Bethley v. Simmons

201 So. 3d 304, 2016 La. App. LEXIS 1537
CourtLouisiana Court of Appeal
DecidedAugust 10, 2016
DocketNo. 50,788-CA
StatusPublished

This text of 201 So. 3d 304 (Bethley v. Simmons) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethley v. Simmons, 201 So. 3d 304, 2016 La. App. LEXIS 1537 (La. Ct. App. 2016).

Opinion

PITMAN, J.

|! Defendant-Appellant Robert Simmons appeals the judgment of the trial court in favor of Plaintiff-Appellee Domina Beth-ley. For the following reasons, we reverse the judgment of the trial court.

FACTS

On April 9, 2015, Mr. Bethley filed a petition in which he requested damages in the amount of $684.16 in medical bills, $1,045.80 in lost wages, $5,000 for pain and suffering and $120 for court costs. He alleged that, on July 7, 2012, Mr. Simmons was operating a saw that cut Mr. Bethley’s ankle. Mr. Bethley alleged that Mr. Simmons promised to pay his medical bills in full, but that he did not do so.1

On April 17, 2015, Mr. Simmons filed an answer. He stated that the injury occurred on July 7, 2012, and that over a year elapsed before Mr. Bethley filed his petition. Mr. Simmons contended that Mr. Bethley lost his right to sue because his petition was untimely.

On July 2, 2015, Mr. Simmons filed an exception of prescription, alleging that any claim was filed more than one year after the events giving rise to any alleged claim or cause of action.

A hearing was held on July 9, 2015, and neither party was represented by counsel. Mr. Bethley testified that, on July 7, 2012, he and his father were cutting limbs in his backyard when his neighbor Mr. Simmons came over and asked to use the 12-foot pole saw. He explained that the chainsaw was attached to an extension that is used to cut limbs. He stated that he fallowed Mr. Simmons to try out the chainsaw for 15 minutes and then asked him to ’ stop. At that point, Mr. Simmons turned toward him and the chainsaw cut his ankle. As he was getting in the car for his father to take him to the hospital, Mr. Simmons told him that he would pay his medical bills and asked that his wife not be told. He stated that the cut to his ankle was deep and surgery was performed. He noted that his medical bills totaled over $14,000. His insurance company paid 80 percent of his medical bills and Mr. Simmons made payments totaling $180 directly to the hospital; however, Mr. Simmons stopped making payments and a balance of $684.16 remained. He contended that he was entitled to $1,045.80 in lost wages because he was unable to work for three days due to the injury. He also requested $5,000 for pain and suffering and explained that the safety equipment he wears at work aggra[306]*306vates the pain in his ankle and that he has nerve problems in his leg.

Michael Newton, Mr. Bethley’s father, testified that, on July 7, 2012, he was watching Mr. Bethley and Mr. Simmons cut a limb off a tree and the pole saw “bumped [Mr. Bethley’s] leg,” which began to bleed. He stated that Mr. Bethley showed Mr. Simmons the injury and Mr. Simmons said he would “take care of it” and asked that they not tell his wife.

Mr. Simmons testified that, on July 7, 2012, he was helping Mr. Bethley cut a limb and Mr. Bethley “got in the way of the saw.” He stated that he did not intend to cut Mr. Bethley. He further stated that he did not promise Mr. Bethley he would pay him, but merely said that he would help if he could. He testified that he did not make - any payments on the medical bill, but did give Mr. Bethley money because he said he would help. He further testified that he did not sign any agreement and denied saying that [ahe would pay the medical bills. He agreed that he was at fault for the injury, but emphasized that the statute of limitations for making a claim had run.

On July 21, 2015, the trial court filed a judgment denying the exception of prescription and awarding Mr. Bethley $5,000 for pain and suffering, $684.16 plus interest for medical bills and $1,045.80 for lost wages and assessing court costs to Mr. Simmons.

Mr. Simmons appeals.

DISCUSSION

Oral Agreement to Pay Medical Bills

In his first assignment of error, Mr. Simmons argues that Mr. Bethley is not entitled to recover from him under the alleged oral agreement to pay the medical bills because such an oral agreement cannot be proved by parol evidence and is otherwise unenforceable. He denies that he agreed to pay Mr. Bethley’s medical bills. However, Mr. Simmons notes that, if Mr. ■Bethley’s testimony that he did promise to pay the medical bills is accepted, then he argues that Mr. Bethley’s testimony is insufficient to prove a valid agreement. He argues that, because the petition has prescribed on its face, Mr. Bethley had the burden of proving that prescription had not run. He contends that Mr. Bethley did not offer any evidence as to the date of an alleged acknowledgment, other than to state that he made an oral acknowledgement after May 22, 2013, i.e., the date of the most recent payment on the medical debt. He argues that, even if Mr. Bethley’s testimony is accepted, there is no basis for concluding that he acknowledged the debt on or after April 9, 2014; and, therefore, prescription had run when Mr. Bethley’s petition was filed on April 9, 2015.

|4Mr. Bethley argues that he is entitled to recover from Mr. Simmons under the oral agreement to pay the medical bills because the agreement was made in the presence of a witness, i.e., Mr. Newton. He notes that Mr. Simmons paid $180 to St. Francis Medical Center toward- the medical bills and stopped making payments' in May 2013. He alleges that Mr. Simmons made excuses for why he did not make further payments and continually reaffirmed that he would honor his verbal agreement to pay the medical bills.

Delictual actions are subject to a liberative prescription of one year. La. C.C. art. 3492.. This prescription commences to run from the day injury or damage is sustained. Id. The party asserting prescription carries the burden of proof unless the plaintiffs claim is barred on its face, in which case the burden shifts to the plaintiff to prove that the prescrip[307]*307tive period has been suspended or interrupted. Mallett v. McNeal, 05-2289 and 05-2322 (La.10/17/06), 939 So.2d 1254; Jackson v. Hicks, 49,199 (La.App.2d Cir.8/13/14), 147 So.3d 283.

Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. Such an acknowledgment is not subject to any particular formality. Mallett v. McNeal, supra. It may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways. Lake Providence Equip. Co. v. Tallulah Prod. Credit Ass’n, 257 La. 104, 241 So.2d 506 (1970); Jackson v. Hicks, supra. It may be implicit or it may be inferred from the facts and circumstances. Lake Providence Equip. Co. v. Tallulah Prod. Credit Ass’n, supra. The Louisiana Supreme Court in Lima v. Schmidt, 595 So.2d 624 (La.1992), explained:

|SA tacit acknowledgment occurs when a debtor performs acts of reparation or ' indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgments .... Our courts have added,to the above generalizations other criteria that, evidence an acknowledgment,, including undisputed liability, repeated and open-ended reassurances of payment, and continuous and frequent contact with the creditor throughout the prescriptive period.

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Related

Mallett v. McNeal
939 So. 2d 1254 (Supreme Court of Louisiana, 2006)
Lima v. Schmidt
595 So. 2d 624 (Supreme Court of Louisiana, 1992)
Lake Providence Equipment Co. v. Tallulah Production Credit Ass'n
241 So. 2d 506 (Supreme Court of Louisiana, 1970)
Jackson v. Hicks
147 So. 3d 283 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
201 So. 3d 304, 2016 La. App. LEXIS 1537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethley-v-simmons-lactapp-2016.