author: BROWN, Judge.

text:
    Peter F. AMAYA, Appellant-Plaintiff, v. D. Craig BRATER, M.D., in his Capacity as Dean and Director of Indiana University School of Medicine; the Board of Trustees of Indiana University; Members of the Student Promotions Committee; Patricia Treadwell, M.D., Chair of the Student Promotions Committee; Joseph A. DiMicco, Ph.D.; Kathleen A. Prag, M.D.; and Klaus A. Hilgarth, M.D., Appellees-Defendants.
    No. 49A04-1212-PL-620.
    Court of Appeals of Indiana.
    Sept. 3, 2013.

      Thomas D. Collignon, Collignon & Diet-rick, P.C., Indianapolis, IN, Attorney for Appellant.
    Cory Brundage, Cory Brundage LLC, Indianapolis, IN, Attorney for Appellees.
   OPINION

BROWN, Judge.

Peter F. Amaya was dismissed from Indiana University School of Medicine (“IUSM”) for failure to maintain acceptable professional standards by allegedly cheating on an examination. Amaya appeals the trial court’s summary judgment ruling in favor of D. Craig Brater, M.D., in his capacity as Dean and Director of IUSM; the Board of Trustees of Indiana University; Members of the Student Promotions Committee (“the SPC”); Patricia Treadwell, M.D., Chair of the Student Promotions Committee; Joseph A. DiMicco, Ph.D.; Kathleen A. Prag, M.D.; and Klaus A. Hilgarth, M.D., (collectively, the “University”) with respect to his claim that his due process rights were violated resulting in his expulsion from IUSM. Amaya raises several issues, which we revise and restate as whether the trial court erred in granting the University’s motion for summary judgment with respect to his claims that he was not afforded due process and that his dismissal is not supported by substantial evidence. We affirm.

FACTS

In the spring of 2010, Amaya was a third-year medical student at IUSM in Indianapolis. Amaya v. Brater, 981 N.E.2d 1235, 1236-1237 (Ind.Ct.App.2013), reh’g denied, trans. denied, On March 29, 2010, Amaya sat for a mini-block exam consisting of Introduction to Clinical Medicine II, Pharmacology, and Pathology. Id. at 1237. Three professors, Dr. DiMicco, Dr. Hilgarth, and Dr. Prag, each observed Amaya during the examination and concluded that he was cheating by looking at the paper of the student to his right. Id. On March 30, 2010, Dr. DiMicco confronted Amaya with his observations, and Ama-ya denied cheating. On April 5, 2010, Dr. Hilgarth confronted Amaya with his observations and explained to Amaya that his behavior of looking into the workspace of the student to his right gave the appearance of cheating. Id. Amaya denied that he cheated or that he engaged in any behavior that gave the appearance of cheating and maintained that he was merely looking over and up at the clock on the right-hand wall of the testing room. Id.

On April 21, 2010, Dr. Treadwell, the chair of the SPC, wrote to Amaya and notified him that he had been accused of cheating by Dr. DiMicco and Dr. Hilgarth and that, if true, his behavior constituted a serious breach of professionalism and a violation of the school’s honor code. Id. Dr. Treadwell informed him that a show cause hearing was scheduled for May 17, 2010, during which Amaya should appear before the SPC and explain why he should not be dismissed from the school for failure to maintain acceptable professional standards. Id. Amaya was provided copies of written correspondence from Dr. DiMic-co, Dr. Hilgarth, and Dr. Prag, in which they explained the basis of their allegations of cheating. Id.

Prior to the show cause hearing, Amaya met with James Brokaw, Ph.D., the associate dean for Admissions and Medical Student Affairs, to help Amaya prepare for his presentation to the SPC and to make sure that he understood the process. Id.

On May 17, 2010, a hearing was held before the SPC, at which Amaya made a PowerPoint presentation and tendered a written submission including photographs, field studies, timelines, and statistical analysis. Id. He maintained that he was not looking at the other student’s paper when he took the examination but was, instead, looking at the clock on the right-hand wall. Id.

In a letter dated May 21, 2010, Dr. Treadwell stated that the SPC voted to table further deliberation of the case until the information Amaya presented could be thoroughly reviewed, that “[t]he gravity of the allegations requires that we deliberate with utmost seriousness and give due consideration to the evidence presented,” that the SPC would meet again on June 7, 2010, and that it was her hope that a final decision could be reached at that time. Appellant’s Appendix at 134.

Between May 17, 2010, and June 7, 2010, a seven-person subcommittee of the SPC continued to evaluate Amaya’s information. Amaya, 981 N.E.2d at 1237. The subcommittee directed additional written questions to Dr. DiMicco, Dr. Hilgarth, and Dr. Prag, the subcommittee sent the written responses of the professors to Amaya on June 1, 2010, and Amaya was permitted to reply to the SPC with his own written responses to their comments. Id. In addition, the subcommittee conducted field tests, which consisted of members going to the testing location and sitting in Amaya’s seat while other members observed the difference between glances up at the clock and glances to a neighbor’s paper. Id. The field tests revealed that the professors could easily distinguish between glances up at the clock and glances down and to the right. Id. On June 7, 2010, the SPC held a meeting and discussed the evidence presented by Amaya at the May 17, 2010 hearing.

On June 9, 2010, Dr. Treadwell sent a letter on behalf of the SPC to Amaya stating that the SPC met on June 7, 2010 to discuss the evidence Amaya presented, that since the May 17, 2010 hearing a seven-person subcommittee, chaired by Dr. Treadwell, carefully evaluated Amaya’s written documentation, and that the SPC discussed Amaya’s case at length and weighed the eyewitness accounts of Dr. DiMicco, Dr. Hilgarth, and Dr. Prag versus the innocuous explanation Amaya presented in his documentation. The letter advised that the SPC did not find Amaya’s arguments to be compelling and believed the preponderance of evidence supports the charge of ethical misconduct during the mini-block exam on March 29, 2010, that accordingly the SPC voted to recommend to the Dean that Amaya be dismissed from IUSM, that the vote was ten for dismissal, three against, and three abstentions, and that the decision was not reached lightly but with due deliberation commensurate with the gravity of the allegations and the consequences of an adverse vote. The letter further stated that “[f]ield tests conducted by subcommittee members from the individuals sitting in [Amaya’s] seat revealed that proctors can easily distinguish between glances up at the clock and glances down and to the right,” that the SPC “considers it highly unlikely that all three proctors could have been mistaken in their interpretation of [Amaya’s] behavior,” and that the testing “revealed that someone sitting in [Ama-ya’s] seat making sidelong glances to the right can see the bubble sheet (or circled answers on the exam) of someone sitting two chairs to the right.” Appellant’s Appendix at 146. The letter went on to say that “[t]his is sufficient to identify the selected answers,” that “[t]he primary evidence against [Amaya] is the eyewitness accounts,” that “[t]he statistical evidence is secondary but supports the eyewitness accounts,” that Amaya’s “statistical consultants’ calculations about the likelihood of two exams having the same degree of answer concordance as observed in your case assumes no other factors other than chance,” and that Amaya’s “observed behavior must be taken into account, which makes it much more likely that cheating explains the degree of concordance.” Id. at 146-147. The letter also advised Ama-ya that he may request a reconsideration hearing.

Amaya requested reconsideration, and a hearing was held on July 19, 2010, at which Amaya presented additional testimony and documentation, including new documentary material (which did not address the field tests performed by members of the subcommittee) and a new PowerPoint presentation. Amaya, 981 N.E.2d at 1238. The SPC declined to reverse its earlier recommendation for dismissal. Id. Amaya then appealed the SPC’s recommendation to Dean Brater. Id.

Prior to meeting with Amaya, Dean Bra-ter requested that an additional field test be conducted at the testing site in order to evaluate Amaya’s contention that he was merely looking at the clock rather than at the other student’s paper. Id. The test revealed that the proctors could tell what direction the accused was looking by eye movement alone. Id. On August IB, 2010, Dean Brater met with Amaya and reviewed all the material submitted by Ama-ya and considered by the SPC. Id. On August 18, 2010, he advised Amaya that he would not reverse the SPC’s recommendation and that Amaya was dismissed from IUSM. Id.

PROCEDURAL HISTORY

On August 25, 2010, Amaya filed a verified complaint for temporary restraining order, preliminary injunction, permanent injunction, and other relief against the University. Id. The trial court denied Amaya’s application for preliminary injunction. Id. Amaya later filed a second amended verified complaint which alleged: Count I, violation of due process; Count II, dismissal is not supported by substantial evidence; Count III, violation of equal protection; Count IV, breach of contract; and Count V, breach of good faith and fair dealing. Id.

In September 2011, the University filed a motion for summary judgment and designation of evidence with respect to Counts IV and V and a motion to dismiss with respect to Counts I, II, and III. Id. On February 22, 2012, the court held a hearing on the motions. Id. On March 27, 2012, the court entered an order denying the University’s motion to dismiss with respect to Counts I and II, granting the University’s motion to dismiss with respect to Count III, and granting the University’s motion for summary judgment with respect to Counts IV and V. Id. Amaya appealed the trial court’s summary judgment ruling in favor of the University on Counts IV and V, and this court affirmed the summary judgment ruling on January 30,2018. Mat 1242.

Meanwhile, on April 11, 2012, the University filed a second motion for summary judgment and designation of evidence with respect to Counts I and II of Amaya’s second amended complaint. Id. at 1238 n. 2. On October 10, 2012, the court held a hearing on the motion.

