MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                     Apr 29 2016, 9:19 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of                                          Court of Appeals
                                                                           and Tax Court

establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
ATTORNEYS FOR STEVEN SAMS                                ATTORNEYS FOR PLANNED
Jon R. Pactor                                            PARENTHOOD OF INDIANA, INC.
Indianapolis, Indiana                                    Pamela J. Hensler
Steven Sams                                              Samantha A. Salisbury
Fishers, Indiana                                         Clendening Johnson & Bohrer P.C.
                                                         Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Farr,                                           April 29, 2016
Nominal Appellant-Plaintiff,                             Court of Appeals Case No.
                                                         49A02-1502-PL-101
        v.                                               Appeal from the Marion Circuit
                                                         Court
New Life Associates, P.C. and                            The Honorable Sheryl Lynch,
Planned Parenthood of Indiana,                           Judge
Inc.,                                                    The Honorable Mark A. Jones,
Appellees-Defendants.                                    Commissioner
                                                         Trial Court Cause No.
Steven Sams,                                             49C01-1210-PL-38223
Appellant.




Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016          Page 1 of 13
                                    Case Summary and Issues
[1]   Jennifer Farr filed a complaint against Planned Parenthood of Indiana, Inc.

      (“Planned Parenthood”) alleging public disclosure of private facts, breach of

      physician-patient privilege, negligent infliction of emotional distress, and

      negligent supervision after Planned Parenthood released her medical records to

      the Putnam County Prosecutor’s Office pursuant to a subpoena duces tecum

      issued by the Putnam Superior Court. The trial court granted summary

      judgment in favor of Planned Parenthood. Thereafter, Planned Parenthood

      filed a motion for attorney’s fees, arguing Farr’s claims were “frivolous,

      unreasonable, or groundless” under Indiana Code section 34-52-1-1(b). The

      trial court granted Planned Parenthood’s motion and ordered Farr’s attorney,

      Steven Sams, to pay $11,145.00 in attorney’s fees.


[2]   Sams appeals the trial court’s order awarding attorney’s fees, raising two issues:

      (1) whether Planned Parenthood waived its claim for attorney’s fees, and (2)

      whether the trial court erred in concluding Farr’s claims were “frivolous,

      unreasonable, or groundless.”1 Finding no error, we affirm the trial court’s

      order awarding attorney’s fees to Planned Parenthood.




      1
          Neither Farr nor New Life Associates, P.C. is participating in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016   Page 2 of 13
                              Facts and Procedural History
[3]   In 2010, Farr received medical treatment at a Planned Parenthood facility. She

      was prosecuted for perjury in Putnam County the following year. During the

      course of the criminal proceeding, the Putnam County Prosecutor’s Office

      requested the Putnam Superior Court issue a subpoena duces tecum ordering

      Planned Parenthood to produce “any and all medical records of Jennifer A.

      Farr.” Appendix at 67. The Putnam Superior Court granted the prosecutor’s

      request and issued the subpoena. Planned Parenthood produced Farr’s medical

      records in compliance with this court order.


[4]   Thereafter, in 2012, Farr filed a complaint against Planned Parenthood alleging

      public disclosure of private facts, breach of physician-patient privilege, negligent

      infliction of emotional distress, and negligent supervision. In its answer,

      Planned Parenthood maintained, “Plaintiff’s claims against Defendant are

      frivolous, unreasonable, or groundless in accord with I.C. § 34-52-1-4, and

      Defendants are entitled to recover their attorney’s fees incurred in the defense

      hereof.” Id. at 30.2 Planned Parenthood later moved for summary judgment.

      In her response to Planned Parenthood’s motion for summary judgment, Farr

      voluntarily abandoned her claim for negligent supervision. As for the




      2
        It appears Planned Parenthood inadvertently cited Indiana Code section 34-52-1-4, concerning relators,
      rather than Indiana Code section 34-52-1-1, which provides the General Recovery Rule. See Appellee’s Brief
      at 3 n.1. Nonetheless, we conclude the answer provided sufficient notice that Planned Parenthood
      considered Farr’s lawsuit “frivolous, unreasonable, or groundless,” such that it would request the trial court
      to award attorney fees in its favor.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016              Page 3 of 13
      remaining claims, the trial court concluded Planned Parenthood was entitled to

      summary judgment because it was undisputed Planned Parenthood produced

      Farr’s medical records pursuant to a court order.


