FOR PUBLICATION

ATTORNEYS FOR APPELLANT:

DUSTIN D. STOHLER

MARIETTO MASSILLAMANY

DECA Financial Services, LLC

Fishers, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DECA FINANCIAL 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, Judge
2

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

of Indiana, 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 that 

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:

ASSIGNMENT OF INSURANCE BENEFITS/PROMISE TO PAY:

I hereby assign and authorize payment directly 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, organization, 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 services 

and benefits. I further agree that this assignment will not be withdrawn or 
3

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 that 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 collection, 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 responsible 

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 balance 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 

October 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 [Emergency 

Medicine], a separate entity from Dupont Hospital, 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 we 
4

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 clear, plain, and 

unambiguous 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 explicitly authorize 

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 the record reveals that 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 construed.

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 authorized to recover attorney’s fees for non-payment 

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

context of Paragraph 1, which states: “I hereby assign and authorize payment directly to 

the Facility, and to any facility-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 provisions of that paragraph. Nothing in the language of Paragraph 1 indicates an intent 

to make Emergency Medicine 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.