On November 14, 2012, the trial court issued an order granting the University’s second motion for summary judgment as to Counts I and II of Amaya’s second amended verified complaint. The court made a number of findings, which included that “[o]n June 9, 2010, the SPC informed Amaya in writing that the SPC had also considered Amaya’s written responses to the sub-committee’s written questions and that the SPC had evaluated Amaya’s presentation materials concerning sight-lines and angles of view by conducting ‘field tests,”’ that Amaya was notified “that some members of the subcommittee had gone to the testing location and actually sat in Amaya’s seat, where the members could ‘easily distinguish between glances up at the clock and glances down to the right,’ ” and that “Amaya put the question of his line of sight at issue and the subcommittee of the SPC conducted a ‘field test’ as part of its deliberate process before the resumption of the initial hearing on June 7, 2010.” Appellant’s Appendix at 18-19. The order further noted the reconsideration hearing and the testimony and documentation presented.

The court further found that on August 12, 2010, Dean Brater requested one of the SPC subcommittee members who had previously gone to sit in Amaya’s seat in the prior field tests “to go back with two associates to double check whether Amaya could have seen his neighbor’s paper without rotating his head and whether he could have seen the answers marked on the ‘scantron’ answer sheet,” that the member reported that Amaya “could have seen his neighbor’s paper without moving his head to the right, could have seen the answers, and the proctors ‘could tell what direction the accused was looking by eye movement alone,’ ” and that Amaya had no opportunity to respond to this new field test. Id. at 20. The court’s order found that on August 18, 2010, “at Amaya’s request, an appeal meeting was held with Dean Bra-ter, who received all the record and considered Amaya’s appeal,” at which “Dean Brater stated that, in cases such as Ama-ya’s, there was ‘no definitive evidence’ of cheating and there was a chance of a ‘false positive’ or a ‘false negative’ in his decision,” and that on August 18, 2010, Dean Brater advised Amaya that he would not reverse the decision to dismiss Amaya from IUSM. Id.

In its conclusions of law, the court concluded, with respect to Amaya’s claim alleging a violation of due process, that “[wjhile the [SPC] did conduct ex parte field tests after the May 17, 2010 show cause hearing, [Amaya] was notified of the ex parte field tests in a letter dated June 9, 2010 and [ ] had the opportunity to request a reconsideration hearing and respond to the ex parte field tests,” that the July 19, 2010 reconsideration hearing was held at his request where he “had the opportunity to respond, explain, and defend in response to the June 9, 2010 letter where Amaya was informed of the ex parte field tests,” and that “[i]t was at the point of the July 19, 2010 hearing that Amaya was provided with the fundamental right to due process....” Id. at 23. The court also concluded that “[w]hen Dean Brater requested a final ex parte ‘field test’ on August 12, 2010, at this point of the appeal the fundamental right to due process ... had already been met,” and that “[t]hus, the August 13, 2010 meeting was not even required.” Id. at 24.

With respect to Amaya’s claim alleging that his dismissal was not supported by substantial evidence, the court concluded “that the observations of Drs. DiMicco, Hilgarth, and Prag of Amaya during the March 29, 2010 ‘mini-block’ examination at IUSM along with all of the evidence presented and considered at the May 17, 2010 and July 19, 2010 hearings provided the requisite amount of evidence necessary to support the [SPC’s] decision that ‘the evidence supports the charge of ethical misconduct (cheating)’ and that Amaya would be dismissed from IUSM ‘for failure to maintain acceptable professional standards.’ ” Id. at 25. The court found there was no genuine issue of material fact as to Counts I and II of the complaint and granted the University’s second motion for summary judgment as to those claims.

ISSUE AND STANDARD OF REVIEW

The issue is whether the trial court erred in granting the University’s motion for summary judgment. When a trial court’s ruling granting or denying summary judgment is challenged on appeal, our standard of review is the same as it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind.2010). The moving party “bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.2012). Summary judgment is improper if the moving party fails to carry its burden, but if it succeeds, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. We construe all factual inferences in favor of the non-moving party and resolve all doubts as to the existence of a material issue against the moving party. Plonski, 930 N.E.2d at 5. An appellate court reviewing a challenged trial court summary judgment ruling is limited to the designated evidence before the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and arguments presented at trial nor the rationale of the trial court ruling, see Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind.2012) (“We will reverse if the law has been incorrectly applied to the facts. Otherwise, we will affirm a grant of summary judgment upon any theory supported by evidence in the record.”); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind.2009) (“[W]e are not limited to reviewing the trial court’s reasons for granting or denying summary judgment but rather we may affirm a grant of summary judgment upon any theory supported by the evidence.”).

The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court’s specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court’s actions. Id.

DISCUSSION

Amaya maintains that his due process rights under the federal and state constitutions were violated resulting in his expulsion from IUSM and that his dismissal was arbitrary and capricious and not based upon substantial evidence.

PART I: Amaya’s Claim He was Denied Due Process

A. Arguments of the Parties

With respect to his due process rights, Amaya maintains that he was dismissed for disciplinary reasons for an alleged violation of the honor code and not for academic reasons and that, “[a]s such, fundamental due process requires notice and an opportunity for a hearing appropriate to the case” and that “[i]n order to be fair in the due process sense, the hearing must afford the person adversely affected the opportunity to respond, explain, and defend.” Appellant’s Brief at 12-13. He contends that he is entitled to notice of all evidence against him and an opportunity to respond to all evidence against him at a meaningful time and in a meaningful way, that he is entitled to due process protection in both the determination of misconduct and the determination of the appropriate sanction, that the SPC placed him on probation without notice of an opportunity to respond on April 19, 2010, and that he first learned he had been placed on probation on August 2, 2010. He states that he was notified on April 21, 2010 to appear before the SPC on May 17, 2010 to show cause why he should not be dismissed for ethical misconduct, that SPC’s procedures permit the SPC to require a student to show cause why he should not be dismissed from school when he “has been cited for lack of acceptable academic ethics or professional behavior,” that “[t]he SPC may only issue a rule to show cause if the student ‘has been cited.’ Past tense,” and that “[i]n order to issue the Show Cause letter on April 21, 2010, the SPC necessarily determined and cited Amaya for lack of acceptable academic ethics or professional behavior on April 19, 2010, all without notice or opportunity to respond.” Id. at 15-16.

Amaya further contends that his rights to due process and due course of law were violated when the SPC and Dean Brater relied on ex parte evidence gathered after the May 17, 2010 show cause hearing. He asserts that the documentation included in the April 21, 2010 notification he received was the first time he saw the specific allegations and witness statements against him, that the accusations and observations contained within those documents “focused solely on the mini-block exams, which were held on March 29, 2010,” that he advised the University that, if the SPC intended to allege any facts outside the scope of the documents, then he demanded that he receive immediate notice, and that he conducted a field test of the testing site and retained others to provide statistical analy-ses of the mini-block exam. Id. at 17. Amaya argues that he was required to meet with Dr. Brokaw to share his anticipated response for the show cause hearing, that he met with Dr. Brokaw and shared his PowerPoint presentation, that Dr. Brokaw did not inform him that the SPC had already placed him on probation, and that Dr. Brokaw attempted to dissuade him from presenting the defense. Amaya asserts that, at the May 17, 2010 meeting, he presented his PowerPoint presentation and a written submission for the SPC’s consideration, that his presentation addressed his innocence and did not address mitigating a sanction, that Dr. DiMicco “considered [Amaya’s] effort to defend himself rather than apologize as ‘distasteful’ ” and that “Dr. Frankel, a member of the SPC, considered Amaya’s effort to defend himself against the allegations, rather than apologize, as ‘belligerent.’ ” Id. at 19.

Amaya contends that, while the SPC tabled the deliberations following the meeting and Dr. Treadwell stated that the SPC was deliberating and giving due consideration to the evidence presented, “the SPC was, in reality, and without notice to Amaya, secretly creating a subcommittee chaired by Dr. Treadwell to conduct additional ‘field tests,’ ” that “Treadwell obviously knew this fact [but] chose not to disclose to Amaya that the SPC was collecting and considering additional evidence in Amaya’s case,” and that “[t]he SPC’s secretive acts of obtaining and considering evidence outside the hearing, with no notice or opportunity for Amaya to respond, is a fundamental denial of due process.” Id. at 19-20. Amaya argues that the SPC procedures “do not provide for a rehashing of evidence.” Id. at 22. He posits that the trial court’s findings of fact fail to consider that he had previously requested and was not provided all documentation that the SPC would consider in its decision, and that he “was never provided a copy of the summary of observations, each subcommittee member’s personal observation, or the method and means of the ‘field test.’ ” Id. He further states that the court’s findings “ignore that, even after the July 19, 2010 Reconsideration Hearing, Dean Brater, the only person who can expel a student, requested and relied on a second ex parte investigation.” Id. at 22-28.

The University maintains that Amaya was not deprived of any constitutional right. It initially argues that there is no constitutional right to a graduate school education, that Amaya’s claim to a constitutional right is based on out-of-date dicta, and that subsequent court decisions have noted that the opportunity to receive a post-secondary education from an accredited graduate school program has not received recognition as a fundamental right. The University further contends that, even if Amaya could support a claim of constitutional right, he received all the process due him, and that this court has already ruled that its actions were not arbitrary and capricious.

The University’s position is that none of Amaya’s alleged deficiencies in the process he received amount to a denial of due process. Among the University’s contentions are that the issue of when Amaya was placed on probation is a red-herring as this appeal is from his dismissal from IUSM and not from any temporary probation, that his placement on probation did not predetermine the outcome, and that his probation and the temporary suspension of his scholarship became moot when he was dismissed. The University further contends that there was no ex parte evidence which was kept secret from Amaya or which he had no opportunity to confront.

