Weidman v. Hildebrandt

[This opinion has been published in Ohio Official Reports at 178 Ohio St.3d 3.]

WEIDMAN, APPELLEE, v. HILDEBRANT, APPELLANT.

[Cite as Weidman v. Hildebrant, 2024-Ohio-2931.]

Statute of limitations—R.C. 2305.11—Libel—Discovery rule—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 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.)

APPEAL from and CERTIFIED by the Court of Appeals for Warren County,

No. CA2021-09-084, 2022-Ohio-1708.

__________________

DONNELLY, J., authored the opinion of the court, which STEWART,

BRUNNER, and MAYLE, JJ., joined. MAYLE, J., authored a concurring opinion.

FISCHER, J., concurred in judgment only. KENNEDY, C.J., and WILKIN, J.,

dissented, with opinions. KRISTY S. WILKIN, J., of the Fourth District Court of

Appeals, sat for DEWINE, J. CHRISTINE MAYLE, J., of the Sixth District Court of

Appeals, sat for DETERS, J.

DONNELLY, J.

I. INTRODUCTION

{¶ 1} 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

SUPREME COURT OF OHIO

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

{¶ 2} 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.

{¶ 3} 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

2

January Term, 2024

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 auditor’s special-

investigations unit (“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.

{¶ 7} 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.

{¶ 8} 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-

3

SUPREME COURT OF OHIO

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.

{¶ 10} The trial court granted Hildebrant’s motion for summary judgment,

relying on Rowan v. Schaffer, 2019-Ohio-3038, ¶ 3 (8th Dist.), which held that a

defamation claim accrues at the time that the allegedly defamatory statement is first

published to a third party. The court of appeals in Rowan rejected the discovery

rule’s application to defamation claims, noting that it is of no legal consequence

that the “subject of the alleged defamation does not discover the statements until

after the running of the statute of limitations.” Id.

{¶ 11} Weidman appealed, and the Twelfth District Court of Appeals

reversed, holding that the discovery rule applied to defamation claims when the

publication of the defamatory statements was secretive, concealed, or otherwise

inherently unknowable. 2022-Ohio-1708, ¶ 29 (12th Dist.). The court of appeals

relied on O’Stricker v. Jim Walter Corp., 4 Ohio St.3d 84 (1983), and subsequent

cases in which we applied the discovery rule. 2022-Ohio-1708 at ¶ 23 (12th Dist.).

On Hildebrant’s motion, the Twelfth District certified that its decision was in

conflict with decisions from other appellate districts. We subsequently determined

that a conflict exists and ordered briefing on the following issues:

4

January Term, 2024

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?

2022-Ohio-3636. We also accepted jurisdiction over the sole proposition of law in

Hildebrant’s discretionary appeal: “The discovery rule does not apply to

defamation claims, even where the publication of the defamatory statements was

secretive, concealed, or otherwise inherently unknowable.” See id. We sua sponte

consolidated the two cases for briefing. Id.

III. ANALYSIS

{¶ 12} We review matters requiring statutory interpretation de novo.

Stewart v. Vivian, 2017-Ohio-7526, ¶ 23.

{¶ 13} R.C. 2305.11(A) provides that “[a]n action for libel . . . shall be

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, 2010-Ohio-5991, ¶ 3, 16-17; see also O’Stricker

at paragraph one of the syllabus (“Absent legislative definition, it is left to the

judiciary to determine when a cause ‘arose’ for purposes of statutes of

limitations.”).

A. Discovery Rule

{¶ 14} In Norgard v. Brush Wellman, Inc., 2002-Ohio-2007, ¶ 8, we stated

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

5

SUPREME COURT OF OHIO

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, 1998-Ohio-331,

¶ 8, citing O’Stricker, 4 Ohio St.3d 84. We reached that conclusion because “the

application of the general rule ‘would lead to the unconscionable result that the

injured party’s right to recovery can be barred by the statute of limitations before

he is even aware of its existence.’” O’Stricker at 87, quoting Wyler v. Tripi, 25

Ohio St.2d 164, 168 (1971). The discovery rule allows those who are injured

adequate time to seek relief on the merits without undue prejudice to defendants.

See Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111, 114 (1983). But

we have also stated that the discovery rule must be tailored to the particular context

in which it is being applied. Browning v. Burt, 1993-Ohio-178, ¶ 52.

{¶ 15} This court has applied the discovery rule to toll statutes of limitations

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.

{¶ 16} 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

6

January Term, 2024

under the same statute at issue here, R.C. 2305.11(A), Oliver at 112.1 In Skidmore

& Hall v. Rottman, 5 Ohio St.3d 210, 211 (1983), we applied the discovery rule to

legal-malpractice claims that were otherwise subject to a one-year time bar under

R.C. 2305.11(A). We have also applied the discovery rule in cases involving

wrongful-death claims, Collins at 511; hospital negligence in credentialing a

physician, Browning at 558-559; certain sexual-abuse claims, Ault v. Jasko, 1994-

Ohio-376, ¶ 14, superseded by statute as stated in Pratte v. Stewart, 2010-Ohio-

1860; and employer intentional torts, Norgard at ¶ 18. See Harris v. Liston, 1999-

Ohio-159, ¶ 13-15 (listing other situations in which we have applied the discovery

rule).2

{¶ 17} The discovery rule has not been applied to defamation claims.3 This

dates to Pearl v. Koch, 5 Ohio Dec. 5, 6-8 (Super.Ct. 1894), when the Superior

Court of Cincinnati ruled that the statute of limitations for slander must be strictly

construed and that the discovery rule did not apply. Even though the Superior Court

of Cincinnati was a court of law, not a court of equity, id. at 8, and therefore lacked

the authority to apply equitable principles like the discovery rule, various courts of

1. Since Oliver was decided, the General Assembly adopted a four-year statute of repose for

medical-malpractice claims, R.C. 2305.113(C).

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., 133 Ohio App.3d 102, 108 (10th Dist. 1999). This

opinion focuses on libel, which is a defamatory statement that is “written or printed and published,”

Watson v. Trask, 6 Ohio 531, 532-533 (1834), because this case involves a published email, though,

at times, we use the more general word “defamation.”

7

SUPREME COURT OF OHIO

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., 2015-Ohio-4396, ¶ 8 (1st Dist.); Harvey v. Sys. Effect, L.L.C.,

2020-Ohio-1642, ¶ 35 (2d Dist.); Spitzer v. Knapp, 2019-Ohio-2770, ¶ 27 (5th

Dist.); Reed v. Jagnow, 2013-Ohio-2546, ¶ 25 (7th Dist.); Sabouri v. Ohio Dept. of

Job & Family Servs., 145 Ohio App.3d 651, 654-655 (10th Dist. 2001); Altier v.

Valentic, 2004-Ohio-5641, ¶ 38 (11th Dist.); Daubenmire v. Sommers, 2004-Ohio-

914, ¶ 82 (12th Dist.). At least one appellate court has held to the contrary. See

Dipillo v. Cashen, 1983 Ohio App. LEXIS 11595, *3-4 (6th Dist. Aug. 12, 1983)

(holding that under R.C. 2305.11(A), the statute of limitations for libel or slander

commences “when the plaintiff discovers, or, in the exercise of reasonable care and

diligence, should have discovered the resulting injury”). Today, we conclude 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.4

B. Weidman’s Defamation Claim

{¶ 18} 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.

8

January Term, 2024

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.

{¶ 19} 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 anyone 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).

{¶ 20} 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., 2019-Ohio-4809, ¶ 32. Applying the discovery rule to

cases such as the one before us offends none of these goals. Rather, it reflects the

understanding that a tortfeasor should not be permitted to secretively injure a person

and avoid liability for that injury by hiding behind a statute of limitations.

