from Shelby Circuit Court (CV-18-900017)
W. Newsome of Newsome Law, L.L.C., Birmingham, for
V. Newton, George A. Newton, and Michael T. Scivley of
Starnes Davis Florie LLP, Birmingham, for appellee.
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.
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.
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."
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
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.
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.
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 ...