B. Due Process Analysis

The Fourteenth Amendment provides that no state shall deprive any person of life, liberty or property without due process of law. U.S. Const. Amend. XIV, § 1. Article 1, section 12, of the Indiana Constitution contains a similar provision and has been construed by our courts as analogous to the federal due process clause. See Reilly v. Daly, 666 N.E.2d 439, 443-444 (Ind.Ct.App.1996), trans. denied. This court has held that a student’s interest in pursuing an education is included within the Fourteenth Amendment’s protection of liberty and property, and a student facing expulsion from a public educational institution is entitled to the protections of due process. Gagne v. Trustees of Ind. Univ., 692 N.E.2d 489, 493 (Ind.Ct.App.1998) (citing Reilly, 666 N.E.2d at 444), trans. denied.

In Reilly, this court noted that, in the case of an academic dismissal, due process requires only the barest procedural protections. 666 N.E.2d at 444. In Gagne, we noted, citing Reilly, that when a sanction is imposed for disciplinary reasons the fundamental requirements of due process are notice and an opportunity for a hearing appropriate to the nature of the case. Gagne, 692 N.E.2d at 493. In order to be fair in the due process sense, the hearing must afford the person adversely affected the opportunity to respond, explain, and defend. Id. “For school expulsion, due process requires an informal give-and-take between the student and the disciplinarian, where the student is given an opportunity to explain his version of the facts.” Id. Due process further requires that a university base an expulsion on substantial evidence. Id. We also stated in Reilly that courts have refused to require the traditional formalities of legal proceedings in school suspension and dismissal hearings and that due process requires “not an elaborate hearing before a neutral party, but simply an informal give-and-take between student and disciplinarian which gives the student an opportunity to explain his version of the facts.” Reilly, 666 N.E.2d at 444 (internal quotation marks and citations omitted).

Assuming that Amaya had or has a liberty or property interest in pursuing a medical career and in remaining a medical student at IUSM, and whether Amaya’s dismissal is characterized as academic or disciplinary, Amaya was informed of the allegations against him, he had the opportunity to explain his version of the facts, the procedures employed and the ultimate recommendation and decision of the SPC and Dean Brater were careful and deliberate, and Amaya was not denied due process as required under the Fourteenth Amendment and Article 1, section 12 of the Indiana Constitution.

With respect to his contention that he was not provided with notice or an opportunity to respond to the evidence against him in a meaningful way, and that he is entitled to due process protection in both the determination of misconduct and the determination of the appropriate sanction, the designated evidence shows, and Amaya does not challenge, that he received notice of the allegations against him of cheating on the mini-block exam on March 29, 2010. Dr. Treadwell’s letter to Amaya on April 21, 2010, notified him that he had been accused of cheating and that, if true, his behavior constituted a serious breach of professionalism and a violation of the school’s honor code, and that he should appear before the SPC on May 17, 2010 and explain why he should not be dismissed from the school for failure to maintain acceptable professional standards. Amaya was provided copies of written correspondence from Dr. DiMiceo, Dr. Hil-garth, and Dr. Prag, in which they explained their allegations of cheating and he was given the opportunity to explain his version of the facts. Prior to the May 17, 2010 hearing, he met with Dr. Brokaw to help him prepare for his presentation to the SPC and to make sure that Amaya understood the process. On May 17, 2010, Amaya appeared before the SPC, gave a PowerPoint presentation, and tendered a written submission including photographs, field studies, timelines, and statistical analysis. He said that he was not looking at the other student’s paper when he took the examination but was, instead, looking at the clock on the right-hand wall.

With respect to the field tests by members of the subcommittee of the SPC after the May 17, 2010 hearing, the designated evidence shows that Amaya received notice by letter dated June 9, 2010 that the field tests had been conducted and that the tests “revealed that proctors can easily distinguish between glances up at the clock and glances down and to the right,” that “someone sitting in [Amaya’s] seat making sidelong glances to the right can see the bubble sheet (or circled answers on the exam) of someone sitting two chairs to the right,” and that “[t]his is sufficient to identify the selected answers.” Appellant’s Appendix at 146. The SPC held a reconsideration hearing on July 19, 2010, at which Amaya presented additional testimony, the documents and PowerPoint presentation presented at the May 7, 2010 hearing, the written responses of the professors to questions of the SPC and Ama-ya’s responses, new documentary material prepared for the reconsideration hearing, and a new PowerPoint presentation. While Amaya did not address the results of the field tests performed by members of the subcommittee and discussed in the June 9, 2010 letter, he had the opportunity to do so. Further, although Dean Brater requested an additional field visit, he reviewed all of the material submitted by Amaya and considered by the SPC, and the additional field visit did not differ from, and the results were not inconsistent with, the previous field tests and results. There is no indication that Dean Brater’s decision turned on the results of the requested additional field test in light of the evidence presented before the SPC or the recommendation of the SPC that Amaya be dismissed from IUSM. Amaya was aware that he faced dismissal, and he was afforded opportunities to address the allegations against him, including the statements of the professors who observed him in the exam room and the results of the field tests performed by members of the subcommittee of the SPC, at the May 17, 2010 hearing, the July 19, 2010 hearing, and his August 13, 2010 meeting with Dean Brater.

Further, we find Amaya’s argument that his placement on probation in April 2010 shows that the “die was cast and his guilt had been previously determined,” see Appellant’s Reply Brief at 9, to be unpersuasive. Amaya was afforded opportunities to address the allegations against him and explain his version of the facts before the SPC and to Dean Brater, and the designated evidence demonstrates that the SPC and Dean Brater were deliberative and careful in their determination of Amaya’s dismissal.

Based upon the designated evidence, we cannot say that Amaya was denied at least the due process required by the Fourteenth Amendment and Article 1, section 12 of the Indiana Constitution. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-85, 98 S.Ct. 948, 952, 55 L.Ed.2d 124 (1978) (“We need not decide, however, whether respondent’s dismissal deprived her of a liberty interest in pursuing a medical career. Nor need we decide whether respondent’s dismissal infringed any other interest constitutionally protected against deprivation without procedural due process. Assuming the existence of a liberty or property interest, respondent has been awarded at least as much due process as the Fourteenth Amendment requires. The school fully informed respondent of the faculty’s dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate. These procedures were sufficient under the Due Process Clause of the Fourteenth Amendment.”); Gagne, 692 N.E.2d at 495 (holding that Gagne’s due process rights were not violated, finding that Gagne was aware he faced possible expulsion and that he had notice of the alleged misconduct, and rejecting Gagne’s argument that his due process rights were violated by the dean’s reliance on evidence gathered after the hearing in determining the appropriate sanction where the evidence supported a finding that the dean did not rely on the later-gathered evidence); Reilly, 666 N.E.2d at 445 (holding that, whether Reilly’s dismissal is characterized as academic or disciplinary, none of the alleged deficiencies raised by Reilly amounted to a denial of due process and that Reilly was fully apprised of the evidence against her, that she had an opportunity to present her side of the story prior to the committee’s decision, and that the procedures used afforded Reilly at least the minimum due process required by the Fourteenth Amendment and Article 1, section 12 of the Indiana Constitution). Accordingly, the trial court did not err in entering summary judgment in favor of the University on this basis.

Part II: Amaya’s Claim His Dismissal is Not Supported by Substantial Evidence

A. Arguments of the Parties

Amaya next maintains that his dismissal from the University is not supported by substantial evidence. He argues in part that he presented evidence that it is quite possible that the coincidence that was observed happened entirely by chance, that “in a class of more than one hundred forty (140) students, it would not be unusual to find several students who have at least seven of the same incorrect answers as another student who answered fourteen incorrectly,” and that there is “no ‘exact match’ of wrong answers in any part of Amaya’s exam with that of his neighbor,” that “the probability of Amaya’s and his neighbor having selected the same wrong answers only by chance is one in 20 (0.048) to one in 30 (0.033),” and that “Amaya’s behavior was not easily recognizable.” Appellant’s Brief at 24-25. He contends that the University’s decision to dismiss him was arbitrary and capricious and that the court erred in determining there was the requisite amount of evidence necessary to support the SPC’s decision.

The University maintains that Amaya’s position regarding the evidence is in reality a substantive due process allegation that asserts the school made an improper determination on the merits. It argues that the testimony of the three eyewitnesses is much more than “some” evidence, and that the “some evidence” standard requires less than a preponderance of the evidence. The University says that this court in Reilly did not mandate an exact level of statistical correlation to support a determination of cheating, that Amaya’s unusual behavior during the exam convinced three experienced professors that he had indeed cheated, and that there was some evidence, and compelling and substantial evidence, to support this conclusion.

In his reply brief, Amaya contends that the court in Reilly established that, to constitute “some evidence” of cheating, eyewitness observations must be combined with statistical evidence. He argues that the need for statistical correlation is based on the premise that human observations are notoriously fallible, and that “[o]ut of 140 students, 5% will have answers exactly the same as Amaya entirely by chance.” Appellant’s Reply Brief at 13.

B. Substantial Evidence Analysis

Due process requires that a university base an expulsion of a student on substantial evidence. Gagne, 692 N.E.2d at 493. “Although due process requires schools and colleges to base their suspension and dismissal decisions on substantial evidence, the standard of review on appeal is whether there is some evidence to support the decision of the school or college disciplinary board.” Reilly, 666 N.E.2d at 446. In Reilly, the court held in part that “[t]he professors’ observations of cheating behavior by Reilly combined with the statistical analysis of the test results constitute[d] at least some evidence in support of the Committee’s conclusion that Reilly cheated on her final exam.” Id.

The University’s designation of evidence includes an affidavit of Dr. Brokaw, the court’s order which denied in part its motion to dismiss Counts I and II of Ama-ya’s second amended complaint, and the second amended complaint. Amaya attached twenty-one exhibits to his second amended complaint, which included, among other documents, the written statements of Dr. DiMicco, Dr. Prag, and Dr. Hilgarth, the written responses of the proctors to written questions, a letter and report prepared by Christopher Holloman, Ph.D., assessing the accusation of academic misconduct against Amaya, and a report prepared by Luis Casian, Ph.D.

