Bolinske v. Sandstrom

1

2024 ND 163

Robert V. Bolinske, Sr., Plaintiff and Appellant v. Dale V. Sandstrom, Gail Hagerty, Defendants and Appellees and Robert R. Port, Defendant

No. 20230359

Supreme Court of North Dakota

August 14, 2024

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Michael P. Hurly, Judge. AFFIRMED.

Robert V. Bolinske, Sr., Bismarck, N.D., plaintiff and appellant submitted on brief.

Matthew A. Sagsveen, Assistant Attorney General, Bismarck N.D., for defendants and appellees; submitted on brief.

OPINION

Tufte Justice.

[¶1] Bolinske appeals from a district court judgment dismissing his remaining claim of defamation against Dale Sandstrom and Gail Hagerty ("State Defendants") and awarding attorney's fees. On appeal, Bolinske argues the court erred by granting the State Defendants' motion for judgment on the pleadings because the statute of limitations does not bar his defamation claim. He also argues the court abused its discretion by awarding attorney's fees, and challenges the reasonableness of the award of attorney's fees. We affirm the district court judgment.

I

[¶2] In Bolinske v. Sandstrom, 2022 ND 148, ¶ 33, 978 N.W.2d 72, we affirmed the district court's judgment of dismissal in part, concluding the court properly dismissed Bolinske's claims of procedural and substantive due process violations, civil conspiracy, malicious prosecution, abuse of process, intentional and negligent infliction of emotional distress, governmental bad faith, and tortious outrage. We reversed the judgment in part, concluding the court erred by dismissing the defamation claim under the statute of limitations because the statute of limitations was not specifically pled by answer. Id. We explained:

Because N.D.C.C. § 28-01-39 requires that a statute of limitations defense "can only be taken by answer" and the State Defendants have not answered the amended complaint, we conclude the district court erred by dismissing the defamation claim under the statute of limitations. Nothing we say here would foreclose the district court from resolving any post-answer motion under Rule 12 or Rule 56.

Bolinske, at ¶ 18. The Court vacated the award of attorney's fees, and remanded for further proceedings. Id. at ¶ 33. The only claim remaining involved Defendant Sandstrom.

[¶3] Following remand, Sandstrom answered Bolinske's amended complaint, which included the statute of limitations defense. Sandstrom also filed a motion for judgment on the pleadings and request for attorney's fees. The district court held a hearing on Sandstrom's motion for judgment on the pleadings.

[¶4] The district court granted Sandstrom's motion for judgment on the pleadings, finding Bolinske's defamation claim was barred by the applicable statute of limitations, and "all of [Bolinske's] claims made in this action are frivolous and reasonable attorney's fees and costs will be awarded." A declaration of attorney's fees was filed. Judgment was issued and notice of entry of judgment was served.

[¶5] Bolinske filed a motion to alter or amend the judgment, arguing the district court erred in calculating the statute of limitations, his action was not frivolous, and the court erred by awarding attorney's fees. A hearing was held on the matter. The court denied the motion. Bolinske appeals.

II

[¶6] Motions for judgment on the pleadings are governed by N.D.R.Civ.P. 12(c). We review a district court's decision granting a motion for judgment on the pleadings as follows:

We recognize that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court's inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for a short and plain statement of the claim showing that the pleader is entitled to relief. The complaint is to be construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.

Krebsbach v. Trinity Hosps., Inc., 2020 ND 24, ¶ 8, 938 N.W.2d 133 (cleaned up).

[¶7] Bolinske argues the district court erred by dismissing his complaint because the statute of limitations does not bar his defamation claim. He argues the statute of limitations was tolled "during the 45 day correction period provided in section 32-43-06" and the 90-day period of request for correction of the defamation in N.D.C.C. § 32-43-03(2). He argues the statute of limitations expired on April 2, 2019.

