Thomas v. Capital Medical Management Associates, LLC

WRIGHT, J. Appellee, Capital Medical Management Associates, LLC (“CMMA”), provides billing services for medical practices. On March 15, 2005, CMMA entered into a Billing Services Agreement (“Agreement”) with “Capitol Radiology, DBA Laurel Radiology” (“Laurel Radiology”). Dr. Dorianne Thomas, the principal for Capitol Radiology, LLC, signed the Agreement on the signature line for Laurel Radiology. On May 19, 2006, CMMA discontinued providing billing services, alleging breach of contract.

On July 25, 2006, CMMA filed a one-count complaint for breach of contract, in the Circuit Court for Montgomery County, against “Dorianne Thomas, MD d/b/a Capitol Radiolo ⁴⁴⁶ gy and/or Laurel Radiology, and Capitol Radiology, LLC” (collectively, “appellants”). On November 1, 2006, appellants filed an answer and counterclaim, alleging breach of contract, negligent misrepresentation, and constructive fraud. A three-day bench trial was held on March 10-12, 2008. On March 19, 2008, CMMA filed a petition for attorney’s fees, citing an indemnification provision in the Agreement.

On April 14, 2008, the trial court issued an oral opinion, ruling in favor of CMMA and awarding contract damages in the amount of $55,396.83, attorney’s fees in the amount of $119,909.80, and costs in the amount of $4,442.53. Appellants timely appealed. Questions Presented Appellants present four questions, which we have reordered and revised for clarity: 1 1) Did the trial court err in finding that appellants were parties to the Agreement? 2) Did the trial court err in finding that, under the Agreement, appellants had a duty to provide demographics and to perform credentialing? 3) Did the trial court err in awarding appellee contract damages for work that CMMA had not yet performed? 4) Did the trial court err in awarding appellee attorney’s fees pursuant to the Agreement’s indemnification clause? ⁴⁴⁷ We answer the first three questions in the negative, and the last question in the affirmative. As such, we affirm the circuit court’s judgment in part and reverse in part.

Facts In January 2005, Dr. Dorianne Thomas started her own radiology practice and formed Capitol Radiology, LLC, a limited liability company organized under Maryland law. 2 The practice consists of two components: 1) providing radiology services at Laurel Regional Hospital, beginning in February 2005; and 2) providing radiology services at a private office in Laurel, Maryland, beginning in March 2005. Needing assistance in the “start-up process” for her practice, Dr. Thomas hired Snyder, Cohn, Collyer, Hamilton & Associates, P.C. (“Snyder Cohn”), a full-service firm providing management advisory services to businesses. Snyder Cohn directed Dr. Thomas “to look at [CMMAJ as a billing company,” and therefore, Dr. Thomas scheduled an initial meeting with CMMA.

On March 15, 2005, CMMA entered into the Agreement with “Capitol Radiology, DBA Laurel Radiology.” Dr. Thomas signed the Agreement on the line below the name Laurel Radiology, while Jeanne Kohn, the General Manager of CMMA, signed on the line above the name CMMA. Nowhere in the Agreement did it indicate the letters “LLC” after the words “Capitol Radiology” or that Capitol Radiology was a limited liability company. The Agreement stated, in pertinent part: 2. Duties and Responsibilities of CMMA, (a) Based upon the demographic and charge [injformation provided by Capitol Radiology, DBA Laurel Radiology, CMMA shall be responsible for the timely preparation of billing statements and insurance forms---- CMMA will ⁴⁴⁸ review and post charges within 72 hours of receipt from the client.

(b) CMMA shall in a timely manner forward or distribute all billing statements and insurance forms to the appropriate agency, carrier or patient within 72 hours of receipt of charge information. (c) CMMA shall bill on behalf of and under the name of Capitol Radiology, DBA Laurel Radiology, and will assume responsibility for the collection of all accounts receivable----CMMA will post all payments within 48 hours of receipt.... CMMA shall not commingle Capitol Radiology, DBA Laurel Radiology’s funds with its own funds____ (d) CMMA shall post all payments and adjustments to the patient account records and shall provide monthly reports — (e) CMMA shall provide training and support services to the office personnel of Capitol Radiology, DBA Laurel Radiology to assist them in the proper assembly of information for CMMA. (f) If this billing Agreement is terminated, CMMA will at Capitol Radiology, DBA Laurel Radiology’s option, complete all billing activities for services rendered up to and including the termination date.

