Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
W EIDMAN , A PPELLEE , v. H ILDEBRANT , A PPELLANT .
[Cite as
Weidman v. Hildebrant
,
applies to claims of libel based on reputational injuries when the publication of the libelous statements was secretive, concealed, or otherwise inherently unknowable to plaintiff due to nature of the publication — Discovery rule applies to derivative claims that are premised on the same allegations as the claim of libel —Court of appeals’ judgment affirmed and cause remanded.
(Nos. 2022-0837 and 2022-1042 — Submitted May 16, 2023 — Decided August 8,
2024.)
A PPEAL from and ERTIFIED by the Court of Appeals for Warren County,
No. CA2021-09-084,
D ONNELLY , J.
I. INTRODUCTION In this appeal, we are asked to determine when a cause of action for
libel accrues when the reputational injury caused to the defamed person is inherently unknowable because the publication of the libelous statements was secretive or concealed. We hold that the discovery rule applies to claims of libel based on reputational injuries when the publication of the libelous statements was secretive, concealed, or otherwise inherently unknowable to the plaintiff due to the nature of the publication. We also hold that the discovery rule applies to derivative claims that are premised on the same allegations as the claim of libel. Accordingly, we affirm the judgment of the Twelfth District Court of Appeals.
II. FACTS AND PROCEDURAL HISTORY Appellant, Christopher Hildebrant, is a Cincinnati-based real-estate
developer. In 2011, Hildebrant facilitated the sale of property owned by SDI Foods, Inc. (“SDI Foods”) , to Sycamore Township for development. If SDI Foods successfully sold the property to Sycamore Township, Hildebrant expected to receive a consulting fee from both Sycamore Township and SDI Foods. During the facilitation of the transaction, Hildebrant worked with SDI Foods representative Stanford Roberts and the Sycamore Township Board of Trustees, a board on which appellee, Thomas Weidman, served. Hildebrant has alleged that Roberts and Weidman each sought a kickback from Hildebrant, whose consulting fees for the transaction would have been substantial. Hildebrant has further alleged that Weidman threatened to block the transaction unless he received his payment. Hildebrant has claimed that in order to appease them and “save the deal,” he told both Roberts and Weidman that he would pay each of them, although Hildebrant has also asserted that he never intended to make either payment. Hildebrant has claimed that he never paid any money to either
Weidman or Roberts but that Roberts aggressively pursued the illicit payment. To alleviate the pressure, Hildebrant created a fictitious email account with the address tweidman12@gmail.com and sent an email (the “2011 email”) from that account to himself on December 20, 2011. The email portrayed Weidman as having accepted an illicit payment from Hildebrant and demanding more payments in exchange for his support in another real-estate transaction. Hildebrant forwarded the 2011 email to Roberts to show that he did not have enough money to pay Roberts, because Weidman had already demanded significant payments. The 2011 email remained private between Hildebrant and Roberts for the next several years.
{¶ 4} In 2019, Hildebrant sought to purchase a parcel of land owned by Sycamore Township on behalf of his development group. The parcel purchase required unanimous consent by the Sycamore Township Board of Trustees, on which Weidman still served. Weidman opposed the sale of the parcel of land.
{¶ 5} On January 25, 2020, Hildebrant met with Sycamore Township Trustee James LaBarbara and Sycamore Township Administrator Raymond Warrick to discuss the parcel purchase. During the meeting, Hildebrant asserted that Weidman ’s opposition to the sale was in retaliation for Hildebrant’s failure to pay Weidman a kickback from the SDI Foods transaction in 2011 and Hildebrant showed the 2011 email to LaBarbara and Warrick.
{¶ 6} Because the 2011 email revealed potential illegal conduct, the auditor of Ohio was notified and an investigation was initiated. The a uditor’s special- investigations u nit (“SIU”) subpoenaed the 2011 email. On November 18, 2020, Weidman first learned of the 2011 email during an interview with investigators from the SIU. Weidman denied the 2011 email’s authenticity, telling the investigators he owned no such email address and did not write the email. Weidman did not receive a copy of the 2011 email until January 2021. Weidman filed suit against Hildebrant on February 17, 2021, claiming
defamation, intentional infliction of emotional distress (“IIED”) , and false-light invasion of privacy. In his answer, Hildebrant admitted that he had created the 2011 email and had shared it with LaBarbara and Warrick but raised the affirmative defense that Weidman’s claims were barred by the statute of limitations. Hildebrant filed a motion for summary judgment, arguing that because the 2011 email, which forms the basis of Weidman’s claims, was forwarded to Roberts in December 2011, Weidman’s defamation claim was time- barred. Likewise, Hildebrant argued that the IIED and false-light-invasion-of- privacy claims were also time-barred because those claims are derivative of the alleged defamation. Alternatively, Hildebrant argued that even if the court found that the date of publication was January 25, 2020 — when the 2011 email was first shown to LaBarbara and Warrick — the claims were still time-barred because the complaint was filed in February 2021, more than a year after the publication to LaBarbara and Warrick.
{¶ 9} Weidman opposed the motion for summary judgment, arguing that the “discovery rule” applied because the publication of the 2011 email had been done in secret. Weidman argued that the running of the statute-of-limitations period had been tolled until November 2020 when he learned about the 2011 email during the SIU interview. The trial court granted Hildebrant’s motion for summary judgment,
relying on
Rowan v. Schaffer
,
reversed, holding that the discovery rule applied to defamation claims when the
publication of the defamatory statements was secretive, concealed, or otherwise
inherently unknowable.
Does the discovery rule apply to libel actions where the publication of the defamatory statements was secretive, concealed, or otherwise unknowable such that the cause of action does not accrue until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, that he or she was injured by the wrongful conduct of the defendant? Where a derivative claim is premised upon the same allegations, does the discovery rule apply to that claim as well?
III. ANALYSIS
{¶ 12}
We review matters requiring statutory interpretation de novo.
Stewart v. Vivian
,
commenced within one year after the cause of action accrued .” Because the statute
does not define the term “accrued , ” we apply the plain and ordinary meaning of
that term.
See State v. Chappell
,
A. Discovery Rule
In
Norgard v. Brush Wellman, Inc.
,
the general rule that “a cause of action accrues and the statute of limitations begins
to run at the time the wrongful act was committed.” We have, however, recognized
the discovery rule as an exception to this general rule.
Id.
Under the discovery
rule, “a cause of action does not arise until the plaintiff discovers, or by the exercise
of reasonable diligence should have discovered, that he or she was injured by the
wrongful conduct of the defendant.”
Id.
, citing
Collins v. Sotka
,
in several different contexts. In
O’Stricker
, we applied the discovery rule to claims
of bodily injury related to asbestos exposure. There, the plaintiff had been regularly
exposed to asbestos at his job.
O’Stricker
at 84. Asbestos is a known carcinogenic
agent, exposure to which may cause a latent disease with a gestation period of up
to 30 years.
Id.
at 84, 86, 89. Based on the circumstances of that case, we concluded
that the discovery rule applied to bodily-injury actions under R.C. 2305.10.
