Weidman v. Hildebrant

[Cite as Weidman v. Hildebrant, 2022-Ohio-1708.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
THOMAS WEIDMAN, :
Appellant, : CASE NO. CA2021-09-084
: OPINION
- vs - 5/23/2022
:
CHRISTOPHER HILDEBRANT, :
Appellee. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
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.
Warren CA2021-09-084
I. FACTS & PROCEDURAL HISTORY
{¶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
-2-
Warren CA2021-09-084
tweidman12@gmail.com account. Based on the email, and the insinuations of bribery
therein, the Auditor for the State of Ohio was notified. The Auditor's Special Investigation's
Unit ("SIU") launched an investigation into Weidman.
{¶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.
-3-
Warren CA2021-09-084
{¶7} Subsequently, on February 17, 2021, Weidman filed a complaint against
Hildebrant, asserting claims of defamation, IIED, and false light invasion of privacy relating
to Hildebrandt's creation and publication of the 2011 email. Within his complaint, Weidman
asserted that Hildebrant's actions were "undertaken with actual malice in that he
intentionally lied through the Fake Email in an effort to destroy Weidman's political career,
cause him psychic and emotional injuries, and possibly bring him under criminal
investigation." Weidman further claimed Hildebrant's actions placed him in a false light and
Hildebrant's outrageous and extreme conduct was intended to inflict embarrassment,
psychic injury and psychological pain and suffering on him.
{¶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 R.C. 2305.11(A). Hildebrant
contended that the email that formed the basis of Weidman's claims was first published on
December 20, 2011, nearly a decade before the complaint was filed. He further argued
that even if the date of the email's publication to LaBarbara and Warrick was used (January
25, 2020), Weidman's claims were still time-barred as the complaint was not filed until
February 17, 2021, more than a year later. Hildebrant contended the one-year statute of
limitations for defamation claims also applied to Weidman's IIED and false light invasion of
privacy claims since the claims were closely tied and premised on the defamation claim.
{¶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
-4-
Warren CA2021-09-084
created the December 20, 2011 email and forwarded the email to Roberts on that date. He
further admitted he showed LaBarbara and Warrick the 2011 email on January 25, 2020,
when the men were at a golf club discussing the Morelia Group-DE, LLC's desire to
purchase property owned by Sycamore Township. Warrick's and LaBarbara's respective
affidavits stated that they were shown the 2011 email by Hildebrant on January 25, 2020.
{¶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
-5-
Warren CA2021-09-084
on November 18, 2020. He further stated that this meeting was "the first time I discovered
that Christopher Hildebrant created a fake email address to impersonate me and deceive
others." Attached to his affidavit was a partial transcript of his interview with investigators
from the Auditor's SIU.
{¶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
R.C. 2305.11(A). In entering judgment for Hildebrant, the trial court explicitly found that the
discovery rule and the fraudulent concealment doctrine did not apply, concluding that
"defamation cases are not subject to equitable tolling." In reaching its decision, the trial
court relied on an opinion from the Eighth District Court of Appeals which held that "the
mere fact that the subject of the alleged defamation does not discover the statements until
after the running of the statute of limitations is of no legal consequence." Rowan v. Schaffer,
8th Dist. Cuyahoga No. 107687, 2019-Ohio-3038, ¶ 3. The trial court further determined
that Weidman's false light invasion of privacy and IIED claims were barred by the one-year
statute of limitations, as the claims "hinged on the Defendant's publication of the 2011 email"
and were "the same as the defamation claim."
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 Civ.R. 56 when (1) there is
-6-
Warren CA2021-09-084
no genuine issue of material fact remaining to be litigated, (2) the moving party is entitled
to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion
and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence
construed in his favor. BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777,
2011-Ohio-3345, ¶ 17 (12th Dist.), citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d
367, 369-370 (1998).
{¶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; Civ.R. 56(E).
{¶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
-7-
Warren CA2021-09-084
Local 4207, 12th Dist. Warren No. CA2010-03-029, 2010-Ohio-3467, ¶ 9. "Any act by which
the defamatory mater is communicated to a third party constitutes publication." (Emphasis
sic.) Hecht v. Levin, 66 Ohio St.3d 458, 460 (1993), citing 3 Restatement of the Law 2d,
Torts, Section 577(1), Comment a (1965). There are two forms of defamation: slander and
libel. "The term slander refers to spoken defamatory words and libel to written defamatory
words." Drone Consultants at ¶ 28, citing Woods v. Capital Univ., 10th Dist. Franklin No.
