[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Weidman v. Hildebrant, Slip Opinion No. 

.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                         SLIP OPINION NO. 

               WEIDMAN, APPELLEE, v. HILDEBRANT, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as Weidman v. Hildebrant, Slip Opinion No. 

.]
Statute of limitations—R.C. 2305.11—Libel—Discovery rule—Discovery rule
        applies to claims of libel 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, 

.
                                 __________________
        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.,
                              SUPREME COURT OF OHIO




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
secretive or concealed. 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. 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




                                        2
                                January Term, 2024




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
[email protected] and sent an email (the “2011 email”) from that account
to himself on December 20, 2011. The email portrayed Weidman as having
accepted an illicit payment from Hildebrant and demanding more payments in
exchange for his support in another real-estate transaction. Hildebrant forwarded
the 2011 email to Roberts to show that he did not have enough money to pay
Roberts, because Weidman had already demanded significant payments. The 2011
email remained private between Hildebrant and Roberts for the next several years.
       {¶ 4} In 2019, Hildebrant sought to purchase a parcel of land owned by
Sycamore Township on behalf of his development group. The parcel purchase
required unanimous consent by the Sycamore Township Board of Trustees, on
which Weidman still served. Weidman opposed the sale of the parcel of land.
       {¶ 5} On January 25, 2020, Hildebrant met with Sycamore Township
Trustee James LaBarbara and Sycamore Township Administrator Raymond
Warrick to discuss the parcel purchase. During the meeting, Hildebrant asserted
that Weidman’s opposition to the sale was in retaliation for Hildebrant’s failure to
pay Weidman a kickback from the SDI Foods transaction in 2011 and Hildebrant
showed the 2011 email to LaBarbara and Warrick.
       {¶ 6} Because the 2011 email revealed potential illegal conduct, the auditor
of Ohio was notified and an investigation was initiated. The 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




                                          3
                             SUPREME COURT OF OHIO




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-
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 judgement,
relying on Rowan v. Schaffer, 

, ¶ 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




                                         4
                                 January Term, 2024




that the “subject of the alleged defamation does not discover the statements until
after the running of the statute of limitations.” 

       {¶ 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. 

, ¶ 29 (12th Dist.). The court of appeals
relied on O’Stricker v. Jim Walter Corp., 

 (1983), and subsequent
cases in which we applied the discovery rule. 

 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:


       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?

.        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 

 We sua sponte
consolidated the two cases for briefing. 

                                  III. ANALYSIS
       {¶ 12} We review matters requiring statutory interpretation de novo.
Stewart v. Vivian, 

, ¶ 23.




                                           5
                              SUPREME COURT OF OHIO




        {¶ 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, 

, ¶ 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., 

, ¶ 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
the discovery rule as an exception to this general rule. 

 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.” 

 citing Collins v. Sotka, 

,
507 (1998), citing O’Stricker, 

. 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,

, 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., 

, 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, 

, 559 (1993).
        {¶ 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




                                           6
                                      January Term, 2024




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

, 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, 

, 117-118 (1994), superseded by statute as stated in Pratte v.
Stewart, 

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

, 206 (1999) (listing other situations in which
we have applied the discovery rule).2


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




                                                  7
                                   SUPREME COURT OF OHIO




         {¶ 17} The discovery rule has not been applied to defamation claims.3 This
dates to Pearl v. Koch, 

, 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
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., 

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

, ¶ 35 (2d Dist.); Spitzer v. Knapp, 

, ¶ 27 (5th
Dist.); Reed v. Jagnow, 

, ¶ 25 (7th Dist.); Sabouri v. Ohio Dept. of
Job & Family Servs., 

, 654-655 (10th Dist. 2001); Altier v.
Valentic, 

, ¶ 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, 

, *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




that email to himself as if it was sent 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 may 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., 

, 108 (10th Dist. 1999). This
opinion focuses on libel, which is a defamatory statement that is “written or printed and published,”
Watson v. Trask, 

, 532-533 (1834), because this case involves a published email, though,
at times, we use the more general word “defamation.”




                                                  8
                                      January Term, 2024




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 otherwise
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 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


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.




                                                  9
                                   SUPREME COURT OF OHIO




administering justice allow such an absurdity?” Amer v. Akron City Hosp., 

, 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 him 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., 

, ¶ 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.
         {¶ 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


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, 

, ¶ 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,




                                                  10
                                      January Term, 2024




Corp. v. U.S. Mineral Prods. Co., 

, 271 (1995), 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, 

 (“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
dormientibus aequitas subvenit—equity aids the vigilant, not those who sleep on
their rights. New York City v. Pine, 

, 98 (1902); Ivani Contracting Corp.
v. New York City, 

, 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, 

 (“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


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.




                                                  11
                              SUPREME COURT OF OHIO




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, 

, 200 (1972).
                        C. Weidman’s Derivative Claims
       {¶ 26} In addition to his defamation claim, Weidman also asserted claims
of IIED and false-light invasion of privacy against Hildebrant. To determine which
statute of limitations applies to these claims, we must look to the substance of the
claims. Hambleton v. R.G. Barry Corp., 

, 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. 

 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




                                        12
                                January Term, 2024




claim and false-light-invasion-of-privacy claim is R.C. 2305.11(A).              See
Stainbrook v. Ohio Secy. of State, 

, ¶ 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, 

, ¶ 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
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.




                                           13
                              SUPREME COURT OF OHIO




        {¶ 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
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”).




