{ "id": 322252, "name": "Bob RHODES, Plaintiff, v. Earl D. MARTINEZ and Carlos Martinez, Defendants; Joseph David CAMACHO, Interested Party/Appellant, v. The BRANCH LAW FIRM, Interested Party/Appellee", "name_abbreviation": "Rhodes v. Martinez", "decision_date": "1996-09-06", "docket_number": "No. 16698", "first_page": "439", "last_page": "445", "citations": [ { "type": "official", "cite": "122 N.M. 439" }, { "type": "parallel", "cite": "925 P.2d 1201" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "105 N.M. 472", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598944 ], "weight": 3, "pin_cites": [ { "page": "475" }, { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0472-01" ] }, { "cite": "99 N.M. 95", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584592 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "101", "parenthetical": "waiver may be \"inferred from circumstances indicating an intention to waive\"" }, { "page": "554", "parenthetical": "waiver may be \"inferred from circumstances indicating an intention to waive\"" }, { "page": "102" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0095-01" ] }, { "cite": "102 N.M. 465", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580173 ], "weight": 4, "pin_cites": [ { "page": "471" }, { "page": "154" }, { "page": "471" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0465-01" ] }, { "cite": "84 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771140 ], "weight": 19, "year": 1972, "pin_cites": [ { "page": "105" }, { "page": "190" }, { "page": "102" }, { "page": "187" }, { "page": "103" }, { "page": "188" }, { "page": "102" }, { "page": "187" }, { "page": "105" }, { "page": "190" }, { "page": "106" }, { "page": "191" }, { "page": "107" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0101-01" ] }, { "cite": "106 N.M. 577", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708798 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "579", "parenthetical": "citations omitted" }, { "page": "1111", "parenthetical": "citations omitted" }, { "page": "579" }, { "page": "1111" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0577-01" ] }, { "cite": "88 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841483 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "145" }, { "page": "1407" }, { "page": "145" }, { "page": "1407" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0140-01" ] }, { "cite": "93 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568690 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "131", "parenthetical": "citation omitted" }, { "page": "316", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0129-01" ] }, { "cite": "112 N.M. 492", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720155 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "496" }, { "page": "1118" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0492-01" ] }, { "cite": "815 P.2d 1178", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1991, "opinion_index": 0 }, { "cite": "112 N.M. 388", "category": "reporters:state", "reporter": "N.M.", "year": 1991, "opinion_index": 0 }, { "cite": "112 N.M. 463", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720169 ], "weight": 6, "pin_cites": [ { "page": "465" }, { "page": "534" }, { "page": "465" }, { "page": "534" }, { "page": "467" }, { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0463-01" ] }, { "cite": "98 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582468 ], "weight": 23, "year": 1982, "pin_cites": [ { "page": "49", "parenthetical": "quoting Prichard" }, { "page": "1038", "parenthetical": "quoting Prichard" }, { "page": "48" }, { "page": "1037" }, { "page": "49" }, { "page": "1038" }, { "page": "49" }, { "page": "49" }, { "page": "49" }, { "page": "1038" }, { "page": "49" }, { "page": "1038" }, { "page": "49" }, { "page": "1038" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0047-01" ] }, { "cite": "159 P. 39", "category": "reporters:state_regional", "reporter": "P.", "weight": 12, "year": 1916, "pin_cites": [ { "page": "43" }, { "page": "136" }, { "page": "39" }, { "page": "137" }, { "page": "40" }, { "page": "139" }, { "page": "40" }, { "page": "140" }, { "page": "41" }, { "page": "40" }, { "page": "41" }, { "page": "44" } ], "opinion_index": 0 }, { "cite": "22 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4727197 ], "weight": 4, "year": 1916, "pin_cites": [ { "page": "146" }, { "page": "139" }, { "page": "140" }, { "page": "148-149" } ], "opinion_index": 0, "case_paths": [ "/nm/22/0134-01" ] }, { "cite": "890 P.2d 807", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.M. 415", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561358 ], "weight": 2, "pin_cites": [ { "page": "418" }, { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0415-01" ] } ], "analysis": { "cardinality": 911, "char_count": 21013, "ocr_confidence": 0.683, "pagerank": { "raw": 7.127136129276547e-08, "percentile": 0.42795255630733686 }, "sha256": "b8472d99e7cbe6affc48414fedc973ccf7d7caacc167abae5fb3d2fa26e1cfff", "simhash": "1:8cd27555f60e94ac", "word_count": 3531 }, "last_updated": "2023-07-14T15:23:55.699803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HARTZ and BOSSON, JJ., concur." ], "parties": [ "Bob RHODES, Plaintiff, v. Earl D. MARTINEZ and Carlos Martinez, Defendants. Joseph David CAMACHO, Interested Party/Appellant, v. The BRANCH LAW FIRM, Interested Party/Appellee." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\n1. Attorney Joseph David Camacho (Camacho) appeals from an order denying enforcement of his lien for attorney\u2019s fees, accrued in settling Plaintiff Bob Rhodes\u2019 (Rhodes) property damage claim, on the grounds that Camacho\u2019s lien could not reach funds recovered in Rhodes\u2019 personal injury action and retained by the Branch firm as its fee. We reverse and remand with instructions.\nFACTS\n2. Bob Rhodes was injured, and his 1989 Cadillac was damaged, in a car accident on December 20, 1989. On December 26, 1989, he executed a \u201cCivil Retainer Agreement\u201d retaining Camacho. Rhodes\u2019 property damage claims were settled in February of 1990. Camacho remitted the entire amount of the settlement to Rhodes to enable Rhodes to replace his Cadillac. According to Camacho, he told Rhodes that he would collect all of his attorney\u2019s fees and costs out of future proceeds in the ease. Rhodes represented that he understood Camacho would not be charging a contingency fee on the property damage claim, but that fees would only be collected based on the personal injury claim. Neither Camacho nor Rhodes testified in person or by affidavit.\n3. Nineteen months later, Camacho filed \u201cPlaintiffs Complaint For Personal Injury\u201d on September 27, 1991. Matters apparently disintegrated rapidly between Rhodes and Camacho because on October 22, 1991, Camacho filed his attorney\u2019s lien with the court. The Branch Law Firm entered its appearance for Rhodes on December 30, 1991. Rhodes\u2019 remaining claims were settled and the lawsuit was dismissed with prejudice on September 16, 1994. Rhodes and Defendants below are not parties to this appeal. Camacho thereafter filed a motion in the Rhodes lawsuit to enforce his attorney\u2019s lien. He seeks only fees for services rendered in connection with the property damage settlement, and claims no fees relating to the personal injury litigation. The Branch firm holds the fees it collected for the personal injury litigation in trust while this dispute is resolved. The trial court denied Camacho\u2019s motion on the grounds that Camacho\u2019s lien for fees accrued in settling the property damage claim did not attach to funds recovered in the personal injury lawsuit. This appeal followed, and we reverse and remand.\nDISCUSSION\nI. Standard of Review\n4. The primary issue to be decided is the meaning of the written contract between Rhodes and Camacho. The interpretation of a written contract, where only documentary evidence is at issue, is a question of law which we review de novo. Board of Educ. v. James Hamilton Constr. Co., 119 N.M. 415, 418, 891 P.2d 556, 559 (Ct.App.1994), cert. denied, 119 N.M. 354, 890 P.2d 807 (1995).\nII. An Attorney\u2019s Charging Lien\n5. We discuss the general principles governing attorneys\u2019 charging liens to provide the context for our analysis. The charging lien has been described as \u201cthe right to invoke the aid of the court, by the control which it exercises over its process and officers in the cause in which the judgment was rendered, in securing for him his just compensation.\u201d Prichard v. Fulmer, 22 N.M. 134, 146, 159 P. 39, 43 (1916). In Prichard, J.H. Fulmer retained attorney George W. Prichard to foreclose mortgages on real property. Id. at 136, 159 P. at 39. Prichard filed suit, asserting an attorney\u2019s lien for the allegedly unpaid fee. Id. at 137, 159 P. at 40. The Supreme Court recognized that an attorney might have a retaining lien \u201cfounded upon possession,\u201d id. at 139, 159 P. at 40, not relevant here, as well as a charging lien. The Court explained the charging lien embodies the attorney\u2019s right\nto recover his fees and money expended on behalf of his client from a fund recovered by his efforts, and also the right to have the court interfere to prevent payment by the judgment debtor to the creditor in fraud of his right to the same, and also to prevent or set aside assignments or settlements made in fraud of his right.