author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Tanislla THOMAS.
    No. 2013-KA-0816.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana/Appellant.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

I,The district attorney appeals the trial judge’s decision to grant Tanislla Thomas’ motion to quash the bill of information. See La.C.Cr.P. arts. 538(3); 912 B(l). Ms. Thomas, in her motion, asserted violations of her statutory and constitutional rights to a speedy trial. The prosecution contends that Ms. Thomas’ right to a speedy trial under Article 578 A(2) of the Louisiana Code of Criminal Procedure was not violated because the running of the two-year prescriptive period to commence trial had been interrupted.

We have reviewed the trial judge’s ruling under an abuse of discretion standard. And after applying the proper legal principles to this matter, we find that the trial judge did not err in sustaining the motion to quash, dismissing the charges, and discharging Ms. Thomas. We accordingly affirm. We explain our conclusion in greater detail in the following parts.

In this Part we address the timeline in this prosecution.

On September 2, 2006, Ms. Thomas was arrested in Orleans Parish. On the incident report generated from that arrest, her home address was listed as 328 Pavilli-an St, New Orleans, Louisiana 70115. The incident report also contained Ms. Thomas’ social security number, physical description, and birth date. Ms. Thomas was continued in custody, reportedly unable to furnish bail in the sum of $6,000 as required by the magistrate judge: After being held in custody for seventy-seven days, Ms. Thomas handwrote a pro se motion seeking her release due to the district attorney’s failure to timely institute her prosecution. See La.C.Cr.P. art. 701 B. As that period of confinement exceeded that allowed by Article 701 B(l)(a), Ms. Thomas was ordered released without a bail obligation on November 27, 2006.

On November 3, 2008, the district attorney instituted formal prosecution of Ms. Thomas by filing a bill of information, charging her with possession of cocaine, a felony, in violation of La. R.S. 40:967 C. See La.C.Cr.P. arts. 382 A (“[Cjriminal prosecutions in a district court shall be instituted by indictment or by information.”); 384 (“An information is a written accusation of crime made by the district attorney....”). Without the intervention of a neutral magistrate, the district l^attorney obtained a warrant, or alias ca-pias, for the arrest of Ms. Thomas. An arraignment hearing was set on November 18, 2008. The only evidence of any attempt to provide notice of this hearing to Ms. Thomas is a handwritten notation on the side of a single unsigned return for an unserved subpoena directed at 328 Paivil-lon St., which stated, “Street not listed in 2008 Haines Directory for New Orleans. Street also not listed on internet Mapquest for New Orleans area.” Without notice, Ms. Thomas failed to appear. The district court in that hearing issued another alias capias with no bond. No further action was taken in this case for over three years until Ms. Thomas was arrested on March 30, 2012.

On May 30, 2012, Ms. Thomas filed her motion to quash this bill of information, claiming that the prescriptive period to commence her trial under Article 578 A(2) had expired. See La. C.Cr.P. art. 532(7). A hearing on the motion was held, and the trial judge granted Ms. Thomas’ motion to quash. The trial judge, finding that Ms. Thomas was under no bail obligation to notify the court of any changes in her address after her release under Article 701 B, held that the prosecution failed to carry their burden of proving the exercise of due diligence in obtaining Ms. Thomas’ presence for trial by legal process. The trial judge then found that the prosecution had untimely filed this bill of information because more than two years had elapsed since Ms. Thomas’ initial arrest.

In this Part we discuss the legal precepts which guide our review of a trial judge’s ruling on a motion to quash.

“A motion to quash is ‘a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge.’ ” State v. Franklin, 13-0488, p. 3 (La.App. 4 Cir. 10/9/13), 126 So.3d 663, 666 (citing State v. Carter, 11-0859, p. 3 (La. App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182). See also State v. Clark, 12-1296, p. 3 (La.5/7/13), 117 So.3d 1246, 1249. “All issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury.” La.C.Cr.P. art. 537.

“All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilt/ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.” La.C.Cr.P. art. 531. A motion to quash may be grounded in the prosecution’s failure to timely commence a defendant’s trial. See La.C.Cr.P. arts. 532(7), 578 A(2). See also State v. Ramirez, 07-0652, p. 3 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207.

In non-capital felony cases, the district attorney is required to commence a defendant’s trial within “two years from the date of institution of the prosecution.” La.C.Cr.P. art. 578 A(2). This serves “to enforce the accused’s right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions 1 sover citizens for indefinite periods of time.” Ramirez, 07-0652, p. 4, 976 So.2d at 207. The two-year limitations period set forth in Article 578 A(2) is prescriptive in nature. See State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205, 205 (per curiam). See also La.C.Cr.P. art. 578 cmt. (b). As such, the running of this time period may be interrupted. See La.C.Cr.P. art. 579 A.

Once a defendant asserts a facially meritorious motion to quash based on a failure to timely commence trial, the district attorney “bears the heavy burden” of showing that the running of this prescriptive period was interrupted. State v. Bobo, 03-2362, p. 4 (La.4/30/04), 872 So.2d 1052, 1055 (citing State v. Groth, 483 So.2d 596, 599 (La.1986)). Article 579 A provides three grounds for the interruption of the running of this limitations period, only one of which arguably applies in this case: when “[t]he defendant cannot be tried because ... [her] presence for trial cannot be obtained by legal process, or for any other cause beyond the control” of the prosecution. La.C.Cr.P. art. 579 A(2). In order to meet his heavy burden of proof for this ground, the district attorney must show that he has “exereise[d] due diligence in discovering the whereabouts of the defendant as well as in taking ^appropriate steps to secure [her] presence for trial once [the district attorney] has found [her].” State v. Sorden, 09-1416, pp. 13-14 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 189 (quoting State v. Estill, 614 So.2d 709, 710 (La.1993) (per curiam)). See also Bobo, 03-2362, p. 5, 872 So.2d at 1055-1056. “This burden remains even where the prosecution has made numerous attempts at service and the defendant has moved out of the state’s jurisdiction.” Sorden, 09-1416, p. 13, 45 So.3d at 189 (citing State v. Chadbourne, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832, 832 (per curiam); Estill, 614 So.2d at 710).

The prosecution “has an affirmative duty to provide proof’ sufficient to show that the running of the prescriptive period to commence trial was interrupted. State v. Peters, 10-0939, p. 8 (La.App. 4 Cir. 11/17/10), 52 So.3d 233, 238. “Evidence may be adduced in a motion to quash and at the subsequent hearing on the matter.” Franklin, 13-0488, p. 6, 126 So.3d at 667. Should interruption be proven by the prosecution, then the time periods for commencement of trial shall run “anew from the date the cause of interruption no longer exists.” La.C.Cr.P. art. 579 B. Should the district attorney fail to meet his burden of proof, however, the statute of limitation shall be given effect. See Ramirez, 07-0652, p. 4, 976 So.2d at 207 (citing State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286).

We review the trial judge’s ruling on this motion to quash under an abuse of discretion standard. See State v. Batiste, 05-1571, pp. 8-9 (La.10/17/06), 939 So.2d 1245, 1251. A ruling on a motion to quash involving a speedy trial violation is a mixed question of law and fact. See State v. Brady, 18-0863, p. 3 (La.App. 4 Cir. 12/ll/13), 131 So.3d 166. As such, a judge must first make findings of fact and then apply the proper legal principles to those findings thereafter. These rulings should not be disturbed absent an abuse of the trial judge’s discretion. See State v. Dillon, 11-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 475. See also State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206-1207 (setting forth that the complementary roles of our trial courts and intermediate appellate courts demand that deference be given to a trial judge’s discretionary decisions).

Our review of a trial judge’s ruling on this mixed question of law and fact requires us to examine both her findings of fact and choice of law to be applied to those facts. First, in reviewing a trial judge’s findings of fact, we are extremely deferential and “will ‘not overturn those findings unless there is no evidence to support’ ” them. State v. McClendon, 13-1454, p. 6 (La.App. 4 Cir. 1/30/14), 133 So.3d 239, 245, writ denied 14-0324 (La.2/19/14), 133 So.3d 667, 668, (quoting State v. Wells, 08-2262, p. 4 (La.7/6/10), 45 So.3d 577, 580). “This extremely heightened deference is rooted in the limitations of our appellate jurisdiction set forth in La. Const. art. 5, § 10(B), which provides: ‘In criminal cases, [an appellate court’s] jurisdiction extends only to questions of law.’ ” Id.

