                                                                           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

                                              7
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

                                               9
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.

                                            10
      Reversed and remanded.

NAJAM, J., and BAILEY, J., concur.




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