Butler v. Symmergy Clinic, PC

• Decision Date: 15 October 2020
• Docket Number: Court of Appeals Case No. 20A-CC-904
• Citation: 158 N.E.3d 407
• Parties: Ericka BUTLER, Appellant-Defendant, v. SYMMERGY CLINIC, PC, Appellee-Plaintiff
• Court: Indiana Appellate Court

158 N.E.3d 407

Ericka BUTLER, Appellant-Defendant,

v.SYMMERGY CLINIC, PC, Appellee-Plaintiff

Court of Appeals Case No. 20A-CC-904

Court of Appeals of Indiana.

Filed October 15, 2020

Appellant Pro Se: Ericka Butler, Indianapolis, Indiana

Attorney for Appellee: Richard B. Gonon, Indianapolis, Indiana

May, Judge.

[1] Ericka Butler appeals the trial court's entry of summary judgment in favor of Symmergy Clinic, PC. She raises one issue on appeal, which we revise and restate as whether the trial court erred in granting Symmergy's combined motion for summary judgment on its claim against Butler and Butler's counterclaims against Symmergy. We affirm in part, reverse in part, and remand.

Facts and Procedural History¹

[2] Butler was involved in an automobile accident in August 2014, and her family doctor referred her to Symmergy, an Indianapolis chiropractic clinic. Butler sought treatment at the clinic for neck pain and headaches, which injuries Butler attributed to her automobile accident. Butler was also pregnant at the time and experienced back pain. Tina,² a Symmergy employee, told Butler that Symmergy "could not submit the bills to [Butler's health insurer] as this involved a motor vehicle accident." (App. Vol. II at 100.) Tina did explain to Butler that Symmergy would seek to receive payment through Butler's automobile insurance medical payment coverage. Butler then signed a "Doctor's Lien" document, which provided, "I fully understand that I am directly and fully responsible to said doctor for all medical bills submitted by him for services rendered to me and that agreement is made [illegible.]" (Id. at 67.) At the same time, Symmergy presented Butler with a brochure labeled Important Information About Insurance and Scheduled Appointments, which stated:

We offer you the convenient courtesy of submitting your insurance claims for any covered insurance benefit. You will be asked to remit only the set co-pay or co-insurance that is determined by your insurance provider at the time of service.

For any services that you have chosen to have administered but are not covered by your insurance policy, as with so many things in life, you are responsible for the cost of your care.

Insurance can be a confusing and sometimes frustrating realm. We will help you in any way we are able but encourage you to call your insurance carrier or our billing service and find out for yourself what coverage they offer for your individual plan.

(Id. at 105.) Neither the Doctor's Lien nor the brochure referenced an office policy whereby Symmergy refused to submit claims to health insurers for treatment provided to bodily injury patients.

[3] Beginning in November 2014, Dr. Kenneth Golden, a licensed chiropractor at Symmergy, treated Butler. In his medical records, Dr. Golden attributed all of Butler's injuries to her automobile accident, even though he told Butler that he could not determine if her back pain was caused by her pregnancy or the accident. Even though Butler's headaches and neck pain subsided in January 2015, Dr. Golden "specifically advised [her] that since he could not do x-rays to determine if any of the back pain was associated with the auto accident, that [she] had to continue treatment, or the insurance company would hold the break in treatment against [her]." (Id. at 101.) Butler's automobile insurance medical payment coverage was exhausted by the time she began treatment at Symmergy, and therefore, her automobile insurance did not pay any of the medical bills from Symmergy. Nonetheless, Symmergy refused to submit its bills to Butler's health insurance company. In January 2016, Symmergy released Butler from treatment and placed her on a "maintenance" program. (Id. ) Symmergy then began to bill Butler's health insurer. Symmergy did not provide Butler with copies of her medical records or health insurance claim forms until well after she completed her treatment.

[4] On February 2, 2018, Symmergy filed a complaint in Marion Superior Court alleging Butler owed $9,295.00 in unpaid medical bills. Symmergy later amended its complaint to name Brett Osborne and Hocker & Associates, LLC (collectively, "H & A"), Butler's attorneys from the personal injury action stemming from the August 2014 automobile accident, as additional defendants. Symmergy alleged H & A failed to honor a letter of protection Symmergy sent to the firm. In her answer to the amended complaint, Butler asserted as an affirmative defense that her execution of the Doctor's Lien was obtained by fraud. Butler also filed a series of counterclaims alleging fraud, breach of fiduciary duty, unfair trade practices, and breach of contract. H & A also filed a counterclaim asserting Symmergy's claims against the firm were frivolous.

