author: CHARLES R. JONES, Judge.

text:
    Marie Z. THIBODEAUX and Ken Thibodeaux v. ASBESTOS CORPORATION LIMITED, et al.
    No. 2007-CA-0617.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 20, 2008.
    Rehearing Denied March 17, 2008.

      Mickey P. Landry, Frank J. Swarr, David R. Cannella, Landry & Swarr, L.L.C., New Orleans, LA, and John F. Dillon, John F. Dillon, PLC, Folsom, LA, for Plaintiffs/Appellants.
    Samuel M. Rosamond III, Adam D. de-Mahy, Crawford Lewis PLLC, New Orleans, LA, for Onebeacon Insurance Company.
    Susan B. Kohn, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, LA, for Eagle, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

hThe appellants seek review of a district court judgment which granted the appel-lees’ motion for summary judgment. We affirm.

One of the named appellants, Marie Thi-bodeaux, has died. She and her husband, Ken Thibodeaux, alleged that the cause of her illness and subsequent death occurred as a result of contracting an asbestos-related disease, mesotheiloma, a type of cancer of the lining of the lungs.

The Thibodeauxs filed suit on December 11, 2002, in the Civil District Court for the Parish of Orleans alleging personal injuries as a result of their exposure to asbestos. The petition named a total of fourteen (14) defendants, and after a number of supplemental petitions, a total of eighteen (18) parties were named as defendants. The defendants were comprised of Mrs. Thibodeaux’s employers, premises owners, and various manufacturers, producers, and suppliers of asbestos-containing products as well as the insurers of some of these parties.

In their petition for damages, the Thibo-deauxs alleged that Mrs. Thibodeaux contracted mesothelioma after being exposed to asbestos-containing products through both her husband’s and father’s clothing. The petition alleges that her |2father and husband worked at the following locations: Johns-Manville; Louisiana; Todd Shipyards; Avondale Industries; Southern Pacific Railway; and Pipeline Services, Inc. The Thibodeauxs alleged that all of these named defendants have a domicile in either Jefferson or Orleans Parishes.

The Thibodeauxs also claimed that Mrs. Thibodeaux was exposed to asbestos while she lived in the Windmill Mobile Home Park, and while she was a student and nurse at Charity Hospital in New Orleans, and also while she was a nurse at the Lallie Kemp Hospital.

Two of the named defendants involved in this appeal are Eagle Asbestos & Packing Company, and its insurer, OneBeacon America Insurance Company. Eagle is the alleged seller, installer, and remover of asbestos containing products at Charity Hospital in New Orleans and at the Lallie Kemp Hospital.

On March 10, 2005, Eagle and OneBea-con filed a motion for summary judgment requesting that the district court dismiss it from the case. They argued for dismissal from the case on the basis that: 1) the Thibodeauxs could not produce evidence that Eagle supplied or used any asbestos-containing materials at the exposure sites; and, 2) that Mrs. Thibodeaux’s exposure to Eagle’s asbestos-containing products was not a substantial factor in causing her mesothelioma.

On April 21, 2005, the Thibodeauxs filed an opposition to Eagle and OneBeacon’s motion for summary judgment. In their opposition memo, they submitted evidence that they alleged showed the existence of specific facts which established a genuine issue of material fact and asserted that Eagle and OneBeacon |swere not entitled to summary judgment. Specifically, they asserted: 1) that Mrs. Thibodeaux was exposed to asbestos while attending nursing school at and employed at Charity Hospital New Orleans and while working at Lallie Kemp Hospital; and 2) Eagle Asbestos and Packing Co., now known as Eagle, Inc., was a seller, installer, and remover of asbestos-containing materials at Charity Hospital New Orleans and Lal-lie Kemp Hospital.

The hearing for the motion for summary judgment was held on April 29, 2005. At the conclusion of the hearing, the district court ordered the plaintiffs to supplement their opposition with evidence that Mrs. Thibodeaux was exposed to asbestos-containing materials manufactured, supplied, or installed by Eagle, within five (5) days.

In response, the Thibodeauxs hand-delivered correspondence to the district court, dated May 4, 2005, in which they indicated that no additional submission of evidence would be filed since all of the evidence necessary to defeat the motion for summary judgment had already been provided to the court.

Subsequently, the district court granted Eagle’s and OneBeacon’s motion for summary judgment on May 16, 2005. The Thibodeauxs requested that written reasons for judgment be provided by the district court.

In its reasons for judgment, the district court indicated that it granted Eagle’s and OneBeacon’s motion for summary judgment on the ground that the “plaintiff failed to offer evidence demonstrating that Marie Thibodeaux was exposed to asbestos containing materials manufactured, supplied, or installed by Eagle, Inc.”

This timely appeal followed.

In their sole assignment of error, the Thibodeauxs allege that the district court erred in granting Eagle’s and OneBeacon’s motion for summary judgment. |4They request that this Court reverse the district court judgment and remand the case to the district court for a trial on the merits.

DISCUSSION

The appellate court reviews summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Shambra v. Roth, 04-0467, p. 2 (La.App. 4 Cir. 9/29/04), 885 So.2d 1257, 1259. Accordingly, a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Summary judgments are favored and factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponents favor. Willis v. Medders, 00-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1050; Independent Five Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 17 (La.02/29/00), 755 So.2d 226; Berthelot v. Avondale Industries, Inc., 2002-1779, (La.App.4.Cir.02/26/03), 841 So.2d 91; writ denied, 854 So.2d 368.

The trial court cannot make credibility determinations on a motion for summary judgment. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 16 (La.02/29/00), 755 So.2d 226, 236. It is not the function of the district court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Additionally, the weighing of conflicting evidence has no place in summary judgment procedure. See also Knowles v. McCright’s Pharmacy, Inc., 34,559, p. 3 (La.App. 2 Cir. 4/4/01), 785 So.2d 101, 103.

|fiIn the instant matter, the appellants assert that the district court erred in granting summary judgment in favor of the Eagle and its insurer OneBeacon. The appellants assert that they did not fail to offer evidence demonstrating that Mrs. Thibodeaux was exposed to asbestos-containing materials supplied by Eagle. They assert that the evidence presented to the district court demonstrated that they were genuine issues of material fact that should be evaluated by a jury or the trier of fact to determine whether Mrs. Thibodeaux was exposed to Eagle’s asbestos-containing products.

Additionally, the appellants argue that “Eagle and OneBeacon have failed to produce any evidence to debunk the universally recognized causal relationship between asbestos exposure and mesothelioma. As this Court has acknowledged, ‘any’ exposure to asbestos above background is a causative factor in producing the disease.” Citing Torrejon v. Mobil Oil Co., 03-1426 (La.App. 4 Cir. 6/2/04), 876 So.2d 877.

However, the Torrejon case is distinguishable and the Thibodeauxs’ reliance on this case is misplaced. In Torrejon, the widow of a merchant mariner, who appeared individually and as personal representative of her husband’s estate, brought a wrongful death action against the vessel owner and the asbestos manufacturers after her husband died from mesothelioma caused by asbestos exposure. Following settlements and dismissals, the vessel owner was the only remaining defendant at time of trial. Following a jury trial, district court entered a judgment on the jury verdict for the vessel owner, but granted the widow’s motion for judgment notwithstanding the verdict (JNOV) and awarded general and special damages. The vessel owner appealed. This Court affirmed the district court [¿judgment and held, inter alia, that the mariner’s exposure to asbestos on the vessel was a cause of his meso-thelioma. Id., p. 14, 876 So.2d at 887-888.

However, contrary to what the Thibo-deauxs allege, this Court, in Torrejon did not hold that the standard in an asbestos case was that “any” exposure was sufficient to prove causation. On the contrary, this Court clearly noted that in Torrejon, the matter was brought under the Jones Act, thereby making the level of causation different from that of other torts. In Tor-rejon, we stated that “[t]he legal standard regarding the level of causation under the Jones Act is different than that required for other torts ...” Id., p. 20, 876 So.2d at 891.

Additionally, the appellants also cite to Grant v. American Sugar Refining, Inc., 06-1180 (La.App. 4 Cir. 1/31/07), 952 So.2d 746, to support their contention that the appellants have satisfied the test for asbestos exposure, that is, that they have established sufficient exposure to Eagle’s asbestos containing products.

