FRANKLIN JACK BURR, II v. NEWARK MORNING LEDGER CO

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1487-16T4

FRANKLIN JACK BURR, II,

              Plaintiff-Appellant,

v.

NEWARK MORNING LEDGER CO.,
RICHARD VEZZA, and ADVANCE
PUBLICATIONS,

          Defendants-Respondents.
___________________________________________

              Submitted March 19, 2018 – Decided April 26, 2018

              Before Judges Messano, Accurso, and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No.
              L-2939-16.

              Evelyn F. Garcia, attorney for appellant.

              Robinson Miller LLC, attorneys for respondents
              (Keith J. Miller and Michael J. Gesualdo, on
              the brief).

PER CURIAM

        Plaintiff     Franklin    Jack    Burr   II   appeals     from   the       Law

Division's October 28, 2016 order dismissing his amended complaint

against defendants Newark Morning Ledger Co., Richard Vezza, and
Advance   Publications,   with    prejudice.         The   amended   complaint

contained allegations of libel and trade libel resulting from the

publication of an article (the article) on defendants' website,

NJ.com, on May 13, 2013, which coincided with the issuance of our

unpublished opinion affirming plaintiff's conviction for third-

degree endangering the welfare of a child.            State v. Burr, No. A-

2671-10 (App. Div. May 13, 2013) (slip op. at 3-10).1                      That

conviction resulted from the retrial following our reversal of

defendant's   earlier   2004     conviction    for    second-degree     sexual

assault, 
N.J.S.A. 2C:14-2(b), and third-degree endangering the

welfare of a child, 
N.J.S.A. 2C:24-4(a).         State v. Burr, 
392 N.J.

Super. 538, 542-55 (App. Div. 2007), aff'd as mod., 
195 N.J. 119

(2008).   Although the article included specific references to the

trial testimony we described in our opinion, plaintiff alleged it

also contained false statements.

     Defendants successfully moved to dismiss plaintiff's initial

complaint without prejudice, permitting plaintiff to plead with

greater specificity his causes of action. See Hoffman v. Hampshire



1
  Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 
429 N.J.
Super. 121, 126 n.4 (App. Div. 2012), aff'd, 
220 N.J. 544 (2015).

                                     2                                 A-1487-16T4
Labs, Inc., 
405 N.J. Super. 105, 116 (App. Div. 2009).                         Plaintiff

filed a nearly identical amended complaint, which defendants again

moved to dismiss.      Although plaintiff has not provided us with the

moving papers filed by either side, we have the benefit of Judge

Jessica R. Mayer's two comprehensive written decisions, from which

we glean that plaintiff claimed to have first discovered the

article in the winter of 2015 or 2016.                 He first filed suit May

16, 2016.     Judge Mayer dismissed the libel claim as time-barred

pursuant to 
N.J.S.A. 2A:14-3; she dismissed the trade libel claim

because plaintiff failed to plead particularized special damages.

     Plaintiff asserts it was error to dismiss his libel claim as

time barred, arguing the discovery rule, equitable tolling, and

the doctrine of substantial compliance should apply.                           Plaintiff

further argues the judge erred in dismissing his trade libel claim

because   the   complaint      alleged       damages    "in    an    amount       to    be

established through proof at trial."                He contends the dismissal

denied him "due process" because proof of damages was "supposed

to be developed during the discovery phase."                  These arguments are

unavailing,     and    we     affirm   substantially           for       the    reasons

articulated by Judge Mayer.         We add the following comments.

     "Whether    a    cause    of   action     is   barred     by    a    statute       of

limitations is a question of law . . . reviewed de novo."                         Catena

v. Raytheon Co., 
447 N.J. Super. 43, 52 (App. Div. 2016) (citing

                                         3                                       A-1487-16T4
Estate of Hainthaler v. Zurich Commercial Ins., 
387 N.J. Super.
 318, 325 (App. Div. 2006).         "[L]ibel is defamation by written or

printed words." W.J.A. v. D.A., 
210 N.J. 229, 238 (2012) (citation

omitted).     
N.J.S.A. 2A:14-3 provides "[e]very action at law for

libel or slander shall be commenced within [one] year next after

the publication of the alleged libel or slander."

