Owings v. Gullett

• Decision Date: 24 August 1983
• Citation: 437 So.2d 1050
• Parties: Jon M. OWINGS v. Walter R. GULLETT, Jr. Civ. 3772.
• Court: Alabama Court of Civil Appeals

Page 1050

437 So.2d 1050

Jon M. OWINGS v. Walter R. GULLETT, Jr.

Civ. 3772.

Court of Civil Appeals of Alabama.

Aug. 24, 1983.

Edward W. Doggett, Florence, for appellant.

Michael F. Ford of Martin & Ford, Tuscumbia, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an account stated case.

Dr. Owings' amended complaint against Mr. Gullett was for an account stated and for a simple account.

Mr. Gullett moved for a summary judgment and his affidavit in support thereof was that he was attended by Dr. Owings while being hospitalized in February 1978, that he was completely dissatisfied with Dr. Owings' services, that his condition worsened while under Dr. Owings' care, and that he was transferred to a Birmingham hospital for further treatment. The remainder of his affidavit was as follows:

"Dr. Owings was unable to diagnose my condition or to explain the reason my condition worsened while I was under his care. For this reason, I felt then and feel now that the services rendered to me by Dr. Owings were valueless.

"After my 21 February to 1 March 1978 hospitalization, I received a statement from Dr. Owings. I responded to the statement with a letter, explaining that I thought his services were unsatisfactory and disputing his bill. A copy of this letter is attached hereto, labeled Exhibit 'A', and made a part of this testimony.

"Since March 1978, it has been my continuous position that I am not indebted to Dr. Owings. I have never agreed to pay his statement and I deny that I owe him any money at all. I have signed no contract or other writing agreeing to pay Dr. Owings the statement.

"More than four (4) years have passed since Dr. Owings sent me this statement and I contend that the Statute of Limitations on his claim has expired and his suit against me ought to be dismissed."

The letter attached as exhibit "A" was dated July 6, 1978. It disputed and denied owing the doctor's bill because of the patient's opinion that the services rendered by the physician were most unsatisfactory and not beneficial to his health and well-being, giving therein his argument, thoughts, and reasons for his opinion.

Dr. Owings' counteraffidavit stated that, according to normal procedures, Mr. Gullett would have received a statement from him within thirty days from the date of Mr. Gullett's last treatment by him. The office records of Dr. Owings, which are kept in the ordinary course of his business and which are under his control and supervision, disclose that Mr. Gullett called the physician's office on April 12, 1978 and indicated that he would bring "an insurance form to pay his bill when he obtained the form from his insurance company." The doctor further swore that he "never received the letter dated July 6, 1978, which Mr. Gullett contends he sent to my office." After attempting to collect by other methods and means and through other sources, Dr. Owings sent a new bill and demand for payment on March 2, 1982 to Mr. Gullett, who contacted the doctor's office about a week later and indicated that he would pay it when he "got good and ready to."

The trial court granted Mr. Gullett's motion for a summary judgment and entered a judgment in his favor. Dr. Owings appeals and contends that a scintilla of evidence prevented the rendition of the judgment against him.

It is without controversy that the open account claim was barred by the three year statute of limitations and no contra argument is presented to us. Accordingly, the judgment of the trial court in granting the motion for a summary judgment in Mr. Gullett's favor as to the open account aspect of the case is affirmed.

Much of the law governing summary judgments was recently aptly summarized in a succinct manner by Chief Justice Torbert in Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981), as follows:

"A party moving for summary judgment has the burden of clearly showing that the non-moving party cannot recover under any discernible set of circumstances and that there is no genuine issue as to any material fact. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Ragland v. Alabama Power Co., 366 So.2d 1097 (Ala.1978). The moving party must be entitled to the summary judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974). All reasonable inferences concerning issues of material fact are to be drawn in favor of the non-movant. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).

"The burden for sustaining a motion for summary judgment is substantially increased by the scintilla of evidence rule. This rule requires that no summary judgment be granted if there is a scintilla of evidence to support the non-movant's position. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Browning v. Birmingham News, 348 So.2d 455 (Ala.1977). The scintilla of evidence rule requires merely a gleam, glimmer, spark, the least bit, or the smallest trace in support of the non-moving party. Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979)."

415 So.2d at 1041.

As to the applicable account stated law, we first quote the definition thereof:

"One definition of an 'account stated' is as follows:

" '[A]n account stated ... is an agreement between parties who have had a previous transaction or transactions of a monetary character that the item or items of account representing such transaction or transactions and the balance struck are correct, together with a promise, express or implied, for the payment of such balance. Walker v. Trotter Brothers, 192 Ala. 19, 68 So. 345, and cases cited; Ware v. Manning, 86 Ala. 238, 5 So. 682; Jasper Trust Co. v. Lamkin, 162 Ala. 388, 50 So. 337, 24 L.R.A., N.S., 1237. See Ingalls v....