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Forbes v. Brawley

Court of Civil Appeals of Alabama

October 18, 2019

Kevin FORBES and Maria Rosa Forbes

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

          Burt W. Newsome of Newsome Law, L.L.C., Birmingham, for appellants.

          Sybil V. Newton, George A. Newton, and Michael T. Scivley of Starnes Davis Florie LLP, Birmingham, for appellee.

Page 1102

         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

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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 ...

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