Nusviken v. Johnston
Decision Date | 16 February 2017 |
Docket Number | No. 20160233,20160233 |
Citation | 890 N.W.2d 8 |
Parties | 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 |
Court | North Dakota Supreme Court |
Theodore T. Sandberg, P.O. Box 5788, Grand Forks, N.D. 58206–5788, for plaintiffs and appellees.
DeWayne A. Johnston, 221 South Fourth Street, Grand Forks, N.D. 58201, 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 fees.
[¶ 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 :
[¶ 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 statute discussed in Jacobsen , 50 N.D. at 831, 198 N.W. at 350 (discussing C.L. 1913, § 6875).
[¶ 8] Nonconsensual common-law liens are defined in N.D.C.C. § 35–35–01(2) :
Under N.D.C.C. § 35–35–05(1), any person subject to a nonconsensual common-law lien may petition the district court to invalidate the lien.
[¶ 9] The district court addressed Johnston's arguments and concluded Johnston's notice of attorney lien failed to satisfy N.D.C.C. § 35–20–08 :
[¶ 10] We agree with the district court's analysis. The notice of attorney lien recorded by Johnston against McDermott referenced two cases in which Johnston represented McDermott. Johnston did not submit any evidence indicating a judgment was awarded in favor of McDermott or that she was due any money in those cases. McDermott no longer had an interest in the real property when Johnston recorded the notice of attorney lien, nor did Johnston represent McDermott in the land sale to the Nusvikens. Johnston appears to argue it had a valid attorney's lien simply because the document is titled "notice of attorney's lien." As the district court noted, however, the document on its face failed to meet the requirements of N.D.C.C. § 35–20–08. The district court did not err by invalidating Johnston's "notice of attorney lien."
[¶ 11] Johnston argues the district court lacked jurisdiction because under N.D.C.C. § 35–35–05(1) only those who have property subject to nonconsensual common-law lien may...
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