[5] Symmergy filed a combined motion for summary judgment seeking judgment on its claims against Butler and Butler's counterclaims. Butler and H & A filed a joint memorandum of law in opposition to Symmergy's combined motion for summary judgment. The court granted Symmergy's combined motion for summary judgment on August 22, 2019, and Butler and H & A subsequently filed a motion to correct error.³ The trial court did not rule on the motion to correct error, and the motion was thus deemed denied pursuant to Trial Rule 53.3(A).⁴

Discussion and Decision

[6] We apply the same standard as the trial court when reviewing a grant of summary judgment. Cincinnati Ins. Co. v. Adkins , 935 N.E.2d 190, 192 (Ind. Ct. App. 2010). "[S]ummary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. We consider only the evidentiary material designated by the parties, and we draw all reasonable inferences in favor of the nonmoving party. Gochenour v. CSX Transp., Inc. , 44 N.E.3d 794, 799 (Ind. Ct. App. 2015), trans. denied . "An issue is ‘genuine’ if a trier of fact is required to resolve the truth of the matter; a fact is ‘material’ if its resolution affects the outcome of the case."

Henderson v. Kleinman , 103 N.E.3d 683, 686 (Ind. Ct. App. 2018) (quoting Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014) ). A self-serving affidavit is sufficient to preclude summary judgment if it demonstrates there are material facts in dispute, but a self-serving affidavit will not preclude summary judgment if it merely disputes a legal issue. AM General LLC v. Armour , 46 N.E.3d 436, 441 (Ind. 2015). Summary judgment is not a summary trial, and we err on the side of allowing marginal cases to go to trial rather than short-circuiting potentially valid claims. Chmiel v. US Bank Nat'l Ass'n , 109 N.E.3d 398, 407 (Ind. Ct. App. 2018).

[7] Butler proceeds on appeal pro se. As such, she is held to the same legal standards as a trained attorney. Lowrance v. State , 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), reh'g denied , trans. denied . Pro se litigants must "follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so." Id.

I. Fraud

[8] Butler argues the trial court erred in granting summary judgment because genuine issues of material fact remain regarding whether Symmergy engaged in fraud. Butler asserts fraud as both an affirmative defense to Symmergy's claims and a cause of action against Symmergy. A contract induced by fraud is voidable. See Wagler v. West Boggs Sewer Dist., Inc. , 980 N.E.2d 363, 378 (Ind. Ct. App. 2012) ("We observe that contracts induced by fraud or duress are voidable."), reh'g denied , trans. denied , cert. denied , 571 U.S. 1131, 134 S.Ct. 952, 187 L.Ed.2d 786 (2014). Fraudulent inducement requires the claimant to prove:

(1) a material representation of past or existing facts which (2) was false, (3) was made with knowledge or reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) proximately caused injury to the complaining party.

Great Lakes Anesthesia, P.C. v. O'Bryan , 99 N.E.3d 260, 272 n.6 (Ind. Ct. App. 2018).

[9] Fraud may also be constructive, which requires proof of similar, but slightly different, elements:

1) a duty owing by the party to be charged to the complaining party due to their relationship; 2) violation of that duty by the making of deceptive material misrepresentations of past or existing facts or remaining silent when a duty to speak exists; 3) reliance thereon by the complaining party; 4) injury to the complaining party as a proximate result thereof; and 5) the gaining of an advantage by the party to be charged at the expense of the complaining party.

Heyser v. Noble Roman's Inc. , 933 N.E.2d 16, 19-20 (Ind. Ct. App. 2010), reh'g denied , trans. denied . A claim for constructive fraud may arise between a buyer and a seller. Mullen v. Cogdell , 643 N.E.2d 390, 401 (Ind. Ct. App. 1994), reh'g denied , trans. denied . "The law recognizes that in a buyer-seller relationship one party may be in the unique possession of knowledge not possessed by the other and may thereby enjoy a position of superiority over the other. The relationship is therefore one which [sic] invokes a duty of good faith and fair dealing." Id. Consequently, both the buyer and the seller each owe "a duty to the other to engage in a course of conduct that represent[s] good faith and fair dealing." Id.

[10] In his affidavit in support of Symmergy's combined motion for summary judgment, Dr. Golden averred that

representatives from [Symmergy] fully disclosed to [Butler] that because she is a bodily injury patient, it is the normal and customary practice for [Symmergy] to submit bills only to her auto insurance carrier, with the understanding that [Symmergy] would receive payments in full under the medical payments/medpay provision of said policy. If payments in full were not received by [Symmergy], then [Butler] would be responsible for said payment per the aforementioned Doctor's Lien.

Furthermore, at said time representatives from [

...