\nId. at 140, 159 P. at 41; accord Northern Pueblos Enters. v. Montgomery, 98 N.M. 47, 49, 644 P.2d 1036, 1038 (1982) (quoting Prichard).\n6. Northern Pueblos is also instructive. J.H. Burttram filed an attorney\u2019s hen for $19,856.87 against Northern Pueblos Enterprises (Northern Pueblos), seeking to attach funds belonging to Northern Pueblos in the registry of the court (totaling $16,427.01) in partial satisfaction of his hen. Id. at 48, 644 P.2d at 1037. At the same time a judgment creditor of Northern Pueblos, Pueblo Electric and Refrigeration (Pueblo Electric), claimed priority on the same funds to satisfy the judgment it had received against Northern Pueblos of $5,984.93. Id. After an evidentiary hearing, the trial court found that Burttram was \u201creasonably entitled to an attorney\u2019s fee in the sum of $10,000.00.\u201d Id. It ordered the clerk to disburse $5,984.93 plus costs of $67.36 to Pueblo Electric and $10,000.00 to Burttram. Id. The Supreme Court affirmed the judgment. Id. at 49, 644 P.2d at 1038. \u201cBecause a court exercises its equitable powers in enforcing an attorney\u2019s charging hen, it may inquire into the reasonableness of the asserted fee for purposes of enforcing the hen.\u201d Id. The Court recognized that a court \u201cmay not alter or amend a contract.\u201d Id. It explained that the court had not altered \u201cBurttram\u2019s contract with Northern Pueblos\u201d by enforcing the hen to the extent of $10,000.00 \u201cfor purposes of setting priorities of hens.\u201d Id. \u201cThe court simply gave Burttram equitable rehef for a reasonable fee, leaving Burttram free to go against Northern Pueblos for the remaining fees due under the contract.\u201d Id.\n7. While some states have enacted statutory charging hens, New Mexico has not. Thompson v. Montgomery & Andrews, P.A., 112 N.M. 463, 465, 816 P.2d 532, 534 (Ct.App.), cert. denied, 112 N.M. 388, 815 P.2d 1178 (1991). New Mexico\u2019s charging hen \u201chas its origin in the common law, and is governed by equitable principles.\u201d Northern Pueblos Enters., 98 N.M. at 49, 644 P.2d at 1038 (citing Prichard, 22 N.M. at 139, 159 P. at 40).\nIII. The Existence of a Valid Lien: The Contract Between Rhodes and Camacho\n8. Before an attorney\u2019s charging lien will be effective, \u201cthe terms of a valid attorney-client contract must provide that an attorney\u2019s charging lien can attach to the client\u2019s award.\u201d Sunwest Bank of Roswell, N.A. v. Miller\u2019s Performance Warehouse, Inc., 112 N.M. 492, 496, 816 P.2d 1114, 1118 (1991). Here, the parties dispute whether the contract signed by Rhodes and Camacho provides for Camacho\u2019s lien to attach to the proceeds of the personal injury settlement.\n9. \u201cThe function of the courts is to interpret and enforce a contract as made by the parties.\u201d Schaefer v. Hinkle, 93 N.M. 129, 131, 597 P.2d 314, 316 (1979) (citation omitted). The court may not \u201cdo for the parties what they failed to do for themselves,\u201d Kimberly, Inc. v. Hays, 88 N.M. 140, 145, 537 P.2d 1402, 1407 (1975), but must enforce the contract as written. \u201c[A]bsent any ambiguity, the court may not alter or fabricate a new agreement for the parties.\u201d CC Housing Corp. v. Ryder Truck Rental, Inc., 106 N.M. 577, 579, 746 P.2d 1109, 1111 (1987) (citations omitted). The parties do not claim that the agreement between Rhodes .and Camacho is ambiguous, and we do not find it so.\n10. The \u201cCivil Retainer Agreement\u201d (the contract) between Rhodes and Camacho provides in pertinent part:\nDate of accident 12/21/89 Place of Accident Central & 98th\n1. I retain you to prosecute, or adjust, all claims I may have arising out of the above accident.\n4. You are to handle this claim on a contingency fee basis, which means that if I receive no money, I will owe you no legal fee.\n5. A contingency fee also means that if I do receive money, one-third (%) of the gross amount received, plus tax, is your full payment of your legal fee and that of any lawyer you associate or employ. If the ease goes to trial, the contingency fee basis foe [sic] your legal fees will be forth [sic] percent (40%) of the gross amount received, plus tax.\n7. In consideration of your past and future services, I give a lien for your legal fee and advanced costs and expenses against the proceeds of my claim.