09AP-166, 2009-Ohio-5672, ¶ 27. The present case involves the latter form of defamation,
as the case involves written defamatory words in the 2011 email.
{¶20} Pursuant to R.C. 2305.11(A), "[a]n action for libel * * * shall be commenced
within one year after the cause of action accrued * * *." "Generally, a cause of action
accrues and the statute of limitations begins to run at the time the wrongful act was
committed." Norgard v. Brush Wellman, 95 Ohio St.3d 165, 2002-Ohio-2007, ¶ 8. In the
context of a libel action, the cause of action usually accrues when the written words are first
published. Daubenmire v. Sommers, 156 Ohio App.3d 322, 2004-Ohio-914, ¶ 82 (12th
Dist.). Weidman, however, argues that the discovery rule should apply to his defamation
claim. The discovery rule is an exception to the general rule that a cause of action accrues
at the time the wrongful act was committed. 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."
Norgard at ¶ 8, citing O'Stricker v. Jim Walter Corp., 4 Ohio St.3d 84 (1983). The discovery
rule, therefore, "entails a two-prong test – i.e., discovery not just that one has been injured
but also that the injury was 'caused by the conduct of the defendant' – and * * * a statute of
limitations does not begin to run until both prongs have been satisfied." Id. at ¶ 9, quoting
O'Stricker at 86.
{¶21} A number of Ohio's appellate courts have expressly declined to apply the
-8-
Warren CA2021-09-084
discovery rule to a cause of action for defamation, finding that the cause of action accrues
upon first publication of the defaming statement. See Rowan v. Schaffer, 8th Dist.
Cuyahoga No. 107687, 2019-Ohio-3038, ¶ 3-4 (holding that the discovery rule "does not
toll the one-year limitations period for defamation claims" and that "[t]he mere fact that the
subject of the alleged defamation does not discover the statements until after the running
of the statute of limitations is of no consequence"); Kienow v. Cincinnati Children's Hosp.
Med. Ctr., 1st Dist. Hamilton No. C-140720, 2015-Ohio-4396, ¶ 8 (holding that "there is no
discovery rule for defamation"); Reed v. Jagnow, 7th Dist. Mahoning No. 12 MA201, 2013-
Ohio-2546, ¶ 25 (holding that "there is no discovery rule for defamation"); Lyons v. Farmers
Ins. Group of Companies, 67 Ohio App.3d 448, 450 (3d Dist.1990) (declining to apply the
discovery rule to a defamation-by-slander claim). Those appellate courts that have declined
to apply the discovery rule to defamation claims cite to case law that can be traced back to
an 1894 case originating out of the Superior Court of Cincinnati, Pearl v. Koch, 5 Ohio Dec.
5, 1894 Ohio Misc. LEXIS 192 (1894).1
{¶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
1. In 1921, the Superior Court of Cincinnati was incorporated into the common pleas court. See State ex rel.
Forchheimer v. LeBlond, 108 Ohio St. 41, 45 (1923) (Pursuant to Section 6 of the act of April 29, 1921, 109
Ohio Laws 354 [1921], "[t]he power and jurisdiction conferred upon the superior court of Cincinnati by virtue
of Section 15098 of the General Code is hereby terminated and abolished, and the same is vested in the court
of common pleas of the county in which said superior court of Cincinnati is located").
-9-
Warren CA2021-09-084
authorized." Id. at 8.
{¶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 R.C. 2305.10"); Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111(1983), syllabus ("Under R.C. 2305.11[A], a cause of action for medical malpractice accrues
and the statute of limitations commences to run when the patient discovers, or, in the
exercise of reasonable care and diligence should have discovered the resulting injury");
Skidmore & Hall v. Rottman, 5 Ohio St.3d 210 (1983), syllabus ("Under R.C. 2305.11[A], a
2. Hildebrant argues this court rejected the discovery rule as the accrual event for a defamation cause of
action in Daubenmire v. Sommers, 156 Ohio App.3d 322, 2004-Ohio-914 (12th Dist.). In Daubenmire, we
stated, "[a] cause of action for slander accrues from the time the slanderous remarks are spoken, whether the
defamed person has knowledge of the fact or not." Id. at ¶ 82, citing Lyons v. Farmers Ins. Group of
Companies, 67 Ohio App.3d 448, 450 (3d Dist.1990). However, we were not asked to consider in Daubenmire
whether the discovery rule was applicable to defamation actions.
