This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 CAROL WOOTTON, 2 Plaintiff-Appellant, 3

v. NO. 32,290 4 SCOTT VINSON, 5 Defendant-Appellee. 6

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 7 Daniel Viramontes, District Judge 8 Frederick H. Sherman 9 Deming, NM 10 for Appellant 11

Robert F. Turner 12 Deming, NM 13 for Appellee 14

MEMORANDUM OPINION 15 GARCIA, Judge. 161 As pled in the complaint, the note provides that Defendant agreed to pay 10 18 percent attorney fees on the amount due ($35,000) “if placed in the hands of an 19 attorney for collection.” 20 2 {1} The parties do not dispute that Defendant, Scott Vinson, agreed to pay the 1 reasonable attorney fees incurred by Plainti ff, Carol Wootton, in pursuing legal action 2 to collect on a promissory note. The questi on presented is whether the fees charged 3 by Plaintiff’s first attorney were reasonable and, in the tortured procedural history of 4 this case, whether the district court erred infirst ordering Defendant to pay those fees, 5 then reversing its order, and then ordering Plaintiff to reimburse Defendant for 6 overpaying the fees of Plaintiff’s sec ond attorney. Though we recognize that our 7 decision will result in the accrual of even mo re attorney fees, we conclude that the 8 district court erred. We reverse and remand for further proceedings regarding the 9 proper calculation of attorney fees. 10 BACKGROUND 11 {2} In 2008, Plaintiff retained attorney R. Nathan Gonzales to represent her in an 12 action to pursue collection on a promissorynote and mortgage. Plaintiff paid $4,000 13 to Gonzales as a retainer. Plaintiff filed a complaint for breach of contract against 14 Defendant, seeking to recover the amount dueon the note and attorney fees and costs 15 pursuant to the terms of the note. 1 After the requisite period of time had elapsed 163 without an answer from Defendant, Plaintiff filed a motion for default judgment 1 requesting, among other things, that she beawarded her attorney fees. Plaintiff 2 attached an invoice from Gonzales reflecting th at she had incurred attorney fees in the 3 amount of $1,852.27. 4 {3} The district court granted Plaintiff’s motion for default judgment and, among 5 other things, awarded Plaintiff “her attorney [] fees and court costs as submitted by her 6 legal counsel.” Defendant f iled a motion to set aside the default judgment, and 7 Plaintiff filed a response. Before the di strict court ruled on Defendant’s motion, 8 Plaintiff retained a new attorney, Frederi ck H. Sherman, who filed a motion on behalf 9 of Plaintiff to amend the judgment as to specific damages and attorney fees. 10 {4} On August 13, 2010, the district court entered a stipulated order resolving 11 Defendant’s motion to set as ide the default judgment and Plaintiff’s motion to amend 12 the judgment. The stipulated order states, inpertinent part, that Defendant agrees to 13 pay the note along with interest and attorn ey fees and that “[a]ny issues as to 14 [a]ttorney[ f]ees that [cannot] be resolvedwill be submitted to the court subsequent 15 to the entry of the order and [p]rior to [s]atisfaction.” 16 {5} The parties could not resolve the issue of attorney fees and, on October 29, 17 2010, Defendant filed a motion to determine reasonable attorney fees. The parties 18 agreed that the amount that Gonzales had billed Plaintiff (over $4,000) was excessive. 194 A copy of the motion was se nt to Gonzales via facsimile. On November 4, 2010, 1 Gonzales filed a motion to withdraw as counsel for Plaintiff, stating that Plaintiff had 2 retained other counsel. The district c ourt entered an order on November 4, 2010, 3 permitting Gonzales to withdraw. The order reflects that neither Plaintiff’s new 4 attorney, Sherman, nor Defendant’s atto rney responded to or approved the order. 5 {6} The district court held a hearing regarding attorney fees on November 8, 2010, 6 and entered an order on November 18, 2010. The district court noted that Gonzales 7 failed to attend the hearing and failed to provide an itemized bill for his services. The 8 district court found that Gonzales’s b ill of over $4,000 was unreasonable and ordered 9 Gonzales to refund this entire amount to Plaintiff. The district court ordered Defendant 10 to pay Plaintiff’s new attorney, Sherman, $2,100 in attorney fees. 11 {7} On February 18, 2011, Gonzales filed a motion to reconsider. Gonzales attached 12 a copy of his invoices to Plaintiff, reflec ting that he had bille d Plaintiff $4,093.79 for 13 his work. Gonzales stated that he did not attend the hearin g on November 8, 2010, 14 because he did not represent Plaintiff at th at time, and he was not aware that his fees 15 were going to be considered. He argued thatthe district court lacked authority to 16 reduce his fees because they were the s ubject of a contractual agreement between 17 himself and his client, Plaintiff. 18 {8} The district court scheduled a hearing on Gonzales’s motion to reconsider for 195 March 31, 2011, and Plainti ff’s new attorney, Sherman, filed a motion for a 1 continuance, stating that he had a conflict on that date. The district court did not grant 2 the continuance, and held a hearing on March 31, 2011, though neither Plaintiff’s new 3 attorney nor Defendant’s atto rney were present. At the hearing, Gonzales informed 4 the district court that Plaintiff had filed a disciplinary complaint against him, which 5 had been resolved in his favor. The distri ct court went off the record to review 6 documentation pertaining to the disciplinary complaint. 