{ "id": 8301144, "name": "ASHLEY STEPHENSON, et al., Plaintiffs v. GARY O. BARTLETT, et al., Defendants", "name_abbreviation": "Stephenson v. Bartlett", "decision_date": "2006-04-18", "docket_number": "No. COA05-793", "first_page": "239", "last_page": "246", "citations": [ { "type": "official", "cite": "177 N.C. App. 239" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "348 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659878 ], "opinion_index": -1, "case_paths": [ "/nc/348/0130-01" ] }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "357 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491746, 491556, 491716, 491430, 491404, 491472, 491859, 491578 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0506-01", "/nc/357/0506-03", "/nc/357/0506-04", "/nc/357/0506-07", "/nc/357/0506-08", "/nc/357/0506-02", "/nc/357/0506-06", "/nc/357/0506-05" ] }, { "cite": "610 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632578, 12632579, 12632580, 12632581 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/610/0715-04", "/se2d/610/0715-01", "/se2d/610/0715-02", "/se2d/610/0715-03" ] }, { "cite": "359 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632578, 3801892, 12632580, 12632581, 3798472, 12632587, 3796173, 3795856, 3798673, 3798551, 3799833, 3794654 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/610/0715-04", "/nc/359/0286-07", "/se2d/610/0715-02", "/se2d/610/0715-03", "/nc/359/0286-04", "/se2d/610/0718-02", "/nc/359/0286-01", "/nc/359/0286-03", "/nc/359/0286-08", "/nc/359/0286-05", "/nc/359/0286-02", "/nc/359/0286-06" ] }, { "cite": "487 U.S. 312", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1775031 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "316-17" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/us/487/0312-01" ] }, { "cite": "371 U.S. 178", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450547 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "181-82" }, { "page": "226-26" } ], "opinion_index": 0, "case_paths": [ "/us/371/0178-01" ] }, { "cite": "500 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1998, "pin_cites": [ { "page": "67" }, { "page": "69" }, { "page": "159" }, { "page": "71" }, { "page": "162" }, { "page": "72-73" } ], "opinion_index": 0 }, { "cite": "190 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "185", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "187" } ], "opinion_index": 0 }, { "cite": "281 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576360 ], "year": 1972, "pin_cites": [ { "page": "691", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0684-01" ] }, { "cite": "526 A.2d 1318", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1987, "pin_cites": [ { "page": "1323" } ], "opinion_index": 0 }, { "cite": "525 N.E.2d 400", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "402-03", "parenthetical": "\"Most courts generally have determined that, absent a specific legislative directive, it is inappropriate to award attorneys' fees on a 'private attorney general' theory.\"" } ], "opinion_index": 0 }, { "cite": "751 N.E.2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11083012 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "661", "parenthetical": "\"Likewise, a number of states have rejected the private attorney general doctrine.\"" }, { "page": "661-64" } ], "opinion_index": 0, "case_paths": [ "/ne2d/751/0657-01" ] }, { "cite": "106 A.L.R.5th 523", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "permitting award of attorney fees to parties appealing or defending against agency action" } ], "opinion_index": 0 }, { "cite": "536 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "353-54" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125834 ], "year": 2000, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0270-01" ] }, { "cite": "610 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470105 ], "year": 2005, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0358-01" ] }, { "cite": "536 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "640" }, { "page": "640" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127046 ], "year": 2000, "pin_cites": [ { "page": "350-51" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0345-01" ] }, { "cite": "587 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "583 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "399", "parenthetical": "citing Von Ramm and analyzing whether it could be \" 'fairly inferred' from the face of the notice of appeal that plaintiff intended to appeal from anything other than the judgment notwithstanding the verdict\"" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 334", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955896 ], "year": 2003, "pin_cites": [ { "page": "343-44", "parenthetical": "citing Von Ramm and analyzing whether it could be \" 'fairly inferred' from the face of the notice of appeal that plaintiff intended to appeal from anything other than the judgment notwithstanding the verdict\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0334-01" ] }, { "cite": "439 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "175", "parenthetical": "notes Rule 3 