- 10 -
Warren CA2021-09-084
cause of action for legal malpractice accrues and the statute of limitations commences to
run when the client discovers, or, in the exercise of reasonable care and diligence should
have discovered, the resulting injury"); Browning v. Burt, 66 Ohio St.3d 544 (1993),
paragraph four of the syllabus ("The period of limitations set forth in R.C. 2305.10
commences to run when the victim knows or should have discovered that he or she was
injured as a result of the hospital's negligent credentialing procedures or practices"); Ault v.
Jasko, 70 Ohio St.3d 114, 1994-Ohio-376, paragraphs one and two of the syllabus ("The
one-year statute of limitations period of sexual abuse in Ohio begins to run when the victim
recalls or otherwise discovers that he or she was sexually abused, or when, through the
exercise of reasonable diligence, the victim should have discovered the sexual abuse");
Collins v. Sotka, 81 Ohio St.3d 506 (1998), paragraphs one and two of the syllabus ("In a
wrongful death action that stems from a murder, the statute of limitations begins to run when
the victim's survivors discover, or through the exercise of reasonable diligence should have
discovered, that the defendant has been convicted and sentenced for the murder");
Norgard, 2002-Ohio-2007 at syllabus ("A cause of action based on an employer intentional
tort accrues when the employee discovers, or by the exercise of reasonable diligence
should have discovered, the workplace injury and the wrongful conduct of the employer").
{¶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
- 11 -
Warren CA2021-09-084
v. Cashen, 6th Dist. Wood No. WD-83-23, 1983 Ohio App. LEXIS 11595 (Aug. 12, 1983).
In Dipillo, a defendant was alleged to have written a letter to the city of Walbridge's mayor
and council members on April 20, 1978. In the letter, the defendant claimed she heard the
plaintiff, the city's chief of police, ask a female police dispatcher if she could get the mayor
in a backroom and "set him up." Id. at *1. The defendant also claimed she heard the plaintiff
say it would be funny to see the mayor lose his job and family. Id. In May 1978, the plaintiff
resigned from his position as chief of police after being asked to do so. Id. Subsequently,
on November 3, 1981, plaintiff brought suit against the defendant, alleging that the letter
written by the defendant was defamatory and libelous. Id. at *2. Plaintiff contended that he
had not become aware of the letter the defendant had written until April of 1981. Id. The
trial court granted the defendant judgment on the pleadings, finding that the statute of
limitations for the defendant's actions began to run on the date of the publication of the
letter. Id. On appeal, the Sixth District reversed after finding that the discovery rule applied.
The court stated, in relevant part, the following:
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 under R.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.
Id. at *3-4.
{¶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
- 12 -
Warren CA2021-09-084
Unified School Dist., 88 Cal. App.3d 725 (Cal.App.1979) (confidential letter in employee
file); Sears, Roebuck & Co. v. Ulman, 287 Md. 397 (Md.App.1980) (credit report); White v.
Gurnsey, 48 Ore. App. 931 (Ore.App.1980) (confidential memorandum in employee file);
Clark v. AiResearch Mfg. Co., 138 Ariz. 240, 242 (Ariz.App.1983) (recognizing discovery
rule should be applied "in those situations in which the defamation is published in a manner
in which it is peculiarly likely to be concealed from the plaintiff, such as in a confidential
memorandum or a credit report"); Staheli v. Smith, 548 So.2d 1299 (Miss.1989)
(confidential employer letter placed in employee's file was secretive or inherently
unknowable); Allen v. Ortez, 802 P.2d 1307, 1314 (Utah 1990) (applying the discovery rule
and finding the statute of limitations relating to a libelous letter "does not begin to run until
the libel is known or is reasonably discoverable"); Padon v. Sears, 186 W.Va. 102(W.Va.App.1991) (false criminal complaint resulting in arrest); Leedom v. Bell, Ten.App.
