Weidman v. HildebrantWeidman v. Hildebrant
Case No. 21-CV-94019
Hemmer DeFrank Wessels PLLC, and Todd V. McMurtry and J. Will Huber, for appellant.
Taft Stettinius & Hollister LLP, and Russell S. Sayre, for appellee.
HENDRICKSON, J.
{¶1} Appellant, Thomas Weidman, appeals from the decision of the Warren County Court of Common Pleas granting summary judgment to appellee, Christopher Hildebrant, on Weidman‘s claims of defamation, intentional infliction of emotional distress (IIED), and false light invasion of privacy. For the reasons set forth below, we reverse the decision of the trial court and remand the matter for further proceedings.
{¶2} This action involves the defamation of Weidman, a Sycamore Township trustee, by Hildebrant, a Cincinnati real estate developer. In 2011, Hildebrant was facilitating the sale of property owned by SDI Foods, Inc. to Sycamore Township, for which he would receive a consulting fee from both parties if the sale was successful. Hildebrant claims Weidman and Stanford Roberts, the individual who negotiated the sale for SDI, each repeatedly sought a kickback from Hildebrant‘s consulting fee after the sale occurred. In response to the pressure he felt from Weidman and Roberts, Hildebrant created a fictitious gmail account under the name tweidman12@gmail.com and, on December 20, 2011, sent an email to himself from the tweidman12@gmail.com account (the “2011 email“). The 2011 email portrayed Weidman as having received illicit payments and demanding bribes in exchange for his support of several real estate developments in Sycamore Township. On December 20, 2011, after creating and sending the 2011 email to himself from the tweidman12@gmail.com account, Hildebrant forwarded the email to Roberts. Hildebrant hoped that the email would demonstrate to Roberts that he did not have any money left to pay Roberts a bribe as Weidman had also demanded payment.
{¶3} Near the end of 2019, Hildebrant, acting on behalf of his development group, the Morelia Group-DE, LLC, sought to purchase a parcel of real estate owned by Sycamore Township (the “Sycamore Township Property“). Purchase of the property required the unanimous consent of the township‘s sitting trustees. This was problematic for Hildebrant, as Weidman opposed the sale of the property.
{¶4} On January 25, 2020, Hildebrant met with Sycamore Township trustee James LaBarbara and Sycamore Township Administrator Raymond Warrick at a golf club in Maineville, Ohio in order to discuss the purchase of the Sycamore Township Property. At that time, Hildebrant showed LaBarbara and Warrick the 2011 email sent from the
{¶5} During the course of the investigation, the SIU subpoenaed from Hildebrant any emails that contained correspondence between himself, Weidman, and SDI Foods, Inc. regarding the development of property in Sycamore Township in 2011. The 2011 email from the tweidman12@gmail.com account was turned over to investigators. In turning the document over, Hildebrant, represented by counsel, stated the following:
CH [Hildebrant] has included in this response an email dated December 20, 2011 from an internet account noted on the face of the document as belonging to Mr. Weidman. This communication is included because this email was drafted by CH and Mr. Weidman jointly and sent by Mr. Weidman to CH so that CH could represent certain facts about an agreement between CH and Weidman to SDI Foods.
A little over two months later, Hildebrant, now represented by new counsel, sought to amend his response to the subpoena. In his amended response, Hildebrant stated that his “document production * * * includes an email dated December 20, 2011 from the email account tweidman12@gmail.com to the email account chris@moreliagroup.com. In order to avoid any misunderstanding, please be advised that this email was not written by Mr. Weidman. Mr. Hildebrant drafted this email and sent it to himself.”
{¶6} On November 18, 2020, Weidman was interviewed by SIU investigators and, for the first time, learned of the tweidman12@gmail.com account and the December 20, 2011 email purportedly sent by him to Hildebrant. Weidman denied the authenticity of the email and email account, informing investigators that the email account did not belong to him and that he had not written the 2011 email. Though he asked for a copy of the 2011 email, he was not permitted to obtain a paper or electronic copy of the 2011 email until January 15, 2021.
{¶8} Hildebrant filed an answer in which he admitted that he created the 2011 email and shared it with LaBarbara and Warrick, but he denied the remaining allegations in the complaint. Hildebrant‘s answer set forth a variety of affirmative defenses, including that Weidman‘s claims were barred by the statute of limitations.