In Grant, the plaintiff, who was also the son of an employee of a sugar refinery, alleged that he contracted malignant meso-thelioma as a result of exposure to asbestos brought home on the work clothes of his father. The plaintiff brought suit against the company (Eagle) that sold, installed and removed asbestos-containing insulation products at the sugar refinery. The company in turn filed a motion for summary judgment which was granted by the district court. The plaintiff appealed.

This Court, after de novo review, held that genuine issues of material fact were present as to whether the employee was exposed to asbestos containing products and whether the plaintiff was exposed to asbestos containing products |7which precluded the grant of summary judgment to the company. Particularly, this Court wrote:

We note at the outset that in asbestos cases there is a need to show that the plaintiff was exposed to the defendant’s asbestos product. To satisfy this burden, plaintiff submitted William Grant’s employment records, that place him at the Domino Sugar Refinery from approximately 1979 until 1983. Eagle does not contest this point, but argues that plaintiffs burden is to prove a specific exposure to asbestos and it asserts the employment records do not meet that burden here. We find at the very least Thelonius Grant creates a genuine issue of material fact by submitting an Amstar Corp. [Domino Sugar Refinery] Receiving Report dated September 8, 1982. This Receiving Report names Eagle as the contractor who satisfactorily completed a contract to perform the following:
1. Repair insulation on pit tank heads and rejacket — Bldg. 19-1— 250°F.
2. Insulate condensate lines on ground floor near pit tank — Bldg. 19-1 — 250°F.
3. Repair insulation on # 3 turbine exhaust steam expansion joint and stop valve — Bldg. 19-1 — 260°F. Insulate transfer line — 19-3—216°F.
4. Repair insulation on deaerator head (illegible symbol) P. — Bldg. 19-2 — 250°F.
5. Rejacket # 1 boiler feedwater line and install blanket insulation on valves — Bldg. 19-2 — 275°F/600°F.
6. Repair insulation on # 1 boiler steam drum head and main steam line including new porta(illegible) blanket insulation for manway, safety valve and line flange — Bldg. 19-2— 430/600°F.
7. Repair boilers 2 through 6 insulation on rear main steam line — Bldg. 18-2 — 520°F.
8. Repair and rejacket feedwater line on boilers 2 through 6 and install portable |sblankets on drum heads— Bldg. 19-2 — 275/430°F.
9. Fabricate and install removable blankets insulation on # 1 boiler and drum bottom — Bldg. 19-2 — 430°F.
10. Insulate condensate system tank and pipe pump in Bldg. 20-1 — 212°F.
11. Insulate 1 1/2", 2", 3" and 4" condensate piping to condensate tank from liquid sugar heaters — Bldg. 20-l/2-215°F.
12. Insulate crystallizer heating system-blankets to be used for valves— Bldg. 21-6 — 240°F.
The work to be performed hereunder shall commence on 9/13/82 and shall be completed by 10/15/82.
Eagle contends that this Receiving Report is insufficient to establish William Grant’s exposure to asbestos because it references “insulation,” not asbestos. However, we find this report, when reviewed with the following circumstantial evidence, creates a genuine issue of material fact as to William Grant’s exposure to asbestos containing products. Eagle has brought forth no evidence to prove that William Grant could not have been exposed, nor has the defendant ever denied that Domino Sugar Refinery did have asbestos-containing materials. Without more, the fact that Mr. Grant’s father worked on a premises that had asbestos-containing products, raises a genuine issue of material fact as to whether Thelonius Grant was exposed. Nevertheless, plaintiff further bolsters his argument with more evidence.
Plaintiff submitted the deposition of Mr. Fred Schuber, Eagle’s President, who identified Mr. Leo Santana as one of several estimators working for Eagle. Plaintiff submitted Mr. Santana’s deposition concerning the asbestos-containing products Eagle carried. Mr. Santana’s deposition confirmed that Eagle had contracts with the sugar refinery, known to him as American Sugar or AmStar, and that Eagle used asbestos-containing Garlock sheet gaskets. Mr. Santana’s deposition further confirmed that Eagle did the insulation work at the sugar refinery | awhere Mr. Grant’s father worked in the forties, fifties, and sixties. Plaintiff submitted the deposition of Mr. James Donald “Don” Roussel, an engineer at the Domino Sugar Refinery from 1955 to 1960 (as utility superintendent) and from 1968 to 1990 (as power superintendent). Mr. Roussel testified that the pipefitting foreman would inspect the plant, specifically checking pipes, and if the foreman observed nicks in the insulation, he would report it to Mr. Roussel, who would write a purchase requisition.
In regard to the insulation contractor who would supply materials and labor, Mr. Roussel testified that Eagle was the only contractor he recalled doing insulation work at the plant. Later in Mr. Roussel’s deposition, he quantified Eagle’s presence at the Domino Sugar Refinery, stating that he recalled Eagle performing 90% of the insulation work at Domino.
In addition, plaintiff submitted Mr. Kenneth Joseph Dufour’s deposition. Mr. Dufour worked at Domino Sugar from 1965 to 2001 as a forklift operator in Warehouse & Shipping; a maintenance mechanic, doing repairs on equipment and machinery throughout the whole plant; and as a utility mechanic in the boiler house.
In regard to insulation work at the plant, Mr. Dufour testified that Eagle was the only contractor that did insulating in the plant in addition to Mr. Lem-oine, who was a Domino insulator who did minor jobs. Mr. Dufour testified that asbestos was in the plant the entire time he worked there. He also recalled that Eagle did stenciling on pipes indicating the presence of asbestos. Finally, Mr. Dufour stated that Eagle removed asbestos from the Pan House and that Eagle supplied insulation to the plant.
Plaintiff also submitted Mr. Pete Mar-aia’s deposition. He was a staff engineer at Domino Sugar beginning in 1974 and was assigned to the Arabi refinery beginning in 1982. Mr. Maraia stated that asbestos was located in the Char House and the Pan House. Mr. Maraia relates that Eagle would inspect the insulation at the plant when he or his supervisor decided it was needed. Mr. Maraia also stated that Eagle did the stenciling on the insulation to mark asbestos.
ImFinally, plaintiffs own deposition states that he washed his father’s work clothes while his father was employed at the sugar refinery.

Grant, 06-1180, pp. 5-8, 952 So.2d at 749-750.

We conclude that Grant is distinguishable from the instant case for several reasons. First, this Court clearly indicated that in Grant, the evidence submitted by the Mr. Grant, which included detailed employment records which place his father at the sugar refinery, were concurrent with the Receiving Reports which specifically place the insulation company, Eagle, at the sugar refinery at the same time of Mr. Grant’s father’s employment. Second, we found that Mr. Grant’s allegations were also supported by several affidavits which each corroborated his allegation that Eagle had contracts with the sugar refinery and had performed substantial insulation work with asbestos containing materials. The affidavits indicated that the company performed extensive insulation work, even going as far as stenciling the insulated pipes to identify the presence of asbestos. Third, we considered the deposition of Mr. Grant himself in which he testified that he washed his father’s work clothes while his father was employed at the sugar refinery.

Eagle and OneBeacon vigorously assert that although the Thibodeauxs maintained that there were numerous sources of exposure to asbestos, that they submitted insufficient evidence in their attempt to show Mrs. Thibodeaux’s exposure to asbestos-containing products at Charity Hospital. They note that the best evidence that the appellants were able to submit was a suggestion that Eagle may have supplied products which were used at Charity Hospital at some point in time between 1959 and 1984.

Eagle and OneBeacon also note that there was no production of evidence showing that Eagle supplied products to Charity Hospital between 1963 and 1966, which is the time when Mrs. Thibodeaux was employed at Charity. Eagle and OneBea-con also assert that there was no evidence whatsoever that Mrs. Thibodeaux was ever actually exposed to any products which were supplied, installed, or removed by Eagle.

