Generally, a claim for attorneys’ fees is not part of the merits of the action to which the fees pertain.[i] A judgment related to attorneys’ fees and costs are considered to be final and appealable. An appellate court has only jurisdiction to entertain appeals from final orders and the attorney fee issues are subject to the ordinary principles of finality.[ii] Therefore, the denial of a request for attorneys’ fees is not a final judgment if the question of damages still remains.
The general rule is that the courts do not possess any appellate jurisdiction over a non final order, and therefore, an unliquidated attorney’s fee award will not be appealable. An appellate court will not have any jurisdiction to examine the merits of an attorney’s fee award where the award has not been quantified. However, if the judgment on the merits of the case is final, the decision on the merits becomes immediately appealable, even where an award of attorneys’ fees remains unliquidated.[iii]
It was observed in Pridgen v. Andresen, 113 F.3d 391 (2d Cir. Conn. 1997), that the orders that award attorneys’ fees as a sanction are not appealable until the amount of the sanction is determined. An order awarding fees which is not yet determined can be consolidated on appeal with a final judgment on the merits. Such orders are considered as final, appealable judgments in appropriate circumstances.
An order that resolves claims for attorneys’ fees and expenses payable out of a common fund is severable from the decision on the merits and final to be separately appealable.[iv] In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143 (3d Cir. Pa. 2005), it was established that an award of interim fees can be reviewed after final judgment. Exception to this is when the mere payment of fees will make them unrecoverable.
[i] Budinich v. Becton Dickinson & Co., 486 U.S. 196 (U.S. 1988)
[ii] Daimler-Chrysler Servs. N. Am., LLC v. Summit Nat’l, Inc., 289 Fed. Appx. 916, 926 (6th Cir. Mich. 2008)
[iii] Pennsylvania v. Flaherty, 983 F.2d 1267 (3d Cir. Pa. 1993)
[iv] In re Nineteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603 (1st Cir. P.R. 1992)