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Smith v. National Western Life

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 8, 2017

ANTHONY SMITH, PLAINTIFF-APPELLANT
v.
NATIONAL WESTERN LIFE, ET AL., DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-843767.

          ATTORNEY FOR APPELLANT Margaret Mary Meko The Meko Law Office, L.L.C.

          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

          MELODY J. STEWART, JUDGE

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         I. Dismissal of Defamation Claim

         {¶4} 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.

         {¶5} 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.

         {¶6} 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." Id.

         {¶7} 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.

         {¶8} 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 ...


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