9

SUPREME COURT OF OHIO

{¶ 21} Today, we hold that the discovery rule applies to claims of libel

when the publication of the libelous statements was secretive, concealed, or

otherwise inherently unknowable to the plaintiff due to the nature of the

publication.5 This accords with the rationale explained by Justice Cook in NCR

Corp. v. U.S. Mineral Prods. Co., 1995-Ohio-191, ¶ 8, in which, citing O’Stricker,

she stated that the “discovery rule is invoked in situations where the injury

complained of may not manifest itself immediately and, therefore, fairness

necessitates allowing the assertion of a claim when discovery of the injury occurs

beyond the statute of limitations.” See Collins, 1998-Ohio-331, ¶ 17 (“the

discovery rule was adopted to prevent inequities that occur when a statute of

limitations is rigidly followed”).

{¶ 22} When defamatory statements are published in the media or otherwise

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, 2003-Ohio-4779, ¶ 9, this court addressed

a statutory scheme that prohibited the carrying of concealed weapons. We concluded that the

statutory scheme “that has been part of our legal heritage since 1859, that has been amended by our

General Assembly time and again without fundamental modification, that did not arouse the concern

of two different constitutional conventions, and that has been held by this court to be constitutional”

was constitutional. Id. at ¶ 11. According to the logic of the first dissent in this case, the fact that

the General Assembly had not changed the statutory scheme that prohibited the carrying of

concealed weapons would have been proof that it did not want to change the scheme. But, of course,

that the General Assembly has not done something is proof of nothing; within a year of our decision

in Klein, the General Assembly amended the statutory scheme to allow sheriffs to issue licenses to

carry concealed handguns to certain persons. Am.Sub.H.B. No. 12, 150 Ohio Laws, Part II, 3297.

The general point is that we know what the General Assembly wants by its action, not by its inaction.

Similarly, it would be folly for litigants to rely on the fact that we did not accept jurisdiction over

an issue as proof that we will not accept jurisdiction over a similar, or even the same, issue in the

future.

10

January Term, 2024

dormientibus aequitas subvenit—equity aids the vigilant, not those who sleep on

their rights. New York City v. Pine, 185 U.S. 93, 98 (1902); Ivani Contracting Corp.

v. New York City, 103 F.3d 257, 259 (2d Cir. 1997). We do little more today than

recognize, again, though in a new context, that a plaintiff cannot be said to have

slept on his rights when he was unaware that he was injured. Oliver, 5 Ohio St.3d

at 114 (“Use 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.”).

{¶ 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.

{¶ 24} 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.

{¶ 25} 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, 32

Ohio St.2d 198, 200 (1972).

11

SUPREME COURT OF OHIO

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., 12 Ohio St.3d 179, 183 (1984).

{¶ 27} Both parties agree that because the substance of the IIED claim and

the false-light-invasion-of-privacy claim are virtually identical to the defamation

claim, the statute of limitations associated with the defamation claim controls. The

court of appeals agreed. 2022-Ohio-1708 at ¶ 37 (12th Dist.). We also agree and

hold that because the alleged conduct underlying the IIED claim and the false-light-

invasion-of-privacy claim is virtually identical to the alleged conduct underlying

the defamation claim, the applicable statute of limitations for Weidman’s IIED

claim and false-light-invasion-of-privacy claim is R.C. 2305.11(A). See

Stainbrook v. Ohio Secy. of State, 2017-Ohio-1526, ¶ 27 (10th Dist.) (holding that

“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”); Boyd v. Archdiocese of Cincinnati, 2015-Ohio-1394, ¶ 51 (2d

Dist.) (holding that “where defamation is the basis for an intentional infliction of

emotional distress claim, the applicable one-year statute of limitations for

defamation also applies to the emotional distress claim”). To hold otherwise would

allow a plaintiff to repackage a defamation claim as a separate cause of action to

avail a longer statute of limitations. For the reasons discussed above, the discovery

rule applies to these derivative claims.

IV. CONCLUSION

{¶ 28} 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

12

January Term, 2024

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.

__________________

MAYLE, 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.

{¶ 30} 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.

{¶ 31} 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

13

SUPREME COURT OF OHIO

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”).

{¶ 32} 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.

{¶ 33} 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., 2011-Ohio-1961, ¶ 13 (discussing discovery rule in

terms of accrual); Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111

(1983), syllabus (same); see also Collins v. Sotka, 1998-Ohio-331, ¶ 8 (explaining

that under the discovery rule, “a cause of action accrues when the plaintiff

discovers, or in the exercise of reasonable care should have discovered, that he or

she was injured by the wrongful conduct of the defendant”); Investors REIT One at

180 (recognizing that in some circumstances, the “discovery rule is appropriate for

14

January Term, 2024

calculating when a cause of action accrues for purposes of defining a limitations

period”). This court has also described the discovery rule as “tolling” the statute of

limitations. See, e.g., Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 201 (1972);

Collins at paragraph one of the syllabus (holding that the discovery rule applies to

toll the two-year statute of limitations for a wrongful-death claim); Investors REIT

One at 180 (explaining that “[d]epending on the claim and the applicable statute,

the date of discovery may toll the running of the governing statute of limitations”);

see also Oliver at 118-119 (Holmes, J., dissenting) (characterizing the discovery

rule as a tolling event). The two concepts, however, are distinct. “Toll” means “to

stop the running of; to abate,” Black’s Law Dictionary (11th Ed. 2019), while

“accrue” means “[t]o come into existence as an enforceable claim or right,” id.

{¶ 34} In my view, the discovery rule is most accurately described as “a

rule of accrual.” Liddell v. SCA Servs. of Ohio, Inc., 1994-Ohio-328, ¶ 32 (referring

to the discovery rule as the “O’Stricker rule of accrual”), citing O’Stricker v. Jim

Walter Corp., 4 Ohio St.3d 84 (1983). That is, “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.”

(Emphasis added.) Norgard v. Brush Wellman, Inc., 2002-Ohio-2007, ¶ 8. When

the discovery rule applies, there is nothing to “toll” because the action has not yet

“accrued.”

{¶ 35} When the discovery rule is viewed through an “accrual” lens, those

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

15

SUPREME COURT OF OHIO

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 inclusion 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,

46 Ohio St.3d at 181.

{¶ 37} Here, R.C. 2305.11 is silent on the discovery rule. In addition, it

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.

__________________

KENNEDY, C.J., dissenting.

{¶ 38} 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.

16

January Term, 2024

{¶ 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).

{¶ 40} 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

{¶ 41} “Defamation is defined as a false publication which injures a

person’s reputation.” Dale v. Ohio Civ. Serv. Emps. Assn., 57 Ohio St.3d 112, 117

(1991). Likewise, a defamatory matter is that which is “injurious to the reputation

of a private individual.” Gert v. Robert Welch, Inc., 418 U.S. 323, 346 (1974). “To

establish a claim for defamation, [a] plaintiff must prove by a preponderance of the

evidence that a false publication caused injury to his reputation, or exposed him to

public hatred, contempt, ridicule, shame, or disgrace, or affected him adversely in

his trade or business.” Miller v. Ohio Rehab. Serv. Comm., 86 Ohio Misc.2d 97,

17

SUPREME COURT OF OHIO

101 (Ct. of Cl. 1997), citing Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d 359,

365 (8th Dist. 1990).

{¶ 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, 116 Ohio App.3d 195, 206

(9th Dist. 1996).

II. Statute of Limitations

{¶ 43} 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., 2002-Ohio-2007, ¶ 8. “Generally, a

cause of action accrues . . . at the time the wrongful act was committed.” Id.

Exceptions to a statute of limitation must be set forth by the General Assembly.

See 51 Am.Jur.2d, Limitation of Actions, § 151, at 600 (2021). “Courts will not,

as a general rule, read into statutes of limitations exceptions that are not written into

the statute, however reasonable such exceptions may seem and even though such

exceptions would be equitable.” Id., citing Foxworth ex rel. Estate of Durden v.

Kia Motors Corp., 377 F.Supp.2d 1196 (N.D.Fla. 2005), aff’d, 148 Fed.Appx. 920

(11th Cir. 2005); Muskingum Watershed Conservancy Dist. v. Steinmetz, 57 Ohio

App. 502 (5th Dist. 1937); Bain v. Smith, 97 S.W.2d 353 (Tex.Civ.App. 1936).