This will include the resolution of Accounts Receivable balances and collections as needed to complete outstanding work up to 90 days past termination date provided that CMMA is paid for its services in a timely manner and at the prevailing rate. (g) If the relationship between CMMA and Capitol Radiology, DBA Laurel Radiology is terminated, CMMA agrees to cooperate in transferring billing records to the new billing entity, if any. 3. Duties and Responsibilities of Capitol Radiology, DBA Laurel Radiology. Capitol Radiology, DBA Laurel Radiology shall provide to CMMA on a daily or other mutually agreeable basis all of the demographic and charge information necessary to prepare the billing statements and insurance forms that ⁴⁴⁹ CMMA is required to prepare under this Agreement and shall permit employees of CMMA to interface with the office personnel of Capitol Radiology, DBA Laurel Radiology to enable the CMMA employees to obtain this information. 7.

Compensation Capitol Radiology, DBA Laurel Radiology shall pay to CMMA as compensation for the billing services rendered under this Agreement an amount equal to 8.5% of net collections of hospital charges and 7.5% of office charges. CMMA shall bill Capitol Radiology, DBA Laurel Radiology by written invoice on a monthly basis, which invoice shall be payable upon presentation.... 9. Termination and Breach (a) General Breach In the event that either party should be in default in the performance of any material provision of this Agreement, (non-payment of CMMA’s invoice shall be considered a material provision), and such default is not cured within twenty (20) days after receipt of written notice of such default from the other party, the non-defaulting party, at its option, may terminate this Agreement by delivering written notice to such defaulting party within five (5) days after the expiration of said twenty (20) day period. (b) In the event of termination or in the event of discontinuance of CMMA’s business, all records in CMMA’s possession which are the property of Capitol Radiology, DBA Laurel Radiology shall be returned to Capitol Radiology, DBA Laurel Radiology within 30 days of said termination. 10.

Indemnification (a) Capitol Radiology, DBA Laurel Radiology shall indemnify and hold CMMA harmless from and against all claims, demands, costs, expenses, liabilities and losses (including reasonable attorneys’ fees) which may result against CMMA ⁴⁵⁰ as a consequence of: (i) Capitol Radiology, DBA Laurel Radiology, performance of this Agreement, except to the extent caused by the acts or omissions of CMMA; or (ii) which arise out of any alleged medical malpractice, malfeasance or neglect caused by Capitol Radiology, DBA Laurel Radiology, its employees, agents or independent contractors, in connection with the rendering of, or failure to render, any medical or other service to any person. (b) CMMA CMMA shall indemnify and hold Capitol Radiology, DBA Laurel Radiology harmless.... * * sj* 14. Miscellaneous (e) Entire Agreement This Agreement contains the entire understanding among the parties hereto and with respect to the subject matter hereof, supercedes all prior and contemporaneous agreements and understanding, inducements or conditions, express or implied, oral or written, except as herein contained. This Agreement may not be modified or amended other than by an agreement in writing.

CMMA immediately began providing medical billing services for appellants, the business entity created by Dr. Thomas, following the provisions in the Agreement. In May 2006, CMMA terminated the Agreement, alleging that appellants “fail[ed] to provide CMMA with timely information, fail[ed] to compensate CMMA and fail[ed] to take such necessary steps to ensure that the bills processed by CMMA would be paid by the respective insurance company and/or governmental agency.” Procedural History On July 25, 2006, CMMA filed a one-count complaint for breach of contract against appellants, “Dorianne Thomas, MD d/b/a Capitol Radiology and/or Laurel Radiology, and Capitol Radiology, LLC.” On November 1, 2006, appellants filed an ⁴⁵¹ answer as well as a counterclaim, alleging breach of contract, negligent misrepresentation, and constructive fraud. On December 7, 2006, CMMA filed a motion to dismiss Count II (negligent misrepresentation) of appellants’ counterclaim. The court denied that motion on September 25, 2007.

Thereafter, on December 5, 2007, CMMA filed an amended answer to the counterclaim. On January 25, 2008, CMMA filed a motion for summary judgment on all counts. On February 14, 2008, appellants filed a motion for preliminary determination of question of law regarding interpretation of contract, pursuant to Maryland Rule 2-502. Specifically, appellants asked the court to “declare that the Agreement did not require Dr. Thomas to input and format the demographic information,” that “the Agreement is ambiguous as written on this point,” and that “an award of attorney’s fees is not available on a claim of breach of the Agreement.” The court denied appellants’ motion as moot.