Additionally, Eagle and OneBeacon cite to Vodanovich v. A.P. Green Industries, Inc., 03-1079 (La.App. 4 Cir. 3/3/04), 869 So.2d 930, to support their argument that the district court was correct in granting its motion for summary judgment. In Vo-danovich, plaintiffs brought a wrongful death action, arising out of a longshoreman’s exposure to asbestos, and subsequent development of malignant mesotheli-oma, against vessel repair companies. The district court granted summary judgment in favor of the vessel repair companies. The longshoreman’s representative appealed. This Court held that the evidence was insufficient to establish a causal connection between the longshoreman’s exposure to asbestos fibers and the work of the vessel repair companies. Specifically, we noted:

To prevail, a plaintiff in an asbestos case must show, by a preponderance of the evidence, that he was exposed to asbestos from the defendant’s products, and that he received an injury that was substantially caused by that exposure. When multiple causes of injury are present, a defendant’s conduct is a cause in fact if it is a substantial factor generating plaintiff’s harm. Quick v. Murphy Oil Co., 93-2267 (La.App. 4th Cir.9/20/94), 643 So.2d 1291.
There can be more than one cause in fact of an accident as long as each cause bears a proximate relation to the harm that occurs and it is substantial in nature. A plaintiff seeking to recover under either negligence or strict liability theories must prove that the negligent act |12or defect complained of was a cause-in-fact of the injury. Davis v. State Farm Ins. Co., 558 So.2d 636 (La.App. 1st Cir.1990).
In Quick v. Murphy Oil Co., supra, the court found that:
WTien evaluating liability in an asbestos claim, we apply traditional theories of tort liability (for example, negligence and products liability) which require proof of causation. See Cole v. Celotex Corp., 599 So.2d 1058 (La.1992); Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), cert. den. 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984). Asbestos cases typically involve multiple defendants and courts have analyzed the cases under concurrent causation, a doctrine which “proceeds from the assumption that more than one defendant substantially contributed to the plaintiffs injury.” 210 E. 86th Street Corp. v. Combustion Engineering, Inc., 821 F.Supp. 125, 150 (S.D.N.Y.1993).
93-2267 (La.App. 4th Cir.9/20/94), 643 So.2d 1291. plained of to the extent that it was a substantial factor in bringing about his injury.” Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4th Cir.10/21/98), 726 So.2d 926 at 948.

In Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), the Supreme Court stated that “conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.” Id. The court stated that negligent conduct is a substantial factor if the harm would not have occurred without the conduct, i.e., but for defendant’s conduct, plaintiff would not have sustained injury. The court thereby equated the two concepts of substantial factor and necessary antecedent. Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 373 (1970).

Quick makes clear that a plaintiffs burden of proof against multiple defendants in a long-latency case is not relaxed or reduced because of the degree of difficulty that might ensue in proving the contribution of each defendant’s product to the plaintiffs injury. Thus, in an asbestos case, “the claimant must show that he had significant exposure to the product com-

Vodanovich, p. 3-4, 869 So.2d at 932-33. (emphasis added)

In the present matter, the only evidence that the Thibodeauxs supplied regarding the alleged exposure to products is that at some point in time between 1959 and 1984, Eagle was one of several suppliers of asbestos-containing products at Charity Hospital. The Thibodeauxs have not supplied any evidence that the asbestos was used at Charity Hospital while Mrs. Thibodeaux was there, nor was there any evidence submitted by the Thibodeauxs that she was actually exposed to asbestos-containing products from Eagle while she was at Charity Hospital.

Mr. Charles Cline was employed by Charity Hospital as an insulator from October 1959 until June 1984. He testified that during this period of time, insulation materials were ordered from at least five companies including, Eagle, Armstrong, McCarty-Branton, Taylor-Seidenbach, Orleans Material, and possibly one or two others. However, in his deposition, he does not note any specific dates as to when Charity Hospital ordered products from Eagle, nor does his deposition contain any evidence that products were ordered from Eagle between 1963 and 1966, when Mrs. Thibodeaux was employed by Charity Hospital.

In fact, Mr. Cline remembers that Eagle performed only one contract at Charity Hospital which occurred between 1975 and 1980. This was long after Mrs. Thibo-deaux left her employment at Charity Hospital. Additionally, at that time, Eagle was not using asbestos-containing materials on the job.

In its reasons for judgment, the district court specified that it granted the defendants motion for summary judgment,

[Bjecause at the hearing plaintiff failed to offer evidence demonstrating that Marie Thibodeaux was 114exposed to asbestos containing materials manufactured, supplied, or installed by Eagle, Inc. The [cjourt allowed plaintiff additional time to file a post-hearing memorandum in which the plaintiff was to provide evidence that linked Marie Thi-bodeaux’s exposure to asbestos to material manufactured, supplied or installed by Eagle, Inc. Plaintiff failed to file such a memorandum, as such, the [cjourt granted the defendants’... motion for summary judgment.”

As stated above in Vodanovich, Louisiana law requires that a plaintiff prove a defendant’s asbestos-containing product was a substantial factor in causing his alleged disease. In the instant case, the Thibodeauxs have not provided any evidence which would defeat Eagle’s motion for summary judgment. Additionally, “[ejvidence of the mere physical presence of asbestos-containing material is insufficient to find a manufacturer liable to a plaintiff.” Abram v. EPEC Oil Co., 05-0626, p. 6 (La.App. 4 Cir. 6/28/06), 936 So.2d 209, 213, citing, Roberts v. Owens-Coming Fiberglas Corp., 03-0248 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 642.

In Louisiana courts, “[tjhe initial burden of proof remains on the movant to show that no genuine issue of material fact exists. However, if the movant will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim.” La. C.C.P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228, p. 2 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 985. Clearly, in the matter sub judice, Eagle and OneBea-con have shown that there is an absence of factual support for one or more elements essential to the Thibodeauxs’ claim.

Therefore, based on our de novo review of this matter, we conclude that the 11Bdistrict court did not err in granting Eagle, Inc.’s and OneBeacon’s motion for summary judgment.

DECREE

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

      . This Court notes that the Thibodeauxs are domiciled in East Baton Rouge Parish. In their petition for damages, the Thibodeauxs alleged that jurisdiction is proper in Orleans Parish because Mrs. Thibodeaux's exposure to asbestos containing products occurred in Orleans Parish.

      . Specifically, we noted that the district court was exercising concurrent jurisdiction with the maritime claim.

      . This Court notes that the Eagle Asbestos and Packing Company is the same named appellee in the instant case.


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    A. Jennings COX, Jr. v. Margaret Louise (Peggy) COX.
    No. 2006-CA-01786-SCT.
    Supreme Court of Mississippi.
    Feb. 28, 2008.

      Joseph N. Studdard, Columbus, attorney for appellant.
    Gary L. Geeslin, Columbus, attorney for appellee.
    Before WALLER, P.J., DICKINSON and LAMAR, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This is a dispute between siblings over an inter vivos transfer of property by a mother to a daughter. Finding that the Chancery Court of Lowndes County did not abuse its discretion in dismissing the son’s case for failure to prosecute, we affirm.

FACTS

¶ 2. On August 4, 1992, Louise R. Cox executed a Warranty Deed which transferred approximately 281 acres in Lowndes County, Mississippi, to her daughter Margaret Louise (Peggy) Cox. Peggy employed attorney Shields Sims to prepare the necessary legal documents to convey the 281 acres and accompanied Louise, an 88-year-old widow at the time, to Sims’s law office to execute the deed. Prior to the execution of the deed, the 281 acres were to pass under Louise’s will to her children, Peggy and A. Jennings Cox, Jr., in equal shares.

¶ 3. On November 5, 1992, Jennings filed, on Louise’s behalf, a lis pendens notice and complaint against Peggy to set aside the deed. The complaint alleged that Peggy had used false representations and exerted undue influence upon Louise to execute the deed. In an affidavit attached to the complaint, Louise stated that the conveyance had been a mistake and that she had not intended to disrupt the testamentary disposition of the 281 acres. However, just one month later, on December 3, 1992, Louise filed a letter in the chancery court which stated that Jennings’s attorney, J. Joshua Stevens, Jr., never had her consent to file the complaint against Peggy and requested that the suit be dropped.