{¶ 44} “Statutes of limitation are designed to assure an end to litigation and

to establish a state of stability and repose.” Wyler v. Tripi, 25 Ohio St.2d 164, 171

(1971), overruled on other grounds by Oliver v. Kaiser Community Health Found.,

18

January Term, 2024

5 Ohio St.3d 111 (1983). “It must be assumed that when the General Assembly

enacts a statute of limitations it is aware that, although a stale claim may be

meritorious, the statute will operate without reference to merit and will cut off the

claim.” Id. “The rationale underlying statutes of limitations is fourfold: to ensure

fairness to defendant; to encourage prompt prosecution of causes of action; to

suppress stale and fraudulent claims; and to avoid the inconvenience engendered

by delay, specifically the difficulties of proof present in older cases.” O’Stricker v.

Jim Walter Corp., 4 Ohio St.3d 84, 88 (1983), citing Harig v. Johns-Manville

Prods. Corp., 284 Md. 70, 75 (1978).

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.

{¶ 46} 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, 86 Ohio Misc.2d at 100; see also Cramer

v. Fairfield Med. Ctr., 2009-Ohio-3338, ¶ 69 (5th Dist.). “For defamation as a

result of libel, a cause of action accrues upon the first publication of the defamatory

matter.” Miller at 100.

{¶ 47} The second dissenting opinion rejects the first-publication rule in

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’”

19

SUPREME COURT OF OHIO

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”).

{¶ 48} 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, 1985 WL 8216, *2 (6th Dist. Nov. 1, 1985) (“This

court . . . expressly rejects the single publication rule, for the simple reason that it

does not state Ohio law.”); Fleming v. Ohio Atty. Gen., 2002-Ohio-7352, ¶ 14 (10th

Dist.), quoting Anthony v. Wonnell, 1992 WL 230583 (10th Dist. Apr. 7, 1992)

(“We cannot embrace plaintiff’s continuing defamation theory . . . as this court has

previously expressly rejected the single publication rule” as being “‘in derogation

of the prevailing first publication rule.’”); T.S. v. Plain Dealer, 2011-Ohio-2935,

¶ 7, quoting Guccione v. Hustler Magazine, 64 Ohio Misc. 59, 60 (C.P. 1978) (“It

is well settled that ‘[i]n terms of publications . . . the right to file suit on a cause of

action for libel accrues upon the first publication of the matter complained of.’”

[Bracketed text and ellipsis in original.]). Therefore, adoption of the single-

publication rule here would change established Ohio law. Not only does the single-

publication rule conflict with Ohio law—it also runs contrary to the purpose of the

statute of limitations. Specifically, the single-publication rule does not “establish a

state of stability and repose,” Wyler, 25 Ohio St.2d at 171, because the cause of

action for libel could potentially never end and the statute of limitations for libel

would run every time the defamatory matter was republished.

B. Judicially Created Discovery Rule Circumvents the Statute of Limitations

{¶ 49} 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

20

January Term, 2024

the exercise of reasonable diligence, that he or she has been injured by the conduct

of the defendant. See Doe v. Archdiocese of Cincinnati, 2006-Ohio-2625, ¶ 21; see

also O’Stricker, 4 Ohio St.3d at 90; Flagstar Bank, F.S.B. v. Airline Union’s Mtge.

Co., 2011-Ohio-1961, ¶ 14. The discovery rule is an example of judicial activism

because it “enhance[s] the power of the judiciary . . . [and] engage[s] the judiciary

in certain lawmaking activities more properly exercised by the legislature and

executive.” Lindquist, 28 Stan.L. & Pol’y Rev. at 67.

{¶ 50} The discovery rule was first applied in Ohio in Melnyk v. Cleveland

Clinic, 32 Ohio St.2d 198 (1972). Melnyk involved a medical-malpractice claim

that was based on metallic forceps and a nonabsorbent sponge being left inside a

patient’s body during surgery. Id. at 201. This court acknowledged that there is “a

firm Ohio legislative history of opposition to the adoption of a ‘discovery rule.’”

Id. at 199. Nonetheless, this court determined that implementation of the discovery

rule did not “interfere in the affairs” of the General Assembly. Id. at 201.

{¶ 51} Since Melnyk, this court has consistently applied the discovery rule

to medical-malpractice and bodily-injury cases. See, e.g., Oliver, 5 Ohio St.3d at

112 (medical malpractice); O’Stricker at 90 (bodily injury caused by exposure to

asbestos); Burgess v. Eli Lilly & Co., 1993-Ohio-193, ¶ 24 (bodily injury caused by

exposure to diethylstilbestrol). This court has also extended application of the

discovery rule to legal-malpractice cases, Skidmore & Hall v. Rottman, 5 Ohio

St.3d 210, 211 (1983), and to bodily-injury actions resulting from a hospital’s

negligence in credentialing a physician, Browning v. Burt, 1993-Ohio-178, ¶ 50.

{¶ 52} As demonstrated in the caselaw, “[t]he discovery rule was developed

in certain bodily-injury, medical-malpractice, and actual economic loss cases to

ease ‘the unconscionable result to innocent victims who by exercising even the

highest degree of care could not have discovered the cited wrong.’” (Emphasis in

original.) Cramer, 2009-Ohio-3338, at ¶ 70, fn. 2 (5th Dist.), quoting Oliver at 114.

Consequently, this court has extended the discovery rule only in narrow

21

SUPREME COURT OF OHIO

circumstances when application of the general statute-of-limitations rule—that a

cause of action accrues at the time the wrongful act was committed—would create

an unconscionable result to the injured party’s recovery. See O’Stricker, 4 Ohio

St.3d at 87; see also Wyler, 25 Ohio St.2d at 168; LGR Realty, Inc. v. Frank &

London Ins. Agency, 2018-Ohio-334, ¶ 26. Conversely, in Flagstar, this court held

that the discovery rule did not apply to any professional-negligence claims.

Flagstar, 2011-Ohio-1961, at ¶ 27 (discovery rule not applicable to any claims of

professional negligence, including alleged negligence by an appraiser); see

Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 182 (1989) (discovery rule not

applicable to claims of professional negligence by accountants); see also LGR

Realty, Inc. at ¶ 36-39 (DeWine, J., concurring) (discussing Investors REIT One

and Flagstar and professional-negligence claims accruing at the time of the

wrongful act).

III. Discovery Rule Does Not Circumvent the Statute of Limitations for

Defamation

{¶ 53} 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, 2015-Ohio-4396, at ¶ 7-8 (1st Dist.) (defamation

claim began to accrue when the statements were made); Harvey v. Sys. Effect,

L.L.C., 2020-Ohio-1642, ¶ 35 (2d Dist.) (a defamation cause of action accrues on

date of publication of the defamatory matter); Talwar v. Kattan, 1998 WL 151072,

*4 (3d Dist. Mar. 31, 1998) (a libel cause of action accrues at publication); Glass

v. Glass, 2003-Ohio-4477, ¶ 18 (4th Dist.) (a defamation cause of action accrues

when words are written or spoken, not when plaintiff discovers the words); Lewis,

22

January Term, 2024

2005-Ohio-2550, at ¶ 36 (5th Dist.) (a defamation cause of action accrues upon

publication of the defamatory matter); Tajblik v. Dennis, 2012-Ohio-6251, ¶ 9 (6th

Dist.) (libel cause of action began to accrue when the document was published “in

the holding cell [in prison]”); Reed v. Jagnow, 2013-Ohio-2546, ¶ 25 (7th Dist.)

(discovery rule does not apply to defamation claims and the cause of action accrues

when defamatory words are published); Rowan v. Schaffer, 2019-Ohio-3038, ¶ 3

(8th Dist.) (a defamation cause of action accrues at the time of publication); Smith

Elec. v. Rehs, 1998 WL 103334, *2 (9th Dist. Feb. 18, 1998) (“the actual tort occurs

when the party falsely and maliciously defames the property of another”); Sabouri

v. Ohio Dept. of Job & Family Servs., 145 Ohio App.3d 651, 654-655 (10th Dist.

