Varriano v. Bang

• Decision Date: 09 January 1996
• Docket Number: 950150,Nos. 950149,s. 950149
• Citation: 541 N.W.2d 707
• Parties: Richard D. VARRIANO, Plaintiff and Appellee, v. Dale BANG, Defendant, and Len Martin, Defendant and Appellant. Richard D. VARRIANO, Plaintiff and Appellee, v. Dale BANG, Defendant and Appellant, and Len Martin, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 707

541 N.W.2d 707

Richard D. VARRIANO, Plaintiff and Appellee, v. Dale BANG, Defendant, and Len Martin, Defendant and Appellant.

Richard D. VARRIANO, Plaintiff and Appellee, v. Dale BANG, Defendant and Appellant, and Len Martin, Defendant.

Civ. Nos. 950149, 950150.

Supreme Court of North Dakota.

Jan. 9, 1996.

Rehearing Denied Jan. 30, 1996.

Mertz Law Office, Fargo, for plaintiff and appellee; argued by Monty G. Mertz.

Dale Bang, pro se, Killdeer, submitted briefs, and B. Timothy Durick (argued), Pearce & Durick, Bismarck, for defendant and appellant Dale Bang.

Len Martin, pro se, Detroit Lakes, MN, for defendant and appellant. Submitted on briefs.

MESCHKE, Justice.

Dale Bang and Leonard Martin appeal from judgments on a jury verdict against them awarding Richard Varriano $300,000 in damages for defamation. We affirm.

Bang hired Varriano to represent him in a divorce from Bang's wife, Viola. She contested the validity of a prenuptial agreement prepared by attorney Marshall Bergerud. During the divorce trial, Bang settled with Viola for $100,000, upon Varriano's recommendation.

Near the end of April 1993, Bang sent Varriano a copy of a booklet entitled "When Dishonesty Pays," by "Len Martin," containing this excerpt:

Why did Varriano settle for $100,000 when he had Viola and [her attorney Ronald] Reichert on the ropes? Did he tell Reichert that [Bang] didn't protest when told that he'd be lucky to get off with paying Viola $80,000? And did Varriano tell Reichert that since [Bang] hadn't protested the $80,000 figure, he'd probably go along with a $100,000 settlement? That would be an additional $20,000. Was it agreed that some of it would go to Varriano? Since Varriano had agreed to "take over all of [Bang's] problems" for the low fee of $7,500, the extra money would then make his work worthwhile.

I can think of no other reason for Varriano to drop the ball at that point. After all, the hearing had gone well during the morning session. And it was planned to put [Bang's] accountant on the stand with his stack of documents that would prove Viola had told many lies in her deposition.

Varriano says this excerpt accused him of accepting a bribe for recommending the settlement to Bang.

On September 21, 1993, Varriano sued Bang and Martin for defamation, alleging that they, "working together and in concert, wrote, printed, and caused [the booklet] to be published...." Varriano's complaint alleged that the booklet was widely distributed in North Dakota, "greatly injured" him, and "prejudiced ... his professional reputation." Varriano venued and filed the defamation action in Cass County, and he served process by certified mail on Bang at his Dunn County residence of Killdeer, North Dakota. On September 22, 1993, Bang signed the return receipt.

Neither Bang nor Martin retained counsel to assist them in defending the defamation action. On October 8, 1993, Bang misfiled Varriano's Cass County pleadings in Dunn County, and then moved the Dunn County court to dismiss the action, alleging insufficient service of process, improper venue, and failure to state a claim for relief. ¹ The Dunn County trial court realized that Varriano had begun the action against Bang in Cass County, that Bang had been properly served on September 22, 1993, and that Bang had failed to make and file a timely demand for a change of venue. The Dunn County court dismissed those proceedings on November 24, 1993, and returned Bang's pleadings to him. ²

On December 17, 1993, Varriano filed an affidavit stating that Martin's last known address was Valley City, North Dakota, and that Martin could not be found for personal service of process. In January 1994, Varriano served Martin by publication.

When Bang and Martin failed to answer the Cass County complaint, Varriano moved for a default judgment on September 13, 1994. On September 19, Bang and Martin moved to dismiss the action on various grounds, including lack of personal jurisdiction, improper venue, and a failure to state a claim for relief. After a hearing, Judge Robert Eckert denied the motion for a default judgment and the motions to dismiss, and ordered Bang and Martin to answer within ten days. Bang and Martin then answered.

Judge Eckert entered a pre-trial order on January 30, 1995, that ordered the parties to complete discovery and to file pre-trial memorandums by February 15, 1995, and that scheduled trial for March 7. On February 15, however, Martin filed a "Judicial Notice to Reconsider," alleging that the pre-trial order was "defective" because the signature block referred to Judge Richard Grosz instead of Judge Eckert, who signed the order. Martin also alleged that he had filed a "Certificate of Non-Readiness," and he requested an additional sixty days to complete discovery.