                                          14
                                   January Term, 2024




       {¶ 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, 

, 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., 

, ¶ 13 (discussing discovery rule in
terms of accrual); Oliver v. Kaiser Community Health Found., 

(1983), syllabus (same); see also Collins v. Sotka, 

, 507 (1998)
(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 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, 

,
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,” 

                                           15
                              SUPREME COURT OF OHIO




        {¶ 34} In my view, the discovery rule is most accurately described as “a
rule of accrual.” Liddell v. SCA Servs. of Ohio, Inc., 

, 13 (1994)
(referring to the discovery rule as the “O’Stricker rule of accrual”), citing
O’Stricker v. Jim Walter Corp., 

 (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., 

,
¶ 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
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




                                          16
                                January Term, 2024




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,

.
       {¶ 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
includes 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.
       {¶ 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).




                                         17
                             SUPREME COURT OF OHIO




       {¶ 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 majority’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., 

, 117
(1991). Likewise, a defamatory matter is that which is “injurious to the reputation
of a private individual.” Gert v. Robert Welch, Inc., 

, 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., 

,
101 (Ct. of Cl. 1997), citing Ashcroft v. Mt. Sinai Med. Ctr., 

,
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-




                                          18
                                 January Term, 2024




Ohio-2550, ¶ 33 (5th Dist.), quoting Gosden v. Louis, 

, 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., 

, ¶ 8. “Generally, a
cause of action accrues . . . at the time the wrongful act was committed.” 

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., 

 (N.D.Fla. 2005), aff’d, 

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

 (5th Dist. 1937); Bain v. Smith, 

 (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, 

, 171
(1971), overruled on other grounds by Oliver v. Kaiser Community Health Found.,

 (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.” 

 “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., 

, 88 (1983), citing Harig v. Johns-Manville
Prods. Corp., 

, 75 (1978).




                                           19
                              SUPREME COURT OF OHIO




                  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.

 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, 

; see also Cramer
v. Fairfield Med. Ctr., 

, ¶ 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’”
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, 

, *2 (6th Dist. Nov. 1, 1985) (“This
court . . . expressly rejects the single publication rule, for the simple reason that it




                                          20
                                  January Term, 2024




does not state Ohio law.”); Fleming v. Ohio Atty. Gen., 

, ¶ 14 (10th
Dist.), quoting Anthony v. Wonnell, 

 (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, 

,
¶ 7, quoting Guccione v. Hustler Magazine, 

, 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, but 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, 

, 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
the exercise of reasonable diligence, that he or she has been injured by the conduct
of the defendant. See Doe v. Archdiocese of Cincinnati, 

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

, ¶ 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, 

 (1972). Melnyk involved a medical-malpractice claim




                                            21
                              SUPREME COURT OF OHIO




that was based on metallic forceps and a nonabsorbent sponge being left inside a
patient’s body during surgery. 

. This court acknowledged that there is “a
firm Ohio legislative history of opposition to the adoption of a ‘discovery rule.’”

. Nonetheless, this court determined that implementation of the discovery
rule did not “interfere in the affairs” of the General Assembly. 

.
          {¶ 51} Since Melnyk, this court has consistently applied the discovery rule
to medical-malpractice and bodily-injury cases. See, e.g., Oliver, 

 (medical malpractice); O’Stricker at 90 (bodily injury caused by exposure to
asbestos); Burgess v. Eli Lilly & Co., 

, 64 (1993) (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, 

, 211 (1983), and to bodily-injury actions resulting from a hospital’s
negligence in credentialing a physician, Browning v. Burt, 

, 559
(1993).
          {¶ 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, 

, at ¶ 70, fn. 2 (5th Dist.), quoting Oliver at 114.
Consequently, this court has extended the discovery rule only in narrow
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, 

; LGR Realty, Inc. v. Frank &
London Ins. Agency, 

, ¶ 26. Conversely, in Flagstar, this court held
that the discovery rule did not apply to any professional-negligence claims.
Flagstar, 

, at ¶ 27 (discovery rule not applicable to any claims of
professional negligence, including alleged negligence by an appraiser); see




                                          22
                               January Term, 2024




Investors REIT One v. Jacobs, 

, 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, 

, at ¶ 7-8 (1st Dist.) (holding that
defamation claim began to accrue when the statements were made); Harvey v. Sys.
Effect, L.L.C., 

, ¶ 35 (2d Dist.) (defamation cause of action accrues
on date of publication of the defamatory matter); Talwar v. Kattan, 

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

, ¶ 18 (4th Dist.) (defamation cause of action
accrues when words are written or spoken, not when plaintiff discovers the words);
Lewis, 

, at ¶ 36 (5th Dist.) (holding that 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, 

, ¶ 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.) (defamation cause of action accrues at the time of
publication); Smith Elec. v. Rehs, 

, *2 (9th Dist. Feb. 18, 1998)




                                        23
                             SUPREME COURT OF OHIO




(“the actual tort occurs when the party falsely and maliciously defames the property
of another”); Sabouri v. Ohio Dept. of Job & Family Servs., 

,
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, 

, ¶ 38 (11th Dist.) (cause of action for
defamation accrues when the words are published or spoken); Daubenmire v.
Sommers, 

, ¶ 82 (12th Dist.) (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
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,

, ¶ 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




                                         24
                                January Term, 2024




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,

; see 

 (holding that “failure to include general negligence
claims under the discovery rule set out in R.C. 2305.09” showed the General
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 that
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, 

, 119 (1994) (Resnick, J.,
concurring).




                                         25
                             SUPREME COURT OF OHIO




       {¶ 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 120 (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, 

. “‘[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, 

, ¶ 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,
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




                                          26
                                January Term, 2024




         {¶ 61} The General Assembly is the final arbiter of public policy in Ohio.
See Sutton v. Tomco Machining, Inc., 

, ¶ 20; State v. Smorgala, 

, 223 (1990), superseded by statute on other grounds as stated in
State v. Mayl, 

, ¶ 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
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.