On March 10, 2008, the court heard arguments on CMMA’s motion for summary judgment, while appellants orally moved for summary judgment. The court denied both parties’ motions and proceeded with a three-day bench trial. At the end of trial, CMMA made an oral motion, pursuant to Maryland Rule 1-341, for award of its attorney’s fees incurred in defending against appellants’ counterclaim. The court denied that motion and took the case under advisement.

On March 19, 2008, CMMA filed a motion for attorney’s fees, per the Agreement, which appellants opposed. On April 14, 2008, the court issued an oral opinion, ruling in favor of CMMA. Specifically, the court found: 1) appellants “waived their ability to challenge being sued by filing an answer, filing a counterclaim, and failing to timely raise the issue;” 2) appellants breached the contract by failing “to pay CMMA for April, May, and June of 2006,” failing “to provide the demographics to CMMA,” and failing “to fulfill the credentialing requirement;” ⁴⁵² 3) appellants did not “prove[] a breach of contract by a preponderance of the evidence in the counterclaim,” “didn’t prove its count of negligent misrepresentation by a preponderance of the evidence,” and “failed to prove, by a preponderance of the evidence, that the plaintiff ... defrauded them.” Subsequently, the court awarded CMMA contract damages in the amount of $55,396.83, broken down as follows: $45,234.17: monies past due for the months of April, May, and June 2006 $5,690.33: amount that CMMA was unable to bill because of appellants’ “failure to obtain all of the credentialing they needed,” calculated by taking 8% of the value of appellants’ 28.5% collection rate over the previous four months (i.e. appellants retain 28.5% of bills collected from services and, under the Agreement, CMMA was to take “8.5% of net collections of hospital charges and 7.5% of office charges”) $1,369.02: medicare claims that CMMA was unable to collect $2,903.31: claims that CMMA could not process because one physician was not credentialed $200.00: software to access hospital information In addition, the court awarded CMMA attorney’s fees, under Section 10 of the Agreement, in the amount of $119,909.80, and costs in the amount of $4,442.53. On May 13, 2008, appellants filed this appeal. 3 ⁴⁵³ Discussion When an action has been tried without a jury, we “review the trial court’s decision on both the law and the evidence, upholding factual findings unless clearly erroneous, but subjecting its legal conclusions to de novo review.” Nationwide Mut.

Ins. Co. v. Regency Furniture, Inc., 183 Md. App. 710, 722 , 963 A.2d 253 (2009) (citing Jackson v. 2109 Brandywine, LLC, 180 Md.App. 535, 567 , 952 A.2d 304 (2008)); see also Md. Rule 8-131(c). “ ‘[U]nder the clearly erroneous standard, this Court does not sit as a second trial court, reviewing all the facts to determine whether an appellant has proven his case.’ ” Goss v. C.A.N. Wildlife Trust, Inc., 157 Md.App. 447, 456 , 852 A.2d 996 (2004) (quoting Lemley v. Lemley, 109 Md.App. 620, 628 , 675 A.2d 596 (1996)). Rather, “[o]ur task is limited to deciding whether the circuit court’s factual findings were supported by ‘substantial evidence’ in the record.” Liberty Mut. Ins.

Co. v. Md. Auto. Ins. Fund, 154 Md.App. 604, 609 , 841 A.2d 46 (2004) (citing GMC v. Schmitz, 362 Md. 229, 234 , 764 A.2d 838 (2001)). “ ‘If there is any competent and material evidence to support the factual findings of the trial court, those findings cannot be held to be clearly erroneous.’ ” L.W. Wolfe Enters, v. Md. Nat’l Golf, L.P., 165 Md.App. 339, 343 , 885 A.2d 826 (2005) (quoting YIVO Inst. for Jewish Research v. Zaleski, 386 Md. 654, 663 , 874 A.2d 411 (2005)). “Although the factual determinations of the circuit court are afforded significant deference on re-view, its legal determinations are not.” Goss, supra, 157 Md.App. at 456 , 852 A.2d 996 . “Instead, “where the order involves an interpre ⁴⁵⁴ tation and application of Maryland statutory and case law, we must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.’ ” Jackson, supra, 180 Md.App. at 567 , 952 A.2d 304 (quoting Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609 (2002)). “The interpretation of a contract is a legal question subject to de novo review.” Regency Furniture, supra, 183 Md.App. at 722 , 963 A.2d 253 (citations omitted). “Maryland follows the objective theory of contract interpretation,” which “focuses on the written text: the construing court’s task is to determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.” Id. (citations and internal quotation marks omitted).