{¶9} On May 17, 2021, Hildebrant moved for summary judgement on all of Weidman‘s claims, arguing the claims had been “time-barred for many years” due to the expiration of a one-year statute of limitations as set forth in
{¶10} Hildebrant supported his motion for summary judgment with his own affidavit and affidavits from LaBarbara and Warrick. In his affidavit, Hildebrant admitted that he
{¶11} Weidman filed a memorandum in opposition to Hildebrant‘s motion for summary judgment, arguing that the “discovery rule” applied to toll the one-year statute of limitations since the publication of the defamatory statements had been done in secret and he had not learned of Hildebrant‘s wrongful conduct until November 18, 2020. While acknowledging there were a number of Ohio cases that refused to apply the discovery rule to defamation claims, Weidman argued the rule should be applied to a defamation claim where the publication of the defamatory statement was done in secret. In support of his position for expanding the discovery rule to such cases, Weidman relied on the Sixth District Court of Appeals’ decision in Dipillo v. Cashen, 6th Dist. Wood No. WD-83-23, 1983 Ohio App. LEXIS 11595, a number of cases decided by the Ohio Supreme Court where the discovery rule was found to have applied to causes of actions that did not accrue until the plaintiff discovered, or through the exercise of reasonable diligence should have discovered, that he or she had been injured by the wrongful conduct of the defendant, and case law from other states that applied the discovery rule to defamation claims. Weidman further argued that the fraudulent concealment doctrine should be applied to toll the initiation of the statute of limitations as Hildebrant engaged in fraud and a course of conduct intended to conceal evidence of his wrongdoing from others.
{¶12} Weidman attached his own affidavit to his memorandum in opposition to summary judgment. In his affidavit, Weidman attested that the first time he discovered the existence of the 2011 email was when he met with investigators from the Auditor‘s Office
{¶13} The trial court held a hearing on Hildebrant‘s motion. Subsequently, on November 1, 2021, the trial court granted Hildebrant‘s motion for summary judgment after finding that Weidman‘s claims were barred by the one-year statute of limitations set forth in
II. THE APPEAL
{¶14} Weidman appeals the trial court‘s decision, raising the following assignment of error:
{¶15} THE TRIAL COURT ERRED IN GRANTING HILDEBRANT‘S MOTION FOR SUMMARY JUDGMENT.
{¶16} This court reviews a trial court‘s summary judgment decision under a de novo standard. Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7. Summary judgment is appropriate under
{¶17} The party requesting summary judgment bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Anderson v. Jancoa Janitorial Servs., 12th Dist. Butler No. CA2019-01-018, 2019-Ohio-3617, ¶ 23, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Once a party moving for summary judgment has satisfied its initial burden, the nonmoving party “must then rebut the moving party‘s evidence with specific facts showing the existence of a genuine triable issue; it may not rest on the mere allegations or denials in its pleadings.” Sexton at ¶ 7;
{¶18} In his sole assignment of error, Weidman argues the trial court erred in granting Hildebrant summary judgment on the defamation, IIED, and false light invasion of privacy claims on the basis that they were time-barred by a one-year statute of limitations. With respect to his defamation claim, Weidman argues that the discovery rule or, alternatively, the fraudulent-concealment doctrine applies to save his claim.
A. Weidman‘s Defamation Claim
{¶19} “Defamation is a false statement published by a defendant acting with the required degree of fault that injures a person‘s reputation, exposes the person to public hatred, contempt, ridicule, shame or disgrace, or adversely affects the person‘s profession.” Drone Consultants, LLC v. Armstrong, 12th Dist. Warren Nos. CA2015-11-107 and CA2015-11-108, 2016-Ohio-3222, ¶ 28, citing Becker v. Internatl. Assn. of Firefighters
{¶20} Pursuant to
{¶21} A number of Ohio‘s appellate courts have expressly declined to apply the
{¶22} In Pearl, the court considered when the statute of limitations for an action for slander commences to run. At the time, the applicable statute of limitations, Section 4983, provided that an action for slander must be commenced within one year after the cause of action accrued. Id. at 6. The court found it was constrained by the statute to reject the date the injured party learned of the defamatory statements as the date of accrual. The court stated, in relevant part, that “[S]ec. 4983 declares in express terms that an action for libel or slander shall be commenced in one year. In a court of law, the statute must receive a strict construction, and an exception can not be introduced which the legislature has not
{¶23} The Ohio Supreme Court has never addressed the applicability of the discovery rule to a defamation claim. Nor has this court expressly ruled on the issue.2 However, since 1983, the supreme court has applied the discovery rule to a variety of claims where application of the general rule that a cause of action exists from the time the wrongful act was committed “‘would lead to the unconscionable result that the injured party‘s right to recovery [would] be barred by the statute of limitations before he is even aware of its existence.‘” O‘Stricker, 4 Ohio St.3d at 87, quoting Wyler v. Tripi, 25 Ohio St.2d 164, 168 (1971). For instance, the court has applied the discovery rule in the context of claims involving bodily injury caused by exposure to asbestos, medical malpractice claims, legal malpractice claims, claims for injuries arising out of the negligence of a hospital in credentialing a physician, certain sex-abuse claims, wrongful death claims, and claims involving employer intentional torts. See, O‘Stricker 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, for purposes of the statute of limitations contained in
{¶24} As the supreme court has acknowledged,
“[u]se of the discovery rule eases the unconscionable result to innocent victims who by exercising even the highest degree of care could not have discovered the cited wrong. By focusing on discovery as the element which triggers the statute of limitations, the discovery rule gives those injured adequate time to seek relief on the merits without undue prejudice to * * * defendants.”