is jurisdictional, but proceeds to quote Von Ramm and considers whether intent to appeal could be \"fairly inferred\" or if the party accomplished the \"functional equivalent\"" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521941 ], "year": 1994, "pin_cites": [ { "page": "291", "parenthetical": "notes Rule 3 is jurisdictional, but proceeds to quote Von Ramm and considers whether intent to appeal could be \"fairly inferred\" or if the party accomplished the \"functional equivalent\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0282-01" ] }, { "cite": "258 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551174 ], "year": 1979, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0269-01" ] }, { "cite": "392 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "424" }, { "page": "424" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521453 ], "year": 1990, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0153-01" ] }, { "cite": "394 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526524 ], "year": 1990, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0188-01" ] }, { "cite": "486 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "737", "parenthetical": "citing Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683 (1990)" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 800", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713506 ], "year": 1997, "pin_cites": [ { "page": "802", "parenthetical": "citing Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0800-01" ] }, { "cite": "540 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "353 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135912 ], "year": 2000, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0142-01" ] }, { "cite": "358 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987971 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0149-01" ] }, { "cite": "595 S.E.2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "\"Stephenson III\"" } ], "opinion_index": 0 }, { "cite": "358 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987643 ], "year": 2004, "pin_cites": [ { "parenthetical": "\"Stephenson III\"" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0219-01" ] }, { "cite": "582 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "\"Stephenson II\"" } ], "opinion_index": 0 }, { "cite": "357 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491711 ], "year": 2003, "pin_cites": [ { "parenthetical": "\"Stephenson II\"" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0301-01" ] }, { "cite": "562 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "\"Stephenson I\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219939 ], "year": 2002, "pin_cites": [ { "parenthetical": "\"Stephenson I\"" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0354-01" ] }, { "cite": "348 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659878 ], "weight": 2, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0130-01" ] }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "parenthetical": "permitting an award of attorney fees to a prevailing party in an action or proceeding to enforce certain enumerated federal statutes listed therein" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 878, "char_count": 16789, "ocr_confidence": 0.707, "pagerank": { "raw": 3.382661309364499e-07, "percentile": 0.8764578552649208 }, "sha256": "15df418932648995b30da6ae9ee72d65f05e6f55b065ba8b9c7e3429c0c6656d", "simhash": "1:192d57e2b5bb2e41", "word_count": 2739 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEPHENS concur." ], "parties": [ "ASHLEY STEPHENSON, et al., Plaintiffs v. GARY O. BARTLETT, et al., Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nThe procedural context and operative facts of this case are fully set forth in Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) (\u201cStephenson I\"), Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247 (2003) (\u201cStephenson II\"), and Stephenson v. Bartlett, 358 N.C. 219, 595 S.E.2d 112 (2004) (\"Stephenson III\"), which was consolidated for. hearing with Morgan v. Stephenson, 358 N.C. 149 (2004). During the interim between Stephenson II and Stephenson III, plaintiffs filed a motion seeking costs and attorney fees, which was held in abeyance until our Supreme Court rendered its decision in Stephenson III on 22 April 2004. Subsequently, on 19 November 2004, the trial court entered an order denying plaintiffs\u2019 request for attorney fees \u201cbased on the lack of statutory authority for such an award.\u201d\nFollowing entry of the trial court\u2019s order, plaintiffs gave \u201cnotice of appeal to the Supreme Court of North Carolina from the portion of the Order ... by which the court denied plaintiffs\u2019 motion for attorney\u2019s fees.\u201d However, our Supreme Court denied plaintiffs\u2019 motion to allow direct appeal. Stephenson v. Bartlett, 359 N.C. 286, 610 S.E.2d 715 (2005). Plaintiffs did not, thereafter, file notice of appeal to this Court.