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Nusviken v. Johnston

Supreme Court of North Dakota

February 16, 2017

Wayne A. Nusviken and Janel C. Nusviken, Plaintiffs and Appellees
v.
DeWayne Alan Johnston, individually, and DeWayne Alan Johnston, as registered agent of Johnston Law Office, P.C., a/k/a Johnston Law Office, Defendants and Appellants

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge.

          Theodore T. Sandberg, for plaintiffs and appellees.

          DeWayne A. Johnston, for defendants and appellants.

          OPINION

          McEVERS, JUSTICE.

         [¶ 1] DeWayne Johnston, individually, and as registered agent of Johnston Law Office, P.C., appeals from a judgment invalidating a notice of attorney lien recorded against Johnston's former client and ordering Johnston Law Office and Johnston, individually, to pay $1, 330 in costs and attorney fees. We modify the judgment to relieve Johnston of personal liability and affirm the judgment as modified.

         I

         [¶ 2] Wayne and Janel Nusviken acquired real property from Johnston's former client Barbara McDermott on October 2, 2013. On October 8, 2013, Johnston recorded a "notice of attorney lien" against McDermott. The notice of attorney lien included the legal description of Nusviken's property and stated McDermott owed Johnston nearly $66, 000 in attorney's fees relating to Johnston's representation of McDermott in earlier matters unrelated to the sale of the property.

         [¶ 3] The Nusvikens petitioned the district court to invalidate the notice of attorney lien, arguing McDermott no longer owned any interest in the property. The court issued an order to show cause directing Johnston to appear and show why the notice of attorney lien should not be declared void. At the hearing, Johnston argued the notice of attorney lien was not a nonconsensual common-law lien but a valid attorney's lien under N.D.C.C. § 35-20-08, and therefore, the court did not have jurisdiction to invalidate the lien. In response Nusviken's attorney stated the notice of attorney lien was invalid because McDermott no longer had an interest in the property and no attorney-client relationship existed between Johnston and the Nusvikens. The court concluded the purported lien was a nonconsensual common-law lien and not a valid attorney's lien because it failed to satisfy the statutory requirements for an attorney's lien under N.D.C.C. § 35-20-08. The court invalidated the lien and ordered the Johnston Law Office and Johnston, individually, to pay the Nusvikens $1, 330 in costs and attorney's fees.

         II

         [¶ 4] Johnston argues the district court lacked jurisdiction to invalidate the lien as a nonconsensual common-law lien because Johnston had a valid statutory attorney's lien.

         [¶ 5] This case involves interpretation and application of lien statutes. Issues involving the interpretation and application of statutes are questions of law fully reviewable on appeal. In re Estate of Haugen, 2011 ND 28, ¶ 6, 794 N.W.2d 448.

         [¶ 6] An attorney's lien is governed by N.D.C.C. § 35-20-08:

An attorney has a lien for a general balance of compensation in and for each case upon:1. Money in the attorney's hands belonging to the attorney's client in the case. 2. Money due the attorney's client in the hands of the adverse party, or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to the adverse party, or the attorney of such party if the money is in the possession or under the control of such attorney, which notice must state the amount claimed and in general terms for what services. After judgment in any court of record, the notice may be given and the lien made effective against the judgment debtor by entering the same in the judgment docket opposite the entry of the judgment.

         [¶ 7] "[U]nder an attorney's lien, the attorney is 'the equitable assignee of the money due from the [judgment] debtor to the [judgment] creditor.'" Jacobsen v. Miller, 50 N.D. 828, 835, 198 N.W. 349, 352 (1924) (quoting Clark v. Sullivan, 3 N. D. 280, 284, 55 N.W. 733, 734 (1893)). Section 35-20-08, N.D.C.C., is very similar to the attorney's lien ...


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