Back in November, I wrote about the possibility of a fee award being immediately appealable if the amount in question is significant enough. In the latest batch of opinions from the Court of Appeals, that issue reared its head again.
In Preston v. Preston, the trial court was bothered by inconsistent allegations in the defendant’s verified pleadings and issued sanctions pursuant to Rule 11. In that order, the trial court awarded $15,000 in attorney fees to the plaintiff. When the defendant attempted to appeal from that order, the Court of Appeals dismissed the appeal as not affecting a substantial right. The Court said that a previous case allowing an interlocutory appeal was distinguishable because the fee award there “was requested pursuant to statutory authority” and “involved the final disposal of an underlying issue.” Given the amount of fees at issue, the Court in Preston was not necessarily breaking any new ground in holding that the appeal should be dismissed.
But enter the plot twist: a dissent. Judge Tyson would have voted to hear the appeal on its merits because, in his opinion, “substantial attorney fees awarded as Rule 11 sanctions are immediately appealable.” He stated: “Considering the particular facts of this case, Defendant’s substantial rights are affected by the trial court’s order to pay a ‘not insignificant amount’ before the final determination of the divorce judgment.”
If there is a further appeal to the Supreme Court based on the dissenting opinion, the case may provide some clarity on this enigmatic issue. Stay tuned.
P.S. I would be remiss if I did not mention that this batch of opinions also included several interesting decisions on the timing effects of COVID-related orders.