Id.
at
paragraph two of the syllabus (“ When an injury does not manifest itself
immediately, the cause of action does not arise until the plaintiff knows or, by the
exercise of reasonable diligence should have known, that he had been injured by
the conduct of defendant . . . . ”). Put plainly, we found that application of the
discovery rule was necessary to avoid the unconscionable result of barring the
plaintiff from recovery before he even knew that he had been injured.
See id.
at 89.
In
Oliver
, we applied the discovery rule to medical-malpractice
claims,
Oliver
at syllabus, which at the time, were subject to a one-year time bar
under the same statute at issue here, R.C. 2305.11(A),
Oliver
at 112.
[1]
In
Skidmore
& Hall v. Rottman
,
dates to
Pearl v. Koch
,
2. The first dissenting opinion correctly notes that this court has not uniformly applied the discovery
rule, dissenting opinion of Kennedy, C.J., ¶ 52; this is because the rule has been applied in narrow
circumstances, as here, to prevent an unconscionable result. In this case, the first dissenting opinion
expresses empathy for Weidman, the person who was allegedly defamed.
See id.
at ¶ 60. The tenor
of the first dissent, however, ultimately sympathizes with the alleged wrongdoer, Hildebrant, who
is alleged to have intentionally created a fictitious email account, written the 2011 email and sent
that email to himself from the fictitious email account, published the 2011 email by forwarding it to
Roberts, and republished the 2011 email several years later by showing it to LaBarbara and Warrick
in order to impugn Weidman. If, as the first dissenting opinion states, the discovery rule does not
apply in the narrow circumstances here, this illicit practice could become a regular occurrence.
3. Many statements in the record of this case refer to “defamation,” which comprises slander and
libel.
Sweitzer v. Outlet Communications, Inc.
,
appeals have adhered to the rule announced in
Pearl
and have strictly construed the
statute of limitations for defamation,
see, e.g.
,
Kienow v. Cincinnati Children’s
Hosp. Med. Ctr.
,
B. Weidman’s Defamation Claim According to Weidman, the 2011 email containing allegedly
defamatory statements that Hildebrant forwarded to Roberts was not shared or communicated to anyone else prior to 2020. Based on the private nature of the 2011 email, Weidman alleges that he could not have known that he had suffered reputational harm until 2020 when, after a second publication of the email but in this instance to LaBarbara and Warrick, the defamatory statements were disclosed to Weidman. We conclude that Weidman could not have known of the potential 4. The first dissenting opinion accuses the majority of this court of rewriting laws and circumventing the General Assembly in this case. Dissenting opinion of Kennedy, C.J., at ¶ 39-40. We do no such thing. Instead, as we have done in other contexts such as those discussed above, we are merely determining when a cause of action for a tort accrues under certain circumstances. Specifically, we determine when a cause of action for libel accrues when the publication of the libelous statements was secretive, concealed, or otherwise inherently unknowable to the plaintiff due to the nature of the publication.
injury to his reputation until he became aware of the allegedly defamatory statements; we make no determination about when he became aware of the defamatory statements. In O’Stricker , 4 Ohio St.3d at 89, we applied the discovery rule
because asbestos exposure may cause a latent disease with a gestation period that is longer than the statutory period for bringing a claim. Here, the delay in reputational harm was not due to an inherent latency but, rather, to intentional conduct by Hildebrant to use secret communications to allegedly defame Weidman. If the cause of action for a defamation claim accrued upon the publication of the defamatory statements, a tortfeasor could conceal that publication until the statute- of-limitations period had expired. This would mean that a tortfeasor could secretly publish defamatory statements without concern that the defamed person would be able to seek recourse. “How can any one charged with the responsibility of administering justice allow such an absurdity?” Amer v. Akron City Hosp. , 47 Ohio St.2d 85, 93 (1976) (Celebrezze, J., dissenting) (urging application of the discovery rule to a husband’s claims of loss of consortium, loss of services, and medical expenses arising from an alleged medical malpractice on his wife). Statutes of limitations are a shield, not a sword. Here, according to
Weidman, the delay in his discovering the alleged injury to his reputation was
deliberately manufactured by Hildebrant. Private email communications used to
defame someone are inherently not discoverable by the defamed person until the
communication is disclosed publicly. Statutes of limitations are enacted to ensure
fairness to defendants, encourage prompt prosecution of causes of action, suppress
stale claims, and avoid difficulties of proof because of lost or eroded evidence.
Browne v. Artex Oil Co.
,
offered in the marketplace of ideas or when the defamed person gains knowledge
of the defamatory statements within the statute-of-limitations period, the discovery
rule is not applicable. As the Latin maxim aptly states, vigilantibus non
5. The first dissenting opinion reads too much into nothing when it states that “the use of the
discovery rule also directly contradicts the General Assembly’s clear intent to not extend the
discovery rule to defamation cases.” Dissenting opinion of Kennedy, C.J., at ¶ 54. That the General
Assembly is aware of the discovery rule and has not applied it to defamation claims is not proof of
anything except that the General Assembly has not applied the discovery rule to defamation claims.
One example should clarify this issue. In
Klein v. Leis
,
dormientibus aequitas subvenit — equity aids the vigilant, not those who sleep on
their rights.
New York City v. Pine
,
{¶ 23} Weidman alleges that he did not know and could not have discovered, even with the exercise of due diligence, the allegedly defamatory statements made by Hildebrant and that he was not injured until they were disclosed to him during the interview with SIU investigators. Accordingly, he argues that he could not have brought an action against Hildebrant until November 2020. He filed suit within one month of receiving a copy of the 2011 email. Hildebrant argues that applying the discovery rule to defamation
claims will unduly prejudice defendants by subjecting them to endless liability. This argument is unavailing because any unfairness to defendants is far outweighed by the undue prejudice faced by plaintiffs who are barred from recovery before they even know that they have been libeled. A tortfeasor ought not be allowed to privately libel another person and benefit from the ability to keep that libelous statement a secret. Moreover, evidence in a libel claim such as this one tends not to be
stale, because modern technology and media allow evidence to be well preserved. The 2011 email provides the exact date and time that it was sent as well as the sender and all recipients. “ [A]s problems of proof and defense dwindle, so does the persuasiveness of the ‘stale claims’ reasoning.” Melnyk v. Cleveland Clinic , Ohio St.2d 198, 200 (1972).
C. Weidman’s Derivative Claims
{¶ 26}
In addition to his defamation claim, Weidman also asserted claims
of IIED and false-light invasion of privacy against Hildebrant. To determine which
statute of limitations applies to these claims, we must look to the substance of the
claims.
Hambleton v. R.G. Barry Corp.
,
IV. CONCLUSION We hold that the discovery rule applies to claims of libel based on
reputational injuries when the publication of the libelous statements was secretive, concealed, or otherwise inherently unknowable to the plaintiff due to the nature of the publication. Because Hildebrant’s publication of allegedly libelous statements in the 2011 email was allegedly secretive, concealed, or otherwise inherently unknowable to Weidman, the cause of action for defamation may not have accrued until Weidman discovered the 2011 email on November 18, 2020. Additionally, because Weidman’s claims of IIED and false-light invasion of privacy are virtually identical to the defamation claim, the statute of limitations for those derivative claims is subject to the same discovery rule. We affirm the judgment of the Twelfth District Court of Appeals and remand the cause to the Warren County Court of Common Pleas for further proceedings.
