## FOR PUBLICATION

ATTORNEY S FOR APPELLANT :

DUSTIN D. STOHLER MARIETTO MASSILLAMANY DECA Financial Services, LLC Fishers , Indiana



## IN THE

COURT OF APPEALS OF INDIANA

DECA FI NA N CIAL SERVICES, LLC
, ) ) Appellant

- Plaintiff, ) )

vs. ) No. 02A04

- 1311

- SC

- 595 ) TINA GRAY
, ) ) Appellee

- Defendant. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Jennifer L. DeGroote
, Magistrate Cause No. 02D01

- 1307

- SC

- 13917

June 20, 2014

OPINION

- FOR PUBLICATION

BRADFORD , Judge2 CASE SUMMARY
Appellant

- Plaintiff DECA Financial Services, LLC (“DECA”) appeals the trial
court’s denial of attorney’s fees as part of its small claims judgment against Appellee

Defendant Tina Gray. DECA is the assignee of debt owed by Gray to Emergency Medicine

of Ind iana, PC (“Emergency Medicine”) for medical services rendered while Gray was a
patient at Dupont Hospital (“Dupont”). Gray incurred a separate debt to Dupont during
her hospital stay. Gray also entered into an agreement with Dupont that obligated her to

pay attorney’s fees incurred by Dupont in collecting its debt. DECA argues that
Emergency Medicine is a third party beneficiary of this agreement and, therefore, claims
DECA is entitled to attorney’s fees pursuant to the agreement’s terms. We conclude th at
the attorney’s fees provision of the agreement applies only to Dupont and affirm the
judgment of the trial court.

FACTS AND PROCEDURAL HISTORY
On March 10, 2010, Gray received medical services from physicians employed by
Emergency Medicine while she was a patient at Dupont

. During her hospital stay, Gray
and Dupont entered into an agreement (“the Agreement”) that included the following
provisions:

ASSIGN MENT OF INSURANCE BENEFITS/PROMISE TO PAY: I hereby assign and authorize payment direct ly to the Facility, and to any facility

- based physician, all insurance benefits, sick benefits, injury benefits due because of liability of a third

- party, or proceeds of all claims resulting from the liability of a third party, payable by any party, organi zation, et cetera, to or for the patient unless the account for this Facility, outpatient visit or series of outpatient visits is paid in full upon discharge or upon completion of the outpatient series. If eligible for Medicare, I request Medicare service s and benefits. I further agree that this assignment will not be withdrawn or3

voided at any time until the account is paid in full. I understand that I am responsible for any charges not covered by my insurance company [(“Paragraph 1”)]. I understand tha t I am obligated to pay the account of the Facility in accordance with the regular rates and terms of the Facility. If I fail to make payment when due and the account becomes delinquent or is turned over to a collection agency or an attorney for collectio n, I agree to pay all collection agency fees, court costs and attorney’s fees. I also agree that any patient or guarantor overpayments on the above Facility visit may be applied directly to any delinquent account for which I or my guarantor is legally res ponsible at the time of the collection of the overpayment. I consent for the Facility to appeal on my behalf any denial for reimbursement, coverage, or payment for services or care provided to me [(“Paragraph 2”)].
Appellant’s App. p. 13.
Dupont and Emergency Medicine each billed Gray for the respective services they

rendered to Gray during her hospital stay. A balance of $300.07 went unpaid to Emergency

Medicine, and, on June 25, 2013, Emergency Medicine assigned its interest in Gray’ s debt

to DECA for collection. On July 9, 2013, DECA filed a notice of claim against Gray, in
which it sought recovery of the $300.07 bal ance as well as $94.00 in court costs and
$150.00 in attorney’s fees. A small claims trial was held on October 28, 2013, and
, on

Oct ober 31, 2013, the trial court entered judgment against Gray for $300.07 in unpaid
medical bills and $94.00 in court costs. The trial court, however, denied DECA’s request
for $150.00 in attorney’ s fees, finding that the Agreement “ does not give [Emergenc y
Medicine] , a se parate entity from Dupont H ospital, the ability to recover attorney fees.”
Appellant’s App. p. 5.

DISCUSSION AND DECISION

DECA argues that Emergency Medicine is entitled to attorney’s fees pursuant to the
terms of the Agreement. Interpretation of a contract presents a question of law that we4

review de novo. Stewart v. TT Commercial One, LLC , 911 N.E.2d 51, 55 (Ind. Ct. App.
2009). Our goal is to ascertain and effectuate the intent of the parties , and c lear, plain, and
unambiguou s terms are conclusive of that intent. Fetz v. Phillips , 591 N.E.2d 644, 647
(Ind. Ct. App. 1992). Thus, we will not construe clear and unambiguous provisions, nor
will we add provisions not agreed upon by the parties. Id.

We note that Gray did not file an appellee’ s brief in this matter

. When an appellee
fails to submit a brief, we do not undertake the burden of developing arguments for her
, and we apply a less stringent standard of review with respect to showings of reversible

error. Zoller v. Zoller , 858 N.E.2d 124, 126 (Ind. Ct. App. 2006)

. That is, we may reverse

if the DECA establishes prima facie error, which is an error at first sight, on first
appearance, or on the face of it. Id.

As an initial matter, we conclude that the Agreement does not exp licitly authoriz e
Emergency Medicine to recover attorney’s fees. The attorney’s fees provision is contained
in Paragraph 2 and states, “I understand that I am obligated to pay the account of the
Facility .... If I fail to make a payment when due and the account becomes delinquent ...
I agree to pay all collection agency fees, court costs and attorney’s fees.” Appellant’s App.
p. 13 (emphasis added). DECA does not dispute that Dupont is “ the Facility” provided for
in the Agreement, and t he record reveals t hat Dupont and Emergency Medicine maintained

separate accounts

. The plain language of Paragraph 2 , therefore, only authorizes Dupont’s
recovery of attorney’ s fees.
DECA claims Emergency Medicine is entitled to recover attorney’s fees as a third
party beneficiary of the Agreement. For a contract to be enforceable by a third party,5

it must clearly appear that it was the purpose or a purpose of the contract to impose an obligation on one of the contracting parties in favor of the third party. It is not enough that performance of the contract would be of benefit to the third party. It must appear that it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed. The intent of the contracting parties to bestow rights upon a third party must affirmatively appear from the language of the instrument when properly interpreted and constru ed.
Cain v. Griffin , 849 N.E.2d 507, 514 (Ind. 2006)

.
DECA asserts that Emergency Medicine’s employees are “facility

- based
physicians” and that Gray and Dupont’s intent to make Emergency Medicine a third party
beneficiary of the attorney’s fees provision is evidenced by the inclusion of “facility

- based
physicians” in Paragraph 1. Specifically, DECA contends that, because “Gray agrees to
authorize payment ‘directly to ... any facility

- based physicians ’” in Paragraph 1,
Emergency Medicine is inherently autho rized to recover attorney’s fees for non

- payment
under Paragraph 2. Appellant’s Br. p. 7. We disagree. DECA’s contention overlooks the

conte xt of Paragraph 1, which states: “I hereby assign and authorize payment directly to
the Facility, and to any fac ility

- based physician, all insurance benefits

.... ” Appellant’s
App. p. 13 (emphasis added). Thus, even if we were to conclude that Emergency Medicine
is a third party beneficiary under Paragraph 1
, its third party benefits would be limited to
the provision s of that paragraph . Nothing in the language of Paragraph 1 indicates an intent
to make Emergency Medic ine a third party beneficiary under Paragraph 2. Therefore, we
conclude that the Agreement does not entitle Emergency Medicine to attorney’s fees.

The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.