¶ 4. On August 23,1993, Louise’s deposition was taken by Shields Sims, as attorney for Peggy, primarily for the purpose of establishing that Louise did not consent to be a named plaintiff in the complaint filed by Jennings. Louise gave inconsistent statements and exhibited signs of confusion throughout her deposition. Louise stated that she never intended to sue anyone and that she did not want Peggy to deed the 281 acres back to her. But later on, she said that at the time she went to the office of attorney J. Joshua Stevens, Jr., she “thought it was best” to put the deed dispute before a judge. Louise was dismissed as a party by order dated June 22,1994.

¶ 5. On November 27, 1996, Peggy filed a motion for protection to prevent Jennings from further deposing her. No further action occurred on the suit until December 17, 2003, when two orders were entered, one assigning the case to Chancellor Kenneth M. Burns and one substituting attorney Gary L. Geeslin as Peggy’s counsel.

¶ 6. Jennings filed nothing on his claim from November 25, 1996, when he filed his Amended Notice of Deposition, until June 3, 2005, when he served Peggy with interrogatories and requests for production of documents. After initially attempting to quash Jennings’s interrogatories and requests for production, Peggy filed a motion to dismiss for failure to prosecute on October 5, 2005.

¶ 7. On January 25, 2006, the chancellor entered an order denying Peggy’s motion to dismiss, but reserved the right to dismiss the case later, depending on the proof. In overruling Peggy’s motion to dismiss, the chancellor noted that the clerk had not moved to dismiss the action pursuant to Rule 41(d) of the Mississippi Rules of Civil Procedure and, therefore, the first notice that Jennings had of a possible dismissal came from Peggy. The chancellor also found that most of the delay in bringing the case to trial was not Jennings’s fault, but that of others. Notwithstanding these findings, the chancellor stated that he “reserves the right to later dismiss the case if the delay is prejudicial to [Peggy] and also reserves the right to impose sanctions if the Court deems appropriate.”

¶ 8. A trial was held on July 24-25, 2006. At the conclusion of Jennings’s case-in-chief, Peggy renewed her motion to dismiss based on Jennings’s failure to prosecute and failure to show a right to relief. The chancellor issued a bench opinion in which he granted Peggy’s motion to dismiss on the grounds of failure to prosecute. The chancellor cited the extensive delay and found that such delay had prejudiced Peggy due to the unavailability of Louise, physicians who could have examined Louise before trial, and former family attorney Robin Weaver. The chancellor entered a Final Judgment on August 1, 2006, dismissing Jennings’s Second Amended Complaint with prejudice.

¶ 9. Jennings filed a motion for reconsideration, for a new trial or for findings of fact and conclusions of law, which the chancellor denied on September 15, 2006. Jennings then filed a timely notice of appeal with this Court.

¶ 10. Jennings raises two issues on appeal: (I) whether the chancellor abused his discretion by dismissing Jennings’s claim for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b); and (II) whether the chancellor erred in failing to “find the facts specially and state separately [his] conclusions of law thereon” as requested by Jennings.

STANDARD OF REVIEW

¶ 11. In reviewing a trial court’s dismissal for failure to prosecute pursuant to Rule 41(b), this Court will reverse only if it finds the trial court abused its discretion. AT & T v. Days Inn of Winona, 720 So.2d 178, 180 (Miss.1998) (citing Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990)).

¶ 12. This Court reviews a lower court’s decision not to make specific findings of fact and conclusions of law on an abuse-of-discretion standard. See Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987).

DISCUSSION

I. Whether the chancellor abused his discretion by dismissing Jennings’s claim for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b).

¶ 13. Rule 41(b) of the Mississippi Rules of Civil Procedure authorizes a defendant to move for the dismissal of an action “[f]or failure of the plaintiff to pros-ecute_” Miss. R. Civ. P. 41(b). The power to dismiss for failure to prosecute is granted not only by Rule 41(b), but is part of a trial court’s inherent authority and is necessary for “the orderly expedition of justice and the court’s control of its own docket.” AT & T, 720 So.2d at 180 (quoting Wallace, 572 So.2d at 375; Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)).

¶ 14. What constitutes failure to prosecute is considered on a case-by-case basis. AT & T, 720 So.2d at 181 (citing Wallace, 572 So.2d at 376). In AT & T, this Court set forth considerations to be weighed in determining whether to affirm a dismissal with prejudice under Rule 41(b): (1) whether there was a “a clear record of delay or contumacious conduct by the plaintiff’; (2) whether lesser sanctions may have better served the interests of justice; and (3) the existence of other “aggravating factors.” AT & T, 720 So.2d at 181 (citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982)).

A. Clear record of delay or contumacious conduct by the plaintiff.

¶ 15. In dismissing Jennings’s claim, the chancellor stated that the case had been on file for nearly fourteen years and that there had been “some prejudice” to Peggy as a result of the delay. Jennings argues that the chancellor relied primarily on the passage of time and that factors other than delay must be present to warrant dismissal under Rule 41(b).

¶ 16. Cases from both this Court and the Court of Appeals indicate that factors other than delay typically are present when a dismissal with prejudice under Rule 41(b) is upheld. See Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1034-35 (Miss.1999) (dismissal improper); AT & T, 720 So.2d at 181-82 (dismissal improper); Watson, 493 So.2d at 1279-80 (dismissal affirmed); Tolliver ex rel. Wrongful Death Beneficiaries of Green, — So.2d —, 2007 WL 2034622, 2007 Miss.App. LEXIS 467, 20-23 (Miss. Ct.App.July, 17 2007) (dismissal affirmed); Hensarling v. Holly, 972 So.2d 716, 720-21 (Miss.Ct.App.2007) (dismissal affirmed); Hine v. Anchor Lake Prop. Owners Ass’n, 911 So.2d 1001, 1004-07 (Miss.Ct.App.2005) (dismissal affirmed); Camacho v. Chandeleur Homes, Inc., 862 So.2d 540, 543-44 (Miss.Ct.App.2003) (dismissal improper); Lone Star Casino Corp. v. Full House Resorts, Inc., 796 So.2d 1031, 1032-33 (Miss.Ct.App.2001) (dismissal improper).

¶ 17. Nevertheless, factors other than delay are not required. The standard is whether there is “a clear record of delay or contumacious conduct by the plaintiff....” AT & T, 720 So.2d at 181 (emphasis added); see also Hine, 911 So.2d at 1005 (where a clear record of delay has been shown, there is no need for a showing of contumacious conduct). “Aggravating factors” serve to “bolster” the case for dismissal, but are not required. AT & T, 720 So.2d at 181 (citing Rogers, 669 F.2d at 320).

¶ 18. Even though delay alone may suffice, the chancellor relied both on the passage of time and his finding of prejudice in dismissing Jennings’s claim. The chancellor had specifically reserved the right to dismiss the case if prejudice were found. It was the chancellor’s later finding of prejudice — not the passage of time alone— that tipped the balance in favor of dismissal.

¶ 19. Jennings further argues that he has not been guilty of any “delay or contumacious conduct,” but consistently has pursued his claim. Jennings points out that he has been through four attorneys as part of his effort to advance the case.

¶ 20. Efforts to secure substitute counsel may constitute excusable delay. Cf. Watson, 493 So.2d at 1279 (lack of counsel not permissible delay where plaintiff materially contributed to the delay); see also Morris v. Ocean Systems, Inc., 730 F.2d 248, 249, 253 (5th Cir.1984) (delay of eight months included efforts to secure substitute counsel); Camacho, 862 So.2d at 544 (delay of five months in acquiring counsel); Lone Star Casino Corp., 796 So.2d at 1033 (delay of twenty months in acquiring counsel). However, the delay in this case is significant — approximately seven years and one month in which no activity occurred on the docket and almost nine years in which Jennings took no action on the case.

¶ 21. Jennings asserts that settlement discussions were ongoing between the parties during the dormancy period. Settlement efforts also may constitute excusable delay. See Morris, 730 F.2d at 252-53; see also GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1200 (7th Cir.1993); EEOC v. Firestone Tire & Rubber Co., 626 F.Supp. 90, 94 (M.D.Ga.1985); but see Rovner v. Warner Bros. Pictures, Inc., 29 F.R.D. 488, 490 (E.D.Penn.1962) (“active prosecution of a case can be expected to leave footprints on the docket.”). However, “the pendency of negotiations is not an excuse where the delay is unreasonably long ... or if it continues after it is apparent that the negotiations would not be fruitful.” GCIU Employer Ret. Fund, 8 F.3d at 1200 (citing Firestone Tire & Rubber Co., 626 F.Supp. at 94).