IsSecond, we review whether the trial judge abused her discretion in her choice and application of law. A trial judge necessarily abuses her discretion if her ruling on a motion to quash is based on an erroneous choice or application of the law. See State v. Hayes, 10-1538, p. 11 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 15 (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (noting that “discretionary choices are not left to a court’s inclination, but to its judgment,” which is guided by sound legal principles) (internal punctuation omitted)). If a trial judge in exercising her discretion “bases [her] ruling upon an erroneous view or application of the law, [her] ruling is not entitled to our deference.” Dillon, 11-0188, p. 4, 72 So.3d at 476. Thus, if we find that the trial judge improperly applied or stated the law, we will adopt the trial judge’s findings of fact, provided that they are supported by any evidence, and apply those facts to the proper legal principles.

If the trial judge applied the proper legal principles, we then review discretionary decisions in her ruling for abuse. “A trial judge has a responsibility to control the district court over which [she] presides.” Love, 00-3347, p. 11, 847 So.2d at 1207 (citing La.C.Cr.P. art. 17 (“A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders .... It has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.”)). “That responsibility frequently includes the exercise of discretion when deciding whether to grant or deny a motion to quash, |9and the duty to make reasonable rulings that protect the rights of defendants, without placing unnecessary limits on the State’s ability to prosecute cases.” Id. When examining these decisions, we presume that the trial judge acted appropriately, “based on [her] appreciation of the statutory and procedural rules giving [her] the right to run [her] court.” Id., 00-3347, p. 12, 847 So.2d at 1208. Thus, we review her ruling on this motion to quash for “palpable abuse” of judicial discretion. Id., 00-3347, p. 14, 847 So.2d at 1209.

IY

In this Part we apply these guiding precepts to the undisputed findings of fact in this case. We begin by setting forth the proper time period that should be reviewed for a determination of whether trial was timely commenced. We next review the tenability of the prosecution’s claims that Ms. Thomas’ failure to provide a proper address when she was initially arrested caused an interruption under Article 579 A(2). We then determine that the prosecution failed to exercise due diligence in its effort to locate Ms. Thomas in order to timely commence trial. As such, we hold that the trial court properly granted Ms. Thomas’ motion to quash the bill of information because the prosecution failed to timely commence her trial.

A

The proper period of time to be examined in deciding the merits of this motion to quash is the time between the district attorney’s institution of the prosecution and the commencement of the defendant’s trial. See La.C.Cr.P. art. 578 A(2). Here, the district attorney instituted the prosecution of Ms. Thomas on November 3, 2008, by filing a bill of information. This means that the prosecution had two years, or until November 3, 2010, to commence Ms. Thomas’ trial. As Ms. Thomas filed this motion to quash on May 30, 2012, her motion is clearly facially meritorious in its assertion that her trial was not timely commenced within the two-year statutory period. Thus, the district attorney must carry the “heavy burden” of showing that an interruption occurred in the running of that prescriptive period. Bobo, 03-2362, p. 4, 872 So.2d at 1055.

The prosecution, however, has put forth little evidence to show that the two-year limitations period was interrupted due to the prosecution’s inability to obtain the defendant’s presence for trial by legal process or for any other cause beyond the control of the district attorney. See La.C.Cr.P. art. 579 A(2). We observe at the outset that the prosecution did not request an evidentiary hearing in order to oppose the motion to quash and thereby offer any additional evidence or testimony beyond the relatively bare contents of the record. See, e.g., Franklin, 13-0488, p. 6, 126 So.3d at 667.

Relying on the record’s contents, the district attorney is relegated to claiming that he could not effect service upon Ms. Thomas because she furnished to the arresting officers or the booking deputy what he characterizes in his brief as a “fake” or “non-existent” address. The sole basis for this characterization, as best as we can ascertain, is an unsigned handwritten notation on a single return for an unserved subpoena directed to Ms. Thomas at 328 Pavilion Street, New Orleans, 1 ¶1 Louisiana 70115, which states, “Street not listed in 2008 Haines Directory for New Orleans. Street also not listed on internet Mapquest for New Orleans area.” No testimony or other evidence was offered to prove that Ms. Thomas provided a fake address.

The district attorney posits that the trial judge granted this motion after finding that Ms. Thomas had no “duty” to update her address with the court after her release from custody under Article 701. The district attorney argues to the contrary that Ms. Thomas thus “had some type of duty” to update her address as an arrested person is prohibited by law from furnishing “false information regarding the identity of such party” to the police. La. R.S. 14:108 B(l)(c). See also La.C.Cr.P. arts. 215.1, 228. Thus, his argument continues, by her (presumably) furnishing a false address, “it was never possible for the State to properly serve the defendant.”

He analogizes this duty to that of a defendant, who is released on bond, that must update the court with any change of address as required by Article 322. See Peters, 10-0939, p. 11, 52 So.3d at 239. This analogy fails, however. In Peters, the defendant had an affirmative duty stemming from a bond obligation to provide an accurate address and to update the court with any changes. “The defendant ... signing a bail bond shall write the address at which [she] can be served under [her] signature-” La.C.Cr.P. art. 322 A. The address “shall be conclusively presumed to continue for all proceedings on the bond until the party providing the address | ^changes it by filing a written declaration in the proceeding for which the bond was filed.” La.C.Cr.P. art. 322 B.

Ms. Thomas, however, is not similarly situated to the defendant in Peters. Ms. Thomas was released from custody without any bond obligation due to the district attorney’s failure to timely institute her prosecution. See La.C.Cr.P. art. 701 B (“Failure to institute prosecution as provided in Subparagraph [B](l) shall result in the release of the defendant, if, after contradictory hearing with the district attorney, just cause for the failure is not shown.” (emphasis added)). As Ms. Thomas did not have a bond obligation to report changes in her address, the application of the principle set forth in Peters is not appropriate in this case.

We instead find that the proper principle to be applied was announced by us in Sorden. In that case, the defendant had initially been released on an ROR bond. See Sorden, 09-1416, p. 2, 45 So.3d at 183. The district attorney subsequently dismissed the bill of information by a nolle •prosequi, and the defendant’s obligations under that bond were presumptively extinguished. See id., 09-1416, pp. 10-11, 45 So.3d at 187-188. The district attorney argued that the defendant’s failure to update her address, between his entering of the nolle prosequi and his re-institution of prosecution, prevented him from effecting service of process on her and thus interrupted the limitations period under Article 5791 A(2). See id., 09-1416, p. 9, 45 So.3d at 187. After discussing the obligations undertaken when a person is admitted to bail, we concluded in Sorden that the prosecution had failed to establish that the defendant had violated any bail obligation. See id., 09-1416, p. 11, 45 So.3d at 188. Thus, in the absence of a contractual obligation under an existing bond, a defendant has no obligation to update the prosecution or the court of her whereabouts so that she may be served with notice. And a defendant’s failure to update them is, thus, not a ground for interruption of the limitations period. See id., 09-1416, pp. 11-12, 45 So.3d at 188.

Applying this principle set forth in Sor-den, we conclude that Ms. Thomas had no duty to update her address with the court; Ms. Thomas also had no duty to supply the court with an accurate address after her release under Article 701. The failure of Ms. Thomas to furnish an accurate or updated address after her release from custody without bail was not the cause of the district attorney’s inability to obtain her presence for trial by legal process, nor did it constitute any other cause beyond the control of the state.

B

In this Part, we examine whether the prosecution exercised due diligence in its effort to locate Ms. Thomas in order to timely commence her trial. The only evidence submitted by the district attorney to show the extent of his efforts is a single subpoena directed to Ms. Thomas that was issued on November 18, 2008. A single attempt at service of notice is ordinarily insufficient to show the exercise of due diligence in discovering the whereabouts of the defendant as well as the taking 1Mof necessary steps to secure her presence for trial once found. See Bobo, 03-2362, pp. 7-10, 872 So.2d at 1057-1059 (finding that the failure to follow up on an extradition request in order to prosecute an offender incarcerated in another state constituted a lack of due diligence); State v. Taylor, 439 So.2d 410, 414 (La.1983) (holding that two unsuccessful service attempts were insufficient to show the exercise of due diligence); Estill, 614 So.2d at 710-711(finding that simply listing a defendant in a computer database after a single visit to the site of his former home did not constitute due diligence). See also State v. Foster, 96-0670 (La.6/28/96), 675 So.2d 1101.

The record indicates that the police report also contained Ms. Thomas’ description, birth date, and social security number. The district attorney was silent as to any other effort to investigate Ms. Thomas’ whereabouts with that available information during the two-year limitations period. In fact, there is no suggestion in the record that any other effort was undertaken to notify Ms. Thomas of the pendency of the formal charges against her.

The record also indicates that Ms. Thomas was charged with resisting arrest at the time of her arrest in November 2006. She was issued a summons to appear in the New Orleans Municipal Court. The district attorney is silent as to whether he sought to develop any information from that source or any other. The district attorney has simply not demonstrated that, despite the exercise of due diligence, he was unable to locate Ms. Thomas and obtain her presence for trial.