[5]   Although the Health Insurance Portability and Accountability Act of 1996

      (“HIPAA”) generally requires covered entities to obtain patient authorization

      before disclosing protected health information, 45 C.F.R. § 164.508(a), it

      permits disclosure without patient authorization if the disclosure is in response

      to a subpoena or court order:

              (e) Standard: Disclosures for judicial and administrative
              proceedings.
                     (1) Permitted disclosures. A covered entity may disclose
                     protected health information in the course of any judicial
                     or administrative proceeding:
                            (i) In response to an order of a court or
                            administrative tribunal, provided that the covered
                            entity discloses only the protected health
                            information expressly authorized by such order; or
                            (ii) In response to a subpoena, discovery request, or
                            other lawful process, that is not accompanied by an
                            order of a court or administrative tribunal, if [t]he
                            covered entity receives satisfactory assurance . . .
                            from the party seeking the information that
                            reasonable efforts have been made by such party to
                            ensure that the individual who is the subject of the
                            protected health information that has been
                            requested has been given notice of the request . . . .




      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016   Page 4 of 13
      45 C.F.R. § 164.512(e)(1). The trial court concluded HIPAA entitled Planned

      Parenthood to judgment as a matter of law, but it also concluded Farr’s claims

      failed regardless of HIPAA:


               8.       The public disclosure of private facts, alleged by Plaintiff
                        as a cause of action in Count I of her complaint, is not a
                        recognized cause of action in Indiana.[3]

               9.       Regarding the physician-patient privilege, alleged as a
                        basis of Defendants’ liability in Count II of her
                        Complaint[, t]here is no designated evidence that a
                        physician violated Ms. Farr’s physician-patient privilege.[4]

               10.      There is no designated evidence of a physical impact
                        necessary to support Count III of Ms. Farr’s Complaint
                        alleging negligent infliction of emotional distress.[5]


      App. at 92-93.


[6]   The trial court granted summary judgment in favor of Planned Parenthood on

      January 13, 2014. The order granting summary judgment did not award

      attorney’s fees or costs to Planned Parenthood. Then, on or around March 21,




      3
       Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 (Ind. 2001) (stating Indiana courts do not recognize public
      disclosure of private facts as a cause of action).
      4
        Watters v. Dinn, 633 N.E.2d 280, 287 (Ind. Ct. App. 1994) (“The physician-patient privilege does not apply
      to hospitals but only applies to ‘physicians’ licensed to practice medicine.”), trans. denied.
      5
        Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991) (holding a plaintiff is entitled to maintain an action
      to recover for negligent infliction of emotional distress where she “sustains a direct impact by the negligence
      of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature
      and of a kind and extent normally expected to occur in a reasonable person”).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016                Page 5 of 13
      2014, Planned Parenthood filed a motion for attorney’s fees,6 arguing Farr’s

      claims were “frivolous, unreasonable, or groundless” under Indiana Code

      section 34-52-1-1(b).


[7]   Farr filed a response to Planned Parenthood’s motion for attorney’s fees, which

      included as an exhibit Planned Parenthood’s verified affidavit for attorney’s

      fees—a seven-page, itemized list of the fees Planned Parenthood incurred in

      defending the action, totaling $15,500.00. The trial court held a hearing on the

      matter and awarded $11,145.00 in attorney’s fees to Planned Parenthood, to be

      paid by Sams. In its written order, the trial court concluded the entire action

      was “frivolous, unreasonable, or groundless” because Farr did not dispute

      Planned Parenthood produced her medical records pursuant to a court order,

      and HIPAA “clearly and unequivocally permitted the disclosure of Ms. Farr’s

      records pursuant to court order.” App. at 120-21. The trial court also noted

      Planned Parenthood included a claim for attorney’s fees in its answer. Sams

      subsequently filed a motion to correct error challenging the award of attorney’s

      fees, which the trial court denied. This appeal followed.




