author: LEE, P.J., BARNES, J.,

text:
    Terry FARMER and Wife, Brenda Farmer, Appellants v. Richard Dale RICHARDSON, Appellee.
    No. 2006-CA-01659-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.

      William L. Ducker, Purvis, attorney for appellants.
    William E. Andrews, Purvis, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. In December 1992, Terry and Brenda Farmer entered into a lease purchase agreement with Richard Richardson to purchase certain land in Lamar County. This agreement expired in January 1996 and Richardson asked the Farmers to vacate the premises. The Farmers bought a tract of land adjacent to Richardson’s land. The relationship between the Farmers and Richardson was contentious at best with both parties filing numerous legal actions against the other in the years after the lease purchase agreement expired. The parties also engaged in physical confrontations, one of which occurred on April 2, 1996, and involved Terry Farmer, his father, Clyde Farmer, and Richardson. All parties were physically injured to some extent.

¶ 2. On May 14, 1996, the Farmers filed a complaint in the Lamar County Circuit Court against Richardson seeking damages for malicious prosecution, harassment, damage to their reputation, false imprisonment, abuse of process, mental anguish, emotional distress, loss of wages, and medical expenses. On October 2, 1996, Terry filed a complaint for injunction in the Lamar County Chancery Court. On February 5, 1997, the chancellor entered an agreed temporary judgment with injunction ordering the parties to refrain from harassing the other or interfering with the quiet enjoyment of their property. The chancellor also noted that the prior civil action filed in circuit court had been consolidated with the claim in chancery court and that the issues concerning damages and the boundary line dispute would be heard at a later date. The chancellor also appointed a surveyor to establish the boundary line between the parties’ land. To resolve land access issues an easement was drafted by both parties, approved by the court and recorded.

¶ 3. Meanwhile, Clyde Farmer filed a suit against Richardson for damages arising from the physical altercation among Terry, Clyde and Richardson on April 2, 1996. This matter was eventually submitted to arbitration. The arbitrator found in favor of Richardson and the cause was dismissed with prejudice.

¶ 4. On December 30, 1999, an order dismissing the case was filed. On June 12, 2000, an agreed order reinstating the case was filed. Richardson filed a motion for summary judgment on April 3, 2001, claiming that there were no remaining issues to be litigated. The trial court granted Richardson’s motion for summary judgment finding, in pertinent part, as follows:

This Court, having reviewed the matter and materials furnished, finds it is unable to put into a proper perspective the dates and times of the occurrences complained of by Plaintiffs in relation to the other legal actions taken which may be res adjudicata as to those claims and demands. However, the Agreed Temporary Judgment with Injunction rendered by the Court on February 3, 1997 was certainly an effort and binding requirement that the parties live peaceably without interfering with each other and that Injunction should be made permanent in view of the numerous instances cited of unsociable actions between the parties. Therefore, it is the finding of the Court that a Summary Judgment is granted as to all matters that have been [sic] heretofore been litigated by any other legal tribunal based on complaints by either of the parties to this action. Plaintiffs are entitled to a hearing on any incidences which post date other legal proceedings between the parties.

¶ 5. Shortly thereafter, the Farmers filed a motion for clarification and/or for the court to construe the judgment. In his order dated May 19, 2005, the trial judge found the judgment to be final as to all issues except as to damages, if any, sustained by the Farmers because of wrongful destruction to their water lines; damages, if any, sustained by Terry resulting from wrongful prosecution by Richardson; and damages, if any, sustained by the Farmers for personal injuries and property damage as a result of Richardson’s negligence or gross negligence. The trial court further ordered the Farmers’ attorney to serve process on Richardson as if a new cause of action had been filed. Summons was issued to Richardson on June 28, 2005, and July 11, 2005.

¶ 6. The docket shows an order entered on September 9, 2005, which states “trial set 10/12/05 Forrest County.” Although the record does not contain any transcript of this proceeding, two letters by the parties’ attorneys reference this particular hearing. The letters reference a hearing on October 12, 2005, wherein the parties were instructed to provide the court with certain information regarding the pending causes of action as well as other relevant matters previously adjudicated.

¶ 7. On July 25, 2006, the chancellor entered an order of clarification and dismissal, finding that the Farmers’ claims against Richardson were res judicata. The chancellor determined that the acts on which the damages were based had been previously adjudicated. On August 28, 2006, the chancellor entered a final judgment dismissing all claims by both parties with prejudice.

¶8. The Farmers now appeal to this Court asserting that the chancellor erred in granting summary judgment in favor of Richardson and that the decision of the arbitrator in Clyde Farmer’s personal injury case should not preclude the Farmers from litigating separate causes of action. As these issues are related, we will address them together. Finding error, we affirm in part and reverse and remand in part.

DISCUSSION OF ISSUES

I. DID THE CHANCELLOR ERR IN GRANTING SUMMARY JUDGMENT?

II. DID THE DECISION OF THE ARBITRATOR IN CLYDE FARMER’S PERSONAL INJURY ACTION PRECLUDE THE FARMERS FROM LITIGATING SEPARATE CAUSES OF ACTION?

¶ 9. In their issues on appeal, the Farmers argue that the chancellor erred in granting summary judgment in favor of Richardson. The Farmers specifically argue that summary judgment should not have been granted in regard to their causes of action which are separate from Clyde Farmer’s lawsuit. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547(¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith 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 any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 10. Clyde Farmer’s lawsuit stemmed from the physical altercation among Terry, Clyde and Richardson on April 2, 1996. The arbitrator ruled that Richardson was not liable for any injuries to Clyde resulting from the fight. Part of Terry’s lawsuit concerns personal injuries sustained in this same altercation. The chancellor determined that there was privity between Clyde and Terry because both participated in the incident which precipitated Clyde’s suit and a portion of Terry’s suit. The chancellor stated that the “resulting fault on which the damages are based [was] previously adjudicated.” For res judicata to apply, four identities are required: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the action; and (4) identity of the quality or character of a person against whom the claim is made. Hogan v. Buckingham ex rel. Buckingham, 730 So.2d 15, 18(¶ 9) (Miss.1998) (quoting Dunaway v. W.H. Hopper & Assocs., 422 So.2d 749, 751 (Miss.1982)). Furthermore, “strict identity of parties is not necessary for either res judicata or collateral estoppel to apply, if it can be shown that a nonparty stands in privity with the party in the prior action.” Id. at 18(¶ 11); see also Little v. V & G Welding Supply, 704 So.2d 1386, 1339(¶ 15) (Miss.1997). In this case, the parties, the claim and the defendant are all substantially identical; thus, it was appropriate for the chancellor to dismiss Terry’s claim relating to the altercation with Richardson as res judicata. The dissent disagrees, noting that there is not “authority supporting the proposition a father and son are in privity with each other merely because of their familial relationship.” Neither this opinion nor the chancellor relies upon that relationship solely to establish privity. The dissent simply interprets the facts of the case differently in order to reverse the chancellor’s decision.

¶ 11. However, we find that the chancellor erred in dismissing all of the Farmers’ claims as res judicata. Not all of the Farmers’ claims resulted from the physical altercation with Richardson. The Farmers’ claim of damages for destruction of their water lines and Terry’s claim of damages for wrongful prosecution by Richardson are separate and distinct. Terry was convicted in justice court for petit larceny but, upon appeal to circuit court, was acquitted. The charge was originally brought by Richardson. It is unclear from the record as to whether these other claims have been considered by the chancellor.

¶ 12. These parties have been fighting each other legally as well as physically for years and their conduct borders on an abuse of the legal system. While we are not condoning the methods by which they chose to settle their grievances, nevertheless we are compelled to follow the law and, accordingly, the Farmers are entitled to prove their remaining claims. Therefore, we affirm in part and reverse and remand in part for proceedings consistent with this opinion.

¶ 13. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO BOTH PARTIES.

MYERS, P.J., GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., NOT PARTICIPATING. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., CHANDLER AND ROBERTS, JJ.

BARNES, J.,

Concurring in Part, Dissenting in Part.

¶ 14. I respectfully dissent from the majority’s determination that the trial court did not err in granting summary judgment to Richard Richardson on Terry Farmer’s personal injury claim. I concur with the majority in finding that the chancellor erred in granting summary judgment on the Farmers’ claim of damages for destruction of their water line and Terry Farmer’s claim of damages for wrongful prosecution by Richardson. However, because I find there to be no basis for the determination that Clyde and Terry Farmer were in privity with each other and, therefore, that Terry Farmer’s claim for personal injuries is barred as res judicata by the dismissal of Clyde Farmer’s claim, I would reverse the chancellor’s grant of summary judgment as it pertained to Terry Farmer’s personal injury claim and would remand this entire case for additional proceedings.

¶ 15. The majority concludes that the chancellor was correct in finding that Clyde and Terry Farmer were in privity with each other and, therefore, that the dismissal of Clyde Farmer’s personal injury suit against Richardson is res judicata as to Terry’s Farmer’s personal injury suit against Richardson arising out of the same incident. As the majority notes, “strict identity of parties is not necessary for ... res judicata ... to apply, if it can be shown that a nonparty stands in privity with the party in the prior action.” Hogan v. Buckingham ex rel. Buckingham, 730 So.2d 15, 18(¶ 11) (Miss.1998). “It must be remembered, however,.that Mississippi follows the general rule that parties must be substantially identical for res judicata to apply.” Id. (citing Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 418 (Miss.1987)). Thus, “ ‘privity’ is ... a broad concept, which requires us to look to the surrounding circumstances to determine whether claim preclusion is justified.’” Id. (citing Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1339 (Miss.1997) (quoting Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1173(¶ 15) (5th Cir.1992))).

