Normally, an interlocutory order awarding attorney fees is not immediately appealable because it does not affect a substantial right that will be lost absent immediate review. But is there a potential exception to that rule based on the amount of the fees at issue? If an interlocutory order requires the immediate payment of a significant amount of fees, is it immediately appealable?
Maybe. In IzMaCo Investments, LLC v. Royal Roofing & Restoration, LLC, the trial court partially dismissed a complaint and then awarded attorney fees pursuant to N.C. Gen. Stat. § 1D-45. (As a refresher, that statute allows for fees “resulting from the defense” against a punitive damages claim that the plaintiff “knows or should have known to be frivolous or malicious.”) Because the fees were awarded at the Rule 12 stage, they were relatively modest by most standards—only $1,129.29.
The plaintiff attempted to appeal from that order, arguing that immediate review is warranted whenever an order requires the immediate payment of a significant sum of money. After all, the Court of Appeals recently reaffirmed that “a substantial right is invoked when the sanction ordered is a substantial sum and is immediately payable.” A similar rule applies to a money judgment.
The amount that has been considered “substantial” enough to trigger a right to immediate appeal has varied widely over the years:
2021, Porters Neck Limited, LLC v. Porters Neck Country Club, Inc.: $48,000
2020, Wing v. Goldman Sachs Tr. Co.: more than $2 million
2018, Beasley v. Beasley: $48,188
2011, In re Fifth Third Bank, N.A.—Vill. of Penland Litig.: $500,000
2006, Estate of Redden ex rel. Morley v. Redden: $150,000
1988, Atkins v. Mitchell: $1,054,916
1978, Beck v. Am. Bankers Life Assur. Co. of Fla.: $21,500
1977, Wachovia Realty Invs. v. Hous., Inc.: $204,603
The IzMaCo Court held that the $1,129.29 in attorney fees did not constitute a “significant sum”—and therefore the trial court’s order was not immediately appealable. However, the Court did not shut the door on the possibility of a fee award being immediately appealable.
This aspect of substantial-right jurisprudence raises some interesting questions. What exactly is a “substantial” sum? Is “substantial” analyzed in a vacuum or in light of the case’s procedural history? Is it adjusted for inflation? Is it dependent on the party’s financial resources?
The caselaw is sparse, so there are no answers to these questions for now. But practitioners should remember this principle when faced with an interlocutory order that requires immediate payment: there is a chance that the order is immediately appealable.