Client Alert: Virginia Court of Appeals Clarifies Finality for Cases Seeking Attorney Fee Awards
Date: August 8, 2025
The central issue before the Court of Appeals was whether a circuit court order, ruling on the last remaining liability question while reserving the question of who the prevailing party was and whether and how much attorney fees and costs would be awarded, was still a final order.
The Court of Appeals concluded it was not and so was not appealable. In doing so, it offered practical guidance for parties seeking to obtain such consequential relief and to avoid premature appeals.
The appeal arose from a petition by the Virginia State Conference of the NAACP seeking relief under VFOIA against the Governor, namely production of documents responsive to a request and an award of attorney fees. In response, the Governor produced four of the five categories of public records sought, but demurred to the fifth category, arguing they were exempt as working papers.
At a hearing on the demurrer, the Circuit Court agreed, finding the fifth category of records exempt as “working papers.” In response, the NAACP urged that, having prevailed on the four other categories, it yet had “substantially prevail[ed] on the merits” of the case and so was entitled to fees by statute. The Circuit Court declined to rule on the point at the hearing.
Relevant here, the Circuit Court’s written order sustaining the Governor’s demurrer “expressly provided: ‘This matter is continued to address Petitioners' request for an award of fees and costs.’”
The NAACP noted an appeal of that order and moved for an award of attorney fees. While the appeal was pending, the trial court denied the NAACP’s motion for attorney fees, holding that it had lost jurisdiction because its earlier order was final and the matter was on appeal. The NAACP appealed this ruling as well, and the two appeals were consolidated.
The Court of Appeals’ per curiam opinion provides an excellent roadmap for how parties should assess whether an order is, in fact, final under Rule 1:1(b).
The Court began by reiterating the well-established principle that an order is final only if it disposes of the entire action, including all claims and requested relief, leaving nothing for the court to do except execute the judgment. Orders that leave substantive matters unresolved, or expressly retain jurisdiction to address pending claims, are interlocutory rather than final: “[A]n order that ‘retains jurisdiction to reconsider the judgment or to address other matters still pending’ is ordinarily not a final order.”
Applying these standards, the Court found that Circuit Court’s order was not final because it left open the NAACP’s statutory claim for attorney fees and costs—a substantive component of the relief sought. Thus, the order “did not address ‘all pending claims’,” but instead “expressly left open the question of attorney fees,” “a substantive matter that the NAACP had pleaded in its petition.”
The Court distinguished this situation from cases where post-judgment motions for fees or costs are not addressed in an otherwise final order, explaining: “The filing of ancillary motions for the recovery of costs or the filing of other post-trial motions does not suddenly transform an otherwise final order into a nonfinal order.” But here, the order “expressly continued the matter to address attorney fees. By doing so, it indicated the 21-day time period of Rule 1:1(a) had not started; the court was not attempting to interrupt the 21-day time period of Rule 1:1(a). ‘Rather, it was expressly indicating that the order was not rendering a final judgment.’”
Thus, the Court dismissed without prejudice the premature appeal of the order that had not resolved the attorney fees issue and remanded the matter to the circuit court for further proceedings on the attorney fees issue.
Civil litigants should pay close attention to this decision, which underscores the importance of promptly raising follow-on relief at dispositive motions hearings, carefully crafting the terms of an order resolving any part of a case, and closely assessing the finality of orders before incurring the time and expense of an appeal.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.