John M. Kirby
Duncan v. Duncan | Interlocutory Appeals
In Duncan v. Duncan, from June 13, 2013, the North Carolina Supreme Court resolved a perplexing issue of North Carolina appellate procedure. In this case, the District Court entered a judgment on the merits of the case, saving for resolution only a claim for attorneys fees. The issue in the case was whether the party desiring should (and must) appeal following that judgment, or whether his time for appealing did not run until the motion for attorneys fees was ruled upon. The Court held that the party seeking to appeal must do so immediately, and should not (and cannot) wait for a ruling on the motion for attorneys fees. The court reasoned that the issue of attorneys fees was collateral to the judgment.
Several prior cases had addressed this issue, with somewhat conflicting results. This issue highlights the complexity of prosecuting an appeal in North Carolina. If the notice of appeal is not timely, then the appeal is typically dismissed, and the court often views the issue as one of “jurisdiction.”
This ruling also raises other pragmatic issues. For example, if a party appeals the original ruling, and hten seeks to appeal from the ruling on attorneys fees, he might have to simultaneously pursue two appeals, arising from the same case.