News & Noteworthy

Authored - NJ Contract Law Update - Contractual Attorneys Fees: When To Appeal
OCTOBER 03, 2012 | Windels Marx - Commercial Litigation

Let's say your contract has an attorneys fee provision, and you suffer an adverse ruling in litigation on that issue (potentially including quantum of fees). In Central Pension Fund v. Ray Haluch, --- F.3d ---, 2012 WL 3984621 (1st Cir. Sept. 12, 2012), the First Circuit weighed in on one of the law's least certain issues: the time to appeal a contractual attorneys-fee award in the federal system.

In the New Jersey state-court system, the answer is simple: an attorney's fee application is made at the very conclusion of the case. That R. application is timely if filed within twenty days after entry of the final judgment in chief. See R. 4:49-2; R. 4:42-9(d); and Pressler & Verniero, Current NJ Court Rules, Comment to R. 4:42-9(d), and cases therein cited. Thus, the appeal on all issues follows the entry of the fee-award order. This is because of our state-court system's extremely strong policy of avoiding piecemeal appeals.

In the federal system, where that policy is not so inviolate, appeals of contractual attorney-fee issues involve invocation of arcane and nearly-indecipherable procedural principles; thereby making predictability as difficult as interpretation. See Central Pension, supra; citing (and attempting to explain), inter alia, Gleason v. Norwest Mortgage, Inc., 243 F.3d 130 (3d Cir. 2001), and Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989).

The moral of the story is that in the federal system, 'guessing wrong'--choosing the later of two possible dates to file an attorney-fee appeal--is dangerous. A federal litigant may be best advised to file the appeal at the earliest possible date1, even if that party eventually finds out that he/she appealed too early and is criticized (or other minor consequence). Better too early than too late.

Contact & Legal Disclaimer

Clark Alpert is the author of Guide to New Jersey Contract Law, published by the New Jersey Institute for Continuing Legal Education, originally published in 2007 and updated in November 2011. His updates on New Jersey contract law are based in recent issues and practical methods for addressing similar situations in your practice or business. They are not intended to serve as legal advice. Clark welcomes your questions and comments.

1 If not successively.

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