2001) (defamation cause of action began to accrue when the defamatory words

were published, not when injured party learned of the words); Altier v. Valentic,

2004-Ohio-5641, ¶ 38 (11th Dist.) (a cause of action for defamation accrues when

the words are published or spoken); Daubenmire v. Sommers, 2004-Ohio-914, ¶ 82

(12th Dist.) (a libel cause of action accrues “when the written words are first

published”). By changing when a defamation cause of action accrues, the majority

opinion disrupts established law in every appellate district.

{¶ 54} The majority’s decision to broaden the use of the discovery rule also

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

23

SUPREME COURT OF OHIO

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,

2022-Ohio-4605, ¶ 20. When the General Assembly has amended R.C. 2305.11, it

has not applied the discovery rule to R.C. 2305.11(A)—the statute of limitations

for defamation. Rather, when the General Assembly has wanted to extend the

discovery rule to claims under R.C. 2305.11, it has made statutory revisions to

effect that extension.

{¶ 56} For example, in 2002, the General Assembly amended R.C. 2305.11

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.

{¶ 57} 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,

46 Ohio St.3d at 181; see id. (holding that “failure to include general negligence

claims under the discovery rule set out in R.C. 2305.09” showed the General

24

January Term, 2024

Assembly’s intent to not extend the rule to those claims); Pratte v. Stewart, 2010-

Ohio-1860, ¶ 23 (discussing the concurring opinion in Ault and noting the

concurring justice’s view that “the General Assembly is the most appropriate body

to establish a discovery rule for cases of childhood sexual abuse” [emphasis in

original]), citing Ault v. Jasko, 1994-Ohio-396, ¶ 21 (Resnick, J., concurring).

{¶ 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, 25 Ohio St.2d at 171. “‘[T]he only sure safeguard against

crossing the line between adjudication and legislation is an alert recognition of the

necessity not to cross it and instinctive, as well as trained, reluctance to do so.’”

(Bracket texted in original.) State ex rel. Cincinnati Enquirer v. Pike Cty.

Coroner’s Office, 2017-Ohio-8988, ¶ 117 (Kennedy, J., dissenting), quoting

Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527,

535 (1947).

{¶ 59} In the case between appellee, Thomas Weidman, and appellant,

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.

{¶ 60} 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,

25

SUPREME COURT OF OHIO

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., 2011-Ohio-2723, ¶ 20; State v. Smorgala, 50

Ohio St.3d 222, 223 (1990), superseded by statute on other grounds as stated in

State v. Mayl, 2005-Ohio-4629, ¶ 54. The legislature decided in 1853 that

defamation claims must be brought within one year from the date that the action

accrued, and that action accrues on the date of publication, even when the injured

party is unaware of the claim. The legislature knows how to include a discovery

rule in statutes and has decided against its application in defamation claims.

{¶ 62} Ohio’s appellate districts have consistently held that a defamation

cause of action accrues at the time the defamatory words are spoken or published.

The majority’s decision today effectively overrules that precedent by changing

when a defamation cause of action accrues. Relying on the judicially created

discovery rule, the majority circumvents the statute of limitations for defamation

and establishes its own accrual date for seeking relief for reputational injuries

caused by the publication of defamatory words. Because the discovery rule is

intended for narrow application in bodily-injury, medical malpractice, or actual-

economic-loss cases, and because the General Assembly has not applied the

discovery rule to defamation claims, I dissent from the majority’s judgment and

would reverse the judgment of the Twelfth District Court of Appeals.

__________________

WILKIN, J., dissenting.

{¶ 63} I respectfully dissent from the majority’s judgment affirming the

Twelfth District Court of Appeals’ judgment, which held that the discovery rule

26

January Term, 2024

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.

{¶ 66} 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.

{¶ 67} 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.,

27

SUPREME COURT OF OHIO

¶ 46, quoting Miller v. Ohio Rehab. Serv. Comm., 86 Ohio Misc.2d 97, 100 (Ct. of

Cl. 1997).

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.6 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.

{¶ 69} 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.”

{¶ 70} 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.

28

January Term, 2024

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., 2023-Ohio-4670, ¶ 19

(“we do not read statutes in a vacuum”); State ex rel. Figueroa v. Ohio Dept. of

Commerce, Div. of Real Estate & Professional Licensing, 2020-Ohio-4275, ¶ 8,

quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 2002-Ohio-4172, ¶ 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]); see also

Reading Co. v. Koons, 271 U.S. 58, 61-62 (1926) (recognizing that the word

“accrued” must be read “in the light of the general purposes of the statute and of its

other provisions, and with due regard to those practical ends which are to be served

by any limitation of the time within which an action must be brought”). Instead, as

with all cases involving the meaning of statutory language, we begin by examining

the statutory text. E.g., State ex rel. DeMora v. LaRose, 2022-Ohio-2173, ¶ 32.

{¶ 71} “When the statutory language is unambiguous, we apply it as written

without resorting to rules of statutory interpretation or considerations of public

policy.” Gabbard v. Madison Local School Dist. Bd. of Edn., 2021-Ohio-2067,

¶ 13. “In other words, our review ‘starts and stops’ with the unambiguous statutory

language.” Id., quoting Johnson v. Montgomery, 2017-Ohio-7445, ¶ 15. Statutory

language is unambiguous when it “‘express[es] plainly, clearly and distinctly, the

sense of the law-making body.’” State ex rel. Cordray v. Midway Motor Sales,

Inc., 2009-Ohio-2610, ¶ 15, quoting Slingluff v. Weaver, 66 Ohio St. 621 (1902),

paragraph two of the syllabus. This court “may look beyond the plain statutory

language only when a definitive meaning remains elusive despite a thorough,

objective examination of the language.” (Emphasis added.) New Riegel Local

School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 2019-Ohio-

2851, ¶ 24, citing Ohio Neighborhood Fin., Inc. v. Scott, 2014-Ohio-2440, ¶ 23,

29

SUPREME COURT OF OHIO

citing State v. Porterfield, 2005-Ohio-3095, ¶ 11; accord Everhart at ¶ 16, quoting

Sears v. Weimer, 143 Ohio St. 312, 316 (1944), quoting 37 Ohio Jur., Statutes,

§ 278, at 514-517 (1934) (“‘“Where the language of a statute is plain and

unambiguous and conveys a clear and definite meaning, there is no occasion for

resorting to the rules of statutory interpretation. To interpret what is already plain

is not interpretation, but legislation, which is not the function of the courts, but of

the general assembly. . . . An unambiguous statute is to be applied, not

interpreted.”’ [Ellipsis added in Sears.]”).

{¶ 72} Thus, to determine whether the discovery rule applies to a libel

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, 2020-Ohio-6788, ¶ 15; DeLong v.

Campbell, 157 Ohio St. 22, 23 (1952) (when a statute of limitations “begins to run

depends upon the meaning of the word, ‘accrued’”), overruled on other grounds by

Oliver v. Kaiser Community Health Found., 5 Ohio St.3d 111 (1983); see Stewart

v. Vivian, 2017-Ohio-7526, ¶ 25 (“Terms that are undefined in a statute are

accorded their common, everyday meaning.”), citing R.C. 1.42. “To discern the

plain meaning of statutory text, we consult not only lexical sources such as

dictionaries, but also the meaning that the words have acquired when they are used

in case law.” Rancho Cincinnati Rivers at ¶ 21; see State v. Wells, 2001-Ohio-3,

¶ 8 (“To determine the common, everyday meaning of a word, we have consistently

used dictionary definitions.”).

7. 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.

