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Arkansas Center for Physical Medicine and Rehabilitation v. Magee

Court of Appeals of Arkansas, Division II

December 6, 2017

ARKANSAS CENTER FOR PHYSICAL MEDICINE AND REHABILITATION APPELLANT
v.
GLORIA MAGEE APPELLEE

         APPEAL 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.

          Bryce Brewer Law Firm, by: Bryce Brewer; and Walas Law Firm, PLLC, by: Breean Walas, for appellee.

          RAYMOND R. ABRAMSON, JUDGE.

         Arkansas 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 affirm.

         ACPMR 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 $1, 135.68.

         On 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.

         On 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.

          On 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.

         The 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, 2017.

         ACPMR 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.

         Motions 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 relief. Id.

         As to 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.

         ACPMR 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 ...


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