Judgment affirmed and cause remanded.
__________________
M AYLE , J., concurring.
{¶ 29} I agree with the overall analysis and ultimate decision set forth in the majority opinion, but I wish to clarify some of my reasoning. The majority states that “we know what the General Assembly wants
by its action, not by its inaction.” Majority opinion, ¶ 21, fn. 5. This is not always true. In fact, the General Assembly’s failure to specify when a libel claim “accrue[s]” under R.C. 2305.11(A)— i.e., its inaction — while simultaneously specifying an accrual date for the tort of unlawful abortion under division (B) of that same statute is relevant to my analysis here. R.C. 2305.11(B) shows that the legislature knows how to specify
when a claim “accrues.” Under R.C. 2305.11(B), a civil action for unlawful abortion accrues on the date of the performance or inducement of the abortion or the attempt to perform or induce the abortion. Other examples of statutes that specify when a cause of action accrues include R.C. 2305.07(C) (cause of action for a claim arising out of a consumer transaction “accrues thirty calendar days after the date of the last charge or payment by, or on behalf of, the consumer, whichever is later”); R.C. 2305.091(B) (cause of action by a board of education for asbestos abatement in a board-owned building accrues “upon the date that the board of education is informed” by a certain specified entity that there is asbestos that should be removed because it poses a health hazard to users of the building); R.C. 2305.10(A) (cause of action “based on a product liability claim” and “for bodily injury or injuring personal property” accrues, subject to certain exceptions, “when the injury or loss to person or property occurs”); R.C. 2305.111(B)(1) and (2) (cause of action for a claim of assault or battery accrues on the date the alleged assault or battery occurs, unless the plaintiff did not know the identity of the tortfeasor); R.C. 2305.114 (civil action for partial-birth feticide or dismemberment feticide accrues on the date of “the commission of the offense”); and R.C. 2305.13 (cause of action for a claim in respect to a shipment of property accrues “upon the delivery, or tender of delivery thereof, by the carrier”). When the legislature has not made clear when a cause of action
accrues, “the matter has been relegated to determination by the Ohio judiciary.” Investors REIT One v. Jacobs , 46 Ohio St.3d 176, 180 (1989). This court has applied the discovery rule to determine the “accrual” of a claim when, like here, the legislature has left the matter open to the judiciary. See majority opinion at ¶ 15- 16. When doing so, this court has described the discovery rule in two
ways — sometimes within the same opinion. It has said that the discovery rule
relates to when a cause of action “accrues.”
See, e.g.
,
Flagstar Bank, F.S.B. v.
Airline Union’s Mtge. Co
.,
instances in which the legislature has codified the discovery rule, see dissenting opinion of Kennedy, C.J., ¶ 54 , are additional examples of the General Assembly’s exercising its prerogative to specify an accrual date. If the legislature does not want the discovery rule to apply to a claim, it specifies an accrual date in a manner that precludes the discovery rule’s application as discussed above or it otherwise signals its intent with respect to a particular statute. For example, R.C. 1302.98(B) provides that a cause of action for the breach of a contract for sale “accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach,” which clearly indicates the legislature’s intent that the discovery rule not be applied to that type of claim.
{¶ 36}
There are other instances when the legislature’s intent to not extend
the discovery rule is not express but may be inferred. For example, in
Investors
REIT One
, this court declined to extend the discovery rule to claims of accountant
negligence, which are governed by the four-year statute of limitations for general
negligence under R.C. 2305.09(D), because R.C. 2305.09 contains an express
discovery rule for other actions — i.e., actions for trespassing underground or injury
to mines, for the wrongful taking of personal property, and for fraud — but not for
“injury to the rights of the plaintiff not arising on contract” under division (D) of
R.C. 2305.09, which was the division at issue in that case. This court reasoned that
“[t]he legislature’s express inclusi on of a discovery rule for certain torts arising
under R.C. 2305.09, including fraud and conversion, implies the exclusion of other
torts arising under [that same] statute, including negligence.”
Investors REIT One
,
contains a specific date of accrual for some claims — e.g., unlawful abortion under R.C. 2305.11(B) — but not for the claims specified under R.C. 2305.11(A), which include libel. For these reasons, I agree with the majority opinion that the General Assembly has left it to the judiciary to determine whether the discovery rule should apply to the accrual of libel claims.
__________________
K ENNEDY , C.J., dissenting. For more than 170 years, the statute of limitations for a defamation claim in Ohio — slander or libel — has been one year from the date that the cause of action accrued and the cause of action accrued on the date of publication.
{¶ 39} Today, the majority engages in judicial activism and rewrites Ohio law. The majority “ignore[s] governing texts and precedents” and allows its “personal views about public policy . . . to guide [its] decisions.” Black’s Law Dictionary (12th Ed. 2024) (defining “judicial activism”). The majority takes the judicially created “discovery rule,” which has been narrowly applied in bodily - injury, medical-malpractice, and actual-economic-loss cases, and expands its application to defamation cases. By holding that the date of publication does not control when a defamation cause of action accrues, the majority’s decision “thrust[s] the judiciary into the role of law maker,” Stefanie A. Lindquist, Judicial Activism in State Supreme Courts: Institutional Design and Judicial Behavior , 28 Stan.L. & Pol’y Rev. 61, 67 (2017). Today’s decision circumvents the public policy established by the
General Assembly and is contrary to precedent from Ohio’s appellate districts. Because this court “is not supposed to invent law but to apply it,” Robert H. Bork, The Judge’s Role in Law and Culture , 1 Ave Maria L.Rev. 19, 20 (2003), I dissent from the court ’s judgment. The statute of limitations for a defamation claim begins to run when the allegedly defamatory words are first spoken or published, regardless of the aggrieved party’s knowledge. Therefore, I would reverse the judgment of the Twelfth District Court of Appeals.
I. Defamation
“Defamation is defined as a false publication which injures a
person’s reputation.”
Dale v. Ohio Civ. Serv. Emps. Assn.
,
{¶ 42}
There are two types of defamation — slander and libel. 35 Ohio
Jur.3d, Defamation and Privacy, § 1, at 443 (2019). Slander is the spoken form of
defamation.
Id.
Libel is the written form of defamation.
Id.
The allegedly
defamatory statements in this case were written. A plaintiff must prove five
elements to succeed on a libel claim: “‘(1) a false and defamatory statement, (2)
about plaintiff, (3) published without privilege to a third party, (4) with fault of at
least negligence on the part of the defendant, and (5) that was either defamatory per
se or caused special harm to the plaintiff. ’”
Lewis v. Delaware Cty. JVSD
, 2005-
Ohio-2550, ¶ 33 (5th Dist.), quoting
Gosden v. Louis
,
II. Statute of Limitations
A statute of limitations is a “law that bars claims after a specified
period.”
Black’s
. The statute of limitations begins to run when the cause of action
accrues.
See Norgard v. Brush Wellman, Inc.
,
A. Statute of Limitations on Defamation Claims {¶ 45} On March 11, 1853, the General Assembly passed an act “[t]o establish a Code of Civil Procedure” to be known as the “Code of Civil Procedure of the State of Ohio.” 51 Ohio Laws 57. That code provided that civil actions for libel and slander must be brought within one year after the cause of action accrued. Id. at 59. A cause of action for defamation accrues at the time the defamatory
words are communicated because the damage to reputation occurs immediately
upon communication.
