MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS

Michael P. Misch

Loris P. Zappia

Anderson, Agostino & Keller, P.C.

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Mark F. Criniti

Paul Edgar Harold

Stephen M. Judge

LaDue Curran & Kuehn LLC

South Bend, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Peter Aghimien and Mable 

Aghimien,

Appellants-Plaintiffs,

v.

Mark Fox,

Appellee-Defendant.

August 10, 2016

Court of Appeals Case No.

71A03-1602-CT-291

Appeal from the St. Joseph Circuit 

Court.

The Honorable Michael G. Gotsch, 

Judge.

Cause No. 71C01-1407-CT-253

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 

Bend.1

 In June 2012, Fox read an article Aghimien and Agbetsiafa had coauthored, 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 crossmotion 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 nondefamatory 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 

defamation.

2

 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