No. 03A01-9704-CV-00136, 1997 Tenn. App. LEXIS 742 (Oct. 29, 1997) (confidential
report by psychologist); Digital Design Group, Inc. v. Information Builders, Inc., 2001 OK 21(Okla.2001) (confidential letter).
{¶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
- 13 -
Warren CA2021-09-084
summary judgment on the grounds that the defamation claim was brought outside the one-
year statute of limitations. Id. at 1302. The trial court agreed and granted summary
judgment in favor of the dean. Id.
{¶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
- 14 -
Warren CA2021-09-084
Ohio Supreme Court in O'Stricker, Oliver, and the line of cases decided thereafter, we
hereby hold 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. In such instances, a cause of action for defamation
accrues when 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. Application
of the discovery rule in such instances eases the unconscionable result to a plaintiff who,
by exercising even the highest degree of care, could not have discovered the wrongful
conduct of the defendant. See Oliver, 5 Ohio St.3d at 114.
{¶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.,
- 15 -
Warren CA2021-09-084
a website, book, magazine, or newspaper, will coincide with publication, making the date of
publication the accrual date for a libel action. However, in those limited class of cases
where the publication was concealed, made in secret, or was inherently unknowable to the
plaintiff due to the nature of the publication, it is not the date of publication on which the libel
action accrues. Rather, in those limited circumstances, the date on which the libel action
accrues is the date that the plaintiff discovered, or by the exercise of reasonable diligence
should have discovered, that he or she was injured by the wrongful conduct of the
defendant.
{¶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.
- 16 -
Warren CA2021-09-084
B. Weidman's IIED and False Light Invasion of Privacy Claims
{¶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 * * * [R.C.] 2305.11(A).'" Id. at ¶ 38, quoting Stainbrook at ¶
28. Similarly, where an IIED claim is inextricably premised on the same allegations that
support a defamation claim, "the applicable one-year statute of limitations for defamation
also applies to the emotional distress claim." Boyd v. Archdiocese of Cincinnati, 2d Dist.
Montgomery No. 25950, 2015-Ohio-1394, ¶ 51, citing Ibenez v. Hutchins, 10th Dist. Franklin
No. 12AP-319, 2012-Ohio-5040, ¶ 9. See also Ra v. Ohio Atty. Gen. Office, 10th Dist.
Franklin No. 19AP-533, 2020-Ohio-1346, ¶ 20-26 (finding an IIED claim and other tort
claims were disguised defamation claims barred by a one-year statute of limitations).
- 17 -
Warren CA2021-09-084
{¶37} As the trial court correctly noted in its decision, Weidman's IIED and false light
invasion of privacy claims "hinge on [Hildebrant's] publication of the 2011 email." The
alleged conduct underlying Weidman's IIED and false light invasion of privacy claims cannot
be separated from the virtually identical alleged conduct underlying his defamation claim.
All three claims alleged that the publication of the defamatory 2011 email was done to cause
harm to Weidman's reputation and cause him emotional distress. The IIED and false light
invasion of privacy claims are therefore subject to the one-year statute of limitations
contained in R.C. 2305.11(A) that applies to Weidman's defamation claim. However, just
as the discovery rule applied to Weidman's defamation claim, we find it applicable to his
IIED and false light invasion of privacy claim. See Schmitz v. NCAA, 155 Ohio St.3d 389,
2018-Ohio-4391, ¶ 35-36 (finding that the discovery rule applied to plaintiff's claims for
negligence, fraudulent concealment, and constructive fraud and that all claims were
governed by the negligence statute of limitation as "the alleged conduct underlying [the]
fraudulent-concealment and constructive-fraud claims cannot be separated from the
virtually identical alleged conduct underlying [the] negligence claim").
{¶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 R.C. 2305.11(A). Under the facts of this case, where the publication of the defamatory
statement was secretive, concealed, or otherwise inherently unknowable due to the nature
- 18 -
Warren CA2021-09-084
of the publication, application of the discovery rule is appropriate. The trial court's decision
granting summary judgment to Hildebrant is reversed and the matter remanded for further
proceedings.
{¶40} Judgment reversed and the cause remanded.
M. POWELL, P.J., and PIPER, J., concur.
- 19 -