I. Appellants were parties to the Agreement. Appellants contend that “Dr. Thomas signed the [Agreement] only as a representative of Laurel Radiology” and that “[t]he LLC did not sign the [Agreement] at all.” Therefore, appellants assert that CMMA “had no cause of action for breach of contract ... because no contract was formed” between CMMA and appellants. As such, appellants argue that the trial court erred when it precluded them from moving to dismiss for failure to state a claim, based on the fact that they did not raise the privity issue until trial. As we will explain, appellants’ argument is flawed.

A. Appellants failed to specifically plead a negative defense pursuant to Maryland Rule 2-323(f). When CMMA filed its complaint in circuit court, it averred: 7. On or about March 13, 2005, CMMA entered into a Billing Services Agreement (the “Contract”) with Dr. Thomas and/or Capitol Radiology [the LLC], pursuant to which CMMA agreed to provide billing services, ... in connection with medical services provided by Dr. Thomas. ⁴⁵⁵ 8. Pursuant to the Contract, Dr. Thomas and/or Capitol Radiology agreed to, among other things, compensate CMMA for billing services....

In their answer to the complaint, appellants stated: 7. Defendants admit that on or about March 13, 2005 a contract was entered into, the terms of which speak for themselves. All other allegations contained in this Paragraph of the Complaint are hereby denied. 8. Defendants aver that the terms of the contract speak for themselves, and deny any allegations in this Paragraph which seek to vary or mischaracterize the terms of the contract.

Appellants argue that “the trial court abused its discretion by failing to require further proof of the actual contracting parties,” as CMMA had the burden of proving the allegations made in its complaint. But, with regard to the issue of whether a written contract was executed between CMMA and appellants, appellants failed to specifically raise a “negative averment” pursuant to Maryland Rule 2—323(f). Instead, appellants admitted that an Agreement was entered into on March 13, 2005, and proceeded to answer by saying that “the terms of the contract speak for themselves” and that “[a]ll other allegations contained in this Paragraph of the Complaint are hereby denied.” 4 According to Rule 2-323(f): ⁴⁵⁶ when a party desires to raise an issue as to (1) the legal existence of a party, including a partnership or a corporation, (2) the capacity of a party to sue or be sued, (3) the authority of a party to sue or be sued in a representative capacity, (4) the averment of the execution of a written instrument, or (5) the averment of the ownership of a motor vehicle, the party shall do so by negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. If not raised by negative averment, these matters are admitted for the purpose of the pending action....

Based on the arguments that appellants now raise before this Court, we believe that appellants could have raised negative averments under subsections (1), (3), and (4) of Rule 2—323(f). For example, if it was appellants’ contention that the party with whom CMMA contracted—Capitol Radiology, DBA Laurel Radiology—was not a legal entity capable of being sued, then it should have stated as such. See Md. Rule 2—323(f)(1). Appellants could also have raised the negative averment that Dr. Thomas did not have the authority to be sued in a representative capacity, see Md. Rule 2—323(f)(3), or that the execution of a written instrument between CMMA and appellants never took place, see Md. Rule 2-323(f)(4).

Because appellants did not plead any negative defenses, we hold that the circuit court properly admitted CMMA’s averments, for ⁴⁵⁷ the purpose of the pending action. Although the court did not cite Rule 2-323(f) in finding that appellants “waived their ability to challenge being sued,” we affirm its decision. Appellants rely on Fifer v. Clearfield & Cambria Coal & Coke Co., 103 Md. 1 , 62 A. 1122 (1906) to support their argument, but their reliance on that case is misplaced. In Fifer , the plaintiff buyer brought suit against the defendant company “to recover damages for the alleged failure and neglect of the [company] to ship and deliver to the [buyer] certain coal, alleged to have been sold by the [company] to the [buyer]” through the company’s agent.

Id. at 2 , 62 A. 1122 . In his pleading, the buyer alleged that he “entered into a written contract with the said [company], by Rogers, Holloway & Co., agents of the [company] duly authorized by them to execute said contract in its behalf.” Id. In its answer, the company stated “that it was never indebted and never promised as alleged; and for a third plea, that the alleged contract was procured by the fraud of the [buyer].” Id. At trial, the buyer “contended that the contract having been set forth verbatim in the declaration, and not having been denied by the [company] in its next succeeding pleading, it must be taken as admitted for the purposes of this action as well as the agency of Rogers, Holloway & Co.” Id.