Ault at 116, quoting Oliver at 114.
{¶25} Applying the above rationale expressed by the Ohio Supreme Court, one appellate district has found the discovery rule applicable to defamation cases. See Dipillo
We find the Ohio Supreme Court‘s analysis in Oliver, supra, Skidmore & Hall, supra, and O‘Stricker, supra, applicable to the accrual of a libel action under
R.C. 2305.11(A) . Accordingly, we hold that underR.C. 2305.11(A) , a cause of action for libel or slander accrues and the statute of limitations commences to run when the plaintiff discovers, or, in the exercise of reasonable care and diligence, should have discovered the resulting injury.
{¶26} A number of other jurisdictions apply the discovery rule to defamation claims where the publication of the libelous statements was secretive, concealed, or otherwise inherently unknowable due to the nature of the publication. See, Tom Olesker‘s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill.2d 129 (Ill.1975) (credit report); Kelley v. Rinkle, 532 S.W.2d 947 (Tx.1976) (credit report); Kittinger v. Boeing Co., 21 Wn. App. 484 (Wash.App.1978) (confidential business memorandum); Manguso v. Oceanside
{¶27} Of particular interest to this court is the Mississippi Supreme Court‘s decision in Staheli v. Smith. In Staheli, the plaintiff, a professor at a university, brought suit against a dean at the university, claiming the dean had defamed him in written recommendations against tenure and pay raise, thereby damaging the professor‘s professional reputation. Staheli, 548 So.2d at 1300. The defamatory statements were made in letters authored by the dean in late 1982, in April 1983, and May 1983. Id. at 1301. The plaintiff did not learn of the defamatory statements until the spring of 1984, when members of the faculty senate informed him that his file included derogatory comments. Id. The plaintiff was unable to view the letters until August 29, 1984, when he obtained them through discovery in a federal court action. Id. When the plaintiff brought suit for defamation, the dean moved for
{¶28} The Mississippi Supreme Court found that the trial court erred in granting summary judgment on the basis of the statute of limitations. Id. at 1303. Similar to Ohio‘s one-year statute of limitations for defamation claims, Miss. Code Ann. 15-1-35 provides that for “actions for slanderous words * * * and for libels, shall be commenced within one (1) year next after the cause of action accrued, and not after.” The Mississippi Supreme court noted that the “general rule in Mississippi is that the statute of limitations begins to run from the date of publication of the allegedly libelous statement to third person.” Staheli at 1302. However, the court found that the discovery rule should apply “in [those] limited class of libel cases in which, because of the secretive or inherently undiscoverable nature of the publication the plaintiff did not know, or with reasonable diligence could not have discovered, that he had been defamed.” Id. at 1303. The court noted that “[i]n such rare instances, we do not believe that a plaintiff can be accused of sleeping on his rights.” Id. The court determined that on the record before them, an issue of fact existed “as to whether [the professor] knew, or in the exercise of reasonable diligence should have discovered, that he had been defamed prior to the spring of 1984.” Id.
