Mid-South Credit Collection v. McCleskey, MID-SOUTH

• Decision Date: 06 September 1991
• Docket Number: MID-SOUTH
• Citation: 587 So.2d 1212
• Parties: CREDIT COLLECTION v. Larry and Peggy McCLESKEY. 2900083.
• Court: Alabama Court of Civil Appeals

Page 1212

587 So.2d 1212

MID-SOUTH CREDIT COLLECTION v. Larry and Peggy McCLESKEY.

2900083.

Court of Civil Appeals of Alabama.

Sept. 6, 1991.

Lisa Naas, Decatur, for appellant.

No brief for appellees.

L. CHARLES WRIGHT, Retired Appellate Judge.

The McCleskeys incurred a hospital bill of $2,833.60 owed to the Lawrence County Hospital. Their insurer paid one-half of the bill, leaving a balance of $1,417.10. The hospital assigned the debt to Mid-South Credit Collections.

Subsequently, Mid-South filed an action in the District Court of Lawrence County against the McCleskeys for the balance due. The district court entered judgment in favor of the McCleskeys. Mid-South appealed that decision to the circuit court.

Following the presentation of oral evidence, the circuit court entered an order finding that Mid-South was equitably estopped from recovering their claim because of the hospital's failure to timely notify the McCleskeys' insurer. Mid-South appeals. The McCleskeys did not file a brief with this court.

Mid-South asserts that the trial court erred in finding that it was equitably estopped from collecting the amount owed because the McCleskeys failed to affirmatively plead the defense of estoppel. Alternatively it asserts that the McCleskeys did not produce sufficient evidence to prove equitable estoppel.

The affirmative defense of estoppel must be affirmatively pleaded. Rule 8(c), Alabama Rules of Civil Procedure. Rule 15(b), A.R.Civ.P., however, is an exception to the rule that an affirmative defense is waived if not specifically pleaded. Robinson v. Morse, 352 So.2d 1355 (Ala.1977). That rule provides for the automatic amendment of pleadings to allow them to conform to the evidence that has been presented to the court. Bischoff v. Thomasson, 400 So.2d 359 (Ala.1981).

The three essential elements of equitable estoppel are:

"(1) The person against whom estoppel is asserted, who usually must have knowledge of the facts, communicates something in a misleading way, either by words, conduct, or silence, with the intention that the communication will be acted on; (2) the person seeking to assert estoppel, who lacks knowledge of the facts, relies upon that communication; and (3) the person relying would be harmed materially if the actor is later permitted to assert a claim inconsistent with his earlier conduct."

General Elec. Credit Corp. v. Strickland Div., 437 So.2d 1240 (Ala.1983).

The McCleskeys appeared pro se in the district and circuit courts. The record reveals that they did not affirmatively plead the defense of estoppel. The record further discloses that the evidence failed to support a Rule 15(b) exception due to the absence of proof of essential elements of equitable estoppel.

Mrs. McCleskey...