¶ 16. In order to determine if Terry and Clyde Farmer are in privity with each other, it is necessary to examine other circumstances in which privity has been found to exist. Privity has been found between a manufacturer of a product and the retailers in the product’s chain of sale, Little, 704 So.2d at 1339-40(¶ 18), between a husband and wife when the husband is attempting to recover damages for loss of consortium and the wife has previously unsuccessfully pursued a personal injury claim from which the husband’s claim is derived, McCoy v. Colonial Baking Co., 572 So.2d 850, 854 (Miss.1990), and between two corporations when one corporation was a “mere continuation” of the other, Russell, 962 F.2d at 1176. The Mississippi Supreme Court has stated that “ ‘[pjrivity implies a relationship by succession or representation between the party to the second action and the party to the prior action in respect to the right adjudicated in the first action.’” Coleman v. Mississippi Farm, Bureau Ins. Co., 708 So.2d 6, 9(¶ 12) (Miss.1998) (quoting Hickman v. Southwest Dairy Suppliers, Inc., 194 Neb. 17, 230 N.W.2d 99, 104 (Neb.1975)).

¶ 17. In the case sub judice, the circumstances that counseled a finding of privity in the above cases simply are not present. Terry Farmer’s personal injury claim is not derivative of that of Clyde Farmer, nor can their relationship be described as similar to that of a manufacture and its retailers or a corporation and its successor. Moreover, contrary to the majority’s finding, the fact that Terry Farmer’s claim concerns injuries sustained in the. same altercation that was the subject of Clyde Farmer’s does not, in my opinion, indicate that Terry and Clyde were in privity with each other. Terry’s personal injury claim asserts damages personal to him, wholly distinct and separate from those suffered by Clyde. In addition, I am aware of no authority supporting the proposition a father and son are in privity with each other merely because of their familial relationship. See Schonberger v. Serchuk, 742 F.Supp. 108, 116 (D.N.Y.1990) (“a father is not automatically in privity to his son”).

¶ 18. The chancellor found that the “issue turns not on the extent of any damages alleged by Plaintiffs but on the acts and resulting fault on which the damages are based as having been previously adjudicated.” The fault determination to which the chancellor refers is the arbitrator’s finding that Richardson was not hable for any injuries to Clyde Farmer resulting from the altercation. However, there is no indication from the record that the arbitrator made any specific findings in ruling in Richardson’s favor; rather, all that is contained in the record with regard to the arbitrator’s decision is one document stating “I find for the Defendant Richard Richardson.” Thus, the most that can be taken from the arbitrator’s finding is that Richardson was not at fault for Clyde Farmer’s injuries; there is no basis in the record for finding, as the chancellor did, that the arbitrator’s decision resolved the issue of fault for Terry Farmer’s alleged injuries. The fact that Richardson was deemed not at fault for Clyde Farmer’s injuries does not automatically mean that he is not at fault for Terry Farmer’s injuries.

¶ 19. The majority concludes that “[i]n this case, the parties, the claim and the defendant are all substantially identical; thus, it was appropriate for the chancellor to dismiss Terry’s claim relating to the altercation with Richardson as res judica-ta.” However, I respectfully submit that, because Terry Farmer was not a party to Clyde Farmer’s lawsuit nor are the two in privity with each other, the parties are not substantially identical. Therefore, Terry Farmer’s claims regarding the altercation with Richardson are not barred by res judicata. Accordingly, I would reverse the chancellor’s grant of summary judgment as it pertained to Terry Farmer’s personal injury claim against Richardson and would remand this entire case for additional proceedings.

KING, C.J., CHANDLER AND ROBERTS, JJ., JOIN THIS OPINION.

      . The Russell court noted that numerous other federal courts have held that a vicarious liability relationship is sufficient to create privity. 962 F.2d at 1174-75.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Nolen CASSELL, Jr., Appellant v. Mary Lou CASSELL, Appellee.
    No. 2006-CA-01001-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.

      ■ James (Jay) R. Foster, attorney for appellant.
    James L. Gray, Picayune, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. Nolen Cassell, Jr. appeals the Hancock County Chancery Court’s decision granting a divorce to Mary Lou Cassell. Nolen argues that the evidence was insufficient for granting the divorce. Nolen also attacks the court’s award of supervised, restricted visitation of the couple’s two minor children, asserting the visitation award is also without evidentiary support. This Court affirms the chancery court’s grant of divorce. However, we vacate and remand on the sole issue of the child visitation determination.

FACTS

¶ 2. Mary Lou and Nolen were married on March 18, 1989, in Delaware County, Pennsylvania, however, at the time of separation, they were both residents of Hancock County, Mississippi. On May 13, 2005, Mary Lou filed a complaint for divorce from Nolen, in the Hancock County Chancery Court, on the grounds of habitual, cruel, and inhuman treatment and, alternatively, for irreconcilable differences. Mary Lou sought temporary and permanent custody of the couple’s two minor children, Samantha Cassell (born March 10, 1990), and Amanda Cassell (born July 17, 1991), and child support. In her complaint, Mary requested that Nolen receive restricted, supervised visitation with the children.

¶ 3. On the same day, Mary Lou also filed an ex parte motion for temporary custody and other relief. The court granted Mary Lou temporary sole legal and physical custody of the minor children and restrained Nolen from contacting or harassing Mary Lou or the minor children in any manner until a temporary custody hearing could be scheduled. In placing these restrictions upon Nolen, the court specifically relied on an offense report by a Hancock County Sheriffs deputy regarding Nolen’s behavior on May 10, 2005.

¶ 4. On June 1, 2005, Nolen answered Mary Lou’s complaint for divorce and filed a counter complaint, alleging habitual, cruel, and inhuman treatment and, alternatively, irreconcilable differences. Nolen requested permanent custody of the children and child support. One month later, on July 1, 2005, the court held a temporary hearing and granted Mary Lou temporary custody of the children. Nolen received restricted, supervised visitation rights. In addition to the restricted visitation, Nolen was ordered to pay child support and undergo anger management classes.

¶ 5. On December 30, 2005, the court granted Nolen’s attorney’s motion to withdraw from the case and the court set the trial date for March 16, 2006. The court clerk, along with Mary Lou’s attorney, sent Nolen notices of the trial date. On February 1, 2006, Nolen filed a motion for continuance. A hearing for the continuance was set for February 17, 2006, but Nolen did not appear and the court denied the continuance.

¶ 6. The divorce was heard on March 16, 2006. Nolen failed to appear at trial. The court granted the divorce to Mary Lou on the grounds of habitual, cruel, and inhuman treatment. Mary Lou received primary physical custody of the children and Nolen maintained the restricted, supervised visitation. The divorce decree was signed on March 23, 2006, and Nolen timely filed this appeal.

STANDARD OF REVIEW

¶ 7. This Court reviews the factual findings of a chancellor under a manifest error standard. Chalk v. Lentz, 744 So.2d 789, 791-92(¶ 7) (Miss.Ct.App.1999). We will not disturb a chancellor’s factual findings when supported by substantial evidence, unless we find, with reasonable certainty, that the chancellor abused his discretion, the findings were manifestly wrong, clearly erroneous, or because the chancellor applied an erroneous legal standard. Saunders v. Saunders, 724 So.2d 1132, 1135(¶ 11) (Miss.Ct.App.1998).

DISCUSSION

I. Whether the trial court erred in granting the Cassell’s divorce.

¶ 8. The trial court granted Mary Lou a divorce based on the statutory ground of habitual, cruel, and inhuman treatment, as found in Section 93-5-1 of the Mississippi Code Annotated (Rev.2004).

¶ 9. Habitual, cruel, and inhuman treatment requires the non-offending spouse to show that the conduct either (1) endangers his or her life, limb, or health, or that the conduct creates a reasonable apprehension of such danger, making the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous that it makes the marriage revolting and impossible for the spouse to perform his or her marital duties, thus destroying the basis for the marriage to continue. Cochran v. Cochran, 912 So.2d 1086, 1089(¶ 11) (Miss.Ct.App.2005) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). The conduct must be habitual, meaning the conduct is so frequent, or continued so long, that one can reasonably conclude the condition is permanent. Holladay v. Holliday, 776 So.2d 662, 677(¶ 64) (Miss.2000).

¶ 10. Divorces granted on this ground are based on conduct that rises to a level above “mere unkindness, rudeness, or incompatibility.” Brooks v. Brooks, 652 So.2d 1113, 1124 (Miss.1995). Conduct that includes habitual, false accusations, threats and malicious sarcasm, insults and verbal abuse may establish mental suffering such that the environment destroys the health and endangers the life of the non-offending spouse. Robison v. Robison, 722 So.2d 601, 603(¶ 5) (Miss.1998).

¶ 11. In both his bench ruling and the written judgment, the chancellor merely stated that Mary Lou had proven cruel and inhuman treatment. However, he failed to state with particularity the facts upon which he relied to make this finding. This Court would encourage the chancellors of this State to make specific, rather than conclusory, findings of fact. In the absence of specific findings of fact, if this Court, upon reading the record finds substantial, credible evidence which supports the chancellor’s decision, it may affirm. Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47(¶ 4) (Miss.1998). We find that there is substantial and un-contradicted evidence in the record to support the grant of divorce on the grounds of habitual, cruel, and inhuman treatment.