In a written statement dated April 15, 2010, Dr. DiMicco said that the mini-block exam on March 29, 2010 consisted of three exams, “Pharm, ICM, and Pathology,” that it was “very clear to me that Mr. Amaya was looking at the work space of the student to his right, and doing so in such a way as to conceal this behavior — i.e., by looking downward and then shifting his gaze to the right,” that “[i]n spite of the fact that each student had three exams with multiple pages to work on, most of the time I could see that Mr. Amaya and the student to his right were on the same page of the same exam,” and that “[a]fter the student next to Mr. Amaya finished and left, the behavior described above ceased.” Appellant’s Appendix at 122. Dr. DiMicco’s statement further said that Dr. Hilgarth had found that, on the ICM exam, Amaya “missed all five questions that the other student missed — and for all five Mr. Amaya had the same wrong answers” and that, on the pathology exam, “[t]he other student missed two questions, and again Mr. Amaya missed the same two questions with the same incorrect responses.” Id. at 122-123. In a written statement dated April 15, 2010, Dr. Prag said that she saw Amaya “tip his head forward and shift his eyes to the right to look at the other student’s paper,” that “[i]t was very easy to see where he was looking,” that “[h]e repeated this behavior many times during the 90 minutes while I was there,” and that “it was clear that his behavior was dishonest and not in keeping with the honor code at this institution.” Id. at 124. In a written statement dated April 16, 2010, Dr. Hilgarth said that he observed Amaya “looking downward and then looking to the right,” that “[i]t appeared that he was looking at the exam of the student to the right of him,” that “[t]his behavior occurred repeatedly during the exam,” and that “this behavior ceased when the student who was sitting to the right of him left and turned in his exam.” Id. at 125. Dr. Hilgarth also stated that “[e]very time I looked down, I observed that Mr. Amaya and the student to his right were on the same page of their exam” and that Amaya “missed the same 5 questions and had the same wrong answers as the student to the right of him.” Id. Further, the members of the SPC submitted written questions to Dr. Hilgarth, Dr. DiMicco, and Dr. Prag, and the three professors provided written responses. When asked if they were sufficiently confident that Amaya cheated for the SPC to take action, Dr. Hilgarth responded affirmatively, Dr. DiMicco stated that he had “no doubt that [Amaya] was cheating,” and Dr. Prag stated “I am confident that Mr. Amaya cheated by peering at his neighbor’s student’s test. I personally observed him casing sidelong glances in his neighbor’s direction several times.” Id. at 135-136.

In a report dated May 5, 2010, Dr. Hol-loman stated that he performed a statistical analysis related to the five questions that Amaya and the student to his right answered incorrectly and for which they provided the same incorrect answers and found that “if Mr. Amaya truly is innocent there is almost a 1 in 20 chance that he would have answered these five questions exactly the same way as his neighbor simply by chance.” Id. at 163. In a letter dated May 8, 2010, Dr. Casian said that the exam consisted of ninety-one multiple choice questions, that “(I) [the student to the right of Amaya] had at least 7 incorrect responses among the 14 questions that Mr. Amaya answered incorrectly,” and that “(II) [f]or seven of the incorrect responses in common ... the responses of [the neighboring student] were exactly the same.” Id. at 164. Dr. Casian’s letter further stated “the chances that (I) and (II) occurring at the same time can be estimated.... This gives ... about one in one [sic] thirty (or one in fifty). With more than 140 students taking the exam it is not unusual to find several students with the configuration (I) and (II) in the group that took the test.” Id. at 167.

While the evidence presented by Amaya suggests that the probability that Amaya selected the same wrong answer as his neighbor in this case by chance is much higher than the probability the student did so under the circumstances in Reilly, we cannot conclude that the relative likelihood of Amaya selecting some of the same wrong answers as his neighbor cannot constitute evidence which may be considered and which tends to support the conclusion of the SPC and Dean Brater that Amaya committed the alleged misconduct. Similarly, the fact that there may not have been an exact match of all of the wrong answers between the exam sheets of Ama-ya and his neighbor does not necessarily require a finding that Amaya did not commit the alleged misconduct. As set forth above and in the designated evidence, the three professors who proctored the mini-block exam and observed Amaya set forth their observations in detail in separate written statements, and Amaya presented statistical and other evidence to support his explanation that the professors’ observations and their inferences based on their observations were incorrect. The statements of the professors who observed Amaya and the analysis and other evidence presented by Amaya were carefully considered by the members of the SPC.

The designated evidence shows that there was at least some evidence in support of the decision of the SPC and Dean Brater that Amaya cheated on the mini-block exam, and we cannot conclude that the decision to dismiss Amaya from IUSM was not based upon substantial evidence or was arbitrary or capricious. See Reilly, 666 N.E.2d at 446 (holding that “[t]he professors’ observations of cheating behavior by Reilly combined with the statistical analysis of the test results constitutes at least some evidence in support of the Committee’s conclusion that Reilly cheated on her final exam” and that “[bjecause the Committee’s determination is supported by the evidence, we cannot conclude that the decision to expel Reilly was arbitrary or capricious”). Accordingly, the trial court did not err in entering summary judgment in favor of the University on this basis.

CONCLUSION

Based upon the summary judgment materials and designated evidence, we conclude that Amaya has not met his burden to establish that the trial court erred in finding there was no genuine issue of material fact as to Counts I and II of Amaya’s second amended verified complaint and in granting the University’s second motion for summary judgment as to those claims.

For the foregoing reasons, we affirm the trial court’s summary judgment in favor of the University.

Affirmed.

RILEY, J., and BRADFORD, J., concur.

      . Amaya alleged multiple claims, and this court has already affirmed the trial court’s entry of summary judgment in favor of the University with respect to his claims of breach of contract and breach of good faith and fair dealing. Amaya v. Brater, 981 N.E.2d 1235 (Ind.Ct.App.2013), reh’g denied, trans. denied.

        . The recited facts are taken in part from this court’s previous opinion related to Amaya’s lawsuit against the University in Amaya, 981 N.E.2d 1235.

      . This order was an amended order. The CCS shows that the court first entered an order granting the University’s motion on November 13, 2012.

      . In Reilly, a statistician advised that there was "a one in 200,000 probability that such a match of wrong answers on the multiple choice questions would occur by chance.” 666 N.E.2d at 442.


source: Caselaw Access Project

author: DICKSON, Chief Justice.

license: Public Domain

text:
    CLARK COUNTY BOARD OF AVIATION COMMISSIONERS, Appellant (Plaintiff), Board of Commissioners of Clark County, Indiana, Appellant (Judgment Debtor), v. Dennis DREYER and Margo Dreyer, as Co-Personal Representatives of the Estate of Margaret A. Dreyer, Appellees (Defendants).
    No. 10S01-1308-PL-529.
    Supreme Court of Indiana.
    Sept. 12, 2013.
    C. Gregory Fifer, Applegate Fifer Pul-liam LLC, Jeffersonville, IN, Attorney for Appellant Board of Commissioners of Clark County, Indiana.
    R. Scott Lewis, Jeffersonville, IN, Attorney for Appellant Clark County Board of Aviation Commissioners.
    John W. Mead, Mead, Mead & Clark, P.C., Salem, IN, Attorney for Appellees.
   DICKSON, Chief Justice.

We grant transfer in an effort to dispel confusion resulting from inartful language in one of our previous opinions.

In this eminent domain case, the Court of Appeals affirmed the judgment of the trial court in favor of the property owners and against the Clark County Board of Aviation Commissioners. Full factual and procedural details are provided in the opinion of the Court of Appeals. Clark Cnty. Bd. of Aviation Comm’rs v. Dreyer, 986 N.E.2d 286 (Ind.Ct.App.2013). In its appellate challenge to the trial court judgment, the Board argued that the trial court lacked subject matter jurisdiction because the property owner failed to timely file exceptions to the report filed by the court-appointed appraisers. This argument was predicated on language we included in State v. Universal Outdoor, Inc., stating: “the failure to file exceptions within the articulated time frame deprives the trial court of jurisdiction to hear the issue of damages.” 880 N.E.2d 1188, 1190 (Ind.2008).

In rejecting the Board’s argument in the present case, the Court of Appeals concluded that this quoted passage from Universal Outdoor “is misleading,” and explained: “To be sure if statutory procedures are not followed, the trial court may not be permitted to hear the issue of damages; however, this is not because the trial court lost jurisdiction, but rather, because legal error was committed.” Dreyer, 986 N.E.2d at 291. The Court of Appeals is correct. Instead of declaring that the trial court “lacked subject matter jurisdiction,” our opinion in Universal Outdoor should have expressed that the untimely filing of exceptions operated to preclude or foreclose the property owner from challenging the filed report. This was not a matter of subject matter jurisdiction.

The opinion of the Court of Appeals is summarily affirmed. Ind. Appellate Rule 58(A)(2).

RUCKER, DAVID, MASSA, and RUSH, JJ., concur.


author: BRADFORD, Judge.

text:
    Ladonna A. RECK, as Personal Representative of the Estate of Evelyn L. Holmes, Appellant-Plaintiff, v. Harry Clifton KNIGHT, M.D., Mona Siddiqui Saifullah, M.D., Community Health Network, Inc., and Community Hospitals of Indiana, Inc., Appellees-Defendants.
    No. 49A05-1208-CT-428.
    Court of Appeals of Indiana.
    May 17, 2013.
    Ordered Published June 28, 2013.

