from Shelby Circuit Court (CV-18-900017)
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:
"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."
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 requirements of the
AMLA and was barred by the statute of limitations applicable
under the AMLA.
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.
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, ...