¶ 22. Even assuming that informal settlement discussions took place during the significant period of inactivity, Jennings should have abandoned settlement efforts and pursued litigation on his claim when it became apparent that negotiations were unyielding.

B. Lesser sanctions.

¶23. Jennings argues that the chancellor failed to consider lesser sanctions and that Peggy failed to propose such lesser sanctions to the chancellor.

¶ 24. This Court must consider whether lesser sanctions would better serve the interests of justice. AT & T, 720 So.2d at 181. Lesser sanctions include “ ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Id. at 181-82 (quoting Wallace, 572 So.2d at 377). This Court is less likely to uphold a Rule 41(b) dismissal “[w]here there is no indication in the record that the lower court considered any alternative sanctions _” AT & T, 720 So.2d at 181 (citing, e.g., Rogers, 669 F.2d at 321-22).

¶25. The fact that lesser sanctions were argued before the chancellor, that the chancellor considered all arguments prior to granting dismissal, and that the chancellor denied Jennings’s motion for reconsideration, in which Jennings argued that lesser sanctions had not been considered, is sufficient to show that lesser sanctions were considered and rejected. See Hine, 911 So.2d at 1005.

¶ 26. We also find that lesser sanctions would not suffice under these circumstances because lesser sanctions could not cure the prejudice to Peggy caused by the delay.

C. Aggravating factors.

¶ 27. Jennings contends that no aggravating factors are present in this case. “Aggravating factors” include “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.” AT & T, 720 So.2d at 181 (quoting Rogers, 669 F.2d at 320). While “aggravating factors” are not required, the presence of such factors strengthens the case for dismissal under Rule 41(b). AT & T, 720 So.2d at 181 (citing Rogers, 669 F.2d at 320); see Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 418 (5th Cir.2006).

i. Extent to which Jennings, as distinguished from his counsel, was personally responsible for the delay.

¶ 28. Jennings contends that he was not personally responsible for the delay. Jennings testified that Peggy’s counsel had prolonged his efforts to move the case forward by continually “refusing to show or produce what was requested ...” and canceling hearings and other meetings. Jennings stated that he called each of his attorneys “[n]o less than every week” and asked them to move the case forward. Additionally, in his order overruling Peggy’s initial motion to dismiss, the chancellor found that “most of the delay occasioned in bringing this case to trial was not [Jennings], but others.... ”

¶29. Where a litigant has not been an active participant in the fault, the sanction of dismissal with prejudice should be a last resort. See Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 889 n. 11 (5th Cir.1968). While a client may be held accountable for his attorney’s conduct, many courts have imposed lesser sanctions than dismissal where fault lies with the attorney rather than the client. Rogers, 669 F.2d at 322 (citing Link v. Wabash Railroad, 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734, 740 (1962); 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2370, at 201 n. 86 (1971)).

¶ 30. While the chancellor found that most of the delay was not attributable to Jennings individually, he also stated that Jennings bore the obligation to prosecute the case to a conclusion and that “he who seeks equity must be vigilant.” See Last Will and Testament of Winding v. Estate of Winding, 783 So.2d 707, 711 (Miss.2001) (citing In re Estate of Davis, 510 So.2d 798, 800 (Miss.1987)).

¶ 31. We agree that Jennings must bear some responsibility for an almost nine-year period in which no substantive action was taken.

ii. Degree of actual prejudice to Peggy.

¶ 32. Jennings contends that Peggy failed to prove actual prejudice and could show only the possibility of prejudice. Peggy, on the other hand, claims that the delay in this case is per se prejudicial because the passage of time alters physical evidence and impairs the memory of witnesses.

¶ 33. In his bench opinion, the chancellor cited three ways the unavailability of witnesses caused “some prejudice” to Peggy: (1) the unavailability of Louise, who was now deceased; (2) the unavailability of physicians who might have examined Louise before trial; (3) and the unavailability of long-time family attorney Robin Weaver. The unavailability of witnesses who could have provided valuable testimony may prejudice a defendant. See Hoffman, 752 So.2d at 1035.

a. Unavailability of Louise.

¶ 34. Rule 32(a)(3) of the Mississippi Rules of Civil Procedure allows a deposition to be used by any party for any purpose if the court finds that the witness is dead. Miss. R. Civ. P. 32(a)(3). Additionally, Rule 804(b)(1) of the Mississippi Rules of Evidence provides that when a witness is unavailable, a deposition taken in the course of the same proceeding may be offered provided that “the party against whom the testimony is now offered, ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” M.R.E. 801(b)(1). In Lone Star Casino Corp. v. Full House Resorts, Inc., the Court of Appeals found that a defendant was not prejudiced by the inability of a witness to testify in person, so long as all parties had an opportunity to pose questions and cross-examine the witness at the depositions. Lone Star Casino Corp., 796 So.2d at 1033.

¶ 35. Apparently in reaction to Louise being named as a party plaintiff with her son, Jennings, Peggy’s lawyer deposed Louise on August 23,1993. The testimony elicited from Louise established that she did not authorize a suit against her daughter (Peggy), that she did not want to sue her daughter, and that she wanted to be removed from the lawsuit. While she did answer questions about the deed, bank account, and other issues addressed in Jennings’s lawsuit, the purpose of the deposition was primarily to show that she did not join in or authorize Jennings’s lawsuit. The purpose of the deposition was not to conduct discovery or elicit testimony for trial on the issues framed in Jennings’s claim.

¶ 36. Louise’s deposition ultimately was recessed due to objections to improper leading by Jennings’s counsel. Subsequently, on June 22, 1994, an order dismissed Louise as a party to the litigation.

¶ 37. Because of the limited scope of Louise’s deposition, which was never completed, we agree with the chancellor’s finding of prejudice to Peggy because of Louise’s intervening death.

b. Unavailability of physicians who could have examined Louise before trial.

¶ 38. The chancellor also found that Peggy suffered prejudice because “physicians that might have examined [Louise] before [trial] are not available.” We are unable to find a basis for such a finding in the record.

¶ 39. The relevant time for considering Louise’s mental capacity is on the date of execution of the deed, not any time thereafter. See Mullins v. Ratcliff, 515 So.2d 1183, 1195 (Miss.1987); Smith v. Smith, 574 So.2d 644, 654 (Miss.1990). There is testimony from Peggy that she took Louise to the doctor prior to the date that the deed was executed. But, there is no evidence that such doctor(s) had any knowledge with respect to Louise’s mental condition on the date the deed was executed, or that such doctor(s), if he or she had such knowledge, was unavailable.

¶ 40. Considering the present state of the record, we cannot say that Peggy suffered prejudice because of the unavailability of physicians who could have examined Louise before trial.

c. Unavailability of Robin Weaver.

¶41. The chancellor found that Peggy was prejudiced because of the unavailability of long-time family attorney Robin Weaver. Jennings contends that Weaver could not testify as to any relevant issue in this case because Weaver had no involvement in drafting the deed. Peggy asserts that Weaver could have impeached Jennings’s testimony regarding Jennings’s alleged alteration of a separate deed in an unrelated transaction in Sunflower County that did not involve Peggy or Louise.

¶ 42. Under Rule 608(b) of the Mississippi Rules of Evidence, Robin Weaver could not have testified about the Sunflower property deed. Such testimony would be an effort to prove specific instances of conduct through extrinsic evidence in order to impeach Jennings. Therefore, we find that the unavailability of Robin Weaver could not have prejudiced Peggy.

d. Presumed prejudice.

¶ 43. Peggy argues that the passage of time in this case is per se prejudicial. Peggy claims that her own testimony as an adverse witness at trial was impaired due to the passage of time in this case.

¶ 44. Prejudice may be presumed from unreasonable delay. Rogers, 669 F.2d at 322 n. 7 (quoting 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2370, at 216-17 (1971)). However, the preference for a decision on the merits “must be weighed against any presumed prejudice to the defendant and the court may decide to excuse plaintiffs lack of diligence in the absence of any actual prejudice to the defendant.” Rogers, 669 F.2d at 322 n. 7 (quoting 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2370, at 216-17 (1971)).