                                         27
                               SUPREME COURT OF OHIO




           {¶ 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.,
¶ 46, quoting Miller v. Ohio Rehab. Serv. Comm., 

, 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 word “accrued” does not support the majority’s holding that a libel




                                            28
                                       January Term, 2024




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., 

 (1983),
paragraph one of the syllabus. However, this statement from O’Stricker does not
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., 

, ¶ 19
(“we do not read statutes in a vacuum”); State ex rel. Figueroa v. Ohio Dept. of
Commerce, Div. of Real Estate & Professional Licensing, 

, ¶ 8,


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.




                                                  29
                             SUPREME COURT OF OHIO




quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 

, ¶ 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, 

, 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, 

, ¶ 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., 

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

 quoting Johnson v. Montgomery, 

, ¶ 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., 

, ¶ 15, quoting Slingluff v. Weaver, 

 (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, 

, ¶ 23,
citing State v. Porterfield, 

, ¶ 11; accord Everhart at ¶ 16, quoting
Sears v. Weimer, 

, 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




                                         30
                                      January Term, 2024




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, 

, ¶ 15; DeLong v.
Campbell, 

, 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., 

 (1983); see Stewart
v. Vivian, 

, ¶ 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, 

, 34 (2001) (“To determine the common, everyday meaning of a word, we have
consistently used dictionary definitions.”).
        {¶ 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.


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, 

,
__, 

, 1140 (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.




                                                31
                             SUPREME COURT OF OHIO




Co. v. Darden, 

, 322 (1992), quoting Community for Creative Non-
Violence v. Reid, 

, 739 (1989), quoting NLRB v. Amax Coal Co., 

, 329 (1981); accord Rehberg v. Paulk, 

, 362 (2012), quoting
Pulliam v. Allen, 

, 529 (1984) (“‘The starting point in our own analysis
is the common law.’”); Briscoe v. LaHue, 

, 330 (1983), quoting
Newport v. Fact Concerts, Inc., 

, 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, 

, ¶ 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, 

, 335 (2020), citing Univ. of Texas
Southwestern Med. Ctr. v. Nassar, 

, 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., 

, ¶ 17, citing New Prime
Inc. v. Oliveira, 

, 113 (2019). Likewise, this court presumes that
“statutes . . . embrace the common law extant at their enactment.”          Mann v.
Northgate Investors, L.L.C., 

, ¶ 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




                                         32
                                January Term, 2024




the legislature has used language that “‘“clearly expresses or imports such
intention.”’”   (Emphasis deleted.)     

 quoting Shump v. First Continental-
Robinwood Assocs., 

, 420 (1994), quoting State ex rel. Morris v.
Sullivan, 

 (1909), paragraph three of the syllabus; accord Williams
v. Spitzer Autoworld Canton, L.L.C., 

, ¶ 17, quoting Mandelbaum
v. Mandelbaum, 

, ¶ 29, quoting State ex rel. Hunt v. Fronizer, 

, 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.
       {¶ 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., 

, 448 (2013),
quoting United States v. Lindsay, 

, 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




                                          33
                             SUPREME COURT OF OHIO




a right accrues when it comes into existence’”); Reading Co., 

 (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., 

, ¶ 8,
quoting State ex rel. Bowman v. Columbiana Cty. Bd. of Commrs., 

, 400 (1997), 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, 

, 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, 

, 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.,

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

, ¶ 14 (also quoting Kerns); see also Wyler v. Tripi, 

, 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




                                          34
                                January Term, 2024




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, 

.
       {¶ 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, 

 (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, 

, 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
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




                                          35
                             SUPREME COURT OF OHIO




issue in that case, i.e., false imprisonment. 

, 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,

, ¶ 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, 

, 460 (1993), citing 3
Restatement of the Law 2d, Torts, § 577 (1965).
       {¶ 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., 

, at ¶ 19 (“a court must look




                                         36
                                 January Term, 2024




‘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.


       {¶ 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




                                          37
                              SUPREME COURT OF OHIO




389, quoting 2 Wood at 878. Legal-malpractice causes of action accrued “when
the attorney-client relationship finally terminate[d].” Keaton Co. v. Kolby, 

 (1971), syllabus, overruled by Skidmore & Hall v. Rottman, 

 (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., 

, 383 (8th Dist. 1947).
        {¶ 85} Medical-malpractice actions formerly were listed in R.C. 2305.11 as
well. See Wyler, 

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].” 

 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, 

, 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)
(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-




                                           38
                                      January Term, 2024




act accrual rule applies to defamation causes of action. See majority opinion at
¶ 14, citing Norgard v. Brush Wellman, Inc., 

, ¶ 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, 

; 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, 

,
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
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



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.




                                                  39
                              SUPREME COURT OF OHIO




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, 

, 432 (2021), quoting Milkovich v. Lorain Journal Co., 

, 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., 

, 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, 

, ¶ 9, quoting A & B–
Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council,

, 7 (1995) (“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:


        “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




                                           40
                                     January Term, 2024




        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[, 

, 243 (1975)].


(Emphasis in original.) Hecht at 460.
        {¶ 91} Thus, “[a]ny act by which the defamatory matter is communicated
to a third party constitutes publication.” (Emphasis in original.) 