\nThe contract clearly states that Rhodes is hiring Camacho to represent him for \u201call claims I may have arising out of the above accident.\u201d No exception is made for any type of claim. Therefore the contract applies to personal injury, property damage, and any other claims Rhodes might have had arising out of the accident specified in the contract. See Walters v. Hastings, 84 N.M. 101, 105, 500 P.2d 186, 190 (1972).\n11. Walters is a case in point where the extent of the representation and the scope of the attorney\u2019s lien were defined broadly by description of the accident and not just by the specific claim. In Walters, Wally Joe Walters, minor son of Herman Walters (Walters), was a passenger in a car driven by his cousin, Mannelyn Hastings. Wally Joe suffered serious injuries on March 1, 1969, in a collision with a car driven by Mr. Spiller. Id. at 102, 500 P.2d at 187. Walters contracted with attorney James L. Brown on a contingency basis for representation \u201c\u2018in connection with the accident and resultant injuries and damages which we have discussed.\u2019 \u201d Id. Brown negotiated a settlement with Spiller\u2019s insurance carrier, out of which he received the fee that was due him. Id. Brown then recommended Walters approach Hastings\u2019 insurance carrier. Walters declined to do so, on account of the close family relationship. Id. at 103, 500 P.2d at 188. Instead, Walters fired Brown and negotiated with Hastings\u2019 carrier directly. Id. Brown asserted a lien over any proceeds recovered from Hastings\u2019 insurance company. Id. Walters argued the original contingency agreement covered only claims against Spiller. Id. at 102, 500 P.2d at 187.\n12. The Supreme Court construed the ambiguous phrase \u2018\u201cwhich we have discussed,\u2019 \u201d according to \u201c \u2018[t]he undisputed evidence,\u2019 \u201d to refer to the accident occurring on March 1, 1969, and resulting injuries and damages to the son and to the father. Id. at 105, 500 P.2d at 190. Thus understood, \u201cthe contract ... covered all claims arising from the accident and the resultant injuries and damages including the Hastings\u2019 claim.\u201d Id. Further, \u201cthere was no substantial evidence of any justification in discharging Mr. Brown for his counsel regarding the Hastings\u2019 claim.\u201d Id. at 106, 500 P.2d at 191. \u201c[A]n attorney discharged without cause is entitled to recover the stipulated fee on the happening of the contingency.\u201d Id. at 107, 500 P.2d at 192. Brown was allowed to collect his contingency fee on funds recovered from the Hastings\u2019 insurer.\n13. In the case at bar, the trial court did not find that Camacho had been discharged for cause. No such finding was requested. As in Walters, the Rhodes-Camacho contract does not limit itself to any particular part of Rhodes\u2019 claim. We hold that Camacho\u2019s attorney\u2019s hen validly attached to ah the proceeds of the personal injury settlement.\n14. The Branch firm asserts that an attorney\u2019s charging hen only reaches funds created by that attorney\u2019s efforts, citing Thompson, 112 N.M. at 465, 816 P.2d at 534, and cases from other jurisdictions. In Thompson, the Court of Appeals affirmed the trial court\u2019s dismissal of a suit brought by attorney James A. Thompson to enforce a charging hen because of lack of notice. Id. at 467, 816 P.2d at 536. Thompson failed to file his hen with the court in the underlying lawsuit. He also failed to give notice of his claimed hen to the potential judgment debtor or his own clients. Id. at 465, 816 P.2d at 534. The Court added that Thompson improperly sought to enforce his hen in \u201can independent action after the funds [had] been disposed of.\u201d Id. at 467, 816 P.2d at 536.\n15. Camacho properly filed his hen in the underlying lawsuit before the Branch firm entered its appearance and later mailed a copy to the Branch firm. There is no assertion that Camacho gave inadequate notice of his claim.\n16. Thompson, however, does not prohibit the attorney and chent from agreeing that a hen will be placed on all proceeds of a claim even if the attorney worked only on a portion of it. In his contract with Camacho, Rhodes agreed to \u201cgive a hen for your legal fee and advanced costs and expenses against the proceeds of my claim.\u201d The claim encompassed personal injury as well as property damage. Therefore, Camacho\u2019s hen applied to the settlement obtained by the Branch firm on the personal injury claim. See Robert L. Rossi, Attorney\u2019s Fees \u00a7 12:16 (2d ed. 1995).