                                                            FILED
                                                          Jan 30 2013, 8:51 am


                                                                 CLERK
FOR PUBLICATION                                                of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEY FOR APPELLEES:

THOMAS D. COLLIGNON                              CORY BRUNDAGE
Collignon & Dietrick, P.C.                       Cory Brundage, LLC
Indianapolis, Indiana                            Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

PETER F. AMAYA,                                  )
                                                 )
      Appellant-Plaintiff,                       )
                                                 )
             vs.                                 )     No. 49A04-1204-PL-208
                                                 )
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.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Cynthia J. Ayers, Judge
                           Cause No. 49D04-1008-PL-37460


                                    January 30, 2013

                              OPINION - FOR PUBLICATION

CRONE, Judge
                                       Case Summary

          Peter F. Amaya was dismissed from Indiana University School of Medicine for failure

to maintain acceptable professional standards by allegedly cheating on an examination. He

filed a lawsuit against 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.

(hereinafter collectively referred to as “IUSM”), alleging multiple claims including breach of

contract and breach of good faith and fair dealing. IUSM moved for summary judgment on

those claims. Following a hearing, the trial court granted summary judgment in favor of

IUSM. Amaya now appeals. The sole issue raised on appeal is whether the trial court erred

when it entered summary judgment in favor of IUSM. Finding that no genuine issue of

material fact remains on these claims and that judgment as a matter of law is appropriate, we

affirm.

                                Facts and Procedural History

          The relevant undisputed facts indicate that in the spring of 2010, Amaya, an Ohio

resident, was a third-year medical student at Indiana University School of Medicine located

in Indianapolis. He was attending medical school on scholarship. On March 29, 2010,

Amaya sat for a combined mini-block examination consisting of Introduction to Clinical

Medicine II, Pharmacology, and Pathology. Three professors, Drs. DiMicco, Hilgarth, and

Prag, each observed Amaya during the examination and concluded that he was cheating by

looking at the paper of the student to his right. On March 30, 2010, Dr. DiMicco confronted
Amaya with his observations, and Amaya denied cheating on the mini-block examination.

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. Amaya denied that he cheated or that he engaged in any behavior

that gave the appearance of cheating.1 Amaya maintained that he was merely looking over

and up at the clock on the right-hand wall of the testing room.

       On April 21, 2010, Dr. Treadwell, the chair of the Student Promotions Committee (the

“SPC”), wrote to Amaya and notified him that he had been accused of cheating by Drs.

DiMicco and Hilgarth and that, if true, his behavior constituted a serious breach of

professionalism and a violation of the medical school’s Honor Code. Dr. Treadwell

informed Amaya 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

medical school “for failure to maintain acceptable professional standards.” Appellant’s App.

at 42. Amaya was provided copies of written correspondence from Drs. DiMicco, Hilgarth,

and Prag, wherein they each explained the basis of their allegations of cheating.

       Prior to the show cause hearing, Amaya met with James Brokaw, Ph.D., the associate

dean for Admissions and Medical Student Affairs. The purpose of the meeting was for Dr.

Brokaw to help Amaya 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, made a

PowerPoint presentation, and tendered a written submission including photographs, field


       1
           Dr. Prag did not directly confront Amaya with her observations.

                                                     3
studies, timelines, and statistical analysis. Again, Amaya 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. Following the presentation, the SPC voted to table further

deliberation of the case until June 7, 2010, so it could thoroughly review Amaya’s

information and then “deliberate with utmost seriousness and give due consideration to the

evidence presented.” Id. at 132.

       Between May 17, 2010, and June 7, 2010, a seven-person subcommittee of the SPC

continued to evaluate Amaya’s information. The subcommittee directed additional written

questions to Drs. DiMicco, Hilgarth, and Prag. On June 1, 2010, the subcommittee sent the

written responses of Drs. DiMicco, Hilgarth, and Prag, to Amaya, and Amaya was permitted

to reply to the SPC with his own written responses to their comments. The subcommittee also

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. The field tests revealed that “proctors can easily

distinguish between glances up at the clock and glances down and to the right.” Id. at 144.