¶45. Nothing in the record indicates that the passage of time altered any physical evidence. However, one of Jennings’s witnesses, Jimmy Wilder, stated that he had difficulty remembering events that had transpired so long ago. Given the length of time that passed in this case, and the effect that time has on the memory of witnesses, we find that Peggy is due some measure of presumed prejudice.

iii. Whether the delay was the result of intentional conduct.

¶46. Jennings submits that no proof was shown that the delay was intentional. We agree.

D. Whether dismissal was appropriate given the procedural posture of this case.

¶ 47. Jennings raises a number of additional arguments why Rule 41(b) dismissal was inappropriate. Jennings contends that there is no Rule 41(b) dismissal case from Mississippi in which a plaintiff attempted to move the case forward by filing additional discovery requests or a motion for trial setting, and then faced dismissal for failure to prosecute.

¶ 48. The procedural posture of this case is unique. However, there have been prior cases before this Court and the Court of Appeals in which Rule 41(b) dismissals were granted in the lower court even after the plaintiff tried to advance the case. Miss. Dep’t of Human Servs. v. Helton, 741 So.2d 240, 241 (Miss.1999) (motion to dismiss filed on the date of trial); Lone Star, 796 So.2d at 1032 (motion to dismiss filed in response to plaintiffs motion to substitute counsel). In both Helton and Lone Star, the lower court’s Rule 41(b) dismissal ultimately was reversed on appeal. Helton, 741 So.2d at 241; Lone Star, 796 So.2d at 1033. However, the timing of the Rule 41(b) motions was not a basis for reversal in those cases. See id.

¶49. Jennings also submits that there is no Mississippi ease in which a dismissal for failure to prosecute was granted during the trial. In this case, the chancellor granted dismissal for failure to prosecute after Jennings had presented his case-in-chief. Jennings correctly points out that involuntary dismissal is not appropriate where the merits of a case have been considered. Wallace, 572 So.2d at 376. However, in denying Peggy’s pretrial motion to dismiss, the chancellor had reserved the right to dismiss the case later if he found that the delay had prejudiced Peggy.

¶ 50. Jennings argues further that it would be “incongruous for the plaintiff to have taken the first action toward having the matter set for trial and then reward the defendant for her failure to do so.” Yet the responsibility to prosecute a case rests with the plaintiff, not the defendant. See Miss. R. Civ. P. 41(b).

¶ 51. While a fine balance must be struck between the interests of having a case tried on the merits and the interests of judicial economy, we find that the chancellor did not abuse his discretion in dismissing this case.

II. Whether the chancellor erred in failing to “find the facts specially and state separately [his] conclusions of law thereon” as requested by Jennings.

¶ 52. Jennings requests that the case be remanded for specific findings of fact and conclusions of law. Jennings points to Rule 52(a) which states that “in all actions tried upon the facts without a jury the court may, and shall upon the request of any party ... find the facts specially and state separately its conclusions of law thereon.” Miss. R. Civ. P. 52(a).

¶ 53. Jennings raised this issue in his motion for reconsideration, for a new trial, or for findings of fact and conclusions of law. The chancellor determined that his bench opinion had been made a part of the record and that such opinion articulated sufficient findings of fact and conclusions of law to support his decision. Thus, the chancellor declined to make any further findings of fact and conclusions of law.

¶ 54. Rule 41(b) provides that “[i]f the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a).” Miss. R. Civ. P. 41(b) (emphasis added) (with certain exceptions, a dismissal under Rule 41(b) operates as an adjudication on the merits). Thus, Rule 41(b) makes specific findings of fact and conclusions of law discretionary with the trial court.

¶ 55. We find that the chancellor did not abuse his discretion in refusing to provide specific findings of fact and conclusions of law. The chancellor’s bench opinion was sufficient to explain and support his adjudication of the matter.

CONCLUSION

¶ 56. We hold that chancellor did not abuse his discretion in dismissing the second amended complaint of A. Jennings Cox, Jr., under Rule 41(b) of the Mississippi Rules of Civil Procedure, for failure to prosecute. Furthermore, the chancellor did not abuse his discretion in not providing specific findings of fact and conclusions of law. Therefore, we affirm.

¶ 57. AFFIRMED.

SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Under Louise’s will, Peggy was to receive Louise’s home and all the contents thereof. The rest and residue of Louise's estate, both real and personal property, were to go to Peggy and Jennings in equal shares. Prior to Louise’s will dated January 21, 1976, both Peggy and Jennings had received inter vivos transfers of properly from their parents. Peggy received 237.5 acres in a deed dated November 13, 1970. Jennings received about 400 acres of farmland in a deed dated November 13, 1970, another 70 acres in a deed dated November 13, 1970, and approximately 240 acres in a deed dated August 31, 1973.

      . Although the complaint was brought in the name of Louise R. Cox, neither party contests that the action was filed by Jennings on his mother’s behalf.

      . Jennings would later file an amended complaint and a second amended complaint, among other pleadings, the discussion of which is not necessary for consideration of this appeal.

      . At one point, Louise stated that she had three children, one of whom was named Walter. Yet, Peggy and Jennings were Louise’s only two children. Additionally, Louise stated that she had been to the camp house located on the 281 acres with her husband in the prior year. However, Louise’s husband had died years earlier.

      . In his Motion for Reconsideration, for a New Trial, or for Findings of Fact and Conclusions of Law, Jennings attached correspondence dated from February 23, 2001, to November 22, 2002, which documented apparent settlement negotiations during some periods of the dormancy. However, the chancellor refused to consider this “voluminous correspondence,” because it could not be considered newly discovered evidence.

      . Almost seven years and one month passed from the time Peggy filed her Motion for Protection on November 27, 1996, until the two orders were entered on December 17, 2003. Approximately sight years and six months passed from November 27, 1996, until Jennings served Peggy with interrogatories and requests for production of documents on June 3, 2005.

      . Rule 41(d)(1) of the Mississippi Rules of Civil Procedure provides in pertinent part:
      In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.
      Miss. R. Civ. P. 41(d)(1).

      .Attorney Robin Weaver had prepared Louise’s Last Will and Testament, and had prepared deeds for certain inter vivos transfers of property to both children during the lifetime of Louise’s husband, A.J. Cox, Sr.

      . Jennings testified that his attorney J. Joshua Stevens, Jr., had been too busy and that H. Lee Morrison, Jr., began to work on the case. Jennings stated that after Morrison’s death, he secured the counsel of Thomas L. Kesler, who eventually had to withdraw. Whether Morrison's death was the actual cause of Jennings obtaining new counsel is disputed. Jennings then approached Joseph N. Stud-dard in June of 2004 and obtained his services.

      . Citing the Court of Appeals’ decision in Hensarling v. Holly, 972 So.2d 716 (Miss.Ct.App.2007), Peggy argues that when a trial judge does not make a record finding with regard to the issue of lesser sanctions, those findings are to be presumed. Drawing from this Court's decision in Watson, the Court of Appeals stated that where the record does not indicate that the trial judge considered lesser sanctions, a presumption must be made that the trial judge found lesser sanctions to be insufficient. Id. at 721 (citing Watson, 493 So.2d at 1279); see also Hine, 911 So.2d at 1005 (citing Watson, 493 So.2d at 1279). However, the application of this "presumption” in Watson did not involve a trial court’s consideration of lesser sanctions. Watson, 493 So.2d at 1279.
      We are less likely to uphold a Rule 41(b) dismissal where there is no indication in the record that lesser sanctions were considered. AT & T, 720 So.2d at 181. Accordingly, consideration of lesser sanctions cannot be presumed, but there should be some indication in the record that lesser sanctions were considered.

      . The chancellor overruled Peggy's objection in an order dated December 28, 1993.

      . In his bench opinion, the chancellor stated that Louise’s unavailability prejudiced Peggy because “sometimes when you take a deposition, you have a different strategy than what you would have at trial.” Given the purpose and scope of Louise's deposition, Peggy most likely would have employed a different strategy at trial.

