Hall v. Dist. Ct. (Oswalt) ( 2015 )

 This settlement was entered into the record on March 4, 2014.
Hall served notice of his charging lien in both actions on March 13, 2014.
Escrow closed, with Oswalt and Gerber acquiring the Currivans' property,
on June 27, 2014. Prior to escrow closing, Oswalt and Gerber moved to
strike Hall's liens and Hall moved to adjudicate them. The district court
granted the motion to strike, finding that the liens did not attach to the
settlement proceeds because Hall did not serve notice of the liens prior to
the settlement being placed on the record. This writ petition followed.'
In his writ petition, Hall argues that he has valid charging
liens that attached to the Currivans' escrow payment, while Oswalt and
Gerber argue that Hall did not diligently perfect his liens, that the liens
cannot attach to the March 4 settlement, and that, because he was
discharged, Hall cannot assert the charging liens because he did not
obtain the settlement for his client. The sought-after writs are available
to correct a district court's arbitrary or capricious abuse of discretion or
actions taken in excess of jurisdiction. NRS 34.160; NRS 34.320; see also
Argentena Consol. Mining Co. v. Jolley Urga Wirth Woodbury & Standish,
125 Nev. 527, 531, 216 P.3d 779, 782 (2009) (reviewing de novo the
validity of a charging lien); Int'l Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008) ("Statutory
1A writ petition is the appropriate method through which an
attorney may challenge an adverse decision adjudicating an attorney's lien
in the client's litigation because the attorney himself, as opposed to the
client, has no right of appeal from the underlying action. NRS 34.170;
NRS 34.330; Albert D. Massi, Ltd. v. Bellmyre, 111 Nev. 1520, 1521, 908
P.2d 705, 706 (1995). We reject Oswalt's and Gerber's argument that
Hall's ability to file a separate action to collect on the fee agreements is an
adequate legal remedy precluding writ relief.
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interpretation is a question of law that we review de novo, even in the
context of a writ petition.").
A charging lien may attach to money or property if notice of
the lien is served prior to the recovery. NRS 18.015(3), (4)(a). Here, Hall
served notice of his charging liens on March 13, after the March 4
settlement. In general, the charging liens would not attach to a
settlement in these circumstances, because the liens were not perfected
until after the settlement. Id. But in this case, the March 4 settlement
was a contingent settlement, dependent upon Oswalt's and Gerber's
ability to raise $1.5 million to complete the $2.7 million purchase of the
property; if they had not raised the money, the escrow funds would have
been returned to the Currivans and other defendants. In this
circumstance, where the settlement agreement remained executory, the
client has not yet "recovered" the proceeds, as required by NRS
18.015(4)(a). Leventhal v. Black & LoBello, 129 Nev. Adv. Op. No. 50, 305
P.3d 907, 910 (2013) (holding that a charging lien may only attach to an
affirmative recovery, or the tangible fruits of the attorney's services).
Thus, the March 4 settlement had not produced a recovery to which Hall's
March 13 charging liens could attach.
Once the purchase was completed, however, the acquired real
property was an "affirmative recovery" gained through settlement to
which charging liens could attach. Id. ("This 'fruit' is generally money,
property, or other actual proceeds . . . ."); see also NRS 18.015(4)(a)
(stating that a charging lien may attach "to any money or property" that is
recovered). Accordingly, because Hall had previously perfected his
charging liens by serving the required notice, the liens attached to the real
property on June 27.
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In this regard, we reject Oswalt's and Gerber's argument that
an attorney who is discharged or withdraws prior to the client's recovery of
money or property may not assert a charging lien against the recovery.
NRS 18.015(1)(a) provides that an attorney in whose hands "any claim,
demand or cause of action . . . has been placed" has a charging lien. Thus,
it is not necessary for the attorney to have recovered a judgment himself
in order to assert a charging lien; it is only necessary that the client has
hired the attorney to perform work on the matter. See Cope v. Woznicki,
140 P.3d 239, 241 (Colo. App. 2006) (noting that "claims and demands in
suit" was listed separately from judgments in the Colorado charging lien
statute and concluding that it is not necessary for an attorney himself to
obtain a judgment in order for the attorney to assert a charging lien).
Having concluded that Hall has valid charging liens that
attached to Oswalt's and Gerber's June 27 acquisition of the Currivans'
property in consummation of the March 4 settlement, we decline to
consider the parties' remaining arguments. The district court has not yet
considered the parties' arguments concerning the value of Hall's charging
liens, including whether the claimed fee agreements are valid or what
they provide, whether Hall should instead be compensated in quantum
meruit, what portion of the settlement and sale may be attributed to the
personal injury and real property actions, or whether the amounts claimed
by Hall are reasonable under the Brunzell v. Golden Gate National Bank,
85 Nev. 345, 455 P.2d 31 (1969), factors. Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF PROHIBITION instructing the
district court to vacate its order striking Hall's charging liens, to enter an
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order denying Oswalt's and Gerber's motion to strike, and to conduct
further proceedings consistent with this order.
J.
Gibbons
91Le,
Pickering
J.
cc: Hon. Lynne K. Simons, District Judge
Glade L. Hall
Lemons, Grundy & Eisenberg
Washoe District Court Clerk
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