See Kienow v. Cincinnati Children’s Hosp. Med. Ctr.
, 2015-
Ohio-4396, ¶ 12 (1st Dist.). “For defamation as a result of slander, the statute of
limitations begins to run from the time the words were spoken, whether the plaintiff
had knowledge of the fact or not.”
Miller
,
favor of the single-publication rule. Specifically, the second dissent supports the
principle set forth in the Restatement of the Law 2d, Torts, that “‘each of several
communications to a third person by the same defamer is a separate publication ’” and gives rise to a new cause of action. Dissenting opinion of Wilkin, J., ¶ 99,
fn. 11, quoting 3 Restatement of the Law 2d, Torts, § 577A(1), at 208 (1977) .
“Although the Restatements are frequently cited in cases and commentary, a
Restatement provision is not binding on a court unless it has been officially adopted
as the law by that jurisdiction’s highest court.”
Black’s
(defining “Restatement”). In Ohio, the single-publication rule has never been formally adopted
by this court. And several of Ohio’s appellate districts have wholly rejected the
rule.
See, e.g.
,
Snell v. Drew
,
B. Judicially Created Discovery Rule Circumvents the Statute of Limitations
The discovery rule is a judicially created doctrine that circumvents
legislatively enacted statutes of limitations. Under the discovery rule, a cause of
action does not accrue until the injured party learns or should have learned, through
the exercise of reasonable diligence, that he or she has been injured by the conduct
of the defendant.
See Doe v. Archdiocese of Cincinnati
,
{¶ 50}
The discovery rule was first applied in Ohio in
Melnyk v. Cleveland
Clinic
,
III. Discovery Rule Does Not Circumvent the Statute of Limitations for Defamation Extending the discovery rule to defamation claims contravenes the
rule’s intended narrow application and applies it to cases when the only injury is
reputational harm. Unlike injuries in medical-malpractice cases, which may not
present themselves until years after the negligent act, injuries in defamation cases
occur as soon as the defamatory words are spoken or published. Ohio’s appellate
districts have universally held that a defamation cause of action accrues at
publication.
See, e.g.
,
Kienow
,
directly contradicts the General Assembly’s clear intent to not extend the discovery rule to defamation cases. The General Assembly is aware of the discovery rule and has extended its application, but only to cases that involve bodily injury, the potential for bodily injury, medical malpractice, or actual economic loss. For example, in 1992, the General Assembly enacted R.C. 2305.091, Am.Sub.H.B. No. 334, 144 Ohio Laws, Part III, 4847, 4847-4848, which includes a discovery-rule provision that tolls the statute of limitations for asbestos-abatement actions brought by school boards, R.C. 2305.091(B). Similarly, the General Assembly amended R.C. 2305.10 in 2005, Am.Sub.S.B. No. 80, 150 Ohio Laws, Part V, 7915, 7931- 7933, and extended the discovery rule to actions claiming toxic-chemical bodily injury, R.C. 2305.10(B)(1) through (5). As recently as 2022, the General Assembly enacted R.C. 2305.118, 2022 Am.Sub.S.B. No. 288, which includes a discovery- rule provision for deoxyribonucleic bodily-injury actions, R.C. 2305.118(C)(1).
{¶ 55}
“[W]e presume that the General Assembly knows of the state of the
common law when it enacts legislation.”
Ames v. Rootstown Twp. Bd. of Trustees
,
and removed the statute-of-limitations provision for medical, dental, optometric, and chiropractic claims. Am.Sub.S.B. No. 281, 149 Ohio Laws 3791, 3796-3797. Under the same legislative act, the General Assembly enacted R.C. 2305.113, which outlined the statute of limitations for bringing medical, dental, optometric, or chiropractic claims. Id. at 3799-3804. The newly created R.C. 2305.113 included a discovery-rule provision for those claims involving a foreign object being left in the claimant’s body. Id. at 3800-3801. When the General Assembly passed Am.Sub.S.B. No. 281, its decision to not include a discovery-rule provision for claims of libel or slander was deliberate, not inadvertent. The legislature’s decision to not extend the discovery rule to defamation claims was reaffirmed as recently as 2021, when the General Assembly last amended R.C. 2305.11 without adding any discovery-rule provision. See 2021 S.B. No. 13. The General Assembly’s decision to not adopt a discovery rule for
defamation claims is strong support for the assertion that “it was not the
legislature’s intent to apply the discovery rule to such claims.”
Investors REIT One
,
{¶ 58}
If the discovery rule is to apply to defamation claims, “‘it is the
General Assembly that should [make that declaration] rather than this court.’”
Pratte
at ¶ 20, quoting
Ault
at ¶ 23 (Moyer, C.J., dissenting). I disagree with the
majority’s decision to extend application of the discovery rule to defamation claims
because to “do so would place us in the obvious and untenable position of having
not only legislated, but of having done so directly in the face of a clear and opposite
legislative intent,”
Wyler
,
Christopher Hildebrant, an action for libel accrued when Hildebrant sent the fake, allegedly defamatory email about Weidman’s alleged bribery demands to Stanford Roberts on December 20, 2011. The discovery rule does not apply here, because the libel injury manifested itself immediately when the email was delivered to Roberts. Although Weidman was unaware of the email until several years later, his reputation was injured the moment Roberts read the email. While I empathize with Weidman, the General Assembly has
spoken. Because a cause of action for defamation accrues on the date of publication of the defamatory matter, the discovery rule does not apply to defamation claims, and Weidman was required to bring his defamation claim within one year after Hildebrant sent the fake email to Roberts. See R.C. 2305.11(A). Because Weidman did not bring his defamation claim within one year of publication of the fake email, his suit is barred by the statute of limitations set forth in R.C. 2305.11(A).
IV. Conclusion
{¶ 61}
The General Assembly is the final arbiter of public policy in Ohio.
See Sutton v. Tomco Machining, Inc.
,
Twelfth District Court of Appeals’ judgment, which held that the discovery rule applies to libel actions when the publication of the defamatory statements was secretive, concealed, or otherwise inherently unknowable. However, for reasons that differ from the majority, I agree that this case should be remanded to the trial court.
{¶ 64} I dissent for the following reasons. First, the plain text of R.C. 2305.11(A) does not include a discovery rule for libel actions when the publication of the defamatory statements was secretive, concealed, or otherwise inherently unknowable. Therefore, this court should not read the discovery rule into the statute.
{¶ 65} Moreover, the majority’s concern that “a tortfeasor could secretly publish defamatory statements,” hide behind the one -year statute of limitations, go “public” with the defamatory statement after that one -year period has expired, and be shielded from liability, majority opinion, ¶ 19, is unfounded. If a tortfeasor kept a defamatory email a “secret” for more than one year and then released it “publicly,” releasing that statement “publicly” (i.e., publishing it) creates a new cause of action with a new limitations period. Thus, the statute of limitations would not shield the tortfeasor from liability. The majority opinion also is contrary to well-established law that
statutes of limitations are the legislature’s prerogative and represent policy
decisions that are not within the judiciary’s authority. The majority supplants the
legislature’s intent and overrides the legislature’s policy -making authority.