 The word
“‘any’ has an expansive meaning.” United States v. Gonzales, 

, 5 (1997).
It means “‘one or some indiscriminately of whatever kind.’” State ex rel. Purdy v.
Clermont Cty. Bd. of Elections, 

, 340 (1997), quoting Webster’s
Third New International Dictionary (1971). “‘Any’ is often used as meaning ‘all.’”
(Citation omitted.) Wachendorf v. Shaver, 

, 240 (1948); accord
State v. Wells, 

, 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, 66 Ohio St.3d at 460, or a private email shared with at least
one other person.
        {¶ 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




                                             41
                                 SUPREME COURT OF OHIO




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, 

, 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, 

, 397 (1946), quoting Bailey v. Glover, 

, 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
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.




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.




                                               42
                                     January Term, 2024




        {¶ 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,

, at ¶ 17, quoting, Shump, 

, quoting Morris, 

, 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.”’”



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.




                                                43
                            SUPREME COURT OF OHIO




Williams, 

, at ¶ 17, quoting Mandelbaum, 

, 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, 

, ¶ 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, 

, ¶ 45, quoting Cleveland Mobile Radio Sales, Inc. v.
Verizon Wireless, 

, ¶ 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, 

, 14 (2019), quoting TRW, Inc. v. Andrews, 

, 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




                                         44
                                        January Term, 2024




fundamental principle of statutory interpretation that ‘absent provision[s] cannot be
supplied by the courts.’” [Bracketed text in original.]); Fronce v. Nichols, 

, 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 argued 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, 

, ¶ 33 (Fischer, J., concurring in judgment only); see also
Warner Chappell Music, 601 U.S. at __, 144 S.Ct. at 1141 (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.
                  (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




                                                    45
                                   SUPREME COURT OF OHIO




never held that defamation causes of action accrue upon the first publication of the
defamatory statement. See Haines v. Welling, 

, 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., 

, ¶ 11-12 (referring to
defamatory “publications”); Wartenbe v. Sternberger, 

, *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, 

, 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
five years from the date when the claim first accrued’” [ellipses in original;
emphasis added]).



                   (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.




                                                  46
                                     January Term, 2024




         {¶ 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
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”).




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.




                                                47
                                  SUPREME COURT OF OHIO




         {¶ 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, 

, ¶ 13 (“the legislature determines
what injuries are recognized and what remedies are available”); id. at ¶ 14 (“the
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


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.




                                                 48
                                      January Term, 2024




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., 

, ¶ 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, 66 Ohio St.3d at 460. And the court rejected the notion that “[f]or the
purposes of defamation, ‘publication’” requires “widespread dissemination.”15 Id.
This court stated: “We discern no reason to disturb the settled law of defamation


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
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




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, 

, ¶ 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., 

, 293 (1997) (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, 

(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., 

, 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., 

 (1987) (plurality opinion); see also Masson v.
New Yorker Magazine, Inc., 

, 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, 

, ¶ 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
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, 

, quoting Wood
v. Carpenter, 

, 139 (1879) (stating that statutes of limitations are




                                         50
                                     January Term, 2024




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

, 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, 

, 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 a purportedly
egregious set of 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, 

, ¶ 20 (even when a case involves a
“particularly heinous set of facts,” this court will not “rewrite the statute”); Bank of
Hartford Cty. v. Waterman, 

, 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


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.”




                                                51
                              SUPREME COURT OF OHIO




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, 

 (Scalia, J., concurring in the judgment); 

quoting Amy v. Watertown, 

, 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, 

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

, 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, 

, 117 (1979), quoting RR. Telegraphers v. Ry. Express Agency, 

, 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
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, 

, at ¶ 49. Thus, “it is not our job as members




                                          52
                                 January Term, 2024




of the judicial branch to overreach and invade the province of the General
Assembly.” Brandt at ¶ 73 (Kennedy, Fischer, 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, 

. 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, 

, at ¶ 20,
quoting State ex rel. Tritt v. State Emp. Relations Bd., 

, ¶ 17; see
In re Estate of Centorbi, 

, ¶ 13, quoting Weaver v. Edwin Shaw
Hosp., 

, ¶ 13, quoting Wachendorf v. Shaver, 

(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
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,




                                          53
                                   SUPREME COURT OF OHIO




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, 

 (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
to defamation causes of action that involve a secretive, concealed, or otherwise
inherently unknowable publication.




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.




                                                 54
                                      January Term, 2024




   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, 

.19
         {¶ 113} Nevertheless, as explained above, one problem with applying the
discovery rule to a defamation cause of action involving a secretive, concealed, or
otherwise inherently unknowable publication is that this rule will apply to all
defamation actions involving a secretive, concealed, or otherwise inherently


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, e.g., O’Stricker, 

; Oliver, 

; Melnyk, 

. 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, 

, 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, 

, 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, 

, *3 (10th Dist. Nov. 2, 1995) (“A cause of
action for libel accrues upon the first publication of the defamatory matter.”); Snell v. Drew, 

, *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 . . . .”).




                                                  55
                                   SUPREME COURT OF OHIO




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.” 

, ¶
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, 

, 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, 

, ¶ 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
inherently unknowable to the plaintiff,20 see Hecht, 

, citing 3


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 but does so for the right reasons. Plus, this type of decision is not unprecedented.
See Bennett v. Stanley, 

, 42 (2001) (adopting the attractive-nuisance doctrine); 

                                                 56
                                       January Term, 2024




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
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


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., 

,
¶ 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, 

,
¶ 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., 

, 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., 

, 299 (1987), quoting
Bosjnak v. Superior Sheet Steel Co., 

 (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’”).




                                                   57
                                   SUPREME COURT OF OHIO




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.
                                     __________________
         Hemmer DeFrank Wessels, P.L.L.C., Todd V. McMurtry, and J. Will
Huber, for appellee.



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.




                                                 58
                              January Term, 2024




       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.
                          _______________________




                                       59


[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Weidman v. Hildebrant, Slip Opinion No. 