30

January Term, 2024

{¶ 73} 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, 503 U.S. 318, 322 (1992), quoting Community for Creative Non-

Violence v. Reid, 490 U.S. 730, 739 (1989), quoting NLRB v. Amax Coal Co., 453

U.S. 322, 329 (1981); accord Rehberg v. Paulk, 566 U.S. 356, 362 (2012), quoting

Pulliam v. Allen, 466 U.S. 522, 529 (1984) (“‘The starting point in our own analysis

is the common law.’”); Briscoe v. LaHue, 460 U.S. 325, 330 (1983), quoting

Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981) (courts presume that the

legislative body was “‘familiar with common-law principles . . . and that [it] likely

intended these common-law principles to obtain, absent specific provisions to the

contrary’”); Willoughby Hills Dev. & Distrib., Inc. v. Testa, 2018-Ohio-4488, ¶ 25,

quoting Scalia & Garner, Reading Law: The Interpretation of Legal Texts 320

(2012) (“‘A statute that uses a common-law term, without defining it, adopts its

common-law meaning.’” [Boldface omitted by Willoughby Hills.]); see

Willoughby Hills at ¶ 27 (“The relevant statutes did not provide an answer to the

question, so we looked to common-law understandings embodied in the case law

and the Restatement.”). Indeed, courts generally presume that the legislature enacts

laws “against the backdrop of the common law.” Comcast Corp. v. Natl. Assn. of

African Am.-Owned Media, 589 U.S. 327, 335 (2020), citing Univ. of Texas

Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013).

{¶ 74} Moreover, “[a] basic principle of statutory construction is that words

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., 2020-Ohio-872, ¶ 17, citing New Prime

Inc. v. Oliveira, 586 U.S. 105, 113 (2019). Likewise, this court presumes that

31

SUPREME COURT OF OHIO

“statutes . . . embrace the common law extant at their enactment.” Mann v.

Northgate Investors, L.L.C., 2014-Ohio-455, ¶ 17. This rule means that we should

read statutes “‘“in the light of and with reference to the rules and principles of the

common law in force at the time of their enactment,”’” and we should not read the

statute 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.) Id., quoting Shump v. First Continental-

Robinwood Assocs., 1994-Ohio-427, ¶ 19, quoting State ex rel. Morris v. Sullivan,

81 Ohio St. 79 (1909), paragraph three of the syllabus; accord Williams v. Spitzer

Autoworld Canton, L.L.C., 2009-Ohio-3554, ¶ 17, quoting Mandelbaum v.

Mandelbaum, 2009-Ohio-1222, ¶ 29, quoting State ex rel. Hunt v. Fronizer, 77

Ohio St. 7, 16 (1907) (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”’”).

{¶ 75} Applying these well-established principles leads to one conclusion:

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 upon

the plaintiff’s discovery that the publication caused an injury.

A. The Plain Meaning of “Accrued”

{¶ 76} 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.

32

January Term, 2024

{¶ 77} 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, 346 U.S. 568, 569 (1954) (tracing the history of

the dictionary and caselaw definitions of the word “accrued” and stating that the

word has retained the same meaning since the 19th century: “‘In common parlance

a right accrues when it comes into existence’”); Reading Co., 271 U.S. at 61 (noting

that “accrued” relates to “what point of time the cause of action has come into

existence, and consequently at what point of time the statute of limitations begins

to run”); State ex rel. Estate of McKenney v. Indus. Comm., 2006-Ohio-3562, ¶ 8,

quoting State ex rel. Bowman v. Columbiana Cty. Bd. of Commrs., 1997-Ohio-265,

¶ 10, and Webster’s Third New International Dictionary (1986) (the “‘usual,

normal, or customary meaning’” of “accrued” is “‘to come into existence as an

enforceable claim: vest as a right’”); DeLong, 157 Ohio St. at 24, quoting Black’s

Law Dictionary (2d Ed. 1910) (“accrue” “‘means to arise, to happen, to come into

force or existence’”); Fee’s Admr. v. Fee, 10 Ohio 469, 471 (1841) (“The plea of

the statute goes to the existence of the cause of action, and not to the knowledge of

it.”).

{¶ 78} And since 1831, this court has held that a general tort cause of action

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, 4 Ohio 331, 334 (1831); see Rancho Cincinnati Rivers, 2021-Ohio-

2798, at ¶ 21 (“To discern the plain meaning of statutory text, we consult . . . the

meaning that the words have acquired when they are used in case law.”); DeLong

at 27 (“The cause accrues when the negligently-caused injury is inflicted.”). Later

cases refined this rule to mean “that a cause of action exists from the time the

wrongful act is committed.” Flagstar Bank, F.S.B. v. Airline Union’s Mtge. Co.,

2011-Ohio-1961, ¶ 13, citing O’Stricker, 4 Ohio St.3d at 87; see id., quoting Kerns

33

SUPREME COURT OF OHIO

at syllabus (“‘Statute of limitations commences to run so soon as the injurious act

complained of is perpetrated, although the actual injury is subsequent, and could

not immediately operate.’”); accord LGR Realty, Inc. v. Frank & London Ins.

Agency, 2018-Ohio-334, ¶ 14 (also quoting Kerns); see also Wyler v. Tripi, 25 Ohio

St.2d 164, 166 (1971) (“It is generally stated that a cause of action accrues when

the wrongful act complained of is committed, and not as of the date the damage is

discovered or reasonably should have been discovered.”), citing 34 Ohio Jur.2d,

Limitation of Actions, § 58, at 536 (1958), and 34 Am.Jur., Limitation of Actions,

§ 115, at 94 (1941), overruled on other grounds by Oliver, 5 Ohio St.3d 111.

{¶ 79} Furthermore, absent fraud or mistake, this court did not apply the

discovery rule to a cause of action until 1972. See Melnyk v. Cleveland Clinic, 32

Ohio St.2d 198 (1972), syllabus (“Where a metallic forceps and a nonabsorbent

sponge are negligently left inside a patient’s body during surgery, the running of

the statute of limitation governing a claim therefor is tolled until the patient

discovers, or by the exercise of reasonable diligence should have discovered, the

negligent act.”); see generally Ormsby v. Longworth, 11 Ohio St. 653, 667-668

(1860) (applying the discovery rule to a deed-reformation case based upon mistake

and likening mistake to fraud). As noted above, the General Assembly enacted the

statute of limitations for defamation actions in 1853, more than 100 years before

Melnyk was decided. Thus, it would be legislating from the bench to state that at

the time of the enactment of the defamation statute of limitations, the word

“accrued” meant that a defamation cause of action accrued at the time a person

discovered, or by the exercise of reasonable diligence should have discovered, the

wrongful act. Rather, as explained above, this court’s caselaw plainly indicates that

at the time of the statute’s 1853 enactment, the word “accrued” meant the time

when a cause of action came into existence and not the time when a person

discovered the existence of a cause of action. Fee’s Admr. at 471 (“The plea of the

statute goes to the existence of the cause of action, and not to the knowledge of

34

January Term, 2024

it.”). And this court held that general tort causes of action accrued at “the time of

the injury” (i.e., at the time of the wrongful act), not at “the time of damage or

discovery of the injury.” Kerns at 334.

{¶ 80} However, some tort actions are subject to “distinctive” accrual rules.

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. 549 U.S. 384, 391 (2007), quoting 1

Corman, Limitation of Actions, § 7.4.1, at 526-527 (1991) (“‘Under the traditional

rule of accrual . . . the tort cause of action accrues, and the statute of limitations

commences to run’” at the time of the wrongful act and “‘[t]he cause of action

accrues even though the full extent of the injury is not then known or predictable.’”

[Ellipsis in original.]). Instead, it noted that false imprisonment “is subject to a

distinctive rule” in determining when the cause of action accrues. Id. at 389. The

Court looked to the common law and the Restatement of the Law 2d, Torts, to locate

that “distinctive rule” and to define when the false-imprisonment cause of action

accrues. Wallace at 389, quoting 2 Wood, Limitation of Actions, § 187d(4), at 878

(4th Rev.Ed. 1916) (“‘Limitations begin to run against an action for false

imprisonment when the alleged false imprisonment ends.’”); id., citing 4

Restatement of the Law 2d, Torts, § 899, Comment c (1977), and Underhill,

Principles of Law of Torts 202 (1881).

{¶ 81} Moreover, this court previously consulted the Restatement of the

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,

2007-Ohio-4161, ¶ 13-19, citing 3 Restatement of the Law 2d, Torts, § 659 (1977),

and in resolving whether a “grievance complaint filed with the local bar association

constituted a publication,” Hecht v. Levin, 1993-Ohio-110, ¶ 6, citing 3 Restatement

of the Law 2d, Torts, § 577 (1965).