      6
       It unclear from the record when exactly Planned Parenthood filed this motion. In its order awarding
      attorney’s fees to Planned Parenthood, the trial court noted,
            The Motion bears a barely-legible file stamp of 3/21/14 and contains a certificate of service of
            the same date, but it was not entered into the CCS until 4/29/14, and that entry indicates it was
            filed on 3/31/14 pursuant to T.R. 5(F), though the U.S. postage stamp indicates it was mailed
            on March 21, 2014.
      App. at 120.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016             Page 6 of 13
                                    Discussion and Decision
                                        I. Standard of Review
[8]   Appellate review of a trial court’s award of attorney’s fees pursuant to Indiana

      Code section 34-52-1-1(b) proceeds in three steps. Smyth v. Hester, 901 N.E.2d

      25, 33 (Ind. Ct. App. 2009), trans. denied. First, we review the trial court’s

      findings of fact for clear error. Id. In doing so, we neither reweigh the evidence

      nor judge the credibility of witnesses. Id. We review only the evidence and

      reasonable inferences that support the trial court’s findings. Id. Second, we

      review de novo any legal conclusions on which the trial court based its decision.

      Id. Third, we review the trial court’s decision to award attorney’s fees and the

      amount thereof for abuse of discretion. Id. at 33-34.7 “A trial court has abused

      its discretion if its decision clearly contravenes the logic and effect of the facts

      and circumstances or if the court has misinterpreted the law.” R.L. Turner Corp.

      v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012).8


                                                    II. Waiver
[9]   In Indiana, a party generally must pay her own attorney’s fees absent an

      agreement between the parties, a statute, or other rule to the contrary. Id. at




      7
          Sams does not challenge the amount of attorney’s fees awarded.
      8
        In his brief, Sams cites Walker v. Pillion, 748 N.E.2d 422, 427 (Ind. Ct. App. 2001), for the proposition that
      this court must “‘use extreme restraint due to the potential chilling effect upon the exercise of the right to’
      access the courts.” Brief of Appellant at 4. Walker concerned the imposition of appellate attorney’s fees,
      however, not our review of a trial court’s award of attorney’s fees.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016                 Page 7 of 13
       458. One such statute is Indiana Code section 34-52-1-1(b), which permits a

       trial court to award attorney’s fees to a prevailing party if the court finds the

       losing party advanced a “frivolous, unreasonable, or groundless” claim. Sams

       contends Planned Parenthood waived its claim for attorney’s fees by filing its

       motion more than thirty days after the entry of a final judgment that did not

       include “costs.” He argues Planned Parenthood had thirty days to file a motion

       to correct error to challenge the absence of “costs” in the judgment and the trial

       court improperly amended the final judgment by awarding “costs” after thirty

       days had passed. Br. of Appellant at 4; see also Ind. Trial Rule 59(C).


[10]   We disagree. “Indiana courts have always understood ‘costs’ as a term of art

       that includes filing fees and statutory witness fees but does not include

       attorneys’ fees.” R.L. Turner Corp., 963 N.E.2d at 458. An award of “costs”

       therefore has no bearing on a party’s request for attorney’s fees. See id. at 459.

       Moreover, because “[a] petition for fees does not disturb the merits of an earlier

       judgment or order,” it does not implicate Indiana Trial Rule 59 or the time limit

       contained therein. Id. at 459-60; see also White v. N.H. Dep’t of Emp’t Sec., 455

       U.S. 445, 450-52 (1982) (holding a petition for attorney’s fees under 42 U.S.C. §

       1988 is not governed by the provisions of Federal Rule 59 because a request for

       attorney’s fees “raises legal issues collateral to the main cause of action”).