^CONCLUSION

As here, where the burden is on the district attorney to establish that there was some interruption of the time limitation pursuant to La.C.Cr.P. art. 579, a trial judge must sustain the motion to quash. La.C.Cr.P. art. 538(3). According to Article 578 A(2), “no trial shall be commenced nor any bail obligation be enforceable ... [i]n [non-capital] felony cases after two years from the date of institution of the prosecution.” Thus, the trial judge properly sustained Ms. Thomas’ motion to quash. See La.C.Cr.P. art. 581.

The district attorney was mandated by statute to commence the trial of Ms. Thomas for illegal possession of cocaine within two years of its filing of the bill of information or no later than November 3, 2010, unless it could prove that the running of the time period had been suspended or interrupted. The trial judge found no interruption had occurred, and we find no abuse of her discretion in that ruling.

DECREE

We affirm the judgment of the trial judge sustaining the motion to quash the bill of information, dismissing the charge, and discharging the defendant, Tanislla Thomas.

AFFIRMED.

      .The trial judge did not reach a decision on Ms. Thomas' claim of a violation of her constitutional right to a speedy trial as set forth in her motion to quash. See La. Const, art. I, § 16; U.S. Const, amend. VI; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We too do not reach this claim. "[Statutory and constitutional rights are distinct bases for asserting the right to speedy trial.” State v. Sorden, 09-1416, p. 7 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 185 (citing State v. Powers, 344 So.2d 1049, 1051 (La.1977)). These claims involve “wholly separate inquiries." Id., 09-1416, p. 7, 45 So.3d at 186. As our ruling on her statutory right to speedy trial will result in the final disposition of these proceedings, we chose not to address her constitutional claim.

      . A felony is “any crime for which an offender may be sentenced to death or imprisonment at hard labor.” La. R.S. 14:2 A(4). A person convicted of a violation of La. R.S. 40:967 C “shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.” La. R.S. 40:967 C(2).

      . It was not custom or practice in trial courts at the time of the issuance of this alias capias to require a showing of probable cause to arrest following the filing of a bill of information. Compare the current provisions of La.C.Cr.P. art. 496 B with State v. Rochon, 11-0009, p. 2 (La.10/25/11), 75 So.3d 876, 879.

      . A motion to quash "shall specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion." La.C.Cr.P. art. 536.

      . We recognize that the trial judge in this instance utilized the wrong time period in her reasons for judgment when she granted Ms. Thomas’ motion to quash. We assume the trial judge simply misspoke and intended to apply the time period between the filing of the bill of information and the commencement of the defendant’s trial as set forth in Ms. Thomas' motion to quash.

      . It is not disputed that Ms. Thomas timely filed this motion "before commencement of trial.” La.C.Cr.P. art. 535 B.

      . "Statutes of limitation, as the primary guarantees against inordinate delays, represent the legislative balancing of the interests of the state against the interests of the defendant." State v. Rome, 630 So.2d 1284, 1286 (La.1/14/94). These statutory limitations for the commencement of trial "provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” State v. Romar, 07-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725 (per curiam) (citing United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)).

      . The prosecution only asserts that interruption occurred under La.C.Cr.P. art. 579 A(2). Thus, we do not review other possible sources of interruption of the running of this prescriptive period. See Greenlaw v. U.S, 554 U.S. 237, 244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ("[A]s a general rule, our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (internal punctuation omitted)). We do note, however, that nothing in the record evidences that Ms. Thomas fled from her usual place of abode with the purpose of avoiding prosecution for this charge or that she failed to appear at her arraignment hearing pursuant to actual notice. See La.C.Cr.P. art. 579 A(l),(3).

      . Rulings on motions to quash, which do not require factual determinations and present only questions of law, are reviewed de novo— without any deference to the trial judge's legal findings or conclusions. See, e.g., State v. Schmolke, 12-0406, pp. 1-4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298-299.

      . The police report spells the street "Pavilli-an," and the booking sheet spells it "Pavil-lion.”

      . We have also recently issued an opinion dealing with a similar issue. See State v. Gregory, 13-1593 (La.App. 4 Cir. 3/5/14), 137 So.3d 663, 2014 WL 888901. In that case, we found that a defendant, having been released from her bail obligation under Article 701, no longer had any duty to update the court with any changes in her address. Id., 13-1593, p. 6, 137 So.3d 663, 668. As a result, we held that her failure to update her address could not serve as a justification for an interruption in the running of the time period under La.C.Cr.P. art. 578 A(2). Id.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Kevin Paul LANGFORD, Plaintiff-Appellant v. Elizabeth Brooke Sims LANGFORD, Defendant-Appellee.
    No. 49,080-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Robert A. Moore, Arcadia, for Appellant.
    W. Kyle Green, for Appellee.
    Before DREW, LOLLEY and GARRETT, JJ.
   LOLLEY, J.

|! Kevin Paul Langford appeals a judgment by the Second Judicial District Court, Parish of Bienville, State of Louisiana, regarding custody and support of his minor child with Elizabeth Brooke Sims Langford, as well as the award of interim spousal support. For the following reasons, we affirm the judgment in part, reverse in part, and remand for further proceedings.

Facts

Kevin and Brooke Langford entered into a covenant marriage on April 28, 2007, and lived in Arcadia, Louisiana. The couple have one son, born on January 2, 2012. Kevin is employed as a physical therapy assistant in Jonesboro, Louisiana, and Brooke is a stay-at-home mother.

In May 2013, Kevin moved out of the matrimonial domicile (a house the couple rented from Brooke’s father) and moved to western Caddo Parish with his parents. Shortly thereafter, he filed a petition for separation from bed and board pursuant to La. R.S. 9:307(B)(6), wherein, among other claims, he desired “the parties be awarded joint legal custody of their son ... during their separation, and the' Court enter an Order of custody and visitation in the best interests of the child.”

A hearing was held on August 12, 2013, at which time the child was 19 months old. In considering the issues of custody of the minor child, child support, and interim spousal support, the trial court heard testimony from Kevin and Brooke and considered evidence regarding the parties’ financial situations. The parties stipulated that the information on Kevin’s four pay stubs submitted into evidence was correct. The trial court also had before it Brooke’s affidavit of her average monthly income and expenses, which showed she had no independent income and average monthly expenses for 12her and the child of $2,885.75. At the conclusion of the hearing, the trial court made a verbal determination, followed by a written judgment entitled Judgment of Custody (Considered Decree). In that judgment the parties were granted joint custody of their child, with Brooke being named the primary domiciliary parent. Kevin was granted the following visitation: every other weekend, from Friday at 4:00 p.m. until Sunday at 4:00 p.m., and on intermittent weeks, an additional visitation day on Wednesday, overnight from 4:00 p.m. Wednesday until Thursday morning. A location for exchange of their child was established as well. Additionally, based on Kevin’s July 2013 pay stub, the trial court projected Kevin’s annual salary to be $100,000.00, using that amount to calculate a child support obligation by Kevin in the amount of $1,117.30 a month. He was also ordered to pay Brooke interim spousal support in the amount of $800.00 per month, with a $200.00 per month credit to Kevin for payment of Brooke’s health insurance premium. The trial court’s judgment was certified to be a final judgment, and this appeal by Kevin ensued.

Discussion

Allocation of Shared Custody

On appeal, Kevin raises two assignments of error related to the determination of the child’s physical custody. First, he argues that the trial court erred in failing to craft a Joint Custody Implementation Plan (“JCIP”) in accordance with La. R.S. 9:335. Second, he argues that the trial court erred in failing to formulate a plan giving Kevin, who was granted joint custody, substantially equal time with his child.

The paramount consideration in any determination of child custody is |3the best interest of the child. Sanders v. Brown, 47,893 (La.App.2d Cir. 02/27/13), 110 So.3d 1237. Custody determinations are made on a case-by-case basis. Watson v. Watson, 45,652 (La.App.2d Cir.08/11/10), 46 So.3d 218. The trial court has vast discretion in deciding matters of child custody and visitation, and an appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion. Id.

In determining the child’s best interest, the trial court is to consider all relevant factors. Coleman v. Coleman, 47,080 (La.App.2d Cir.02/29/12), 87 So.3d 246. Louisiana C.C. art. 134 lists some of the relevant factors to be considered in determining the best interest of the child. The trial court is not bound to make a mechanical evaluation of all the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Sanders, supra; Coleman, supra. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the court. Sanders, supra. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Pender v. Pender, 38,649 (La.App.2d Cir.05/12/04), 890 So.2d 1. Each ease will depend on the children’s ages, the parents’ situations and other factors relevant to that particular custody dispute. Id.

Joint custody determinations are governed by La. R.S. 9:335, which provides in pertinent part:

|4A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.