       On June 9, 2010, the SPC wrote to Amaya and informed him that based upon his

presentation, all the written documentation and responses from the three witnesses, his

responses thereto, as well as the results of field tests which evaluated his contention that he

was merely looking at the clock, the SPC believed that “the preponderance of evidence

supports the charge of ethical misconduct (cheating) during the mini-block exam on March

29, 2010.” Id. The letter reminded Amaya that, pursuant to the medical school’s Student


                                              4
Handbook, “Dishonesty of any kind with respect to examinations … shall be considered

cheating. It is the responsibility of the student not only to abstain from cheating but, in

addition, to avoid the appearance of cheating ….” Id. at 145. Amaya was informed that the

SPC had voted to recommend to Dean Brater that Amaya be “dismissed from medical school

for failure to maintain acceptable professional standards.” Id. at 144. Amaya was also

advised that, pursuant to the Student Handbook, he was entitled to request a reconsideration

hearing.

       Amaya requested reconsideration, and a reconsideration hearing was held on July 19,

2010. Amaya presented additional testimony and documentation. Thereafter, the SPC

declined to reverse its earlier recommendation for dismissal. Amaya then appealed the SPC’s

recommendation to Dean Brater. Prior to meeting with Amaya, Dean Brater 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.

The test revealed that the proctors “could tell what direction the accused was looking by eye

movement alone.” Id. at 150. On August 13, 2010, Dean Brater met with Amaya and

reviewed all the material submitted by Amaya and considered by the SPC. On August 18,

2010, Dean Brater advised Amaya that he would not reverse the SPC’s recommendation and

that Amaya was dismissed from Indiana University School of Medicine.

       On August 25, 2010, Amaya filed a verified complaint for temporary restraining

order, preliminary injunction, permanent injunction, and other relief against IUSM.

Following a hearing, the trial court denied Amaya’s application for preliminary injunction on


                                             5
September 27, 2010. Amaya’s second amended verified complaint alleged count I, violation

of due process, count II, dismissal 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.

        On September 27, 2011, IUSM filed a motion for summary judgment and designation

of evidence on counts IV and V. IUSM also filed a motion to dismiss counts I, II, and III. A

hearing was held on both motions on February 22, 2012. On March 27, 2012, the trial court

issued an order denying IUSM’s motion to dismiss counts I and II and granting IUSM’s

motion to dismiss count III. In that same order, the trial court granted IUSM’s motion for

summary judgment as to counts IV and V.

        Finding no just reason for delay, the trial court entered final judgment as to counts III,

IV, and V on April 9, 2012.2 Amaya now appeals the trial court’s entry of summary

judgment on counts IV and V. We will state additional facts in our discussion where

necessary.

                                      Discussion and Decision

        When reviewing a trial court’s order granting summary judgment, we apply the same

standard as the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind. 2008).

Summary judgment is appropriate only where the designated evidentiary matter shows “that

there is no genuine issue as to any material fact and that the moving party is entitled to



        Apparently, as of the date of the filing of Amaya’s appellant’s brief, IUSM has a motion for summary
        2

judgment on counts I and II pending before the trial court. Appellant’s Br. at 2.


                                                     6
judgment as a matter of law.” Ind. Trial Rule 56(C). A fact is material if its resolution

would affect the outcome of the case. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

An issue is genuine if the trier of fact is required to resolve the parties’ differing accounts of

the truth or if the undisputed material facts support conflicting reasonable inferences. Id.

       On appeal, we must determine whether there is a genuine issue of material fact and

whether the trial court has correctly applied the law. First Farmers Bank & Trust Co. v.

Whorley, 891 N.E.2d 604, 607-08. (Ind. Ct. App. 2008), trans. denied. In doing so, we

consider the designated evidence in the light most favorable to the non-moving party. Id. at

608.   A trial court’s grant of summary judgment arrives on appeal cloaked with a

presumption of validity, and the appellant bears the burden of demonstrating that the grant of

summary judgment was erroneous. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695-96

(Ind. Ct. App. 2006).

       Here, the trial court entered findings of fact and conclusions thereon in support of its

summary judgment ruling. We note that the trial court is not required to provide written

findings and conclusions on summary judgment and that the conclusions are not binding on

appeal. First Farmers Bank, 891 N.E.2d at 608. However, the trial court’s findings and

conclusions offer us valuable insight into the trial court’s rationale that facilitates our

appellate review. Id. We may affirm based on any theory argued by the parties and

supported by the record. Shepard v. Schurz Commc’ns, Inc., 847 N.E.2d 219, 224 (Ind. Ct.

App. 2006).




                                                7
       We begin by noting that in counts IV and V, Amaya raises two separate theories of

liability against IUSM: (1) breach of contract, and (2) breach of the duty of good faith and

fair dealing. While we will later explain the nature of the contractual relationship between

student and university, we agree with IUSM that a separate cause of action for alleged breach

of duty of good faith and fair dealing is inapposite here. The duty of good faith and fair

dealing is a concept created by the Uniform Commercial Code and restricted to contracts for

the sale of goods and is also a concept which our courts have expanded to insurance contracts

as a cause of action sounding in tort. See Ford Motor Credit Co. v. Garner, 688 F. Supp.