[¶8] The district court concluded:

The Court disagrees with Bolinske's proffered interpretation. There is no tolling language within N.D.C.C. § 32-43-03(2). Nor does the tolling language within N.D.C.C. § 32-43-03(5) reference the time period in subsection 2 at all. The Court concludes there is simply no connection or language within Chapter 32-43 which supports the argument that defamation claims have two tolling periods that impact the statute of limitation, and certainly no connect or language to support Bolinske's argument that two tolling periods exist in a consecutive fashion, for a total extension of 135 days added to the two year statute of limitation.

[¶9] The district court explained: "The parties agree this defamation claim revolves around statements made by Sandstrom on October 18, 2016, and published that same date in an online blog. The parties agree Bolinske served on Sandstrom a Demand for Retraction/Correction on January 14, 2017. They agree that Sandstrom did not respond." The court further stated that the "action commenced on February 26, 2019." Bolinske adopted these undisputed facts in his briefs on appeal.

[¶10] A defamation action must be commenced within two years after the claim for relief has accrued. N.D.C.C. § 28-01-18(1); see also N.D.C.C. § 14-02-02 (defamation is effected by libel or slander). "A cause of action accrues on a defamation claim when the publication of the false statement is made to a third party." Arthaud v. Fuglie, 2023 ND 36, ¶ 5, 987 N.W.2d 379. An action is commenced when the summons is served on the defendant. N.D.C.C. § 28-01-38; N.D.R.Civ.P. 3.

[¶11] Section 32-43-03, N.D.C.C., provides:

1. A person may maintain an action for defamation only if the person has made a timely and adequate request for correction or clarification from the defendant or the defendant has made a correction or clarification.

2. A request for correction or clarification is timely if made within the period of limitation for commencement of an action for defamation. However, a person who, within ninety days after knowledge of the publication, fails to make a good-faith attempt to request a correction or clarification may recover only provable economic loss. . . . .

5. The period of limitation for commencement of a defamation action is tolled during the period allowed in section 32-43-06 for responding to a request for correction or clarification.

[¶12] Under N.D.C.C. § 32-43-06(1), "[a] correction or clarification is timely if it is published before, or within forty-five days after, receipt of a request for correction or clarification, unless the period is extended under section 32-43-04." Section 32-43-04, N.D.C.C., provides:

A person who has been requested to make a correction or clarification may ask the requester to disclose reasonably available information material to the falsity of the allegedly defamatory statement. If a correction or clarification is not made, a person who unreasonably fails to disclose the information after a request to do so may recover only provable economic loss. A correction or clarification is timely if published within twenty-five days after receipt of information disclosed under this section or forty-five days after receipt of a request for correction or clarification, whichever is later.

[¶13] Bolinske provides no support for his interpretation of the statute. Bolinske's argument that the 90-day period described in section 32-43-03(2), which limits the time to request correction without limiting damages to economic loss, is also tolled is not supported by a plain reading of the statute. "The period of limitation for commencement of a defamation action is tolled during the period allowed in section 32-43-06 for responding to a request for correction or clarification." N.D.C.C. § 32-43-03(5). Section 32-43-06 only refers to a 45-day period. The statutory reference to 90 days in N.D.C.C. § 32-43-03(2) does not provide an additional 90-day tolling period in addition to the 45-day period in N.D.C.C. § 32-43-06.

[¶14] The relevant facts are undisputed. Including a 45-day tolling period, 2 years and 45 days from October 18, 2016, is December 2, 2018. Bolinske commenced this action on February 26, 2019. The defamation claim is barred by the statute of limitations.

III

[¶15] Bolinske argues the district court erred in concluding his claims are frivolous and awarding attorney's fees. He argues his claims are not frivolous because the statute of limitations does not bar his defamation claim. Bolinske also argues the award of attorney's fees was unreasonable.

[¶16] The district court awarded attorney's fees under N.D.C.C § 28-26-01(2), which provides:

In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney's fees to the prevailing party. Such costs must be awarded regardless of the good faith of the attorney or party making the claim for

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