Can a party wait to appeal a substantive order if a motion for attorneys’ fees is still pending? If you feel like you have heard this question before, you are correct. Six months ago, we blogged about a Supreme Court of North Carolina decision answering this question with a bright-line “No.” In North Carolina appellate courts, a pending motion for attorneys’ fees does not change the deadline for filing a notice of appeal.
This week, the United States Supreme Court provided a similar answer to a similar question in Ray Haluch Gravel Co. In 1988, the Court held in Budinich v. Becton Dickinson & Co. that a decision on the merits is a “final decision” that can be appealed even if the award or amount of attorneys’ fees for the litigation remains to be determined.
However, the appellant in Ray Haluch argued for the application of a different rule because its bid for fees was based on a contract, rather than a statute. In essence, the Ray Haluch appellant argued that a contractual attorneys’ fees provision creates a substantive claim that had to be resolved to create a final decision on the merits. This was a critical issue in Ray Haluch because while the appellant had filed its appeal within 30 days of the issuance of the final attorneys’ fee award, the appellant did not file its notice of appeal within 30 days of the district court’s order determining which other payments were due to the appellant under the contract.
Writing for a unanimous United States Supreme Court, Justice Kennedy held that “Whether the claim for attorneys’ fees is based on a statute, a contract or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Therefore, the appellants’ appeal of the merits judgment was untimely, and the First Circuit Court of Appeals lacked jurisdiction to hear the appellant’s challenge to the merits judgment.
With this decision, both North Carolina state and federal courts appear to have adopted a uniform rule on this issue: A decision on the merits constitutes a final decision that starts the 30-day deadline for filing an appeal—even if that decision defers a ruling on attorneys’ fees.