¶ 12. At trial, Mary Lou testified that Nolen was emotionally and mentally abusive throughout the course of the marriage. According to Mary Lou, Nolen cursed her, called her names, berated her, and kept her diabetes medicine away from her. She testified that her husband also threw things during arguments and, on one occasion, he threw a filing cabinet across the laundry room that barely missed the couple’s adult son, Matthew Cassell.

¶ 13. Mary Lou testified that her husband’s behavior had an adverse affect on her mental and physical well-being. In June 2004, she experienced an anxiety attack, requiring emergency medical attention, that she attributed to her husband’s conduct and all of the stress from the marriage. She also testified that she received psychological counseling during the marriage and was prescribed Lexapro. In addition to suffering from depression, she contemplated suicide during the marriage. Mary Lou testified that her health has significantly improved since the separation.

¶ 14. Matthew provided corroborating testimony regarding the effect of his father’s treatment on his mother’s health and well-being. He testified that he had last lived with his parents within the two years preceding the divorce hearing. During these times, he witnessed his father’s tirades against his mother. He was present during the incident between his father and mother in which his father threw a filing cabinet across the room.

¶ 15. This Court affirms the grant of divorce, finding that this uncontradicted testimony provided substantial, credible evidence upon which the chancellor could have granted Mary Lou a divorce upon the grounds of cruel and inhuman treatment.

II. Whether the trial court erred in awarding Nolen Cassell supervised, restricted child visitation.

¶ 16. Nolen argues that there is no evidence that supports the chancellor’s award of restricted, supervised visitation. In the final divorce decree, the court granted Nolen daily telephonic visitation with his two daughters, for a maximum of fifteen minutes each. The court restricted Nolen’s physical contact with his daughters to four days a month, in the presence and supervision of his brother-in-law, James McVaugh of New Jersey. Nolen asserts that the evidence failed to establish that he presented a danger to his children, and, at a minimum, he should be granted five weeks of unsupervised visitation in the summer.

¶ 17. Child visitation, and its limitations, are awarded at the chancellor’s broad discretion. Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994). The chancellor must keep the best interest of the child as a paramount concern, while being attentive to the non-custodial parent’s rights. Faris v. Jernigan, 939 So.2d 835, 839-40(¶ 8) (Miss.Ct.App.2006). The court should be concerned with the need for the non-custodial parent and child to maintain a healthy and loving relationship. Id. For this reason, it is within the chancellor’s power to restrict visitation in situations that present “an appreciable danger of hazard cognizable in our law;” but these restrictions should be imposed on a limited basis. Newsom v. Newsom, 557 So.2d 511, 517 (Miss.1990); Fans, 939 So.2d at 840(¶ 8).

¶ 18. When restrictions are placed on visitation, there must be evidence that the particular restriction is necessary to avoid harm to the child. Cox v. Moulds, 490 So.2d 866, 867-68 (Miss.1986). A lack of this evidence will render the chancellor’s restrictions on the non-custodial parent’s visitation manifest error and an abuse of discretion. Fulk v. Fulk, 827 So.2d 736, 742(¶ 21) (Miss.Ct.App.2002) (citing Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss.1992)).

¶ 19. The final decree makes no findings as to specific facts which support restrictive visitation. However, as with the divorce, if the record contains substantial, credible evidence to support the chancellor’s decision, this Court may affirm. See McClelland v. McClelland, 879 So.2d 1096, 1098 (¶ 13) (Miss.Ct.App.2004) (finding chancellor’s failure to make specific findings of fact in adultery case required de novo review by appellate court). Unfortunately, the record before this Court fails to demonstrate that the restrictions on visitation were reasonable or necessary to prevent harm to the minor children.

¶20. The sole finding regarding the reasons for restricting visitation is a sentence found in the order granting temporary relief, which reads as follows: “This Court has restricted the visitation rights of Nolen Cassell, Jr. because of his threats to take his minor children and secret[e] them from the plaintiff and this Court, and [because] his past behavior, as observed by the Hancock County Sheriffs deputy, [and] Matthew Cassell, [show] that ... his behavior demonstrated [he] may pose a danger to his children.”

¶ 21. The only testimony as to any threat related to the minor children came from Mary Lou. That testimony given at trial, in response to a question from her attorney, is as follows:

Mary Lou’s Attorney: Okay. Has he ever threatened you with your children in any manner?
Mary Lou: He — I had left him back in August of '96. It was right after my mother had come down and gone home and we had an argument and I took the kids and the dog and I left. And I did come back. And I asked him, you know, what would happen if I ever did this again and he told me if I ever, ever took off on him again like that ... he would take my kids and disappear and I would never see them again.

¶ 22. This testimony refers to a onetime conversation, which occurred approximately ten years prior to the divorce action. There is no testimony that Nolen made any such subsequent statements about taking the children away or that Nolen had ever made any effort, at all, to harm the minor children. Such testimony, standing alone, is too remote to be given credence.

¶ 23. The record does not reflect any testimony given by the deputy sheriff. However, it does contain a sheriffs department offense report, attached to a petition for temporary relief. That offense report refers to conduct by Nolen when Mary Lou was leaving the family home. While describing Nolen as belligerent and uncooperative, it does not suggest that he was a danger to the minor children.

¶ 24. That the relationship between No-len and Mary Lou was less than amicable is beyond question. However, tensions between the two of them do not establish that Nolen was a danger to the minor children and must have only restricted visitation. For these reasons, we vacate the chancellor’s restricted visitation award and remand the case to the chancery court.

¶ 25. THE JUDGMENT OF THE HANCOCK COUNTY CHANCERY COURT GRANTING THE DIVORCE IS AFFIRMED. THE CHILD VISITATION DETERMINATION IS VACATED AND REMANDED TO THE CHANCERY COURT FOR FURTHER PROCEEDINGS. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND THE APPELLEE.

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

      . Mary Lou lived in Pennsylvania at the time of the divorce. Nolen did not appear at the divorce hearing, but at the time of the temporary hearing, Nolen was a West Virginia resident.


author: KING, C.J., IRVING, J.,

text:
    Roosevelt THOMAS, As Next Friend and on Behalf of All Wrongful Death Beneficiaries of Ada Mae Thomas, Deceased, Appellant v. GREENWOOD LEFLORE HOSPITAL and William B. Harper, D.O., Appellees.
    No. 2006-CA-00377-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2007.

      Dennis C. Sweet, III, Jackson, Warren Louis Martin, Jr., attorneys for appellant.
    Gaye Nell Currie, L. Carl Hagwood, Jackson, Jason E. Dare, Greenville, attorneys for appellees.
   KING, C.J.,

for the Court.

¶ 1. Roosevelt Thomas, as next friend and on behalf of the wrongful death beneficiaries of Ada Mae Thomas, deceased, appeals the trial court’s order granting summary judgment to Greenwood Leflore Hospital and William B. Harper, D.O. He alleges that there were genuine issues of material fact before the trial court that should have precluded summary judgment. We find no error and affirm.

FACTS

¶ 2. On August 15, 2001, at approximately 2:25 p.m., Ada Mae Thomas arrived at Greenwood Leflore Hospital complaining of left side pain, burning upon urination, and vomiting. Dr. William Harper was the on-duty emergency room physician at the time. Dr. Harper met with Mrs. Thomas and discussed her symptoms. He then ordered a number of different tests to determine the cause of her illness.

¶ 3. Included in the array of tests ordered were an amylase, complete blood count, and a urinalysis. After the return of these tests, Dr. Harper determined that Mrs. Thomas needed further testing and ordered an intravenous pyelogram (IVP). Prior to the return of the IVP, Dr. Harper went off-duty as his twelve-hour shift in the emergency room ended at 5:00 p.m.

¶ 4. Prior to going off-duty, Dr. Harper turned Mrs. Thomas’s care over to Dr. Michael Stokes, the oncoming emergency room physician. After the IVP had been completed, Dr. Stokes discharged Mrs. Thomas in stable condition around 6:50 p.m. with a prescription for 800 mg of Ibuprofen and instructions to follow up with her primary care physician for renal stones.

¶ 5. On August 17, 2001, Nurse Barbara Nevels telephoned Mrs. Thomas to remind her to follow-up with her primary care physician. Mrs. Thomas told Nurse Nev-els that she had an appointment scheduled for August 20, 2001, with Dr. Hardin, but that she was not feeling well and might return to the emergency room. Nurse Nevels told Mrs. Thomas to return to the emergency room if needed, but to keep her appointment with Dr. Hardin.

¶ 6. On August 19, 2001, Mrs. Thomas returned to the Greenwood Leflore Hospital emergency room in a very ill state. She was admitted to the Intensive Care Unit by Dr. Mark Byrd where she died on August 20, 2001.

PROCEDURAL HISTORY

¶7. Roosevelt Thomas filed his complaint on August 8, 2002, alleging a wrongful death action against Dr. Harper, Nurse Nevels, Greenwood Leflore Hospital, and a number of John Does. The defendants filed their answer on August 21, 2002, along with their first discovery requests.