      David L. Byers, Holwager, Byers and Caughey, Beech Grove, IN, Attorney for Appellant.
    Robert G. Zeigler, Karen L. Withers, Zeigler Cohen & Koch, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Evelyn Holmes died on March 17, 2007, after suffering complications from a medical condition known as Stevens-Johnson Syndrome. Appellant-Plaintiff Ladonna A. Reck, in her capacity as personal representative for Holmes’s estate, subsequently filed a proposed complaint alleging that Holmes’s complications and resulting death were caused by the medical malpractice of Appellees-Defendants Harry Clifton Knight, M.D., and Mona Siddiqui Sai-fullah, M.D., who were treating Holmes in their capacity as physicians at a hospital owned and operated by Appellees-Defen-dants Community Health Network, Inc. and Community Hospitals of Indiana, Inc.

Approximately two-and-a-half years after Reck filed her proposed complaint in accordance with the Indiana Medical Malpractice Act, a medical review panel was formed and deadlines for the parties’ evi-dentiary submissions were set. Reck, however, did not comply with these deadlines or file any evidentiary submissions before the medical review panel’s statutorily-imposed deadline for issuing its expert opinion had passed. Appellees subsequently filed a motion for preliminary determination of law requesting the dismissal of Reek’s proposed complaint with prejudice. Reck brings this appeal from the trial court’s order denying Reek’s motion to correct error which was filed after the trial court granted the Appellees’ motion and dismissed Reek’s proposed complaint. We affirm.

FACTS AND PROCEDURAL HISTORY

Holmes died on March 17, 2007, after suffering complications from a medical condition known as “Stevens-Johnson Syndrome.” Appellant’s App. p. 77. On January 21, 2009, Reck, as personal representative for Holmes’s estate, filed a proposed complaint with the Indiana Department of Insurance in accordance with the Indiana Medical Malpractice Act (the “Act”). The proposed complaint alleged that Holmes died as a result of negligent care provided by Drs. Harry Clifton Knight, Brett Ryan Fink, and Mona Siddiqui Saifullah, all of whom were employed by Community Health Network, Inc. and/or Community Hospitals of Indiana. Over the course of approximately the next two-and-a-half years, the parties engaged in written discovery.

On June 8, 2011, the formation of the medical review panel was completed. On that date, the panel chairman sent an order to the parties which provided a schedule and deadlines for the parties to file evidentiary submissions. The schedule provided that Reek’s evidentiary submission was due July 28, 2011, with evidence from the Appellees due on August 29, 2011. The schedule also permitted Reck to file a reply submission on or before September 13, 2011. The medical review panel’s expert opinion was required to be handed down on or before December 5, 2011, in order for the panel to be in compliance with the 180-day time limit set by Indiana Code section 84-18-10-13.

Reck did not file any evidentiary submissions by the July 28, 2011 deadline. On August 12, 2011, the chairman of the medical review panel wrote to Reek’s counsel indicating that the panel had not received Reek’s submissions and requested that Reek’s counsel “let [him] know when [counsel] expect[ed] to have it completed.” Appellant’s App. p. 86. Reek’s counsel did not respond to this letter, provide the panel with any explanation of Reek’s inability to comply with deadline, or request an extension of time for Reck to file her submissions. Reck did not file any submissions to the panel before the December 5, 2011 deadline for the medical review panel to issue its expert opinion passed.

On January 30, 2012, Appellees filed a “Motion for Preliminary Determination of Law to Dismiss Plaintiffs Proposed Complaint[,]” Appellant’s App. p. 70, in which they claimed that Reek’s proposed complaint should be dismissed because Reck failed to timely file submissions with the medical review panel and the 180-day limit for the panel to issue its expert opinion had passed. The trial court scheduled a hearing on Appellees’ motion for February 22, 2012.

On February 20, 2012, nearly seven months after her evidentiary submissions were originally due, nearly three months after the 180-day statutory deadline for the medical review panel to issue its expert opinion had passed, and just two days before the scheduled hearing on Appellees’ motion to dismiss, Reck provided a copy of her evidentiary submissions to Appellees without any explanation regarding the delay. On February 21, 2012, Reck filed a response to the Appellees’ motion to dismiss in which she “apologizefd] for the late filing of [her] Panel Submission.” Appellant’s App. p. 89. Reck indicated that her submissions were late because it took a great deal of time for her counsel to review all of the voluminous medical records covering complex issues and to prepare her submission.

On February 22, 2012, the trial court conducted a hearing on Appellees’ motion to dismiss, at which Appellees presented evidence establishing Reek’s non-compliance with the submission schedule and the medical panel’s resulting inability to issue its opinion within the 180-day statutory deadline. Reek’s counsel acknowledged that he had failed to comply with the submission schedule. Reek’s counsel further acknowledged that he did not respond to the panel chairman’s letter regarding the approximate date that counsel believed he would submit Reek’s evidentiary submissions to the medical review panel; that he did not, at any time, request an extension from the medical review panel; and that he did not have a reason for not asking for an extension.

Reek’s counsel also acknowledged that he did not write to Appellees’ counsel requesting an extension of time to submit his evidentiary submissions prior to the July 28, 2011 deadline set forth by the medical review panel. Reek’s counsel merely claimed that Reek’s failure to file a timely evidentiary submission should nonetheless be excused because he and counsel for Appellees had allegedly agreed during a September of 2011 telephonic conference that Reck should have an extension of time to file her submissions in light of the complexity of the matter and the voluminous relevant medical records. However, when pressed by the trial court about the details of this alleged agreement, Reek’s counsel could not provide a date by which the parties agreed that Reck should submit her evidentiary submissions or the identity of the person with whom he allegedly made the oral agreement. Reek’s counsel merely recalled that he was talking to “a lady at that office.” Feb. 2012 Hr. Tr. p. 23.

On March 15, 2012, the trial court entered an order denying Appellees’ motion to dismiss, finding that dismissal was not appropriate because Reck had eventually filed her evidentiary submissions, but granting an award of attorney’s fees to the Appellees for fees associated with Appel-lees’ motion to dismiss. Appellees subsequently filed a motion to reconsider, or in the alternative, a motion to certify the trial court’s decision for interlocutory appeal. On May 9, 2012, the trial court issued an order granting Appellees’ motion to reconsider and dismissing Reek’s proposed complaint with prejudice. Reck then filed a motion to correct error, which was subsequently denied by the trial court. This appeal follows.

DISCUSSION AND DECISION

I. Overview of Indiana’s Medical Malpractice Act and the Applicable Standard of Review

It is undisputed that the Act applies to the instant matter. Thus, before turning to the dispositive issue in this case, a brief background of the relevant provisions of the Act is in order. “Before a party brings a medical malpractice action in an Indiana court, the [Act] requires that the proposed complaint be presented to a medical review panel and that the panel render an opinion.” Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind.2012) (citing Ind. Code § 34-18-8-4). The Act provides the chairman of the medical review panel with various powers, including the responsibility to establish a reasonable schedule for submission of evidence to the medical review panel. Ind. Code § 34-18-10-3(c). The Act provides that once a medical review panel is formed, “[t]he panel shall give its expert opinion within one hundred eightfy] (180) days after the selection of the last member of the panel.” Ind. Code § 34-18-10-13(a) (emphasis added). “Implicit in these provisions is the corresponding duty upon the parties to comply with the schedule, if one is set by the chair, and upon the parties and the panel to comply with the 180 day limit; an available remedy for any breach is court-ordered sanctions.” Galindo v. Christenson, 569 N.E.2d 702, 705 (Ind.Ct.App.1991); see also Jones v. Wasserman, 656 N.E.2d 1195, 1196 (Ind.Ct.App.1995), trans. denied; Blackden v. Kaufman, 611 N.E.2d 663, 665 (Ind.Ct.App.1993).

Necessarily, the initial burden falls upon the party submitting the proposed complaint. Without evidence from the complainant in support of the proposed complaint the review panel is unable to “express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint.” Only when the complainant’s evidence is submitted is the defendant in the proposed complaint compelled to come forward with evidence in response to the complainant’s evidence.

Galindo, 569 N.E.2d at 705-06 (internal citation omitted). See also Jones, 656 N.E.2d at 1196; Blackden, 611 N.E.2d at 665-66.

It is well-settled that the Act specifically provides the trial court with the authority to impose appropriate sanctions, including dismissal of a proposed complaint, upon a party who, without good cause shown, fails to act in the manner required by the Act. Ind. Code § 34-18-10-14; see also Gleason v. Bush, 689 N.E.2d 480, 483-84 (Ind.Ct.App.1997); Jones, 656 N.E.2d at 1196; Rivers v. Methodist Hosps., Inc., 654 N.E.2d 811, 815 (Ind.Ct.App.1995); Blackden, 611 N.E.2d at 665. “Dismissal is a sanction which a trial court has the inherent authority to order in its discretion.” Galindo, 569 N.E.2d at 706.

In exercising its discretion and determining sanctions for a party’s failure to comply with the Act, the trial court may appropriately consider, among other things, whether the failure was intentional or contumacious and whether prejudice resulted. The choice of sanctions is a matter within the discretion of the trial court, and we will review a trial court’s exercise of discretion in this regard for an abuse of discretion. Beemer v. Elskens, 677 N.E.2d 1117[, 1120] (Ind.Ct.App.1997), trans. denied; Rivers, 654 N.E.2d [at 815]; [Galindo, 569 N.E.2d at 706],
An abuse of discretion occurs only where the trial court’s decision is against the logic and effect of the facts and circumstances before the court. Benton v. Moore, 622 N.E.2d 1002[, 1005] (Ind.Ct.App.1993). When reviewing a trial court’s decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the trial court’s decision. Id; Beemer, [677 N.E.2d at 1120],

Gleason, 689 N.E.2d at 483-84.

