The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RIFFEL LAW FIRM, PLLC, a )
Professional Limited Liability Company, )
)
Plaintiff, )
)
vs. ) No. CIV-20-616-C
)
HEATH D. GAISFORD, an individual; )
ALISHA LOUISE GAISFORD, an )
individual; DENNIS IRVIN GAISFORD, )
an individual; LOLA FAYE GAISFORD, )
an individual; STATE OF OKLAHOMA )
ex rel. OKLAHOMA TAX )
COMMISSION; ELLIS COUNTY )
TREASURER and BOARD OF COUNTY )
COMMISSIONERS; U.S. DEPARTMENT )
OF AGRICULTURE ex rel. FARM )
SERVICE AGENCY; and JOHN DOE, )
occupant, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
The Gaisford Defendants seek partial summary judgment arguing that the
undisputed material facts demonstrate they are entitled to judgment on Plaintiff’s claim to
foreclose on an attorney’s lien. According to the Gaisfords, Plaintiff’s claim must fail as
a valid attorney’s lien was never created or perfected in the underlying litigation. Plaintiff
objects, arguing the lien was proper and that it properly attached to real estate owned by
the Gaisfords.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings and affidavits show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). [A] motion for summary judgment should be
granted only when the moving party has established the absence of any genuine issue as to
a material fact. Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204
(10th Cir. 1977). The movant bears the initial burden of demonstrating the absence of
material fact requiring judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). A fact is material if it is essential to the proper disposition of the
claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant carries
this initial burden, the nonmovant must then set forth specific facts outside the pleadings
and admissible into evidence which would convince a rational trier of fact to find for the
nonmovant. Fed. R. Civ. P. 56(e). These specific facts may be shown by any of the
kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.
Celotex, 477 U.S. at 324. Such evidentiary materials include affidavits, deposition
transcripts, or specific exhibits. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d
1022, 1024 (10th Cir. 1992). The burden is not an onerous one for the nonmoving party
in each case but does not at any point shift from the nonmovant to the district court. Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). All facts and reasonable
inferences therefrom are construed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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ANALYSIS
Plaintiff was hired by the Gaisford Defendants to pursue an action premised on a
contract between the Gaisfords and North American Harvest, Inc. (“NAH”). Believing
that NAH had failed to adhere to the terms of the contract and/or committed fraud, the
Plaintiff, on behalf of the Gaisfords, filed a lawsuit in Oklahoma County District Court.
In that underlying lawsuit, Plaintiff sought injunctive relief to prevent NAH from
harvesting crops related to the contract. The lawsuit was filed on October 10, 2019, and
settled on November 20, 2019. The Gaisfords filed a Dismissal with Prejudice on
December 4, 2019, and NAH filed a dismissal of its counterclaims with prejudice the next
day. On April 17, 2020, Plaintiff for the first time filed a Notice of Attorney’s Lien in the
underlying lawsuit. This litigation followed.
Plaintiff’s claim challenged by the present Motion seeks to impose an attorney’s
lien on real property owned by the Gaisfords. The Gaisfords argue that Plaintiff failed to
create a valid lien and thus it cannot attach to the Gaisfords’ property. The parties are in
agreement that 5 Okla. Stat. § 6 governs the issue. That statute states:
A. From the commencement of an action, or from the filing of an
answer containing a counterclaim, the attorney who represents the party in
whose behalf such pleading is filed shall, to the extent hereinafter specified,
have a lien upon his client’s cause of action or counterclaim, and same shall
attach to any verdict, report, decision, finding or judgment in his or her
client’s favor; and the proceeds thereof, wherever found, shall be subject to
such lien, and no settlement between the parties without the approval of the
attorney shall affect or destroy such lien, provided such attorney serves
notice upon the defendant or defendants, or proposed defendant or
defendants, in which he or she shall set forth the nature of the lien he or she
claims and the extent thereof; and the lien shall take effect from and after the
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service of such notice, but such notice shall not be necessary provided such
attorney has filed such pleading in a court of record, and endorsed thereon
his or her name, together with the words “Lien claimed.”
B. In order to claim an attorney’s lien on real property, the attorney
shall file a Notice of Attorney’s Lien in the office of the county clerk of the
county where the real estate is situated and shall refile the Notice of
Attorney’s Lien every five (5) years before the expiration of the date
previously filed. The Notice of Attorney’s lien shall contain the style of the
case, the court where pending, the case number, the attorney’s name, address
and phone number and a complete legal description of the property subject
to the lien.
C. Any attorney claiming an attorney’s lien prior to the effective date
of this act shall have a period of one (1) year from such date to file a Notice
of Attorney’s Lien in accordance with subsection B of this section.
D. An action to enforce an attorney’s lien against real property shall
be commenced in the county where the real property is situated within ten
(10) years of recordation of the Notice of Attorney’s Lien with the county
clerk. The ten-year period for an attorney’s lien claimed prior to the
effective date of this act shall run from the effective date regardless of when
the Notice of Attorney’s Lien is recorded.
The Gaisfords argue that any lien must first comply with paragraph A before the
remaining paragraphs apply. Plaintiff responds, arguing that it proceeded under paragraph
B to create and perfected a valid lien. While Plaintiff’s actions may have been in
compliance with paragraph B, the fatal blow to its position is the failure to first comply
with paragraph A. It is clear from reading the statute that paragraph A establishes the
procedure for creating a valid attorney’s lien. Then, if it is permissible to assert that lien
against real property, the remainder of the statute establishes the procedure for that action.
Here, Plaintiff failed to give notice of its lien until after the litigation had completed. At
that point, nothing remained in the action to which the lien could attach. Thus, the attempt
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to file and subsequently enforce a lien against the Gaisfords’ property must fail as a matter
of law. The Gaisfords are entitled to judgment on Plaintiff's claim to foreclose the lien.
As set forth more fully herein, the Gaisford Defendants’ Motion for Partial
Summary Judgment (Dkt. No. 35) is GRANTED. A separate Judgment shall issue at the
close of this case.
IT IS SO ORDERED this 12th day of January, 2021.
ROBIN J. pth
United States District Judge