The new elements of real estate transactions
An Ohio appellate court has reversed a trial court’s decision to grant summary judgment in favor of a real estate developer who crafted fraudulent emails.
Thomas Weidman, a township trustee, filed a complaint against Christopher Hildebrant, a real estate developer, for defamation, intentional infliction of emotional distress and false light invasion of privacy. Weidman’s complaint stemmed from a 2011 real estate transaction.
Back in 2011, Hildebrant was facilitating the sale of property owned by SDI Foods, Inc. to Sycamore Township, and was to be compensated with a consulting fee by both parties if the sale was successful. Hildebrant alleged that Weidman, along with the individual who negotiated the sale for SDI, each sought a kickback from Hildebrant’s consulting fee after the sale occurred.
In response to the pressure of the kickback demand, Hildebrant created a fictitious email address using Weidman’s name and sent an email portraying Weidman as receiving an illicit payment and demanding bribes in exchange for his support of real estate developments in Sycamore Township. Hildebrandt shared the email with several people with hopes of demonstrating the pressure he was under to pay bribes.
When Weidman opposed Hildebrant’s subsequent 2019 purchase of a real estate parcel, Hildebrant went on to share the falsified email with Weidman’s other trustees. This led to an investigation into Weidman.
The 2011 email was produced in response to a subpoena during the investigation. Hildebrant included the following statement with the email:
CH [Hildebrant] has included in this response an email dated December 20, 2011 from an internet account noted on the face of the document as belonging to Mr. Weidman. This communication is included because this email was drafted by CH and Weidman jointly and sent by Weidman to CH so that CH could represent certain facts about an agreement between CH and Weidman to SDI Foods.
Upon Hildebrant obtaining new counsel, he amended his response to the subpoena:
“document production * * * includes an email dated December 20, 2011 from the email account [email protected] to the email account [email protected]. In order to avoid any misunderstanding, please be advised that this email was not written by Mr. Weidman. Mr. Hildebrant drafted this email and sent it to himself.”
Weidman had no knowledge of the email until November 2020, when he was interviewed in connection with the investigation. He never received a copy of the email until January 2021. Weidman filed his complaint shortly thereafter.
Hildebrant’s answer set forth a variety of affirmative defenses, including that Weidman’s claims were barred by the statute of limitations because the 2011 email was first published nearly a decade before Weidman filed the complaint.
In his motion for summary judgment, Hildebrant contended that Weidman’s claims had been “time-barred for many years” due to the expiration of the one-year statute of limitations set forth in R.C. 2305.11(A). Hildebrant also argued that the same statute of limitations for defamation claims applied to Weidman’s IIED and false light invasion of privacy claims.
Weidman on the other hand, argued that the “discovery rule” applied, thus tolling the statute of limitations until 2020 when Weidman first became aware of the 2011 email.
The trial court determined that the discovery rule was inapplicable because Weidman ultimately “slept on” his rights by not pursuing a claim against Hildebrant sooner.
The appellate court disagreed, and in citing a case from the Mississippi Supreme Court, opined that a plaintiff who did not know, or with reasonable diligence could not have discovered, that they had been defamed due to the secretive nature of the libelous publication cannot be said to have been sleeping on their rights.
This case brings a new meaning to the old adage that warns that what’s done in the dark will come to light.
Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues
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