      . While not relevant to the issue of prejudice, the testimony of two physicians, or one physician and a psychologist, would have been required to establish a conservatorship for Louise. See Miss.Code Ann. § 93-13-255.

      .As part of her effort to impeach Jennings, Peggy offered a deed describing twelve lots in Sunflower, Mississippi. Peggy argued that Jennings had removed his own name as grantee on the deed in order to avoid paying capital gains taxes. Peggy asserts that Robin Weaver could have testified about this Sunflower deed.


author: ISHEE, J„

text:
    Roger A. CARROLL, Appellant v. Anna F. CARROLL, Appellee.
    No. 2005-CA-01770-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Nov. 20, 2007.

      Joy B. Wolfe, John F. Perry, Starkville, attorneys for appellant.

      Carter Dobbs, attorneys for appellant.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J„

for the Court.

¶ 1. Following a trial on the merits in the Monroe County Chancery Court, Anna Carroll was granted a divorce upon the ground of adultery. Aggrieved, Roger perfected the present appeal, asserting seven assignments of error which we quote verbatim:

I. The chancellor abused his discretion by entering the interim order on February 1, 2005 and ordering Roger Carroll to comply with a contempt order that was entered when the trial court did not have jurisdiction.
II. Roger was prejudiced when forced to proceed at trial pro se after the court erred in allowing Roger’s attorney to withdraw.
III. The chancellor abused his discretion by not equitably distributing the marital assets and liabilities.
IV. The trial court’s award of alimony is against the overwhelming weight of the evidence and so excessive as to constitute an abuse of discretion.
V. The chancellor erred in setting the amount of child support.
VI. The chancellor erred when he found Anna was unable to pay her attorney’s fees and abused his discretion when he awarded her attorney’s fees.
VII. The chancellor erred when he failed to allow Roger’s inability to pay on two contempt matters.

Anna, additionally, contends that this Court should award her attorney’s fees on appeal.

¶ 2. While we affirm on all issues other than III and IV, we find that the award of $4,000 per month in alimony is ambiguous as to whether it was awarded as a division of marital assets payable in monthly installments or whether it was awarded as periodic alimony. We reverse and remand for proceedings consistent with this opinion.

FACTS

¶ 3. This action was initiated when Anna Carroll filed a complaint for divorce against Roger Carroll on September 19, 2003. Roger retained his first of three attorneys who represented him in this action, and he drafted and filed an answer to the complaint. On January 26, 2004, an agreed temporary order was entered providing for, inter alia, temporary alimony and child support. On February 23, 2004, Anna filed a motion for contempt. The record is replete with more motions and orders setting, and then continuing, the contempt matter. On September 28, 2004, the chancery court entered an order permitting Roger’s initial counsel to withdraw. Sometime prior to November 29, 2004, Roger retained a second attorney to represent him.

¶ 4. On December 1, 2004, the contempt matter was set for hearing, but on that day, Roger’s second attorney announced in open court that he felt he had an ethical conflict in representing Roger, and sought to withdraw. While Roger did not attend the December 1, 2004 hearing, he later testified he had actual knowledge that the hearing was set for that date. The chancery court continued the contempt matter to December 14, 2004. A motion to withdraw was filed on December 2, 2004, and notice was mailed to Roger that same day. After repeated attempts at personal service, including telephone calls between the attorney and Roger, personal service of the motion to withdraw was completed upon Roger on December 13, 2004. Further, while-personal service of the motion to withdraw was completed, Roger successfully avoided personal service by the Monroe County Sheriffs Department of notice of the resetting of the contempt motion for December 14, 2004. The sheriffs department did, however, inform him of that date by telephone.

¶ 5. On December 14, 2004, Roger’s counsel appeared in chancery court, and the court granted leave to withdraw. Roger did not make an appearance. Following Anna’s December 14 presentation of evidence, the chancery court entered orders finding Roger in contempt for failing to comply with discovery by not answering a second set of interrogatories and for failure to pay, inter alia, temporary support and house payments. As discussed later in this opinion, one of Roger’s central contentions is that this order was improper, because a M.R.C.P. 81 summons had not issued concerning this hearing. However, as we also will discuss later, there is no contention that service of process was improper when the action commenced, nor any contention that Roger’s attorney was improperly noticed of the December 14 hearing, or that Roger lacked actual knowledge of the hearing. At the December 14 hearing the chancellor also set February 1, 2005 as the date for a trial on the merits. Additionally, Roger contends there was error in failing to issue a M.R.C.P. 81 summons for that date as well.

¶ 6. Roger appeared pro se for the February 1, 2005 trial. Interestingly, on some date prior to the trial, the chancellor directed the Monroe County Sheriff to take Roger into custody and hold him (1) until he purged himself of contempt by paying approximately $25,000 in past due support and mortgage payments, and (2) until the trial itself commenced. During the noon recess, he was again taken into custody and held until the trial recommenced. While this action by the chancellor may be seen as extreme, it is indicative of the difficulty the chancery court was having in securing either Roger, or an attorney able to represent him without ethical conflict, to reach a resolution of the divorce complaint. The record is replete with references to Roger evading process servers and deputy sheriffs attempting to deliver service upon him. Perhaps Roger’s most flagrant action was at a hearing in Aberdeen, Mississippi, held on one of Anna’s motions for contempt. The chancery court recessed for lunch, and with no notice to the chancery court or Anna’s attorney, Roger went to the federal courthouse and filed a petition for bankruptcy of his sand and gravel business and then failed to return to the chancery court. Roger later admitted that he filed the bankruptcy petition for the purpose of stopping the contempt hearing. Moreover, Roger himself had valued his gravel business at $827,500 prior to trial, but after dismissing the bankruptcy petition, Roger sold the gravel business for $500,000 and then paid more than $190,000 of the proceeds to his mother, even though there was no note due payable from the business to her. At any rate, a review of the record does show good cause for the chancellor to have determined that, having once gotten Roger into the courthouse, securing his continued presence was an ongoing concern.

¶ 7. Following the February 1, 2005 trial, the chancellor did the following: awarded Anna the use and possession of the marital home, ordered Roger to pay off two mortgages on the home, awarded Anna one-half of the proceeds of Roger’s sand and gravel business, awarded Anna a 2001 Nissan Xterra after determining it had been a gift from Roger to her, ordered Roger to pay alimony of $4,000 per month, ordered Roger to pay child support of $500 per month, and ordered Roger to pay Anna’s attorney’s fees of $42,890. Subsequently, Roger retained his third attorney, and perfected the present appeal.

DISCUSSION

¶ 8. The applicable appellate standard of review is that a chancellor’s findings of facts should not be disturbed unless “manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Isom v. Jernigan, 840 So.2d 104, 106(¶ 6) (Miss.2003) (quoting Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990)). However, the interpretation and application of law are reviewed de novo. Isom, 840 So.2d at 106(¶ 6).

I. Necessity of a M.R.C.P. 81 Summons

¶ 9. This Court has previously addressed when a M.R.C.P. 81 summons is required:

A domestic relations case remains subject to recurring motions even after all prior contested matters are resolved. A pleading to alert the other party that a new dispute has arisen is in the nature of awakening a dormant suit, distinguishable both from commencing new litigation and from just filing a motion in active litigation.

Sanghi v. Sanghi, 759 So.2d 1250, 1254(¶ 16) (Miss.Ct.App.2000). See also Isom, 840 So.2d at 106(¶ 7). A summons under M.R.C.P. 81 serves to provide due process and notify a party of a new dispute. Sanghi 759 So.2d at 1254(¶ 16). Thus, where there has been no final judgment upon a complaint for divorce, M.R.C.P. 5(b) notice is all that is required for setting a hearing in the process for reaching the final judgment. Id. As M.R.C.P. 81(d)(6) provides, “Rule 5(b) notice shall be sufficient as to any temporary hearing in a pending divorce or separate maintenance, custody or support action provided the defendant has been summoned to answer the original complaint.” Moreover, the entry of an appearance in a proceeding where M.R.C.P. 81 notice has not been given serves to waive any error. Isom, 840 So.2d at 106(¶ 6).

