F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 22 2001
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


ALBUQUERQUE TECHNICAL
VOCATIONAL INSTITUTE,

       Plaintiff-Counter-
       Defendant,

v.

GENERAL METERS                                         No. 00-2023
CORPORATION,                                          (New Mexico)
                                            (D.C. No. CIV-97-710-RLP/WWD)
       Defendant-Counter-
       Claimant - Appellant.

--------------------------------------

HATCH, ALLEN & SHEPARD, P.A.,

           Movant-Appellee.




                              ORDER AND JUDGMENT *


Before HENRY, MURPHY, Circuit Judges, and VAN BEBBER, District
Judge. **

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable G. Thomas Van Bebber, Chief Judge, United States
District Judge for the District of Kansas, sitting by designation.
I. INTRODUCTION

      Appellee, the law firm of Hatch, Allen & Shepherd, P.A. (“HAS”), filed an

attorney lien against a judgment recovered by Appellant General Meters

Corporation (“General Meters”) against Albuquerque Technical Vocational

Institute (“TVI”) in the United States District Court for the District of New

Mexico. The matter was handled by a magistrate judge, who instructed the court

clerk to release $30,000 of General Meters’ judgment held in the court registry to

HAS in satisfaction of the attorney lien. General Meters has appealed that

decision.

      The district court’s jurisdiction over the lawsuit between General Meters

and TVI was based on diversity of citizenship under 28 U.S.C. § 1332.

Jurisdiction to consider HAS’s attorney lien was proper under 28 U.S.C. § 1367.

See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 

, 445-48

(2d Cir. 1998). Jurisdiction to consider General Meters’ appeal arises under 28

U.S.C. § 1291. Because it was an abuse of discretion to not allow General

Meters to submit evidence contesting the reasonableness of the fees claimed by

HAS under the attorney lien, the decision below is   reversed in part and the case

is remanded for further proceedings not inconsistent with this opinion.




                                           -2-
II. FACTS AND PROCEDURAL HISTORY

      In April 1997, TVI filed suit against General Meters in New Mexico state

court. The suit was prompted by a dispute over a computerized system for

managing and operating various campus operations that General Meters was to

install for TVI. General Meters engaged HAS to represent it in the litigation

against TVI. Under the fee agreement, General Meters was to pay HAS on a

monthly basis for the actual hours worked plus costs. After HAS was hired by

General Meters, the case was removed to the United States District Court for the

District of New Mexico.

      The case was referred to a magistrate judge for pretrial matters. On June 9,

1997, the magistrate judge entered an initial scheduling order which required the

parties to submit a provisional discovery plan by July 2, 1997. In addition, a

scheduling conference was set for July 30, 1997.

      After the scheduling conference, an order was entered establishing January

26, 1998, as the termination date for discovery. On January 16, 1998, General

Meters and TVI submitted a joint motion for an extension of pretrial deadlines.

The motion states that the parties had been working to “resolve the case

cooperatively or at least narrow the technical issues to be litigated if necessary”

and had made all technical experts available to both parties in an effort to create

a “fruitful” “dialogue.” The motion further states that the parties wished to


                                         -3-
devote their time and resources to this cooperative effort rather than formal

discovery. On January 26, 1998, the magistrate judge entered an order extending

the termination date for discovery to April 27, 1998.

      On May 7, 1998, General Meters again moved for an extension of the

discovery deadline. This motion, however, was opposed by TVI. The magistrate

judge denied the motion. General Meters now claims that the failure of HAS to

obtain an extension of discovery was part of an overall failure by HAS to conduct

meaningful and helpful discovery on behalf of General Meters. HAS claims it

was misled by TVI to believe that they would agree to an extension of discovery.

      The dispute between HAS and General Meters over HAS’s failure to gain

an extension of the discovery deadline is but one of many points of contention

between General Meters and HAS over HAS’s representation of General Meters.

Another such point of contention is a motion by General Meters, prepared by

HAS, which the court granted to exclude all expert testimony. HAS claims that

the decision to file the motion to exclude all expert testimony was a tactical

decision made by HAS, concurred in by General Meters, which effectively

prevented TVI from proving its complaint. General Meters, however, argues that

if HAS had complied with the expert witness report disclosure requirement of

Rule 26(a)(2) of the Federal Rules of Civil Procedure, General Meters would

have been able to call expert witnesses while TVI would not.