Disagreeing with the buyer’s argument, the Court of Appeals affirmed the decision of the circuit court, holding: The failure of the [company] to make denial of the execution of the contract as set out in the declaration, had the effect only of relieving the [buyer] of proving it, but it did not admit that Rogers, Holloway & Co. were the agents of the [company] with authority to bind them as charged in the narr. That was put in issue by the pleas, and was open for proof as any other fact that had been alleged. Id. at 3 , 62 A. 1122 . The present case differs from Fifer , however, because CMMA’s pleading did not allege that Laurel Radiology was an agent of Dr. Thomas and/or the LLC.

Rather, CMMA averred that it entered into the Agreement with Dr. Thomas and the ⁴⁵⁸ LLC, directly, as separate entities. The pleading in this case did not place agency at issue and, therefore, the issue of agency was not part of this case and, therefore, not open for proof at trial. B. Any error in the court’s reasoning, in fínding that appellants failed to timely raise the issue, was harmless. Appellants also argue that the circuit court erred when it reasoned that appellants’ failure “to timely raise the issue” barred them from moving to dismiss the case, at trial.

Although we agree that this was error on the court’s part, see Md. Rule 2-324(a), 5 we hold that such error was harmless because appellants were, indeed, parties to the Agreement. Flores v. Bell, 398 Md. 27, 33 , 919 A.2d 716 (2007) (“It has long been the policy in this State that this Court will not reverse a lower court judgment if the error is harmless.”) (Citations omitted). In this case, Dr. Thomas signed the Agreement on behalf of “Capitol Radiology, DBA Laurel Radiology.” Thus, it can be argued that there was no “express contract” between CMMA and appellants, as neither Dr. Thomas nor the LLC were named in the Agreement. See County Comm’rs of Caroline County v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 94 , 747 A.2d 600 (2000) (“An express contract has been defined as ‘an actual agreement of the parties’ ”) (quoting Black’s Law Dictionary 323 (6th ed.1990)).

For a year after the Agreement was signed, however, appellants performed Laurel Radiology’s duties under the Agreement, while CMMA performed those attributed to it. Appellants, therefore, accepted CMMA’s contract through their actions. See Porter v. Gen. Boiler Casing Co., 284 Md. 402, 409-10 , 396 A.2d 1090 (1979) (“Acceptance can be accomplished by acts as well as words”) (citation omitted). ⁴⁵⁹ Here, an implied in fact contract existed between the parties, although CMMA was not given the chance to prove that it expressly contracted with appellants.

See Burt v. Myer, 71 Md. 467, 504 , 18 A. 796 (1889) (“It is true that where there is a failure to prove a special contract, the law will imply a contract by the parties to do what ex [ajequo et bono [ 6 ] they ought to do”). Such a contract “ ‘is proved by circumstantial evidence.’ ” Mass Transit Admin. v. Granite Constr. Co., 57 Md.App. 766, 774 , 471 A.2d 1121 (1984) (quoting Dobbs, Handbook on the Law of Remedies § 4.2 (1973)). Hence, an implied contract existed between CMMA and appellants, as CMMA performed billing services on behalf of appellants and posted all payments on appellants’ account.

See Downs v. Mayor of Baltimore, 111 Md. 674, 694 , 76 A. 861 (1910) (“‘There is an implied contract to make compensation for money which it has no right to retain.’ ”) (Quoting Centr. Transp. Co. v. Pullman’s Palace Car Co., 139 U.S. 24 , 11 S.Ct. 478 , 35 L.Ed. 55 (1891)); see also J. Roland Dashiell & Sons, supra, 358 Md. at 94 , 747 A.2d 600 (2000) (“An implied contract is an agreement which legitimately can be inferred from intention of the parties as evidenced by the circumstances and the ordinary course of dealing and the common understanding of men.”) (Citations and internal quotation marks omitted); Granite Constr. Co., 57 Md.App. at 774 , 471 A.2d 1121 (The term “implied in fact contract” means that “ ‘the parties had a contract that can be seen in their conduct rather than in an explicit set of words.’ ”) (Quoting Dobbs, supra, § 4.2)).

II

Under the terms of the Agreement, appellants had a duty to provide demographics and to perform credentialing. Having determined that appellants were parties to the Agreement, we proceed to discuss the remaining issues with ⁴⁶⁰ the understanding that “Capitol Radiology, DBA Laurel Radiology” and appellants are one and the same. A. Demographics It is undisputed that, in order to prepare bills and collect payment for services rendered, certain patient identification and insurance information, called “demographics,” had to be gathered from patients and manually entered into CMMA’s computerized billing system. Appellants collected the demographics from patients, then sent CMMA the information on paper.

