Jessen v. Dr. Kenneth W. Wimberly, DDS

610 So. 2d 252, 1992 WL 364428
CourtLouisiana Court of Appeal
DecidedDecember 9, 1992
Docket91-1299
StatusPublished
Cited by5 cases

This text of 610 So. 2d 252 (Jessen v. Dr. Kenneth W. Wimberly, DDS) 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
Jessen v. Dr. Kenneth W. Wimberly, DDS, 610 So. 2d 252, 1992 WL 364428 (La. Ct. App. 1992).

Opinion

610 So.2d 252 (1992)

Agnes A. JESSEN, Plaintiff-Appellant,
v.
DR. KENNETH W. WIMBERLY, D.D.S., a Professional Dental Corporation, Defendant-Appellee.

No. 91-1299.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1992.

*253 Bradley J. Gadel, Alexandria, for plaintiff-appellant.

Richard E. Gerard, Jr., Lake Charles, for defendant-appellee.

Before LABORDE, THIBODEAUX and CULPEPPER[*], JJ.

THIBODEAUX, Judge.

Agnes A. Jessen brought this suit in redhibition against Dr. Kenneth W. Wimberly, D.D.S., a Professional Dental Corporation, to rescind her purchase of a new denture mold base. At the conclusion of the trial in Lake Charles City Court, the trial judge took the matter under advisement and ultimately found in favor of the defendant, dismissing plaintiff's claims.

Plaintiff appeals and asserts the following assignments of error: (1) the trial judge erred in holding that plaintiff did not prove her case by a preponderance of the evidence. Assignment of error number one encompasses Jessen's claims that the relined denture mold base of the lower dentures was defective, the sale of which is subject to rescission, and her second claim that Dr. Wimberly's actions in collecting a debt which she did not owe, constituted an unfair trade practice in violation of LSA-R.S. 51:1409(A). The second assignment of error is that the trial judge erred not stating any facts or substantive reasons to support his ruling. For the reasons set forth below, we affirm.

FACTS

On April 3, 1990, Jessen, a 66 year old retired waitress who has been wearing dentures since the age of 22, entered into an installment contract with Dr. Wimberly for the purchase of a new denture mold base which would utilize the teeth of the dentures she had been wearing for the past 15 years, replacing one tooth that was missing from the set. For economic reasons, Jessen chose to have a reline done rather than to have Dr. Wimberly construct an entirely new set of dentures. On that same day, Dr. Wimberly took an impression of Jessen's bite using the existing 15 year old denture as a mold for the relined dentures. On the day Jessen picked up her dentures, she made a down payment of $100.00 and promised to pay the balance of the purchase price, $225.00, before May 1, 1990. The total bill was $325.00.

Jessen testified that she immediately experienced problems with the fit of her dentures. Whenever she chewed, drank coffee or talked, the lower denture would become dislodged in her mouth. She returned to Dr. Wimberly's office a few times where he administered adjustments to the dentures. Jessen is uncertain as to the number of times she returned to the office for adjustments *254 to the dentures. Documentation, by way of appointment books and sign-in sheets, kept by Dr. Wimberly's employees, shows that Jessen visited the office eight times, with six of those visits occurring after the dentures were placed in her mouth. Witnesses for both plaintiff and defendant claim that a denture patient's need to return to the dental office several times for denture adjustments is not uncommon. Jessen testified that despite repeated visits for adjustments, she continued to experience problems eating with the dentures. Jessen admits that after the first 3 or 4 days when she could not eat solid food, she had gotten upset and did not return to Dr. Wimberly's office for adjustments as often as she should have. Her visits to Dr. Wimberly's office ended sometime in June of 1990.

In August of 1990, Jessen contacted Mark Snowden, a dental technician and a fabricator of dental appliances and owner of Louisiana Dental Center in Oakdale, Louisiana. Jessen explained to Snowden the problems she was experiencing with her dentures. Mark Snowden, a witness for the plaintiff, surmised that the bite registration taken by Dr. Wimberly was inaccurate. After Snowden's diagnosis of the problem, he proceeded to construct a new set of dentures.

Dr. Steve Chapman, a dentist, examined both sets of dentures and concluded that there were several reasons the dentures constructed by Dr. Wimberly could have an inaccurate bite registration. It was difficult to determine exactly what caused the bite inaccuracies.

Dr. Wimberly testified that a person who has been wearing dentures for as long as Jessen has (approximately 40 years) is going to have problems with dentures because the longer a person wears dentures, the smaller the lower ridge of the gums become. Sometimes, the bite of a patient is not correct, but the denture wearer has become accustomed to the bite; therefore, even with a new denture that corrects the bite, the patient will feel uncomfortable. In addition, Dr. Wimberly testified that the denture may fit the gum of the denture wearer perfectly, but the bite will not mesh, which is the reason a patient may return many times for adjustments. In other words, a bite correction, realignment of the patient's jaw, must be done in stages. The mold used for Jessen's relined dentures was made by getting a bite impression while the 15 year old dentures were in Jessen's mouth.

It is not contested that Jessen paid the balance of $225.00 by check dated April 30, 1990, in satisfaction of her agreement to pay for her dentures before May 1, 1990. Because of an error in Dr. Wimberly's billing procedure, Jessen continued to be erroneously billed for several months for $225.00, plus penalties for late payments in the latter months. Jessen received several computer generated billing statements showing a balance due and requesting payment. Jessen testified that she was called at her place of employment by one of Dr. Wimberly's employees who inquired about payment of the bill. Testimony by Dr. Wimberly's dental assistant, Ms. Cook, was that she called to confirm where Jessen was employed so that she would have that information for future reference should additional actions have to be taken to collect the debt. At no time did Jessen bring or mail a copy or original of either the cancelled check or patient receipt, although she claims to have visited Dr. Wimberly's office with a copy of the first billing statement contesting its validity and offered to bring the cancelled check and/or patient receipt. This would have immediately made known to Cook that there was a wrong number on the account and could have shown Jessen's account as being paid, ending the erroneous billing. When the dental assistant was told by Jessen that she was not going to pay the bill and that she was not satisfied with the dentures, she proceeded, on February 15, 1991, with the next step in the billing process, the mailing of a certified letter requesting payment or that arrangements for payment be made. When told by Jessen that suit was being filed against Dr. Wimberly, Cook ended all billing statements and letters. Upon receipt from Jessen's attorney of Jessen's April 30, 1990 cancelled check, Cook *255 was immediately able to inspect the account and determine that the billing problem was due to a typographical error which changed one of the numbers in the account and caused Jessen's payment to appear in another patient's account records.

On March 15, 1991, Jessen filed this action claiming redhibitory defects in the dentures constructed by Dr. Wimberly and a violation of the Louisiana Unfair Trade Practices Act because of the billing procedures used.

Defendant answers plaintiff's appeal with a request for costs and attorney's fees, asserting that the appeal is frivolous and without any valid basis in fact or in law.

SCOPE OF REVIEW

In Louisiana, appellate review in civil cases extends to both law and facts. La. Const.

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Cite This Page — Counsel Stack

Bluebook (online)
610 So. 2d 252, 1992 WL 364428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jessen-v-dr-kenneth-w-wimberly-dds-lactapp-1992.