LAWRENCE E. BOWLING v. THOMAS J. SMITH, INDIVIDUALLY AND LEXINGTON HERALD-LEADER; AND DARLA CARTER, INDIVIDUALLY AND AS REPORTER, LEXINGTON-HERALD LEADER
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RENDERED: SEPTEMBER 1, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001538-MR
LAWRENCE E. BOWLING
v.
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM GRAHAM, SPECIAL JUDGE
ACTION NO. 94-CI-00792
THOMAS J. SMITH, INDIVIDUALLY AND
AS COMMONWEALTH’S ATTORNEY;
LEXINGTON HERALD-LEADER; AND
DARLA CARTER, INDIVIDUALLY AND
AS REPORTER, LEXINGTON-HERALD LEADER
APPELLEES
OPINION
AFFIRMING APPEAL NO. 1999-CA-001538-MR
AND ORDER STRIKING PORTION OF APPELLANT’S BRIEF
** ** ** ** **
BEFORE:
BARBER, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Lawrence E. Bowling (Bowling) appeals pro se
from several orders of the Madison Circuit Court entered in
conjunction with his law suit against Thomas J. Smith (Smith),
individually and as Commonwealth’s Attorney,
Darla Carter
(Carter), and The Lexington Herald-Leader (the LHL).
We affirm.
On January 25, 1994, Zhuo Wang (Wang) shot and killed
his wife, Lin Cong (Cong), in her dormitory room at Berea College
(the College) in Berea, Kentucky.
Bowling, a retired Berea
college professor, took an interest in Wang’s case and took it
upon himself to aid Wang in his defense.
According to Bowling, Wang wrote him several letters
from jail detailing the events leading to Cong’s death and
implying
that the College’s allegedly immoral and permissive
attitudes towards sex were contributing factors to Cong’s murder.
Bowling allegedly showed these letters to several attorneys who
indicated that Wang should not accept a plea bargain for 20
years’ imprisonment in exchange for a guilty plea.
Bowling
believed that a conspiracy existed between the College, Assistant
Public Defender Lynda Campbell (Campbell), and Smith to persuade
Wang to accept the plea bargain in exchange for a promise from
Cong’s parents not to demand a trial or sue the College.
also shared the letters with Campbell.
Bowling
Despite Bowling’s
pressure to do otherwise, Wang accepted the plea bargain on March
31, 1994.
In April 1994, Wang filed a pro se petition in the
Madison Circuit Court seeking to withdraw the guilty plea on the
ground that Campbell pressured him into accepting the plea
bargain.
The petition was prepared and filed by Bowling.
On
April 17, 1994, the LHL ran a story written by Carter captioned
“Berea murder suspect wants to back out of agreement.”
The
article stated that Smith “questions whether the petition is a
genuine reflection of Zhou Wang’s wishes,” and quoted Smith as
saying that the petition:
is very suspect to me . . . . That’s not Zhuo
Wang’s language. That’s not the way he
speaks. It wasn’t even prepared by him. . .
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. I don’t even know if it’s a genuine
signature.
The article noted that Bowling had prepared and filed the
petition, and stated that “Bowling insists that he merely did the
footwork for Wang, because Wang is in the Madison County
Detention Center.”
Bowling alleges that Smith knew the signature
on the petition was Wang’s, but made libelous statements accusing
him of forging Wang’s signature on the petition and labeling the
petition as “suspect.”
On April 18, 1994, Bowling filed an affidavit in Wang’s
criminal case in which he contended that Wang was forced into
accepting the plea bargain.
In the affidavit, Bowling outlined
what he believed to be an immoral atmosphere existing at the
College and alleged that “Wang’s best interest was going to be
sacrificed as part of a “cover-up” in order to prevent the
publication of facts which would embarrass [the College’s
president and administrators].”
Bowling also alleged in the
affidavit that he had complained to the College’s president
several years earlier about “widespread indecent and immoral
conduct commonly being carried out by Berea College students . .
. both on and off campus[.]”
Bowling also alleged that (1) Wang
and Cong were aware of and greatly influenced by the immoral
atmosphere existing at the College; (2) Wang and Cong were only
mildly punished for “shacking up” in Wang’s dormitory room; (3)
if the College would have discharged Wang and Cong when they were
caught living together in the dormitory room Cong would still be
alive and Wang would not be in prison; (4) College students,
faculty and administrators knew that Cong was dating another man
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while Wang was attending college elsewhere but no one did
anything about it; and (5) College officials participated in the
plea bargain proceedings “in order to pacify Lyn [sic] Cong’s
parents and to forestall bad publicity for Berea College.”