II. Analysis

On appeal, Reck claims that the trial court abused its discretion in dismissing her proposed complaint because Reck demonstrated good cause and also because Appellees failed to prove that they were prejudiced by Reek’s failure to file her evidentiary submissions in a timely fashion. Specifically, Reck claims that she presented testimony demonstrating that the medical records were voluminous and complicated, that her failure to timely file her submissions was not intentional or contumacious, and that the parties agreed that Reck should have an extended period of time to file her submissions. Reck also claims that Appellees failed to prove that they were prejudiced by her failure to file her evidentiary submissions in a timely fashion.

This court considered a factual scenario similar to the instant matter in Rambo v. Begley, 796 N.E.2d 314 (Ind.Ct.2003). In Rambo, the plaintiff filed his proposed complaint alleging medical malpractice by Dr. Robert Begley in January of 1998. 796 N.E.2d at 315-16. Over the course of the next three years, the parties engaged in the exchange of discovery materials. Id. at 316. In July of 2001, the medical review panel was set and the parties were given deadlines for their evidentiary submissions. Id. Rambo requested, and was granted an extension of time to file his submissions. Id. Approximately one month after the extended deadline for Rambo to file his evidentiary submissions, the chairman of the medical review panel sent a letter to Rambo’s counsel notifying Rambo’s counsel that the panel had not received Rambo’s submissions and requesting that counsel let him know when counsel expected to file Rambo’s submissions. Id. Rambo’s counsel did not respond to this letter from the medical review panel.

Approximately two months after the January 2, 2002 statutory deadline for the medical review panel to issue its expert opinion, Dr. Begley filed a motion to dismiss Rambo’s proposed complaint. Id. at 317. Rambo filed his evidentiary submissions on April 12, 2002, nearly seven months after his evidentiary submissions were due, nearly four months after the 180-day statutory deadline for the medical review panel to issue its expert opinion had passed, and nearly one month after Dr. Begley had filed his motion to dismiss. Id. Rambo claimed that he had good cause for failing to submit his submissions in a timely fashion because he believed the parties had agreed to waive the 180-day statutory limit for the panel to issue its expert opinion. Id. The trial court subsequently granted Dr. Begley’s motion to dismiss, finding that Rambo failed to show good cause. Id. at 319-20.

On appeal, we affirmed the trial court, concluding that the trial court did not abuse its discretion in dismissing Rambo’s proposed complaint. Specifically, we concluded that:

Here, Rambo failed to diligently pursue discovery over more than a three-year period between his proposed complaint and the completion of the medical review panel, the event that triggered the 180-day period for the panel’s decision. Once the panel was set, Rambo had notice of the schedule for evidentiary submissions and the date that the panel’s decision was due. He missed the extended deadline for filing his eviden-tiary submission. Then, he failed to respond to an inquiry by the medical re-: view panel that reminded him of the date for the panel’s decision, and that the rescheduled time for his submission had passed. He did not request additional time for his submission or inform the panel of any perceived obstinacy by Dr. Begley. Rambo failed to communicate with the panel until after the 180-day period for the panel decision had expired. Therefore, the circumstances in the present case demonstrate that the trial court did not abuse its discretion by dismissing Rambo’s claim for failure to prosecute.

Id. at 321-22.

Similarly, in the instant matter, the medical review panel was formed approximately two-and-a-half years after Reck filed her proposed complaint. The parties engaged in the exchange of discovery materials during the approximately two-and-a-half years between the time that Reck filed her proposed complaint and the date when the medical review panel was set. The chairman of the medical review panel set a schedule for the parties to submit their evidentiary submissions. According to the schedule, Reek’s evidentiary submission was due on or before July 28, 2011. Reck did not file her evidentiary submissions by the July 28, 2011 deadline or request an extension of time to file her submissions prior to the July 28, 2011 deadline.

On August 12, 2011, the chairman of the medical review panel wrote to Reek’s counsel indicating that the panel had not received Reek’s submissions. Reek’s counsel did not respond to the panel chairman’s letter which, again, requested an advisement as to when Reek’s counsel believed Reek’s evidentiary submissions would be submitted to the medical review panel. In addition, during the hearing on Appellees’ motion to dismiss, Reek’s counsel admitted that he did not, at any time, request an extension from the medical review panel and stated that he did not have a reason for not asking for an extension.

Moreover, Reek’s counsel acknowledged that he did not write to Appellees’ counsel requesting an extension of time to submit Reek’s evidentiary submissions prior to the July 28, 2011 deadline set forth by the medical review panel. Instead, Reek’s counsel claimed that he believed he and counsel for Appellees had agreed during a September of 2011 telephonic conference that Reck should have an extension of time to file her evidentiary submissions because of the complexity of the matter and the large number of relevant medical records. However, when pressed about this alleged agreement, Reek’s counsel could not provide a date by which the parties agreed that Reck would submit her evidentiary submissions or the identity of the person with whom he made the oral agreement. Reek’s counsel merely recalled that he was talking to “a lady at that office.” Feb. 2012 Hr. Tr. p. 23.

The trial court’s minutes from the September 2011 telephonic conference included a note that “parties advise court they have secured a medical review panel and submissions to be filed within 6 months.” Appellant’s App. p. 4. Contrary to Reek’s claim, however, this note does not specifically indicate that the parties informed the trial court that they had agreed to an extension as the remaining due dates for evidentiary submissions and the deadline for a decision from the medical review panel was within six months of the September 2011 telephonic conference. Moreover, Appellees’ counsel stated during the hearing on Appellees’ motion to dismiss that Appellees did not agree to waive the 180-day statutory deadline for the medical review panel to issues its opinion, and we agree with the trial court’s determination that the parties’ advisement about when the evidentiary submissions would be filed did not amount to a waiver of any of the parties’ duties or deadlines.

While the medical records that are relevant to the underlying action may be voluminous and complicated, Reek’s counsel had approximately two-and-a-half years to review the records and compile Reek’s evi-dentiary submissions before the deadlines for the parties’ evidentiary submissions were even set. Reck does not allege that her counsel’s failure to review the records and compile her submissions during this time period was due to any delay or wrongful act of Appellees. It is undisputed that Reck did not request an extension of time to file her evidentiary submissions before the medical review panel. Further, while Reek’s counsel claimed that he and opposing counsel agreed to an extension of time to file Reek’s evidentiary submissions, Reek’s counsel could not even tell the trial court with whom he entered into this alleged agreement. These circumstances do not demonstrate that Reck had good cause for failing to file her evidentiary submissions in a timely fashion.

Furthermore, to the extent that Reck relies on Beemer for the proposition that dismissal was inappropriate because Appellees failed to show that they were prejudiced by Reek’s failure to timely file her evidentiary submissions, we note that, contrary to Reek’s reading of Beemer, a party requesting dismissal is not required to show prejudice. See generally Beemer, 677 N.E.2d at 1120 (providing that the court of appeals has not framed the critical inquiry in whether a trial court abused its discretion in dismissing a proposed complaint to be whether the plaintiffs conduct resulted in prejudice). Prejudice, rather, is merely one factor that the trial court can consider when ruling on a motion to dismiss a proposed complaint. See id. (providing that while Galindo provides that an appropriate consideration for the trial court in exercising its discretion as to the appropriate sanction is whether prejudice resulted, Galindo does not preclude consideration of other factors but merely points to some of the appropriate factors which the trial court may consider). The Beemer court held that “it is proper for the trial court to consider the entire record of facts and circumstances surrounding the particular case when determining whether dismissal of a proposed complaint is an appropriate sanction.” Id. Accordingly, the trial court did not abuse its discretion in dismissing Reek’s complaint merely because the Appellees allegedly failed to demonstrate that they were prejudiced by Reek’s failure to timely file her evidentiary submissions.

Again, it is well-settled that the Act specifically provides the trial court with the authority to impose appropriate sanctions, including dismissal of a proposed complaint, upon a party who, without good cause shown, fails to act in the manner required by the Act. Ind. Code § 34-18-10-14; see also Gleason, 689 N.E.2d at 483-84; Jones, 656 N.E.2d at 1196; Rivers, 654 N.E.2d at 815; Blackden, 611 N.E.2d at 665. It is undisputed that Reck failed to act in a manner required by the Act, i.e., to timely file her evidentiary submissions. Thus, in light of our conclusion that Reck failed to demonstrate good cause for her failure to timely file her evidentiary submissions, we conclude that the trial court acted within its discretion in dismissing Reek’s proposed complaint with prejudice.

The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.

      . Dr. Fink is listed on the original Proposed Complaint for Damages but is not listed on any other document filed before the medical review panel or the trial court.

      . We will collectively refer to the doctors and the hospital systems as “Appellees” throughout this memorandum decision.

      . The schedule for the submission of evidence must allow sufficient time for the parties to make a full and adequate presentation of the related facts and authorities. Ind. Code § 34 — 18—10—3(c).

      . Furthermore, to the extent that Reck argues that the trial court erroneously granted Appel-lees’ motion to reconsider which Reck claims was not timely filed, we note that the due date for the Appellees’ motion to reconsider fell on a Saturday. Pursuant to Indiana Trial Rule 6, ”[t]he last day of the period so computed is to be included unless it is ... (1) a Saturday," and, in the event that the last day of the period falls on a Saturday, "the period runs until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which the office is closed." Here, Appel-lees’ motion to reconsider was filed on the Monday following the Saturday, or the date on which it was due under Trial Rule 6. As such, Appellees' motion to reconsider was timely filed.


author: BAKER, Judge.

text:
    In re The CARROLL COUNTY 2012 TAX SALE. Twin Lakes Regional Sewer District, Appellant-Intervenor, v. Steven E. Hruska, Virginia Hanna, and Equity Trust Company FBO # 80677, Appellees-Petitioners, and Carroll County, Indiana, by and through the Carroll County Auditor, Appellee-Respondent.
    No. 08A02-1303-MI-220.
    Court of Appeals of Indiana.
    Aug. 8, 2013.