                                         -4-
      Because of its dissatisfaction with HAS, General Meters stopped paying

legal fees to HAS in April 1998. On August 14, 1998, HAS, on behalf of

General Meters, filed a motion for leave to amend the answer to assert a

counterclaim against TVI. The case had been set for trial before United States

District Judge Bruce D. Black on September 8, 1998. On September 8, 1998,

however, the parties stipulated to having all further proceedings conducted by the

magistrate judge who handled pretrial matters.   See 28 U.S.C. 636(c). On

September 11, 1998, the magistrate judge entered an order granting General

Meters’ motion to amend its answer to assert a counterclaim. On September 18,

1998, HAS, on behalf of General Meters, filed a counterclaim against TVI.

      During this time the attorney-client relationship between HAS and General

Meters continued to deteriorate. On September 28, 1998, HAS filed a motion to

withdraw as attorney for General Meters. On October 16, 1998, the magistrate

judge granted the motion and recognized new counsel for General Meters, Peter

J. Adang.

      The record indicates that, after HAS withdrew as attorney for General

Meters, several meetings occurred between Stanley Hatch, a partner in HAS, and

Adang to discuss the litigation against TVI. In addition, HAS delivered to Adang

several boxes containing HAS’s work product relating to the case. The parties




                                           -5-
dispute how useful these efforts were to Adang as he took over General Meters’

litigation against TVI.

      On March 9, 1999, HAS filed a lien for attorney fees in the amount of

$30,000 on any judgment rendered in favor of General Meters in its litigation

against TVI. The bench trial was finally conducted, and the magistrate judge

ruled in favor of General Meters on all issues and awarded $62,809.02 plus costs

on its counterclaim. After entry of judgment in favor of General Meters, Hatch

contacted Adang about the attorney fees HAS claimed remained unpaid. Adang

convinced Hatch to avoid pursuing the attorney fees until the magistrate judge

ruled on a motion filed by Adang on behalf of General Meters requesting attorney

fees from TVI.

      In the summer of 1999, all the interested parties agreed to an order by

which TVI could satisfy its judgment by depositing $30,000 in the court registry,

pending a resolution of HAS’s attorney lien, and paying the remainder of the

judgment to General Meters. In July 1999, TVI satisfied the judgment in

accordance with the stipulated order.

      On September 30, 1999, the magistrate judge entered an order denying

General Meters’ motion for attorney fees from TVI. On October 26, 1999, HAS

filed a motion requesting the court to release the $30,000 held within the court




                                        -6-
registry pursuant to the lien filed for attorney fees. The motion was not

supported by any evidence or a brief.

      General Meters filed an objection to HAS’s motion and submitted a brief

in support of its objection. In the brief, General Meters made three arguments.

First, General Meters noted that HAS had failed to file any supporting evidence

with its motion and had thus violated Local Rule 7 of the New Mexico District

Court. See D.N.M. R. 7.5(a). Next, General Meters argued that HAS was not

entitled to the lien under New Mexico law because HAS had failed to show that

the fund from which it wished to recover was created by its efforts. Finally,

General Meters argued that HAS had not satisfied its burden to demonstrate that

the claimed attorney fees were reasonable.

      HAS then filed a reply brief. In an attempt to provide evidence for its lien

claim, HAS submitted affidavits, billing records from the time General Meters

stopped paying HAS, a copy of the fee agreement, and written correspondence

involving Hatch, General Meters, and Adang. Adang, on behalf of General

Meters, then filed a motion to strike the reply brief of HAS or, in the alternative,

to permit filing of a surreply. In addition, Adang submitted an affidavit in which

he contested HAS’s assertion that HAS’s efforts had directly contributed to the

recovery by General Meters on the counterclaim against TVI. Adang did not,

however, submit a proposed surreply with the request to submit a surreply, and


                                          -7-
stated at oral argument in this court that a surreply was not submitted because the

president of General Meters was out of town and Adang needed to contact him to

obtain the evidence that would be referenced in the surreply.

      The magistrate judge then entered a memorandum opinion and order

granting HAS’s motion to release the funds held in the court registry. The

magistrate judge first noted that under New Mexico law HAS was required to

prove that the judgment on the counterclaim “was due in part or in whole to the

efforts of HAS.”   Albuquerque Tech. Vocational Inst. v. Gen. Meters Corp.   , Civ.