35

SUPREME COURT OF OHIO

{¶ 82} Notably, R.C. 2305.11(A) lists false imprisonment and malicious

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.

{¶ 83} 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.

36

January Term, 2024

{¶ 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 causes 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, 25 Ohio St.2d at 165 (citing former R.C. 2305.11 as stating the

statute of limitations that applied to medical-malpractice actions). Under the

common law, medical-malpractice causes of action accrued “when the physician-

patient relationship finally terminate[d].” Id. at syllabus.

{¶ 86} Thus, under the common law, the causes of action discussed above

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.

{¶ 87} 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 defamation

cause of action accrues. See generally Dobbs, The Law of Torts 1115 (2000)

37

SUPREME COURT OF OHIO

(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., 2002-Ohio-2007, ¶ 8.8

{¶ 88} Moreover, as stated above, this court previously consulted the

Restatement to determine the accrual rule for one of the causes of action listed in

the same clause as libel and slander—malicious prosecution—Froehlich, 2007-

Ohio-4161, at ¶ 13-19, and to decide a publication issue in a defamation cause of

action, Hecht, 1993-Ohio-110, ¶ 5; see also Wallace, 549 U.S. at 389 (consulting

the Restatement of the Law 2d, Torts, to define when a false-imprisonment cause

of action accrues). To be consistent, the court likewise should consult the

Restatement in this case.

{¶ 89} The Restatement and “textbook tort law,” Nassar, 570 U.S. at 347,

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

8. 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.

38

January Term, 2024

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 action 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., 465 U.S. 770, 777 (1984) (“The tort of libel is generally held to

occur wherever the offending material is circulated.”), citing 3 Restatement,

§ 577A, Comment a; Jackson v. Columbus, 2008-Ohio-1041, ¶ 9, quoting A & B–

Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council,

1995-Ohio-66, ¶ 22 (“defamation occurs when a publication contains a false

statement ‘made with some degree of fault, reflecting injuriously on a person’s

reputation, or exposing a person to public hatred, contempt, ridicule, shame or

disgrace, or affecting a person adversely in his or her trade, business or profession’”

[emphasis added]); 54 C.J.S., Limitations of Actions, § 228, at 279-280 (2020) (“As

a general rule, a cause of action for libel or slander accrues, so as to start the running

of limitations, at the time of publication and not on the date of discovery of the

wrong, or when the alleged injury occurred. Thus, the statute of limitations on

defamation actions generally begins to run when the defamatory statement is

published.” [Footnotes omitted.]).

{¶ 90} Moreover, the common law does not distinguish between secretive,

concealed, or otherwise inherently unknowable publications and nonsecretive,

unconcealed, or otherwise inherently knowable publications. In Hecht, we stated:

39

SUPREME COURT OF OHIO

“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.

{¶ 91} 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, 520 U.S. 1, 5 (1997).

It means “‘one or some indiscriminately of whatever kind.’” State ex rel. Purdy v.

Clermont Cty. Bd. of Elections, 1997-Ohio-278, ¶ 9, quoting Webster’s Third New

International Dictionary (1971). “‘Any’ is often used as meaning ‘all.’” (Citation

omitted.) Wachendorf v. Shaver, 149 Ohio St. 231, 240 (1948); accord State v.

Wells, 146 Ohio St. 131, 137 (1945) (“‘Any person’ means every person . . . .”

[Emphasis in original.]).

{¶ 92} Consequently, this court’s precedent recognizes that publication

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, such as a “grievance complaint filed with the local

bar association,” Hecht, 1993-Ohio-110, ¶ 6, or a private email shared with at least

one other person.

40

January Term, 2024

{¶ 93} Accordingly, under well-settled common law, a cause of action for

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.

{¶ 94} 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, 568 U.S. at 449, quoting

Merck & Co., Inc. v. Reynolds, 559 U.S 633, 644 (2010) (explaining that the

discovery rule “arose” in “fraud cases as an ‘exception’ to the standard rule, based

on the recognition that ‘something different was needed in the case of fraud, where

a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he

or she has been defrauded’” [emphasis added in Merck & Co.]); Holmberg v.

Armbrecht, 327 U.S. 392, 397 (1946), quoting Bailey v. Glover, 88 U.S. 342, 348

(1874) (“where a plaintiff has been injured by fraud and ‘remains in ignorance of it

without any fault or want of diligence or care on his part, the bar of the statute does

not begin to run until the fraud is discovered’”); Bailey at 347 (“when the object of

the suit is to obtain relief against a fraud, the bar of the statute does not commence

to run until the fraud is discovered or becomes known to the party injured by it”).9

9. Although Weidman argued in his memorandum in opposition to appellant Christopher

Hildebrant’s summary-judgment motion that Hildebrant engaged in “fraud” and sought to toll the

statute of limitations based on “the doctrine of fraudulent concealment,” Weidman’s complaint does

not allege fraud.

41

SUPREME COURT OF OHIO

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.

{¶ 95} 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

{¶ 96} 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,

2014-Ohio-455, at ¶ 17, quoting Shump, 1994-Ohio-427, ¶ 19, quoting Morris, 81

10. I do not agree with the majority opinion’s assertion that we must distinguish between libel and

slander to decide this case. Section 577A of the Restatement of the Law 2d, Torts, does not

distinguish between the two, and the majority’s distinction between the two causes of action serves

only to cause confusion.

42

January Term, 2024

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, 2009-Ohio-3554, at ¶ 17, quoting Mandelbaum, 2009-Ohio-1222, at

¶ 29, quoting Hunt, 77 Ohio St. at 16.

{¶ 97} Nothing in the text of R.C. 2305.11(A) indicates that the legislature

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 language of a statute

by adding or removing words,” State v. Jeffries, 2020-Ohio-1539, ¶ 18. The

language in R.C. 2305.11(A) does not distinguish between secretive, concealed, or

otherwise inherently unknowable libel or slander and nonsecretive, unconcealed,

or otherwise inherently knowable libel or slander.

{¶ 98} Therefore, this court should not alter the plain language of R.C.

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, 2010-Ohio-1860, ¶ 45, quoting Cleveland Mobile Radio Sales, Inc. v.

Verizon Wireless, 2007-Ohio-2203, ¶ 12 (“‘A court is neither to insert words that

were not used by the legislature nor to delete words that were used.’”); id. at ¶ 58

(“The General Assembly did not include a tolling provision for persons with

repressed memories of childhood sexual abuse, and it is not our province to add

such a provision where one plainly does not exist.”); Rotkiske v. Klemm, 589 U.S.

43

SUPREME COURT OF OHIO

8, 14 (2019), quoting TRW, Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J.,

concurring in the judgment) (an “expansive approach to the discovery rule is a ‘bad

wine of recent vintage’”); Rotkiske at 14, quoting Scalia & Garner at 94 (“It is a

fundamental principle of statutory interpretation that ‘absent provision[s] cannot be

supplied by the courts.’” [Bracketed text in original.]); Fronce v. Nichols, 12 Ohio

C.D. 472, 476 (Cir.Ct. 1901) (“Judicial construction that reads anything into, or out

of, [the] statute, is judicial legislation.”).

II. R.C. 2305.11(A) Does Not Indicate That Defamation Causes of Action

Accrue upon First Publication

{¶ 99} 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.11 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, 2023-Ohio-3851, ¶ 33 (Fischer, J., concurring in judgment only); see also

Warner Chappell Music, 601 U.S. at 376 (Gorsuch, J., dissenting) (“Nothing requires us to play

along with these particular parties and expound on the details of a rule of law that they may assume

but very likely does not exist.”).

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.

