Thursday, August 23, 2007, 5:35 PM

Tuesday's COA Decisions

This is late, as vacation intervened, but Tuesday's Court of Appeals (COA) decisions (8/21/07) brought fewer cases than usual and a relatively less interesting batch. The COA issued 10 published civil decisions. Among those 10 there were only two dissents, both of which were in domestic cases. Thus, the non-domestic civil cases were all unanimous. So not much controversy. I discuss two cases below.

1) In Cotter v. Cotter, the COA declined to dismiss an appeal despite appellate rule violations. The COA observed the division among its panels about whether or not to dismiss appeals based on rule violations after the Supreme Court's May 4, 2007 decision in State v. Hart. (Compare McKinley Bldg. Corp. v. Alvis, 645 S.E.2d 219 (2007) (not dismissing) and Peverall v. County of Alamance, 645 S.E.2d 416 (2007) (same) with Dogwood Dev. & Mgmt. Co. v. White Oak Transport Co., 645 S.E.2d 212 (2007) (dismissing).) In Cotter the appellant failed to include a statement of the applicable standard of review, in violation of Rule 28(b)(6), and had an assignment of error that violated Rule 10(c)(1). The COA held, however, that these violations were not sufficiently egregious to warrant dismissal.

2) In McClure v. County of Jackson, the COA dealt with two questions.

a) The first question was this: when a case becomes moot on appeal, does this also moot the issue whether plaintiff may recover attorney fees? The COA said no. The plaintiff challenged his removal from a county airport authority. The trial court ruled that the removal was unlawful and entered a judgment to that effect--a judgment which also retained jurisdiction to rule on plaintiff's motion for attorney fees. After defendants filed their notice of appeal, the trial court entered an order awarding attorney fees to plaintiff. Defendants appealed that order too. On appeal the matter of plaintiff's removal became moot, because plaintiff's term on the airport authority expired. The issue arose whether this also mooted the appeal of the attorney fees order. Relying on a 20-yr-old 4th Circuit case, the COA held that the challenge to the attorney-fees award was not moot.

b) The COA next addressed this question: Did the trial court have jurisdiction to award attorney fees after the (first) notice of appeal was filed, or did the filing of the notice of appeal divest the trial court of jurisdiction to do so? The COA held, on the basis of G.S. 1-294, that the filing of a notice of appeal divests a trial court of jurisdiction to award attorney fees--and that a trial court cannot circumvent this rule by "reserving" in its judgment the power to award attorney fees after the judgment. The COA added, "While we understand that the interests of judicial economy would clearly be better served by allowing the trial court to enter an order on attorney's fees and then having the matter come up to the appellate courts as a single appeal, we cannot create jurisdiction for the trial court to enter the award of attorney's fees in violation of N.C. Gen. Stat. ยง 1-294. . . . When faced with the possibility of an award of attorney's fees, 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 will result in only one appeal, from one judgment, incorporating all issues in the case."


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