Thus, under La. R.S. 9:335(A)(2)(b), to the extent feasible and in the best interest of the child, physical custody of the children should be shared equally. Yet, when the trial court finds that a decree of joint custody is in the best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Stephenson v. Stephenson, 37,323 (La.App.2d Cir.05/14/03), 847 So.2d 175; Craft v. Craft, 35,785 (La.App.2d Cir.01/23/02), 805 So.2d 1213. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Id.

The domiciliary parent is the parent with whom the child primarily resides, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both | r,parents. La. R.S. 9:335(B)(2). The implication of La. R.S. 9:335(B)(1) and (2) is that most joint custody decrees will invariably result in the child primarily residing with one parent more than the other. Nevertheless, the goal of joint custody is upheld so long as the nondomiciliary parent is assured of frequent and continuing contact with the child. Stephenson, supra.

Initially, we note Kevin’s argument that the trial court failed to enter a JCIP as required under La. R.S. 9:335. As noted, La. R.S. 9:335(A)(1) provides that in a proceeding in which joint custody is decreed, a joint custody implementation order shall be rendered, except for good cause shown. Subsection (A)(2) provides that the implementation order shall allocate the time periods during which each parent will have physical custody of the child so that the child is assured of frequent and continuing contact with both parents; physical custody should be shared equally, to the extent that it is both feasible and in the best interest of the child; and, the order should allocate the legal authority and responsibility of the parents. The statute does not require that a specific form be used for the implementation plan.

The October 2, 2013, Judgment of Custody (Considered Decree), although not entitled a “Joint Custody Implementation Plan”, named a domiciliary parent, awarded joint custody, and ordered a physical custody schedule with set days and means of exchange. It also addressed the issues of health insurance for the child and child support. The fact that it was not entitled “Joint Custody Implementation Plan” is of no consequence, because it minimally met the requirements of La. R.S. 9:335. So considering, this | ^assignment of error has no merit.

As to the actual physical custody of their child, Kevin maintains that the trial court abused its discretion, because he was not granted enough physical time with the child. Kevin initially requested having him every weekend from Friday at 4:00 to Monday morning at 9:00 a.m. Brooke had her own intractable solution, which included a complete reconciliation. In the absence of that happening, Brooke suggested Kevin have their child on Tuesday nights after work until early the next morning, and then Friday night after work until Saturday afternoon. Brooke’s position was primarily rooted in the fact that, at the time of the hearing, she was still breast feeding the child. Because the parties were unable to agree on a custody plan for their 19 month old child, they placed the trial court in the unenviable position of having to determine what was in the best interest of a very young child. The trial court’s ultimate determination, i.e., the result of alternating weekends and Wednesdays for Kevin, is on appeal as a result.

Initially, as to the trial court’s order regarding Kevin’s physical custody of their son, we note that the trial court’s judgment failed to address visitation during holidays and special family days— which will increase Kevin’s physical custody with the child. Otherwise, the trial court’s judgment regarding the allocation of physical custody was not an abuse of discretion considering these limited facts.

Admittedly, the testimony at trial reflects that Kevin is a loving father — that is undisputed by Brooke. Further, Brooke made clear that she values the importance of the relationship between the child and Kevin, and she does not want to deprive their child of that relationship. However, the 17fact remains that their child is very young — at the time of the hearing only 19 months old. Significantly, Brooke does not work outside of the home and cares for their child at home, while Kevin works. Notably, Kevin did not present any evidence of his ability to provide child care for their child if he was granted physical custody during the week. Brooke remains living in the family home (which is owned by her father), where presumably the child has the same bedroom. At the time of the hearing, Kevin had yet to obtain his own residence and lived with his parents. Brooke’s living arrangement serves to provide great stability to the couple’s very young child. It is clear that Brooke has been the primary care giver for their child and most probably provides a sense of stability. Finally, although Kevin sought physical custody of his son every weekend, such a schedule would deprive Brooke of the ability to take the child to church, something that she placed great importance on.

The jurisprudence is clear that substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. The implication of La. R.S. 9:335 is that most joint custody decrees will invariably result in the child primarily residing with one parent more than the other. Stephenson, supra. As long as Kevin, the nondomicili-ary parent, is assured of frequent and continuing contact with his child, then the goal of joint custody has been met. Here, Kevin will see his son at least every week, assuring him of frequent, regular, and continuing contact with his child. Other than the fact that the trial court erred in failing to address the issue of holidays and important family days (such as birthdays), we conclude that the trial court’s judgment was not an abuse of |sdiscretion as to this particular case.

Furthermore, as noted, Brooke was still breast feeding the child at the time of the hearing. This was an issue of great concern to her, since the child woke every night to be fed. However, on appeal seven months has passed, and the child is over two years old. At the hearing Brooke testified that she believed the child would be weaned by the time he was two; thus we anticipate that the issue of his nursing should no longer be a consideration when the trial court reassesses the parties’ visitation schedule. At this juncture, there should be more room for overnight visitation with Kevin. Accordingly, the matter is remanded so that the trial court can set forth a firm schedule for the couple to share equally holidays and other important family days, which will result in Kevin obtaining additional time with his son.

Support Awards

Kevin also argues that the trial court erred in its determination of child and interim spousal support by judicially fixing Kevin’s annual income at $100,000.00. Using that amount, the trial court determined that Kevin’s child support would be in the amount of $1,117.30 a month and Brooke would receive interim spousal support in the amount of $800.00 per month, with a $200 per month credit to Kevin for paying Brooke’s health insurance premium.

The trial court is vested with much discretion in fixing awards of child support. The court’s reasonable determinations shall not be disturbed unless there is a clear abuse of discretion. State, Dep’t of Social Services ex rel C.J.V. v. Neathery, 39,796 (La.App.2d Cir.07/29/05), 909 So.2d 40; State, ex rel. Wilson v. Wilson, 37,674 (La.App.2d Cir.09/24/03), 855 So.2d 913, writ denied, 2003-2970 (La.01/16/04), 864 So.2d 633.

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. La. C.C. art. 111. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which shall terminate upon the rendition of a judgment of divorce. La. C.C. art. 113. The trial court is afforded much discretion in determining an award of interim spousal support, and such a finding will not be disturbed absent a clear abuse of discretion. Shirley v. Shirley, 48,635 (La.App.2d Cir.10/16/13), 127 So.3d 935.

Here, the trial court based its awards of child support and interim spousal support on an erroneous determination that Kevin had an annual salary of $100,000.00. This conclusion was based only on Kevin’s July 9, 2013, pay stub showing year-to-date income of $49,268.92. However, Kevin maintained during the trial that for various reasons his salary was not going to reach the amount he had been making in past years, and that his annual salary for 2013 should not be extrapolated from the amount on the July pay stub. In fact, Kevin’s four pay stubs introduced at trial indicated a lower earning trend by Kevin (supporting his argument), with those pay stubs reflecting the following gross amounts:

1) 06/02/13-06/15/13: $3,147.25
lm2) 06/16/13-06/29/13: $3,271.63
3) 06/30/13-07/13/13: $3,117.32
4) 07/14/13-07/27/13: $3,214.63.

When we consider all of the pay stubs entered into evidence, as of the ending date of July 27, 2013, Kevin’s year to date gross income was $55,600.87. Further, if we consider the pay stubs the trial court had before it, Kevin’s average income received for those pay periods was $3,187.71. Thus, we can estimate that at the average biweekly amount of $3,187.71, Kevin’s gross income would have been $31,877.10 for the remaining months of August, September, October, November, and December. Adding that amount to the known actual income through July 27, 2013, $55,600.87, a more accurate annual income should have been projected for Kevin of $87,477.97 — far less than the trial court’s determined income of $100,000.00. Therefore, because the trial court erred in its calculation of Kevin’s annual income, the awards of child support and interim spousal support based on the inflated amount are also in error. Accordingly, that portion of the judgment making such awards is reversed and remanded for further proceedings.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of Elizabeth Brooke Sims Langford is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. All costs of |nthis appeal are to be shared equally by the parties.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . This is the amount which reasonably should have been estimated by the trial court following the consideration of evidence before it. However, the year 2013 is now history, and Kevin will obviously have actual financial information regarding his 2014 income to be used in obtaining accurate awards for child support and interim spousal support.


author: LAMAR, Justice, DICKINSON, Presiding Justice, KITCHENS, Justice,

text:
    Quizzie MANNING v. KING’S DAUGHTERS MEDICAL CENTER, A Mississippi Non-Profit Corporation.
    No. 2012-CA-01457-SCT.
    Supreme Court of Mississippi.
    March 27, 2014.
    Rehearing Denied May 29, 2014.
    Dickinson, P.J., filed dissenting opinion in which Chandler, J., joined.
    Kitchens, J., filed dissenting opinion in which Dickinson, P.J., and King, J., joined.

