Award of Attorney's Fees Not Appealable Under Special Motion to Strike

An award of attorney's fees under a special motion to strike is generally an interlocutory, non-appealable judgment.

By Bradley C. Guin

2 min read
Got dinged with attorney’s fees after losing a special motion to strike under Louisiana Code of Civil Procedure article 971? Don’t appeal it. In a recent decision from the Louisiana First Circuit Court of Appeal, the court held that a separate award of attorney’s fees in favor of the nonmovant under Article 971 is an interlocutory, rather than a final, judgment and is not appealable.
Under Article 971, a party can file a special motion to strike if the plaintiff’s cause of action “arise[es] from any act of that person in furtherance of the person’s right to petition or free speech under the United States or Louisiana in connection with a public issue . . . .” La. Code Civ. Proc. art. 971(A)(1). This type of motion is commonly called an “anti-SLAPP” motion, or anti-strategic lawsuit against public participation. The prevailing party on a special motion to strike is entitled to attorney’s fees under Article 971(B).
In Triton Diving Services LLC v. Offshore Marine Service Association, Inc., 23-0169 (La. App. 1 Cir. 9/21/23), ___ So. 3d ____, 2023 WL 6158402, the defendants filed for a special motion to strike and lost. The first judgment denied the motion but did not address attorney’s fees. The plaintiff then filed a separate motion to set attorney’s fees, which the trial court granted. The plaintiffs appealed from the second motion setting attorney’s fees. The First Circuit, however, dismissed the appeal because it lacked appellate jurisdiction.
The defendants argued that the judgment was appealable under La. Code Civ. Proc. art. 1915(A)(4), which permits appeals from final judgments on incidental demands. But the motion to strike, motion to set attorney’s fees, and the oppositions were not incidental demands, as defined by the Code of Civil Procedure. Moreover, the motion to set attorney’s fees did not resolve all of the claims in the underlying litigation, which remained pending. The First Circuit explained that, “[i]n cases where the trial court denies a motion to strike, the better practice would be for the trial court to award the attorney’s fees and costs in accordance with [Article 971] at the trial on the merits and include the award in the final judgment.” Id. at *5. This, according to the court, “would avoid the conundrum of having to appeal a partial judgment in accordance with [Article 1915(B)] that may or may not be granted by” the appellate court. Id.
Summed up: The award of attorney’s fees to the nonmoving party on a special motion to strike is an interlocutory judgment and, therefore, is not appealable. Rather, the correct procedural vehicle to seek review of the judgment is an application for supervisory writs, or the losing party can attempt to have the judgment certified as an appealable judgment.

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