.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                         SLIP OPINION NO. 

               WEIDMAN, APPELLEE, v. HILDEBRANT, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as Weidman v. Hildebrant, Slip Opinion No. 

.]
Statute of limitations—R.C. 2305.11—Libel—Discovery rule—Discovery rule
        applies to claims of libel 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, 

.
                                 __________________
        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.,
                              SUPREME COURT OF OHIO




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
secretive or concealed. 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. 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




                                        2
                                January Term, 2024




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
[email protected] and sent an email (the “2011 email”) from that account
to himself on December 20, 2011. The email portrayed Weidman as having
accepted an illicit payment from Hildebrant and demanding more payments in
exchange for his support in another real-estate transaction. Hildebrant forwarded
the 2011 email to Roberts to show that he did not have enough money to pay
Roberts, because Weidman had already demanded significant payments. The 2011
email remained private between Hildebrant and Roberts for the next several years.
       {¶ 4} In 2019, Hildebrant sought to purchase a parcel of land owned by
Sycamore Township on behalf of his development group. The parcel purchase
required unanimous consent by the Sycamore Township Board of Trustees, on
which Weidman still served. Weidman opposed the sale of the parcel of land.
       {¶ 5} On January 25, 2020, Hildebrant met with Sycamore Township
Trustee James LaBarbara and Sycamore Township Administrator Raymond
Warrick to discuss the parcel purchase. During the meeting, Hildebrant asserted
that Weidman’s opposition to the sale was in retaliation for Hildebrant’s failure to
pay Weidman a kickback from the SDI Foods transaction in 2011 and Hildebrant
showed the 2011 email to LaBarbara and Warrick.
       {¶ 6} Because the 2011 email revealed potential illegal conduct, the auditor
of Ohio was notified and an investigation was initiated. The 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




                                          3
                             SUPREME COURT OF OHIO




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-
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, 

 (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




                                         4
                                 January Term, 2024




that the “subject of the alleged defamation does not discover the statements until
after the running of the statute of limitations.” 

       {¶ 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. 

 (12th Dist.). The court of appeals
relied on O’Stricker v. Jim Walter Corp., 

 (1983), and subsequent
cases in which we applied the discovery rule. 

 (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:


       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?

.        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 

 We sua sponte
consolidated the two cases for briefing. 

                                  III. ANALYSIS
       {¶ 12} We review matters requiring statutory interpretation de novo.
Stewart v. Vivian, 

.




                                           5
                              SUPREME COURT OF OHIO




        {¶ 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, 

; 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., 

, 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
the discovery rule as an exception to this general rule. 

 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.” 

 citing Collins v. Sotka, 

 (1998), citing O’Stricker, 

. 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.’” 

, quoting Wyler v. Tripi,

 (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., 

 (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).
        {¶ 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. 

. Asbestos is a known carcinogenic




                                           6
                                      January Term, 2024




agent, exposure to which may cause a latent disease with a gestation period of up
to 30 years. 

. Based on the circumstances of that case, we concluded
that the discovery rule applied to bodily-injury actions under R.C. 2305.10. 

 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 

.
         {¶ 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
under the same statute at issue here, R.C. 2305.11(A), 

.1 In Skidmore
& Hall v. Rottman, 

 (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, 

; hospital negligence in credentialing a
physician, 

; certain sexual-abuse claims, Ault v. Jasko, 

 (1994), superseded by statute as stated in Pratte v.
Stewart, 

; and employer intentional torts, 

. See
Harris v. Liston, 

 (1999) (listing other situations in which
we have applied the discovery rule).2


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




                                                  7
                                   SUPREME COURT OF OHIO




         {¶ 17} The discovery rule has not been applied to defamation claims.3 This
dates to Pearl v. Koch, 

, 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
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., 

 (1st Dist.); Harvey v. Sys. Effect, L.L.C.,

 (2d Dist.); Spitzer v. Knapp, 

, ¶ 27 (5th
Dist.); Reed v. Jagnow, 

 (7th Dist.); Sabouri v. Ohio Dept. of
Job & Family Servs., 

 (10th Dist. 2001); Altier v.
Valentic, 

 (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, 

, *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




that email to himself as if it was sent 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 may 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., 

 (10th Dist. 1999). This
opinion focuses on libel, which is a defamatory statement that is “written or printed and published,”
Watson v. Trask, 

 (1834), because this case involves a published email, though,
at times, we use the more general word “defamation.”




                                                  8
                                      January Term, 2024




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 otherwise
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 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, 

, 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


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.




                                                  9
                                   SUPREME COURT OF OHIO




administering justice allow such an absurdity?” Amer v. Akron City Hosp., 

 (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 him 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., 

. 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.
         {¶ 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


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, 

, ¶ 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,




                                                  10
                                      January Term, 2024




Corp. v. U.S. Mineral Prods. Co., 

 (1995), 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, 

 (“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
dormientibus aequitas subvenit—equity aids the vigilant, not those who sleep on
their rights. New York City v. Pine, 

 (1902); Ivani Contracting Corp.
v. New York City, 

, 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, 

 (“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


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.




                                                  11
                              SUPREME COURT OF OHIO




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, 

 (1972).
                        C. Weidman’s Derivative Claims
       {¶ 26} In addition to his defamation claim, Weidman also asserted claims
of IIED and false-light invasion of privacy against Hildebrant. To determine which
statute of limitations applies to these claims, we must look to the substance of the
claims. Hambleton v. R.G. Barry Corp., 

 (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. 

 (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




                                        12
                                January Term, 2024




claim and false-light-invasion-of-privacy claim is R.C. 2305.11(A).              See
Stainbrook v. Ohio Secy. of State, 

 (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, 

, ¶ 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
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.




