Nusviken v. Johnston
2017 ND 22
| N.D. | 2017Background
- Wayne and Janel Nusviken bought real property previously owned by Barbara McDermott on October 2, 2013.
- On October 8, 2013, attorney DeWayne Johnston (as agent for Johnston Law Office, P.C.) recorded a “notice of attorney lien” against McDermott that referenced two prior cases and claimed nearly $66,000 in fees.
- The Nusvikens sought a court order declaring the recorded notice invalid, arguing McDermott no longer owned the property and Johnston had no attorney‑client relationship with them.
- The district court held the recorded document did not meet statutory requirements for an attorney’s lien under N.D.C.C. § 35‑20‑08, classified it as a nonconsensual common‑law lien, and invalidated it under Chapter 35‑35.
- The court awarded the Nusvikens $1,330 in costs and attorney’s fees and entered judgment against Johnston Law Office and Johnston individually.
- On appeal, the Supreme Court affirmed invalidation of the lien but modified the judgment to relieve Johnston of personal liability (judgment remains against Johnston Law Office only).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held | |
|---|---|---|---|---|
| Whether the recorded notice was a valid statutory attorney’s lien under N.D.C.C. § 35‑20‑08 | Nusviken: The notice is invalid because McDermott had no interest in the property and the statutory elements are not met | Johnston: The document is an attorney’s lien and thus outside the court’s Chapter 35‑35 jurisdiction | Held: Not a statutory attorney’s lien; it fails § 35‑20‑08 requirements and may be treated as a nonconsensual common‑law lien | |
| Whether the district court had jurisdiction under Chapter 35‑35 to invalidate the recorded notice | Nusviken: Chapter 35‑35 allows a property owner to seek invalidation of nonconsensual common‑law liens | Johnston: Court lacked jurisdiction if the filing was a statutory attorney’s lien | Held: Court had jurisdiction because the notice was not a statutory lien and therefore falls within Chapter 35‑35 | > |
| Whether the court erred in issuing an order to show cause without a prior finding that the Nusvikens were subject to a nonconsensual common‑law lien | Nusviken: Order and hearing were proper to determine lien validity | Johnston: Court should have made a preliminary finding before issuing order | Held: No statutory requirement for a prior finding; issuance and proceedings were proper | |
| Whether Johnston may be held personally liable for the award of costs and fees | Nusviken: Judgment may bind Johnston individually as well as the law firm | Johnston: The lien claimant was Johnston Law Office; he should not be personally liable | Held: Modified — personal liability reversed; judgment remains against Johnston Law Office only |
Key Cases Cited
- Jacobsen v. Miller, 198 N.W. 349 (1924) (discusses attorney as equitable assignee under an attorney’s lien)
- Clark v. Sullivan, 55 N.W. 733 (1893) (historical discussion of attorney’s lien principles)
- Estate of Amundson, 870 N.W.2d 208 (2015) (attorney in professional corporation may be personally liable to clients for improper conduct)
- In re Estate of Haugen, 794 N.W.2d 448 (2011) (statutory interpretation issues are questions of law fully reviewable on appeal)