435, 442 (N.D. Ind. 1988) (finding that duty of good faith supplied by Indiana’s Uniform

Commercial Code is specifically restricted to contracts within Indiana Code Article 26-1);

Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind. 1993) (recognizing that insurance

companies have an implied contractual duty of good faith the breach of which sounds in tort;

damages for breach of duty of good faith likely to be coterminous with those recoverable in

breach of contract action). As Amaya fails to direct us to, and we are unaware of, any

authority for the proposition that a separate cause of action for breach of good faith exists

here, we conclude that counts IV and V of Amaya’s complaint are duplicative and raise only

one claim for breach of contract against IUSM. Accordingly, the sole issue for our

determination on appeal is whether the trial court erred when it entered summary judgment

on Amaya’s claim for breach of contract.

       In Neel v. Indiana University Board of Trustees, 435 N.E.2d 607, 610 (Ind. Ct. App.

1982), we characterized the legal relationship between a student and a university as one of


                                             8
implied contract. We explained that, although courts have analyzed the relationship under

many different legal doctrines, “[t]he most pervasive and enduring theory is that the

relationship between a student and an educational institution is contractual in nature. The

terms of the contract, however, are rarely delineated, nor do the courts apply contract law

rigidly.” Id. at 610. It is generally well accepted that the catalogues, bulletins, circulars, and

regulations of a university made available to the matriculant become of part of the contract.

See Ross v. Creighton Univ., 957 F. 2d 410, 416 (7th Cir. 1992) (noting consensus from

numerous states).

       Indiana courts have taken a very flexible approach to the scope of contractual

promises between students and universities and have noted that hornbook rules cannot be

“applied mechanically where the principal is an educational institution” and the result would

be to override an academic determination. Neel, 435 N.E.2d. at 611 (citations omitted).

Indeed, “[b]ecause such determinations rest in most cases upon the subjective professional

judgment of trained educators, the courts have quite properly exercised the utmost restraint in

applying traditional legal rules to disputes within the academic community.” Id.

Accordingly, although an implied contract exists between the student and the university, the

nature of the terms vary:

       In the area of academic services, the courts’ approach has been similar to that
       used with contracts conditioned upon the satisfaction of one party. The
       university requires that the student’s academic performance be satisfactory to
       the university in its honest judgment. Absent a showing of bad faith on the
       part of the university or a professor, the court will not interfere. The good
       faith judgment model both maximizes academic freedom and provides an
       acceptable approximation of the educational expectations of the parties.


                                                9
Id; Gordon v. Purdue Univ., 862 N.E.2d 1244, 1251 (Ind. Ct. App. 2007).

       In this context, “bad faith is not simply bad judgment or negligence[, r]ather, it implies

the conscious doing of a wrong because of dishonest purpose or moral obliquity.” Gordon,

862 N.E.2d at 1251. Literal adherence by a university to its internal rules will not be required

when the dismissal of a student “rests upon expert judgments as to academic or professional

standards and such judgments are fairly and nonarbitrarily arrived at.” Neel, 435 N.E.2d at

612 (citation omitted). In other words, the sole function of courts is to determine whether the

educational institution acted illegally, arbitrarily, capriciously, or in bad faith. Neel, 435

N.E.2d at 613; Gordon, 862 N.E.2d at 1252; Gagne v. Trs. of Ind. Univ., 692 N.E.2d 489,

496 (Ind. Ct. App. 1998), trans. denied.

        Amaya’s claims regarding IUSM’s alleged breach of contract are so voluminous that

we choose not to reproduce them here. In short, he contends that IUSM breached its implied

contract with him by failing to publish “its standards and procedures for the evaluation,

advancement, and graduation of its students and for disciplinary action” in accordance with

the accreditation standards of the Liaison Committee on Medical Education (“LCME”) and

the Indiana University Code of Student Ethics. Appellant’s Br. at 15. He also contends that

IUSM failed to follow its own internal policies and procedures for disciplinary misconduct

and to “guarantee students in the unit a fair opportunity to be heard consistent with the




                                              10
standards of evidence and due process found” in the Code of Student Ethics and the LCME’s

accreditation standards. Id. at 16.3

        However, even assuming that an implied contract existed between Amaya and IUSM,

and even assuming that IUSM failed to strictly follow the procedures outlined in all its

handbooks and codes or to publish its procedures in specific accordance with accreditation

standards as asserted by Amaya, that does not automatically lead to a finding of breach of

contract on the part of IUSM. It is well settled that before a court will intervene into the

implied contractual relationship between student and university, there must be some evidence

that the university acted arbitrarily or in bad faith. See Neel, 435 N.E.2d at 613; Gordon, 862

N.E.2d at 1252; Gagne v. Trs. of Ind. Univ., 692 N.E.2d 489, 496 (Ind. Ct. App. 1998), trans.

denied. Amaya has failed to designate any such evidence here.

