Bertram A. Graves v. Richard Kovacs, M.D., Edward Ross, M.D., and Indiana University Health f/k/a Clarian Health Partners, Inc. , 2013 Ind. App. LEXIS 285 ( 2013 )

Jun 18 2013, 6:21 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ADAM LENKOWSKY L. ALAN WHALEY
Roberts & Bishop STEPHEN E. REYNOLDS
Indianapolis, Indiana JENNY R. BUCHHEIT
Ice Miller, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BERTRAM A. GRAVES, M.D., )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A05-1301-PL-1
)
RICHARD KOVACS, M.D., )
EDWARD ROSS, M.D., and )
INDIANA UNIVERSITY HEALTH, f/k/a )
CLARIAN HEALTH PARTNERS, INC., )
)
Appellees-Defendants, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Heather A. Welch, Judge
Cause No. 49D12-1009-PL-39308-001
June 18, 2013
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Dr. Bertram Graves appeals the trial court’s granting of the motion for judgment
on the pleadings filed by Drs. Richard Kovacs and Edward Ross. We reverse and
remand.
Issue
The dispositive issue we address is whether the trial court erred in concluding that
Dr. Graves’s complaint failed to state any actionable claim against Drs. Kovacs and Ross.
Facts
Dr. Graves is a cardiologist who worked for Clarian Health Partners (“Clarian”),
which later became known as Indiana University Health (“IU Health”), from 1992
through August 1, 2009. On that date, Clarian/IU Health revoked his cardiology
privileges. Dr. Graves contends that Drs. Kovacs and Ross played a role in the
revocation of his privileges, by providing false information to peer review committees
and improperly reviewing allegations against Dr. Graves.
On September 7, 2010, Indianapolis MOB, LLC (“MOB”), which is a corporate
landlord, sued Dr. Graves for breaching his lease of office space by failing to pay rent.
Dr. Graves, in turn, filed a third-party complaint against Clarian/IU Health on November
30, 2010, alleging breach of contract when it did not renew his cardiology privileges, and
alleging a substantial loss of income and the inability to pay his rent to MOB. Dr. Graves
filed his first amended third-party complaint on December 27, 2010, to attach a copy of
his contract with Clarian/IU Health.
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On January 27, 2011, the trial court granted MOB’s motion to sever the third-party
complaint from its lawsuit against Dr. Graves. After over a year of delay regarding how
the parties would proceed, on March 7, 2012, Dr. Graves filed a “Second Amended
Complaint” against Clarian/IU Health under a separate cause number from the original
MOB lawsuit. App. p. 116. This complaint for the first time named Drs. Kovacs and
Ross as defendants. Under a caption heading that Dr. Graves labeled as “Breach of
Contract,” he alleged that his employment by Clarian/IU Health was governed by certain
bylaws, a code of conduct policy, a peer review policy, and a corrective action policy. Id.
at 117. Dr. Graves further alleged that, in 1995, his cardiology privileges were
“summarily suspended” under the orchestration of Dr. Ross, using false allegations
against Dr. Graves. Id. Dr. Graves also alleged that, in 2006 or 2007, Dr. Ross refused
to assist Dr. Graves in having his privileges restored.1 As for Dr. Kovacs, Dr. Graves
alleged that he “maliciously and in bad faith” reviewed allegations made against Dr.
Graves during peer reviews of Dr. Graves and that he was “instrumental in the
elimination” of Dr. Graves’s privileges. Id. at 118. Finally, Dr. Graves alleged
Clarian/IU Health breached its contract with him by eliminating his privileges without
cause and without adequate notice, and also that it breached various policies related to
termination of his privileges.
On September 6, 2012, Drs. Kovacs and Ross filed a motion for judgment on the
pleadings. The sole argument in the motion was that Dr. Graves had failed to state any
1
It is unclear from the complaint whether this referred to restoration of Dr. Graves’s privileges after the
1995 suspension of them, or referred to a different suspension of privileges.
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claim against them for breach of contract because they were not party to any contract
with Dr. Graves. In response, Dr. Graves asserted that the facts alleged in the second
amended complaint sufficiently stated a cause of action against Drs. Kovacs and Ross for
tortious interference with a contract, namely between Dr. Graves and Clarian/IU Health.
On November 5, 2012, Drs. Kovacs and Ross filed a response to this assertion, arguing
that any claim for tortious interference with a contract was barred by the two-year statute
of limitations for such a claim. Dr. Graves did not have a chance to respond to this
statute of limitations argument because the trial court granted the motion for judgment on
the pleadings on the same day that it was filed, November 5, 2012. The trial court’s order
mentioned only Dr. Graves’s alleged failure to state a claim and not the statute of
limitations argument. On December 6, 2012, the trial court denied Dr. Graves’s motion
to correct error. It also denied Dr. Graves’s motion to amend his complaint to more
clearly state a claim against Drs. Kovacs and Ross for tortious interference with a
contract. Dr. Graves now appeals.
