Peter Aghimien and Mable Aghimien v. Mark Fox (mem. dec.)

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