fund doctrine in New Mexico

2024See Hennessy, 1998-NMCA-036, ¶ 24 ; Mondragon, 1988-NMCA-027 , ¶ 10. {6} Additionally, and for the same reason, we do not consider Appellant’s claim that the common fund doctrine applies as viable.

2019See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (holding that “the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law”). {6} And finally, Plaintiff has filed a request for costs and fees on appeal, relying upon the common fund doctrine as well as this Court’s discretion pursuant to Rule 12-403(A) NMRA.

1994See Aboud, 84 N.M. at 691-92 , 507 P.2d at 438-39 ; Hall v. Hall, 114 N.M. 378, 387 , 838 P.2d *424 995, 1004 (Ct.App.), cert. denied, 114 N.M. 314 , 838 P.2d 468 (1992).

1994See Aboud, 84 N.M. at 691-92 , 507 P.2d at 438-39 ; Hall v. Hall, 114 N.M. 378, 387 , 838 P.2d *424 995, 1004 (Ct.App.), cert. denied, 114 N.M. 314 , 838 P.2d 468 (1992).

2008Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 19 , 127 N.M. 654 , 986 P.2d 450 (indicating that the common fund doctrine is an equitable exception to the American rule); In re N.M.

2008Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 19 , 127 N.M. 654 , 986 P.2d 450 (indicating that the common fund doctrine is an equitable exception to the American rule); In re N.M.

1994See Aboud, 84 N.M. at 691-92 , 507 P.2d at 438-39 ; Hall v. Hall, 114 N.M. 378, 387 , 838 P.2d *424 995, 1004 (Ct.App.), cert. denied, 114 N.M. 314 , 838 P.2d 468 (1992).

1993See Aboud, 84 N.M. at 691-92 , 507 P.2d at 438-39 ; Hall v. Hall, 114 N.M. 378, 387 , 838 P.2d 995, 1004 (Ct.App.), cert. denied, 114 N.M. 314 , 838 P.2d 468 (1992).

2024Indirect Purchasers Microsoft Corp., 2007-NMCA-007, ¶ 18 , 140 N.M. 879 , 149 P.3d 976 (“Under the common fund doctrine, a litigant or a lawyer who recovers, preserves, or increases the value of a common fund, thereby benefitting other persons, may be reimbursed for reasonable fees and expenses from the fund as a whole.”); see, e.g., In re Foster, 1985- NMCA-038, ¶ 43, 102 N.M. 707 , 699 P.2d 638 (“The award being equitable depends on the facts of the case and the exercise of equitable power must be used with discretion.

2024Indirect Purchasers Microsoft Corp., 2007-NMCA-007, ¶ 18 , 140 N.M. 879 , 149 P.3d 976 (“Under the common fund doctrine, a litigant or a lawyer who recovers, preserves, or increases the value of a common fund, thereby benefitting other persons, may be reimbursed for reasonable fees and expenses from the fund as a whole.”); see, e.g., In re Foster, 1985- NMCA-038, ¶ 43, 102 N.M. 707 , 699 P.2d 638 (“The award being equitable depends on the facts of the case and the exercise of equitable power must be used with discretion.

2015See Rabo 22 Agrifinance, Inc. v. Terra XXI, Ltd., 2014-NMCA-106, ¶¶ 5, 13, 15, 17 , 336 P.3d 972 2 1 (declining to review the primary fund doctrine argument for lack of preservation in 2 the underlying Rule 1-060(B) motion). [RP Vol.14/3198, 3199] Subsequent to that 3 appeal and now the subject of the present appeal, Defendants filed a second Rule 1- 4 060(B) motion in the district court, this time raising an argument pursuant to the 5 primary fund doctrine, which the district court again denied. [RP Vol.14/3201, 3235, 6 3305, 3328, 3347] 7 {3} In our notice, we did not address the merits of D

2015See Rabo 22 Agrifinance, Inc. v. Terra XXI, Ltd., 2014-NMCA-106, ¶¶ 5, 13, 15, 17 , 336 P.3d 972 2 1 (declining to review the primary fund doctrine argument for lack of preservation in 2 the underlying Rule 1-060(B) motion). [RP Vol.14/3198, 3199] Subsequent to that 3 appeal and now the subject of the present appeal, Defendants filed a second Rule 1- 4 060(B) motion in the district court, this time raising an argument pursuant to the 5 primary fund doctrine, which the district court again denied. [RP Vol.14/3201, 3235, 6 3305, 3328, 3347] 7 {3} In our notice, we did not address the merits of D