                                           13
                              SUPREME COURT OF OHIO




        {¶ 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
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”).




                                          14
                                   January Term, 2024




       {¶ 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, 

 (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., 

 (discussing discovery rule in
terms of accrual); Oliver v. Kaiser Community Health Found., 

(1983), syllabus (same); see also Collins v. Sotka, 

 (1998)
(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”); 

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

 (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);

 (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 

 (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,” 

                                           15
                              SUPREME COURT OF OHIO




        {¶ 34} In my view, the discovery rule is most accurately described as “a
rule of accrual.” Liddell v. SCA Servs. of Ohio, Inc., 

 (1994)
(referring to the discovery rule as the “O’Stricker rule of accrual”), citing
O’Stricker v. Jim Walter Corp., 

 (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., 

. 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
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




                                          16
                                January Term, 2024




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,

.
       {¶ 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
includes 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.
       {¶ 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).




                                         17
                             SUPREME COURT OF OHIO




       {¶ 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 majority’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., 

(1991). Likewise, a defamatory matter is that which is “injurious to the reputation
of a private individual.” Gert v. Robert Welch, Inc., 

 (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., 

 (Ct. of Cl. 1997), citing Ashcroft v. Mt. Sinai Med. Ctr., 

 (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-




                                          18
                                 January Term, 2024




Ohio-2550, ¶ 33 (5th Dist.), quoting Gosden v. Louis, 

(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., 

. “Generally, a
cause of action accrues . . . at the time the wrongful act was committed.” 

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., 

 (N.D.Fla. 2005), aff’d, 

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

 (5th Dist. 1937); Bain v. Smith, 

 (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, 

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

 (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.” 

 “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., 

 (1983), citing Harig v. Johns-Manville
Prods. Corp., 

 (1978).




                                           19
                              SUPREME COURT OF OHIO




                  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.

 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, 

; see also Cramer
v. Fairfield Med. Ctr., 

, ¶ 69 (5th Dist.). “For defamation as a
result of libel, a cause of action accrues upon the first publication of the defamatory
matter.” 

.
        {¶ 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’”
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, 

, *2 (6th Dist. Nov. 1, 1985) (“This
court . . . expressly rejects the single publication rule, for the simple reason that it




                                          20
                                  January Term, 2024




does not state Ohio law.”); Fleming v. Ohio Atty. Gen., 

, ¶ 14 (10th
Dist.), quoting Anthony v. Wonnell, 

 (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, 

, quoting Guccione v. Hustler Magazine, 

 (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, but 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, 

, 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
the exercise of reasonable diligence, that he or she has been injured by the conduct
of the defendant. See Doe v. Archdiocese of Cincinnati, 

, ¶ 21; see
also O’Stricker, 

; Flagstar Bank, F.S.B. v. Airline Union’s Mtge.
Co., 

. 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, 

 (1972). Melnyk involved a medical-malpractice claim




                                            21
                              SUPREME COURT OF OHIO




that was based on metallic forceps and a nonabsorbent sponge being left inside a
patient’s body during surgery. 

. This court acknowledged that there is “a
firm Ohio legislative history of opposition to the adoption of a ‘discovery rule.’”

. Nonetheless, this court determined that implementation of the discovery
rule did not “interfere in the affairs” of the General Assembly. 

.
          {¶ 51} Since Melnyk, this court has consistently applied the discovery rule
to medical-malpractice and bodily-injury cases. See, e.g., Oliver, 

 (medical malpractice); 

 (bodily injury caused by exposure to
asbestos); Burgess v. Eli Lilly & Co., 

 (1993) (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, 

 (1983), and to bodily-injury actions resulting from a hospital’s
negligence in credentialing a physician, Browning v. Burt, 

(1993).
          {¶ 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, 

, at ¶ 70, fn. 2 (5th Dist.), quoting 

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

; see also Wyler, 

; LGR Realty, Inc. v. Frank &
London Ins. Agency, 

. Conversely, in Flagstar, this court held
that the discovery rule did not apply to any professional-negligence claims.
Flagstar, 

 (discovery rule not applicable to any claims of
professional negligence, including alleged negligence by an appraiser); see




                                          22
                               January Term, 2024




Investors REIT One v. Jacobs, 

 (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, 

 (1st Dist.) (holding that
defamation claim began to accrue when the statements were made); Harvey v. Sys.
Effect, L.L.C., 

 (2d Dist.) (defamation cause of action accrues
on date of publication of the defamatory matter); Talwar v. Kattan, 

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

, ¶ 18 (4th Dist.) (defamation cause of action
accrues when words are written or spoken, not when plaintiff discovers the words);
Lewis, 

 (5th Dist.) (holding that 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, 

(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.) (defamation cause of action accrues at the time of
publication); Smith Elec. v. Rehs, 

, *2 (9th Dist. Feb. 18, 1998)




                                        23
                             SUPREME COURT OF OHIO




(“the actual tort occurs when the party falsely and maliciously defames the property
of another”); Sabouri v. Ohio Dept. of Job & Family Servs., 

 (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, 

 (11th Dist.) (cause of action for
defamation accrues when the words are published or spoken); Daubenmire v.
Sommers, 

 (12th Dist.) (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
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,

. 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




                                         24
                                January Term, 2024




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,

; see 

 (holding that “failure to include general negligence
claims under the discovery rule set out in R.C. 2305.09” showed the General
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 that
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) (Resnick, J.,
concurring).




                                         25
                             SUPREME COURT OF OHIO




       {¶ 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.’”

