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” 1 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 be
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,
The trial court denied Pickett’s motion. Just before the start of trial, and immediately after Berlin’s counsel entered his first appearance, counsel for Pickett P.C. requested “complete findings of fact, written findings of fact and conclusions of law.” The request was granted.
After Berlin made his case in chief, Pickett moved for a “directed verdict.” Pickett based his motion on the expiration of the limitations period (raised in his previous motion for summary judgment), saying, “Certain matters ... clearly show ... before July of 1999 ... when this initial petition was filed ... five years had ran [sic].” Pickett also claimed the evidence did not show the establishment of an ongoing account, but rather “a series of different contractual relationships of which he claims a breach.” Even if an account had been properly pled, Pickett asserted Berlin had not offered sufficient evidence to establish the reasonableness of the charges.
The trial court granted Pickett’s motion and entered judgment in his favor, granting Berlin nothing. It did not make any findings of fact or explain the grounds for its decision. Upon receiving the judgment, Berlin immediately reminded the court of the pre-trial request.
Berlin argues that the trial court erred for four reasons. First, Pickett’s affirmative defense, if valid, only makes unenforceable some of Berlin’s claims. Second, Pickett’s statute-of-limitations argument was invalid. Third, Berlin was entitled to a directed verdict because his testimony, which went uncontradicted, proved by a preponderance of the evidence the elements for a successful action on an open account. Fourth, the trial court’s failure to make findings of fact, as required by Rule 73.01(c), makes a remand necessary.
Rule 73.01
Berlin’s last point is correct: This case must be remanded to the trial court because of its failure to give the grounds for its judgment despite Pickett’s proper request for such grounds under Rule 73.01. Rule 73.01(c), which is applicable to this court-tried case, provides that:
[i]f a party so requests, the court shall dictate to the court reporter or prepare and file a brief opinion containing a statement of the grounds for the decision and the method of deciding any damages awarded. The court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party. Any request for an opinion or findings of fact shall be made on the record before the introduction of evidence at trial or at such later time as the court may allow.
Though Pickett did not use the phrase “grounds for the decision,” his request for
Pickett’s request was also timely; it came immediately before trial and the trial court granted it. Rule 73.01(c). Without knowing the grounds for the judgment, this court cannot determine whether the trial court disbelieved Berlin’s testimony (despite the post-petition payments by Pickett and the parties longstanding business relationship); whether it concluded that the statute of limitations precluded any recovery by Berlin (despite the possible divisibility of the action on account); or whether Berlin had failed to prove the reasonableness of his services. Accordingly, this court cannot provide meaningful review, and a remand is necessary.
Smith v. Woodard,
It should be noted, however, that even if a request for findings of fact under Rule 73.01 is made, a trial court need not make findings of fact unless the movant clearly and unequivocally specifies the controverted fact issues.
Hammons v. Ehney,
Berlin is correct to assume he has standing, an issue that this court has a duty to raise
sua sponte. State ex rel. Mathewson v. Board of Election Comm’rs of St. Louis County,
But his argument is untenable. First and foremost, it would have been redundant for Berlin to request the grounds of the decision. The court had already granted Pickett’s request. Second, such a request is not like the garden-variety requests made of trial courts presupposed by
This court holds that where the trial court does not give the grounds of its decision, even though properly and timely requested by a party under Rule 73.01 and acknowledged by the trial court, the non-moving party can raise the point on appeal. This holding is consistent with the caselaw.
See Adelman v. Rosenblum (In re Adelman’s Estate),
Given the multitude of theories and defenses raised by Pickett, meaningful review cannot be provided without an explanation by the trial court of the basis for its judgment. The judgment is remanded to the trial court for it to give the grounds of its decision. Rule 73.01(c).
All concur.
Notes
. In a non-jury case, a motion for a directed verdict submits the case for judgment on the merits.
Temple v. McCaughen & Burr, Inc.,