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Filed: September 22, 1987.


APPEAL FROM THE RIPLEY CIRCUIT COURT, The Honorable Denver Gay, Judge, Cause No. C-85-116

Neal, J., Ratliff, C.j. Concurs W/opinion; Robertson, J., Concurs.



Plaintiff-appellant, Charles F. Broughton (Broughton), appeals a judgment from the Ripley Circuit court in favor of defendant-appellees, Sylvester Riehle (Riehle), on a complaint seeking the balance due for services rendered to Riehle.

We reverse.


On April 10, 1985, Broughton filed a complaint against Riehle in the Batesville City Court seeking $400.00, the balance due for orthodontic services rendered in treating Riehle's daughter, Tammy. The trial court rendered a judgment in favor of Broughton in the amount of $200.00 plus $15.00 court costs. Broughton subsequently appealed the judgment of the City court and moved for a trial de novo pursuant to IND. CODE 33-11.6-4-11, on the ground that judgment was to an insufficient amount as based upon the evidence. Trial to the court commenced on September 23, 1986. The following facts are undisputed.

Broughton has been a licensed and practicing orthodontist since 1976. During 1980 Riehle contacted Broughton regarding the possibility of obtaining orthodontic treatment for his daughter, Tammy. During an initial consultation visit, Broughton explained to the Riehles that the orthodontic process consisted of both active and follow-up treatment periods. Active treatment entails the application, adjustment and removal of orthodontic appliances (braces), used to move teeth to a desired position. Follow-up treatment involves the use of appliances, called retainers, to maintain teeth in the new position. In June of 1980, after preliminary consultation and examination, the parties agreed upon a fee of $1,690.00 for the orthodontic services to be performed. Tammy was 15 years old when treatment began, and x-rays did not disclose the presence of wisdom teeth.

Broughton testified that it is not always possible to tell how teeth will respond to treatment or the length of time it will take to straighten them. Accordingly, he told Riehle that the estimated active treatment would be completed in 24 months. In fact, active treatment lasted 41 months and was completed in December of 1983, at which time the braces were removed. Upon graduating from high school in May of 1983, Tammy enrolled at Ball State University in Muncie, Indiana. Broughton continued to treat Tammy while she was a freshman in college. He scheduled her appointments during normal working hours, which did not include Saturdays. This necessitated that Tammy miss a few classes. Tammy continued treatment until she terminated it in August of 1984. At this time she was engaged in follow-up care with Broughton, and the only treatment yet to be performed was the removal of her lower retainer. Broughton offered to do so, but Tammy chose not to have it removed. Broughton never charged more that his original fee for the extra time it took to treat Tammy's teeth. During the course of treatment, Riehle made periodic payments for Broughton's orthodontic services, and by December of 1983 the fee had been paid except for a balance of $400.00

Ruth Riehle, Tammy's mother, testified on behalf of the defendant. On direct-examination she admitted that the parties had agreed upon a fee of $1,690.00 for Broughton's services. In her testimony Ruth also admitted that Broughton's 24-month estimate was "approximate." She testified further that Broughton had explained that the emergence of wisdom teeth might alter the length of treatment and would necessitate their removal. Unanticipated, Tammy's wisdom teeth emerged while she was in high school, and they were removed upon Broughton's recommendation. Ruth also testified that there were problems in scheduling adjustments for Tammy while she was in high school because Broughton's office was located in Batesville. She was aware of the office's location, however, when treatment began. While Tammy attended Ball State the scheduling problems persisted. She returned home once every two months, and it was not feasible to travel to Muncie and pick her up. Ruth admitted that at the time treatment was discontinued, everything had been completed except for the removal of Tammy's lower retainer. Ruth conceded that she owed Broughton $400.00 for his services at that time.

Without explanation or specifications, Riehle, however, asserted that the job was not done. She conceded that Tammy's teeth had been straightened "to a point." but emphasized that Broughton had not completed the treatment within his 24-month estimate. She expected a more accurate estimate. Riehle, however, did not present any expert medical testimony indicating that the treatment had not been properly done or that the extra time taken to complete treatment was due to the fault or negligence of Broughton. Beyond the fact that she was annoyed that active treatment lasted 41 months instead of 24, Riehle presented no evidence that the delay had caused any damages. The trial court entered a general judgment in favor of Riehle. Broughton has subsequently instituted this appeal.


Broughton has raised one issue for our review and that is:

Whether the trial court's judgment in favor of Riehle was contrary to ...

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