\nParties permitted by law to appeal from a judgment or order must do so by filing an appropriate notice of appeal. N.C.R. App. P. 3. Subdivision (d) of Rule 3 governs the content of the notice of appeal and provides as follows:\nThe notice of appeal required to be filed and served by subdivision (a) of this rule . . . shall designate the judgment or order from which appeal is taken and the court to which appeal is taken....\nId. \u201cIn order to confer jurisdiction on the state\u2019s appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure.\u201d Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000). \u201cThe provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.\u201d Abels v. Renfro Corp., 126 N.C. App. 800, 802, 486 S.E.2d 735, 737 (1997) (citing Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683 (1990)).\nThough defendants raised no objection to plaintiffs\u2019 designation of the Supreme Court as the \u201ccourt to which appeal is taken,\u201d we raised this issue sua sponte at oral argument. Notwithstanding the opportunity to do so, plaintiffs did not claim the error was a mere mistake in drafting, and, indeed, claimed their mistaken notice of appeal was sufficient to confer jurisdiction on this Court under Rule 3(d).\n\u201c[W]e may liberally construe a notice of appeal in one of two ways to determine whether it provides jurisdiction.\u201d Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990). As Von Ramm explains:\nFirst, \u201ca mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.\u201d Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 274, 258 S.E.2d 864, 867 (1979), citing 9 Moore\u2019s Federal Practice \u00a7 203.17[2], 3-80 \u2014 3-82 (2d ed. 1990) (footnotes omitted) (emphasis added). Second, if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the \u2018functional equivalent\u201d of the requirement. Torres, at 317, 101 L.E.2d at 291 (overlooking a party\u2019s failure to comply with a federal notice of appeal requirement of designating the petitioner\u2019s name) (emphasis added).\nId. at 156-57, 392 S.E.2d at 424. Accord Foreman v. Sholl, 113 N.C. App. 282, 291, 439 S.E.2d 169, 175 (1994) (notes Rule 3 is jurisdictional, but proceeds to quote Von Ramm and considers whether intent to appeal could be \u201cfairly inferred\u201d or if the party accomplished the \u201cfunctional equivalent\u201d); Monin v. Peerless Ins. Co., 159 N.C. App. 334, 343-44, 583 S.E.2d 393, 399 (2003) (citing Von Ramm and analyzing whether it could be \u201c \u2018fairly inferred\u2019 from the face of the notice of appeal that plaintiff intended to appeal from anything other than the judgment notwithstanding the verdict\u201d), disc. review denied, 357 N.C. 506, 587 S.E.2d 670 (2003).\nMistakes by appellants in following all the subparts of Appellate Procedure Rule 3(d) have not always been fatal to an appeal. For example, Rule 3(d) requires the appellant to \u201cdesignate the judgment or order from which appeal is taken.\u201d In Strauss v. Hunt, 140 N.C. App. 345, 350-51, 536 S.E.2d 636, 640 (2000), however, the appellant omitted an earlier trial court order and referred only to a later order in her notice of appeal, but the Court of Appeals found it could fairly infer her intent to appeal from the earlier order. \u201cAlthough defendant referred only to the 11 June 1999 order in her notice of appeal, we conclude the'notice fairly inferred her intent to appeal from the 21 April 1999 order, and did not mislead the plaintiff.\u201d Id. at 340, 536 S.E.2d at 640. Similarly, in Evans v. Evans, 169 N.C. App. 358, 363, 610 S.E.2d 264, 269 (2005), the defendant gave notice she appealed an order \u201cdenying Defendant\u2019s claim for child custody and child support,\u201d but omitted from the notice of appeal the post-separation support and divorce from bed and board. The Court of Appeals nevertheless found jurisdiction over the post-separation support and divorce from bed and board, concluding \u201cit is readily apparent that defendant is appealing from the order dated 18 December 2001 which addresses not only child custody and support but also post-separation support and divorce from bed and board.\u201d Id.\nSimilarly, Rule 3(d) requires the notice of appeal to \u201cspecify the party or parties taking the appeal,\u201d but appellants\u2019 omissions of this requirement have not prevented our assuming jurisdiction on appeal. In Hummer v. Pulley, Watson, King & Lischer, P.A., 140 N.C. App. 270, 277, 536 S.E.2d 349, 353-54 (2000), the trial court held defendants\u2019 counsel jointly and severally liable for various monetary penalties, although defendants\u2019 counsel had not been parties to the case. Defendants\u2019 counsel signed the notice of appeal, but failed to name themselves in the body of the notice of the appeal. We determined this error was a \u201cprocedural rather than a jurisdictional error,\u201d and therefore \u201cdefendants\u2019 counsel achieved the functional equivalent of naming themselves as appellants in the notice of appeal.\u201d Id.