[11]   Indiana Code section 34-52-1-1(b) does not include a time limit for requesting

       attorney’s fees, but our supreme court has held “trial courts must use their

       discretion to prevent unfairness to parties facing petitions for fees.” R.L. Turner

       Corp., 963 N.E.2d at 460. Although a request for attorney’s fees is generally not

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016   Page 8 of 13
       ripe for consideration until a party has prevailed, an “extremely tardy” request

       will likely fall on deaf ears due to lack of notice. Id. In R.L. Turner Corp., our

       supreme court held a request for attorney’s fees filed roughly two months after

       entry of final judgment was not unfair because the prevailing party requested

       attorney’s fees in three separate motions and warned the losing party of its

       intention to request fees in two letters. Id. Likewise, in Kintzele v. Przybylinski,

       670 N.E.2d 101 (Ind. Ct. App. 1996), the prevailing parties included a claim for

       attorney’s fees in their original answer but omitted the claim in their amended

       answer. The defendants moved for summary judgment on August 18, 1993, but

       the plaintiffs dismissed the action prior to the hearing on that motion. Then, on

       March 17, 1994, the defendants filed a motion for attorney’s fees. Concluding

       the defendants had waived their claim for attorney’s fees, the trial court denied

       the request. We held the trial court erred in determining their claim for

       attorney’s fees was waived and remanded the case for a determination on the

       merits. Id. at 104.


[12]   Planned Parenthood raised the issue of attorney’s fees in its answer filed on

       January 14, 2013. During a hearing on March 3, 2013, the trial court asked

       Sams to explain how the court order impacted Farr’s claims, but Sams stated he

       was not prepared to discuss this issue. Ultimately, the trial court granted

       summary judgment in favor of Planned Parenthood on this basis, and Planned

       Parenthood filed a motion for attorney’s fees approximately two months later.

       Sams filed a response on behalf of Farr, and the trial court held a hearing on the

       matter prior to granting Planned Parenthood’s request. Notwithstanding this


       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016   Page 9 of 13
       sequence of events, Sams contends the award of attorney’s fees was unfair and

       unexpected because “Planned Parenthood did not send a stream of warnings in

       letters or e-mails about a claim for sanctions as there were in R.L. Turner Corp.”

       Br. of Appellant at 7.


[13]   First, we do not read R.L. Turner. Corp. as mandating a requirement for a

       “stream of warnings” from the later-prevailing party. In fact, attorney’s fees

       may be awarded even if the issue was not raised prior to final adjudication. See

       Boyer Constr. Grp. Corp. v. Walker Constr. Co., Inc., 44 N.E.3d 119, 123-24 (Ind.

       Ct. App. 2015). Second, we do not agree the award of attorney’s fees was

       unexpected in this case. Planned Parenthood asserted a claim for attorney’s

       fees in its answer, and its motion for attorney’s fees can hardly be considered

       “extremely tardy.” R.L. Turner Corp., 963 N.E.2d at 460. It was filed only two

       months after the final judgment. See id. (holding a request for attorney’s fees

       filed two months after entry of final judgment was not unfair). In addition, Farr

       and Sams were given an opportunity to defend against Planned Parenthood’s

       motion during a hearing. See Boyer Constr. Grp. Corp., 44 N.E.3d at 124 (noting

       a party’s opportunity to defend against the request for attorney’s fees during a

       hearing); Evergreen Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337,

       339 n.3 (Ind. Ct. App. 2013) (same). Under these circumstances, we fail to see

       how Sams suffered any unfairness.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016   Page 10 of 13
                                III. Award of Attorney’s Fees
[14]   Sams further contends Farr’s claims were not “frivolous, unreasonable, or

       groundless” under Indiana Code section 34-52-1-1(b) and the trial court failed

       to explain why it considered her claims to be “frivolous, unreasonable, or

       groundless.” A claim is frivolous if “the lawyer is unable to make a good faith

       and rational argument on the merits.” Kopka, Landau & Pinkus v. Hansen, 874

       N.E.2d 1065, 1074 (Ind. Ct. App. 2007) (citation omitted). A claim is

       unreasonable if, “based on a totality of the circumstances, including the law and

       facts known at the time of the filing, no reasonable attorney would consider that

       the claim or defense was worthy of litigation or justified.” Id. at 1075. A claim

       is groundless if “no facts exist which support the legal claim relied on and

       presented by the losing party.” Id.