At a February 28 pre-trial conference that Bang did not attend, Judge Eckert ruled that neither Bang nor Martin had properly filed a "Certificate of Non-Readiness," nor served one on Varriano. Judge Eckert also ruled, and the record confirms, that neither Bang nor Martin had complied with the January 30 pre-trial order in any way.

On the day before trial, March 6, Bang moved for summary judgment. On the morning of trial, Martin filed a "Demand for Change of Judge," alleging that Judge Eckert was prejudiced by a 1987 booklet authored by Martin, "Godfathers of North Dakota," that described a "former mob member" accusing Judge Eckert of "illegal acts." Judge Eckert denied, as untimely, Bang's motion for summary judgment and Martin's demand for change of judge. Judge Eckert also denied an informal motion by Bang and Martin for a continuance to allow them time to arrange for a Canadian lawyer to represent them at the trial. Then, minutes before jury selection began, Martin voluntarily left the courtroom, Bang also soon left, and they did not return.

Judge Eckert ruled that Bang and Martin were not in "total default" because they had answered and appeared. See NDRCivP 55. Judge Eckert therefore proceeded with the jury trial in their absence. After Varriano presented his case, the jury returned a verdict finding Bang and Martin had defamed and injured Varriano and awarding Varriano $300,000 in compensatory damages. The jury made Bang 70% and Martin 30% responsible. Judgments were entered against Bang for $210,000 and against Martin for $90,000. Bang and Martin each appealed.

On September 12, 1995, Bang moved this Court for leave to seek relief from the judgment in the trial court. On September 26, 1995, an attorney appeared on Bang's behalf, moved to postpone oral arguments, and sought permission to supplement Bang's appellate briefs. We denied these motions on September 27, 1995. On October 4, 1995, the day before oral argument, Bang moved this Court, again representing himself, to stay the judgment pending this appeal. The trial court had denied Bang a stay on appeal for his failure to file a supersedeas bond under NDRCivP 62(d), but told Bang he could renew his request if he filed the proper bond. Because Bang had not yet filed a supersedeas bond, we did not grant his October 4 stay motion either.

1. Personal Jurisdiction.

Bang argues that Varriano "failed to serve a Summons and Complaint" upon him, and that the trial court therefore "lacked personal jurisdiction." Bang further contends that "jurisdiction could only be obtained in Dunn County." We disagree.

The rules of civil procedure authorize personal service of process by "any form of mail addressed to the individual to be served and requiring a signed receipt and resulting in delivery to that individual." NDRCivP 4(d)(2)(A)(iv). Varriano mailed a copy of the summons and complaint by certified mail to Bang, and the receipt was returned to Varriano with Bang's signature. Varriano filed an affidavit of that service. Therefore, Bang was properly served with process.

"A court of this state may exercise personal jurisdiction over a person ... domiciled in ... this state as to any claim for relief." NDRCivP 4(b)(1). Bang has not contested his legal residence in North Dakota, so he is "domiciled ... in this state." See Matter of Estate of Burshiem, 483 N.W.2d 175, 180 (N.D.1992) ("[D]omicile and legal residence are synonymous...."). Therefore the trial court properly exercised personal jurisdiction over Bang.

2. Venue.

Bang argues that, because he resides in Dunn County and Martin resides in Barnes County, the Cass County trial court "erred when it issued a pre-trial order without proper venue or legal jurisdiction, since it was aware that proper notice and demand had been entered into the proceeding to have the action venued in a county of one of the alleged named defendant[']s residence, by the timely filing of the action in a more appropriate county of the state...." We disagree.

As a general rule, subject to the specific exceptions in NDCC ch. 28-04, an "action must be tried in the county in which the defendant or one of the defendants resides at the time of the commencement of the action." NDCC 28-04-05. Varriano argues the Cass County venue was proper because he believed, at the time he began the action, that Martin lived and worked in Cass County. However, even if Martin's true residence was in Barnes County, Bang's argument fails because an action can be tried in an improper venue "unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county...." NDCC 28-04-06. Neither Bang nor Martin made a timely written demand under NDCC 28-04-06, and they did not even question venue in the trial court in any manner until after Varriano moved for a default judgment many months after service of process. That was too late. ³

While the trial court did extend the time for Bang and Martin to answer the complaint after Varriano moved for the default judgment in September 1994, that extension did not also extend the time to demand a change of venue. Gegelman v. Reiersgaard, 273 N.W.2d...