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Rhodes v. Martinez9/6/1996
's lien 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's lien with regard to that portion of his fee. See (waiver may be "inferred from circumstances indicating an intention to waive"); . Whether waiver exists is a determination of fact for the trial court. . The trial court admitted no evidence and made no finding regarding whether Camacho had waived his lien because it decided that the lien did not reach the personal injury settlement. The trial court never reached the question of waiver, because it decided that the lien 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.
B. Is the Branch firm estopped from asserting any defenses to Camacho's lien?
{22} "Determination of whether a claim of equitable estoppel has been proven is a question of fact for the trier of fact.". Here, too, factual issues need to be determined. The Branch firm had notice of the lien, which was filed with the court. Camacho additionally 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 lien. Camacho may have detrimentally relied on the Branch firm's silence, thinking he had taken sufficient action to protect his interest. See id.
C. Does Camacho's lien have priority over the Branch firm's claim to its fees?
{23} The question of whether a first attorney's lien has priority over a second attorney's 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's lien took second place to a judgment obtained by a third party. ; accord (case 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.
{24} In determining priorities or an apportionment, the trial court may consider the reasonableness of each attorney's fee. See . 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's action in turning over the entire $22,000 to Rhodes and the Branch firm's silence (even if these activities fail to rise to the level of waiver or estoppel). Further, it may consider each attorney's omissions. Camacho could have formally intervened in Rhodes' lawsuit against the Martinezes, but did not. The Branch firm could have requested a ruling from the court as to the validity of Camacho's lien before settling Rhodes' 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's lien against the funds remaining from the personal injury settlement and now held in trust, and if so, to what extent.
V. Attorney's fees on appeal
{25} The Branch firm requests attorney's fees for defending a frivolous appeal. The request is denied as the appeal is n
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