Wayne A. Nusviken and Janel C. Nusviken, Plaintiffs and Appellees
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
from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Jon J. Jensen,
Theodore T. Sandberg, for plaintiffs and appellees.
DeWayne A. Johnston, for defendants and appellants.
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.
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
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
6] An attorney's lien is governed by N.D.C.C. §
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 ...