44

January Term, 2024

never held that defamation causes of action accrue upon the first publication of the

defamatory statement. See Haines v. Welling, 7 Ohio 253, 256 (1835) (noting that

a defendant could be liable for slander for repeating a defamatory statement that

originated from another person, i.e., “whether the defendant be the author, or

whether he be merely the propagator of a slander originating with another”); see

also Anderson v. WBNS-TV, Inc., 2019-Ohio-5196, ¶ 11-12 (referring to

defamatory “publications”); Wartenbe v. Sternberger, 1890 WL 1967, *2 (Ohio

Jan. 21, 1890) (“The responsibility for written, or printed, defamation does not stop

with its first publication.”), citing 2 Addison, A Treatise on the Law of Torts, §

1140, at 364 (Wood Ed. 1881).

{¶ 100} Additionally, to state that a defamation cause of action accrues

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.

45

SUPREME COURT OF OHIO

five years from the date when the claim first accrued’” [ellipses in original;

emphasis added]).

{¶ 101} 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 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 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 (“Private 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

to a third party, the action would not be justiciable,12 TransUnion, 594 U.S. at 434

(discussing the requirement of concrete harm to have standing to sue and stating

12. The majority opinion also raises questions regarding the meaning of private libel and secret. Is

a secret, private libel a written, defamatory statement that a person publishes to only one other

person, or is it a written, defamatory statement that the defamer locks in a drawer? Presumably, the

majority means the former, but the opinion is not clear.

46

January Term, 2024

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”).

{¶ 102} 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 allow 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.

47

SUPREME COURT OF OHIO

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., 2016-Ohio-3348, ¶ 11 (10th Dist.) (stating that the maxim de

minimis non curat lex places “outside the scope of legal relief the sorts of ‘injuries’

that are so small that they must be accepted as the price of living in society”

[cleaned up]).

{¶ 103} The more times that a secretive, concealed, or otherwise inherently

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.

{¶ 104} 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, 1993-Ohio-110, ¶ 6. And the court rejected the notion that “[f]or the

purposes of defamation, ‘publication’” requires “widespread dissemination.”15 Id.

15. For this reason, I do not agree that the court should distinguish between secretive, concealed, or

otherwise inherently unknowable publications of defamatory statements and defamatory statements

48

January Term, 2024

This court stated: “We discern no reason to disturb the settled law of defamation

and create an exception to the definition of ‘publication’ for confidential

communications to a bar association.” Id. Yet in this case, the majority decides to

disturb well-established law regarding the accrual date for defamation causes of

action and fails to consult the common-law principles contained in the Restatement,

as this court has done in other cases. E.g., Carter v. Reese, 2016-Ohio-5569, ¶ 18

(consulting the Restatement of the Law 2d, Torts, for the common-law principles

of a bystander’s duty to aid or protect another); Estates of Morgan v. Fairfield

Family Counseling Ctr., 1997-Ohio-194, ¶ 35 (referring to the Restatement of the

Law 2d, Torts, as stating “the common-law rule” regarding the duty element of a

cause of action for negligence); Shump, 1994-Ohio-427, ¶ 22-23 (looking to the

Restatement of the Law 2d, Torts, in part, to determine common-law principles in

a landlord-tenant case); Embers Supper Club, Inc. v. Scripps-Howard Broadcasting

Co., 9 Ohio St.3d 22, 25 (1984) (examining the Restatement of the Law 2d, Torts,

to determine whether a publication was subject to “common-law privilege”),

modified on other grounds, Lansdowne v. Beacon Journal Publishing Co., 32 Ohio

St.3d 176 (1987) (plurality opinion); see also Masson v. New Yorker Magazine,

Inc., 501 U.S. 496, 516 (1991) (citing 3 Restatement, § 563, Comment c, and

Keeton, Dobbs, Keeton & Owen at 776, to support a statement of “[t]he common

law of libel”); Diller v. Diller, 2023-Ohio-1508, ¶ 4 (Stewart, J., dissenting)

(referring to 1 Restatement of the Law 3d, Property: Wills & Other Donative

Transfers, § 1.2, Comment a (1999), as stating the “common-law rule”).

{¶ 105} More than 70 years ago, this court recognized the danger of

applying the discovery rule to defamation causes of action, stating: “[I]f the statute

of limitations as to libel or slander did not begin to run until knowledge was had by

that “are published in the media or otherwise offered in the marketplace of ideas,” majority opinion

at ¶ 22. The majority’s statement is contrary to Hecht, and the majority’s statement will cause

confusion—e.g., when is a defamatory statement “offered in the marketplace of ideas”?

49

SUPREME COURT OF OHIO

the one injured by the libel or slander it might result that an action therefor could

be brought an indefinite number of years after the libel or slander occurred.”

DeLong, 157 Ohio St. at 28; see generally Gabelli, 568 U.S. at 449, quoting Wood

v. Carpenter, 101 U.S. 135, 139 (1879) (stating that statutes of limitations are

“‘vital to the welfare of society’”); Gabelli at 449, quoting Wilson v. Garcia, 471

U.S. 261, 271 (1985) (recognizing that “‘even wrongdoers are entitled to assume

that their sins may be forgotten’”). Holding that the discovery rule applies to

defamation causes of action involving a secretive, concealed, or otherwise

inherently unknowable publication is legislating from the bench and will create

infinite liability. Under the majority’s decision, a person who discovers that

another person defamed that person in an email published to one other person years

earlier could bring a lawsuit years later.16 I do not believe that the legislature

intended to allow our courts to be used to litigate these types of disputes. See

Ruther, 2012-Ohio-5686, at ¶ 13-14 (stating that the legislature has the right to

determine what causes of action the law will recognize).

{¶ 106} I readily agree that the facts alleged in Weidman’s case are

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, 2022-Ohio-4525,

¶ 73 (Kennedy, Fischer, and DeWine, JJ., dissenting) (“Bad facts make bad law

. . . .”); State v. Bortree, 2022-Ohio-3890, ¶ 20 (even when a case involves a

“particularly heinous set of facts,” this court will not “rewrite the statute”); Bank of

16. As Hildebrant notes in his reply brief, applying the discovery rule to secretive, concealed, or

otherwise inherently unknowable defamation will cause Ohioans to “live in perpetual fear that an

ill-chosen comment about a neighbor, made decades ago, will give rise to a lawsuit.”

50

January Term, 2024

Hartford Cty. v. Waterman, 26 Conn. 324, 331 (1857), quoting E. India Co. v. Paul,

1 Eng.L. & Eq.R. 44, 48 (1849) (“‘hard cases must not make bad law’”).

{¶ 107} The majority’s assertion that applying the discovery rule in cases

like Weidman’s is necessary to achieve justice, majority opinion at ¶ 19, is not

wholly unfounded. However, the legislature, not this court, carries the

responsibility “to decide how ‘humane’ legislation should be—or (to put the point

less tendentiously) to strike the balance between remediation of all injuries and a

policy of repose,” TRW, 534 U.S. at 38 (Scalia, J., concurring in the judgment); id.,

quoting Amy v. Watertown, 130 U.S. 320, 323-324 (1889) (“‘[T]he cases in which

[the statute of limitations may be suspended by causes not mentioned in the statute

itself] are very limited in character, and are to be admitted with great caution;

otherwise the court would make the law instead of administering it.’” [Bracketed

text in original.]).

III. The Majority Opinion Supplants Legislative Intent

{¶ 108} 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, 2010-Ohio-2202,

¶ 29; accord Rotkiske, 589 U.S. at 14-15, quoting Johnson v. Ry. Express Agency,

Inc., 421 U.S. 454, 463-464 (1975) (“The length of a limitations period ‘reflects a

value judgment concerning the point at which the interests in favor of protecting

valid claims are outweighed by the interests in prohibiting the prosecution of stale

ones.’ . . . It is Congress, not this court, that balances those interests. We simply

enforce the value judgments made by Congress.”); United States v. Kubrick, 444

U.S. 111, 117 (1979), quoting RR. Telegraphers v. Ry. Express Agency, 321 U.S.