2006See Friedman v. Microsoft Corp., 213 Ariz. 344 , 141 P.3d 824, 831 (Ct.App.2006) (concluding that the court properly applied fee-spreading principles when the parties agreed to calculate attorney fees using the common fund doctrine, though recognizing that the case, like ours, was a fee-shifting, not a fee-spreading, case). “[We] will not rewrite a contract to create an agreement for the benefit of one of the parties that, in hindsight, would have been wiser.” Watson Truck & Supply Co. v. Males, 111 N.M. 57, 60 , 801 P.2d 639, 642 (1990); see Waters, 190 F.3d at 1300 (“Defense counsel, having

2006See Friedman v. Microsoft Corp., 213 Ariz. 344 , 141 P.3d 824, 831 (Ct.App. 2006) (concluding that the court properly applied fee-spreading principles when the parties agreed to calculate attorney fees using the common fund doctrine, though recognizing that the case, like ours, was a fee-shifting, not a fee-spreading, case). "[We] will not rewrite a contract to create an agreement for the benefit of one of the parties that, in hindsight, would have been wiser." Watson Truck & Supply Co. v. Males, 111 N.M. 57, 60 , 801 P.2d 639, 642 (1990); see Waters, 190 F.3d at 1300 ("Defense counsel, having

2006See, e.g., Goldberger, 209 F.3d at 49-50 (joining the majority of circuit courts, which afford the district court discretion to choose the method); In re FPI/Agretech, 105 F.3d at 472 (stating that deference under the abuse of discretion standard is afforded the court’s choice to use either method for calculating an award); Gottlieb v. Barry, 43 F.3d 474, 487 (10th Cir.1994); Edwards, 920 P.2d at 757-58 ; Gen.

2006See, e.g., Goldberger, 209 F.3d at 49-50 (joining the majority of circuit courts, which afford the district court discretion to choose the method); In re FPI/Agretech, 105 F.3d at 472 (stating that deference under the abuse of discretion standard is afforded the court's choice to use either method for calculating an award); Gottlieb v. Barry, 43 F.3d 474, 487 (10th Cir.1994); Edwards, 920 P.2d at 757-58 ; Gen.

2006See, e.g., Goldberger, 209 F.3d at 49-50 (joining the majority of circuit courts, which afford the district court discretion to choose the method); In re FPI/Agretech, 105 F.3d at 472 (stating that deference under the abuse of discretion standard is afforded the court’s choice to use either method for calculating an award); Gottlieb v. Barry, 43 F.3d 474, 487 (10th Cir.1994); Edwards, 920 P.2d at 757-58 ; Gen.

2006See, e.g., Goldberger, 209 F.3d at 49-50 (joining the majority of circuit courts, which afford the district court discretion to choose the method); In re FPI/Agretech, 105 F.3d at 472 (stating that deference under the abuse of discretion standard is afforded the court's choice to use either method for calculating an award); Gottlieb v. Barry, 43 F.3d 474, 487 (10th Cir.1994); Edwards, 920 P.2d at 757-58 ; Gen.

2006Burke clearly states that "whether the common fund doctrine applies is . . . a question of law." 77 P.3d at 447 (emphasis added); see Edwards, 920 P.2d at 756 (concluding as a matter of law that the common fund doctrine applied because the facts gave rise to unjust enrichment concerns).

2006See Burke, 77 P.3d at 450 (declining to apply the common fund doctrine because the fee spreading element was not present); cf. NARAL, 1999-NMSC-028, ¶ 20 , 127 N.M. 654 , 986 P.2d 450 (noting that the common fund exception is consistent with the American rule because the fees are deducted from the recovery and "a losing litigant is no better or worse off as a result of the common fund doctrine's application" (alteration, internal quotation marks, and citation omitted)).

2006Microsoft also cites to Ketchum v. Moses, 24 Cal.4th 1122 , 104 Cal.Rptr.2d 377 , 17 P.3d 735, 738-39 (2001) (addressing mandatory fees available by statute), and Serrano v. Priest, 20 Cal.3d 25 , 141 Cal.Rptr. 315 , 569 P.2d 1303, 1316 (1977) (addressing fees available under the private attorney general doctrine).

