Ferlito v. Cecola

• Decision Date: 17 August 1982
• Docket Number: No. 14946,14946
• Citation: 419 So.2d 102
• Parties: Chetta Tuminello FERLITO, Plaintiff-Appellant, v. Russell E. CECOLA, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 102

419 So.2d 102

Chetta Tuminello FERLITO, Plaintiff-Appellant, v. Russell E. CECOLA, Defendant-Appellee.

No. 14946.

Court of Appeal of Louisiana, Second Circuit.

Aug. 17, 1982.

Writ Denied Nov. 5, 1982.

Bodenheimer, Jones, Klotz & Simmons by Frank H. Thaxton, III, Shreveport, for plaintiff-appellant.

Cook, Yancey, King & Galloway by Bernard S. Johnson, Shreveport, for Russell E. Cecola defendant-appellee.

Before PRICE, HALL and JASPER E. JONES, JJ.

PRICE, Judge.

Plaintiff, Chetta Tuminello Ferlito, appeals from a judgment granting defendant's motion for dismissal in an action relating to the performance of dental services. We affirm.

On January 7, 1981, plaintiff filed suit seeking damages for injuries allegedly sustained as a result of dental treatment she received from defendant, Dr. Russell E. Cecola. In her petition, plaintiff alleged that she paid defendant $4,000 to provide crowns for her teeth so as to make them uniform in shape, color, and quality. Plaintiff further alleged that during a seven-month period of treatment, defendant was unsuccessful in making the crowned teeth resemble the shape and color of her original teeth. Plaintiff asserted that she was forced to employ another dentist to make the necessary adjustments to her crowned teeth so that they now resemble the shape and color of her original teeth.

Plaintiff also alleged that during the time defendant treated her, she was subjected to verbal abuse and on one occasion was pushed against a wall by defendant.

At trial, plaintiff testified that she went to defendant for treatment of two upper front teeth which were discolored and crooked. After consulting with defendant, it was decided that most of her teeth were to be crowned. Plaintiff further testified that defendant promised "he would do anything he could to please me" and that "he was going to make the teeth real pretty."

Plaintiff stated that the first set of permanent crowns she was fitted with were not properly shaped or colored. In an attempt to satisfy plaintiff, defendant removed six crowns from plaintiff's upper front teeth and replaced them with another set. Plaintiff testified that the replacements were also unsatisfactor because they were misaligned and were not the size, shape, or color of her original teeth. Over the next several months defendant unsuccessfully attempted to satisfy plaintiff by making requested adjustments to the crowns on her front teeth.

Plaintiff also testified that over the course of treatment, defendant often responded to her complaints by saying that she was in need of a psychiatrist. These episodes occurred in front of defendant's nurse and the lab technician who prepared plaintiff's crowns. On another occasion, after plaintiff had submitted a list of her complaints to the doctor, defendant was overheard uttering a profane remark directed at plaintiff. On that occasion, defendant was unaware of plaintiff's presence because she had followed defendant's nurse into the office without being invited.

Plaintiff also testified that on one visit to the doctor's office, defendant pushed her into a wall.

Finally, plaintiff testified that another dentist, Dr. McInnis, made the necessary adjustments to the crowns on plaintiff's six front teeth so that they now resemble the original teeth in shape, size, and color. Other witnesses testified to the improvement in plaintiff's appearance after the work performed by Dr. McInnis.

The deposition of Dr. McInnis was admitted into evidence at trial. He testified that plaintiff was not satisfied with the first set of crowns he fitted on her front teeth so a second set was prepared. Dr. McInnis stated that the crowns he fitted on plaintiff's teeth were made by the same dental laboratory which defendant employed and were of the same color as the crowns used by defendant. He further testified that any adjustments he made to plaintiff's teeth were very minor in nature. In his opinion, there was nothing defective about the work performed by defendant.

At the close of plaintiff's evidence, defendant moved for dismissal under La. C.C.P. Art. 1810(B). The trial court granted the motion, finding plaintiff failed in her burden of proving malpractice under La. R.S. 9:2794 since she did not show that defendant lacked the knowledge, skill, or degree of care ordinarily exercised by dentists licensed in this state.

On appeal, plaintiff does not contest the finding of the trial court that she failed to prove malpractice under La. R.S. 9:2794. However, plaintiff contends the trial court erred in granting defendant's motion for dismissal because the evidence shows the existence of a contractual relationship between plaintiff and defendant, thus her action is for breach of contract, not malpractice. Plaintiff further contends that since the undisputed evidence shows verbal abuse and battery committed by defendant upon the person of plaintiff, she has proven a prima facie case of tort separate from any malpractice action.

Louisiana Code of Civil Procedure Article 1810(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

In considering a motion under La. C.C.P. Art. 1810(B), the trial court must weigh and evaluate all the evidence presented and must grant a dismissal if plaintiff has not carried the burden of proof by a preponderance of the evidence.

Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La. App. 4th Cir. 1980); Bryan v. Varnado, 394 So.2d 1321 (La. App. 1st Cir. 1981); Standard Machine & Equipment Co. v. Southern Pacific Transportation Co., 410 So.2d 842 (La. App. 3d Cir. 1982...