      Donald J. Tribbett, Tribbett Law Office, Logansport, IN, Attorney for Appellant.
    Anne H. Poindexter, Stephenie K. Goo-kins, Campbell Kyle Proffitt LLP, Carmel, IN, Attorneys for Amicus Curiae.
   OPINION

BAKER, Judge.

The primary issue in this case is whether the trial court erred in interpreting Indiana Code section 13-26-14^4, which prohibits real property from being sold at a tax sale when the only lien against the property was for unpaid sewer bills. The appellees-petitioners Steven Hruska, Virginia Hanna, and Equity Trust Company (collectively, the petitioners) successfully petitioned the trial court to have their respective properties removed from the county tax sale list when it was determined that unpaid sewage bills were the only liens on the parcels.

The appellant-intervenor, Twin Lakes Regional Sewer District (TLRSD), appeals that determination, alleging that the trial court misinterpreted the provisions of Indiana Code section 13-26-14-4 regarding the removal of the properties from the tax sale list. We conclude that the trial court properly determined that the statute prohibits foreclosure on the property at a tax sale when an unpaid sewer bill is the only lien that exists on the property. Thus, we affirm the judgment of the trial court.

FACTS

TLRSD is a regional sewer district that services areas in Carroll and White counties. The petitioners own properties in Carroll County that are served by TLRSD’s sewers. When those property owners did not pay them sewer bills, TLRSD perfected liens against the properties and certified those liens to the Carroll County Auditor for collection with the property tax bill. Apparently, payments had been made to the Treasurer of Carroll County, and the Treasurer credited those payments entirely to property taxes that had accrued against the property, thus leaving the sewer liens unpaid.

On August 28, 2012, the Treasurer and Auditor of Carroll County filed a joint application for a judgment and order of sale in the Carroll Circuit Court, together with their joint affidavit. The application for the judgment and sale requested that the trial court order judgment against the listed properties as a result of unpaid property taxes and special assessments. The application also requested that the properties be sold to satisfy obligations for unpaid property taxes and special assessments.

The application averred that notice had been sent to the petitioners at least twenty-one days before the judgment application was filed. Both the application and affidavit identified the properties that the petitioners owned as being subject to sale for unpaid property taxes and assessments.

On August 29, 2012, the trial court entered a judgment and order of sale, directing the sale of the properties to satisfy the payment of taxes and special assessments. Thereafter, in September 2012, Hanna and Hruska filed letters with the trial court, stating that TLRSD’s liens against their properties were the sole liens against those properties. The letters stated that because TLRSD’s liens were the only liens that existed on the properties, the land could not be sold at a tax sale. In support of that proposition, the petitioners cited Indiana Code section 13-26-14-4, which provides in part that

rates, fees, or charges made, assessed, or established by the district are a lien, ... for municipal sewage works, on a lot, parcel of land, or building that is connected with or uses the works of the district.... A lien under this chapter that is the only lien on a property may not be foreclosed.

On September 7, 2012, a petition to remove the parcels from a tax sale was filed by Zachary Dague as a beneficiary of the Equity Trust Company. Dague’s petition requested that the trust property be removed from the tax sale based on claims that the property had been purchased at a tax sale and TLRSD’s sewer liens against the property were invalid. The petition apparently was sent to the Carroll County Auditor and Treasurer.

Although none of the three requests for relief from the tax sale were served on TLRSD, the trial court entered orders on September 10, 2012, as to the Hanna and Hruska properties. These orders recited Hanna’s and Hruska’s contention that TLRSD’s sewer liens were the sole liens against the properties and, therefore, those properties should be removed from the tax sale that was scheduled for September 14, 2012.

The trial court determined that while a sewer lien existed on the properties, Indiana Code section 13-26-14-4 prohibits foreclosure if that is the only type of lien on the property. The trial court’s order also provided that if the Auditor believed that other liens existed against the Hanna or Hruska properties, TLRSD could request a hearing.

The trial court also ordered on September 10, 2012, that the Equity Trust Company property should be removed from the tax sale “in order to hold a hearing in this matter.” Appellant’s App. p. 2, 25. That order set a hearing on that petition for October 9, 2012. On the day of the hearing, Lisa Dague appeared for Equity Trust Company. Lisa argued the merits of the petition, but no evidence was presented, and no action was taken. Instead, the trial court rescheduled the matter for a hearing on November 26, 2012, to provide the petitioners the opportunity to serve notice on any lienholders. Although Lisa again appeared at the November 26 hearing, the trial court took no action because Lisa was not licensed to practice law and she was attempting to represent the corporation. As a result, the trial court continued the matter indefinitely pending a request for a hearing.

On January 29, 2013, TLRSD moved to intervene in the action. The motion stated that the orders removing the Hanna, Hruska, and the Equity Trust Company properties from the 2012 tax sale were entered “without appropriate notice” to TLRSD and that TLRSD was entitled to intervene pursuant to Indiana Trial Rule 24(A) to protect its interest in the sewer liens. Appellant’s App. p. 26-28.

TLRSD’s motion to intervene included a motion to set aside the trial court’s orders removing the properties from the tax sale. The motion asserted that the September 10, 2012, orders were entered without notice to TLRSD and that the trial court failed to properly apply the provisions of Indiana Code section 13-26-14-4.

The trial court granted TLRSD’s request to intervene on February 6, 2013, and on that same day, an additional order was entered denying TLRSD’s motion to set aside the September 10, 2012 judgments. The trial court ruled, among other things, that because no other liens on the properties existed, the land could not be sold “at the tax sale” pursuant to Indiana Code section 13-26-14-4. Appellant’s App. p. 4.

On February 26, 2013, TLRSD filed a motion to correct error, which the trial court subsequently denied. This appeal ensues, and TLRSD alleges that nothing warranted the removal of the properties from the tax sale.

DISCUSSION AND DECISION

The issue to be resolved comes to us as a denial of a motion to correct error. We review a trial court’s decision to deny a motion to correct error for an abuse of discretion, and reversal will occur only when the trial court’s decision was against the logic and effect of the facts and circumstances before it, together with the inferences that can be drawn therefrom. Ind. State Bd. of Educ. v. Brownsburg Comm. Sch. Corp., 842 N.E.2d 885, 889 (Ind.Ct.App.2006).

As noted above, TLRSD maintains that the trial court erred in removing the petitioners’ property from the tax sale. More particularly, TLRSD claims that the trial court “erred in its interpretation of I.C. § 13-26-14-4’s prohibition against foreclosure of a lien if a sewer lien is the only lien against the property.” Appellant’s App. p. 5. Put another way, TLRSD contends that the trial court’s broad interpretation of Indiana Code section 13-26-14^1 regarding the prevention of the sale of property at a tax sale merely because of a sewer lien has the potential to “bankrupt a regional sewer district.” Id. at 42.

We note that the petitioners have not filed an appellee’s brief. When the appellee has failed to submit a brief, we need not undertake the burden of developing arguments on the appellees’ behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.2006). Rather, we will reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error. Id. Prima facie error in this context is defined as “at first sight, on first appearance, or on the face of it.” Id. Where the appellant is unable to meet this burden, we will affirm. Id.

In determining whether the trial court properly removed the petitioners’ property from the tax sale, we initially set forth the provisions of Indiana Code section 13-26-14-4, which provide that

rates, fees, or charges made, assessed, or established by the district are a lien, in the same manner established under IC 36-9-23 for municipal sewage works, on a lot, parcel of land, or building that is connected with or uses the works of the district. Liens under this chapter:
(1) attach;
(2) are recorded;
(3) are subject to the same penalties, interest, and reasonable attorney’s fees on recovery; and
(4) shall be collected and enforced;
in substantially the same manner as provided in IC 36-9-23-31 through IC 36-9-23-34. A lien under this chapter that is the only lien on a property may not be foreclosed.

(Emphasis added).

In construing this statute, we note that “foreclosure” has been defined as a legal proceeding “to terminate a mortgagor’s interest in property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property. Black’s Law Dictionary (7th ed.1999). Also, a specific subsection of the definition of foreclosure in Black’s Law Dictionary defines “tax foreclosure” as “[a] public authority’s seizure and sale of property for nonpayment of taxes.” Id.

In this case, notwithstanding TLRSD’s claims, it is apparent that the trial court examined the plain language of Indiana Code section 13-26-14-4 and determined that the type of lien here may not be enforced as provided in Indiana Code section 36-9-23-31 through Indiana Code section 36-9-23-34, namely by selling the property at a tax sale if the unpaid sewer bill lien is the only lien that exists on the property.

To illustrate the remedies, procedures, and enforceability that may be available to a sewer district for unpaid bills, we note that Indiana Code section 36-9-23-31 provides that

If fees assessed against real property under this chapter ... are not paid within the time fixed by the municipal legislative body, they are delinquent. A penalty of ten percent (10%) of the amount of the fees attaches to the delinquent fees. The amount of the fee, the penalty, and a reasonable attorney’s fee may be recovered by the board in a civil action in the name of the municipality.

(Emphasis added). In brief, Indiana Code section 36-9-23-32 sets forth the timing of the recording of various liens, lists the superiority of the liens in most instances, and states that notice of delinquency must be provided, when payment must be received, and how notice must be sent. Another section, Indiana Code section 36-9-23-33, provides for the deferral of the collection of unpaid fees and penalties in some instances. And the officer in charge of collecting the fees should prepare a list of the delinquent fees along with the penalty, record that list with the county recorder, and mail notice to the owner that a lien has been recorded as a result of delinquent fees. The liens should then be released once they have been fully paid. If delinquent fees and penalties, for example, are not paid, they are to be collected by the county treasurer in the same manner that delinquent property taxes are collected.

