      MEMORANDUM DECISION                                            FILED
                                                                Aug 10 2016, 7:43 am
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                     CLERK
      Memorandum Decision shall not be regarded as               Indiana Supreme Court
                                                                    Court of Appeals
      precedent or cited before any court except for the              and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.




      ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
      Michael P. Misch                                          Mark F. Criniti
      Loris P. Zappia                                           Paul Edgar Harold
      Anderson, Agostino & Keller, P.C.                         Stephen M. Judge
      South Bend, Indiana                                       LaDue Curran & Kuehn LLC
                                                                South Bend, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Peter Aghimien and Mable                                 August 10, 2016
      Aghimien,                                                Court of Appeals Case No.
                                                               71A03-1602-CT-291
      Appellants-Plaintiffs,
                                                               Appeal from the St. Joseph Circuit
              v.                                               Court.
                                                               The Honorable Michael G. Gotsch,
                                                               Judge.
      Mark Fox,                                                Cause No. 71C01-1407-CT-253
      Appellee-Defendant.




      Friedlander, Senior Judge

[1]   Peter Aghimien and Mable Aghimien appeal the trial court’s grant of summary

      judgment in favor of Mark Fox and the denial of their motion for summary

      judgment. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CT-291 | August 10, 2016   Page 1 of 7
[2]   Peter Aghimien, Douglas Agbetsiafa, and Fox were professors at the Judd

      Leighton School of Business and Economics at Indiana University-South
              1
      Bend. In June 2012, Fox read an article Aghimien and Agbetsiafa had co-

      authored, and he believed the article contained plagiarized passages. He did

      further research and found other articles co-written by Aghimien and

      Agbetsiafa that he also believed contained plagiarized passages. Fox reported

      the matter to Indiana University’s Research Integrity Office, which opened an

      investigation.


[3]   On October 2, 2012, while the investigation was pending, Jamshid Mehran,

      who was the chair of finance, banking, and international business at Indiana

      University-South Bend, sent an email to eight faculty members and the dean of

      the business school. Mehran proposed a date for the faculty members to meet

      to select a chairperson for the committee that governed promotion, tenure, and

      reappointment of faculty. Appellee’s App. p. 2. On October 4, 2012, Fox

      emailed the following response to his seven fellow faculty members, Mehran,

      and the dean:

               Dear Colleagues,




      1
        The Aghimiens have presented us with an incomplete record on appeal. The Appellants’ Appendix must
      contain “those parts of the Record on Appeal that are necessary for the Court to decide the issues presented,”
      including “pleadings and other documents from the Clerk’s Record . . . that are necessary for resolution of
      the issues on appeal.” Ind. Appellate Rule 50(A). The Aghimiens have failed to include in their Appendix
      Fox’s motion for summary judgment and designation of evidence, their own cross-motion for summary
      judgment and designation of evidence, and the parties’ responses to the cross-motions. They also failed to
      include a copy of the email that is the subject of their claim of defamation. These shortcomings have
      hampered our review of the case.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CT-291 | August 10, 2016              Page 2 of 7
              I have no interest in being chair as I am on sabbatical in the
              spring.
              I realize we do not have any formal guidelines for who should be
              a chair, but I suggest that in light of the remarkable lack of
              originality of some of the research conducted by Douglas and
              Peter that they should not be chair. Examples of this lack of
              originality are attached and you should be able to confirm these
              by checking google and library databases.
              Regards,
              Mark

[4]   Id. Fox’s attachments have not been included in the record on appeal. The trial

      court characterized the attachments as “articles . . . supporting his position and

      insinuation that Aghimien had plagiarized.” Appellants’ App. p. 9.


[5]   Indiana University’s investigation ultimately cleared Aghimien of wrongdoing

      and determined Agbetsiafa was responsible for the plagiarized passages. Next,

      Aghimien and his wife, Mable, sued Fox, claiming defamation, tortious

      interference with a business relationship, intentional infliction of emotional

      distress, and loss of consortium. The defamation claim was based on the

      October 4, 2012 email and other communications not at issue in this appeal.

      Fox filed a motion for summary judgment, and the Aghimiens filed a cross-

      motion for summary judgment. After a hearing, the trial court granted Fox’s

      motion and denied the Aghimiens’ motion. This appeal followed.


