ROGER SMITH; LISA STAYTON; v. NEW WAVE COMMUNICATIONS, INC.; MOUNTAIN CITIZEN, INC.; MARTIN COUNTY-TUG VALLEY MOUNTAIN CITIZEN, INC.; MARTIN COUNTIAN, INC.
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RENDERED: MAY 21, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2002-CA-001980-MR
ROGER SMITH;
LISA STAYTON;
and GARY BALL
v.
APPELLANTS
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE DANIEL REID SPARKS, JUDGE
CIVIL ACTION NO. 02-CI-00115
NEW WAVE COMMUNICATIONS, INC.;
MOUNTAIN CITIZEN, INC.;
MARTIN COUNTY-TUG VALLEY
MOUNTAIN CITIZEN, INC.;
MARTIN COUNTIAN, INC.
and THE CITIZEN, INC.
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON, and VANMETER, Judges.
MINTON, Judge: Roger Smith, Lisa Slayton, and Gary Ball appeal
from an order of the Martin Circuit Court convicting them of
indirect criminal contempt1 for publishing the regular edition of
1
The circuit court’s order does not attempt to categorize its
contempt finding; but since the purpose of the order is to punish for
conduct that occurred outside the presence of the court, then the
sanction is criminal contempt. Commonwealth v. Burge, Ky., 947 S.W.2d
805, 808 (1996).
a
weekly
newspaper
on
May
22,
2002,
in
violation
of
restraining order issued ex parte on the preceding day.
a
The
circuit court punished Smith, Slayton, and Ball by fining each
of them $500.00.
Because we find that the restraining order, as
written, did not clearly prohibit the appellants’ conduct, we
reverse.
For more than a decade before the underlying civil
action
arose,
Slayton
published
and
circulated
a
weekly
newspaper in Martin County, Kentucky, displaying the name THE
MOUNTAIN CITIZEN at the top of page one of the paper.
During that
same time, she used the corporate name “New Wave Communications,
Inc.” on another page somewhere inside the paper to identify the
publisher, and listed the full name of the publication as THE
MARTIN
COUNTY-TUG
VALLEY
MOUNTAIN
CITIZEN.
shareholder of that corporation.
Slayton
was
the
sole
Smith is identified in the
record as a publisher of the paper and Ball as the editor.
On November 1, 2000, the Kentucky Secretary of State
administratively
dissolved
New
Wave
Communications,
Inc.,
because Slayton failed to file annual reports due the Secretary
of
State.
Slayton
maintains
that
she
was
oblivious
to
the
administrative dissolution until May 2002 when she began efforts
to restore its corporate status.
On
County
May
lawyer,
7
who
and
has
8,
2002,
been
the
2
John
R.
target
Triplett,
of
the
a
Martin
newspaper’s
criticism in the past, incorporated several corporations, most
of which are identified as appellees on appeal.
Triplett named
one of his new corporations “New Wave Communications, Inc.,”
which is, of course, the name of Slayton’s dissolved corporate
publisher.
For other names, Triplett used variations on the
newspaper’s trade names.
Neither Triplett nor any of his new
corporations ever published or circulated a newspaper in Martin
County.
On
May
21,
2002,
Triplett
filed
a
petition
in
the
Martin Circuit Court on behalf of his fledgling corporations
seeking injunctive relief and damages.
This petition, signed by
Triplett as counsel, and his affidavit as incorporator were the
only papers filed in connection with the request for injunctive
relief. In essence, these filings simply asserted that Smith,
Slayton, and Ball “were at one time identified with New Wave
Communications, Inc.,” that they published a newspaper called THE
MOUNTAIN CITIZEN, and that their continuing to publish a newspaper
using
any
of
irreparable
Triplett’s
injury
unless
new
corporations’
enjoined.
names
Relying
on
would
cause
these
bare
statements and lacking the certification required by Kentucky
Rule of Civil Procedure (CR) 65.03 to ensure Triplett’s efforts
at
notifying
Smith,
Slayton,
or
Ball
of
the
hearing
on
the
request for injunctive relief, the circuit court signed ex parte
3
the restraining order that Triplett drafted.