\nIn the instant case, plaintiffs failed to specify the Court of Appeals as the \u201ccourt to which appeal is taken,\u201d per Rule 3(d). Despite this failing, we find the intent to appeal to this Court can be fairly inferred from plaintiffs\u2019 notice of appeal and the notice achieved the functional equivalent of an appeal to this Court. Indeed, defendants were not misled by plaintiffs\u2019 mistake, as they inferred from the notice that the appeal would proceed in this Court. Furthermore, we can find no reason to treat one subpart of Rule 3(d) differently from another subpart. As in Strauss and Evans, where we found jurisdiction despite mistakes in designating the correct judgment or order from which appeal is taken, the mistake here falls under the same subpart, indeed within the same semi-coloned section, of Rule 3(d). Accordingly, we assume jurisdiction to decide this appeal under the logic \u00f3f Von Ramm.\nWe turn now to the merits of plaintiffs\u2019 appeal. The trial court\u2019s ruling denied plaintiffs\u2019 request for attorney fees, declining to endorse plaintiffs\u2019 reliance on 42 U.S.C. \u00a7 1988, N.C. Gen. Stat. \u00a7 6-19.1 (2005), and the private attorney general doctrine.\nNeither N.C. Gen. Stat. \u00a7 6-19.1 (2005) (permitting award of attorney fees to parties appealing or defending against agency action) (emphasis added) nor 42 U.S.C. \u00a7 1988 (permitting an award of attorney fees to a prevailing party in an action or proceeding to enforce certain enumerated federal statutes listed therein) authorize an award of attorney fees under, the facts of the instant case. Plaintiffs candidly conceded to the trial court that no court has applied the statutes upon which they rely in this manner. We, likewise, decline to hold these statutory provisions applicable to the facts of the instant case.\nThe private attorney general doctrine is an equitable exception to the general American rule that each party bear its own attorney fees absent statutory or contractual authorization for a court to award the same. Under this doctrine, which serves as an incentive for the initiation of public interest litigation by a private party, a court may award attorney fees to a party vindicating a right that (1) benefits a large number of people, (2) requires private enforcement, and (3) is of societal importance. Ann K. Wooster, Annotation, Private Attorney General Doctrine \u2014 State Gases, 106 A.L.R.5th 523 (2003).\nThe large majority of our sister states that have considered the issue have declined to adopt the private attorney general doctrine. See id. See, e.g., State Bd. of Tax Comm\u2019rs v. Town of St. John, 751 N.E.2d 657, 661 (Ind. 2001) (\u201cLikewise, a number of states have rejected the private attorney general doctrine.\u201d); Pearson v. Bd. of Health, 525 N.E.2d 400, 402-03 (Mass. 1988) (\u201cMost courts generally have determined that, absent a specific legislative directive, it is inappropriate to award attorneys\u2019 fees on a \u2018private attorney general\u2019 theory.\u201d) Frequently cited as the reason for declining to adopt the doctrine is that where the legislature has a policy of selecting special situations where attorney fees may be awarded, \u201cit is inappropriate for the judiciary to establish under the private attorney general doctrine a broad rule permitting such fees whenever a private litigant has at substantial cost to himself succeeded in enforcing a significant social policy that may benefit others.\u201d Doe v. Heintz, 526 A.2d 1318, 1323 (Conn. 1987). See also State Bd. of Tax Comm\u2019rs, 751 N.E.2d at 661-64 (rejecting adoption of the private attorney general doctrine where the Indiana General Assembly had created statutory exceptions to the American rule and had observed prudential considerations such as the possible attraction of \u201cbounty hunters\u201d in public interest litigation, as well as difficult and subjective determinations by courts as to whether private enforcement was necessary, whether the action was a burden, whether and in what amount a fee was appropriate, and whether a significant number of citizens benefitted irrespective of whether those citizens considered themselves benefitted).\nOur own Supreme Court has unequivocally noted that \u201call costs are given in a court of law in virtue of some statute [,] [and the] simple but definitive statement of the rule is: [C]osts in this State are entirely creatures of legislation, and without this they do not exist.\u201d City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972) (internal citations and quotation marks omitted). The Court further observed that \u201c[i]n this jurisdiction, in the absence of express statutory authority, attorneys\u2019 fees are not allowable as part of the court costs in civil actions.\u201d Id. at 695, 190 S.E.2d at 187.