, quoting 

 (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, 

. “‘[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, 

 (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,
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




                                          26
                                January Term, 2024




         {¶ 61} The General Assembly is the final arbiter of public policy in Ohio.
See Sutton v. Tomco Machining, Inc., 

; State v. Smorgala, 

 (1990), superseded by statute on other grounds as stated in
State v. Mayl, 

, ¶ 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
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.




                                         27
                               SUPREME COURT OF OHIO




           {¶ 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.,
¶ 46, quoting Miller v. Ohio Rehab. Serv. Comm., 

 (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 word “accrued” does not support the majority’s holding that a libel




                                            28
                                       January Term, 2024




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., 

 (1983),
paragraph one of the syllabus. However, this statement from O’Stricker does not
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., 

(“we do not read statutes in a vacuum”); State ex rel. Figueroa v. Ohio Dept. of
Commerce, Div. of Real Estate & Professional Licensing, 

. 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.




                                                  29
                             SUPREME COURT OF OHIO




quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 

(“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, 

 (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, 

, ¶ 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., 

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

 quoting Johnson v. Montgomery, 

. 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., 

, quoting Slingluff v. Weaver, 

 (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, 

,
citing State v. Porterfield, 

, ¶ 11; accord 

, quoting
Sears v. Weimer, 

 (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




                                         30
                                      January Term, 2024




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, 

; DeLong v.
Campbell, 

, 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., 

 (1983); see Stewart
v. Vivian, 

 (“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) (“To determine the common, everyday meaning of a word, we have
consistently used dictionary definitions.”).
        {¶ 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.


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, 

,
__, 

, 1140 (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.




                                                31
                             SUPREME COURT OF OHIO




Co. v. Darden, 

 (1992), quoting Community for Creative Non-
Violence v. Reid, 

 (1989), quoting NLRB v. Amax Coal Co., 

 (1981); accord Rehberg v. Paulk, 

 (2012), quoting
Pulliam v. Allen, 

 (1984) (“‘The starting point in our own analysis
is the common law.’”); Briscoe v. LaHue, 

 (1983), quoting
Newport v. Fact Concerts, Inc., 

 (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, 

,
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, 

 (2020), citing Univ. of Texas
Southwestern Med. Ctr. v. Nassar, 

 (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., 

, citing New Prime
Inc. v. Oliveira, 

 (2019). Likewise, this court presumes that
“statutes . . . embrace the common law extant at their enactment.”          Mann v.
Northgate Investors, L.L.C., 

. 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




                                         32
                                January Term, 2024




the legislature has used language that “‘“clearly expresses or imports such
intention.”’”   (Emphasis deleted.)     

 quoting Shump v. First Continental-
Robinwood Assocs., 

 (1994), quoting State ex rel. Morris v.
Sullivan, 

 (1909), paragraph three of the syllabus; accord Williams
v. Spitzer Autoworld Canton, L.L.C., 

, quoting Mandelbaum
v. Mandelbaum, 

, quoting State ex rel. Hunt v. Fronizer, 

, 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.
       {¶ 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., 

 (2013),
quoting United States v. Lindsay, 

 (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




                                          33
                             SUPREME COURT OF OHIO




a right accrues when it comes into existence’”); Reading Co., 

 (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., 

, ¶ 8,
quoting State ex rel. Bowman v. Columbiana Cty. Bd. of Commrs., 

, 400 (1997), 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, 

, 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, 

, 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.”); 

 (“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.,

, citing O’Stricker, 

; see 

 quoting Kerns
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, 

 (also quoting Kerns); see also Wyler v. Tripi, 

 (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




                                          34
                                January Term, 2024




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, 

.
       {¶ 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, 

 (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, 

, 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
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.” 

.
       {¶ 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




                                          35
                             SUPREME COURT OF OHIO




issue in that case, i.e., false imprisonment. 

 (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,

, ¶ 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), citing 3
Restatement of the Law 2d, Torts, § 577 (1965).
       {¶ 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., 

 (“a court must look




                                         36
                                 January Term, 2024




‘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.


       {¶ 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, 

                              SUPREME COURT OF OHIO




389, quoting 2 Wood at 878. Legal-malpractice causes of action accrued “when
the attorney-client relationship finally terminate[d].” Keaton Co. v. Kolby, 

 (1971), syllabus, overruled by Skidmore & Hall v. Rottman, 

 (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., 

 (8th Dist. 1947).
        {¶ 85} Medical-malpractice actions formerly were listed in R.C. 2305.11 as
well. See Wyler, 

 (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].” 

 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, 

 (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)
(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-




                                           38
                                      January Term, 2024




act accrual rule applies to defamation causes of action. See majority opinion at
¶ 14, citing Norgard v. Brush Wellman, Inc., 

.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, 

; see also Wallace, 

 (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, 

,
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
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



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.




                                                  39
                              SUPREME COURT OF OHIO




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, 

 (2021), quoting Milkovich v. Lorain Journal Co., 

(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., 

 (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, 

, ¶ 9, quoting A & B–
Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Const. Trades Council,

 (1995) (“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:


        “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




                                           40
                                     January Term, 2024




        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[, 

 (1975)].


(Emphasis in original.) 

.
        {¶ 91} Thus, “[a]ny act by which the defamatory matter is communicated
to a third party constitutes publication.” (Emphasis in original.) 

 The word
“‘any’ has an expansive meaning.” United States v. Gonzales, 

 (1997).
It means “‘one or some indiscriminately of whatever kind.’” State ex rel. Purdy v.
Clermont Cty. Bd. of Elections, 

 (1997), quoting Webster’s
Third New International Dictionary (1971). “‘Any’ is often used as meaning ‘all.’”
(Citation omitted.) Wachendorf v. Shaver, 

 (1948); accord
State v. Wells, 

 (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, 

, or a private email shared with at least
one other person.
        {¶ 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




                                             41
                                 SUPREME COURT OF OHIO




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, 

, 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, 

 (1946), quoting Bailey v. Glover, 

(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’”); 

 (“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
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.




