Does a pending motion for attorneys’ fees make the otherwise final substantive order interlocutory, or can it be immediately appealed?
I wrote a few months ago about the Court of Appeals’ attempt to add some clarity to this question in Hausle v. Hausle. Today, the Supreme Court declared an even simpler rule in Duncan v. Duncan. I’ll let Justice Newby’s words speak for themselves:
Today we clarify the effect of an unresolved request for attorney’s fees on an appeal from an order that otherwise fully determines the action. Once the trial court enters an order that decides all substantive claims, the right to appeal commences. Failure to appeal from that order forfeits the right. Because attorney’s fees and costs are collateral to a final judgment on the merits, an unresolved request for attorney’s fees and costs does not render interlocutory an appeal from the trial court’s order.
This “bright-line rule” goes a long way to cut through the confusion on this issue. Note what is missing from the analysis: you do NOT have to analyze whether the attorneys’ fees issue is dependent on or ancillary to the final merits order.
Also, you do NOT need to seek a Rule 54(b) certification because the merits order is final by itself. This is really the heart of the opinion. Once you accept that the merits order is final, then it follows that a pending attorneys fees motion does not bar an appeal and a “Rule 54(b) certification [of the merits order] is superfluous.”
The opinion leaves some open questions for the bar, of course:
1. In what circumstances can the trial court hear the motion for attorney’s fees after a notice of appeal has been taken from the merits order? Analyzing this question probably begins with N.C. Gen. Stat. 1-294:
When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.
In other words, the Hausle court’s inquiry into the relatedness of the merits order and the attorney’s fee motion may be alive and well at least in this context.
2. In what circumstances is an order requiring the payment of attorney’s fees final if there are other issues relating to attorney’s fees still outstanding? In other words, when is an order requiring the payment of attorney’s fees a final “judgment on the merits”?
Finally, a practice tip. The drawback to the ruling today is that some cases will indeed be appealed twice: once on the merits, and then again later on attorney’s fees. How can you get around this piecemeal appeal process? If you get the call from the Judge’s chambers to draft an order on the merits, consider asking the trial court not to enter any written order until the issue of attorney’s fees can be resolved at the same time.