Analysis
We review de novo the granting of a motion for judgment on the pleadings under
Indiana Trial Rule 12(C) and will affirm only if it is clear from the face of the pleadings
that one of the parties cannot in any way succeed under the operative facts and
allegations made therein. Waldrip v. Waldrip, 976 N.E.2d 102, 110 (Ind. Ct. App. 2012).
We must view the pleadings in a light most favorable to the non-moving party and with
every allegation construed in his or her favor and, where judgment is sought by a
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defendant, determine whether the complaint is sufficient to constitute any valid claim. Id.When reviewing a Rule 12(C) motion, we may look only at the pleadings and any facts of
which we may take judicial notice, with all well-pleaded material facts alleged in the
complaint taken as admitted. Id. The “pleadings” consist of a complaint and an answer,
a reply to any counterclaim, an answer to a cross-claim, a third-party complaint, and an
answer to a third-party complaint. Fox Dev., Inc. v. England, 837 N.E.2d 161, 164 n.1
(Ind. Ct. App. 2005). “Pleadings” also consist of any written instruments attached to a
complaint, pursuant to Indiana Trial Rule 9.2. LBM Realty, LLC v. Mannia, 981 N.E.2d
569, 576 n.10 (Ind. Ct. App. 2012); see also Ind. Trial Rule 10(C) (“A copy of any
written instrument which is an exhibit to a pleading is a part thereof for all purposes.”).
If a trial court intends to treat a motion for judgment on the pleadings as a motion for
summary judgment by considering materials outside of the pleadings, as permitted by
Trial Rule 12(C), it must give the parties notice that it intends to do so and provide the
parties with a reasonable opportunity to present all pertinent material to the court.
Waldrip, 976 N.E.2d at 110.
Drs. Kovacs and Ross argue that they were not parties to any contracts with Dr.
Graves, based on the attachments to his complaint. They note that the only count of Dr.
Graves’s complaint that mentioned them was captioned “Breach of Contract” and that
they clearly cannot be held liable for breaching a contract where none existed between
them and Dr. Graves. Dr. Graves insists that the facts alleged in that count of the
complaint are sufficient to state a claim for tortious interference with a contract—i.e., one
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between Dr. Graves and Clarian/IU Health—even though it was not so captioned. Drs.
Kovacs and Ross do not argue that the facts pled by Dr. Graves were insufficient to state
a claim for tortious interference with a contract.
The practical effect of Drs. Kovacs and Ross’s motion for judgment on the
pleadings was the same as a motion to dismiss for failure to state a claim under Indiana
Trial Rule 12(B)(6). See McCall v. State of Indiana Dep’t of Nat. Res. Div. of Forestry,
821 N.E.2d 924, 926 (Ind. Ct. App. 2005) (noting, “Like a Trial Rule 12(B)(6) motion to
dismiss, a Trial Rule 12(C) motion attacks the legal sufficiency of the pleadings.”), trans.
denied. Under that rule, as well as Indiana Trial Rule 8 governing notice pleading, a
pleading does not have to adopt a specific legal theory of recovery to be adhered to
throughout the case. Shields v. Taylor, 976 N.E.2d 1237, 1244 (Ind. Ct. App. 2012). A
complaint also does not have to explicitly state all the elements of a cause of action. Id.
at 1245. Under notice pleading, the sufficiency of a complaint depends upon whether the
opposing party has been adequately notified concerning the operative facts of a claim so
as to be able to prepare to meet it. Id. “A complaint’s allegations are sufficient if they
put a reasonable person on notice as to why a plaintiff sues.” Id. Additionally, notice
pleading was adopted in Indiana to discourage battles over the mere form of statements.
Id. at 1244. Indiana Trial Rule 8(F) explicitly provides that “all pleadings shall be so
construed as to do substantial justice, lead to disposition on the merits, and avoid
litigation of procedural points.” Indiana courts prefer to “treat pleadings according to
their content rather than their caption.” Campbell v. Eckman/Freeman & Associates, 670
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N.E.2d 925, 929 (Ind. Ct. App. 1996), trans. denied. A complaint is sufficient and should
not be dismissed so long as it states any set of allegations, no matter how unartfully
pleaded, upon which the plaintiff could be granted relief. Buchanan ex rel. Buchanan v.
Vowell, 926 N.E.2d 515, 519 (Ind. Ct. App. 2010).
The elements of a cause of action for tortious interference with a contract are: “(1)
the existence of a valid and enforceable contract; (2) the defendant’s knowledge of the
existence of the contract; (3) the defendant’s intentional inducement of the breach of
contract; (4) the absence of justification; and (5) damages resulting from the defendant’s
wrongful inducement of the breach.” Bragg v. City of Muncie, 930 N.E.2d 1144,
1147 (Ind. Ct. App. 2010). Here, we believe the second amended complaint sufficiently
put Drs. Kovacs and Ross on notice that they were alleged to have acted wrongfully and
intentionally in helping to bring about the termination of Dr. Graves’s contractual
privileges at Clarian/IU Health. Thus, the facts alleged in the complaint adequately
stated a claim for tortious interference with a contract—something that Drs. Kovacs and
Ross do not refute.