No. 97-0710RLP/WWD, at 2 (D.N.M. Dec. 14, 1999). The magistrate judge

determined that HAS had made this showing. The magistrate judge noted that

HAS had successfully amended the answer to assert a counterclaim. The

magistrate judge further observed that General Meters had not demonstrated how

it was prejudiced by any possible discovery mishap by HAS and accepted HAS’s

account that the decision to exclude expert witnesses was a tactical decision

concurred in by General Meters. The magistrate judge then concluded that

$30,000 was a reasonable fee and ordered the funds released to HAS. The

magistrate judge indicated in the memorandum opinion that he had considered

General Meters’ request to file a surreply and the affidavit submitted by Adang,

but that his conclusion was not effected by either. General Meters subsequently

filed a notice of appeal.


                                          -8-
III. DISCUSSION

       Under New Mexico law, an attorney’s lien is an equitable remedy

originating from the common law.         See N. Pueblos Enters. v. Montgomery      , 

, 1038 (N.M. 1982). The attorney’s lien protects the attorney’s right

“to 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.”

v. Fulmer , 

, 41 (N.M. 1916)).

       Under both New Mexico and Tenth Circuit law, a decision by a trial court

to award attorney fees under a lien is reviewed for an abuse of discretion.         See

Keyes v. Sch. Dist. No. 1, Denver, Colo.      , 

, 665 (10th Cir. 1990)

(stating that equitable remedies are reviewed for an abuse of discretion);

Philipbar v. Philipbar , 

, 1078 (N.M. Ct. App. 1999)

(“Administration and enforcement of charging liens is subject to the sound

discretion of the trial court.”);   cf. Gasperini v. Ctr. for Humanities, Inc.   , 

, 426 (1996) (stating that standard of review for federal appellate court in

diversity case might be determined by reference to state law if state law

governing appellate review can be characterized as “substantive”). The abuse of

discretion standard is defined similarly by both this court and New Mexico.

Under the abuse of discretion standard, “a trial court’s decision will not be


                                              -9-
disturbed unless the appellate court has a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.”     McEwen v. City of Norman, Okla.     , 

,

1553-54 (10th Cir. 1991) (quoting       United States v. Ortiz , 

, 1164

n.2 (10th Cir. 1986)). “An abuse of discretion occurs when a judicial

determination is arbitrary, capricious or whimsical.”      United States v. Wright , 

, 943 (10th Cir. 1987). Similarly, a trial court abuses its discretion

under New Mexico law when its ruling “is against the logic and effect of the

facts and circumstances of the case.”       Sisneroz v. Polanco , 

, 400

(N.M. Ct. App. 1999).

       Under New Mexico law, four requirements must be met for an attorney to

recover fees under a lien. First, there must be a valid contract between the

attorney and the client.   See Sowder v. Sowder , 

, 1037 (N.M. Ct.

App. 1999). Second, the fund to which the lien attaches must have been

recovered by the efforts of the attorney.     See id . Third, the attorney must give

notice to all parties involved in the litigation of the intent to assert a lien against

any judgment. See 

assertion of the lien by the attorney must be

timely. See 

In addition, a court may inquire into the reasonableness

of the requested fee for purposes of enforcing the lien.     See N. Pueblos Enters. ,

644 P.2d at 1038.


                                             -10-
       General Meters complains about the procedures followed below, focusing

on the lack of an evidentiary hearing and the magistrate judge’s refusal to allow

General Meters to submit a surreply with evidence rebutting HAS’s evidence

submitted with its reply brief.   1
                                      General Meters also claims the magistrate judge

abused his discretion in determining that the activities of HAS contributed to the

fund recovered on the counterclaim and that the attorney fees requested by HAS

were reasonable.

       This court has previously noted that “an evidentiary hearing is generally

preferred, if not required, when factual disputes exist in connection with a

request for attorney fees and costs and those disputes cannot be resolved without

a hearing.”   Michael A. Cramer, MAI, SRPA, Inc. v. United States      , 

,

383 (10th Cir. 1995). The court has also stated, however, that “[o]rdinarily, a

district court does not abuse its discretion in deciding not to hold an evidentiary

hearing when no such request is ever made.”         Robinson v. City of Edmond , 

, 1286 (10th Cir. 1998). General Meters has admitted that at no point




       General Meters makes a further argument in its briefs, but the argument is
       1

waived. General Meters claims that under New Mexico law there is a predicate
requirement for an attorney’s lien that the contract between the attorney and the
client must expressly or impliedly contemplate an attorney’s charging lien.
General Meters did not raise this argument in its brief in response to HAS’s
motion to release the funds in the court registry nor in its motion to permit filing
of a surreply; thus, this court will not consider the argument on appeal. See
Walker v. Mather (In re Walker), 

, 896 (10th Cir. 1992).