2006Microsoft also cites to Ketchum v. Moses, 24 Cal.4th 1122 , 104 Cal.Rptr.2d 377 , 17 P.3d 735, 738-39 (2001) (addressing mandatory fees available by statute), and Serrano v. Priest, 20 Cal.3d 25 , 141 Cal.Rptr. 315 , 569 P.2d 1303, 1316 (1977) (addressing fees available under the private attorney general doctrine).

2006See Weinberger, 925 F.2d at 520, 526 (concluding that the district court should not be divested of authority to use the lodestar when there is no common fund); Burke, 77 P.3d at 449 (noting that the defendant had not conceded “that fees either would be or should be awarded under the common fund doctrine”); see also In re Cendant, 243 F.3d at 734 (concluding that the percentage method was appropriate even though it was not a “traditional common-fund case”). {42} In further support of its contention that the district court should have used the lodestar method, Microsoft cites to three state dist

2006See Weinberger, 925 F.2d at 520, 526 (concluding that the district court should not be divested of authority to use the lodestar when there is no common fund); Burke, 77 P.3d at 449 (noting that the defendant had not conceded "that fees either would be or should be awarded under the common fund doctrine"); see also In re Cendant, 243 F.3d at 734 (concluding that the percentage method was appropriate even though it was not a "traditional common-fund case"). {42} In further support of its contention that the district court should have used the lodestar method, Microsoft cites to three state dist

2006See Brytus, 203 F.3d at 244 (addressing counsel’s argument that the lower court erred as a matter of law because it allegedly proceeded on the legal misunderstanding that a statutory fee provision precluded a common fund fee award); Edwards, 920 P.2d at 758 (“We therefore hold that a trial court applying the common fund doctrine has the discretion to determine whether to apply the percentage of the fund method or the modified lodestar method in order to calculate attorney’s fees.”); Kuhnlein v. Dep’t of Revenue, 662 So.2d 309 , 312 n. 4, 315 (Fla.1995) (rejecting, in a 4-3 decision, the percen

2006See Brytus, 203 F.3d at 244 (addressing counsel's argument that the lower court erred as a matter of law because it allegedly proceeded on the legal misunderstanding that a statutory fee provision precluded a common fund fee award); Edwards, 920 P.2d at 758 ("We therefore hold that a trial court applying the common fund doctrine has the discretion to determine whether to apply the percentage of the fund method or the modified lodestar method in order to calculate attorney's fees."); Kuhnlein v. Dep't of Revenue, 662 So.2d 309 , 312 n. 4, 315 (Fla.1995) (rejecting, in a 4-3 decision, the percen

2006See, e.g., Goldberger, 209 F.3d at 49-50 (joining the majority of circuit courts, which afford the district court discretion to choose the method); In re FPI/Agretech, 105 F.3d at 472 (stating that deference under the abuse of discretion standard is afforded the court’s choice to use either method for calculating an award); Gottlieb v. Barry, 43 F.3d 474, 487 (10th Cir.1994); Edwards, 920 P.2d at 757-58 ; Gen.

2006See, e.g., Goldberger, 209 F.3d at 49-50 (joining the majority of circuit courts, which afford the district court discretion to choose the method); In re FPI/Agretech, 105 F.3d at 472 (stating that deference under the abuse of discretion standard is afforded the court's choice to use either method for calculating an award); Gottlieb v. Barry, 43 F.3d 474, 487 (10th Cir.1994); Edwards, 920 P.2d at 757-58 ; Gen.

2006See Weinberger, 925 F.2d at 520, 526 (concluding that the district court should not be divested of authority to use the lodestar when there is no common fund); Burke, 77 P.3d at 449 (noting that the defendant had not conceded “that fees either would be or should be awarded under the common fund doctrine”); see also In re Cendant, 243 F.3d at 734 (concluding that the percentage method was appropriate even though it was not a “traditional common-fund case”). {42} In further support of its contention that the district court should have used the lodestar method, Microsoft cites to three state dist

2006See Weinberger, 925 F.2d at 520, 526 (concluding that the district court should not be divested of authority to use the lodestar when there is no common fund); Burke, 77 P.3d at 449 (noting that the defendant had not conceded "that fees either would be or should be awarded under the common fund doctrine"); see also In re Cendant, 243 F.3d at 734 (concluding that the percentage method was appropriate even though it was not a "traditional common-fund case"). {42} In further support of its contention that the district court should have used the lodestar method, Microsoft cites to three state dist

2006See Montoya, 110 N.M. at 129 , 793 P.2d at 259 .