\n17.The Branch firm cites cases from other jurisdictions for the proposition that an attorney\u2019s charging hen reaches only funds which that attorney\u2019s efforts helped to establish. We are not persuaded because the cited cases are either from jurisdictions that have statutes governing attorneys\u2019 charging hens or represent common law traditions which differ from that laid down in Prichard. It is simply not the law in New Mexico that an attorney\u2019s charging hen is only effective against money recovered through that attorney\u2019s services. Under Prichard and Walters it can reach further if the agreement between the chent and the attorney so provides. The Rhodes-Camacho agreement unambiguously says that Camacho is engaged to represent Rhodes on \u201cah claims I may have arising out of the above accident,\u201d that Camacho is entitled to a contingency fee, and that Camacho is entitled to a hen \u201cagainst the proceeds of my claim.\u201d There is no exception if Rhodes changes attorneys. The Court of Appeals may not enforce the agreement as Rhodes or the Branch firm now wishes it had been written, but must enforce it as it was written. CC Housing Corp., 106 N.M. at 579, 746 P.2d at 1111; Kimberly, 88 N.M. at 145, 537 P.2d at 1407. The agreement provides that Camacho\u2019s hen will reach the proceeds of the personal injury settlement.\n18. To say the Court will not rewrite the agreement for the parties does not necessarily mean the hen will be enforced in favor of his entire claim. The agreement allows Camacho\u2019s hen to reach funds recovered by Rhodes subsequent to Camacho\u2019s discharge. But an attorney\u2019s charging hen in New Mexico \u201cis governed by equitable principles.\u201d Northern Pueblos Enters., 98 N.M. at 49, 644 P.2d at 1038 (citing Prichard, 22 N.M. at 140, 159 P. at 41). The agreement is valid, but equity may choose whether to enforce it and to what extent. See Northern Pueblos Enters. and the discussion in the following section. Camacho may bring a separate breach of contract suit against Rhodes to recover his fee. See Thompson, 112 N.M. at 467, 816 P.2d at 586. Cf. Northern Pueblos Enters., 98 N.M. at 49, 644 P.2d at 1038.\n19. We note that Camacho waived any right he may have had under the contingency fee agreement, and under Walters, to collect one-third of the personal injury settlement by stating in his motion that he was not seeking any portion of the personal injury settlement. See Christian Placement Serv. v. Gordon, 102 N.M. 465, 471, 697 P.2d 148, 154 (Ct.App.1985) (\u201c Waiver\u2019 is the intentional relinquishment ... of a known right.\u201d) (citation omitted). To be decided is whether, under the circumstances of this case, equity will allow him to collect one-third of the property damage settlement amount from the proceeds of the personal injury settlement.\nIV. Balancing The Equities\n20. We remand this matter to the trial court as there are several issues which must be addressed and evidence which may need to be taken to determine if equity should enforce the hen: (1) whether Camacho waived his right to enforce the hen by paying out the entire amount of the property damage recovery to Rhodes; (2) whether the Branch firm is estopped from asserting any defenses to Camacho\u2019s claim, including its reasonableness; and (3) whether Camacho\u2019s hen should have priority over the Branch firm\u2019s entitlement to recover its fees.\nA.Did Camacho waive a right to recover the fees for the property damage settlement?\n21. We decline to find as a matter of law that Camacho waived his attorney\u2019s hen in remitting the entire $22,000 to Rhodes, no matter what Camacho said to Rhodes at the time. Cf. Prichard, 22 N.M. at 148-149, 159 P. at 44. In the circumstances under which Camacho remitted the entire $22,000 of the property damage settlement to Rhodes, Camacho may have waived the right to assert an attorney\u2019s hen with regard to that portion of his fee. See Albuquerque Nat\u2019l Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 101, 654 P.2d 548, 554 (1982) (waiver may be \u201cinferred from circumstances indicating an intention to waive\u201d); Christian Placement Serv., 102 N.M. at 471, 697 P.2d at 154. Whether waiver exists is a determination of fact for the trial court. Albuquerque Nat\u2019l Bank, 99 N.M. at 102, 654 P.2d at 555. The trial court admitted no evidence and made no finding regarding whether Camacho had waived his hen because it decided that the hen did not reach the personal injury settlement. The trial court never reached the question of waiver, because it decided that the hen did not reach the personal injury settlement. Factual questions remain, such as exactly what Camacho told Rhodes and what a reasonable person would have understood Camacho to mean.