Furthermore, even if this court were authorized to supplant the
legislature’s intent, I agree with the first dissenting opinion that our precedent
establishes that the discovery rule does not apply to defamation actions involving
secretive, concealed, or otherwise inherently unknowable publications. However,
as discussed below, I do not agree with the first dissent’s statement that libel causes
of action accrue upon “‘first publication.’” Dissenting opinion of Kennedy, C.J.,
¶ 46, quoting
Miller v. Ohio Rehab. Serv. Comm.
,
I. The Plain Text of R.C. 2305.11(A) Does Not Include a Discovery Rule {¶ 68} A thorough, objective, and plain-text review of R.C. 2305.11(A) reveals that the meaning of the word “accrued” does not support the majority’s holding that a libel action involving a secretive, concealed, or otherwise inherently unknowable publication accrues when the defamed person discovers, or by the exercise of reasonable diligence should have discovered, the existence of the publication. Instead, in accordance with this court’s well -established caselaw that requires us to read statutes according to their plain meaning, the word “accrued,” read in context, means that a libel action involving a secretive, concealed, or otherwise inherently unknowable publication accrues (i.e., comes into existence) upon publication of the defamatory statement; it does not accrue upon the plaintiff’s discovery of the publication or upon the plaintiff’s discovery that the defendant’s publication caused an injury. R.C. 2305.11(A) states that “[a]n action for libel, slander, malicious
prosecution, or false imprisonment . . . shall be commenced within one year after the cause of action accrued .” The statute does not define the meaning of the word “accrued.”
“ Absent legislative definition, it is left to the judiciary to determine when a cause” of action accrues.
O’Stricker v. Jim Walter Corp.
, 4 Ohio St.3d 84 (1983),
paragraph one of the syllabus. However, this statement from
O’Stricker
does not
6. Although the majority holds that the discovery rule applies to libel actions when the publication
of the libelous statements was secretive, concealed, or otherwise inherently unknowable, its holding
does not clearly define the event that triggers the running of the statute of limitations. At one point,
the majority states, “We conclude that [appellee, Thomas Weidman,] could not have known of the
potential injury to his reputation until he became aware of the allegedly defamatory statements.” Majority opinion at ¶ 18. At another point, the majority refers to the triggering event as the point
when Weidman discovered “ the alleged injury to his reputation .”
Id.
at ¶ 20. To avoid these
problems (and more), this court should follow the common-law accrual rule, as explained below.
mean that courts may select an accrual date that is divorced from the language used
in the applicable statute of limitations and decide when a cause of action accrues in
a vacuum.
See Everhart v. Coshocton Cty. Mem. Hosp.
,
action involving a secretive, concealed, or otherwise inherently unknowable
publication, we first consider the “‘plain and ordinary meaning’” of the word
“accrued.”
[7]
Rancho Cincinnati Rivers, L.L.C. v. Warren Cty. Bd. of Revision
, 2021-
Ohio-2798, ¶ 21, quoting
Lingle v. State
,
. The majority states that it is applying “ the plain and ordinary meaning of ” the word “accrued,” majority opinion at ¶ 13, but it completely omits any plain-and-ordinary-meaning analysis of the word. Instead, it skips directly to the discovery rule without explaining how the word “accrued” plainly leads to the discovery rule. The majority thus “sidesteps the logically antecedent question whether the [statute] has room for such a rule,” Warner Chappell Music, Inc. v. Nealy , 601 U.S. 366, 374 (2024) (Gorsuch, J., dissenting). To avoid confusion, this court should be consistent and follow the standard statutory analysis that it has used in previous cases. Furthermore, when a legislative body “‘“‘uses terms that have
accumulated settled meaning under . . . the common law, a court must infer, unless
the statute otherwise dictates, that [the legislative body] means to incorporate the
established meaning of these terms. ’”’” (Ellipsis added in
Community for Creative
Non-Violence
.)
Rancho Cincinnati Rivers
at ¶ 21, quoting
Nationwide Mut. Ins.
Co. v. Darden
,
in a statute should be interpreted based on their meaning at the time of enactment —
to do otherwise would amount to judicial amendment outside of the legislative
process.”
Vossman v. AirNet Sys., Inc.
,
A defamation action involving a secretive, concealed, or otherwise inherently unknowable publication accrues (i.e., comes into existence) upon publication of the defamatory statement, not upon the plaintiff’s discovery of the publication or upo n the plaintiff’s discovery that the publication caused an injury.
A. The Plain Meaning of “Accrued” Dictionary and caselaw definitions, along with the common law,
demonstrate that when the General Assembly enacted the Code of Civil Procedure
of the State of Ohio in 1853, which provided a statute of limitations for civil actions
for libel and slander, 51 Ohio Laws 57, 59, a defamation cause of action accrued
upon publication, not upon the plaintiff’s discovery of the publication or upon the
plaintiff’s discovery that the publication caused an injury, even if the publication
occurred in a secretive, concealed, or otherwise inherently unknowable manner.
Since the 19th century, both dictionaries and caselaw have defined
the word “accrued” to mark the point in time when a cause of action “‘comes into
existence. ’”
Gabelli v. Secs. & Exchange Comm.
, 568 U.S. 442, 448 (2013),
quoting
United States v. Lindsay
,
accrues (i.e., comes into existence) “from the time of the injury, that being the cause
of action, and not from the time of damage or discovery of the injury.”
Kerns v.
Schoonmaker
,
For example, in
Wallace v. Kato
, the United States Supreme Court stated the
traditional tort-accrual rule, but it did not apply that rule to the cause of action at
issue in that case, i.e., false imprisonment.
Law 2d, Torts, for guidance in deciding when a malicious-prosecution cause of
action accrues (and determined that it accrues when “ criminal proceedings are
terminated in favor of the accused”),
Froehlich v. Ohio Dept. of Mental Health
,
prosecution — two causes of action that have distinctive accrual rules — in the same clause as libel and slander. By listing libel and slander in the same clause as false imprisonment and malicious prosecution, the context of the statute indicates that libel and slander likewise have distinctive accrual rules. See Figueroa , 2020-Ohio- 4275, at ¶ 8, quoting D.A.B.E. , 2002-Ohio- 4172, at ¶ 19 (“a court must look ‘beyond single phrases’ and ‘consider, in proper context, all words used by the General Assembly in drafting [the relevant statute] with a view to its place in the overall statutory scheme ’” [bracketed text in original]). Consequently, the statute indicates that those four causes of action (i.e., libel, slander, malicious prosecution, and false imprisonment) are subject to distinctive accrual rules, not the wrongful- act accrual rule that this court has applied to general tort causes of action. The broader context of R.C. 2305.11(A) further shows that the causes of action listed in that provision are subject to distinctive rules, not the general tort-accrual rule. R.C. 2305.11(A) reads in its entirety as follows:
An action for libel, slander, malicious prosecution, or false imprisonment, an action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, an action for legal malpractice against an attorney or a law firm or legal professional association, or an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued, provided that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation, or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation shall be commenced within two years after the cause of action accrued.