¶10. Therefore, a M.R.C.P. 81 summons was not necessary for the December 14, 2004 hearing on whether Roger was in contempt for failing to comply with the agreed temporary order for support. Further, even assuming arguendo that M.R.C.P. 81 was applicable to a hearing to enforce a temporary order in ongoing litigation, Roger’s attorney’s appearance at the December 1, 2004 hearing waived any error. Similarly, a M.R.C.P. 81 summons was not necessary to apprise Roger of the February 1, 2005 trial. There is no merit to this assignment of error.

II. Prejudice from Proceeding pro se

¶ 11. Roger contends that the chancellor erred in allowing his second attorney to withdraw six weeks prior to the trial, and that this error prejudiced him by forcing him to proceed pro se. This Court has previously found two weeks’ notice of an attorney’s withdrawal is sufficient to allow a party opportunity to retain new council. Hood v. Mordecai 900 So.2d 370, 376(¶16) (Miss.Ct.App.2004). In this case, Roger had, at a minimum, four weeks notice of his second attorney’s withdrawal. There is no merit to this assignment of error.

III. The Chancellor Erred in Not Equitably Distributing the Marital Assets

IV. The Award of Alimony was Excessive

¶ 12. As these two issues are intertwined, they will be discussed together. Periodic alimony is only considered after the marital estate is equitably distributed and there is a finding that one of the parties suffers a disparity of income and living standards. Lauro v. Lauro, 847 So.2d 843, 848(¶ 13) (Miss.2003).

¶ 13. Roger contends that there was no valuation of the marital assets and the findings of fact were not sufficient to meet the dictates of Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). The record discloses that the assets found to be marital property were valued by the parties’s discovery disclosures and testimony. These were the marital home, the furniture and appliances and the sand and gravel business. Roger appears also to be contending that the valuations were incorrect, but it cannot escape notice that he intentionally refused to comply with the discovery in this case. Given our scope of review, this Court cannot say the chancellor was in manifest error.

¶ 14. The Ferguson factors require consideration of the following when the court is attempting to equitably divide marital property:

(1)Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
(2) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
(3) The market value and the emotional value of the assets subject to distribution.
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
(8) Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 15. From the bench opinion, it is clear that the award of $4,000 per month in alimony was based, at least in part, upon the chancellor’s efforts to secure at least some of the marital property from Roger’s control and complete its transfer to Anna. The chancellor had every reason to suspect that Roger would seek to avoid paying over to Anna her share of the sand and gravel business found to be a marital asset, due to the fact that Roger had sold the business prior to trial for what appears to be less than full value, and then transferred part of the sale proceeds to his mother’s control. Further, the record is replete with Roger’s refusals to comply with temporary support, and his incarceration to compel compliance. The record also discloses that after the final decree was entered, Roger again refused to comply and was incarcerated two more times. Roger contends that he is simply unable to comply, but it is clear that when given the choice between compliance or going to jail, he can obtain thousands of dollars. He contends that he borrows money from his mother, but it is difficult to give credence to this when it is clear that he gave his mother $190,000 of the marital estate. The record does not disclose the exact amount Roger has paid to Anna since the chancellor entered the final decree, but it appears to be in excess of $50,000, and additionally it appears he has paid-off at least one of the two mortgages on the marital home, which the chancellor awarded to Anna.

¶ 16. However, the chancellor stated that the alimony will continue until a subsequent order of the chancery court decrees otherwise. Therefore, the award resembles an award of permanent alimony. The distinction between alimony based upon a lump sum but payable in monthly installments and periodic alimony is not merely of form. See Welch v. Welch, 755 So.2d 6, 7-12 (¶¶ 5-35) (Miss.Ct.App.1999). Rather, they are distinct: periodic alimony is taxable to the recipient, while division of the marital estate is not; periodic alimony ceases upon death, while a division of the marital estate may be claimed from a decedent’s estate; periodic alimony ceases upon remarriage, while installment payments from a division of a marital estate do not. Moreover, as this case illustrates all too well, lump-sum alimony is not subject to modification upon unforeseen loss of income, while periodic alimony is subject to modification. Therefore, while we certainly understand the chancellor’s decision to award $4,000 per month, we cannot find that the record shows that the chancellor’s ruling was calculated to eliminate Anna’s need for periodic alimony and eliminate future frictional contact between the parties. Perhaps more importantly, we cannot ascertain whether Roger has transferred the marital property as ordered.

¶ 17. Concerning the issue of periodic alimony, in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the supreme court stated the following factors are to be considered by the chancellor in arriving at findings and entering judgment for alimony:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9.The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or,
12. Any other factor deemed by the court to be ‘just and equitable’ in connection with the setting of spousal support.

¶ 18. Neither the bench opinion nor the final decree granting the divorce indicates an Armstrong analysis was made. While an appellate court will affirm an award of alimony without a complete recitation on the record of an Armstrong analysis enunciating each factor, we must reverse if it is clear no such analysis occurred, or if the information in the record does not support a chancery court’s findings. Godwin v. Godwin, 758 So.2d 384, 387 (¶¶ 10-11) (Miss.1999). Therefore, we must reverse and remand this cause for a determination of whether permanent periodic alimony is justified. Moreover, the chancellor himself stated that he “was astounded” that Anna testified she only earned $250 to $270 every two weeks in take home pay. Anna was forty-one years old at the time of the trial, and since then the couple’s only child has married and left the marital home. If rehabilitative alimony is appropriate, the chancellor, of course, has the discretion to order it. Furthermore, the record indicates that Roger has essentially become voluntarily unemployed in an effort to avoid showing any means to pay Anna the alimony ordered. If the chancellor intended to award a lump sum in the division of marital assets, Roger might at least find the initiative to put the divorce behind him, and resume what the record shows has been a productive career. Moreover, from the record it is impossible to see why Anna would need $4,000 per month in periodic alimony under an Armstrong analysis, unless the award was meant as an equitable distribution.

V. The Award of Child Support was Excessive

¶ 19. Roger was ordered to pay $500 per month in child support. The record indicates that he did so and that the minor child is now emancipated. This issue is moot.

VI. Anna’s Attorney’s Fees Should Not Have Been Assessed to Roger and Anna’s Claim for Attorney’s Fees on Appeal

¶ 20. “Generally the award of attorney’s fees in a divorce case is left to the discretion of the trial court.” Cheat-ham v. Cheatham, 537 So.2d 435, 440 (Miss.1988). Absent an abuse of discretion or manifest error, the chancellor’s decision about attorney fees will not be disturbed by the reviewing court. Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995). At the time the chancellor made the award of some $42,890 in attorney’s fees, Anna had no income, and Roger was refusing to pay the agreed temporary alimony unless it was extracted by incarceration. Moreover, the chancellor’s bench opinion lists with detail how he arrived at this figure. If Roger had complied with discovery and avoided multiple motions for contempt, and the setting and resetting of hearings on these motions, along with necessitating Anna’s attorney to attend the hearings, the figure would be much lower. Given the egregious facts of this case, we cannot find the award to be an abuse of discretion. However, we also note that at the time of the briefing, Anna’s attorney had secured portions of the award, and Anna had also received over $50,000 in support, the removal of at least one of the two mortgages on the marital home, and the Nissan automobile. Therefore, we decline to assess Roger the cost of her attorney’s fees on appeal. However, nothing in this opinion should be read as limiting the chancellor’s discretion in assessing Anna’s attorney’s fees to Roger should he continue to contemptuously resist the orders of the chancery court.

VII. Roger’s Inability to Pay the Support Ordered in the Final Judgment

¶ 21. The facts of this case indicate Roger had, shortly before trial, over $500,000 in his personal possession, a working farm, a helicopter, and a mistress with whom he continued to live and financially support after the divorce. We do not find that the chancellor was manifestly wrong or clearly erroneous in his decision to award the support. This issue is without merit.

CONCLUSION

¶ 22. In conclusion, we reverse and remand this cause for the chancellor’s determination of whether Roger has complied with the requirements the chancery court set forth in dividing the marital estate, and if not, what he must do to comply, as well as whether periodic or rehabilitative alimony is needed.

¶ 23. THE JUDGMENT OF THE MONROE COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY.

      . Roger's second attorney completed his answer to these interrogatories, but Roger would not sign them.

      . Additionally, Roger retained business and farm interests found to be non-marital property.