When a person’s reputation is harmed by a secretive or concealed message, a defamation lawsuit can be pursued within one year after discovering the harmful statement, the Supreme Court of Ohio ruled today.

A Supreme Court majority held the “discovery rule,” which has been applied to victims of asbestos exposure and medical malpractice, applies to defamatory statements that are secretive, concealed, or otherwise inherently unknowable due to the nature of the publication. The decision arose from a phony email created in 2011 that was sent to one person alleging a Warren County township trustee was demanding bribes. That email resurfaced in 2019 and led to a state auditor investigation of the trustee.

Writing for the Court majority, Justice Michael P. Donnelly stated that the one-year statute of limitations for filing a defamation lawsuit should not apply to the date a real estate developer sent a private email to defame Sycamore Township Trustee Thomas Weidman. Rather, the discovery rule starts the statute of limitations at the time when Weidman could reasonably discover the statement.

“Use of the discovery rule eases the unconscionable result to innocent victims who by exercising the highest degree of care could not have discovered the cited wrong,” Justice Donnelly wrote, quoting the 1983 Supreme Court Oliver v. Kaiser Community Health Found. decision.

Today’s decision affirmed a Twelfth District Court of Appeals ruling.

Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s opinion. Sixth District Court of Appeals Judge Christine Mayle, sitting for Justice Joseph T. Deters, also joined the opinion. Judge Mayle also wrote a separate concurring opinion.

Justice Patrick F. Fischer concurred in judgment only.

Chief Justice Sharon L. Kennedy dissented, stating Ohio has had a one-year statute of limitations for the two forms of defamation — slander and libel — for more than 170 years. She wrote through “judicial activism,” the majority has added a discovery rule to defamation claims. She noted the General Assembly adopted the discovery rule for a narrow set of circumstances, including lawsuits for bodily injury, medical malpractice, and actual financial loss by the victim. State lawmakers, not the Court, are the only ones who can extend the discovery rule to defamation lawsuits, and they have not, she concluded.

Fourth District Court of Appeals Judge Kristy S. Wilkin, sitting for Justice R. Patrick DeWine, wrote a separate dissenting opinion. Judge Wilkin also argued the legislature, not the Court, has the authority to apply the discovery rule to lawsuit statutes of limitations. However, she maintained, the statute of limitations ran for one year each time the developer’s fake email was resent to others. She stated that a trial court should determine when the state auditor’s office received the email about Weidman and whether Weidman filed his lawsuit within a year of the email’s transmission.

Failed Property Deal Prompts Accusations
In 2011, Cincinnati-based real estate developer Christopher Hildebrant was facilitating the sale of property owned by SDI Foods to Sycamore Township for development. If the deal went through, Hildebrant expected to receive a large consulting fee from both the township and SDI Foods.

Hildebrant was working with Stanford Roberts from SDI Foods and the township trustees, which included Weidman. Hildebrant claimed both Roberts and Weidman wanted kickbacks from Hildebrant from his substantial consulting fee. Hildebrant also claimed that Weidman threatened to block the deal unless he received his payment.

Hildebrant claimed he told both Roberts and Weidman he would pay them, although he never intended to actually make a payment. He alleged when Roberts pressured him for money, he created a fictitious email account using Weidman’s first initial and last name and sent an email from that account to his email account in December 2011.

The phony email portrayed that Weidman had accepted a bribe and demanded more payments in exchange for his support on another real estate deal. Hildebrant forwarded the fake email to Roberts and stated since Weidman was demanding a significant amount, he did not have enough money to pay Roberts. The email between Hildebrant and Roberts remained private for several years.

Email Resurfaces When Land Deal in Trouble
In 2019, Hildebrant sought to purchase land from Sycamore Township on behalf of his development group. Weidman was still a trustee, and the deal required the unanimous consent of the three township trustees.

Weidman opposed the sale, and in January 2020, Hildebrant met with Township Trustee James LaBarbera and Raymond Warrick, the township administrator. During the meeting, Hildebrant asserted Weidman opposed the deal because Hildebrant would not provide him a kickback on the 2011 SDI Foods land deal. Hildebrant showed LaBarbera and Warrick the 2011 email as proof.

Soon after, the state auditor was notified, and the auditor’s special investigations unit subpoenaed the 2011 email. In November 2020, nearly 10 months after the email was shown to the two township officials, Weidman first learned of the email from the auditor’s office. Weidman denied the email’s authenticity and said he did not own that email account or create the email. Weidman did not receive a copy of the 2011 email until January 2021.

The next month, February 2021, Weidman filed a lawsuit in Warren County Common Pleas Court against Hildebrant, alleging defamation and two related claims of intentional infliction of emotional distress and false-light invasion of privacy.

