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MacKay v. CSK Pub. Co.

May 20, 1997

KEVIN MACKAY AND CORVETTE REPAIR, INC., PLAINTIFFS-APPELLANTS,
v.
CSK PUBLISHING CO., INC. D/B/A VETTE MAGAZINE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication May 22, 1997.

Before Judges Michels, Kleiner and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by

KLEINER, J.A.D.

In this defamation case, defendant published an article that alleged that plaintiff participated in some fraudulent business dealings in his repair and restoration of a Corvette. The trial Judge found that plaintiff was a limited purpose public figure in the Corvette restoration community and for the purposes of the fraudulent restoration debate. After a five-day trial, a jury found that the article was about plaintiff, that the article was false, but that the article was published without actual malice. Thus, plaintiff had no cause for action.

On appeal, plaintiff raises the following points of error:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PREVENTING PLAINTIFF HIS CONSTITUTIONAL RIGHT TO SIT AT COUNSEL'S TABLE AND ASSIST COUNSEL IN PROSECUTION OF PLAINTIFF'S CLAIMS.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RULING PLAINTIFF TO BE A LIMITED USE PUBLIC FIGURE.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO FIND THE SUBJECT ARTICLE DEFAMATORY AS A MATTER OF LAW.

POINT IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO STRIKE DEFENDANT'S DEFENSE OF TRUTH FROM THE CASE.

POINT V

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING DEFENDANT TO INTRODUCE, FOR IMPEACHMENT PURPOSES, EVIDENCE OF ARRESTS OF PLAINTIFF KEVIN MACKAY AND EVIDENCE OF UNRELATED CIVIL LITIGATIONS INVOLVING PLAINTIFF KEVIN MACKAY.

We find that the trial Judge did not err in holding that plaintiff was a limited purpose public figure. As to plaintiff's other claims, after a thorough review of the record, in light of applicable law, we find that they are clearly without merit. R. 2:11-3(e)(1)(E).

I

Plaintiffs, Kevin MacKay and Corvette Repair, Inc., filed a complaint against defendant, CSK Publishing, Inc. d/b/a Vette Magazine on February 1, 1993, alleging defamation. Defendant filed an answer on June 2, 1993. *fn1

A jury trial was held between August 5, 1996, and August 13, 1996. The jury determined that plaintiff was not entitled to damages, and a judgment of no cause for action was entered on August 13, 1996.

A.

THE ARTICLE

The following article appeared in the December 1992 issue of Vette Magazine:

Factory Fresh

Avoid being a restoration victim

Richard Prince

In a recent COLLECTING column, Jerry Heasley discussed an ongoing attempt by some unscrupulous characters to sell a bogus 1967 L89 roadster. Mr. Heasley concluded with the assertion that with some intelligent research, a potential buyer is able to protect himself from fraud. Both Mr. Heasley and VETTE are to be commended for bringing this situation to a public forum.

I believe, however, that research by itself will not always provide the needed protection. and that the seriousness of the subject matter entitles it to further Discussion.

I have a friend named Bob Graff (that, by the way is his real name; we are compelled to change only the names of the guilty!). Bob is fun, witty, charming and an all-around excellent guy. Two years ago, Bob bought a 1959 Corvette. He had no knowledge of what parts of his car were original or "correct." To Bob, the car looked unmolested, and was in good operating condition. But it needed some work and, as Bob's children (he is a wonderfully generous father!) would on occasion be driving the car, Bob was particularly interested in making sure that it was entirely safe and reliable.

To that end, he took reasonable and intelligent steps to find a qualified technician to repair and service his Corvette. He asked around among some car people he knew and was told to go to a particular restorer who I will call Biff. (Biff's real name is not Biff. The name is changed because my intention here is not to expose the criminal behavior of a specific individual. Rather, I am relating a true story in order to illustrate why I believe that certain systemic changes should be implemented.) Biff presented his credentials and Bob was thoroughly impressed. Biff is a Bloomington Gold Judge, an NCRS Judge and has been written up in numerous magazine articles touting him as the "restorer of the decade."

Biff told Bob that, among other things, the engine was a bad restamp and the transmission was incorrect, but with his connections and talent he could procure for Bob a factory-original block, all correct engine compartment components and a correct transmission.

Approximately $15,000 later, Biff provided Bob with an incorrectly restamped engine (the stamping reads "F0414CT" -- but an original 1959 Corvette engine should read "F414CT") and an incorrect transmission (even though the main case is dated 1963, the side cover is dated 1966 and the tail is dated 1977, Biff argued that it is "correct." because it is a T-10 and 1959 Corvettes came with T-10s).

The real tragic aspect of Bob Graff's story, however, is not the bogus engine, the incorrect transmission, the frame damage (Biff sold Bob a "correct" fuel pump, and then heated up and hammered in the chassis to provide adequate clearance for it) or the host of other incorrect parts that Biff sold to Bob. It is not even the money wasted. The real tragedy, dear readers, is the fact that Bob Graff's 1959 Corvette actually had its original engine in it when it was delivered into Biff's hands.

After the damage was already done, Bob accidentally discovered a forgotten appraisal that was done for the '59 when he first purchased it. The appraiser, in addition to noting that the car was extremely original, recorded the car's engine numbers in the appraisal report. These recorded numbers correspond to the car's original engine.

In addition to the pre-Biff appraisal, further confirmation that the car had its factory engine came when Bob Graff located every previous owner of the car, including the very first purchaser. Each of the previous owners clearly remembered that the car had its original engine in it when they bought it and when they sold it.

Unfortunately, Bob Graff's experience is not unusual. Bob asked the right questions among collectible car people he knew. He was directed to Biff, a well-known Corvette mechanic. Bob asked Biff the logical and intelligent questions. Biff presented his credentials and Bob was convinced that he had found the right man for the job. Bob did some research and made the right moves, but unlike the prospective purchaser of the aforementioned bogus L89, he wound up victimized.

What, then, is the solution? Well, in the end, no matter what any or all of us do, there will always be victims. This is an inevitable result of the sizable sums of money involved in the collector car hobby. As ...


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