[15]   Sams claims our decisions in J.H. v. St. Vincent Hosp. & Health Care Ctr., Inc., 19

       N.E.3d 811 (Ind. Ct. App. 2014), and Walgreen Co. v. Hinchy, 21 N.E.3d 99

       (Ind. Ct. App. 2014), trans. denied, support the theories he advanced on behalf of

       Farr, but we fail to see how either case is relevant here. Neither case concerns

       HIPAA or the disclosure of medical information pursuant to a court order. The

       trial court concluded Planned Parenthood was entitled to attorney’s fees

       because HIPAA “clearly and unequivocally permitted the disclosure of Ms.

       Farr’s records pursuant to court order.” App. at 121. The pertinent HIPAA

       provision states a covered entity such as Planned Parenthood may disclose

       protected health information in response to a court order, without the patient’s

       knowledge, provided the covered entity discloses only the information expressly

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016   Page 11 of 13
       authorized by the court order. Compare 45 C.F.R. § 164.512(e)(1)(i), with 45

       C.F.R. § 164.512(e)(1)(ii) (requiring the covered entity receive “satisfactory

       assurance” that reasonable efforts have been made to notify the patient where

       the covered entity receives a subpoena unaccompanied by a court order).


[16]   The court order in this case directed Planned Parenthood to disclose “any and

       all medical records of Jennifer A. Farr,” which Planned Parenthood did

       without first notifying Farr. App. at 67. Sams argued this action may have

       entitled Farr to relief under state law even if Planned Parenthood did not violate

       HIPAA because HIPAA does not preempt state law claims. In fact, HIPAA

       does preempt state law unless a “provision of State law relates to the privacy of

       individually identifiable health information and is more stringent than a

       standard, requirement, or implementation specification adopted under [45

       C.F.R. § 164.500-.534].” 45 C.F.R. § 160.203(b); see also Planned Parenthood of

       Ind. v. Carter, 854 N.E.2d 853, 874 n.30 (Ind. Ct. App. 2006); In re A.H., 832

       N.E.2d 563, 568 (Ind. Ct. App. 2005). Yet, Sams at no point identified a

       provision of Indiana law more stringent than the HIPAA provisions at issue.9




       9
         Sams cites Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), for the proposition that HIPAA does
       not preempt state law claims, but in that case, the court was discussing a particular Illinois statute that
       created a state-law privilege “more stringent than any federal privilege regarding medical records.” Id. at 925
       (citing 735 Ill. Comp. Stat. 5/8-802). Ultimately, the court held HIPAA does not create a federal physician-
       patient privilege, nor impose state evidentiary privileges on suits to enforce federal law:
             All that 45 C.F.R. § 164.512(e) should be understood to do, therefore, is to create a procedure
             for obtaining authority to use medical records in litigation. Whether the records are actually
             admissible in evidence will depend among other things on whether they are privileged. And the
             evidentiary privileges that are applicable to federal-question suits are given not by state law but
             by federal law, Fed. R. Evid. 501, which does not recognize a physician-patient (or hospital-
             patient) privilege.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016              Page 12 of 13
       He argued common-law tort claims could provide greater protection, but the tort

       claims he asserted fail regardless of HIPAA. See supra notes 3-5; App. at 92-93.

       For these reasons, we conclude the trial court provided adequate explanation in

       its order awarding attorney’s fees to Planned Parenthood and did not err in

       determining Farr’s claims were “frivolous, unreasonable, or groundless” under

       Indiana Code section 34-52-1-1(b).



                                                Conclusion
[17]   The trial court did not err in concluding Planned Parenthood was entitled to

       attorney’s fees under Indiana Code section 34-52-1-1(b). We therefore affirm

       the trial court’s order awarding attorney’s fees to Planned Parenthood.


[18]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Id. at 925-26.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-PL-101 | April 29, 2016   Page 13 of 13