     Plaintiff    does   not   dispute      that   he   failed    to    file   his

complaint within one year of the publication of the article on

defendant's website.      He contends, however, commencement of the

limitations    period    should    be   tolled     because   of   his    belated

discovery of the article.         The Court addressed application of the

discovery rule to libel suits in Lawrence v. Bauer Publishing &

Printing LTD, 
78 N.J. 371 (1979), where the Court noted:

            The statute of limitations applicable to the
            present suit, however, does not measure the
            limitations period in terms of the 'accrual'
            of a cause of action. Instead, it provides
            that an action must be brought within one year
            of 'the publication' of the alleged libel.
            The Legislature has therefore fixed a precise
            date on which the limitations period begins
            to run. Once the date of the publication is
            determined, there is no need for further
            judicial intervention.

            [Id. at 374-75.]

Plaintiff argues Lawrence did not create "a bright line rule"

precluding the application of equitable doctrines extending the



                                        4                                 A-1487-16T4
time   to   file    libel   claims   beyond   the   one-year   statute    of

limitations.       Recent unambiguous precedent dictates otherwise.

       In NuWave Investment Corporation v. Hyman Beck & Company, 
432 N.J. Super. 539, 566 (App. Div. 2013) (citations omitted), adhering

to Lawrence, we held "the Legislature has fixed a precise date on

which the limitations period begins to run[] in a defamation

action, which must be brought within one year of 'the publication'

of the alleged libel[,] . . . [h]ence, the discovery rule is

inapplicable to libel actions."           The Court affirmed our holding

and added "[N.J.S.A. 2A:14-3's] clear and unqualified language

requires all libel claims to be made within one year of the date

of the publication."        Nuwave Inv. Corp. v. Hyman Beck & Co., 
221 N.J. 495, 500 (2015).       Having failed to commence his libel action

within one year of the article's publication, Judge Mayer properly

dismissed plaintiff's complaint with prejudice.

       Turning to the complaint's trade libel count, "[t]he standard

a trial court must apply when considering a Rule 4:6-2(e) motion

to dismiss a complaint for failure to state a claim upon which

relief can be granted is 'whether a cause of action is "suggested"

by the facts.'"      Teamsters Local 97 v. State, 
434 N.J. Super. 393,

412 (App. Div. 2014) (quoting Printing Mart-Morristown v. Sharp

Elecs. Corp., 
116 N.J. 739, 746 (1989)).            Dismissal is required

"where the pleading does not establish a colorable claim and

                                      5                            A-1487-16T4
discovery would not develop one." State v. Cherry Hill Mitsubishi,

Inc., 
439 N.J. Super. 462, 467 (App. Div. 2015) (citation omitted).

We review the trial court's decision de novo.                       Flinn v. Amboy

Nat'l Bank, 
436 N.J. Super. 274, 287 (App. Div. 2014).

      "Trade libel identifies the tort addressing aspersions cast

upon one's business operation."             Patel v. Soriano, 
369 N.J. Super.
 192, 246 (App. Div. 2004).          "A plaintiff alleging trade libel must

prove    publication    of    a    matter       derogatory   to    the   plaintiff's

property or business, of a kind designed to prevent others from

dealing with [it]."      Id. 246.      Moreover, "[t]he communication must

. . . play a material part in inducing others not to deal with

plaintiff."       Id. at 247.     Finally, a plaintiff must allege special

damages, which "go[] to the cause of action itself."                     Id. at 248.

"General, implied, or presumed damages of the kind available in

personal defamation actions do not satisfy the requirement of

special damages needed for disparagement causes of action."                       Id.

at 249.     "In New Jersey, 'a claim for trade libel is subject to

the     general    six-year       statute       of   limitations    applicable      to

malicious interference claims.'"                 Fairfax Fin. Holdings Ltd. v.

S.A.C. Capital Mgmt., L.L.C., 
450 N.J. Super. 1, 62 (App. Div.

2017) (quoting Patel, 
369 N.J. Super. at 247).

      After his first complaint was dismissed without prejudice and

Judge Mayer accorded plaintiff an opportunity to plead with greater

                                            6                                A-1487-16T4
specificity, plaintiff's amended compliant only alleged the false

statements in the article inhibited "his ability to practice his

profession . . . of private music instruction" because "prospective

clients shunned his business."        The complaint was devoid of any

reference to particularized damages and failed to identify the

prospective clients allegedly lost as a direct result of the

article's publication.        Plaintiff argues his damage claim was

"supposed to be developed during the discovery phase."            However,

only   plaintiff   was   in   a   position   to   supply   the   necessary

particularized information regarding damages caused by defendant's

alleged trade libel.     Judge Mayer properly dismissed this count

of his amended complaint with prejudice.

       Affirmed.




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