Appellate

Fresh perspective. Invaluable insight.

Our appellate advocacy team brings a creative and fresh perspective to each appeal, enhanced by our unique ability to translate complex information in a clear and persuasive way for generalist appellate judges. Our team is adept at identifying the types of issues most likely to interest and persuade appellate judges. We also know how to correct errors in the trial record when necessary, preserve favorable judgments, and persuade higher courts to accept discretionary review of unfavorable intermediate appellate court decisions.

Our unmatched experience, combined with the specialized skills vital for appellate success, have created a proven track record of success in appeals involving questions of first impression, bet-the-company judgments, and decisions that shape the rules under which our clients will operate well into the future.

Practice Area Contacts

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Matthew C. Blickensderfer

Practice Group Leader

Cincinnati, OH

513.651.6162

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Carte P. Goodwin

Office Partner-in-Charge

Charleston, WV

Washington, D.C.

304.348.2422

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Griffin Terry Sumner

Partner

Louisville, KY

502.568.0326

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Supreme Court Roundup

Our appellate team has collected in one place summaries of notable rulings from the U.S. Supreme Court’s 2023-24 term, together with key takeaways for each decision that focus on its most likely impact for industry.

View Collection

What Sets Us Apart

Our Approach

Our team knows from experience that the best appellate outcomes occur when judges can understand the practical implications of their decisions for those who must live by them. In every appeal, we take time to learn what each case means for our clients so we can craft arguments that best serve those interests and that compel judges to empathize with our clients’ perspectives, actions, and decisions.

The most difficult legal problems require more than knowledge of the facts and the law — they require thinking creatively about the law. Our appellate practitioners possess a comprehensive understanding of the complex legal framework of common law rules, statutes, and regulations governing areas of substantive law. We excel at mastering the record and communicating the complex technical issues on which appeals are often decided. We also know how to manage critical timing and procedural challenges while crafting arguments to maximize the chances of success. Our written briefs and oral arguments are designed to be clear, direct, and persuasive.

Our appellate advocates recognize that preparation for an appeal begins before trial, and that some skills critical for appellate counsel are also very useful in trial courts. We are skilled at identifying issues to present in pretrial motions and in drafting substantive motions and submissions, including motions to dismiss, summary judgment motions, class certification submissions, jury instructions, and post-trial motions. We help ensure that evidentiary rulings and other objections are properly preserved for appeal. We also draw on our extensive experience working with trial counsel to help identify issues long before an appeal has been initiated, with the aim of shaping the record and preserving issues and arguments for eventual appellate review.

Our Experience

Our appellate team has a breadth and depth of experience handling appeals, including those in these areas:

Administrative
Antitrust
Bankruptcy
Class actions
Civil Rights
Constitutional law
Construction
Contractual/commercial disputes
Criminal
Labor disputes
Employment law
Government contracts
Health law
Insurance coverage and bad faith
Intellectual property
Product liability
Tort and personal injury
Tax law

While our appellate team has experience throughout the country, we have true depth of experience in the appellate courts within Frost Brown Todd’s footprint. With this experience comes insight into the judges of these courts and knowledge of the often-unwritten inner workings and procedures of these courts. We have listed below a small sample of the appeals we have handled in the state and federal courts in which we practice the most.

