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Berlin v. Pickett3/28/2003
Opinion Vote: REMANDED.
Smith, P.J., and Hardwick, J.J.
Opinion:
Dr. Roger Berlin appeals from the trial court's judgment for the defendants in Berlin's action on account against William H. Pickett and William H. Pickett, P.C. (collectively "Pickett"). The trial court, sitting as trier of fact, granted Pickett's oral motion for a "directed verdict and/or judgment" without making any findings, though respondent Pickett had requested findings pursuant to Rule 73.01. Because the trial court violated Rule 73.01 and because this court is unable to provide meaningful review, the judgment is remanded.Factual & Procedural History On July 1, 1999, Dr. Roger Berlin filed an action on an open account, claiming that Pickett owed him $54,000, plus interest, for psychiatric services Berlin provided Pickett's clients since February 27, 1996.
Berlin testified as follows:
Starting in 1972, Berlin, at Pickett's request, interviewed and wrote psychiatric evaluations of over 150 of Pickett's clients. Berlin also gave depositions and trial testimony in many of the personal injury suits brought by Pickett's clients. He deposed and testified in personal injury suits involving many of these clients. He kept an itemized bill of his services, which he sent to Pickett. These bills were based on time cards on which Berlin recorded the date and nature of the services provided each client. Berlin applied Pickett's payments to individual services; Berlin did not keep a running ledger. Initially, Pickett paid Berlin, with checks drawn on the account of William H. Pickett, P.C., but eventually stopped paying for Berlin's services, though he continued requesting -- and Berlin continued providing -- them. (Berlin did not testify that Pickett agreed to the creation of an open account.)
Berlin talked to Pickett about Pickett's arrearage and sent Pickett dunning letters. During one conversation, Pickett said, "Please, I got some money coming in. . . . I'll send you some in 30 days." Pickett did not make the promised payment. In February 1996, Berlin stopped providing services for Pickett, whose debt had grown to $55,225.
In July 1999, Berlin filed this action, seeking damages relating to services vis-a-vis thirty-six (later reduced to thirty-five) different clients. After filing suit, Berlin received four checks for $375, $300, $250, and $375, drawn on the account of William H. Pickett, P.C. In the memo section, each check indicated a client's name. Each check corresponded to services rendered on behalf of the named client. Berlin submitted an affidavit indicating that the payments were made to specific billed items.
In his answer, Pickett raised the statute of limitations as an affirmative defense. According to Pickett, some or all of Berlin's contractual " claims," which related to services provided more than five years before Berlin filed his petition, were unenforceable because of the expirations of the limitations period provided in Section 516.120(1), RSMo (2000), which began to run on the date each individual service was provided. Consequently, only those services provided on or after July 1, 1994, were not time-barred. Pickett also claimed that each service was a separate contract and that only Pickett P.C. could be held liable.
Pickett moved for partial summary judgment, based on the limitations defense, as to claims representing $42,914 of the $54,000 sought by Berlin. In his suggestion in opposition to the motion, Berlin claimed that an action on account does not accrue until the date of the last service provided, citing Lowenstein v. Widdicomb , 52 S.W.2d 1044, 1046 (Mo. App. 1932), for this proposition. The last s
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