¶ 8. Included in the discovery requests were requests regarding expert witnesses. Thomas objected to these specific requests. Dr. Harper filed a motion to compel on April 1, 2003, which was granted by order dated April 23, 2003. On April 24, 2003, Thomas filed his expert designation, designating Dr. William Truly as his expert. The designation included, among other things, the nature of Dr. Truly’s proposed testimony.

¶ 9. On August 13, 2003, in the midst of discovery, a stay was entered for six months due to the insolvency of Greenwood Leflore Hospital’s insurance provider. After the stay had been lifted, on November 11, 2004, the defendants each filed separate motions for summary judgment. The trial court denied them as premature on March 14, 2005, and ordered that the depositions of Dr. Harper and Nurse Nevels should be taken. Dr. Harper gave his deposition on May 11, 2005, while Nurse Nevels’s deposition was rescheduled numerous times without being completed.

¶ 10. On July 11, 2005, the defendants again filed separate motions for summary judgment. Thomas responded to Dr. Harper’s motion and attached an unsigned affidavit to the response. No written response to Greenwood Leflore Hospital’s motion for summary judgment can be found in the record.

¶ 11. A hearing on the motion was held on December 5, 2005. Then, by order dated January 31, 2006, the trial court granted defendants’ motions for summary judgment. Aggrieved, Thomas appealed.

STANDARD OF REVIEW

¶ 12. Under Mississippi Rule of Civil Procedure 56(c), summary judgment may be granted to a party when “the pleadings, depositions, answers to interrogatories and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This Court reviews a trial court’s granting of summary judgment de novo. Maxwell v. Baptist Mem’l Hosp.Desoto, Inc., 958 So.2d 284, 287(¶ 14) (Miss.Ct.App.2007). “The burden is on the moving party to establish that there is no material issue of fact, and the evidence must be viewed in the light most favorable to the non-moving party.” Id. However, the non-moving party must be diligent in opposition to a motion for summary judgment and “may not rely upon the mere unsworn allegation in his pleadings.” Magee v. Transcon. Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989). Specifically, the non-moving party may . not create an issue of genuine fact through briefs and argument alone. Id.

ANALYSIS

¶ 13. Thomas alleges that there were three genuine issues of material fact that should have prevented the trial court’s grant of summary judgment. Thomas’s issues include the following: (1) Dr. Harper breached the standard of care by failing to properly communicate Mrs. Thomas’s condition to the incoming physician; (2) Dr. Harper breached the standard of care by failing to ensure that Mrs. Thomas was admitted to the hospital; and (3) Nurse Nevels breached the standard of care by failing to admonish Mrs. Thomas to return to the hospital upon hearing of her condition. We now address each allegation of material fact in turn.

I. Whether Dr. Harper breached the standard of care by failing to properly communicate Mrs. Thomas’s condition to the incoming physician.

¶ 14. Thomas argues that Dr. Harper breached his standard of care by fading to communicate Mrs. Thomas’s condition to Dr. Stokes, the oncoming emergency room physician. Also, Thomas claims that had Dr. Harper explained the severity of the condition to Dr. Stokes, Dr. Stokes would have had Mrs. Thomas admitted to the hospital.

¶ 15. Generally in a medical malpractice case, the plaintiff must present expert medical testimony as to the standard of care, whether that standard was breached, whether the breach caused the plaintiffs injury, and the extent of the damages.. Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987). There is an exception when the elements would be within the knowledge of a layperson. Id. Thomas alleges in his brief that his expert, Dr. Truly, was prepared to testify to the standard of care that should have been followed and that Dr. Harper breached the standard of care. However, this information was not presented to the trial court in the form of an affidavit or even in the expert designation. Thomas can not create a material issue of fact through arguments and assertions in briefs. Id. Therefore, we must look elsewhere in the record to determine if the standard of care was defined and whether there is a question as to whether Dr. Harper breached that standard.

¶ 16. The only other place in the record where the standard of care as to Dr. Harper’s communication to Dr. Stokes is found in Dr. Harper’s sworn deposition. When asked what the standard of care was, he stated that it was “to get the charts together, get the records up to date, discuss the patient’s history, physical findings and condition and concerns with the oncoming physician.” He then stated that he did comply with the standard of care. Even viewing the evidence in the light most favorable to Thomas, the only evidence in the record as to this issue is that Dr. Harper met the standard of care when he turned Mrs. Thomas’s care over to Dr. Stokes.

¶ 17. Therefore, this allegation of material fact is without merit.

II. Whether Dr. Harper breached the standard of care by failing to ensure that Mrs. Thomas was admitted to the hospital.

¶ 18. The trial court stated in its order that “based on the fact that Dr. Harper was not present at the time Mrs. Thomas’s final test results were returned or at the time of her discharge and given the fact that Dr. Harper does not have admitting privileges, [the court] finds that Dr. Harper is entitled to judgment as a matter of law.” Thomas alleges that Dr. Harper should have hospitalized Mrs. Thomas prior to going off-duty. He points to an unsworn affidavit that was attached to his response to the motion for summary judgment for support. The affidavit stated, “Even if Mrs. Thomas was under Dr. Harper’s care for three hours, he still had sufficient medical facts and data before him to conclude that Mrs. Thomas would have a serious negative outcome without appropriate and immediate medical intervention including hospitalization.” Dr. Harper counters by stating that the affidavit was not and should not have been relied upon by the trial court. We agree with Dr. Harper.

¶ 19. The supreme court has held that “the only unsworn matters available to a party opposing the motion [for summary judgment] are undenied allegations in his pleadings and admissions secured under Rule 36, Miss.R.Civ.P.” Magee, 551 So.2d at 186. The opinion goes on to say that for a document to have the power to create a genuine issue of material fact, it “must, first, be sworn; second, be made upon personal knowledge; and third, show that the party giving them is competent to testify.” Id. The affidavit that Thomas relies upon was never even signed by Dr. Truly, much less sworn to by him. An affidavit is “a voluntary declaration of facts written down and sworn to by the declar-ant before an officer authorized to administer oaths.” Blacks Law Dictionary 58 (7th Edition 1999). The affidavit appears to be a standard form affidavit, but without being sworn it cannot create an issue of material fact. For our purposes it is merely a piece of paper with the word “affidavit” as its title.

¶ 20. Therefore, we must look to the rest of the record to determine if an issue of material fact was created by the defendant. The only other place in the record which stated that Dr. Harper should have hospitalized Mrs. Thomas came from Thomas’s expert designation. It stated that after the tests including the IVP came back, the “emergency room physician could have, at the very least, hospitalized this patient.” After further discovery, it became uncontested that Dr. Harper was not on-duty when Mrs. Thomas was taken to have an IVP, much less when the results were returned. According to Thomas’s expert designation, no duty to hospitalize Mrs. Thomas had arisen before all the test results had been returned. Hence, Dr. Harper had no duty to hospitalize Mrs. Thomas since he was off-duty at that time.

¶ 21. Since the affidavit that Thomas attached to his response to the motion for summary judgment was not even attested, it cannot be said to create an issue of material fact. Also, the remainder of the record fails to create a genuine issue of material fact as to this allegation. Therefore, this allegation of material fact is without merit.

III. Whether Nurse Nevels breached the standard of care by failing to admonish Mrs. Thomas to return to the hospital upon hearing of her condition.

¶22. Thomas’s final allegation of material fact is that Nurse Nevels should have “admonished” Mrs. Thomas to return to the emergency room. Further, he claims that had she admonished Mrs. Thomas to return to the emergency room, Mrs. Thomas would have returned immediately and receive^ the proper medical care. He alleges that Nurse Nevels had the knowledge and information to recognize Mrs. Thomas’s condition and its severity. Thomas recognizes that expert testimony would be needed to testify to the appropriate standard of care and alleges that his expert, Dr. Truly, would be able to testify to the standard and its breach.

¶ 23. After a thorough review of the record, this Court cannot find any affidavit or pleading that stated Nurse Nevels breached a standard of care. Neither can we find anything in the record as to the standard of care that Nurse Nevels should have followed. The primary discussion of Nurse Nevels’s conduct comes from the brief and pleadings of Greenwood Leflore Hospital. The Hospital’s pleadings at trial discuss an affidavit from Dr. Truly that spoke of Nurse Nevels’s conduct, but this affidavit is not found anywhere within the record. “The burden rested upon [Thomas] to see to it that the record contained all data essential .to an understanding and presentation of matters relied upon for reversal on appeal.” Dew v. Langford, 666 So.2d 739, 746 (Miss.1995) (quoting Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973)). Since this did not occur, we find this referenced affidavit of no consequence.

¶ 24. The only other reference to Nurse Nevels’s conduct can be found in Thomas’s expert designation. There, Thomas acknowledged that Nurse Nevels told Mrs. Thomas “to return to the hospital if need be, but that she needed to keep her appointment with Dr. Hardin on Monday.”

¶ 25. Since Thomas cannot merely rest on his allegations and assertions in his brief, there must be something in the record that would constitute a material fact in regard to Nurse Nevels. Here, the only thing in the record is a reference that she did tell Mrs. Thomas to return to the emergency room if need be. Since the standard of care of what a nurse should do in that situation is beyond the knowledge of a layman, expert testimony would be needed. Phillips, 516 So.2d at 491. The record does not contain any such affidavit by Thomas’s expert as to the standard of care, much less a breach of such a standard.

¶ 26. Therefore, this allegation of material fact is without merit.