      Alfred L. Felder, McComb, attorney for appellant.
    J. Robert Ramsay, Hattiesburg, attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. In this medical-malpractice case, we must decide whether the Circuit Court of Lincoln County abused its discretion by dismissing Quizzie Manning’s case with prejudice. We find that the circuit court did not abuse its discretion by dismissing the case with prejudice; therefore, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. This medical-negligence case arises from Quizzie Manning’s May 16, 2008, visit to King’s Daughters Medical Center’s (KDMC) emergency room. Manning alleges that she sustained injuries as a result of KDMC’s negligence during that visit. On May 7, 2010, nearly two years after Manning’s visit to KDMC and less than ten days before the statute of limitations ran on her claim, attorney Alfred Felder sent KDMC a letter on Manning’s behalf giving KDMC notice of Manning’s intent to sue, as required under Mississippi Code Section 15-1-36(15). On July 14, 2010, Manning, purportedly acting pro se, filed suit against KDMC and other parties. Apparently, Felder drafted Manning’s complaint even though he did not sign it. As Manning filed her complaint pro se, she did not attach a certificate regarding consultation with an expert prior to filing suit, as required under Mississippi Code Section 11-1-58, because she was exempt from the requirement under Section 11 — 1— 58(d).

¶ 3. The complaint was served on KDMC on November 10, 2010, 119 days after the complaint was filed and one day before Manning’s time for service ran. The complaint included an address for Manning in Brookhaven, Mississippi. On November 18, 2010, KDMC filed its answer and propounded its initial discovery to Manning and served the documents on her by sending them to the address provided in the complaint via first-class mail. More than six months passed without a response from Manning. On June 27, 2011, KDMC filed its first motion to dismiss under Rule 41 of the Mississippi Rules of Civil Procedure or, alternatively, for summary judgment. KDMC noticed a hearing on its motion for August 1, 2011, and again served its motion and notice of hearing on Manning at the address provided in the complaint via U.S. Mail. However, on July 8, 2011, the documents KDMC sent to Manning were returned as “not deliverable as addressed, unable to forward.”

¶ 4. On July 11, 2011, KDMC wrote a letter to Felder and requested that he advise how Manning could be served. KDMC then attempted to have Manning served with its motion and notice of hearing via process server at the address provided in her complaint. However, the process server was unable to serve the documents. Counsel for KDMC represents that the process server was told by the residents at the address that Manning was not there and was currently in Georgia, and that their attorney, A1 Felder, had advised them not to accept the documents or give the process server Manning’s current address. Counsel for KDMC then called Felder in an attempt to obtain Manning’s current address, but was not successful. Felder represented to KDMC’s counsel that he was still reviewing the case and had not yet made a decision as to whether he was going to enter an official appearance. KDMC was unable to serve Manning with its motion or notice of hearing; therefore, it did not move forward with the hearing.

¶ 5. On July 5, 2012, a year later, KDMC filed a supplement to its motion to dismiss or, alternatively, for summary judgment, and renoticed a hearing on the motion for Monday, August 6, 2012. KDMC again served its motion and notice on Manning via U.S. Mail at the address she had provided in her complaint and also served the motion and notice on Felder. On Friday, August 3, 2012, Felder filed Manning’s response to KDMC’s motion. Felder officially entered an appearance in the case on Monday, August 6, 2012.

¶ 6. A hearing on KDMC’s motion to dismiss or, alternatively, for summary judgment, was held on August 6, 2012. At the hearing, counsel for KDMC argued that Felder’s actions were unconscionable and the suit should be dismissed as a sanction. Specifically, KDMC argued that Felder had Manning file a pro se complaint because Felder could not comply with the requirements of Section 11-1-58, and that the suit had been “sitting still in the water for the last two years as a direct result of the acts of counsel in advising his client not to respond, not to accept, and not to advise where she can be found.” KDMC did not argue that it was entitled to summary judgment in the case.

¶ 7. Felder argued that he did not represent Manning in the court until he made an entry of appearance because his “understanding of being represented by an attorney in a piece of litigation is that you’re on the pleadings or you’ve made an entry of appearance, one or the other,” and he had not entered an appearance at the time the complaint was filed. Felder further argued that, because Manning was not represented until he entered his appearance in the case, Manning had properly filed her complaint pro se and was not required to review her case with an expert witness prior to filing suit or to file the certificate contemplated by Section 11 — 1— 58. As to why he had not entered an appearance until August 2012, Felder represented to the circuit court that he had experienced ongoing health problems since January 2010. Felder never denied that he had been involved with the case from the very beginning or that he had been advising Manning since at least the time he sent the notice letter on her behalf.

¶ 8. Felder represented that he did not remember whether he had spoken with Manning’s relatives when the process server was attempting to serve KDMC’s motion, but that normally he would advise someone not to accept papers that were not theirs. Felder also made an issue of the fact that KDMC never filed a motion to compel a response to its discovery and that the ease had been on the docket for only two years, which he argued was not a long time, because many cases have been on the docket for two years or more. Felder argued that, given the totality of the circumstances, Manning’s case should not be dismissed, and that, if he did something wrong, which he denied, he should be sanctioned personally.

¶ 9. During oral argument, the circuit court focused on whether or not it should dismiss the case based on Manning’s behavior over the past two years, at one point asking Felder to give a “compelling reason” why the case should not be dismissed “based on Quizzie Manning’s behavior over a two-year period.” In its bench ruling, the circuit court found that the case involved the worst gamesmanship that the court had ever seen. The court found that Manning personally had been “playing games” and that it would have to decide if Manning’s actions should result in the ultimate sanction of dismissal.

¶ 10. The court noted that Manning, a pro se plaintiff, seemed to have an unusual grasp of the time limits set by the rules, but yet did not realize that it was her duty to provide a mailing address at which she could receive documents related to her case. The court further noted that Manning had responded to KDMC’s motion to dismiss or for summary judgment on the Friday before the Monday hearing, and had never responded to KDMC’s discovery. The court also found the argument that KDMC was required to file a motion to compel to be without merit, in part because the court found Manning did not have any intention to respond to discovery that had been outstanding for two years and because KDMC had no way to serve the motion to compel.

¶ 11. The circuit court found that Manning was not represented by Felder during the two years the case sat on the docket. The court concluded that, while Section 11-1-58 did not require a pro se plaintiff to review her case with an expert witness prior to filing suit or to file a certificate, “[t]his is an extreme example for two years of a pro se plaintiff who would not take part in the litigation process, did not give a valid address. That’s at best. At worst, she took active measures through family members to avoid service of any type of document in this case.” The court reasoned that the consideration the Legislature gave to pro se plaintiffs did not apply in this case because of her obvious actions to avoid participating in the litigation. Therefore, as a result of Manning’s actions, the court ruled that her case would be dismissed with prejudice and KDMC would be granted summary judgment.

¶ 12. In its order, the court found that Manning had filed a pro se complaint but had made no effort to respond to discovery propounded to her for more than two years or to respond to KDMC’s motion to dismiss or, alternatively, for summary judgment until the Friday afternoon before the Monday hearing. The court specifically found that:

[Wjhile § 11-1-58 (requiring a certificate of consultation with a qualified expert) does not apply to a “Pro Se Plaintiff,” the Legislature did not contemplate that an individual citizen be allowed to file a “Pro Se” Complaint (which does not require compliance with Miss.Code Ann. § 11-1-58), and thereafter, at best, not take part in the litigation process she initiated, and not supply the Court and the parties with a current, valid address for service of pleadings, etc. and/or at worst, haring filed suit, take active measures through family members to avoid service of any type of document in this case, thereby maintaining this Pro Se Plaintiffs suit at a literal standstill for two years, until this date.

The circuit court held that, under the circumstances, the motion to dismiss under Rule 41(b) or, alternatively, for summary judgment should be granted and the case dismissed with prejudice. Manning now appeals from the circuit court’s order.

DISCUSSION

¶ 13. Manning raises the following three issues on appeal:

(1) that the circuit court erred in granting KDMC’s motion for summary judgment;
(2) that the circuit court erred in dismissing the case for failure to consult a physician prior to filing suit; and,
(8) that the circuit court erred in dismissing the case under Rule 41(b).

