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Forbes v. Brawley

Alabama Court of Civil Appeals

October 18, 2019

Kevin Forbes and Maria Rosa Forbes
v.
Glen L. Brawley

          Appeal from Shelby Circuit Court (CV-18-900017)

          PER CURIAM

         Kevin Forbes ("Kevin") and his wife, Maria Rosa Forbes ("Maria Rosa"), appeal from a judgment of the Shelby Circuit Court dismissing their complaint against Dr. Glen L. Brawley, an orthodontist, alleging claims of breach of contract, misrepresentation, and fraudulent inducement.

         The record indicates the following. On January 8, 2018, Kevin filed a civil action alleging a claim of breach of contract against Dr. Brawley. In the complaint, Kevin averred that he was to pay Dr. Brawley $5, 150 pursuant to what he said were "specified payment options" for braces for Maria Rosa. Kevin made clear in the complaint that he was not Dr. Brawley's patient. Maria Rosa was not originally a party in the action.

         As an exhibit to the complaint, Kevin attached a form indicating that, on April 21, 2014, Dr. Brawley agreed to provide orthodontic treatment to Maria Rosa for a total of $5, 150. At that time, Dr. Brawley offered three payment options for the treatment: (1) no down payment and extended payment plans of 24 to 60 months; (2) an initial down payment of $1, 150 and 20 interest-fee payments of $200 each for the remaining $4, 000; and (3) payment in full, for which Dr. Brawley gave a discount of 4% or $206. The payment-options form stated: "Treatment times differ from patient to patient. These payment options do not correspond to the estimated treatment time but are merely provided for your convenience."

         As a second exhibit to the complaint, Kevin included an e-mail he received on October 6, 2015, from April Floyd, Dr. Brawley's financial coordinator. The e-mail, sent a year and a half after Maria Rosa became Dr. Brawley's patient, informed Kevin that Maria Rosa was "a couple of visits" away from the appointment at which she could expect to have her braces removed. However, Maria Rosa's account balance was $3, 995. That amount would need to be paid in full before the "removal appointment" could be scheduled, Floyd said. That same day, Kevin sent an e-mail to Dr. Brawley, stating:

         "Good evening Glen!

"You may or may not be aware but I spoke to April early last month and made a payment of $1, 000. I informed her then that I will be paying you at least $1, 000 a month until the balance is paid or if a large payment comes to me, then the balance would be paid in full. At least another $1, 000 will be paid this coming Monday.
"We appreciate your patience and kindness. However, with the e-mail below [the October 6, 2015, e-mail from Floyd], to say your office is not going to remove Maria Rosa's braces unless payment is paid in full shows an extreme lack of communication between the staff and you."

         In the complaint, Kevin asserted that he was "working on contract ... and he was being paid in sporadic lump sum amounts." Kevin stated that, when Dr. Brawley "threatened" to leave Maria Rosa's braces on even after they were ready to come off, Kevin and Dr. Brawley "agreed on an alternate payment arrangement." Kevin alleged that, after Dr. Brawley had been paid $4, 450 of the total $5, 150 owed "under the alternative payment arrangement that [Dr. Brawley] had agreed to," Dr. Brawley "abruptly took off" Maria Rosa's braces approximately six months early. Kevin alleged that the reason Dr. Brawley gave him for removing Maria Rosa's braces was that Kevin had not paid Dr. Brawley "pursuant to one of the payment options." Kevin alleged that Dr. Brawley's conduct breached the "financial arrangement" he had reached with Dr. Brawley. As a result, Kevin said, he was going to have to pay for Maria Rosa to have braces put on again. Kevin requested damages in the amount of $14, 500 for breach of contract, plus an additional $29, 000 for mental anguish.

         On February 20, 2018, Dr. Brawley filed a motion to dismiss Kevin's complaint. As grounds for his motion, Dr. Brawley asserted that, because Kevin was not a patient of his, Kevin lacked what Dr. Brawley characterized as "standing" to bring the action and that only Maria Rosa would have "standing" to sue him for any unsatisfactory result if the braces had been removed prematurely. Maria Rosa was not asserting the claim of breach of contract, however.

         Dr. Brawley contended that, in the complaint, Kevin had asserted the breach-of-contract claim as he did in an attempt to avoid the application of the Alabama Medical Liability Act ("the AMLA"), § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, which governs all actions that sound in contract or in tort based on an alleged "medical injury." Dr. Brawley argued that the complaint failed to meet the pleading requirements of the AMLA and was barred by the statute of limitations applicable under the AMLA.

         Additionally, Dr. Brawley asserted that Kevin could not prove the existence of a contract with Dr. Brawley, that any alleged oral agreement regarding payment options was not a "contract" between Kevin and Dr. Brawley, and that, even if any such agreement existed and could be deemed an oral contract, it would violate the Statute of Frauds because the orthodontic services Dr. Brawley was to provide Maria Rosa could not have been performed within one year. Any subsequent oral promise Kevin might have made to assume Maria Rosa's debt or to modify the payment plan was unilateral, Dr. Brawley said, and not an agreement made with him. Dr. Brawley further asserted that Kevin had failed to pay the $5, 150 pursuant to any of the payment plans and that, therefore, based on the details and exhibits of his own complaint, Kevin had demonstrated that, if the payment-options form constituted a contract, Kevin had violated its terms such that he could not prevail on a breach-of-contract claim against Dr. Brawley. Finally, Dr. Brawley asserted that Kevin had failed to articulate that he had been damaged in any way.

         A hearing was set to consider the motion to dismiss. Kevin then filed his first amended complaint alleging the same count of breach of contract, but removing the language contained in the first complaint asserting that Maria Rosa's braces had been removed before "her teeth were properly fixed." Kevin also responded to the motion to dismiss, arguing that he had not made a claim for a medical injury, so the AMLA was not applicable. Kevin attached to his response the comprehensive financial history for Maria Rosa with Dr. Brawley. Kevin's name does not appear on that document, which is in Maria Rosa's name. The document indicates that, from September 8, 2014, when treatment began and the initial fee and installment payments were set to begin, the Forbeses had failed to make almost all of their monthly payments and, from September 8, 2014, to September 1, ...


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