Fox Rothschild's blog about practicing law in North Carolina state and federal appellate courts
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.” … Continue Reading
In its most recent batch of opinions, the North Carolina Court of Appeals reminded the bar once again what must be included in a trial court order awarding attorneys’ fees.
In Brown’s Builders Supply v. Johnson, the defendants appealed a judgment awarding damages and attorneys’ fees. While the Court of Appeals rejected their other arguments, the defendants successfully argued that the trial court abused its discretion in awarding attorney’s fees because the record lacked sufficient findings to support the award.… Continue Reading
After Dogwood, it is fairly rare that an appellate court will dismiss an appeal for rules violations. However, that reluctance does not give carte blanche to appellate practitioners, as the Court of Appeals reminded us today. In Williamson v. Williamson, the appellant relied on “bald assertions of error absent citation to any legal authority.” Furthermore, the appellant did not include transcripts from the trial court hearings, which prevented the court from “meaningful appellate review.”… Continue Reading
The Fourth Circuit Court of Appeals issued two opinions last week clarifying issues relating to notices of appeal.
In Jackson v. Lightsey, the Fourth Circuit addressed 1) whether a notice of appeal that failed to specify that the appeal was being made to the Fourth Circuit was sufficient to confer appellate jurisdiction, and 2) whether a notice of appeal that designated a 2013 order, but not a 2012 order, was sufficient to allow the Fourth Circuit to review the 2012 order. … Continue Reading
The concept of waiver is fairly straightforward and can generally be summed up by the adage “use it or lose it.” But when it comes to appellate practice, the concept can have disastrous consequences. Yesterday’s opinions from the Court of Appeals highlight some of these concerns.
WAIVER IN OBJECTIONS AT TRIAL
Gregory v. Old Republic Home Protection Co. was a wrongful death action resulting from a carbon monoxide poisoning death.… Continue Reading
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.… Continue Reading
1) Appeal from an order that can be appealed. The Court of Appeals reminded us today that interlocutory attorney fee awards are not immediately appealable. Cebula v. Givens Estates, Inc. Neither are decisions from the Industrial Commission that are limited to the question of insurance coverage. Owen v. Hogsed. Neither are orders that dismiss some, but not all, claims. Fox v.… Continue Reading
How exactly can a client recover for attorney’s fees expended on appeal? The Court of Appeals provided some clarity on this question today, at least in the family law context.
The central issue in McKinney v. McKinney was whether a trial court has the authority to award attorney’s fees upon remand from the Court of Appeals if the motion for fees was not made before the appellate court.… Continue Reading
In its latest round of opinions, the Court of Appeals applies principles regarding possible statutory bases to support the award of attorneys’ fees for appellate matters, the futility of raising new arguments on appeal, and the effect of violating non-jurisdictional rules of appellate procedure. The grab-bag of cases described below doesn’t state any new rules, but appellate practitioners would be well-served to mind these refreshers.… Continue Reading
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:
… Continue ReadingToday we clarify the effect of an unresolved request for attorney’s fees on an appeal from an order that otherwise fully determines the action.
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