Comment by:
Lauren Fussell

36 Campbell L. Rev. 339 (2014)

INTRODUCTION. When a trial is over, and if permitted by statute, the winning party will often ask the court to grant attorney’s fees. Likely, the judge will not decide the claim for attorney’s fees at that time, but instead, will enter an order deciding only the merits of the substantive claims. This leaves the issue of attorney’s fees undecided and reserved for a later decision. What should the losing party do? Can the losing party immediately appeal the decision on the merits? Or must the losing party wait to appeal until the judge decides the pending attorney’s fees claim? Historically, North Carolina case law in this area has been unclear at best. Recently, however, the Supreme Court of North Carolina has taken great strides to clarify the law determining when a judgment is final. Recent decisions have brought clarity to the law, allowing practitioners to file timely appeals and enabling judges to issue more uniform decisions regarding the appealability of pending claims for attorney’s fees.

Generally, the right to appeal from the ruling of a trial court is granted only by statute. The North Carolina General Statutes specify, with a few exceptions, that a party has the right to appeal from the final judgment of a trial court directly to the Court of Appeals of North Carolina. If no right of appeal is present in the statutes, the appellate court, on its own motion, must dismiss the appeal, even if a party has not raised the question of appealability. Although the basics of appellate civil procedure are sufficiently spelled out in the statutes and explained in case law, the ambiguity regarding terms such as “final” and “interlocutory” make it difficult to ensure that a judgment is actually “final” before filing an appeal. This is even more evident when a judge has issued an order on the merits that resolves all of the substantive issues of the claim, but leaves a claim for attorney’s fees pending.

This Comment focuses on the jurisprudence surrounding the finality and appealability of an order that determines the merits of a claim but leaves a claim for attorney’s fees unresolved. The legal landscape surrounding this issue in North Carolina has recently undergone drastic changes to resolve much of the confusion and contradiction.

Part I begins with an introduction to general appellate procedure and explains what makes an appeal untimely or interlocutory. Part II describes the two major ideological approaches in reaching such determinations and shows how other jurisdictions decide whether a merits order is final, and therefore, immediately appealable when an unresolved claim for attorney’s fees remains. Part III traces the modern changes to the landscape of that same question in North Carolina. Finally, Part IV analyzes the recent Supreme Court of North Carolina decision in Duncan v. Duncan, which has entirely changed the analysis for unresolved claims regarding attorney’s fees in North Carolina. The final Part of this Comment identifies some of the questions and issues that remain after the Duncan decision.

AUTHOR. The Author would like to thank Professor Matthew W. Sawchak for recommending the topic of this Comment and for inspiring dedication to writing it. His thoughtful advice and support were invaluable during the writing process.

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