{¶ 84} Under the common law, each cause of action set forth in R.C. 2305.11(A) had a distinctive accrual rule, not the wrongful-act accrual rule. As indicated above, malicious-prosecution causes of action accrued when “ criminal proceedings [were] terminated in favor of the accused.” Froehlich , 2007-Ohio- 4161, at ¶ 13-19, citing 3 Restatement, § 659. False-imprisonment causes of action accrued “‘when the alleged false imprisonment end[ed]. ’” Wallace , 549 U.S. at 389, quoting 2 Wood at 878. Legal-malpractice ca uses of action accrued “when the attorney- client relationship finally terminate[d].” Keaton Co. v. Kolby , 27 Ohio St.2d 234 (1971), syllabus, overruled by Skidmore & Hall v. Rottman , 5 Ohio St.3d 210 (1983). Causes of action based on a penalty or a forfeiture statute accrued “when the violation of the statute occur[red].” Squire v. Grdn. Trust Co. , 79 Ohio App. 371, 383 (8th Dist. 1947).
{¶ 85}
Medical-malpractice actions formerly were listed in R.C. 2305.11 as
well.
See Wyler
,
did not accrue at the time of the wrongful act. The context of the entire statute therefore indicates that at common law, each cause of action had a distinctive accrual rule, not the wrongful-act or traditional tort-accrual rule. For all these reasons, this court should conclude that the causes of
action listed in R.C. 2305.11(A) — including libel and slander — are subject to
distinctive accrual rules. Additionally, in
Investors REIT One v. Jacobs
, 46 Ohio
St.3d 176, 179 (1989), this court stated that “[g]eneral tort claims, including those
for negligence, are governed by R.C. 2305.09(D),” which suggests that this court
should not use the rules for “general tort claims” in determining when a defama tion
cause of action accrues.
See generally
Dobbs,
The Law of Torts
1115 (2000)
(defamation is a “dignitary” tort); Allen,
Twibel Retweeted: Twitter Libel and the
Single Publication Rule
, 15 J.High Tech.L. 63, 67 (2014) (“Defamation is a
dignitary tort with ancient roots . . . .”). I therefore question whether in a defamation
action involving a secretive, concealed, or otherwise inherently unknowable
publication, the court should be setting a precedent that implies that the wrongful-
act accrual rule applies to defamation causes of action.
See
majority opinion at
¶ 14, citing
Norgard v. Brush Wellman, Inc.
,
citing Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on the Law of Torts , § 41, at 265 (5th Ed. 1984), indicate that defamation causes of action accrue upon publication of a defamatory statement. Dobbs, § 421, at 1187 (“Publication is not . Coincidentally, the wrongful act in a defamation action is “‘the publication of a false and defamatory statement concerning another person without lawful justification.’” Black’s Law Dictionary (11th Ed. 2019), quoting R.F.V. Heuston, Salmond on the Law of Torts 138 (17th Ed. 1977). However, to be consistent with the statutory context, the common law, and the weight of scholarly authority, this court should use the distinctive, common-law accrual rule for defamation actions as discussed in this opinion, i.e., a defamation cause of action accrues upon publication, with publication being a term of art that does not mean first publication. Moreover, adopting the Restatement’s common -law rule would give guidance to courts and attorneys who may have to grapple with complicated issues surrounding internet, social-media, and other publications. If it consulted the Restatement in this case, the court would be indicating to Ohio courts and attorneys that they likewise should consult the Restatement to help resolve issues that may arise in defamation actions. Using the wrongful-act accrual rule or the discovery accrual rule does not provide courts and attorneys with this same level of guidance.
only an element of the cause of action; it is also the trigger for the statute of
limitations.”); 4 Lindahl,
Modern Tort Law: Liability and Litigation
, § 35:69, at
578 (2023) (“A defamation action ordinarily accrues when the defamatory matter
is published.”); 3 Restatement, § 577A, Comment a (“It is the general rule that each
communication of the same defamatory matter by the same defamer, whether to a
new person or to the same person, is a separate and distinct publication, for which
a separate cause of ac tion arises.”);
see also TransUnion, L.L.C. v. Ramirez
, 594
U.S. 413, 432 (2021), quoting
Milkovich v. Lorain Journal Co.
, 497 U.S. 1, 13
(1990) (“a person is injured when a defamatory statement ‘that would subject him
to hatred, contempt, or ridicule’ is published to a third party”);
Keeton v. Hustler
Magazine, Inc.
,
concealed, or otherwise inherently unknowable publications and nonsecretive, unconcealed, or otherwise inherently knowable publications. In Hecht , we stated:
“Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.” 3 Restatement of the Law 2d, Torts (1965), Section 577(1). Any act by which the defamatory matter is communicated to a third party constitutes publication. Id. at Comment a . Also, it is sufficient that the defamatory matter is communicated to one person only, even though that person is enjoined to secrecy. See id. at Comment b . Ohio law recognizes that publication of defamation consists in communicating it to a person or persons other than the person libeled. Hahn v. Kotten [,43 Ohio St.2d 237 , 243 (1975)].
(Emphasis in original.) Hecht at ¶ 5. Thus, “[ a ] ny act by which the defamatory matter is communicated
to a third party constitutes publication.” (Emphasis in original.)
Id.
The word
“‘any’ has an expansive meaning.”
United States v. Gonzales
,
means any, all, and every act by which the defamatory matter is communicated to
a third party, even if that act occurs in a secretive, concealed, or otherwise
inherently unknowable manner, su ch as a “grievance complaint filed with the local
bar association,”
Hecht
,
defamation accrues (i.e., comes into existence) upon any publication (i.e., “[ a ] ny act by which the defamatory matter is communicated to a third party” [ emphasis in original], id. ) of a defamatory statement, including one that is communicated in a secretive, concealed, or otherwise inherently unknowable manner. The common law does not support the conclusion that a defamation cause of action involving a secretive, concealed, or otherwise inherently unknowable publication accrues when the defamed person discovers, or by the exercise of reasonable diligence should have discovered, that a secretive, concealed, or otherwise inherently unknowable defamatory statement about that person has been published. Additionally, any common-law discovery rule that may have existed
at the time of the 1853 enactment of the statute of limitations for civil actions for
libel and slander was limited to fraud cases.
See Gabelli
,
Thus, at the time of the statute’s enactment, the common law did not recognize a discovery rule for any defamation actions, even one that involved a secretive, concealed, or otherwise inherently unknowable publication. Therefore, under the common law, a defamation cause of action
came into existence upon publication of the defamatory statement. [10] Nothing in our caselaw or the common law suggests that at the time of the statute’s enactment, a defamation cause of action — even one involving a secretive, concealed, or otherwise inherently unknowable publication — accrued (i.e., came into existence) when the defamed person discovered, or by the exercise of reasonable diligence should have discovered, the secretive, concealed, or otherwise inherently unknowable publication. Importantly, R.C. 2305.11(A) does not distinguish between defamation causes of action involving a secretive, concealed, or otherwise inherently unknowable publication and all other defamation causes of action. Instead, the statute refers to libel or slander without modification. For this reason, the plain text of R.C. 2305.11(A) does not indicate that the discovery rule applies to a defamation cause of action involving a secretive, concealed, or otherwise inherently unknowable publication. Because R.C. 2305.11(A)’s text is plain, this court must apply it as written.
