ARKANSAS CENTER FOR PHYSICAL MEDICINE AND REHABILITATION APPELLANT
GLORIA MAGEE APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION NO.
60CV-16-4473] HONORABLE TIMOTHY DAVIS FOX, JUDGE
Wallace, Martin, Duke & Russell, PLLC, by: Valerie L.
Goudie, for appellant.
Brewer Law Firm, by: Bryce Brewer; and Walas Law Firm, PLLC,
by: Breean Walas, for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Center for Physical Medicine and Rehabilitation (ACPMR)
appeals the order of the Pulaski County Circuit Court
dismissing its complaint against Gloria Magee. On appeal,
ACPMR argues that the circuit court erred in granting
Magee's motion for judgment on the pleadings because (1)
Magee waived her statute-of-limitations defense when she
failed to raise it as an affirmative defense in her answer;
and (2) Arkansas Code Annotated section 16-56-106(b)(Repl.
2015) did not bar her claim as to account number 1007157. We
is a chiropractic and physical-therapy clinic. Magee had been
a patient at ACPMR. On August 12, 2016, ACPMR filed a
complaint against Magee seeking to collect $7, 195.68 in
unpaid medical bills. ACPMR attached to its complaint an
August 16, 2011 contract with Magee and account ledgers for
account numbers 1007157 and 1006694. In account number
1007157, ACPMR charged Magee for services performed from
August 16, 2011, through January 13, 2012, and the unpaid
balance totaled $6, 060. In account number 1006694, ACPMR
charged Magee for services performed from February 4, 2014,
through September 11, 2014, and the unpaid balance totaled
August 26, 2016, Magee filed an answer to ACPMR's
complaint. She asserted the affirmative defenses of lack of
subject-matter jurisdiction, lack of personal jurisdiction,
improper venue, insufficiency of process and service of
process, failure to state a claim, waiver, setoff, laches,
payment, failure of consideration, illegality of contract,
unclean hands, and comparative fault.
November 2, 2016, Magee filed a motion for judgment on the
pleadings. She asserted that ACPMR could not recover on
account number 1007157 because the claim was barred by the
statute of limitations set forth in Arkansas Code Annotated
section 16-56-106(b). Specifically, she pointed out that
subsection 106(b) requires that a claim for unpaid medical
bills be filed two years from the date the services were
performed, or from the date of the most recent partial
payment, whichever is later. She asserted that she last made
a payment on that account on November 9, 2011, and that ACPMR
last provided her services on that account on January 13,
2012, but that ACPMR did not file its complaint until August
12, 2016, more than two years later. Accordingly, she asked
the court to dismiss ACPMR's complaint as to account
number 1007157 with prejudice.
November 7, 2016, ACPMR filed a motion to dismiss Magee's
motion for judgment on the pleadings. It argued that its
claim for account number 1007157 was not barred by the
statute of limitations because Magee had received ongoing
treatment as recently as September 4, 2014, with respect to
account number 1006694.
court held a bench trial on December 16, 2016. ACPMR did not
appear. The court orally granted Magee's motion for
judgment on the pleadings as to account number 1007157. The
court then proceeded to the merits of ACPMR's remaining
claim on account number 1006694. However, because ACPMR did
not appear, Magee moved for a directed verdict, and the court
granted it. The court entered a written order on January 13,
timely filed a notice of appeal. On appeal, ACPMR argues that
the court erred in granting Magee's motion for judgment
on the pleadings because (1) she waived the
statute-of-limitations defense when she failed to raise it as
an affirmative defense in her answer; and (2) Arkansas Code
Annotated section 16-56-106(b) did not bar her claim as to
account number 1007157.
for judgment on the pleadings are not favored by the courts.
LandsnPulaski, LLC v. Ark. Dep't of Corr., 372
Ark. 40, 269 S.W.3d 793 (2007). Such a judgment should be
entered only if the pleadings show on their face that there
is no defense to the suit. Id. When considering the
motion, the court views the facts alleged in the complaint as
true and in the light most favorable to the party seeking
ACPMR's first argument, we hold that the issue is not
preserved for our review. It is well established that an
appellant must raise an issue and make an argument to the
circuit court for it to be preserved on appeal. See
Porter v. Ark. Dep't. of Human Servs., 374 Ark. 177,
286 S.W.3d 686 (2008). Here, ACPMR failed to raise the waiver
argument to the circuit court. Accordingly, we decline to
address the issue on appeal.
next argues that the court erred in finding that Arkansas
Code Annotated section 16-56-106(b) barred her claim as to
account number 1007157. Specifically, ACPMR argues that its
claim is not barred because Magee revived the debt when she
received additional treatment from February 4, 2014, through
September 11, 2014, in account number 1006694. It cites
Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913
(1999), wherein our supreme court discussed the