Bowling filed a second affidavit on April 20, 1994, detailing a
conversation he had with Cong’s alleged boyfriend concerning
Cong’s plot to force Wang to divorce her.
Wang was sentenced by Madison Circuit Judge William T.
Jennings (Judge Jennings) on April 21, 1994.
At the sentencing
hearing, Judge Jennings denied Wang’s petition and sentenced him
to twenty years’ imprisonment.
According to Bowling, Judge
Jennings would not allow him to participate in the hearing,
referred to him as a “lunatic fringe,” and made other libelous
remarks about him in the courtroom.
On April 28, 1994, The Berea Citizen published a column
written by Leetta Jackson (Jackson) entitled “Berea College
didn’t shoot Lin Cong, so don’t blame it.”
In the article,
Jackson stated that Bowling had filed several petitions “blaming
the college for Cong’s death.”
Jackson further stated that “to
hold Berea College accountable for the action of students
enrolled there when they are not on campus is ridiculous.”
Following publication of Jackson’s column, The Berea
Citizen published a guest commentary written by Bowling entitled
“Who Killed Lin Cong?” on May 5, 1994.
In this article, Bowling
set forth the examples of the allegedly reprehensible behavior of
the College’s students which he complained about in his letter to
the College’s president and detailed Wang’s side of the incidents
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leading to his wife’s death.
Bowling once again raised the
question of whether the College was responsible for Cong’s death
because it failed to take responsibility for the allegedly
immoral conduct of its students.
On May 12, 1994, The Pinnacle, a student-run newspaper
of the College, ran a “farewell” editorial written by Melissa
Ferguson (Ferguson), the student editor of the paper.
In the
editorial, Ferguson expressed her observations regarding the
importance of having an open mind, and further stated:
That’s why it bothers me so much to see Berea
students attacked by close-minded people who
see only what they want to see and condemn
everything else. As a Berea student, I
consider the commentary recently published in
the Berea Citizen to be a direct and
unsubstantiated attack on the integrity of
Berea college students. The author’s
premise, as best one can tell from his
scattered argument, is that Berea College and
its community is responsible for a moral
downfall among its students, resulting in the
death of Lin Cong . . . . I find this
insidious accusation to be thoroughly
offensive and of uncalibrated bad taste. . .
. I would hope that out of common decency the
author of the commentary and others like him
might find some other way to prove their
point about Berea[.]
. . . .
I think rather that it is a prevalent
atmosphere of close-mindedness that is
detrimental to the life of this college, and
to humankind.1
Apparently The Berea Citizen received and published
several letters to the editor in response to Bowling’s
commentary.
On May 24, 1994, Travis Flora (Flora), editor of The
1
Interestingly, opposite Ferguson’s editorial was a letter
to the editor expressing an opposing viewpoint.
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Berea Citizen, published a “letter from the editor” addressing
Bowling’s commentary.
In that letter, Flora defended the paper’s
publication of Bowling’s commentary and stated:
The assumption that Berea College can monitor
the actions of its students 100 percent of
the time is ludicrous.
. . . .
And though I disagree with Mr. Bowling, it
would be hypocritical of me as a professional
journalist to edit Mr. Bowling’s thoughts for
anything more than the libelous/slanderous
statements he included in his original draft
of the commentary (and there were several
changes made before publication).
. . . .
Isn’t it nice to know there’s at least one
newspaper left that will let you speak your
mind, even if what you have to say is
unpopular, politically incorrect, or makes
you sound like an idiot? (Not to mention that
what you’ve got to say is against one of the
oldest and most respected colleges in the
country.)2
Bowling responded to Flora’s editorial with another
commentary entitled “Corn Pone Opinions.”
This was apparently
returned to Bowling by Mike French (French), the publisher of The
Berea Citizen, with a note stating “We will no longer publish
articles or opinions on this subject.
This column is refused.”