Following trial, the court found, among other things, that there were “deficiencies in the [appellants’] transmittal of demographics” and, therefore, CMMA proved its claim for breach of contract. On appeal, appellants argue that “the trial court ‘misconstrued’ the Agreement” in ruling that appellants “had the responsibility ... [of] physically inputting the data into [CMMA]’s computer.” According to the Agreement, appellants were to “provide” CMMA with “all of the demographic and charge information necessary to prepare the billing statements and insurance forms,” while CMMA was “responsible for the timely preparation of billing statements and insurance forms.” Appellants argue that, because neither the term “provide” nor the word “prepare” was defined in the Agreement, then the ordinary meanings of the words control. Citing Webster’s New Twentieth Century Dictionary of the American Language, Unabridged 1450 (2d ed.1983), appellants contend that to “provide” means “to furnish; to make available; to supply; to afford.” Moreover, appellants assert that the ordinary meaning of the word “prepare” is “to make ready, usually for a specific purpose; to make suitable; to fit; to adapt....” Thus, appellants reason that CMMA’s responsibility “was to take the information supplied ... and do whatever was necessary ... in order to put together bills,” including “keying the information from the paper into [CMMA]’s computer.” Again, appellants’ argument is flawed. By relying on Stratakos v. Parcells, 172 Md.App. 464, 471 , 915 A.2d 1022 ⁴⁶¹ (2007), appellants assume that the terms at issue in this case are “plain and unambiguous.” To the contrary, because the word “provide” could mean “to supply” by giving the demographic information on a piece of paper or “to supply” by entering the information into CMMA’s computer, then the terms of the contract are ambiguous.

See United Servs. Auto. Ass’n v. Riley, 393 Md. 55, 80 (2006) (“A contract is ambiguous if, when read by a reasonably prudent person, it is susceptible of more than one meaning.”) (Citation and internal quotation marks omitted). “Tf a trial court finds that a contract is ambiguous, it may receive parol evidence to clarify the meaning.’ ” Anderson Adventures, LLC v. Sam & Murphy, Inc., 176 Md.App. 164, 179 , 932 A.2d 1186 (2007) (quoting Maslow v. Vanguri, 168 Md.App. 298, 319 , 896 A.2d 408 (2006)). At trial, the court admitted into evidence an e-mail dated February 4, 2005, from Maureen McCarthy of Snyder Cohn, notifying Jeanne Kohn, the General Manager of CMMA, that Dr. Thomas thought “it would be best if [Dr. Thomas] had a full time billing person in the office to gather data from the office [patients] and the hospital and then she could certainly enter that into the system ” (Emphasis added).

On February 28, 2005, Ms. McCarthy sent another email to Ms. Kohn, notifying her that Dr. Thomas “hired a biller who ... is terrific.” Then, on March 11, 2005, Ms. McCarthy negotiated the terms of the Agreement as to CMMA’s fees, stating that “the rates are too high considering that we will have a full time biller to coordinate the function.” Further, the court noted: Cynthia Atkins was hired by Capitol Radiology as a billing coordinator. She had 16 years of billing experience, and more important, four years of radiology billing experience. This would tend to deflate any argument or any insinuation that Dr. Thomas and her staff had no idea what the amount of work would be involved in the billing services. Her testimony revealed some very incriminating information.

One, Capitol Radiology did not have the computer system necessary to enter demographic information that ⁴⁶² they had indicated they would be getting, and consequently, was not keying in the demographics; and two, although she was hired as a billing coordinator, she was quickly moved to office manager, and no one took over as a billing coordinator at Capitol Radiology. In August of 2005, Capitol Radiology hired additional workers, surge workers, on a part-time basis to help with their backlog of demographic information.... ... This action demonstrated that Capitol Radiology was not fulfilling the terms of the contract, and affirmed their understanding of their obligation to supply CMMA with the demographic information. Based on this evidence, we hold that the circuit court was not clearly erroneous in its findings that there were “deficiencies in the [appellants’] transmittal of demographics.” B. Credentialing Appellants also argue that the trial court erred in finding that “both parties expected and understood that [appellants] would perform the credentialing.” Appellants assert that, because the Agreement “made no mention of ‘credentialing’, and so did not address who was responsible for performing the task,” the court erred in finding that it was their obligation to fulfill.