CONCLUSION

¶ 27. Each of Thomas’s allegations of genuine issue of material fact is unsupported by the record and without merit. Therefore, the trial court properly granted summary judgment to both Dr. Harper and Greenwood Leflore Hospital.

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

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

IRVING, J.,

Dissenting.

¶ 29. The majority finds that summary judgment was properly granted in favor of Greenwood Leflore Hospital and William B. Harper, D.O., because Roosevelt Thomas, the plaintiff in the court below, failed to present expert testimony as to the standard of care and breach of that standard. I believe that Thomas met his burden of proof and that there are genuine issues of material fact in this case that require resolution by a jury. Therefore, I dissent. I would reverse and remand this ease for a trial on the merits.

¶ 30. In granting the hospital’s and Dr. Harper’s separate motions for summary judgment, the trial judge opined:

This Court, based on the fact that Dr. Harper was not present at the time Mrs. Thomas’ final test results were returned or at the time of her discharge and given the fact that Dr. Harper does not have admitting privileges, finds that Dr. Harper is entitled to judgment as a matter of law and that this motion shall be granted and all claims against him shall be dismissed with prejudice. The Court further finds that GLH is entitled to judgment as a matter of law and that its motion shall be granted and all claims against it shall be dismissed with prejudice. This decision is based on the facts that Nurse Nevels was not a doctor and could not diagnose Mrs. Thomas with having any medical conditions, that Nurse Nevels did instruct Mrs. Thomas to return to the . emergency room if needed, and that the Court has determined Dr. Harper is entitled to judgment in his favor, therefore, GLH cannot be held vicariously liable for their actions.

¶ 31. It is clear from the quoted passage that the trial judge did not base his decision to grant summary judgment on the absence of an affidavit from Thomas in opposition to Dr. Harper’s and the hospital’s motions for summary judgment. Further, it also is clear from the record that Dr. Harper’s attorney did not premise his motion for summary judgment on the lack of an affidavit from Thomas’s designated expert. The record reflects the following colloquy at the beginning of the hearing on the motion for summary judgment:

BY MR. HAGWOOD: An IVP is testing the patient to determine kidney functions, and that’s what this test was for. On Page 33, he testifies, “I had left the emergency department; turned over care to someone else before she’s even taken to the x-ray department to have the IVP.” Page 34, Line 17, “I turned it over to Dr. Stokes and the usual process; took the chart; went over the chart with him; explained what she presented with; what I had done; and the tests I ordered.”
Now, this is the key to our getting summary judgment in this case is Page 60, Line 5. “As an emergency room physician, I don’t — or any emergency room physician at the hospital does not have admitting privileges to admit patients to the floor.” Line 13, “When we determine that a patient — after diagnosis, a patient needs to be admitted, we call the staff physician that has admitting privileges.” And Page 62, Line 8 or 9, “Who made the diagnosis that she had these stones was Dr. Stokes.”
In response to our motion for summary judgment, they have filed an additional affidavit of Dr. William Truly. Now, my copy of the affidavit is not signed by Dr. Truly. I don’t know if the plaintiffs have a signed affidavit from Dr. Truly or not. But assuming that they do because I—
BY MR. SWEET: Did you attach that deposition to your motion?
BY MR. HAGWOOD: Yes. I did.
BY MR. SWEET: I didn’t see that.
BY MR. HAGWOOD: Well, the—
BY MR. SWEET: Okay. That’s fine.
BY MR. HAGWOOD: The affidavit of Dr. Truly states as follows — Dr. Truly says in Paragraph 6 of the affidavit— and I can — if the Court please, I’ve got a—
BY THE COURT: I think I have it right here.
BY MR. HAGWOOD: Okay. Paragraph 6, it says, “The emergency room physician who has specialized knowledge has a duty to hospital — has a duty to hospitalize Ms. Thomas.” Paragraph 7, he says he has a duty to hospitalize her. Paragraph 8, has a duty to hospitalize her. Dr. Harper has no admitting privileges. That’s uncontradicted. Dr. Truly can have all the opinions he wants to about breaches of the standard of care, but here we have an emergency room physician who went off duty, turned over the care to another emergency room physician who decided not to hospitalize her and send her home.
So all of the — all of the opinions of Dr. Truly are predicated upon that final discharge from the emergency department, and my doctor didn’t have the results of the IVP, and he doesn’t have the ability to hospitalize the patient under any circumstances. The — the way that emergency care functions in this country now and what the standard of care is is testified to by Dr. Harper: “As the emergency room physicians stabilize patients, and if they need to be admitted, they call the staff physician who then admits the patient to the floor.”
So there is no genuine issue of material fact. This case comes down to what the IVP showed. It comes down to a need under the plaintiffs theory to have hospitalized her. Dr. Harper wasn’t on duty when that — was not in the emergency department when the duty to hospitalize her arose. So we believe that we’re entitled to summary judgment because all of the opinions of Dr. Truly are predicated upon her being admitted to the hospital, which we cannot do. We could not have done it anyway because we weren’t even there — physically in the emergency room.

¶ 32. The quoted passage demonstrates that the pivotal issue in the court below was not the absence of Dr. Truly’s sworn signature but the lack of admitting privileges for Dr. Harper and his absence from the hospital at the time that the results from the IVP became available, as well as at the time of Mrs. Thomas’s discharge. Further, it seems to me that a reasonable assumption is that at the time of the summary judgment hearing Dr. Truly had given an affidavit, although the copy that the court and Dr. Harper’s attorney were using may not have been signed. However, it appears clear that even if no affidavit existed at that time, because of the absence of Dr. Truly’s sworn signature, Dr. Harper’s attorney waived any objection to the court’s consideration of Dr. Truly’s unsigned statement when he went on to discuss the contents of the purported affidavit without reservations.

¶ 33. I now turn to the merits of the issue. Based on my review of the record, I am convinced that Thomas presented enough evidence in response to the motions for summary judgment to prevent the grant of summary judgment. I refer at length to Dr. Truly’s proposed testimony as reflected in Thomas’s expert designation:

Dr. Truly will opine that the nursing notes on the day of admission to the emergency room revealed that a Dr. Harper examined Ms. Thomas. The patient was taken to X-ray by wheelchair at 15:35 hours. A catheterized specimen was obtained at 15:47 hours. The patient received Dulcolax suppository at 18:15 hours. As mentioned previously the patient was placed on Toradol and Phenergan. Ms. Thomas was discharged at about 18:00 hours or shortly thereafter. The nursing notes document that she was discharged in stable condition.
Dr. Truly will opine that Ms. Thomas’ laboratory findings on 8/15/01 noted her white count to be 11.2, which was slightly high. Her neutrophils were noted to be 87.7, which is significantly elevated with normal being 50 to 70. Ms. Thomas had evidence of infection at the time that she was seen in the emergency room. She had a low-grade temperature that ranged from 99 to 101 to 100.5, significantly elevated neutrophils, a specific kind of white blood cells and a diagnosis of renal stones. These preliminary findings alone should have been sufficient for the patient to have been admitted or at least to have received a urological consultation. Additionally, Ms. Thomas’ mean corpuscular volume was 71.2 with normal being 80-99. Ms. Thomas’ mean corpuscular hemoglobin was 22.9 with normal being 27-31. Her mean corpuscular hemoglobin concentration was a bit low at 32.2 with 33 to 37 being normal. These indices and findings suggest a microcytic anemia in a patient with renal stones and associated infection. Ms. Thomas’ amylase was noted to be negative.
Dr. Truly will opine that Ms. Thomas’ urinalysis on 8/15/01 revealed that she had rare WBCs. She did have RBCs, 20-3, which means that at that particular time, she seemingly had what is known as a microscopic hematuria. There was an associated 4 + bacteriuria, which meant that Ms. Thomas also had associated urinary stones. The patient’s urine culture came back, which was ordered on 8/15/01 showing that she had Escherichia coli, which was sensitive to a multitude of antibiotics including certri-axone, cefurozime, nitrofurantoin, tazo-bactam, tetracycline, Timentin, Bactrim, and levofloxacin. Ms. Thomas, while in the emergency room, received a flat plate of abdomen (flat and erect) and an intravenous pyelogram. Findings as interpreted by the radiologist revealed that she had a partial obstruction of her right ureter at the level of the upper part of the collecting systems. There were a few small calculi noted in the lower pole of the left kidney. There was a delay in excretion of contract material on the left side. As a matter of fact, the delay was about twenty minutes following the injection of the dye. There was a suspicious small calculus projecting over the left transverse process of the LA vertebra, which the radiologist read as calculus in the left ureter causing obstruction. The radiologist recommended retrograde pyelograms. This means that Ms. Thomas had stones in both of the collecting tubules that extend from the kidney into the bladder that actually serves as a roadway and/or passageway for urine to flow, being formed and made in the kidney and flows into the bladder. This passageway or corridor was blocked with stones, either totally on the left and/or partially on the right.
Dr. Truly will opine that the studies done on 8/15/01 were very interesting. The information was transcribed on 8/16/01, the following day, however, the emergency room physician could not have looked at the charts. Dr. Truly will testify that the doctor never looked at the flat plate and upright of the abdomen, nor did he ever view the intravenous pyelogram himself. Dr. Truly does not believe that the doctor ever viewed the urinalysis on the patient with microscopic hematuria and red blood cells 20-30 with a 4+ bacteriuria nor does he believe that the doctor reviewed the patient’s CBC. Dr. Truly will opine that the doctor must have been oblivious to Ms. Thomas’ tachycardia and temperature of 99, 101 and 100.5 while she was in the emergency room. Even if the doctor had placed the patient under appropriate antibiotics for her urinary tract infection, he elected not to do anything about the stones in her ureters. At this time. Ms. Thomas should have been immediately referred to an urologist or at least an urologist should have been called in. The emergency room physician could have, at the very least, hospitalized this Medicaid patient. If Ms. Thomas had no physician she would have been limited to the physician responsible for unreferred calls. However, the patient was discharged homé on pain medication only.