\nB. Is the Branch firm estopped from asserting any defenses to Camacho\u2019s lien?\n22. \u201cDetermination of whether a claim of equitable estoppel has been proven is a question of fact for the trier of fact.\u201d In re Estates of Salas, 105 N.M. 472, 475, 734 P.2d 250, 253 (Ct.App.1987). Here, too, factual issues need to be determined. The Branch firm had notice of the hen, which was filed with the court. Camacho additionahy mailed a copy to the Branch firm more than two years before the personal injury claim was settled. There is no evidence the Branch firm ever told Camacho that it was not going to honor the hen. Camacho may have detrimentally rehed on the Branch firm\u2019s silence, thinking he had taken sufficient action to protect his interest. See id.\nC. Does Camacho\u2019s lien have priority over the Branch firm\u2019s claim to its fees?\n23. The question of whether a first attorney\u2019s hen has priority over a second attorney\u2019s claim to fees is an issue of first impression in New Mexico. The New Mexico Supreme Court has held that the trial court did not abuse its equitable powers in determining that an attorney\u2019s lien took second place to a judgment obtained by a third parly. Northern Pueblos Enters., 98 N.M. at 49, 644 P.2d at 1038; accord Sunwest Bank, 112 N.M. at 496, 816 P.2d at 1118 (ease remanded to trial court with instructions to determine, among other things, whether, after balancing of equities, a charging lien or a set-off took priority). We hold that the trial court may also determine priority among attorneys, or apportion the available funds between them.\n24.In determining priorities or an apportionment, the trial court may consider the reasonableness of each attorney\u2019s fee. See Northern Pueblos Enters., 98 N.M. at 49, 644 P.2d at 1038. The court should evaluate the amount of work actually done as well as the degree of risk incurred. It may also consider the conduct of each attorney, such as the reasonableness of Camacho\u2019s action in turning over the entire $22,000 to Rhodes and the Branch firm\u2019s silence (even if these activities fail to rise to the level of waiver or estoppel). Further, it may consider each attorney\u2019s omissions. Camacho could have formally intervened in Rhodes\u2019 lawsuit against the Martinezes, but did not. The Branch firm could have requested a ruling from the court as to the validity of Camacho\u2019s lien before settling Rhodes\u2019 personal injury claim and disbursing the proceeds, but did not. Rhodes and the Martinezes did not even alert the trial court to the existence of the lien in the record when they submitted their joint motion for dismissal. All of these factors should be considered in deciding whether to enforce Camacho\u2019s lien against the funds remaining from the personal injury settlement and now held in trust, and if so, to what extent.\nV. Attorney\u2019s fees on appeal\n25. The Branch firm requests attorney\u2019s fees for defending a frivolous appeal. The request is denied as the appeal is not frivolous.\nCONCLUSION\n26. We hold that Camacho\u2019s charging lien reaches proceeds of the personal injury portion of the lawsuit pursuant to the provisions of the Rhodes-Camaeho agreement. We reverse the decision of the trial court and remand for further evidentiary proceedings so the trial court can now determine whether equity will enforce Camacho\u2019s lien and if so, in what amount.\n27. IT IS SO ORDERED.\nHARTZ and BOSSON, JJ., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "Clara Ann Bowler, Albuquerque, for Interested Party/Appellant.", "Felicia C. Weingartner, Margaret Moses Branch, Daniel R. Swiss, The Branch Law Firm, Albuquerque, for Interested Party/Appellee." ], "corrections": "", "head_matter": "925 P.2d 1201\nBob RHODES, Plaintiff, v. Earl D. MARTINEZ and Carlos Martinez, Defendants. Joseph David CAMACHO, Interested Party/Appellant, v. The BRANCH LAW FIRM, Interested Party/Appellee.\nNo. 16698.\nCourt of Appeals of New Mexico.\nSept. 6, 1996.\nClara Ann Bowler, Albuquerque, for Interested Party/Appellant.\nFelicia C. Weingartner, Margaret Moses Branch, Daniel R. Swiss, The Branch Law Firm, Albuquerque, for Interested Party/Appellee." }, "file_name": "0439-01", "first_page_order": 489, "last_page_order": 495 }