342, 349 (1944) (stating that statutes of limitations “represent a pervasive

legislative judgment that it is unjust to fail to put the adversary on notice to defend

51

SUPREME COURT OF OHIO

within a specified period of time and that ‘the right to be free of stale claims in time

comes to prevail over the right to prosecute them’”). Provisions that delay the

running of a statute of limitations, such as the discovery rule, are a “legislative

prerogative,” Pratte, 2010-Ohio-1860, at ¶ 49. Thus, “it is not our job as members

of the judicial branch to overreach and invade the province of the General

Assembly.” Brandt at ¶ 73 (Kennedy, Fischer, and DeWine, JJ., dissenting).

{¶ 109} This court should not disregard the plain statutory text that the

legislature has chosen simply because it believes that the legislature may have

intended to add a discovery rule for defamation causes of action involving secretive,

concealed, or otherwise inherently unknowable publications or because it believes

that applying the discovery rule will be more “consonant with the demands of

justice and the dictates of ethics,” Oliver, 5 Ohio St.3d at 112. Instead, as this court

repeatedly has recognized, statutes of limitations represent the legislature’s role as

“‘the final arbiter of public policy’” and “‘judicial policy preferences may not be

used to override valid legislative enactments.’” Bortree, 2022-Ohio-3890, at ¶ 20,

quoting State ex rel. Tritt v. State Emp. Relations Bd., 2002-Ohio-6437, ¶ 17; see

In re Estate of Centorbi, 2011-Ohio-2267, ¶ 13, quoting Weaver v. Edwin Shaw

Hosp., 2004-Ohio-6549, ¶ 13, quoting Wachendorf v. Shaver, 149 Ohio St. 231

(1948), paragraph five of the syllabus (“A statute’s wording ‘“may not be restricted,

constricted, qualified, narrowed, enlarged or abridged . . . .”’”).

{¶ 110} R.C. Ch. 2305 illustrates that the legislature knows how to write a

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 discovered.”); 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

52

January Term, 2024

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.”).

{¶ 111} 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 and 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, 534 U.S. at 27-28 (declining to insert a discovery

rule when a statute is silent on the issue and rejecting the “view that Congress can

convey its refusal to adopt a discovery rule only by explicit command, rather than

by implication from the structure or text of the particular statute”). 17 The absence

of discovery-rule language for defamation causes of action involving a secretive,

concealed, or otherwise inherently unknowable publication, in the face of clear

discovery-rule language elsewhere within the same chapter of the Revised Code,

speaks volumes and evinces the legislature’s intent that the discovery rule not apply

17. Moreover, even if this court were to determine that R.C. 2305.11(A) is ambiguous, the

legislature has instructed courts to consider, in part, “[t]he common law” when determining the

meaning of ambiguous statutes, R.C. 1.49(D). As stated above, the common law indicates that

defamation claims accrue upon publication, not upon the plaintiff’s discovery of the publication or

the plaintiff’s discovery of an injury, even if the publication occurred in a secretive, concealed, or

otherwise inherently unknowable manner.

53

SUPREME COURT OF OHIO

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

{¶ 112} 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 100.19

{¶ 113} 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, 4 Ohio St.3d 84; Oliver, 5 Ohio St.3d 111; Melnyk, 32 Ohio St.2d

198. Instead, this court should recognize that those cases date to a time when the legislature had not

enacted statutes that explicitly incorporated discovery rules for causes of action, unless the cause of

action involved fraud, see Peterson v. Teodosio, 34 Ohio St.2d 161, 164, fn. * (1973), citing former

R.C. 2305.09(C), Am.S.B. No. 5, 129 Ohio Laws 13, 177. Since that time, the legislature has

enacted discovery rules for other causes of action. Thus, the legal landscape has changed.

Consequently, this court should no longer presume that it has authority to supply a discovery rule if

the legislature has not. Instead, as explained above, this court should examine the statutory text to

determine whether the plain language includes a discovery rule.

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, 64 Ohio Misc. 59, 60, (C.P. 1978) (determining that in a libel action against a

magazine publisher, “the right to file suit on a cause of action for libel accrues upon the first

publication of the matter complained of”). Various Ohio courts have since repeated that rule. See,

e.g., Miller at 100; Reimund v. Brown, 1995 WL 643939, *3 (10th Dist. Nov. 2, 1995) (“A cause of

action for libel accrues upon the first publication of the defamatory matter.”); Snell v. Drew, 1985

WL 8216, *2 (6th Dist. Nov. 1, 1985) (“This court, however, expressly rejects the single publication

rule, for the simple reason that it does not state Ohio law. The controlling rule in Ohio has been set

forth in the case of Guccione . . . .”).

54

January Term, 2024

otherwise inherently unknowable publication is that this rule will apply to all

defamation actions involving a secretive, concealed, or otherwise inherently

unknowable publication. Thus, although I do not agree with the majority that the

discovery rule applies to these types of defamation cases, I believe that the majority

should limit the discovery rule that it is adopting to indicate that it applies only

when the facts are like the facts alleged in Weidman’s case. Those facts allege

multiple publications, repetition, and nefarious conduct.

V. Conclusion

{¶ 114} 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, 2007-Ohio-2451, ¶ 53, quoting 3

Restatement, § 652D, Comment a (stating that “‘“[p]ublication” . . . is a word of

art’”), that does not mean first publication. As the Restatement recognizes, “[i]t 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 action arises,” 3 Restatement,

§ 577A, Comment a, even if the publication is secretive, concealed, or otherwise

55

SUPREME COURT OF OHIO

inherently unknowable to the plaintiff,20 see Hecht, 1993-Ohio-110, ¶ 5, citing 3

Restatement, § 577(1), Comment a. Any additional contours of the publication rule

are far outside the scope of this appeal, so I do not believe that saying more is

necessary or prudent.

{¶ 115} Moreover, I do not believe that remanding this matter to the trial

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.

{¶ 116} 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, 2001-Ohio-128, ¶ 29 (adopting the attractive-nuisance doctrine); id. at 44-45

(Cook, J., dissenting) (concluding that the plaintiffs had “waived any right to pursue the attractive

nuisance doctrine as a theory of recovery” when they specifically “disclaimed that theory of

recovery” and asserted in their appellate briefing “that they ‘[did] not have to rely upon the doctrine

of attractive nuisance to prevail’”); see also Hudson v. Petrosurance, Inc., 2010-Ohio-4505, ¶ 29

(in discretionary appeal involving summary judgment, “[t]his court has complete and independent

power of review as to all questions of law”); Johnson v. Abdullah, 2021-Ohio-3304, ¶ 39 (“courts

lack the discretion to make errors of law, particularly when the trial court’s decision goes against

the plain language of a statute or rule”); Consumers’ Counsel v. Pub. Util. Comm., 58 Ohio St.2d

108, 110 (1979) (“As to questions of law, . . . this court has complete, independent power of review.

Legal issues are accordingly subject to more intensive examination than are factual questions.”); see

generally Onderko v. Richmond Mfg. Co., 31 Ohio St.3d 296, 299 (1987), quoting Bosjnak v.

Superior Sheet Steel Co., 145 Ohio St. 538 (1945), paragraph five of the syllabus (“‘where, in

instructing the jury, the court states a correct rule or principle of law and also states an incorrect rule

or principle of law with reference to the same subject matter, no presumption arises that the correct

rule was applied by the jury in the consideration of the issue presented, and the error in giving the

incorrect rule will be deemed prejudicial’”).

56

January Term, 2024

report the allegations involving Weidman. Although the trial court stated in its

order granting summary judgment that Hildebrant showed the 2011 email to James

on January 25, 2020, the evidence that Hildebrant submitted in support of his

summary-judgment motion does not establish that James was present at the January

25, 2020 meeting, when Hildebrant showed the email to Sycamore Township

Trustee James LaBarbara and Sycamore Township Administrator Raymond

Warrick. In support of his summary-judgment motion, Hildebrant submitted

affidavits from LaBarbara and Warrick, in which they stated that Hildebrant

showed them the email on January 25, 2020. However, Hildebrant did not present

any evidence indicating when James learned about the email.

{¶ 117} The record demonstrates that before James contacted the auditor,

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.

{¶ 118} 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.

__________________

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.

57

SUPREME COURT OF OHIO

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.

_______________________

58