Last summer in Duncan v. Duncan, the Supreme Court of North Carolina issued a bright-line rule explaining that a pending attorneys’ fees motion does not bar an appeal of an order that otherwise decides all substantive claims. We blogged about (and applauded) that decision last June. The Court of Appeals today issued an opinion in Sanders v. State Personnel Commission addressing a somewhat related matter—whether an appeal of an attorneys’ fees award itself is “final” or interlocutory.
Sanders was filed in 2005 and has now been to the Court of Appeals three times. The plaintiffs are temporary employees of the State of North Carolina who, the State admits, worked in temporary positions for more than year. (State regulations stipulate that a person may not be employed as a temporary employee for a period exceeding 12 consecutive months.) Plaintiffs assert that they are entitled to the rights, benefits, and status of permanent state employees based on the longevity of their employment. On the case’s third trip to the Court of Appeals, plaintiffs appealed the trial court’s grant of summary judgment in favor of defendants while the defendants cross-appealed the trial court’s award of costs, including attorneys’ fees, in plaintiffs’ favor. However, when defendants appealed, the trial court had not yet determined the amount of the attorneys’ fees award.
In examining the propriety of the defendants’ cross appeal the Court explained that “an appeal of the collateral issue of attorney fees . . . is interlocutory if the trial court has not set the amount to be awarded.” This is a straight-forward, intuitive holding: an award of fees is not “final” if the amount of fees to be awarded is as yet undecided. Such orders meet the definition of “interlocutory,” and are generally not immediately appealable because they do not affect a substantial right. By way of example, an order awarding fees but not determining the amount seems no different from an order finding liability but leaving a damages determination for another day—an order that is not immediately appealable either.
Here, though, one of the North Carolina’ defendants’ arguments was that the trial court’s attorneys’ fee award was in derogation of North Carolina’s sovereign immunity, which affects a substantial right and is immediately appealable. A majority of the Court agreed and considered the defendants’ sovereign immunity arguments while discarding the others. In a dissenting opinion, Judge Robert N. Hunter, Jr. asserted that the majority opinion should have dismissed the defendants’ appeal outright because of his finding that the State had waived sovereign immunity. Ultimately, the Court upheld the trial court’s decision to award a to-be-determined amount of attorneys’ fees in favor of plaintiffs, but left open the door for an additional appeal once a final award issues.
So, while Sanders has been complicated enough to spawn three trips to the Court of Appeals (and probably a trip to the Supreme Court or another trip down to the trial court and back up to the appellate division), the take-away for appellate practitioners is a simple one: if the Court hasn’t put a final figure on an attorneys’ fee award, that decision is an interlocutory one that is generally not immediately appealable–unless it affects a substantial right.