2006See Montoya, 110 N.M. at 129 , 793 P.2d at 259 .

2006See, e.g., Edwards v. Alaska Pulp Corp., 920 P.2d 751, 756 (Alaska 1996) ("Although courts may differ and the federal circuits are divided over how best to determine the amount of attorney's fees under the common fund doctrine, all agree that a `reasonable' attorney's fee is the proper standard."); 1 Alba Conte, Attorney Fee Awards § 2:3, at 61 (3d ed.2004); 4 Conte & Newberg, supra, § 14:8, at 603 ("Reasonableness is the touchstone[.]").

2006Burke clearly states that "whether the common fund doctrine applies is . . . a question of law." 77 P.3d at 447 (emphasis added); see Edwards, 920 P.2d at 756 (concluding as a matter of law that the common fund doctrine applied because the facts gave rise to unjust enrichment concerns).

2006See Friedman v. Microsoft Corp., 213 Ariz. 344 , 141 P.3d 824, 831 (Ct.App. 2006) (concluding that the court properly applied fee-spreading principles when the parties agreed to calculate attorney fees using the common fund doctrine, though recognizing that the case, like ours, was a fee-shifting, not a fee-spreading, case). "[We] will not rewrite a contract to create an agreement for the benefit of one of the parties that, in hindsight, would have been wiser." Watson Truck & Supply Co. v. Males, 111 N.M. 57, 60 , 801 P.2d 639, 642 (1990); see Waters, 190 F.3d at 1300 ("Defense counsel, having

2006See Friedman v. Microsoft Corp., 213 Ariz. 344 , 141 P.3d 824, 831 (Ct.App. 2006) (concluding that the court properly applied fee-spreading principles when the parties agreed to calculate attorney fees using the common fund doctrine, though recognizing that the case, like ours, was a fee-shifting, not a fee-spreading, case). "[We] will not rewrite a contract to create an agreement for the benefit of one of the parties that, in hindsight, would have been wiser." Watson Truck & Supply Co. v. Males, 111 N.M. 57, 60 , 801 P.2d 639, 642 (1990); see Waters, 190 F.3d at 1300 ("Defense counsel, having

2006See Friedman v. Microsoft Corp., 213 Ariz. 344 , 141 P.3d 824, 831 (Ct.App. 2006) (concluding that the court properly applied fee-spreading principles when the parties agreed to calculate attorney fees using the common fund doctrine, though recognizing that the case, like ours, was a fee-shifting, not a fee-spreading, case). "[We] will not rewrite a contract to create an agreement for the benefit of one of the parties that, in hindsight, would have been wiser." Watson Truck & Supply Co. v. Males, 111 N.M. 57, 60 , 801 P.2d 639, 642 (1990); see Waters, 190 F.3d at 1300 ("Defense counsel, having

2006See Friedman v. Microsoft Corp., 213 Ariz. 344 , 141 P.3d 824, 831 (Ct.App. 2006) (concluding that the court properly applied fee-spreading principles when the parties agreed to calculate attorney fees using the common fund doctrine, though recognizing that the case, like ours, was a fee-shifting, not a fee-spreading, case). "[We] will not rewrite a contract to create an agreement for the benefit of one of the parties that, in hindsight, would have been wiser." Watson Truck & Supply Co. v. Males, 111 N.M. 57, 60 , 801 P.2d 639, 642 (1990); see Waters, 190 F.3d at 1300 ("Defense counsel, having

2006Microsoft also cites to Ketchum v. Moses, 24 Cal.4th 1122 , 104 Cal.Rptr.2d 377 , 17 P.3d 735, 738-39 (2001) (addressing mandatory fees available by statute), and Serrano v. Priest, 20 Cal.3d 25 , 141 Cal.Rptr. 315 , 569 P.2d 1303, 1316 (1977) (addressing fees available under the private attorney general doctrine).

2006Microsoft also cites to Ketchum v. Moses, 24 Cal.4th 1122 , 104 Cal.Rptr.2d 377 , 17 P.3d 735, 738-39 (2001) (addressing mandatory fees available by statute), and Serrano v. Priest, 20 Cal.3d 25 , 141 Cal.Rptr. 315 , 569 P.2d 1303, 1316 (1977) (addressing fees available under the private attorney general doctrine).