The restraining
order directed that
[D]uring the pendency of this action, and
until further orders of the Court, the
Respondents, and all persons acting in
concert with them, shall be and hereby are
strictly
restrained
and
enjoined
from
printing or publishing a newspaper under the
names:
New Wave Communications, Inc.;
Mountain Citizen, Inc.; Martin County-Tug
Valley Mountain Citizen, Inc.; Martin County
Mercury, Inc.; Martin Countian, Inc.; or the
Citizen, Inc. and are further strictly
enjoined and restrained from doing any
violent or illegal act.
On May 23, 2002, Smith, Slayton, and Ball removed the
action to federal court and moved the federal court to dissolve
the
restraining
order.
Finding
a
lack
of
jurisdiction,
the
federal court remanded the action to the Martin Circuit Court by
order entered June 4, 2002, without acting on the merits of the
motion to dissolve the restraining order.
On June 6, 2002,
Smith, Slayton, and Ball moved the circuit court to dissolve the
retraining order and scheduled the motion for hearing in the
circuit court for June 13, 2002.
On June 10, 2002, the circuit
court, acting on its own motion, issued a show cause order for
Smith, Slayton, and Ball to appear there on June 13, 2002, to
explain why they should not be held in contempt of court for
violating
learned
the
that
restraining
[Smith,
order,
Slayton,
the
and/or
circuit
Ball]
newspaper under the name ‘Mountain Citizen.’”
4
court
did
“having
publish
a
According to the Appellants’ brief, which was the only
brief
submitted
to
this
Court,
the
circuit
court
held
an
evidentiary hearing on June 19, 2002, at which Smith, Slayton,
and
Ball
were
appellants
did
present
not
and
designate
represented
by
counsel.
the
of
the
record
The
evidentiary
hearing as a part of the record on appeal; therefore, we do not
have for our review a videotape or a transcription of any of the
evidence adduced at the show cause hearing.
Slayton apparently testified at the contempt hearing;
and she did not dispute that she and the others were aware of
the restraining order when they circulated the weekly edition of
THE MOUNTAIN CITIZEN on its next regular publication date, May 22,
2002.
According
to
affidavits
filed
in
the
record,
Smith,
Slayton, and Ball were informed of the restraining order shortly
before
the
affidavit
paper
went
explained
to
that
press
when
on
May
21,
confronted
2002.
with
the
Slayton’s
impending
press deadline and mindful of the newspaper’s obligations to its
subscribers and advertisers, the appellants thought that they
could proceed with publication and satisfy the requirements of
the restraining order by removing the corporate name “New Wave
Communications,
Inc.”
as
the
publisher
of
the
paper
and
by
avoiding reference to any of the other corporate names elsewhere
in the paper.
5
In a memorandum opinion entered June 27, 2002, the
circuit court acknowledged that it was not the intent of the
restraining order to block the publication of the newspaper.
However without identifying the actual intent of the restraining
order,
the
court
dismissed
as
disingenuous
the
efforts to comply in the May 22, 2002, edition.
court
commented
that
if
the
appellants
appellants’
were
The circuit
puzzled
about
conduct prohibited by the language of the order, they could have
sought
an
emergency
hearing
in
the
circuit
court
or
in
the
appellate court, or sought counsel from a lawyer before acting.
The opinion concluded that Smith, Slayton, and Ball
had sufficient knowledge of the surrounding
circumstances to lead the Court to conclude
that [they] knew, or with due diligence or
by reasonable interpretation should have
discovered,
that
the
restraining
order
intended to prohibit the use of the name
“Mountain Citizen” in its masthead, whether
or not the “Inc.” accompanied.
For this
reason,
the
Court
finds
that
[Smith,
Slayton, and Ball] violated the Court’s
restraining order by publishing the May 22,
2002 edition of the newspaper under the name
of “Mountain Citizen” and [are] therefore in
contempt of court.
The circuit court stated that it felt compelled to
vindicate its own authority by punishing Smith, Slayton, and
Ball for violating the order.
The order concluded: “To condone
the actions of [Smith, Slayton, and Ball] would be tantamount to
promoting
and
fostering
the
disrespect
6
and
distrust
of
the
judicial
system.”