¶ 34. In Dr. Harper’s deposition testimony that was made a part of Thomas’s response in opposition to the motion for summary judgment, Dr. Harper gave the following testimony:

Q. Dr. Harper, are you familiar with the signs and symptoms of kidney stones?
A. Yes.
Q. Could you tell me what they are?
A. Back pain, side pain, pelvic pain. There can be nausea, vomiting. Actually people can have kidney stones and pass kidney stones and have little to no signs or symptoms. The signs and symptoms come from the obstruction of the ureter.
Q. Right.
A. Okay? And there you go.
Q. What about urination in the blood? I mean, I’m sorry, blood in the urine?
A. That’s very common in kidney stones.
Q. And pain upon urination?
A. That — urinary symptoms of urgency, frequency, nocturia can all occur in a kidney stone.
Q. Nausea and vomiting?
A. They’re not, they’re not absolute though. Nausea, nausea is commonly present but it’s not absolute.
Q. And you would agree with me that upon Ms. Thomas’ presentation to the ER department she exhibited these signs and symptoms; is that correct?
BY MR. HAGWOOD: Object to the form of the question.
BY MS. CURRIE: Object to the form.
A. She had some of them.
Q. She had some of them. Okay. Could you identify all of the signs and symptoms that she exhibited at the time — at the time you saw her?
BY MS. CURRIE: Signs and symptoms of?
BY MR. NELSON: Kidney stones.
A. She had side pains, she had some urinary complaints, she had nausea and vomiting.
Q. And what do you mean by urinary complaints?
A. Well, she told the triage nurse about burning on urination.
Q. Okay. And did any of the lab reports suggest that she had an infection in her urinary tract?
A. She had bacteria, she didn’t have any pus in her urine, didn’t have any white blood cells.
Q. She had bacteria?
A. Uh-hmmm.
Q. Okay. If the bacteria goes untreated for a urinary tract infection, it gets worse; is that correct?
A. You can get sicker.

¶ 35. In Dr. Truly’s affidavit that was before the court, Dr. Truly stated:

1. My name is Dr. William Truly. I am a medical physician with extensive experience and expertise in hospital emergency room care.
2. I have conducted a review of the medical records from Greenwood Le-flore Hospital Emergency Room regarding Mrs. Ada Mae Thomas.
3. Based on my review of the referenced material and my experience and training in the medical field, I am of the opinion that, within a reasonable degree of medical certainty, Mrs. Ada Mae Thomas would have survived had the attending emergency room physician, Dr. William Harper, not breached the required standard of care by failing to render appropriate emergency medical care to her that a similarly situated emergency room physician would have rendered under the same or similar conditions.
4. When Mrs. Ada Mae Thomas presented herself to Greenwood Leflore Hospital emergency room, blood was detected in her urine. This is known as Hematuria. Hematuria, when found in a patient with moderate abdominal pain and a history of nausea and vomiting, should provoke compelling concern.
5. When patients with hematuria present with low-grade fever and elevated white counts and/or neutrophils, the physician should know that such data, without intervention, could have a dangerous outcome. This is particularly true in the case of Mrs. Thomas who presented with moderate abdominal pain, nausea, vomiting, fever, slightly elevated white count, glaring elevated neutro-phils, blood in her urine, and radio-graphic diagnosis from an intravenous pyelogram demonstrating partial obstruction of the left ureter as well as the right ureter.
6. The emergency room physician, who has specialized knowledge, has a duty to hospitalize and treat patients such as Mrs. Thomas. The emergency room physician’s failure to treat Mrs. Thomas constituted an act of negligence that was so serious to the extent that it was the proximate cause of death.
7. Mrs. Thomas presented herself to the emergency room of Greenwood Le-flore Hospital on August 15, 2001, at 14:25 p.m. and was discharged at 18:50 p.m. Mrs. Thomas was under the care of Dr. Harper for at least 4½ hours. Even if Mrs. Thomas was under Dr. Harper’s care for three hours, he still had sufficient medical facts and data before him to conclude that Mrs. Thomas would have a serious negative outcome without appropriate and immediate medical intervention including hospitalization.
8. All of the laboratory and diagnostic test results that would have provided Dr. Harper with sufficient facts and data to diagnose Mrs. Thomas’ declining condition were available to him during his shift in the Greenwood Leflore Hospital Emergency Room. Dr. Harper had ample time to evaluate and manage Mrs. Thomas and to interpret and respond to the available medical data that he ordered while she was under his care.
9. The emergency room physician’s failure to admit and treat Mrs. Thomas, who clearly indicated symptoms of a de-dining health condition, was negligent and resulted in the untimely death of Mrs. Ada Mae Thomas.
AND FURTHER AFFIANT SAYETH NOT.

¶ 36. In my view, the trial court erred in granting summary judgment, and the majority errs in affirming the trial court’s erroneous ruling. As stated, the trial judge granted summary judgment in part because Dr. Harper did not have admitting privileges at the hospital. However, it is clear from Dr. Harper’s testimony that he had the ability to effectuate an admission if he deemed it necessary. Therefore, for the reasons stated, I dissent. I would send this case back to the trial court for a trial on the merits.

      . The majority finds that Thomas failed to present via affidavit the testimony of his expert, Dr. William Truly, who, according to Thomas, was "prepared to testify to the standard of care that should have been followed and that Dr. Harper breached the standard of care.”

      . The Honorable Carl Hagwood represented Dr. Harper at the trial court level and also represents him in this appeal.

      . The Honorable Dennis Sweet represented Mr. Thomas at the trial court level and also represents him in this appeal.

      . The Honorable Gaye Currie represented the Greenwood Leflore County Hospital at the trial court level and also represents it in this appeal.

      . The Honorable Omar Nelson was one of the attorneys representing Mr. Thomas at the trial court level.


author: SMITH, Justice.

text:
    Ex parte S.K. HAMILTON. (In re Ex parte S.K. Hamilton).
    1041750.
    Supreme Court of Alabama.
    Dec. 22, 2006.
    Mark S. Nelson, Talladega; and Geroge C. Douglas, Jr., Birmingham, for petitioner.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent.
   SMITH, Justice.

This petition for a writ of certiorari seeks review of the Court of Criminal Appeals’ denial, without an opinion, of S.K. Hamilton’s petition for a writ of habeas corpus, in which Hamilton asserted that his right to a speedy trial had been violated. We reverse and remand.

Facts and Procedural History

The petitioner, S.K. Hamilton, is a defendant in the Talladega Circuit Court charged with capital murder. Hamilton was arrested on November 13, 2002, and appears, based on the materials before us, to have been held in the Talladega County jail without bond since that date. The relevant dates and events are as follows:

November 12, 2002: A warrant was issued for Hamilton’s arrest.
November 13, 2002: Hamilton was arrested and placed in the Talladega County jail.
February 19, 2003: Counsel was appointed to represent Hamilton, and the case was continued by agreement until March 19, 2003.
March 19, 2003: The case-action-summary sheet indicates that the case was continued until August 2003.
May 12, 2003: Hamilton filed, among other things, a motion requesting a preliminary hearing and a motion requesting a speedy trial.
June 18, 2003: A preliminary hearing was held, and Hamilton was bound over to the grand jury for indictment.
September 11, 2003: While awaiting indictment, Hamilton filed a motion requesting dismissal of the charges against him for want of prosecution.
February 18, 2004.: Hamilton filed a “renewal” of his motion seeking a dismissal for want of prosecution.
June 29, 2004: Hamilton filed in the trial court a petition for a writ of habeas corpus, asserting that he had not yet been indicted despite the fact that he had been held without bond in the Tal-ladega County jail since his arrest 19 months earlier. Hamilton asserted specifically that his right to a speedy trial had been violated.
August 4, 2004 and August 6, 2004: The trial court conducted hearings on Hamilton’s habeas petition. The matter was continued until March 9, 2005.
August 23, 2004: Hamilton was indicted for two counts of capital murder.
October 18, 2004: Hamilton was arraigned and entered a plea of not guilty. The trial court set the case for a “special status” conference on March 9, 2005.
November 15, 2004: Hamilton requested a continuance to prepare additional filings. The trial court allowed Hamilton 30 days in which to file further pleadings, and the case was continued until the next “criminal status call docket” on January 24, 2005.
January 24, 2005: The case was continued until the next “criminal status call docket” on February 23, 2005.
February 23, 2005: The case-action-summary sheet indicates that the case was continued “by agreement” until the next “criminal status call docket” on March 21, 2005.
March 10, 2005: The trial court denied Hamilton’s petition for a writ of habeas corpus. Among other things, the trial court held that the State had not deliberately delayed Hamilton’s indictment or trial. The trial court also held that “the delay in [Hamilton’s] case is not sufficiently lengthy to be presumptively prejudicial, and it is not therefore necessary for the Court to consider the other [speedy-trial] factors as set out in Barker v. Wingo, 407 U.S. 514 (1972).”
April 20, 2005: Hamilton asserts that on this date the trial court denied his motion to alter, amend, or vacate the trial court’s denial of Hamilton’s habeas petition.
July 19, 2005: The Court of Criminal Appeals denied, without opinion, Hamilton’s habeas petition. Ex parte Hamilton (No. CR-04-1751), 945 So.2d 1105 (Ala.Crim.App.2005) (table).
August 2, 2005: The Court of Criminal Appeals denied Hamilton’s application for rehearing.