                                             -11-
did it request an evidentiary hearing. Thus, the failure of the magistrate judge to

hold an evidentiary hearing does not necessarily constitute an abuse of discretion.

See id ; see also Cramer , 47 F.3d at 383-84 (noting that an evidentiary hearing

may not be necessary in dispute over attorney fees because of the judge’s

familiarity with the facts in dispute).

       The failure to allow a party to develop the record and to respond to the

opposition’s evidence can be an abuse of discretion.             See Cramer , 47 F.3d at 384.

In Cramer , a corporation successfully obtained a judgment against the United

States for a refund of employment taxes, penalties, and interest assessed against it

by the IRS. See 

The corporation then filed an application for its

litigation costs, including attorney fees, under 26 U.S.C. § 7430.            See 

The government filed a lengthy objection, which included a brief and supporting

exhibits, to the request for litigation costs.          See 

384. Before the

taxpayer corporation could respond to the government’s brief and evidence, the

district court entered an order denying the request for litigation costs.          See 

On appeal, this court stated:

              In relying on the sparsity of the record for his ruling, and in
       not affording an opportunity for the record to be developed for
       further consideration, the district court abused its discretion. Under
       the circumstances of this case, the court should have afforded
       [taxpayer] an opportunity to develop the record. He should have
       allowed [taxpayer] to respond to the government’s objection, brief
       and supporting exhibits of over 100 pages before entering his order.
       Without such additional evidence, the judge was not in a position to

                                                 -12-
      resolve the parties’ dispute and determine fairly the merits of
      Cramer’s application.

      General Meters argues on appeal that, if given the opportunity, it would

have submitted evidence refuting the notion that HAS’s work contributed to the

counterclaim fund. There was, however, sufficient, indisputable evidence in the

record that obviated the need for more evidence on this point. Indeed, General

Meters essentially conceded this to the magistrate judge and to this court at oral

argument. In the affidavit of Adang, General Meters’ successor lawyer, Adang

testifies that “[s]ome of HAS’ work may have contributed    indirectly ” to the

counterclaim fund. In addition, Adang admitted at oral argument that HAS’s

efforts contributed to the counterclaim, even though the counterclaim was filed

only one month before HAS withdrew: “I have to recognize that partially [the

work of HAS in] the defense of the claim by TVI would also apply to the

counterclaim. . . . Some of that work had to apply [to the counterclaim], there is

no question about it.” In addition, it cannot be disputed that HAS filed the

motion for leave to assert a counterclaim and the actual counterclaim.

      Thus, it is either conceded or indisputable that HAS worked on the defense

of TVI’s claim for over a year, that at least some of the work in the defense of

the claim applied later to the counterclaim, and that HAS filed the counterclaim.



                                         -13-
Under New Mexico law, this is enough to satisfy the requirement that the fund

recovered be the result of the attorney’s effort.

       In Robison v. Campbell , the New Mexico Court of Appeals held that the

requirement that the fund be recovered by the efforts of the attorney was satisfied

when the attorney “contributed” to the ultimate judgment received.           See 

, 484 (N.M. Ct. App. 1983) [hereinafter “         Robison II ”]. In Robison , the

defendant had obtained a judgment against the plaintiff on a counterclaim.             See

Robison v. Katz , 

, 205 (N.M. Ct. App. 1980) [hereinafter “         Robison

I”]. The defendant’s lawyers, the Sutin law firm, asserted an attorney lien on the

counterclaim proceeds.      See 

then appealed the decision of the

trial court, mainly contesting the manner in which the trial court awarded

damages. See 

Sutin law firm was one of the defendant’s

attorneys of record on appeal, the New Mexico Court of Appeals accepted

without deciding the defendant’s assertion that the Sutin law firm was “of little,

if any, assistance in [that] appeal.”   Robison II , 661 P.2d at 484. The New

Mexico Court of Appeals reversed the award of damages and remanded to the

district court for a new award of damages.          See Robison I , 610 P.2d at 211. The

Sutin law firm did not represent the defendant in the remand to the district court.