7 {9} On May 26, 2011, the district court entered an order granting Gonzales’s 8 motion to reconsider. The district court conc luded that it lacked authority to consider 9 the contractual fee agreement between Plai ntiff and Gonzales and thus vacated the 10 portion of its earlier order that ordered Gonzales to reim burse Plaintiff in the amount 11 of $4,000. 12 {10} On October 6, 2011, Plaintiff filed a mo tion for additional attorney fees and to 13 reconsider the denial of atto rney fees that Plaintiff had previously paid to Gonzales. 14 The district court held a hearing on April 16, 2012, and entered a final order on June 15 6, 2012, implicitly overruling Plaintiff’s objec tion to the proposed form of order that 16 had been circulated. The district court f ound that based on the exhibits presented at 17 the hearing, which are not part of the record, Defendant had made two payments to 18 attorney Sherman for $2,100. The distri ct court ordered Plaintiff to reimburse 196 Defendant in the amount of $2,100. The district court explained at the hearing that 1 Plaintiff could pursue a civil action agains t Gonzales to recover the money she had 2 paid to Gonzales. Plaintiff appeals from this order. 3 DISCUSSION 4 {11} Plaintiff contends the district court erre d in refusing to order Defendant to pay 5 all of her attorney fees b ecause Defendant was obligated to pay these fees pursuant to 6 the terms of the note. Plaintiff argues th at she “should not be out $4,000 [the amount 7 paid to attorney Gonzales] as a result of using legal action to collect and enforce a 8 sales agreement.” Plaintiff also contends th at the district court erred in ordering her 9 to reimburse $2,100 to Defendant because no evidence was introduced to establish an 10 overpayment. 11 {12} We review an award of attorney fees for an abuse of discretion. See In re N.M. 12 Indirect Purchasers Microsoft Corp. , 2007-NMCA-007, ¶ 6, 140 N.M. 879, 149 P.3d 13 976. “A discretionary decisi on based on a misapprehension of the law is an abuse of 14 discretion that must be reviewed de novo.” Id. 15 {13} As a preliminary matter, Defendant a sserts that Plaintiff’s arguments are 16 precluded by the doctrines of judicial estoppe l, finality, and mootness. Defendant first 17 argues that Plaintiff should be judicially estopped from arguing that Gonzales’s 18 attorney fees are now reas onable because she took a contrary position in the district 197 court. We disagree. 1 {14} In order for judicial estoppel to appl y, three elements must be present. See Keith 2 v. ManorCare, Inc. , 2009-NMCA-119, ¶ 37, 147 N.M. 209, 218 P.3d 1257. 3 First, the party against whom the doctrine is to be used 4 must have successfully assumed a position during the 5 course of litigation. Second, that first position must be 6 necessarily inconsistent withthe position the party takes 7 later in the proceedings. Finally, while not an absolute 8 requirement, judicial estoppel will be especially applicable 9 when the party’s change of position prejudices a party who 10 had acquiesced in the former position. 11 Id. (internal quotation marks and citations omitted). None of these elements are 12 present here. First, Plaintiff did not ultimately convince the district court that 13 Gonzales’s fees were unreasonable. Sec ond, Plaintiff’s position on appeal is not 14 inconsistent with the position she took in th e district court to recover her legitimate 15 attorney fees pursuant to the note. She ha s consistently argued that she is entitled to 16 recover all of her attorney fees from De fendant. And finally, Plaintiff’s change in 17 position, to the extent it can be characterized as such, has not prejudiced Defendant 18 in any way. 19 {15} Defendant next argues that any issue regarding Gonzales’s fees is not properly 20 before this Court because Plaintiff di d not appeal from the May 25, 2011, order 21 granting Gonzales’s motion to reconsider. Ag ain, we disagree. In appealing from the 22 final judgment in this case, Plaintiff can challenge any and all of the non-final orders 238 leading up to the judgment, including the May 25, 2011, order. This is consistent with 1 the “strong policy in New Mexico of disfavoring piecemeal appeals, and of avoiding 2 fragmentation in the adjudication of re lated legal or factual issues[.]” Principal Mut. 3 Life Ins. Co. v. Straus , 1993-NMSC-058, ¶ 12, 116 N.M . 412, 863 P.2d 447 (citation 4 omitted). 5 {16} Defendant lastly argues that any issue regarding the fees charged by Gonzales 6 is moot because there is no actual controversy involving these fees. We reject this 7 argument because it is clear th at there is an actual controversy regarding the fees paid 8 to Gonzales, and the district court must determine the appropriate amount of attorney 9 fees due to Plaintiff under the note. See Gunaji v. Macias , 2001-NMSC-028, ¶ 9, 130 10 N.M. 734, 31 P.3d 1008 (explaining that “[a] cas e is moot when no actual controversy 11 exists, and the court cannot grant actual re lief” (internal quotati on marks and citations 12 omitted)). 