\nNotwithstanding this clear directive, plaintiffs direct the attention of this Court to Bailey v. State of North Carolina, 348 N.C. 130, 500 S.E.2d 54 (1998) and argue our Supreme Court\u2019s holding authorizes the award of attorney fees to the prevailing party in equitable actions to vindicate important constitutional rights for the benefit of many citizens. In Bailey, our Supreme Court struck down legislation that partially taxed state and local government retirement benefits on the grounds that it constituted (1) an unconstitutional impairment of the contractual relationship that included the tax exemption of benefits derived from the plaintiffs\u2019 retirement plans (348 N.C. at 153, 500 S.E.2d at 67), and (2) an unconstitutional taking of private property without just compensation (id. at 155, 500 S.E.2d at 69). In addition, the Court upheld the trial court\u2019s creation of a common fund for the payment of attorney fees and other costs incurred by the class representatives despite the fact that the common fund arose as a result of the litigation as opposed to litigation involving a preexisting fund of money. Id. at 159, 500 S.E.2d at 71. Defendants\u2019 reliance on Bailey is misplaced.\nFirst, Bailey expressly reiterated the general rule that attorney fees \u201care ordinarily taxable as costs only when authorized by statute.\u201d Id. Notwithstanding, the Court further observed that the \u201c \u2018common-fund doctrine\u2019 is a long-standing exception to the general rule in this country that every litigant is responsible for his or her own attorney\u2019s fees.\u201d Id. Bailey\u2019s adherence to a long-standing exception of the common fund doctrine has no application in this case, in which plaintiffs candidly concede, as they must, that there is no common fund resulting from the litigation. Second, Bailey involved a class action in which the attorney fees borne by the representatives of the class were then shared or equally distributed to the bene-fitted class by exaction out of the recovery of the litigation. Id. at 162, 500 S.E.2d at 72-73. By way of contrast, plaintiffs ask this Court to shift the burden of attorney fees to the State (and, by extension, to the taxpayers) instead of to a resulting fund from which those fees would be drawn.\nAffirmed.\nJudges WYNN and STEPHENS concur.\n. The United States Supreme Court allows circuit courts to liberally construe similar rules in federal appellate procedure. See, e.g., Foman v. Davis, 371 U.S. 178, 181-82, 9 L. E. 2d 222, 226-26 (1962) (reversing the court of appeals for rejecting an appeal because it \u201cshould have treated the appeal from the denial of the motions as an effective, although inept, attempt to appeal\u201d and stating: \u201c \u2018The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits\u2019 \u201d); Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 101 L. E. 2d 285, 291 (1988) (\u201cWe do not dispute the important principle for which Foman stands \u2014 that the requirements of the rules of procedure should be liberally construed and that \u2018mere technicalities\u2019 should not stand in the way of consideration of a case on its merits. Ibid. Thus, if a litigant files papers in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant\u2019s action is the functional equivalent of what the rule requires.\u201d). ,", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Thomas A. Farr and Phillip J. Strach; Maupin Taylor, P.A., by Charles B. Neely, Jr.; and Hunter Higgins Miles Elam & Benjamin, PLLC, by Robert N. Hunter, Jr., for plaintiff-appellants.", "Roy Cooper, Attorney General, by Tiare B. Smiley and Alexander McC. Peters, Special Deputy Attorneys General, for the State." ], "corrections": "", "head_matter": "ASHLEY STEPHENSON, et al., Plaintiffs v. GARY O. BARTLETT, et al., Defendants\nNo. COA05-793\n(Filed 18 April 2006)\n1. Appeal and Error\u2014 notice of appeal \u2014 court to which appeal taken not specified \u2014 fairly inferred \u2014 jurisdiction assumed\nJurisdiction to decide an appeal was assumed where plaintiffs mistakenly specified the Supreme Court rather than the Court of Appeals as the court to which appeal was taken, as required by Appellate Rule 3(d). The intent to appeal to the Court of Appeals can be fairly inferred from the notice of appeal, which achieved the functional equivalent of an appeal to the Court of Appeals. Defendants were not misled by plaintiffs\u2019 mistake, and there is no reason to treat it any differently than mistakes involving other parts of Appellate Rule 3(d) despite which jurisdiction was found.\n2. Costs\u2014 attorney fees \u2014 private attorney general doctrine\u2014 rejected\nThe trial court correctly denied plaintiffs\u2019 request for attorney fees, which was based on N.C.G.S. \u00a7 6-19.1, 42 U.S.C. \u00a7 1988, and the private attorney general doctrine. Neither statute authorizes attorney fees under the facts of this case, and the North Carolina Supreme Court has unequivocally noted that attorney fees are not allowed as part of court costs in the absence of statutory authority. Bailey v. State of North Carolina, 348 N.C. 130, is not applicable.\nAppeal by plaintiffs from order entered 19 November 2004 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 20 February 2006.\nOgletree, Deakins, Nash, Smoak & Stewart, P.C., by Thomas A. Farr and Phillip J. Strach; Maupin Taylor, P.A., by Charles B. Neely, Jr.; and Hunter Higgins Miles Elam & Benjamin, PLLC, by Robert N. Hunter, Jr., for plaintiff-appellants.\nRoy Cooper, Attorney General, by Tiare B. Smiley and Alexander McC. Peters, Special Deputy Attorneys General, for the State." }, "file_name": "0239-01", "first_page_order": 273, "last_page_order": 280 }