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
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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.

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 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 

 

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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 (7

th 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 socalled 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.