See Robison II , 661 P.2d at 484. On remand, the district court entered a new

award for damages.      See id . at 482. In addition, the district court awarded an


                                             -14-
attorney’s lien for the Sutin law firm on the new judgment.      See 

once again appealed to the New Mexico Court of Appeals, arguing,

inter alia , that the judgment entered after remand was not recovered through the

efforts of the Sutin law firm.   See 

Mexico Court of Appeals rejected

this argument, noting the work of the Sutin law firm during the first trial and

stating that “[t]he contention that the Sutin firm did not contribute to the

judgment entered after trial upon remand is frivolous.”       

Thus, under

New Mexico law, a lawyer is not prevented from asserting a lien against a

judgment obtained by a former client, even though the lawyer was not involved

throughout the litigation and other attorneys’ efforts contributed to the recovery.

        General Meters argues that when considering whether the efforts of HAS

contributed to the counterclaim, only the work performed by HAS and not paid

for by General Meters should be considered. There are no New Mexico cases

supporting General Meters’ argument. To the contrary, the New Mexico cases

articulating this requirement simply state that the fund must have been “recovered

by” the attorney.   See Sowder , 977 P.2d at 1037; Albuquerque Nat’l Bank v.

Albuquerque Ranch Estates, Inc.    , 

, 91 (N.M. 1984). Thus, this court

interprets New Mexico law to allow a court to examine all of the attorney’s work,

whether paid for or not, to determine whether the attorney contributed to the

fund.


                                           -15-
      General Meters also attempts to distinguish HAS’s work in the defense of

the TVI claims from the efforts required to recover on the counterclaim.

However, the complaint filed by TVI and the General Meters’ counterclaim,

drafted and filed by HAS, both involved the contract between General Meters and

TVI. A judgment for TVI on its complaint would have either precluded a

recovery by General Meters on the counterclaim or at least reduced the amount of

that recovery. In addition, as previously mentioned, General Meters admitted at

oral argument that there was at least some overlap between the defense of TVI’s

claim and General Meters’ counterclaim. Thus, even if the bulk of HAS’s work

was in defense of TVI’s claims, the work contributed, at least indirectly, to the

counterclaim recovery.

      The evidence before the magistrate judge in this case clearly established

that the efforts of HAS contributed to the counterclaim judgment. HAS worked

on the defense of TVI’s claim for over a year and at least some of that work

applied later to the counterclaim. Thus, it was not an abuse of discretion for the

magistrate judge to resolve this point without a hearing or the benefit of

additional evidence submitted by General Meters.

      HAS, however, is not automatically entitled to payment for all of the

unpaid hours it has billed General Meters. New Mexico law allows a party to

challenge the reasonableness of the fees claimed under an attorney lien.     See N.


                                           -16-
Pueblos Enters. , 644 P.2d at 1038; Robison I , 610 P.2d at 209. General Meters

argues that, if given the opportunity, it would have submitted evidence contesting

the reasonableness of the attorney fees claimed by HAS.

      The magistrate judge examined the billing records submitted by HAS and

determined that “the time expended and the rates assessed were both reasonable

and necessary.” This decision was reached, however, without the benefit of

allowing General Meters to submit evidence to the contrary. It was an abuse of

discretion to deny General Meters an opportunity to at least submit additional

evidence addressing the reasonableness of the fees.     See Cramer , 47 F.3d at 384;

cf. Ramos v. Lamm , 

, 552 (10th Cir. 1983) (stating that this court

has established specific factors for computing attorney fees under the Civil

Rights Attorney’s Fees Award Act in part to “ensure that district courts articulate

specific reasons for fee awards to give us an adequate basis for review”),

overruled on other grounds , Pennsylvania v. Del. Valley Citizens’ Council For

Clean Air , 

, 725 (1987)

      This case must be remanded to allow General Meters to submit evidence

contesting the reasonableness of the fees claimed by HAS. It is appropriate to

note that “an evidentiary hearing is generally preferred, if not required, when

factual disputes exist in connection with a request for attorney fees and costs and

those disputes cannot be resolved without a hearing.”     Cramer , 47 F.3d at 383;


                                          -17-
see also Robison I , 610 P.2d at 209 (remanding issue of reasonableness of

attorney fees requested under a lien to district court for a hearing because there

was insufficient evidence in record on appeal to determine the issue). This court

also notes that HAS has already demonstrated that its efforts contributed to the

counterclaim and that this issue need not be reexamined on remand. Thus,

reasonable and necessary time expended by HAS during the litigation and not yet

recovered can be recovered under the lien.

IV. CONCLUSION

      For the reasons stated above, this court   AFFIRMS in part, REVERSES in

part, and REMANDS for further proceedings not inconsistent with this opinion.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




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