On November 4, 1994, Bowling filed suit against the
College as publisher/sponsor of The Pinnacle, Ferguson
individually and as editor of The Pinnacle, Campbell as Assistant
Public Defender, Smith individually and as Commonwealth Attorney,
Judge Jennings individually and as Circuit Judge of Madison
2
Bowling denies that the commentary contained slanderous
statements, or that it was edited prior to publication.
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County, French individually and as publisher of The Berea
Citizen, and several other individuals.
The bulk of the causes
of action raised by Bowling in his complaint were charges of
libel and denial of his constitutional right of free speech.
Although the article referenced Carter’s article in the LHL,
neither Carter nor the LHL were named as defendants in the
complaint.
In an order entered December 20, 1995, the trial court
entered an order dismissing most of Bowling’s complaint with the
exception of Count 5, which charged Ferguson with libel stemming
from her May 1994 editorial and Count 8, which charged French
with libel stemming from Flora’s “letter from the editor.”
In so
holding, the trial court was careful to note that it was not
passing judgment as to the merits of Bowling’s claims, but merely
recognizing that dismissal of all of Bowling’s complaint at this
point would be premature.
On April 3, 1996, Bowling filed a motion seeking leave
of the trial court to file a second amended complaint.
The
purpose of this complaint was to add causes of action for
slander, libel, and false light defamation against Smith, Carter,
and the LHL.
Following the filing of Bowling’s motion to amend
his complaint, a flurry of motions seeking summary judgment and
judgment on the pleadings were filed.
In an order entered July 25, 1997, the trial court
dismissed the causes of action for libel and false light
defamation against Ferguson and French.
In regard to Bowling’s
claims against Smith, Carter, and the LHL, the trial court found
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that Bowling had stated a cause of action in his second amended
complaint and granted the motion to amend.
The trial court
refused to grant the motions for summary judgment and/or judgment
on the pleadings, finding that a question of law existed as to
whether the statements were made and published with actual
malice.
The trial court noted in a footnote that:
The media defendants claim that the
allegations against them do not “relate back”
to the time of the original complaint and are
thus time barred . . . . For purposes of this
Order, we feel it better to address the
actual merits of the claim in terms of the
motions for final judgment.
On August 19, 1997, Carter and the LHL filed a motion
for summary judgment, arguing that:
This is a libel action over an April 1994
newspaper article. The original complaint
was filed in November 1994 but did not name
the Lexington Herald-Leader or Darla Carter
(hereinafter collectively the “HeraldLeader”). Plaintiff’s amended Complaint,
which named the Herald-Leader as a defendant,
was not filed until April 1996, long after
the one-year . . . statute of limitations had
expired. The only way the amended complaint
will survive is if it relates back under
Civil Rule 15.03.
Carter and the LHL argued that the doctrine of relation back
under CR 15.03 did not apply because (1) Bowling was never
mistaken as to the identity of Carter or the LHL at the time the
original complaint was filed because he mentioned both in the
body of the complaint; and (2) neither Carter nor the LHL had
reason to believe that Bowling failed to sue them due to a
mistake in identity.
The trial court agreed that Bowling’s
amended complaint could not be saved by application of CR 15.03
and granted summary judgment in favor of the Appellees in an
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order entered January 13, 1998.
Bowling’s motion to amend was
denied inasmuch as it sought reversal of entry of summary
judgment by order entered August 2, 1998.
On August 31, 1998, Bowling filed a motion asking the
trial court to make the January 1998 order final and appealable.
In the same motion, Bowling once again asked the trial court to
reconsider its entry of summary judgment.
In an order entered
February 26, 1999, the trial court denied Bowling’s motion to
reconsider but did amend the August 1998 order for purposes of
making it final and appealable.
Instead of appealing from the August 1998 and February
1999 orders, Bowling did nothing until May 5, 1999, when he filed
a motion for CR 60.02 relief.
by order entered May 19, 1999.
The trial court denied this motion
Bowling’s subsequent motion to
vacate was denied by order entered June 21, 1999, and this appeal
followed.
Bowling contends that the trial court erred in finding
that the doctrine of relation back does not apply to his amended
complaint.
Our review of the record shows that the trial court’s
August 1998 order granting summary judgment in favor of the
Appellees was made final by the trial court’s February 1999
order.
Under CR 75.02(1)(a), Bowling had thirty days from the
entry of the February 1999 order from which to either perfect an
appeal to this Court or file a motion for other post-judgment
relief which would have terminated the running of the time for
appeal pursuant to CR 73.02(1)(e).