I. Whether the circuit court erred in granting KDMC’s motion for summary judgment.

¶ 14. Manning argues that the circuit court erred in granting KDMC’s motion for summary judgment because she attached a doctor’s affidavit, in which the doctor opined that the treatment Manning received at KDMC deviated from the standard of care, to her response to the motion for summary judgment. Therefore, Manning argues that her response created a material issue of fact that precluded summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure. KDMC argues that Manning’s and Felder’s actions constituted gamesmanship intended to manipulate the judicial system in order to escape the requirements of Section 11-1-58 and that the circuit court’s grant of summary judgment essentially disregarded the affidavit filed on the last business day before the hearing, thirteen months after the motion was filed. KDMC further argues that the standard for considering motions for summary judgment is not relevant to the issues in this appeal, as the circuit court’s decision focused on the acts of the purportedly pro se plaintiff and found those actions justified dismissal with prejudice.

¶ 15. In its motion, KDMC first requested that the circuit court dismiss Manning’s complaint under Rule 41(b) due to her lack of prosecution over the past two years, and alternatively requested that the circuit court grant KDMC summary judgment in the case because Manning had presented no evidence to establish a material question of fact. The circuit court did not find that Manning had failed to establish a material question of fact and did not dismiss her case under Rule 56. Although the bench opinion and order could have been more specific about what rule the court utilized to dismiss the case, the affidavit provided by Manning and whether Manning had created a material issue of fact were never discussed at the hearing or in the order. Rather, the circuit court’s questions at the hearing, as well as its findings at the hearing and in its order, focused on Manning’s lack of participation in the lawsuit for the past two years. We find that the circuit court dismissed Manning’s case under Rule 41(b), not Rule 56. Therefore, we find that Manning’s argument on this issue is misplaced and without merit.

II. Whether the circuit court erred in dismissing Manning’s case for failure to consult with a physician pri- or to filing suit.

¶ 16. Manning argues that, to the extent that the circuit court dismissed her case because she failed to consult with a physician prior to filing suit, the court erred because she filed her case pro se and the statutory requirements of Section 11-1-58(6) did not apply to her. While KDMC argues that Manning and her counsel engaged in gamesmanship to avoid the requirements of Section 11 — 1—58(d), it does not argue that Manning’s failure to consult with a physician prior to filing suit is a proper basis to dismiss her case.

¶ 17. Although the circuit court mentioned the requirements of Section 11-1-58, the court did not hold that Manning should have complied with the statute, even though she was purportedly acting pro se, and did not dismiss her case for failure to consult with an expert prior to filing suit. In fact, the court treated Manning as a pro se plaintiff and recognized that the Legislature intended to provide “special consideration” to pro se plaintiffs under the statute. The court did find that those special considerations did not give a pro se plaintiff license to allow her ease to sit at a standstill for over two years. The circuit court did not base its ruling on Manning’s failure to consult with an expert prior to filing suit, but rather based its ruling on Manning’s conduct after she filed suit. Therefore, we find that Manning’s argument on this issue is misplaced and without merit.

III. Whether the circuit court erred in dismissing Manning’s case under Rule 41(b).

¶ 18. As discussed above, this case was dismissed with prejudice on KDMC’s motion to dismiss under Rule 41(b) or, alternatively, for summary judgment. Rule 41(b) “permits defendants to move for dismissal of any action ‘[f]or failure of the plaintiff to prosecute’ ” and “embodies the tenet that ‘any court of law or equity may exercise the power to dismiss for want of prosecution ... necessary as a means to the orderly expedition of justice and the court’s control of its own docket.’ ” Although the circuit court did not clearly articulate what rule it used to dismiss Manning’s case, it is clear from the transcript and order that the court dismissed Manning’s case due to her failure to prosecute and the two-year delay in her case after she filed suit. Therefore, we analyze this case under Rule 41(b).

¶ 19. We review a lower court’s dismissal of an action under Rule 41(b) for an abuse of discretion. “Because the law favors a trial on the issues on the merits, a dismissal for want of prosecution is employed reluctantly.” “[T]his Court may uphold a Rule 41(b) dismissal when there is: (1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser sanctions would not serve the interests of justice.” While aggravating factors or actual prejudice “may bolster the case for dismissal,” they are not requirements.

A. Clear record of delay

¶ 20. The circuit court found that Manning initiated her complaint pro se, but failed to provide a valid address for receiving pleadings, made no effort to respond to outstanding discovery for two years, failed to respond to KDMC’s 2011 motion to dismiss for more than one year and in fact did not respond to the motion until the Friday before the Monday hearing. The circuit court concluded that the case was at a “literal stand still for two years” due to Manning’s actions. Manning argues that she was forced to spend time in Georgia receiving assistance from family due to the injuries she sustained as a result of the negligence alleged in her complaint, that no motion to compel discovery was ever filed, and that two years is not a long time for a case to be on the docket.

¶ 21. We find that the record supports a determination that Manning’s conduct resulted in a clear record of delay. Not only did Manning fail to take any action in her ease for two years after filing suit, she failed to provide an address where she could receive pleadings. We have held recently that a plaintiffs failure to respond to discovery for approximately seventeen months supported a finding of a clear record of delay, sufficient to warrant dismissal with prejudice. Additionally, the first action Manning took in her case after filing suit was reactionary, which we previously have considered as a factor supporting a finding of a clear record of delay. Furthermore, the fact that KDMC did not file a motion to compel Manning’s responses to its outstanding discovery does not weigh in her favor, as the test regarding a clear record of delay “focuses on a plaintiffs conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action.” As there is a clear record of delay in this case, a showing of contumacious conduct is not necessaiy.

B. Additional Considerations of Prejudice and Aggravating Factors

¶22. “The trial court may consider prejudice or the presence of a aggravating factor, and these considerations may help to bolster or strengthen a defendant’s case in support of dismissal. These considerations, however, are not a prerequisite to dismissal under Rule 41(b).” Delay alone may suffice for a dismissal under Rule 41(b). In this case, the circuit court did not specifically consider the presence of prejudice or aggravating factors; however, some findings made by the circuit court fall under these considerations.

1. Prejudice

¶ 23. The circuit court did not make a finding regarding prejudice to KDMC. Manning argues that KDMC has not shown any prejudice due to any delay attributable to her actions; KDMC argues that it is impossible to know what prejudice it may experience, as Manning still has not responded to discovery and there is no way to know what information may have been lost.

¶ 24. The circuit court found that Manning, at best, failed to take part in the litigation process she initiated, keeping her case at a standstill for two years. We have determined that a plaintiffs dilatory conduct resulting in his case remaining stale for more than a year amounted to an unreasonable delay, and that “delay alone may result in presumed prejudice to the defendant.”

2. Aggravating Factors

¶ 25. The circuit court did not specifically make a finding regarding aggravating factors. “The aggravating factors include: (1) the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay; (2) the degree of actual prejudice to the defendant; and (3) whether the delay was the result of intentional conduct.” At the hearing, the circuit court found that Manning was not represented by Felder during the two years her case sat at a standstill on the docket and that she was personally “playing games” in her litigation. Furthermore, the circuit court referred to Manning as a pro se plaintiff in its order. Manning continues to argue on appeal that she was not represented by counsel until Felder entered his appearance a few days before the hearing on KDMC’s motion, and has not argued that anyone other than herself was personally responsible for the delay in her case. Therefore, we find that the record supports a determination that Manning — not her attorney — was personally responsible for the delay in her case and that the first aggravating factor is present.

¶ 26. The record does not reflect any actual prejudice to KDMC; thus, we find the seco® aggravating factor is not present. As to the third aggravating factor, the circuit court found that, at best, Manning failed to participate in the litigation she initiated and, at worst, took active measures through family members to avoid service of any type of document in this case. Manning argues that she did not intend to delay her case or absent herself from the litigation, but was forced to seek assistance from out-of-state relatives. We find that the record reflects that Manning knowingly and intentionally left the state and did not provide a forwarding address to receive correspondence related to the lawsuit she personally initiated. Therefore, we find that Manning intentionally failed to participate in her case for two years and, therefore, the third aggravating factor is present in this case.

C. Lesser Sanctions

¶27. We have held that “in determining whether the trial court abused its discretion when dismissing a case pursuant to Rule 41(b), we must consider whether lesser sanctions would better serve the interests of justice.” “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” We have stated that, “[wjhere there is no indication that the lower court considered any alternative sanctions to expedite the proceedings, appellate courts are less likely to uphold a Rule 41(b) dismissal.”

¶ 28. We have considered the fact that lesser sanctions were argued before the lower court and that the lower court considered all arguments prior to granting dismissal as factors showing that lesser sanctions were considered. In this case, the circuit court did not specifically address lesser sanctions in its order. However, at the hearing, Felder argued that the case should remain on the docket and that, if he did anything wrong, he should be personally sanctioned instead of the case being dismissed. Felder further argued that dismissal of Manning’s case would be an extreme sanction. The circuit court recognized that it had to “decide if the games that [Manning] played are going to result in the ultimate sanction for her case.” In its order, the circuit court found that, under the circumstances, dismissal with prejudice was the appropriate result. Therefore, the record shows that Manning urged the circuit court to adopt lesser sanctions and that the circuit court considered whether dismissal with prejudice was the appropriate sanction in this case.