        IUSM’s Student Handbook provides that the SPC is appointed by the dean to monitor

student academic and professional standards as determined by the faculty. Appellant’s App.

at 205. Section V(F), entitled “Dismissal,” provides that “[a] student may be required to

meet with the [SPC] to show cause why he/she should not be dismissed from school when

he/she: … H. has been cited for lack of acceptable academic ethics or professional behavior.”

Id. at 206. The designated evidence indicates that three faculty members observed Amaya

cheating during the mini-block examination. Amaya was informed of these observations and

was requested to prepare for a show cause hearing before the SPC. Amaya appeared before


        3
          Although we decline to address Amaya’s claims regarding the LCME accreditation standards in
detail, we note our agreement with the trial court that the LCME accreditation standards do not form part of the
implied contract between Amaya and IUSM. The LCME accreditation standards are part of an agreement
between the LCME and IUSM. Appellant’s Br. at 40 (Conclusion 11).

                                                      11
the SPC and presented a PowerPoint presentation. He also “tendered voluminous written

material, including photographs, field studies, experts’ reports, timelines, and statistical

analysis.” Id. at 15. Following Amaya’s presentation, the SPC tabled its vote in order to

further deliberate and thoroughly review Amaya’s information. The SPC also asked for

written submissions from the three faculty members and from Amaya. Thereafter, Amaya

was informed that a subcommittee of the SPC had conducted field tests to determine the

validity of the information he had submitted. Considering the results of those field tests as

well as the written responses to additional questions, the SPC determined that the evidence

supported the charge of cheating. Amaya was granted his request for a reconsideration

hearing as provided by section VI of the Student Handbook. Id. at 206. When the SPC

declined to reverse its decision, Amaya was then afforded the opportunity to meet with the

dean for further review as provided for in the Student Handbook.          Id. at 207. After

considering all the evidence presented, the Dean determined that dismissal was warranted.

       Based upon the record before us, we conclude that IUSM substantially followed its

published procedures for dismissal, and Amaya has failed to designate any evidence to

indicate that IUSM’s decision to dismiss Amaya was arbitrary, capricious, or made in bad

faith. IUSM’s conclusion that Amaya failed to maintain acceptable professional standards

was a rational determination arrived at after much deliberation and after Amaya had

numerous opportunities to be heard and to explain his behavior. In support of his assertion

that IUSM acted in bad faith, Amaya makes various conclusory allegations including that Dr.

DiMicco withheld evidence, that Dr. Brokaw misled him during his meeting, that Dr.


                                             12
Treadwell misled him during the show cause hearing, that the SPC inappropriately speculated

regarding facts, and that Dean Brater failed to disclose the second field test to him.

However, we agree with the trial court that other than these conclusory allegations, Amaya

has failed to designate any facts which would support a reasonable inference that IUSM

engaged in “the conscious doing of a wrong because of dishonest purpose or moral obliquity”

or had “a state of mind affirmatively operating with furtive design or ill will.” Gordon, 862

N.E.2d at 1253.

       We note that our judicial deference to the foregoing expert judgments as to Amaya’s

failure to meet professional standards is dictated by the fact that the administrators and

directors of IUSM have a duty to the public as well as to the student. To place incompetent,

irresponsible, or unethical doctors into active practice would surely be to the detriment of the

health and safety of the members of society. See Neel, 435 N.E.2d at 613 (noting that

directors of dental school have duty to refrain from placing irresponsible dentists into private

practice). Courts are ill-equipped to second-guess professional judgments that are non-

arbitrarily arrived at.

       Amaya has not met his burden to establish that the trial court erred when it entered

summary judgment on his breach of contract claim. No genuine issue of material fact

remains on this issue. Accordingly, judgment as a matter of law in favor of IUSM is

appropriate. We affirm the trial court’s entry of summary judgment on counts IV and V of

Amaya’s second amended complaint.




                                              13
      Affirmed.

ROBB, C.J., and BARNES, J., concur.




                                      14