B. R.C. 2305.11(A)’s Language Does Not Express a Clear Intent to Depart
from the Settled Common-Law Rule Courts should not read statutes in a way that is contrary to “‘“the
settled rules of the common law,”’” unless the legislature has used language that
“‘“clearly expresses or imports such intention.”’” (Emphasis deleted.)
Mann
,
Ohio St. 79, at paragraph three of the syllabus. In other words, courts will not
presume that the legislature “‘“intended to abrogate a settled rule of the common
law unless the language used in a statute clearly supports such intention.”’”
Williams
,
clearly intended to abrogate a settled rule of the common law and that it instead
intended to apply the discovery rule to a defamation cause of action involving a
secretive, concealed, or otherwise inherently unknowable publication. The
majority’s holding that a defamation cause of action involving a secretive,
concealed, or otherwise inherently unknowable publication accrues when the
defamed person discovers, or by the exercise of reasonable diligence should have
discovered, the existence of the publication, reads into the statute not only the
discovery rule but also the words “secretive, concealed, or otherwise inherently
unknowable,” despite this court’s “clear duty not to alter the la nguage of a statute
by adding or removing words,”
State v. Jeffries
,
2305.11(A) by adding a discovery rule for a defamation cause of action involving
a secretive, concealed, or otherwise inherently unknowable publication.
See Pratte
v. Stewart
,
II. R.C. 2305.11(A) Does Not Indicate That Defamation Causes of Action
Accrue upon First Publication The majority reasons that “[p]rivate email communications used to
defame someone are inherently not discoverable by the defamed person until the
communication is disclosed publicly.” Majority opinion at ¶ 20. The majority and
the first dissent appear to presume that even when a defendant publishes a
defamatory statement to different groups of people at different times, a plaintiff has
one cause of action and it accrues at the time of the first publication, which is the
rule that the trial court and the Twelfth District applied. However, this court has
11. Although neither party explicitly argues that this “first - publication rule” is incorrect, this court
is “certainly not limited to the analyses presented by the parties or the analysis of the lower court in
resolving an issue before the court, as this court must apply correct legal principles to resolve legal
issues,”
State v. Gwynne
,
I further note that this first- publication rule appears to be a misinterpretation of the “single - publication rule” contained in the Restatement of the Law 2d, Torts. The single -publication rule states as follows: (1) Except as stated in Subsections (2) and (3), each of several
communications to a third person by the same defamer is a separate publication.
(2) A single communication heard at the same time by two or more third
persons is a single publication.
(3) Any one edition of a book or newspaper, or any one radio or
television broadcast, exhibition of a motion picture or similar aggregate
communication is a single publication.
never held that defamation causes of action accrue upon the first publication of the
defamatory statement.
See Haines v. Welling
,
upon the first publication of the defamatory statement would be to read the word “first” into R.C. 2305.11(A), as in “first accrued.” Compare Gabelli , 568 U.S. at 447- 448, quoting 28 U.S.C. 2462 (“‘an action . . . for the enforcement of any civil fine, penalty, or forfeiture . . . shall not be entertained unless commenced within (4) As to any single publication, (a) only one action for damages can be maintained; (b) all damages suffered in all jurisdictions can be recovered in the one action; and (c) a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions.
3 Restatement, § 577A, at 208. The single-publication rule is applied in cases where the same communication is heard at the same time by two or more persons. In order to avoid multiplicity of actions and undue harassment of the defendant by repeated suits by new individuals, as well as excessive damages that might have been recovered in numerous separate suits, the communication to the entire group is treated as one publication, giving rise to only one cause of action. Id. at Comment b. Thus, the plain text of the Restatement shows that the “single” publication rule clashes with the “first” publication rule that the trial court and the court of appeals applied. five years from the date when the claim first accrued ’” [ellipses in original; emphasis added]). Furthermore, other authorities recognize that “[e]ach
communication of a defamatory statement to a third person constitutes a new publication and gives rise to a separate cause of action,” 4 Lindahl, § 35:12, at 480, and that “each communication of the sam e defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises,” 3 Restatement, § 577A, Comment a. Thus, the majority’s concern that “a tortfeasor could conceal that publication until the statute-of- limitations period had expired,” majority opinion at ¶ 19, is unfounded. If a tortfeasor keeps a defamatory statement secret, concealed, or otherwise inherently unknowable to the plaintiff for more than one year and then publishes it again after one year, that publication gives rise to a new limitations period (i.e., each publication gives rise to a new cause of action). Similar statements that appear throughout the majority opinion likewise are unsupported. See id. at ¶ 20 (“P rivate email communications used to defame someone are inherently not discoverable by the defamed person until the communication is disclosed publicly.”); id. at ¶ 24 (“A tortfeasor ought not be allowed to privately libel another person and benefit from the ability to keep that libelous statement a secret.”). Additionally, if a tortfeasor “privately libel[s] another person” and keeps the defamatory statement “a secret,” id. , then unless that private libel is published that “if someone wrote a defamatory letter and then stored it in her desk drawer,” the stored letter “does not harm anyone, no matter how insulting the letter is”) . If the majority evaluates this case without presuming that defamation causes of action accrue upon first publication, then it will recognize that each new publication gives rise to a new cause of action, which starts a new limitations period. The reason for this rule makes eminent sense. For practical purposes, a person who is defamed “in secret” [13] and who learns about it ten years later may not suffer the type of harm that would warrant court intervention. For example, in this case, if Hildebrant had sent only the one email to Stanford Roberts in 2011, and then, in 2020, Roberts told Weidman about that email, would this case exist? Although the answer to that question is unknowable, logic would seem to indicate that a person is not going to take the time or spend the money to litigate a defamation action that involves a solitary and secretive, concealed, or otherwise inherently unknowable publication (e.g., one email sent to one other person and to no one else). However, applying the discovery rule to “secretive, concealed, or otherwise inherently unknowable” defamation causes of action would allo w that person to seek redress if that person chose to do so. The Restatement’s general rule that each publication of a defamatory statement (even those publications that are secretive, concealed, or otherwise inherently unknowable) gives rise to a new cause of action thus may serve to prevent courts from becoming arbiters of trifling disputes. [14] See Ruther v. Kaiser , 2012-Ohio- 5686, ¶ 13 (“the legislature determines what injuries are recognized and what remedies are available”); id. at ¶ 14 (“the 13 . A secret is defined as “[s] omething that is kept from the knowledge of others or shared only with those concerned; something that is studiously concealed.” Black’s (11th Ed.).
14 . I do not mean to suggest that Weidman’s case involves a trifling dispute. Instead, this statement
above indicates only that the majority’s discovery rule also will apply outside the specific facts of
Weidman’s case. Additionally, in today’s modern society, how much “secretive, concealed, or
otherwise inherently unknowable” defamation might be occurring in emails, text messages, and
social media? Applying the discovery rule to these types of defamation actions could create an
avalanche of “secretive, concealed, or otherwise inherently unknowable” defamation actions. General Assembly has the right to determine what causes of action the law will
recognize and to alter the common law by abolishing the action, by defining the
action, or by placing a time limit after which an injury is no longer a legal injury”);
see also Black’s
(11th Ed.) (stating that the maxim de minimis non curat lex means
“[t]he law does not concern itself with trifles”) ;
Lathan v. Ohio State Corr.