13 {17} Having disposed of these preliminary matters, we proceed to consider the 14 merits. As a general rule, “[a] contract providing for attorney fees is enforceable.” In 15 re N.M. Indirect Purchasers Microsoft Corp. , 2007-NMCA-007, ¶ 19. As generally 16 relevant here, our Supreme Court has rec ognized that “the purpose of a provision for 17 attorney fees in a note is to enable the noteholder to recover the full amount of the 18 debt without deduction for legal expenses.” Cabot v. First Nat’l Bank of Santa Fe , 199 1970-NMSC-118, ¶ 4, 81 N.M. 795, 474 P.2d 478. 1 {18} The district court’s November 18, 2010, order had the effect of allowing 2 Plaintiff to recover the full amount of th e debt from Defendant without deduction for 3 legal expenses that were incurred through that date. In that order, the district court 4 ordered that: (1) attorney Gonzales ref und $4,000 to Plaintiff, which was the amount 5 Plaintiff paid to Gonzales as a retainer; and (2) Defendant pay Plaintiff’s new attorney 6 $2,100 in attorney fees, the full amount claime d to be due. However, when the district 7 court granted Gonzales’s subsequent mo tion to reconsider, it concluded it lacked 8 authority to interfere with the contractual fee agreement between Plaintiff and 9 Gonzales. As a result, Plaintiff had paid$6,100 in attorneys fees and only $2,100 have 10 been awarded against Defendant. The districtcourt explained at a later hearing that 11 Plaintiff could pursue a civil action against Gonzales to recover the additional money 12 she had paid to Gonzales. 13 {19} The district court erred. In determini ng the reasonableness of attorney fees due 14 under the note, the district court should haveconsidered two factors: (1) the specific 15 provisions of the note regarding attorney fees; and (2) the reasonable amount charged 16 by Plaintiff’s attorneys that may be assessed as attorney fees against Defendant. Given 17 the limited record provided for review, it appear s that the district court did not discuss 18 or apply the specific attorney fees provision contained in the note. In determining the 1910 reasonableness of the amount of Gonzales’s attorney fees that should be assessed 1 under the note, the court must evaluate: 2 (1) the time and labor required—th e novelty and difficulty of the 3 questions involved and skill required; (2) the fee customarily charged in 4 the locality for similar services; (3) the amount involved and the results 5 obtained; (4) the time limitations imposed by the client or by the 6 circumstances; and (5) the experien ce, reputation and ability of the 7 lawyer or lawyers performing the services. 8 Thompson Drilling, Inc. v. Romig , 1987-NMSC-039, ¶ 20, 105 N.M. 701, 736 P.2d 9 979. The district court had the discretion to adjust the amount of attorney fees due 10 from Defendant under the note if it determinedthat a portion of Gonzales’s fees were 11 excessive or unreasonable. See id. ¶ 23 (“The allowance of a particular fee may be 12 reduced if it is determined to be unreasona ble or excessive.”). However, the district 13 court did not utilize this method to calculate the amount of attorney fees due from 14 Defendant under the note. First, the court concluded that Gonzales was entitled to 15 recover nothing for his work and then recons idered and ruled that it lacked authority 16 to consider the reasonableness of Gonzales’s attorney fees paid by Plaintiff. Instead 17 of recalculating the correct amount of attorney fees due from Defendant under the 18 note, the court stated that Plaintiff would be required to sue Gonzales in a separate 19 civil action to recover the amount in atto rney fees that she had paid to him. 20 {20} With respect to attorney Sherman’s fees , we perceive no abuse of discretion in 21 the district court’s conclusion that, if Defendant overpaid those fees, he should be 2211 entitled to a reimbursement. Becau se a recalculation of attorn ey fees is necessary and 1 because the record is unclearregarding whether Defendant in fact overpaid Sherman’s 2 fees, this issue can also be resolved on remand. 3 CONCLUSION 4 {21} For the reasons stated above, we reverse the district court’s order dated June 6, 5 2012, and remand for further proceedings. The district court must determine the 6 amount of attorney fees that were reasonable for Plaintiff to incur in pursuing this 7 action. The court must thenreconcile this amount with the specific attorney fee 8 provision in the note. Defendant should thenbe ordered to pay the proper amount of 9 attorney fees pursuant to the terms of the note, after being given credit for any 10 payments he has already made. The determin ation of attorney fees to be paid by 11 Defendant in this case is not dependent upon whether Plainti ff pursues a separate legal 12 proceeding against Gonzales to recover any overpayment of attorney fees previously 13 paid to him. The district court should enter findings of fact and conclusions of law for 14 the benefit of the parties and to enablefurther appellate review if necessary. 15 {22} IT IS SO ORDERED

. 16

________________________________ 17 TIMOTHY L. GARCIA, Judge 1812 WE CONCUR: 1

__________________________________ 2 JONATHAN B. SUTIN, Judge 3

__________________________________ 4 CYNTHIA A. FRY, Judge 5