NICHOLS (DAVID) VS. THE LEBANON ENTERPRISE NEWSPAPER
Annotate this Case
Download PDF
RENDERED: NOVEMBER 20, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002063-MR
DAVID NICHOLS
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 08-CI-00270
THE LEBANON ENTERPRISE
NEWSPAPER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR
JUDGE.
THOMPSON, JUDGE: David Nichols appeals the Marion Circuit Court’s
dismissal of his complaint for intentional infliction of emotional distress and libel.
For the reasons stated herein, we affirm.
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
As stated in Nichols v. Commonwealth, 142 S.W.3d 683 (Ky. 2004),
on August 18, 2000, a group of individuals gathered at an apartment in Lebanon,
Kentucky. Nichols then arrived but, according to some witnesses, was asked to
leave. Nichols then departed but soon appeared at the ground floor of the
apartment building taunting the group, shouting threats, and waving a knife. After
he failed to respond to requests to leave, police were contacted.
When the dispatch was issued, Steven Pittman, a friend of the people
inside the apartment, heard it over his police scanner and went to the scene. Upon
his arrival, Pittman observed Nichols standing at the bottom of the steps leading up
to the second floor apartment. After conferring with the apartment’s occupants,
Pittman approached Nichols and requested him to leave the premises. Nichols then
struck the side of Pittman’s head and began stabbing him.
Recognizing Pittman’s distress, several individuals ran to his aid,
including Joshua Wright. When Wright attempted to restrain him, Nichols stabbed
Wright in the chest. Although Pittman survived his serious injuries, Wright died
after arriving at the hospital. After a jury trial, Nichols was found guilty of wanton
murder and assault under extreme emotional disturbance. He was further
convicted of being a second-degree persistent felony offender.
Following the jury’s recommendation, the trial court sentenced
Nichols to life imprisonment for the murder conviction and ten years for the assault
conviction for an effective life sentence. On direct appeal, in Nichols, 142 S.W.3d
-2-
at 693 (Ky. 2004), the Kentucky Supreme Court affirmed Nichols’s murder
conviction but reversed his assault conviction due to improper jury instructions.
On July 26, 2008, Nichols filed a complaint against the Lebanon
Enterprise Newspaper, Stevie Daugherty, and Mary Anne Blair for intentional
infliction of emotional distress and libel. According to Nichols, the Enterprise
published an ad on August 17, 2007, that intentionally caused him to suffer. He
requested injunctive relief and $50,000 in damages. On August 18, 2008, the
Enterprise filed a motion to dismiss pursuant to CR 12.02(f), which was granted.
This appeal followed.2
Nichols first contends that the trial court abused its discretion by
prematurely dismissing his complaint pursuant to CR 12.02(f). He contends that
he did not murder Mr. Wright and should have been provided a reasonable
opportunity to conduct discovery on the issue. Additionally, Nichols claims that
the Enterprise’s January 23, 2002, publication stating that Nichols used the “Nword” at the time of his crime was libelous. According to Nichols, this article
provided a prima facie case of libel and, thus, was improperly dismissed. We
disagree.
CR 12.02(f) provides that the failure to state a claim upon which relief
can be granted is a sufficient ground for dismissal of a claim. When a motion to
dismiss is made, trial courts cannot grant the motion unless it appears the pleading
2
Although Nichols’s complaint included a claim for intentional infliction of emotional distress,
he failed to discuss the particular error in his brief and, thus, the issue is waived. Milby v. Mears,
580 S.W.2d 724, 727 (Ky.App. 1979).
-3-
party would not be entitled to relief under any set of facts which could be proved in
support of his claim. Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU,
AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). “In
determining whether a complaint should be dismissed, the issue is a matter of law.”
Grand Communities, Ltd. v. Stepner, 170 S.W.3d 411, 417 (Ky.App. 2004).
“Four elements are necessary to establish a defamation action,
whether for slander or libel, to wit: (1) defamatory language; (2) about the
plaintiff; (3) which is published; and (4) which causes injury to reputation.”