Reception Ctr.
,
unknowable defamatory statement is published, the more harmful it becomes — and the more likely that a defamed person will discover the publication within the one- year statute of limitations . Hence, the Restatement’s rule that each publication gives rise to a new cause of action, 3 Restatement, § 577A, Comment a, essentially operates as a built-in discovery rule — the more times that a secretive, concealed, or otherwise inherently unknowable statement is published, the more likely the defamed person will discover the existence of the defamatory statement within the limitations period. Additionally, the majority opinion draws a distinction between a
secretive, concealed, or otherwise inherently unknowable publication of a
defamatory statement and all other publications, which is contrary to this court’s
precedent and the Restatement. As noted above, in
Hecht
, this court held that a
“grievance complaint filed with the local bar association constituted a publication.”
Hecht
,
egregious. However, if this court applies the discovery rule to Weidman’s case, it
also will apply to
all
defamation causes of action involving a secretive, concealed,
or otherwise inherently unknowable publication and not simply to cases with an
allegedly outrageous set of facts. This court should not allow an egregious set of
purported facts to upset well-settled law.
See Brandt v. Pompa
,
III. The Majority Opinion Supplants Legislative Intent The majority opinion also violates the principle that statutes of
limitations are the legislature’s prerogative. Courts have long recognized that
“[t]he existence and duration of a statute of limitations for a cause of action
constitutes an issue of public policy for resolution by the legislative branch of
government as a matter of substantive law.”
Erwin v. Bryan
,
discovery rule into a statute. See, e.g. , R.C. 2305.09(E) (“If the action is for trespassing under ground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it is for fraud, until the fraud is discov ered.”); R.C. 2305.112 (a civil action for identity fraud “shall be commenced within five years from the date on which the identity of the offender was discovered or reasonably should have been discovered ”); R.C. 2305.113(D)(1) and (2) (incorporating discovery rules for medical, dental, optometric, and chiropractic claims); R.C. 2305.111(C)(1) (“If the defendant in an action brought by a victim of childhood sexual abuse asserting a claim resulting from childhood sexual abuse that occurs on or after August 3, 2006, has fraudulently concealed from the plaintiff facts that form the basis of the claim, the running of the limitations period with regard to that claim is tolled until the time when the plaintiff discovers or in the exercise of due diligence should have discovered those facts.”). Had the legislature thought that applying the discovery rule to
defamation causes of action involving a secretive, concealed, or otherwise
inherently unknowable publication would produce results that are “more nearly
consonant with the demands of justice a nd the dictates of ethics,”
Oliver
at 112,
then it would have included language within R.C. Ch. 2305 to that effect,
see
Rotkiske
, 589 U.S. at 14 (“Atextual judicial supplementation is particularly
inappropriate when . . . Congress has shown that it knows how to adopt the omitted
language or provision.”);
TRW
,
to defamation causes of action that involve a secretive, concealed, or otherwise inherently unknowable publication.
IV. Applying the Discovery Rule to “Secret” Defamation Is Contrary to
Discovery-Rule Precedent To the extent that this court has any authority to read the discovery
rule into R.C. 2305.11(A), [18] I agree with the first dissent’s reasoning that the discovery rule does not apply to defamation causes of action when the publication of the defamatory statements was secretive, concealed, or otherwise inherently unknowable to the plaintiff. However, for the reasons stated earlier, I disagree with the first dissent’s statement that defamation causes of action accrue upon “‘first publication. ’” Dissenting opinion of Kennedy, C.J., at ¶ 46, quoting Miller , 86 Ohio Misc.2d at 100. Nevertheless, as explained above, one problem with applying the
discovery rule to a defamation cause of action involving a secretive, concealed, or
18. I am not suggesting that this court should overrule previous cases in which it stated that it could
determine when a cause of action accrues when a statute does not explicitly mark the accrual date.
See generally, e.g.
,
O’Stricker
,
19. This first-publication rule appears to have originated in a 1978 trial-court decision that cited no
authority for the statement that libel causes of action accrue “upon the first publication.”
Guccione
v. Hustler Magazine
,
V. Conclusion In sum, I would reverse the Twelfth District Court of Appeals’
judgment that held that “the discovery rule applies to those libel actions where the
publication of the defamatory statements was secretive, concealed, or otherwise
inherently unknowable due to the nature of the publication.” 2022 -Ohio-1708,
¶ 29 (12th Dist.). However, given that this case resulted from the courts below
misconstruing the law to mean that a libel cause of action “accrues when the written
words are first published,”
id.
at ¶ 20, and that we accepted jurisdiction over
Hildebrant’s discretionary appeal, 2022 -Ohio-3636, I would remand this matter to
the trial court with instructions to reconsider whether genuine issues of material
fact remain using the Restatement’s publication rule, with the word “publication”
being a term of art,
Welling v. Weinfeld
,
court to reconsider Hildebrant’s summary -judgment motion using the correct accrual rule would be a futile exercise. Although the parties have suggested that the record contains two potential publication dates (i.e., December 20, 2011, and January 25, 2020), Hildebrant’s burden was to prove the absence of a genuine issue of material fact regarding the accrual date for Weidman’s defamation claim. Hildebrant presented evidence indicating that he last published the allegedly defamatory statements on January 25, 2020. However, the record further establishes that at some point between January 25 and February 27, 2020, someone told Sycamore Township Trustee Tom James about the statements. According to the “case - closing memo” of the auditor’s special -
investigations unit, on February 27, 2020, James contacted the auditor’s office to
20. I understand that remanding a case to a trial court based on a rule that the parties have not
specifically asserted is incorrect may seem unusual, but it would give the majority the result that it
wishes to reach and do so for the right reasons. Plus, this type of decision is not unprecedented.
See
Bennett v. Stanley
,
only four people knew about the 2011 email — Hildebrant, LaBarbara, Warrick, and Roberts. Furthermore, the auditor’s memo indicates that James called the auditor’s office on February 27, 2020, and James reported that he “recently” learned about the allegations. “Recently” could mean sometime between February 17 and February 27, 2020. [21] Because the evidence shows that Hildebrant, LaBarbara, Warrick, and Roberts were the only people who knew about the email before February 27, 2020, one of them must have informed James. For these reasons, the court should remand this matter to the trial court so that it can reevaluate this case using the correct accrual rule, not the first-publication rule. Accordingly, I respectfully dissent from the majority’s judgment
affirming the Twelfth District’s judgment that held that the discovery rule applies to libel causes of action when the publication of the defamatory statements was secretive, concealed, or otherwise inherently unknowable to the plaintiff. I would reverse the Twelfth District’s judgment and remand this matter to the trial court.
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21. Events taking place on or after February 17, 2020, would be relevant to the statute of limitations for Weidman’s claims because he filed his complaint against Hildebrant on February 17, 2021.
Hemmer DeFrank Wessels, P.L.L.C., Todd V. McMurtry, and J. Will Huber, for appellee.
Taft Stettinius & Hollister, L.L.P., Russell S. Sayre, Chad R. Ziepfel, and Medora M. Akers, for appellant.
The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, urging affirmance for amicus curiae, Ohio Employment Lawyers Association.
_______________________ to a third party, the action would not be justiciable,
Notes
[12]
TransUnion
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