The
circuit
court
did
not
find
Smith,
Slayton, and Ball in violation for any of the later editions of
the paper published under the same name while the restraining
order was still in effect.
Although the record does not contain
a
effect,
written
order
apparently
to
lifted
injunctive
relief
this
following
was
the
the
restraining
hearing;
granted
to
and
protect
order
no
was
further
Triplett’s
corporations.
CR 65.02 requires that restraining orders “shall be
specific in terms and shall describe in reasonable detail [] the
act restrained or enjoined.”
uncertainty
and
confusion
“The rule was designed to prevent
on
the
part
of
those
faced
with
injunctive orders, and to avoid the possibility of the founding
of a contempt citation on a decree too vague to be understood.”2
Since this is a criminal contempt case, it is necessary that all
elements of the contempt be proven beyond a reasonable doubt in
order to convict Smith, Slayton and Ball.3
elements are:
In this case, the
the (1) willful (2) violation (3) of an “order
specific in terms” and which describes in “reasonable detail []
the act restrained or enjoined.”
It is the third element that
fails as a matter of law.
2
Fiscal Court of Jefferson County v. Courier-Journal & Louisville
Times Co., Ky., 554 S.W.2d 72, 74 (1977).
3
Commonwealth v. Pace, Ky.App., 15 S.W.3d 393, 396 (2000).
7
By
its
terms,
the
restraining
order
under
consideration here clearly prohibited Smith, Slayton, and Ball
from
printing
or
publishing
names listed in the order.
a
newspaper
under
the
corporate
As interpreted by Smith, Slayton,
and Ball, the restraining order did not prohibit their use of
the
newspaper’s
long-established,
non-corporate
trade
names.
Such a reading is consistent with the actual text of the order.
Nevertheless, in the contempt order, the circuit court insists
that the spirit of its restraining order further communicated an
inference that the use of the trade names was also prohibited
conduct.4
However, we agree with Smith, Slayton, and Ball’s
assertion that theirs was a plausible reading of the restraining
order. Since the text of the restraining order does not support
the
prohibition
against
the
use
of
any
names
beyond
those
identified, it cannot support a conviction for criminal contempt
stemming from the use of other names.
As the circuit court correctly observes, those to be
bound by an injunctive-type order should not be permitted to
dodge criminal contempt by hair-splitting legalism.
Therefore,
the law provides that when the precise language of an injunction
4
But see Galt House, Inc. v. Home Supply Company, Ky., 483 S.W.2d
107 (1972) (holding that the mere act of incorporation under a
particular name by one who has no customers, conducts no real or
substantial business and has never held its name out to the public in
connection with any going business is not entitled to an injunction to
have its corporate name protected against use as a trade name by
another).
8
is unclear, it is appropriate to resort to the context within
which the injunction was issued to see how much the parties to
be bound knew or reasonably should have known concerning its
object and its meaning.
A source of background is the relief
demanded in the pleadings.5
It
is
affidavit
filed
interests
were
Moreover,
it
impossible
in
the
being
was
to
divine
underlying
safeguarded
issued
from
action
by
apparently
the
this
petition
what
legitimate
restraining
without
and
notice
to
order.
Smith,
Slayton, and Ball and without any explanation as to the exigency
that
prevented
their
being
notified
ahead
of
its
issuance.
Consequently, the appellants were not privy to the discussion
with the circuit court that culminated in the issuance of a
restraining order that Triplett himself drafted.
Mindful
of
the
power
of
the
weapon
of
criminal
contempt and in light of the peculiar circumstances under which
the
ex
parte
restraining
order
issued,
we
hold
that
the
restraining order failed to satisfy the necessary element of
specificity
contempt
beyond
a
conviction.
reasonable
doubt
Accordingly,
we
to
support
reverse
court’s contempt order.
5
Wormald v. Macy, Ky., 349 S.W.2d 199, 201 (1961).
9
a
criminal
the
circuit
VANMETER, JUDGE, CONCURS.
GUIDUGLI, JUDGE, DISSENTS.
BRIEF FOR APPELLANTS:
NO BRIEF FILED FOR APPELLEES
David E. Fleenor
Lexington, Kentucky
10
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