{¶29} We agree with the Staheli court that a plaintiff who did not know, or with reasonable diligence could not have discovered, that he or she had been defamed due to the secretive nature of the libelous publication cannot be said to have been sleeping on his or her rights. See also Norgard, 2002-Ohio-2007 at ¶ 19 (“Once a plaintiff knows of an injury and the cause of the injury, the law gives the plaintiff a reasonable time to file suit. Yet if the plaintiff is unaware that his or her rights have been infringed, how can it be said that he or she slept on those rights?“). Therefore, applying the rationale expressed by the
{¶30} We find that the adoption of the discovery rule does not amount to judicial legislation. As the supreme court noted in O‘Stricker, “[a]bsent legislative definition, it is left to the judiciary to determine when a cause * * * [of action ‘accrued‘].” O‘Stricker, 4 Ohio St.3d at 87. See also Oliver at 116. “‘The legislature * * * did not provide that the time of accrual was when the [defendant] performed the negligent act. This court did. The legislature left the matter undetermined. A determination that the time of accrual is the time of discovery is no more judicial legislation than a determination that it is the time of the commission of the act.‘” Id., quoting Berry v. Branner, 245 Ore. 307, 313 (Ore.1966).
{¶31} We further find, contrary to Hildebrant‘s arguments, that adopting the discovery rule in those limited instances where the publication of the defamatory statement was concealed or done in secret, rather than in a public manner or by means of mass media, does not create an unworkable rule. By limiting application of the rule to those instances where the publication was secretive, concealed, or otherwise inherently unknowable due to the nature of the publication, we have specifically tailored the rule to the particular context in which it is to be applied. See Browning, 66 Ohio St.3d at 559. In the overwhelming majority of cases, the discovery of defamatory statements in publicly available media, i.e.,
{¶32} In the present case, given the secretive manner in which Hildebrant went about publishing the defamatory remarks, Weidman could not have known about the libelous conduct and the injury resulting therefrom until November 18, 2020 – the date he met with investigators from the Auditor‘s Office. It was only at this time that Weidman learned of Hildebrant‘s creation of the 2011 email and his subsequent publication of the email to Roberts on December 20, 2011 and to LaBarbara and Warrick on January 25, 2020. Nothing presented by Hildebrant establishes that Weidman knew or should have known of the defamatory remarks he published prior to Weidman‘s meeting with the Auditor‘s investigators in November 2020. In fact, Hildebrant‘s own affidavit, which describes the circumstances in which he created and published the 2011 email, is evidence of the secretive nature of the publication.
{¶33} Accordingly, as Weidman filed his defamation claim within one year of discovering Hildebrant‘s publication of the defamatory 2011 email, we conclude that Weidman‘s defamation claim was timely filed. Having found application of the discovery rule appropriate under the circumstances of this case, we find it unnecessary to address Weidman‘s alternative argument that the fraudulent concealment doctrine applied to save his defamation claim.
{¶34} Weidman also argues the discovery rule applies to his IIED and false light invasion of privacy claims. Alternatively, he contends a four-year statute of limitations applied to his IIED claim and that the time for bringing the claim did not begin to run until the injury occurred and the emotional impact was felt.
{¶35} “[I]n determining which [statute of] limitation period will apply, courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial.” Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984).
{¶36} “[C]ourts have held that because defamation and false light overlap, ‘a false light invasion of privacy claim[] involving allegations that would also support a defamation claim has the same statute of limitations applied to it as the defamation claim.‘” Harvey v. Sys. Effect, LLC, 2d Dist. Montgomery No. 28497, 2020-Ohio-1642, ¶ 37, quoting Stainbrook v. Ohio Secy. of State, 10th Dist. Franklin No. 16AP-314, 2017-Ohio-1526, ¶ 27. “The rationale for applying the one-year statute of limitations in these situations is that where the allegations ‘would support both a defamation and a false-light invasion of privacy [claim], * * * [t]o hold otherwise would essentially eliminate the one-year statute of limitations for defamation claims under * * * [
{¶38} As the IIED and false light invasion of privacy claims were filed within one year of Weidman discovering Hildebrant‘s creation, publication, and use of the defamatory 2011 email, we conclude that Weidman‘s IIED and false light invasion of privacy claims were timely filed. See Schmitz at ¶ 36.
III. CONCLUSION
{¶39} For the reasons expressed above, we find the trial court erred in granting summary judgment to Hildebrant on the basis that Weidman‘s claims for defamation, IIED, and false light invasion of privacy were barred by the one-year statute of limitation set forth in
{¶40} Judgment reversed and the cause remanded.
M. POWELL, P.J., and PIPER, J., concur.