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COA Reminds: Don't Wait For Costs/Fees To Be Resolved Before Appealing Judgment

By Sean E. Andrussier

Today the Court of Appeals (COA) dismissed an appeal for lack of jurisdiction because the appellant filed the notice of appeal too late. The case is In re Will of Fannie J. Harts.

This was a caveat proceeding. The caveator lost. The trial court entered judgment on May 21, 2007, but didn't address at that time the motion for costs and attorneys' fees. Rather than filing a notice of appeal within 30 days after the judgment, the caveator decided to wait until the motion was resolved. It was resolved two months later, by order entered July 24, 2007, awarding costs and fees.

Seventeen days later the caveator filed a notice of appeal--both for the July 24, 2007 order on fees/costs and for the underlying May 21, 2007 judgment. The COA held that it had no jurisdiction to review the underlying judgment, because the appeal wasn't timely filed, i.e., wasn't filed within 30 days after the May 21st judgment: "when the judgment was entered before the issues of costs and attorney's fees had been settled, the only course of action was for caveator to appeal the 21 May 2007 judgment."

In most situations, if the notice of appeal is filed before the trial court has addressed costs/fees, the trial court must wait until the case has been remanded from the appellate court to address costs/fees. This is because (absent special circumstances) the filing of the appeal divests the trial court of jurisdiction over the matter. McClure v. County of Jackson, 648 S.E.2d 546 (2007).) As the COA reminded trial courts today, quoting McClure, "'the better practice is for the trial court to defer entry of the written judgment until after a ruling is made on the issue of attorney's fees, and incorporate all of its rulings into a single, written judgment.' This course of action will serve to eliminate a host of jurisdictional traps and black holes at both the trial and appellate levels."

Full post as published by North Carolina Appellate Blog on August 05, 2008 (boomark / email).