If you were entitled to attorneys’ fees for trial-level work in a Chapter 75 case, you are entitled to attorneys’ fees for appellate-level work as well. The Court of Appeals reaffirmed this simple principle this morning in Faucette v. 6303 Carmel Road, LLC.
“The purpose of attorneys fees in Chapter 75 . . . is to encourage private enforcement of Chapter 75.” United Labs., Inc. v. Kuykendall, 335 N.C. 183, 192, 437 S.E.2d 374, 380 (1993). Though the Supreme Court has made plain that the availability of attorneys’ fees “is in no way related to the need to deter” willful misconduct, id., I think it inescapable that the availability of a further award of fees against an unsuccessful Chapter 75 appellant may at least deter the filing of a “long shot” appeal. Perhaps the specter of a hefty appellate bill being shifted to the appellant creates some space for settlement negotiations post-judgment.
In any event, the procedures for seeking appellate attorneys’ fees are straightforward. After your appeal is docketed, file a “short and sweet” motion for fees with the appellate court. In the Court of Appeals, the court will likely refer your motion to the “merits panel” for decision alongside the merits of the appeal. If you prevail, the court will then affirm the fee award, award fees for the appeal without specifying the amount, and remand to the trial court to determine the number of hours spent on the appeal, determine the reasonable hourly rate for that work, and enter a judgment for additional fees.
(There is some support for an alternative procedure of asking the trial court, post-appeal, to award fees and determine the amount, but I think it is safer and more efficient to ask the appellate court for the award, leaving only the calculation for the trial court on remand.)
Of course, the trial court judgment awarding additional fees is subject to appeal as well, but hopefully pragmatism and a deferential standard of review will eventually truncate what would otherwise present a never-ending cycle of appeals.