McBrearty v. Kentucky Community and Technical College System, 262 S.W.3d
205, 213 (Ky.App. 2008). A writing is defamatory when it subjects a person to
public hatred, causes a person to be shunned, or injures a person’s occupation. Id.
at 214. Notwithstanding, Kentucky adheres to the legal principle that the truth is
an absolute defense for an action of libel regardless of the intent of the publishers.
Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84, 87 (Ky. 1966).
Having reviewed the record, Nichols’s claim that the Enterprise’s
publication on August 17, 2007, was libelous was correctly rejected. In that date’s
publication, Joshua Wright’s family purchased space in the newspaper to
memorialize him. In pertinent part, the classified ad provided the following:
You were taken so suddenly,
At a very young age,
We fight all the feelings,
It doesn’t take away the rage.
The young man that killed you,
And put us in this hell.
We wait for you to come home,
-4-
Just out with your friends,
But we know what won’t happen,
David Nichols brought your life to an end.
While Nichols contends that Wright’s aggressive grabbing of him resulted in
Wright’s death due to Nichols’s right of self-defense, our Supreme Court affirmed
Nichols’s conviction for wanton murder. Indeed, Nichols does not deny that he
brought Wright’s life to an end. Accordingly, while Nichols is free to maintain his
assertion of innocence, the trial court correctly found that the Enterprise’s
publication was not libelous because its contents were true.
Regarding Nichols’s additional argument, KRS 413.140(1)(d)
provides that actions for libel must be commenced within one year after the action
accrued. The publication of allegedly libelous material commences the running of
the statute of limitations. Caslin v. General Elec. Co., 608 S.W.2d 69, 70
(Ky.App. 1980). An action commenced following the expiration of the applicable
statute of limitations constitutes a sufficient ground for its dismissal. Id. Thus,
Nichols’s citation to an article published over six years before he filed his action
for libel failed to satisfy the applicable statute of limitations. KRS 413.140(1)(d).
Although Nichols cites Hanover Shoe, Inc. v. United Shoe Machinery
Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), for the proposition
that the continuing and accumulating harm caused by a libelous publication has no
statute of limitations, we simply note that Hanover Shoe, Inc. was a federal
Sherman Act antitrust case that has no relevance to this appeal. Therefore, we find
no error in the trial court’s decision to dismiss Nichols’s six-year-old claim.
-5-
Nichols next argues that the trial court erred when it prevented him
from amending his complaint to reflect a new action arising after the filing of his
original complaint on July 26, 2008. Following the filing of his complaint, he
contends that the Enterprise published lies regarding his use of a racial slur at the
time of his crime. Therefore, he contends that he should have been permitted to
amend his complaint to reflect this new grievance. We disagree.
When Nichols filed his motion to amend his original complaint, his
complaint had already been dismissed. Thus, his motion was effectively a motion
to alter, amend, or vacate the trial court’s order dismissing his case. However, the
reconsideration of judicial orders is an extraordinary remedy which is sparingly
granted. Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005). In Gullion, 163
S.W.3d at 893, stating the criteria for granting a motion to amend, our Supreme
Court wrote the following:
First, the movant may demonstrate that the motion is
necessary to correct manifest errors of law or fact upon
which the judgment is based. Second, the motion may be
granted so that the moving party may present newly
discovered or previously unavailable evidence. Third, the
motion will be granted if necessary to prevent manifest
injustice. Serious misconduct of counsel may justify
relief under this theory. Fourth, a ... motion may be
justified by an intervening change in controlling law.
We believe that the trial court weighed the relevant factors and denied Nichols’s
motion to amend its order. The Enterprise published testimony from witnesses
who testified that Nichols yelled a racial slur at the scene of the crime. While
-6-
Nichols disagrees, this publication was not libelous and, thus, the trial court’s
decision could not be erroneous.
For the foregoing reasons, the order of the Marion Circuit Court
dismissing Nichols’s complaint is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Nichols, Pro Se
West Liberty, Kentucky
Ashley C. Pack
James L. Adams
Louisville, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.