As for the fact that the caption for this count of the complaint only referred to
“Breach of Contract,” and not tortious interference with a contract, we do not believe that
should have been fatal to Dr. Graves’s complaint. The Seventh Circuit addressed a
similar issue in Daniels v. USS Agri-Chemicals, a Div. of U.S. Diversified Group, 965
F.2d 376 (7th Cir. 1992). In that case, the court addressed a diversity lawsuit for wrongful
death that was filed in Illinois, in which the complaint specifically cited Illinois law as the
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basis for the lawsuit. However, it was later determined that the cause of action was
governed by Indiana law, which had different procedural prerequisites for a wrongful
death action than Illinois law. Nonetheless, the Seventh Circuit concluded that the
factual allegations in the complaint adequately stated a claim under Indiana law and was
not subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) simply because it
incorrectly cited Illinois law as the basis for the suit. Daniels, 965 F.2d at 382. The court
specifically held that under either Indiana or federal jurisprudence, the erroneous
invocation of Illinois law did not “affect the gravamen of [the] complaint.” Id. The court
went so far as to hold that “‘specifying an incorrect theory is not fatal’” to a complaint.
Id. at 381 (quoting Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992)); see
also Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir. 1992) (holding “a
complaint sufficiently raises a claim even if it points to no legal theory or even if it points
to the wrong legal theory as a basis for that claim . . . .”).
Here, Dr. Graves’s failure to mention tortious interference with a contract as a
theory of recovery against Drs. Kovacs and Ross does not change the fact that the
allegations of the complaint are sufficient to state a cause of action for that tort. Shortly
after the Indiana Supreme Court adopted the Indiana Trial Rules and the concept of
notice pleading, it stated:
It must be remembered that our new rules are based on so-
called notice pleadings in which a plaintiff essentially need
only plead the operative facts involved in the litigation. Other
means less drastic than dismissal of the action can be used to
clarify the theory and basis for the cause of action. Among
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these are a Motion for a more definite statement under TR.
12(E), our very broad discovery rules, and the pre-trial
conference under TR. 16(A)(1).
State v. Rankin, 260 Ind. 228, 231, 294 N.E.2d 604, 606 (1973). Applying those
principles here, and acknowledging the second amended complaint was possibly
unartfully drafted, judgment on the pleadings in favor of Drs. Kovacs and Ross was not
warranted.
On appeal, Drs. Kovacs and Ross reiterate their claim that even if the complaint
adequately states a claim for tortious interference with a contract, that claim is barred by
the statute of limitations. Drs. Kovacs and Ross contend that the claim is governed by a
two-year statute of limitations, which Dr. Graves does not dispute. See C&E Corp. v.
Ramco Indus., Inc., 717 N.E.2d 642, 644 (Ind. Ct. App. 1999). Drs. Kovacs and Ross
argue that Dr. Graves had to file his claim against them no later than August 1, 2011, or
two years after Clarian/IU Health terminated his privileges. Thus, they assert that
because the second amended complaint, which was the first to name Drs. Kovacs and
Ross as defendants, was not filed until March 7, 2012, it was untimely for purposes of a
tortious interference with a contract claim.
We believe it is premature to address the statute of limitations question. Before
the trial court, Drs. Kovacs and Ross did not raise the issue of the statute of limitations
until November 5, 2012, when they filed their reply to Dr. Graves’s response to the
motion for judgment on the pleadings. The trial court granted the motion for judgment
on the pleadings that same day, thus giving Dr. Graves no opportunity to make any
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response to the statute of limitations argument. The trial court’s order granting the
motion made no mention of the statute of limitations argument, and so Dr. Graves’s
motion to correct error and to file a third amended complaint also made no reference to
that argument.
As a general rule, a plaintiff does not have to anticipate a statute of limitations
defense in his or her complaint and should be given adequate opportunity to provide facts
and argument in response to the raising of a statute of limitations defense. See, e.g.,
Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986). We also note that Dr.
Graves filed his original third-party complaint against Clarian/IU Health on November
30, 2010, or within the limitations period argued by Drs. Kovacs and Ross. When a
defendant has been added to a complaint, whether the amended complaint relates back to
date of the filing of the original complaint under Indiana Trial Rule 15(C) for statute of
limitations purposes generally should not be resolved by a motion to dismiss under Trial
Rule 12 as opposed to a motion for summary judgment under Trial Rule 56. See
Lamberson v. Crouse, 436 N.E.2d 104, 106 (Ind. Ct. App. 1982). In sum, we conclude
that Dr. Graves was not given adequate opportunity before the trial court to address the
statute of limitations issue, and we offer no opinion on the merits of that issue at this
time.
Conclusion
We reverse the granting of judgment on the pleadings in favor of Drs. Kovacs and
Ross and remand for further proceedings consistent with this opinion.
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Reversed and remanded.
NAJAM, J., and BAILEY, J., concur.
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