In response, Hildebrant admitted creating the fake 2011 email and sharing it with the township officials in 2020. He argued that Weidman’s lawsuit should be dismissed because the one-year statute of limitations for filing a defamation lawsuit expired one year after his 2011 email to Roberts. In the alternative, Hildebrant argued the statute of limitations expired one year after he showed the email to the township officials in January 2020, and that Weidman missed the deadline when he sued in February 2021.

The trial court agreed with Hildebrant and dismissed the case. Weidman appealed to the Twelfth District, which applied the discovery rule and held that the trial court must determine if Weidman had filed his suit within one year of discovering or should have discovered the email.

Hildebrant appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Defamation Claim Deadline
R.C. 2305.11(A) sets the statute of limitations for defamation claims and states that a lawsuit must start “within one year after the cause of action accrued.” Justice Donnelly wrote the law does not define “accrue,” and in such cases the Court applies the ordinary meaning of the word, which typically means “arose.”

The Court has generally stated that a statute of limitations begins to run when the wrongful act is committed, and the time of the wrongful act is considered the starting point for calculating the deadline for filing a lawsuit. The opinion explained the discovery rule has been adopted by the Court and written into state law as an exception to the general rule. The opinion noted the Twelfth District relied on the Court’s 1983 O’Stricker v. Jim Walter Group decision, which dealt with asbestos exposure.

In O’Stricker, the Court explained diseases related to asbestos exposure do not appear until years later and well after the statute of limitations for a bodily injury case expires. The appeals court also pointed to Oliver, in which the Court applied the discovery rule in a medical malpractice case dealing with a surgical sponge left in a patient’s body.

“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,” the opinion stated.

The majority noted that since R.C. 2305.11(A) did not specify what act constitutes the starting point of a defamation lawsuit, the Court can set the time when the right to sue arises. The opinion stated that Ohio courts have interpreted R.C. 2305.11(A) to mean that a defamation lawsuit must be filed within a year from when the harmful statement was first published, regardless of whether the harmed person knew about it or not. However, the Sixth District ruled in a 1983 case that a defamation case starts with the injured person who should have discovered the statements through “reasonable care and diligence.”

Based on the private exchange between Hildebrant and Roberts, Weidman could not have known he was harmed, nor could he have known when, in 2020, Hildebrant showed the phony email to the two township officials.

“We conclude that Weidman could not have known of the potential 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,” the opinion stated.

Hildebrant and other wrongdoers should not be able to publish a defamatory statement and keep it a secret for at least a year, then release it publicly after a year and hide behind the one-year statute of limitations, the opinion stated. The Court found that the statute of limitations had begun to run for Weidman’s defamation and related claims from the time he should have discovered the email. The case was remanded to the common pleas court for further proceedings.

Defamation Claims Must Be Filed Within a Year of First Publication, Dissent Maintained
Chief Justice Kennedy wrote that the General Assembly enacted a statute of limitations for slander and libel claims in 1853, which stated that the cases must be filed within one year after the cause of action accrued. The dissent cited numerous lower court decisions indicating that a defamation cause of action occurs once the harmful words are communicated. The chief justice further explained that every appellate district has held that a defamation cause of action accrues at first publication.

Chief Justice Kennedy explained that the discovery rule does not apply to defamation cases because the discovery rule was developed for bodily-injury, medical malpractice, and actual economic loss cases, not reputational harm cases like defamation. While Chief Justice Kennedy empathized with Weidman, she stated that the General Assembly set the one-year limit. Because the discovery rule does not apply to defamation lawsuits, a case must be filed within one year of when the defamatory statement was first published, she stated.

“Because Weidman did not bring his defamation lawsuit 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),” she wrote.

Chief Justice Kennedy also disagreed with Judge Wilkin’s argument that Ohio courts do not need to apply the first publication rule and can permit a lawsuit to be filed after a defamatory statement has been republished.

Republication Rule Applies to Defamation Cases, Dissent Asserted
Judge Wilkin wrote that the Court cannot add the discovery rule to defamation cases. However, she noted that defamation is subject to “distinctive” rules for determining when the defamatory statement causes harm. Rather than making a separate rule for “secretive, concealed, or otherwise inherently unknowable publication,” the Court should adopt the generally accepted “single publication rule,” she wrote. Under the rule, “any” publication of a defamatory statement can trigger the start of a new claim of defamation with its one-year statute of limitations.

Judge Wilkin noted that the state auditor’s office was not informed of the email by the two township officials who saw the email, but instead by a third township trustee who became aware of the controversy. The case should be remanded to the trial court to determine when the third trustee became aware of the 2011 email and whether Weidman filed his lawsuit within a year of when the email’s content was provided to the third trustee.

2022-0837 and 2022-1042. Weidman v. Hildebrant, Slip Opinion No. 2024-Ohio-2931.

View oral argument video of this case.

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