the plaintiffs had moved to deem the requests as admitted at the start of trial. Id. The chancellor found that the plaintiffs’ motion was not timely. Id. The supreme court found the plaintiffs were not required to petition for deeming the requests admitted. Id. at (¶ 28). This is because “a judge does not have the discretion to deem the matter admitted, because a request is conclusively established upon a party’s failure to answer within thirty days.” Id.

¶ 17. The plaintiff in Boyd filed her responses to requests for admissions almost a year after they were due. Boyd, 83 So.3d at 416 (¶ 21). She never filed a motion to withdraw or amend the admissions. Id. at 414 (¶ 10). We stated there that “this Court has strictly enforced the application of Rule 36 according to its terms.” Id. at 416 (¶ 19).

¶ 18. “Matters of discovery are left to the sound discretion of the trial court, and discovery orders will not be disturbed unless there has been an abuse of discretion.” Scoggins v. Baptist Mem’l Hosp.-Desoto, 967 So.2d 646, 648 (¶ 8) (Miss.2007) (quoting Earwood, 798 So.2d at 514 (¶ 19)). Here, Stribling did not move to amend or withdraw the admissions, even though Rule 36 requires such a motion in order for the admissions not to be deemed admitted by operation of law. Certainly, the circuit judge has discretion under Rule 36 to grant amendments or withdrawals. Langley v. Miles, 956 So.2d 970, 973 (¶ 9) (Miss.Ct.App.2006). The remedy under Rule 36 is to seek, by motion, withdrawal or amendment of the admissions. See Boyd, 83 So.3d at 417 (¶ 22). The circuit court cannot “help” the untimely party if “she failed to avail herself of the remedies provided under Rule 36(b).” Id.; see also Martin v. Simmons, 571 So.2d 254, 257 (Miss.1990). The rule’s language is that without a motion to “activate” the trial judge’s discretion to grant amendment or withdrawal, the requests are deemed admitted on the thirty-first day by operation of law. Martin, 571 So.2d at 257 (where the defendants never filed a motion, “the chancellor was not called upon to exercise his discretion”).

¶ 19. In its judgment, the circuit court made factual findings that were contradicted by the required admissions. The circuit court found “there is no indication that Benet had actual or apparent authority to act on behalf of Stribling.” Request for admission number 7 served on Stribling admitted: “Admit or deny that Russell Edward Benet appeared to have authority to act on behalf of Elite Modular Structures, LLC or you concerning the construction of the property of Shannon Montgomery on Highway 603 in Bay St. Louis.” Accordingly, it was error for the circuit court not to have considered this matter to be admitted. We conclude that Rule 36 conclusively established Stribling’s admissions to the above requests because she failed to timely respond and never moved to have her admissions withdrawn or amended. Therefore, the circuit court erred when it did not deem the requests admitted.

2. Whether the requests, if deemed admitted, and the facts established at trial are sufficient to support Montgomery’s causes of action for breach of contract and’fraud.

¶ 20. “A party is entitled to summary judgment if ... admissions ... demonstrate that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Langley, 956 So.2d at 975-76 (¶ 17). This Court reviews a denial of summary judgment de novo. Id. at 976 (¶ 17) Montgomery carries the burden here to establish the elements of her claims. See id. The party who propounded the requests in Langley was entitled to summary judgment because with the admissions, the trial court properly found that there was no genuine issue of material fact for trial. Id. at 972 (¶ 6), 975 (¶ 15).

¶21. The motion for summary judgment in DeBlanc was based only on an untimely response to requests for admissions. DeBlanc, 814 So.2d at 797 (¶ 4). The requests there were deemed admitted because of the failure to file a motion to withdraw or amend. Id. at 798 (¶ 7). The supreme court held that the trial court could find the matters deemed admitted were conclusively established and, as such, were sufficient to support a grant of summary judgment. Id. at 801-02 (¶¶ 26-27).

¶ 22. Here, it was error for the circuit court to ignore the deemed admissions. As discussed above, Montgomery’s requests for admissions were deemed admitted by operation of law, and thus, the following were conclusively established: (1) Stribling had sole ownership, control, and authority over the acts of and contracts made by Elite; (2) Benet performed work for Elite and was paid for that work; (3) Stribling knew Benet was collecting money from Montgomery for a project on Montgomery’s property and the city had issued Elite the building permit; (4) a contract (whether oral, written, or implied) between Elite and Montgomery existed; (5) Benet was Stribling’s employee and appeared to have authority to act on her behalf; (6) Stribling received some of the money paid by Montgomery to Benet; (7) Stribling did not supervise the construction work; (8) the value of the labor performed and materials for what was actually constructed was far less than the amount Montgomery paid; (9) what was actually constructed was not up to good and workmanlike standards for construction; and (10) Montgomery had paid to Stribling, Stribling’s son, Elite, or Benet a total of $78,100.