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.




                                               42
                                     January Term, 2024




        {¶ 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,

, quoting, Shump, 

, quoting Morris, 

, 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.”’”



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.




                                                43
                            SUPREME COURT OF OHIO




Williams, 

, quoting Mandelbaum, 

, 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, 

. 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, 

, quoting Cleveland Mobile Radio Sales, Inc. v.
Verizon Wireless, 

, ¶ 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, 

 (2019), quoting TRW, Inc. v. Andrews, 

 (2001) (Scalia, J.,
concurring in the judgment) (an “expansive approach to the discovery rule is a ‘bad
wine of recent vintage’”); 

, quoting Scalia & Garner at 94 (“It is a




                                         44
                                        January Term, 2024




fundamental principle of statutory interpretation that ‘absent provision[s] cannot be
supplied by the courts.’” [Bracketed text in original.]); Fronce v. Nichols, 

 (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 argued 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, 

 (Fischer, J., concurring in judgment only); see also
Warner Chappell Music, 601 U.S. at __, 144 S.Ct. at 1141 (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.
                  (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




                                                    45
                                   SUPREME COURT OF OHIO




never held that defamation causes of action accrue upon the first publication of the
defamatory statement. See Haines v. Welling, 

 (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., 

 (referring to
defamatory “publications”); Wartenbe v. Sternberger, 

, *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, 

, 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
five years from the date when the claim first accrued’” [ellipses in original;
emphasis added]).



                   (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.




                                                  46
                                     January Term, 2024




         {¶ 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, 

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




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.




                                                47
                                  SUPREME COURT OF OHIO




         {¶ 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, 

 (“the legislature determines
what injuries are recognized and what remedies are available”); id. at ¶ 14 (“the
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


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.




                                                 48
                                      January Term, 2024




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., 

 (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, 

. And the court rejected the notion that “[f]or the
purposes of defamation, ‘publication’” requires “widespread dissemination.”15 

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


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
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




and create an exception to the definition of ‘publication’ for confidential
communications to a bar association.” 

 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, 

(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) (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, 

(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., 

 (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., 

 (1987) (plurality opinion); see also Masson v.
New Yorker Magazine, Inc., 

 (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, 

 (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
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, 

, quoting Wood
v. Carpenter, 

 (1879) (stating that statutes of limitations are




                                         50
                                     January Term, 2024




“‘vital to the welfare of society’”); 

, quoting Wilson v. Garcia, 

 (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, 

 (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 a purportedly
egregious set of 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, 

 (even when a case involves a
“particularly heinous set of facts,” this court will not “rewrite the statute”); Bank of
Hartford Cty. v. Waterman, 

 (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


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.”




                                                51
                              SUPREME COURT OF OHIO




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, 

 (Scalia, J., concurring in the judgment); 

quoting Amy v. Watertown, 

 (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, 

; accord Rotkiske, 

, quoting Johnson v. Ry. Express Agency,
Inc., 

 (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, 

 (1979), quoting RR. Telegraphers v. Ry. Express Agency, 

 (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
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, 

. Thus, “it is not our job as members




                                          52
                                 January Term, 2024




of the judicial branch to overreach and invade the province of the General
Assembly.” Brandt at ¶ 73 (Kennedy, Fischer, 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, 

. 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, 

,
quoting State ex rel. Tritt v. State Emp. Relations Bd., 

; see
In re Estate of Centorbi, 

, quoting Weaver v. Edwin Shaw
Hosp., 

, ¶ 13, quoting Wachendorf v. Shaver, 

(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
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,




                                          53
                                   SUPREME COURT OF OHIO




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,” 

,
then it would have included language within R.C. Ch. 2305 to that effect, see
Rotkiske, 

 (“Atextual judicial supplementation is particularly
inappropriate when . . . Congress has shown that it knows how to adopt the omitted
language or provision.”); TRW, 

 (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
to defamation causes of action that involve a secretive, concealed, or otherwise
inherently unknowable publication.




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.




                                                 54
                                      January Term, 2024




   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, 

.19
         {¶ 113} Nevertheless, as explained above, one problem with applying the
discovery rule to a defamation cause of action involving a secretive, concealed, or
otherwise inherently unknowable publication is that this rule will apply to all
defamation actions involving a secretive, concealed, or otherwise inherently


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, e.g., O’Stricker, 

; Oliver, 

; Melnyk, 

. 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, 

, 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, 

, (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., 

; Reimund v. Brown, 

, *3 (10th Dist. Nov. 2, 1995) (“A cause of
action for libel accrues upon the first publication of the defamatory matter.”); Snell v. Drew, 

, *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 . . . .”).




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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.” 

 (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, 

, 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, 

, ¶ 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
inherently unknowable to the plaintiff,20 see Hecht, 

, citing 3


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 but does so for the right reasons. Plus, this type of decision is not unprecedented.
See Bennett v. Stanley, 

 (2001) (adopting the attractive-nuisance doctrine); 

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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
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


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., 

 (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, 

 (“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., 

 (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., 

 (1987), quoting
Bosjnak v. Superior Sheet Steel Co., 

 (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’”).




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                                   SUPREME COURT OF OHIO




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.
                                     __________________
         Hemmer DeFrank Wessels, P.L.L.C., Todd V. McMurtry, and J. Will
Huber, for appellee.



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.




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       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.
                          _______________________




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