Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Margaret Mary Meko The Meko Law
ATTORNEY FOR APPELLEES Natalia Steele Vorys, Sater, Seymour
& Pease, L.L.P
BEFORE: Stewart, J., Kilbane, P.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION
J. STEWART, JUDGE
Plaintiff-appellant Anthony Smith sold annuity policies as an
agent for defendant-appellee National Western Life Insurance
Company. After National Western settled a lawsuit brought by
one of Smith's clients, it terminated Smith's agency
contract and charged him back for the commissions it paid him
on that account under Smith's personal guaranty. Smith
filed for bankruptcy and a third party satisfied the
charge-back. National Western listed Smith's name with
Vector One, an insurance industry service that provides agent
screening tools to insurance companies, such as indicating
that an agent, or potential agent, has a debit balance with
another insurance company.
Claiming that publication of the debt was false because the
debt had been discharged in bankruptcy and otherwise
satisfied, Smith raised claims for defamation and tortious
interference with prospective economic advantage, claiming
that he had been denied a position with a different issuer of
annuities because of his listing with Vector One.
The court dismissed the defamation claim as barred by the
statute of limitations. It granted National Western summary
judgment on the tortious interference claim because Smith did
not sufficiently identify a business relationship with which
National Western had interfered, nor did he sufficiently
identify damages caused by National Western.
Dismissal of Defamation Claim
Smith first argues that the court erred by granting National
Western's motion to dismiss the defamation claim on
grounds that he did not file his claim within the one-year
statute of limitations.
The tort of defamation has a one-year statute of limitations.
See R.C. 2305.11(A). In paragraph 14 of his
complaint, Smith alleged that National Western first reported
the debt to Vector One "later in 2010." Smith filed
his complaint on April 6, 2015. These facts conclusively show
that Smith did not file his complaint within one year of
publication to Vector One. See Civ.R. 12(B)(6);
Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d
491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11.
Smith conceded below that he did not file his defamation
claim within one year of when he first became aware of the
publication of his debt with Vector One. See
plaintiffs response to defendant's amended motion to
dismiss the complaint, at 4. He argued, however, that
dismissal was premature because "[w]ithout discovery
Plaintiff cannot determine how often the report was made to a
third party, the nature of the report, how often it was
updated and the extent of the accuracy of the report."
Smith sought and received three extensions of time in which
to respond to the motion to dismiss the complaint: the first
motion gave no reason why he needed an extension of time; the
other two were based on counsel's workload and
preexisting obligations that prevented timely filing a brief
in opposition to the motion to dismiss. None of the three
motions for an extension of time were based on the need for
additional time in which to conduct discovery and raise
substantive claims in opposition to the motion to dismiss.
The claim that counsel needed additional time to conduct
discovery was never raised before Smith filed his brief in
opposition to the motion to dismiss.
In any event, Smith was not entitled to discovery in order to
seek out facts to defeat a motion to dismiss. A Civ.R.
12(B)(6) motion to dismiss is a challenge to the facts
pleaded in the complaint. For that reason, a Civ.R. 12(B)(6)
motion cannot be decided on facts that are not contained in
the complaint. State ex rel. Findlay Publishing Co. v.
Schroeder,76 Ohio St.3d 580, 581, 669 N.E.2d 835
(1996). And although a statute of limitations affirmative
defense often invokes facts beyond the complaint, a complaint
can be dismissed when on its face it conclusively indicates
that the action is ...