Hamilton then filed in this Court a petition for a writ of certiorari. This Court granted the petition to address Hamilton’s contention that the no-opinion denial of Hamilton’s petition for a writ of habeas corpus by the Court of Criminal Appeals conflicts with several of this Court’s decisions setting forth the principles of a defendant’s right to a speedy trial.

Standard of Review

Review of Hamilton’s petition involves only an issue of law and the application of the law to undisputed facts; therefore our review is de novo. Ex parte Walker, 928 So.2d 259, 262 (Ala.2005) (“Walker’s case involves only issues of law and the application of the law to the undisputed facts. Thus, our review is de novo.”).

Discussion

“An accused’s right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Art. I, § 6, of the Alabama Constitution, 1901.... [A]n evaluation of an accused’s speedy-trial claim requires us to balance the four factors the United States Supreme Court set forth in Barker [v. Wingo, 407 U.S. 514 (1972)]: ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of [her] right, and prejudice to the defendant.’ 407 U.S. at 530, 92 S.Ct. 2182 (footnote omitted).”

Walker, 928 So.2d at 263 (footnotes omitted).

The trial court’s order denying Hamilton’s habeas petition reveals that, at most, the trial court made findings addressing only two of the four Barker factors in examining Hamilton’s speedy-trial claim. First, the trial court’s order partially addresses the reason for the delay, the second Barker factor, in that the trial court specifically found “that there was not a deliberate delay by the office of the District Attorney during investigation or by the Alabama Department of Forensic Science relative to testing.” Second, the trial court addressed the first Barker factor— the length of the delay — and specifically found that the delay in Hamilton’s case “is not sufficiently lengthy to be presumptively prejudicial.” The court concluded, therefore, that “it is not necessary ... to consider the other [Barker] factors.”

Hamilton contends that the trial court erred in concluding that the delay in Hamilton’s case is not “presumptively prejudicial.” We agree. Under the circumstances of this case, the trial court should have concluded that the delay is presumptively prejudicial and therefore should have examined and balanced the remaining three Barker factors in evaluating Hamilton’s speedy-trial claim.

In Walker, this Court noted that the first Barker factor involves a “‘double enquiry.’” 928 So.2d at 263 (quoting Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). “The first inquiry under this factor is whether the length of the delay is ‘presumptively prejudicial.’” 928 So.2d at 263.

“A finding that the length of delay is presumptively prejudicial ‘triggers’ an examination of the remaining three Barker factors. 505 U.S. at 652 n. 1, 112 S.Ct. 2686 (‘[A]s the term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.’). See also Roberson v. State, 864 So.2d 379, 394 (Ala.Crim.App.2002).
“In Alabama, ‘[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant — whichever is earlier — to the date of the trial.’ Roberson, 864 So.2d at 394. Cf. § 15-3-7, Ala.Code 1975 (‘A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender.’); Rule 2.1, Ala. R.Crim. P. (‘All criminal proceedings shall be commenced either by indictment or by complaint.’). The length of the delay in [Walker’s] case was approximately 50 months: Walker was indicted on January 14, 2000, and she pleaded guilty on March 25, 2004. See [Ex parte] Carrell, 565 So.2d [104,] 107 [(Ala.1990)] (calculating the length of delay from defendant’s indictment until his plea of guilty). The State concedes (and both the trial court and the Court of Criminal Appeals held) that the 50-month delay in Walker’s case was presumptively prejudicial. A finding here of presumptive prejudice is supported by Alabama caselaw, see, e.g., Ex parte Taylor, 720 So.2d 1054, 1057 (Ala.Crim.App.1998) (more than 60-month delay); Benefield v. State, 726 So.2d 286, 290 (Ala.Crim.App.1997) (42-month delay); Mansel v. State, 716 So.2d 234, 236 (Ala.Crim.App.1997) (26-month delay); Ingram v. State, 629 So.2d 800, 802 (Ala.Crim.App.1993) (19-month delay); Beaver v. State, 455 So.2d 253, 254 (Ala.Crim.App.1984) (16-month delay); Broadnax v. State, 455 So.2d 205, 206-07 (Ala.Crim.App.1984) (more than 26-month delay); but see Ex parte Apicella, 809 So.2d 865, 869 (Ala.2001) (14-month delay not presumptively prejudicial); Campbell v. State, 709 So.2d 1329, 1334 (Ala.Crim.App.1997) (26-month delay not presumptively prejudicial); and by federal cases that generally hold that a delay of approximately one year or more is presumptively prejudicial, see Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. 2686 (‘Depending on the nature of the charges, the lower courts have generally found postaccusation delay “presumptively prejudicial” at least as it approaches one year.’) (citing 2 W. LaFave & J. Israel, Criminal Procedure § 18.2, p. 405 (1984); Gregory P.N. Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980) (citing cases)).”

Walker, 928 So.2d at 263-65 (footnotes omitted).

For purposes of this petition, we measure the delay from the date of the issuance of a warrant for Hamilton’s arrest, November 12, 2002, until April 20, 2005, which Hamilton asserts is the date the trial court entered its order denying his motion to alter, amend, or vacate its earlier order denying Hamilton’s habeas petition. Thus, at the time of the trial court’s order, the delay in Hamilton’s case was approximately 29 months. In addition, Hamilton was not indicted until August 23, 2004. Therefore, Hamilton was held in the Talladega County jail for almost 21 months, without bond and without an indictment.

Under the circumstances, the delay in Hamilton’s case was presumptively prejudicial under the first Barker factor. The 29-month delay in Hamilton’s case was well more than the approximately 12 months the federal courts generally recognize as delay that is presumptively prejudicial and that merits inquiry into the remaining Barker factors. Walker, 928 So.2d at 265 (“‘Depending on the nature of the charges, the lower [federal] courts have generally found postaccusation delay “presumptively prejudicial” at least as it approaches one year.’”) (quoting Doggett, 505 U.S. at 652 n. 1, 112 S.Ct. 2686) (additional citations omitted). Alabama decisions have found delays of a similar or shorter duration to be presumptively prejudicial, thereby requiring an examination of the remaining Barker factors. See, e.g., Mansel v. State, 716 So.2d 234, 236 (Ala.Crim.App.1997) (26-month delay); Ingram v. State, 629 So.2d 800, 802 (Ala.Crim.App.1993) (19-month delay); Beaver v. State, 455 So.2d 253, 254 (Ala.Crim.App.1984) (16-month delay); and Broadnax v. State, 455 So.2d 205, 206-07 (Ala.Crim.App.1984) (more than 26-month delay).

As noted, the trial court’s order of March 10, 2005, found that “there was not a deliberate delay by the office of the District Attorney during investigation or by the Alabama Department of Forensic Science relative to testing”; that finding partially addresses the reason for the delay — the second Barker factor. That statement in the trial court’s order suggests that a finding of deliberate delay is a prerequisite to a finding of presumptively prejudicial delay or even to a finding of a violation of the right to a speedy trial. However, Walker and Doggett make it clear that delay may be considered presumptively prejudicial — thereby triggering an examination of the other three Barker factors — without a finding that the delay was the result of deliberate action by the State. Moreover, to establish a violation of the right to a speedy trial, it is not necessary to show deliberate delay by the State; instead, “[c]ourts assign different weight to different reasons for delay.” Walker, 928 So.2d at 265. Although “[t]he State has the burden of justifying the delay,” 928 So.2d at 265, the reason for the delay affects the application of the fourth Barker factor, because “[t]he accused’s burden ‘of proof [under the fourth Barker factor] varies inversely with the [State’s] degree of culpability for the delay,’” 928 So.2d at 267 (quoting Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir.1993)). Consequently, the trial court erred in concluding that the delay in Hamilton’s case is not presumptively prejudicial and, therefore, in refusing to examine the other three Barker factors in evaluating Hamilton’s speedy-trial claim, and the Court of Criminal Appeals erred to the extent it did not require the trial court to consider the remaining Barker factors.

Hamilton contends that, because the delay in this case is presumptively prejudicial, this Court should balance the remaining Barker factors and find that his right to a speedy trial has been violated. In Walker, this Court conducted a de novo review of the trial court’s balancing of the Barker factors, which, in effect, was a re-balancing of the Barker factors. Before doing so, the Walker Court discussed Allison v. State, 645 So.2d 358 (Ala.Crim.App.1994):

“In Allison, the Court of Criminal Appeals could not balance the Barker factors because the record did not contain sufficient facts relating to those factors. 645 So.2d at 361-62. Although the trial court in Allison conducted a hearing on the defendant’s speedy-trial claim, the record contained no transcript of the speedy-trial hearing because the defendant had failed to request a copy of the transcript of the speedy-trial hearing. 645 So.2d at 359-60. Further, the trial court in Allison did not make any specific findings regarding the defendant’s speedy-trial claim. Because of the incomplete state of the record, the Court of Criminal Appeals was unable to determine, among other things, the actual length of the delay and thus could not apply the Barker factors. 645 So.2d at 361-62.
“Like Allison, the record in Walker’s case contains no transcript of the speedy-trial hearing. But unlike the defendant in Allison, Walker requested a copy of the transcript of the speedy-trial hearing. More importantly, the trial court made specific, written findings and conclusions in its orders denying Walker’s motion to dismiss and her subsequent motion to reconsider. Thus, the record is sufficient for this Court to conduct a de novo review of the application of the Barker factors to Walker’s speedy-trial claim.”