¶ 29. We must now consider whether lesser sanctions would better serve the interests of justice in this case and find that they would not. As discussed above, the record clearly shows a two-year delay due to Manning’s conduct and the presence of two of the three aggravating factors. We recently upheld a trial court’s dismissal with prejudice of a case due to plaintiffs failure to respond to discovery or take any action in his case for more than a year. In Holder, a case in which no aggravating factors were present, we found that a less-than-two-year delay resulted in presumed prejudice to the defendant and that the delay alone was enough to support the trial court’s decision to dismiss with prejudice. We find that Manning’s behavior was more egregious than that of the plaintiff in Holder. Therefore, we find that lesser sanctions would not better serve the interests of justice in this case.

¶ 30. Justice Dickinson in dissent opines that the sanction of dismissal was inappropriate because “the defendant filed no motion to compel.” But, to the contrary, our rules and precedent make clear that a motion to compel is not a prerequisite to a motion to dismiss when, as here, there is a total failure of a party to participate in discovery. The dissent’s reliance on Caracci v. International Paper Co., 699 So.2d 546, 557 (Miss.1997), State Highway Commission v. Havard, 508 So.2d 1099, 1104 (Miss.1987), and Beck v. Sapet, 937 So.2d 945, 949-50 (Miss.2006), is misplaced, as all involve improper or incomplete discovery responses as opposed to a total failure to respond. Improper discovery responses are governed by Rule 37(a)(2) and necessitate a motion to compel. A total failure to respond to discovery is governed by Rule 37(d), which states that “[i]f a party ... fails ... to serve answers or objections to interrogatories submitted under Rule 33, after proper service of interrogatories ... the court in which the action is pending on motion may make such orders in regard to the failure as are just,” including an order dismissing the action.

CONCLUSION

¶ 31. For the foregoing reasons and considering our deferential standard of review in these cases, we find that the Circuit Court of Lincoln County did not abuse its discretion in dismissing Manning’s case with prejudice. The judgment of the circuit court is affirmed.

¶ 32. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J.

DICKINSON, Presiding Justice,

dissenting:

¶33. The majority affirms the trial court’s dismissal of Manning’s lawsuit because

Manning’s conduct resulted in a clear record of delay. Not only did Manning .... fail to take any action in her case for two years after filing suit, she failed to provide an address where she could receive pleadings.

¶ 34. The majority’s concerns with this case are not altogether unreasonable. While I can not deny that Manning’s behavior leading up to her filing this lawsuit, and beyond, was less than admirable, I am not prepared to agree that the sanction of dismissal of her lawsuit, with prejudice, was in accord with our rules or precedent. So I must respectfully dissent.

¶ 35. Two primary reasons compel this dissent. First, according to many of his statements at the hearing on the defendant’s motion to dismiss, the trial judge clearly based his dismissal on his erroneous belief that “Mrs. Manning, through her inactions or her inability to give a valid address, she literally just stopped the litigation process for two years.” In fact, Manning did no such thing. She provided an address. And according to Rule 5(b)(1) of the Mississippi Rules of Civil Procedure, to serve discovery requests upon Manning, the defendant had to do no more than to mail them to her at her “last known address, or if no address is known, by leaving [them] with the clerk of the court.... ”

¶ 36. The defendant — who clearly and understandably was frustrated — states that it did so and, indeed, the record bears this out. But if our rules and precedent are to be followed, the defendant — after receiving no response — should have filed a motion to compel. Instead, the defendant chose to file a motion to dismiss. Our precedent and rules clearly and unambiguously require a motion to compel as a prerequisite to a sanction of dismissal for failure to respond to discovery.

¶ 37. The majority’s disagreement with me seems to stem from its view that a motion to compel should be required only for “improper or incomplete” discovery responses, and not for a failure to respond. This position is flawed for two reasons.

¶ 38. First, the trial court’s sanction of dismissal was not based so much on Manning’s failure to respond to discovery, as on her alleged failure to “provide an address where she could receive pleadings.” But she did, in fact, provide an address that' complied in every respect with Rule 5(b)(1).

¶ 39. But more importantly, the majority’s views are in complete disagreement with this Court’s holding in Beck v. Sapet, where the plaintiff failed to respond to discovery for nearly one year. We stated that the case “provides an excellent example of the proper way to document the efforts made to obtain and provide adequate discovery responses.” We went on to state that “failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery.” And “if the party fails to comply with this first order to compel, the trial judge may then sanction that party in accordance with M.R.C.P. 37(b), which includes dismissing the case with prejudice.” Here, I find Manning’s failure to respond to discovery only slightly more troublesome than this Court’s occasional failure to follow consistently its own precedent by making unannounced changes in the application of rules.

¶ 40. The majority supports its position that no motion to compel is necessary by citing Palmer v. Biloxi Regional Medical Center, Inc. But in that case, the defendants filed a motion to compel, prior to seeking a motion to dismiss as a discovery sanction. The majority also relies on Owens v. Whitwell for the proposition that “[i]f a party totally fails to respond to an interrogatory or his response is of absolutely no substance, subsection (d) of § 13-1-237 requires no prior order before imposing sanctions.” Section 13-1-237 was repealed, effective July 1,1991, and no longer is the law, so Owens does not stand for the proposition the majority purports.

¶ 41. Because the trial judge based his dismissal on an incorrect belief that the plaintiff prevented the defendant from serving papers; and because the defendant filed no motion to compel, the sanction of dismissal of the lawsuit was inappropriate, so I respectfully dissent.

CHANDLER, J„ JOINS THIS OPINION.

KITCHENS, Justice,

dissenting:

¶ 42. Because dismissal with prejudice is an extreme sanction under the circumstances of Manning’s case, and because lesser sanctions would better serve the interests of justice, I respectfully dissent.

¶ 43. According to this Court, “dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.” Holder v. Orange Grove Med. Specialties, 54 So.3d 192, 197 (Miss.2010) (quoting Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1034 (Miss.1999)). “A showing of delay or contumacious conduct is sufficient for a Rule 41(b) dismissal when a lesser sanction would not serve the best interests of justice.” Id. (citing Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181 (Miss.1998)) (emphasis added).

¶ 44. This Court continued, “[dismissals with prejudice] are reserved for the most egregious of eases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors.” Am. Tel. & Tel. Co., 720 So.2d at 181 (quoting Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982)) (emphasis added). And “[w]hile the requirements of a clear record of delay by the plaintiff and futile lesser sanctions have been articulated'the most consistently, several other factors have been identified as ‘aggravating factors.’ ” Id. (citing Rogers, 669 F.2d at 320 n. 3) (emphasis added).

¶ 45. I have not wavered from my assertion in Holder that “[consideration of lesser sanctions should consist of more than a passing, dismissive reference to a single option. Instead, the trial judge carefully should weigh all viable alternatives....” Holder, 54 So.3d at 202 (Kitchens, J., dissenting). The Holder majority referenced the following viable alternatives: “Lesser sanctions may include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Holder, 54 So.3d at 200 (quoting Am. Tel. & Tel. Co., 720 So.2d at 181).

¶46. With regard to the issue of consideration of lesser sanctions by the trial judge, Holder is virtually indistinguishable from the present case. There, when the trial judge asked the plaintiffs counsel what sanctions would be appropriate, and counsel indicated that a mere warning would be appropriate, the trial judge responded: “What’s the purpose of a warning? Everybody is supposed to know the rules.” Holder, 54 So.3d at 200. According to this Court, the circuit judge sufficiently “considered lesser sanctions in his holding.” Id. So too, here, the majority states, “Felder argued that the case should remain on the docket and that, if he did anything wrong, he should be personally sanctioned instead of the case being dismissed.” The majority continued, “Felder further argued that dismissal of Manning’s case would be an extreme sanction.” The majority then reasoned that the circuit court’s duty with regard to a consideration of lesser sanctions was discharged when “Manning urged the circuit court to adopt lesser sanctions” and the court declined to do so. But, as in Holder, the circuit court in the present case considered only one of the viable alternatives to dismissal with prejudice.

¶ 47. In contrast, the circuit court in Hillman v. Weatherly “explicitly considered lesser sanctions, including fines, costs, or damages against Hillman or her counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, or explicit warnings.” Hillman v. Weatherly, 14 So.3d 721, 728 (Miss.2009) (emphasis added). Similarly, in Cox v. Cox, “that lesser sanctions were argued before the chancellor, that the chancellor considered all arguments prior to granting dismissal, and that the chancellor denied [Plaintiffs] motion for reconsideration, in which [Plaintiff] argued that lesser sanctions had not been considered, is sufficient to show that lesser sanctions were considered and rejected.” Cox v. Cox, 976 So.2d 869, 876 (Miss.2008) (emphasis added).