[6]   The Aghimiens claim the trial court should have granted summary judgment in

      their favor on Peter’s claim for defamation arising from Fox’s October 4, 2012

      email. Orders for summary judgment are reviewed de novo, and we use the


      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CT-291 | August 10, 2016   Page 3 of 7
      same standard of review as the trial court. AM General LLC v. Armour, 46

      N.E.3d 436 (Ind. 2015). A party is entitled to summary judgment upon

      demonstrating the absence of any genuine issue of fact as to a determinative

      issue unless the nonmoving party comes forward with contrary evidence

      showing an issue of fact for trial. Dugan v. Mittal Steel USA, 929 N.E.2d 184

      (Ind. 2010). We construe all facts and reasonable inferences in favor of the

      nonmoving party. Id. Our standard of review does not change when there are

      cross-motions for summary judgment. Liberty Mut. Fire Ins. Co. v. Beatty, 870

      N.E.2d 546 (Ind. Ct. App. 2007). The reviewing court must consider each

      motion separately to determine whether the moving party is entitled to

      judgment as a matter of law. Id.


[7]   The law of defamation was created to protect individuals from reputational

      attacks. Meyer v. Beta Tau House Corp., 31 N.E.3d 501 (Ind. Ct. App. 2015). To

      establish a claim of defamation, a plaintiff must prove the existence of a

      communication with defamatory imputation, malice, publication, and

      damages. Wartell v. Lee, 47 N.E.3d 381 (Ind. Ct. App. 2015), trans. denied.

      Whether a communication is defamatory is generally a question of law for the

      court, but the determination becomes a question of fact for the jury if the

      communication is reasonably susceptible to either a defamatory or non-

      defamatory interpretation. Hamilton v. Prewitt, 860 N.E.2d 1234 (Ind. Ct. App.

      2007), trans. denied. In determining whether a defamatory meaning is possible,

      we test the effect that the statement is fairly calculated to produce and the

      impression it would naturally engender in the mind of the average person. Id.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CT-291 | August 10, 2016   Page 4 of 7
[8]    In his email, Fox insinuated that Aghimien had engaged in professional

       misconduct. The email is not reasonably susceptible to a different

       interpretation. Thus, whether the email established all of the elements of

       defamation was a question of law for the trial court.


[9]    This case turns upon the element of malice. An individual bringing a

       defamation action must show actual malice in matters of public or general

       concern. Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446 (Ind. 1999).

       Actual malice exists when the defendant publishes a defamatory statement

       “with knowledge that it was false or with reckless disregard of whether it was

       false or not.” Id. at 456 (quoting New York Times Co. v. Sullivan, 376 U.S. 254,

       279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964)). A defendant’s actual state

       of mind is a critical factor in the analysis. Id. A defendant’s state of mind is a

       subjective fact and may be shown by indirect or circumstantial evidence. Id.


[10]   Fox’s email alleged faculty misconduct, specifically that Aghimien and

       Agbetsiafa had included plagiarized material in published articles. Claims of

       professional, public misconduct by employees at a state-supported university

       are a matter of public concern. See Poyser v. Peerless, 775 N.E.2d 1101 (Ind. Ct.

       App. 2002) (circumstances of a teacher’s firing treated as a matter of public

       interest); cf. Beeching v. Levee, 764 N.E.2d 669 (Ind. Ct. App. 2002) (workplace

       dispute between principal and teachers at a public school did not qualify as a

       matter of public interest). As a result, the actual malice standard applies here.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CT-291 | August 10, 2016   Page 5 of 7
[11]   Turning to the trial court’s grant of summary judgment to Fox, we view the

       facts in the light most favorable to the nonmovants, the Aghimiens. In the

       email and in his summary judgment pleadings, Fox cited to specific evidence to

       establish his sincere belief that Aghimien had committed professional

       misconduct. Specifically, Fox summarized his review of Aghimien and

       Agbetsiafa’s articles for evidence of plagiarism and provided examples of their

       articles compared with the articles from which he believed passages were taken

       without attribution. Appellee’s App. pp. 5-6. It appears that in the email in

       question, Fox expressed a good-faith opinion that neither of his colleagues

       should be the chairperson in light of what he viewed as their misconduct.


[12]   The Aghimiens have not pointed to any countervailing evidence that indicates

       Fox falsely or recklessly accused Aghimien of plagiarism. As a result, there was

       no dispute of material fact on the element of actual malice, and the trial court

       properly granted summary judgment to Fox on the Aghimiens’ claim of
                       2
       defamation. See Poyser, 775 N.E.2d 1101 (trial court did not err in granting

       summary judgment on defamation claim; plaintiff failed to provide any

       evidence to show defendants knew or were reckless as to whether their

       statements were false). Furthermore, because the defamation claim is without

       merit, the trial court did not err in denying the Aghimiens’ motion for summary

       judgment.




       2
        Fox argues his email was covered by a qualified privilege and that the email was not defamatory because it
       contained true statements. We do not need to reach those issues.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CT-291 | August 10, 2016            Page 6 of 7
[13]   For the reasons stated above, we affirm the trial court’s judgment.


[14]   Judgment affirmed.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CT-291 | August 10, 2016   Page 7 of 7