However, Bowling did nothing
until May 5, 1999, when he filed his motion for CR 60.02 relief.
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Because Bowling failed to perfect a timely appeal from the order
granting summary judgment to the Appellees, we will not address
this issue on appeal and will grant the Appellees’ request to
strike this argument from Bowling’s brief on appeal.
Bowling also contends that the trial court erred in
denying his motion for CR 60.02 relief.
In that motion, Bowling
cited CR 60.02 and argued that “[t]he judgments entered on August
20, 1998, and the order entered on February 26, 1999, were
mistakenly based on the policy of
“strict construction,” as
opposed to the doctrine of substantial compliance as set forth in
Ready v. Jamison, Ky., 705 S.W.2d 479 (1986) and Johnson v.
Smith, Ky., 885 S.W.2d 944 (1994).
Under CR 60.02, a trial court may grant relief from its
final judgment if the moving party shows:
(a) mistake, inadvertence, surprise or
excusable neglect; (b) newly discovered
evidence which by due diligence could not
have been discovered in time to move for a
new trial under Rule 59.02; (c) perjury or
falsified evidence; (d) fraud affecting the
proceedings, other than perjury or falsified
evidence; (e) the judgment is void, or has
been satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (f) any
other reason of an extraordinary nature
justifying relief.
We will not reverse a trial court’s denial of CR 60.02 relief
unless we find that the trial court abused its discretion in
denying relief.
Bethlehem Minerals Company v. Church and Mullins
Corporation, Ky., 887 S.W.2d 327, 329 (1994).
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Having reviewed
the record on appeal and the parties’ arguments herein, we are
not persuaded that an abuse of discretion occurred in this case.
The issues Bowling raises as grounds for CR 60.02
relief are clearly issues of law as opposed to fact.
A review of
the language of CR 60.02 shows that mistake of law is not one of
the grounds for which relief is available.
Furthermore, a review
of case law in this area shows that CR 60.02 relief is not proper
for a mistake of law.
In Wimsatt v. Haydon Oil Company, Inc.,
Ky., 414 S.W.2d 908 (1967), the appellant sought to have a final
judgment dismissing his claim for personal injury overturned
pursuant to Cr 60.02 on the ground that his cause of action was
not time barred.
In holding that such relief could not be
granted pursuant to CR 60.02, the Kentucky Supreme Court stated:
We think it is plain that the appellant may
not prevail in the appeal relating to the
denial of his motion for relief in the
original action under CR 60.02. If the trial
court erred in dismissing the amended
complaint, that error could have been
challenged by a regularly prosecuted appeal.
CR 60.02 is not a supplemental appeal
procedure. The rule enumerates the instances
wherein relief under it may be obtained.
None of the instances listed is applicable to
the situation at bar. The error, if any, was
an error of law by the trial court, and
subject to review upon appeal in due course;
in such a circumstance CR 60.02 may not be
invoked as an alternative method for review.
Wimsatt, 414 S.W. 2d at 910.
In so ruling, the Court was
following earlier precedent set in James v. Hillerich & Bradsby
Company, Inc., Ky., 299 S.W.2d 92 (1957), where it succinctly
stated that “[a]lthough CR 60.02 provides authority for reopening
or vacating a judgment after 10 days, this Rule is not available
for correction of an error or mistake of law by the court.”
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James, 299 S.W.2d at 93.
See also City of Covington v.
Sanitation District No. 1 of Campbell and Kenton Counties, Ky.,
459 S.W.2d 85 (1970)(holding that error of law is not grounds for
reopening judgment under CR 60.02).
Thus, because Bowling sought
relief from the trial court’s judgment pursuant to CR 60.02
solely on the ground that the trial court committed errors of
law, the trial court did not abuse its discretion in refusing to
grant CR 60.02 relief.
Having considered the parties’ arguments on appeal,
pages 11 to 15 of Bowling’s brief on appeal pertaining to the
doctrine of relation back are stricken and the orders of the
Madison Circuit Court are affirmed.
ALL CONCUR.
/s/ Daniel T. Guidugli
_______________________
JUDGE, COURT OF APPEALS
ENTERED: September 1, 2000
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEES:
Charles R. Baesler, Jr.
Robert F. Houlihan, Jr.
Lexington, KY
Lawrence E. Bowling
Berea, KY
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