¶ 48. I declined to countenance the cursory analysis conducted in the lower court in Holder, and I decline to do so here. Approval of this approach permits our trial courts to deny litigants their day in court with a mere “passing, dismissive reference to a single option,” rather than conducting a reasoned and objective weighing of all viable alternatives prior to dismissal with prejudice, the ultimate sanction. Holder, 54 So.3d at 202 (Kitchens, J., dissenting).

¶ 49. The majority cites Holder for the proposition that “a plaintiffs dilatory conduct resulting in his case remaining stale for more than a year amounted to an unreasonable delay, and that ‘delay alone may result in presumed prejudice to the defendant.’ ” See Holder, 54 So.3d at 200. In my dissenting opinion in Holder, I pointed out that the majority presumed prejudice without explanation, and the majority does likewise in the present case. Holder, 54 So,3d at 202 (Kitchens, J., dissenting). The Holder majority relied on Cox, where this Court found that, in a case delayed for want of prosecution by fourteen years, prejudice was presumed. Cox, 976 So.2d at 879 (“Given the length of time that has passed in this case, ... we find that [Defendant] is due some measure of presumed prejudice.”). In Holder, I noted that the delay was just over one year, or 435 days. Holder, 54 So.3d at 202 (Kitchens, J., dissenting). Here, Manning filed her complaint on July 14, 2010, and responded to KDMC’s Motion to Dismiss on August 3, 2012. The delay was just over two years, or 731 days. This 731-day delay is substantially shorter than the fourteen-year delay which the Cox Court reticently determined warranted a presumption of prejudice.

¶ 50. This Court also cites the Hillman case, in which we held that “the fact that a plaintiffs sole activity was reactionary ... supported a finding of a clear record of delay.” Hillman, 14 So.3d at 727 (citing Hill v. Ramsey, 3 So.3d 120, 122 (Miss.2009)). But there, Hillman was dilatory in responding to discovery for more than five years, and indeed “was personally responsible for spoliation of the evidence, because she did not disclose her prior medical history at her deposition, which prevented Weatherly from acquiring Hillman’s medical records before their destruction.” Id. at 727, 729. Though the record reflects that Manning may have been dilatory, her conduct cannot be said to rise to the level of misconduct manifested by Hillman-again, Manning’s procrastination lasted for just over two years. Her conduct certainly cannot be said to warrant a dismissal with prejudice.

¶ 51. Even if Manning should receive some kind of sanction for being dilatory, for not obtaining other counsel, or for being out of state trying to regain her health when she should have been at home answering interrogatories, I disagree that the ultimate sanction of dismissal with prejudice is warranted here. I would, therefore, reverse the judgment of the Circuit Court of Lincoln County and remand for a consideration of lesser sanctions. Accordingly, I respectfully dissent.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.

      . KDMC’s counsel represented to the circuit court at oral argument on its motion to dismiss, in its motion to dismiss, and in its briefs filed in this Court that Felder had drafted the pro se complaint. Felder has not denied that allegation.

      . Mississippi Code Section 11-1-58 requires an attorney representing a plaintiff contemplating bringing suit against a licensed physician, healthcare provider, or health care practitioner for injuries or wrongful death arising out of medical services to review the facts of the case and consult with at least one expert prior to filing suit, and to conclude that there is a reasonable basis for filing the action. Miss.Code Ann. § 11-1-58 (Supp.2013). A certificate regarding the completion of the pre-suit consultation is to be attached to the complaint. But see Wimley v. Reid, 991 So.2d 135, 138 (Miss.2008) (holding that a complaint may not be dismissed and need not be amended due to plaintiff's failure to attach a certificate, but recognizing that Section 11-1-58 does impose certain pre-suit requirements on plaintiffs that must be met). Section 11-1-58 includes certain exceptions to the pre-suit requirements. In this case, the relevant exception is Section 11-1-58(6), which exempts from the requirements of Section 11-1-58 a plaintiff who is not represented by an attorney.
      Miss.Code Ann. § 11-1-58(6) (Supp.2013).

      . Holder v. Orange Grove Med. Specialties, 54 So.3d 192, 196-97 (Miss.2011) (citations omitted). See also M.R.C.P. 41(b).

      . Holder, 54 So.3d at 196.

      . Id. (citations omitted).

      . Id. at 197.

      . Id.

      . Holder, 54 So.3d at 197.

      . Hillman, 14 So.3d at 727 (citation omitted).

      . Id. (citations omitted).

      . Holder, 54 So.3d at 199 (citation omitted).

      . Id.

      . /¿.(citation omitted).

      . Id. at 200.

      . Id.

      . Id. (citing Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181 (Miss.1998)).

      . Hillman, 14 So.3d at 727.

      . Id. (citations omitted).

      . Cox v. Cox, 976 So.2d 869, 876 (Miss. 2008).

      . Holder, 54 So.3d at 200-01.

      . Id.

      . Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 244, 249-50 (Miss.Ct.App.2010) (overruled on other grounds by Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192 (Miss.2010)).

      . Holder, 54 So.3d at 250.

      . Miss. R. Civ. P. 37. See also Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1368 (Miss.1990) (holding that if a party fails to respond to discovery, a judge may "impose a sanction of dismissal — absent a court order") and Owens v. Whitwell, 481 So.2d 1071, 1077 (Miss. 1986) (holding "[i]f a party totally fails to respond to an interrogatory or his response is of absolutely no substance, subsection (d) of section 13-1-237 requires no prior order before imposing sanctions”). Section 13-1-237 was the predecessor to Rule 37 and governed discovery sanctions before our rules of civil procedure were adopted. See Caracci, 699 So.2d at 556. The language of Rule 37(d) is identical to the language of section 13 — 1—237(d) interpreted in Owens. See Craft v. Craft, 478 So.2d 258, 265 (Miss. 1985). As such, Owens is clearly applicable and supports affirming the trial court's sanction of dismissal.

      . Miss. R. Civ. P. 5(b)(1).

      . Miss. R. Civ. P. 37(2); see also Ford Motor Co. v. Tennin, 960 So.2d 379, 393 (Miss.2007) ("When a party is aware of an incomplete or evasive discovery response, that party should take affirmative action by seeking an order compelling discovery pursuant to Miss. R. Civ. P. 37(a)(2).”) (citing Warren v. Sandoz Pharm. Carp., 783 So.2d 735, 743 (Miss.Ct. App.2000)).

      . See Caracci v. Int'l Paper Co., 699 So.2d 546, 557 (Miss. 1997) ("Under our rules of civil procedure, failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery. See MRCP 37(a)(2).... After such an order to compel has been granted under M.R.C.P. 37(a)(2), and the party ordered to answer fails to respond, then the remedy may be sanctions in accordance with M.R.C.P. 37(b).”); see also State Highway Comm'n v. Havard, 508 So.2d 1099, 1104 (Miss. 19 87) ("the discovering] party must seek and obtain an order compelling a more detailed response as a precondition of obtaining Rule 37(b) sanctions ...").

      . Beck v. Sapet, 937 So.2d 945, 950 (Miss. 2006).

      . Beck, 937 So.2d at 949 (citing Robert v. Colson, 729 So.2d 1243, 1245 (Miss.1999)).

      . Beck, 937 So.2d at 949 (citing Clark v. Miss. Power Co., 372 So.2d 1077, 1080 (Miss. 1979)) (emphasis added).

      . Palmer v. Biloxi Reg’l Med. Ctr., 564 So.2d 1346, 1351, and 1353 (Miss.1990).

      . Owens v. Whitwell, 481 So.2d 1071, 1077 (Miss.l986)(emphasis added).

      . The majority finds in the record that “Manning knowingly and intentionally left the state and did not provide a forwarding address to receive correspondence related to the lawsuit she personally initiated.” The circuit court stated that, "[tjhis is an extreme example for two years of a pro se plaintiff who would not take part in the litigation, did not give a valid address. That’s at best. At worst, she took active measures through family members to avoid service of any type of document in this case.” While Manning may have failed to give a valid address, for whatever reason, the only evidence that Manning took “active measures through family members to avoid service” came from a lawyer for one of the defendants. The lawyer stated that the process server told her that family members at the listed address, at the recommendation of Felder, refused to accept papers. Not only is this rank hearsay (which the circuit court failed to correct by declining to subpoena the process server for testimony), but also it is not direct evidence of any intentional misconduct on Manning's part. Felder explained that Manning, following her injuries at KDMC, went to Georgia seeking the care of relatives there. The majority cites no other evidence from the record to support its assertion that Manning’s dilatory conduct was intentionally obstructive.