Finally, Indiana Code section 36-9-23-34 provides for a municipality’s foreclosure of a lien to collect fees and penalties. The municipality or board is entitled to recover the amount of the fees and penalties and a reasonable attorney’s fee. Also, the trial court should order the sale without relief from valuation or appraisement laws.

In construing these provisions, it is apparent that although TLRSD could not foreclose its liens against the petitioners’ properties, TLRSD may file a civil action to recover its fees in accordance with Indiana Code section 36-9-23-31. Indeed, as discussed above, once a judgment is obtained, nothing in the statutes prevents TLRSD from executing, garnishing, and pursuing proceedings supplemental similar to other civil judgments. That said, we cannot say that the trial court abused its discretion in removing the parcels from the tax sale when construing the provisions of Indiana Code section 13-26-14-4.

The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.

      . We note that Indiana Regional Sewer District Association (IRSDA) filed an amicus brief in this case. The IRSDA’s mission is to support the various sewer districts and to collect and share information that focuses on their role in protecting the environment and public health, while also supporting economic development and providing a public convenience. The IRSDA submits that the "misinterpretation of Ind.Code § 13-26-14-4 by the trial court and its application to all collection processes for sewer lines is of paramount importance and will affect all sewer districts’ ability to collect unpaid sewer bills.” Amicus Br. p. 1.

      . This statute is more fully set out in our discussion below.

      . We note that while TLRSD raises various procedural issues such as whether it was given adequate opportunity to be heard and whether the petitioners’ properties could be removed when no hearings were held, we need not address these issues in light of our conclusion that Indiana Code section 13-26-14-4 unambiguously states that a lien regarding the collection of unpaid sewer bills through foreclosure proceedings is prohibited.


author: BAILEY, Judge.

text:
    Marion TURNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A05-1302-CR-59.
    Court of Appeals of Indiana.
    Sept. 3, 2013.

      Karen Celestino-Horseman, Indianapolis, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Marion Turner (“Turner”) appeals his conviction for Dealing in Cocaine, as a Class A felony. We affirm.

Issues

Turner presents two issues for review:

I. Whether testimony of statements allegedly made by a confidential informant was erroneously excluded as hearsay; and
II. Whether the evidence was insufficient to prove his predisposition to deal cocaine.

Facts and Procedural History

On August 30, 2011, Turner sold 6.9115 grams of cocaine to Indianapolis Metropolitan Police Department Detective Brad Nuetzman (“Detective Nuetzman”) for $350.00. The transaction had been arranged through a confidential informant (“C.I.”), supervised by Sergeant Stephen Butler (“Sergeant Butler”). At the conclusion of a jury trial conducted on November 13, 2012, Turner was convicted of Dealing in Cocaine. He was sentenced to twenty-six years imprisonment. He now appeals.

Discussion and Decision

I. Exclusion of Confidential Informant’s Statements

Turner’s theory of defense was entrapment. By the time of trial, the C.I.’s whereabouts were unknown. However, Turner testified at trial and sought to repeat statements allegedly made by the C.I. The State objected on hearsay grounds and Turner argued that, because the C.I. acted as an agent of the State, the CJ.’s statements were admissible as statements of a party-opponent, an exception to the hearsay rule addressed by Indiana Evidence Rule 801(d)(2). The trial court sustained the State’s hearsay objection and Turner made an offer of proof.

In general, ruling on the admission or exclusion of evidence are reviewed for an abuse of discretion. Banks v. State, 839 N.E.2d 794, 796 (Ind.Ct.App.2005). However, a ruling is reviewed de novo when it turns upon a misunderstanding of a rule of evidence such as the hearsay rule. Id.

“An agent is one who acts on behalf of some person, with that person’s consent and subject to that person’s control.” Oil Supply Co., Inc. v. Hires Parts Serv., Inc., 726 N.E.2d 246, 248 (Ind.2000). Sergeant Butler testified and described his arrangements with the C.I. and the transaction that took place. He explained that confidential informants act as “agents for us.” (Tr. 209.) In order to escape criminal prosecution for a marijuana-growing operation, the C.I. had agreed to arrange a cocaine purchase from Turner. His statements to Turner were in furtherance of that objective. We agree with Turner that, from all indications, the C.I. acted on behalf of the State and within the scope of his agency. His statements could properly be considered non-hearsay statements pursuant to Evidence Rule 801. See Banks, 889 N.E.2d at 797 (statements of a police officer regarding a matter within the scope of his employment were not hearsay); see also Allen v. State, 787 N.E.2d 473, 479 (Ind.Ct.App.2003) (holding that, in criminal cases, the party-opponent provision in the Indiana Rules of Evidence applies to statements by government employees concerning matters within the scope of their agency or employment), trans. denied.

Assuming that the C.I.’s statements were otherwise admissible but erroneously excluded on hearsay grounds, this does not end our inquiry. “When a statement has been excluded from evidence that was not in fact hearsay, this Court will review the trial court’s decision under a harmless error analysis.” Miller v. State, 720 N.E.2d 696, 704 (Ind.1999). An error will be found harmless if, in light of the totality of the evidence in the case, its probable impact on the jury is sufficiently minor so as not to affect the substantial rights of the parties. Id.

The offer of proof included Turner’s testimony that: the C.I. had contacted him in August asking if Turner could procure cocaine or point him in the right direction; Turner had initially refused; the C.I. had made six to twelve calls, increasing the amount to be offered; Turner was concerned because the C.I.’s actions were out of character and he seemed to be in trouble; and, ultimately the C.I. made Turner an offer that he acted upon. Tr. 154-57.

Thereafter, with the jury present, Turner testified: that the C.I. called him between six and twelve times in the month of August; they had not discussed cocaine sales prior to August; Turner was “very needed to produce cocaine” for the C.I. (Tr. 171); Turner’s financial situation was deteriorating at the same time he was detecting “urgency” on the part of the C.I. (Tr. 172); on August 30, Turner received a phone call from the C.I. “different” from the others, where “the intensity was basically up the ante” and the C.I. seemed “frantic,” and “almost crazy.” (Tr. 174.)

Accordingly, the jury was ultimately advised of the C.I.’s statements deemed relevant by Turner, with one notable exception. The jury was not specifically advised that the C.I. had offered an increased amount of money, consistent with Turner’s offer of proof. However, the jury did hear Turner’s testimony that “the intensity was basically up the ante.” (Tr. 174.) The fact-finder could have reasonably interpreted this to include offering more cash, particularly in light of the fact that Turner stated that his finances had been deteriorating and there was no indication that the C.I. ever offered anything of a non-monetary nature to induce the transaction. Turner presented his version of events to the jury. The exclusion of a specific statement that a higher monetary offer was made by the C.I. is, at most, harmless error.

II. Sufficiency of Evidence of Predisposition

Indiana Code section 35-41-3-9 provides:

(a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

Entrapment is established as a matter of law if the defendant shows police inducement and the state fails to show predisposition on the part of the defendant to commit the crime charged. Dockery v. State, 644 N.E.2d 573, 577 (Ind.1994). For the State to overcome an entrapment defense, the State must prove beyond a reasonable doubt either “the defendant’s conduct was not a product of the efforts of a law enforcement officer or that the accused was predisposed to engage in the conduct.” McGowan v. State, 674 N.E.2d 174, 175 (Ind.1996). Whether a defendant is predisposed to commit the crime charged is a question for the trier of fact. Dockery, 644 N.E.2d at 577. Turner contends that the State failed to present evidence showing his predisposition to sell cocaine.

We review a claim of entrapment using the same standard applicable to other challenges to the sufficiency of the evidence. Id. at 578. We consider only the evidence and reasonable inferences that support the verdict, and we will neither reweigh the evidence nor judge the credibility of witnesses. Id. We will uphold a conviction if there is substantial evidence of probative value from which a reasonable trier of fact could infer that the appellant was guilty beyond a reasonable doubt. Id.

A jury may properly find predisposition from such circumstances as familiarity with drug jargon and prices, engaging in multiple transactions, and undertaking to arrange future transactions. Riley v. State, 711 N.E.2d 489, 494 (Ind.1999).

Turner was able to produce around seven ounces of cocaine, an amount more consistent with a dealer than a typical user. Telling Detective Nuetzman that he wanted to “be safe,” Turner asked Detective Nuetzman to “go ahead and try the cocaine.” (Tr. 91.) Detective Nuetzman protested that he “didn’t smoke it” and Turner corrected him: “it wasn’t what you smoke — it’s soft.” (Tr. 91.) Turner advised the detective that the cocaine was “bricked up.” (Tr. 92.) According to Detective Nuetzman, the description is consistent with the cocaine having been taken from a one kilogram brick. After the transaction was concluded, Turner told Detective Nuetzman to “go ahead and give him a call” if he “needed anything else tonight.” (Tr. 98.)

This evidence indicates that Turner was familiar with drug jargon and was soliciting a future transaction. As such, there is sufficient evidence to permit the jury to conclude beyond a reasonable doubt that Turner was predisposed to deal cocaine.

Conclusion

We find no reversible error in the trial court’s exclusion of testimony that the C.I. offered an increased purchase price. The State presented sufficient evidence of Turner’s predisposition to commit the charged crime to overcome the defense of entrapment.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . Ind.Code § 35-48-4-1.

      . Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).

      .A statement is not hearsay if the "statement is offered against a party and is (A) the party’s own statement, in either an individual or representative capacity; or ... (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship]!]"