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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 545 September Term, 2008

DORIANNE THOM AS, M.D., ET AL.

v.

CAPITAL MEDICAL MANAGMENT ASSOCIATES, LLC.

Woodward, Zarnoch, Wright, JJ.

Opinion by Wright, J. Filed: December 7, 2009

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, CM MA 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 Radiology 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 threeday 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

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In their brief, appellants asked: Did the trial court err in awarding the plaintiff attorney's fees for (continued...)

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Did the trial court err in finding that appellants were parties to the Agreement? Did the trial court err in finding that, under the Agreement, appellants had a duty to provide demographics and to perform credentialing? Did the trial court err in awarding appellee contract damages for work that CMMA had not yet performed? Did the trial court err in awarding appellee attorney's fees pursuant to the Agreement's indemnification clause?

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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

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(...continued) prosecuting a first-party breach of contract claim and for defending against a counterclaim where the contract provided for payment of attorney's fees only as part of indemnification against a third-party suit? 2) Did the trial court err in ruling that the defendants Dorianne Thomas, MD and Capitol Radiology, LLC waived their defense of failure to state a claim on the grounds that there was no contract between the parties to the lawsuit? 3) Did the trial court err in construing the contract to require that defendants Dorianne Thomas, MD and Capitol Radiology, LLC perform duties that the contract did not require them to perform? 4) Did the trial court err in awarding the plaintiff contract damages that were speculative and were not provided for in the contract? -2-

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 [CM MA] as a billing company," and therefore, Dr. Thomas scheduled an initial meeting with CMMA. On M arch 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 [in]formation provided by Capitol Radiology, DBA Laurel Radiology, CMMA shall be responsible for the timely preparation of billing statements and insurance forms . . . . CMMA will review and post charges within 72 hours of receipt from the client.

A "limited liability company" is "a permitted form of unincorporated business organization which is organized and existing" under Maryland Code (1975, 2007 Repl. Vol.),

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