¶23. Further, the admissions established that Benet had apparent authority to act on Stribling’s behalf, and Stribling knew Benet was collecting money from Montgomery. Stribling admitted that she received some of this money. From those admissions, Benet was thus an agent of Stribling, capable of binding her by his actions and representations. Because Stribling admitted to be the sole owner of Elite and to have sole control over the acts and contracts of Elite, Elite was an alter ego of Stribling. Stribling can thus be held hable for the contracts of Elite.

¶ 24. Stribling also admitted that there was a contract. Stribling admitted that the work under the contract (the uneven slab and misaligned poles) was actually performed for far less money than she received from Montgomery. Stribling admitted to a breach of the contract, by admitting that what was actually constructed was not up to good workmanlike standards for construction. Therefore, Montgomery was entitled to be put in the position she would have occupied if there had been no breach. See Culbreath Revocable Trust v. Sanders, 979 So.2d 704, 709 (¶ 22) (Miss.Ct.App.2007) (citing Eastland v. Gregory, 530 So.2d 172, 174 (Miss.1988)). Therefore, as to Montgomery’s breach-of-contract claim, there were no genuine issues of material fact for trial, and summary judgment should have been granted.

¶ 25. Summary judgment cannot be granted where the admissions did not establish all the elements of the claims. Martin, 571 So.2d at 258. To establish fraudulent misrepresentation, Montgomery must show:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.

Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 100 (¶ 13) (Miss.2008) (quoting Bank of Shaw v. Posey, 573 So.2d 1355, 1362 (Miss.1990)).

¶ 26. Here, none of the admissions that Montgomery based her motion for summary judgment on contained any specific representations by either Stribling or Benet, and these admissions did not establish the elements of fraudulent misrepresentation. Thus, we conclude that the circuit court properly denied summary judgment on Montgomery’s fraudulent-misrepresentation claim.

¶27. Therefore, since the above facts were conclusively established because they were deemed admitted by operation of law, the circuit court erred in denying summary judgment in favor of Montgomery on her breach of contract claim. Summary judgment was proper on the breach-of-contract claim because there were no genuine issues of material fact for the court to decide, as the necessary facts had been admitted.

3. Whether Montgomery established damages through Stribling’s admissions and the evidence at trial.

¶ 28. At trial, Stribling claims that it was undisputed that the cost (including prejudgment interest) of putting Montgomery in the position as if no breach had occurred was $107,077.64.

¶ 29. Montgomery also sought damages for emotional distress. For a damages award for mental anguish and emotional distress in a breach-of-contract action, a plaintiff must show:

(1) that mental anguish was a foreseeable consequence of the particular breach of contract, and (2) that he or she actually suffered mental anguish. Such generalizations as “it made me feel bad,” or “it upset me” are not sufficient. A plaintiff must show specific suffering during a specific time frame. These requirements are not different from the requirements to establish physical pain and suffering.

Univ. of S. Miss. v. Williams, 891 So.2d 160, 173 (¶ 31) (Miss.2004). Montgomery cited no specific instances of suffering, and only stated generalizations, such as that she “was just up and down every day every moment” and that she was “depressed.” This testimony does not sufficiently establish damages for emotional distress.

¶ 30. We have concluded that the circuit court committed reversible error when it failed to deem Montgomery’s requests for admissions to be conclusively admitted. We also recognize that Stribling has failed to file a brief in this appeal. The failure to file a brief is “tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error.” Varvaris, 813 So.2d at 752 (¶ 5). We reverse this case because we find that the “appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Id. Based on this standard, this Court has determined that the appropriate remedy in this appeal is to remand this case to the circuit court to enter a judgment against Stribling and assess the appropriate amount of damages based on the evidence presented at trial.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK 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., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ, CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Prior to and during the time in issue here, Stribling used the name Elite Modular Structures in her business dealings.

      . Before the trial began, the circuit court informed Stribling that, simply because she served as her own counsel, the court could not "relax or disregard the Rules of Evidence, procedure or courtroom protocol for you simply because you're representing yourself.” Stribling acknowledged, "Yes, sir, I understand.” She responded the same when the court informed her that she "must follow all the technical rules of substantive law, civil procedure, and evidence in making motions, objections, and the presenting of evidence throughout the course [of the trial].”