Walker, 928 So.2d at 262-63.

Hamilton’s case is like Allison in that the record is insufficient to allow a reba-lancing of the Barker factors on appeal, but Hamilton’s case also is like Walker in that Hamilton attempted to include on appeal a copy of the transcripts from his speedy-trial hearings in the trial court. In particular, Hamilton included with his reply brief to this Court a copy of a reporter’s transcript order he filed requesting copies of those transcripts; those transcripts, however, have not been made available to this Court or, it appears, to Hamilton. Hamilton’s case differs from Walker in one crucial aspect: unlike Walker, where “the trial court made specific, written findings and conclusions in its orders denying Walker’s [speedy-trial motions],” 928 So.2d at 263, the trial court’s order in this case does not include findings sufficient to permit a meaningful balancing of the Barker factors by this Court. The state of the record in Hamilton’s case, therefore, places his case in a middle ground between the scenarios in Allison and in Walker.

The record in Hamilton’s case includes, however, enough information to require our conclusion that the trial court erred in refusing to examine the remaining Barker factors. The trial court’s refusal to balance the remaining Barker factors was based on its erroneous conclusion that the length of the delay in Hamilton’s case is not presumptively prejudicial. Consequently, the Court of Criminal Appeals erred in denying Hamilton’s habeas petition. On remand, the Court of Criminal Appeals should direct the trial court to consider the remaining three Barker factors in evaluating Hamilton’s speedy-trial claim. We emphasize that we express no opinion regarding the merits of Hamilton’s speedy-trial claim.

Conclusion

The judgment of the Court of Criminal Appeals denying Hamilton’s habeas petition is reversed, and the cause is remanded.

REVERSED AND REMANDED WITH DIRECTIONS.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

      . See Rule 21(e)(3), Ala. R.App. P.

      . "The second inquiry Doggett recognizes under the length-of-delay factor is the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.’” Walker, 928 So.2d at 263 n. 5 (quoting Doggett, 505 U.S. at 652, 112 S.Ct. 2686). In Walker, we noted that this second inquiry “overlaps the fourth Barker factor”; therefore, we addressed that inquiry in our analysis of the prejudice of the delay to the accused. Walker, 928 So.2d at 263-64 n. 5, 269-70.

      . We end our measurement of the length of the delay at April 20, 2005, because that is the date of the order from which Hamilton asserts he is seeking relief, that is, the trial court’s order denying Hamilton's motion to alter, amend, or vacate its earlier order denying Hamilton’s habeas petition.

      . This Court in Walker did not hold — and we do not hold in this case — that a trial court, in addressing a speedy-trial claim and applying the Barker factors, should rely solely on the analysis applied in criminal proceedings in the federal system. Rather, a trial court should reach a decision that protects the defendant’s right to a speedy trial within this State's criminal-justice system. Accordingly, a trial court evaluating a speedy-trial claim should be mindful of the circumstances, rules, and procedures involved in the prosecution of a criminal defendant in this State, which may differ significantly from the circumstances, rules, and procedures in a criminal proceeding in the federal system.

      . The State argues that the length of delay in this case should be measured from Hamilton’s arrest until his indictment, which length of delay, the State contends, is 15 months rather than 21 months because some of that delay was attributable to Hamilton. The State argues that two periods of time should not be included in measuring the length of the delay. First, the State argues that the two-month period from May 12, 2003, until June 18, 2003, should be excluded, because, the State contends, the delay during that time was attributable to Hamilton’s request for a preliminary hearing. In support of this argument, the State cites State v. Johnson, 900 So.2d 482, 484 (Ala.Crim.App.2004) ("This court has previously found that similar delays [of approximately 28 months] were not presumptively prejudicial and did not require an examination of the remaining Barker criteria.”); Snyder v. State, 893 So.2d 488, 507 (Ala.Crim.App.2003) ("'"Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.”'” (quoting Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993), quoting in turn McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981))), cert. denied, 893 So.2d 563 (Ala.2004), cert. denied, 544 U.S. 1062, 125 S.Ct. 2512, 161 L.Ed.2d 1113 (2005); Campbell v. State, 709 So.2d 1329, 1334 (Ala.Crim.App.1997) ("We conclude that the 26-month delay here was not presumptively prejudicial. Barker requires that we examine the conduct of the defense and the prosecution, 407 U.S. at 530, 92 S.Ct. at 2192, and in doing so, we find that much of the delay was due to Campbell’s conflicts with his attorneys, suspension of proceedings for the forensic evaluation he requested, and defense counsel's scheduling conflicts.”); Coral v. State, 628 So.2d 954, 967 (Ala.Crim.App.1992) (“Based upon the foregoing, we conclude that the [22 months] which elapsed from the appellant’s arrest to the date of his trial, taking into consideration the elapsed time attributed to the actions of the appellant, was not presumptively prejudicial.”); Scott v. State, 570 So.2d 813, 817 (Ala.Crim.App.1990); and Wilson v. State, 386 So.2d 496, 498 (Ala.Crim.App.1980). Second, the State argues that an additional time of roughly four months — from November 15, 2004, until March 9, 2005 — should be excluded, because that delay was caused by Hamilton’s request for a continuance in November 2004 and the parties’ "agreement” in January 2005 to continue the case until March 2005. Therefore, the State contends that the length of the delay in Hamilton's case is not presumptively prejudicial. We disagree.
      First, the cases cited by the State do not require the conclusion that the delay in Hamilton’s case was not presumptively prejudicial. With the exception of Wilson, the Court of Criminal Appeals in each case balanced the four Barker factors rather than ending the analysis after examining the first factor. Johnson, 900 So.2d at 484-85; Snyder, 893 So.2d at 506-08; Campbell, 709 So.2d at 1334; Coral, 628 So.2d at 967; Scott, 570 So.2d at 817-18. In Wilson, the length of delay was about 9 1/2 months, 386 So.2d at 497-99, which is a much shorter delay than is present in Hamilton’s case. Second, the interests protected by the right to a speedy trial are not protected solely by a speedy or timely indictment. Consequently, the length of delay in Hamilton’s case did not end with his indictment. Therefore, at the time the trial court denied Hamilton’s motion to alter, amend, or vacate the denial of Hamilton’s habeas petition, the delay in his case, was 29 months. See supra note 3. Even if we exclude the 6 months’ delay that the State asserts was caused by Hamilton, the delay was still 23 months, which is enough under the circumstances of this case to trigger an examination of the remaining Barker factors.

      . In Walker, this Court cited Ex parte Apicella, 809 So.2d 865, 869 (Ala.2001)(14-month delay), and Campbell v. State, 709 So.2d 1329, 1334 (Ala.Crim.App.1997) (26-month delay), as decisions involving similar or shorter delays than the one in Walker and that were held not to be presumptively prejudicial. Walker, 928 So.2d at 265. Although the delays in Apicella and Campbell were not presumptively prejudicial, in both cases the remaining three Barker factors were nonetheless examined. Apicella, 809 So.2d at 869 ("Although we have concluded that the delay was not presumptively prejudicial, we nevertheless elect to consider the other three [Barker ] factors, because Apicella was sentenced to death.”); Campbell, 709 So.2d at 1334 ("Even though we have concluded that the delay was not presumptively prejudicial, we have reviewed the remaining factors and find no violation of Campbell’s right to a speedy trial.”). However, in noting that Apicella and Campbell examined the remaining three Barker factors when the length of delay was determined not to be presumptively prejudicial, we do not suggest that a court must examine the remaining three factors even though the length of the delay in a defendant's case is found not to be presumptively prejudicial. We emphasize only that Apicella and Campbell do not prevent our finding the delay in Hamilton's case presumptively prejudicial. See supra note 5.

      . Walker was decided by this Court on November 4, 2005, after the trial court issued its order denying Hamilton's speedy-trial claim and after the Court of Criminal Appeals’ no-opinion denial of Hamilton’s habeas petition.

      . Conversely, although it argues that the delay is not presumptively prejudicial, the State contends that, on balance, an examination of the remaining three Barker factors does not establish that Hamilton’s right to a speedy trial has been violated.


author: PER CURIAM.

text:
    Ex parte S.K. HAMILTON. (In re State of Alabama v. S.K. Hamilton).
    CR-04-1751.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.
    George C. Douglas, Jr., Birmingham; and Mark Smith Nelson, Talladega, for petitioner.
   On Remand from the Alabama Supreme Court

PER CURIAM.

In compliance with the Supreme Court’s opinion in Ex parte Hamilton, 970 So.2d 285 (Ala.2006), this Court’s ruling of July 19, 2005, denying Hamilton’s petition for a writ of habeas corpus is due to be, and is hereby, set aside. This case is hereby remanded to the circuit court of Talladega County for proceedings consistent with the Supreme Court’s opinion of December 22, 2006.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN, SHAW, WISE, and WELCH, JJ., concur.