Duke Energy Indiana, LLC v. City of Noblesville, 234 N.E.3d 173 (Ind. 2024). Supreme Court held only utility regulatory commission–and not a municipality–could determine whether local ordinances that a municipality may want to enforce against a public utility are reasonable.	Energy Law	Supreme Court of Indiana
City of Carmel v. Duke Energy Indiana, LLC, 234 N.E.3d 816 (Ind. 2024). Supreme Court held municipality could not force a utility to cover the cost of the municipality’s request to underground utilities when doing so was for aesthetics and not safety.	Energy Law	Supreme Court of Indiana
Indiana Law Enforcement Training Board v. Marion Cnty. Sheriff’s Office, 224 N.E.3d 997 (Ind.Ct.App. 2023)	Law Enforcement	Indiana Court of Appeals
Professional Construction, Inc. v. Historic Walnut Square, LLC, 224 N.E.3d 352 (Ind.Ct.App. 2023) Court of Appeals held corporation did not waive its contractual right to demand arbitration by filing action against property owner in Wisconsin.	Construction/Property	Indiana Court of Appeals
Truelove v. Kinnick, 196 N.E.3d 1228 (Ind.Ct.App. 2022) Court of Appeals holds that text message exchanges did not satisfy the statute of frauds requirement for the purchase of real property.	Construction/Property	Indiana Court of Appeals
Munster Steel Co., Inc. v. CPV Partners, LLC, 186 N.E.3d 143 (Ind.Ct.App. 2022) Court of Appeals holds development agreement between property owner and corporate developer constituted an equitable mortgage, not a sale and, therefore developer was not required to pay a fee when it resold the property.	Construction/Property	Indiana Court of Appeals
Duke Energy Indiana, LLC v. Bellwether Properties, LLC, 192 N.E.3d 1003 (Ind.Ct.App. 2022) Court of Appeals held a utility’s enforcement of horizontal clearance regulations did not constitute a compensable regulatory taking.	Eminent Domain	Indiana Court of Appeals
Heritage Aggregates, LLC v. CWA Authority, Inc., 172 N.E.2d 695 (Ind.Ct.App. 2021) Court of Appeals holds that corporate landowner’s objection to eminent domain action alleging condemnor acted in bad faith must be resolved via an evidentiary hearing.	Eminent Domain	Indiana Court of Appeals
Gresser v. Reliable Exterminators, Inc., 160 N.E.3d 184 (Ind.Ct.App. 2020) Court of Appeals affirms jury verdict in toxic tort case and clarifies Indiana negligence per se law.	Torts	Indiana Court of Appeals
Cortez v. Indiana University Health Inc., 151 N.E.3d 332 (Ind.Ct.App. 2020) Court of Appeals holds that allegations of altered medical records and production of same during discovery was within scope of Medical Malpractice Act and first had to be presented to medical review panel.	Torts	Indiana Court of Appeals
City of Indianapolis v. Moran Electric Service, Inc., 145 N.E.2d 124 (Ind.Ct.App. 2020) Court of Appeals holds the Indiana Department of Environmental Management correctly issued “No Further Action” letter to City, concluding no further remediation was necessary.	Environmental	Indiana Court of Appeals
Becerra v. Town of Brownsburg, 196 N.E.3d 1255 (Ind.Ct.App. 2022) Court of Appeals holds Town Council paid “reasonable regard” to statutory factors in deciding to grant a rezoning request.	Municipal	Indiana Court of Appeals
Mellowitz v. Ball State University, 221 N.E.3d 1214 (Ind. 2023) Filed Amicus Curiae brief on behalf of business organizations in case where Supreme Court held legislature had power to enact statute prohibiting class-actions arising from actions taken during the COVID-19 pandemic.	Amicus Participation	Supreme Court of Indiana
Starlink Logistics, Inc. v. ACC, LLC, ___ F.4d ___ (6th Cir. 2024) FBT’s appellate team, led by Matt Blickensderfer, scored a partial reversal of the dismissal of our client’s environmental citizen suit. The district court had dismissed some claims based on claim preclusion and others based on failure to meet the statutory prerequisites for environmental citizen suits. The Sixth Circuit reversed the claim preclusion ruling and remanded those claims, while leaving the door open to refiling of the other claims dismissed based on the statutory prerequisites.	Environmental	United States Court of Appeals for the Sixth Circuit
Jenkins v. Estate of Garmon by Garmon, 2023 WL 5312169 (Ky. App. 2023)(mot. dis. rev. pending)(affirming of dismissal of claims against a road construction company where jury verdict against co-defendant exceeded $32 million). FBT’s appellate team, led by Griffin Terry Sumner, successfully represented a road construction company in the appeal of a summary judgment in favor of the client, where a jury later awarded $32 million in damages against co-defendants. The Court of Appeals of Kentucky affirmed judgment in favor of the client, while also affirming the $32 million jury verdict against co-defendants. [A motion for discretionary review is pending with the Kentucky Supreme Court.]	Torts	Kentucky Court of Appeals
Eastern Kentucky University v. Ohio Valley Conference, 2023 WL 129286 (Ky. App. 2023) (rev. denied)(affirming denial of sovereign immunity). FBT’s appellate team, led by Griffin Terry Sumner, successfully represented a large collegiate athletic conference in a former member institution’s appeal of the denial of sovereign immunity. The case involved the conference’s contractual claims arising from the institution’s exit from the conference. state university’s sovereign immunity to contractual claims by a collegiate athletic conference). The Court of Appeals affirmed the denial of sovereign immunity, and the Kentucky Supreme Court denied discretionary review.	Government	Kentucky Court of Appeals
Primal Vantage Company, Inc. v. O’Bryan, 677 S.W.3d 228 (Ky. 2023)(vacating $18.2 million jury verdict). FBT’s appellate team, led by Griffin Terry Sumner, represented a manufacturer in the successful appeal of $18.2 million jury verdict. The case involved a plaintiff’s catastrophic injuries sustained in a fall from a hunting tree stand. Reversing and remanding for new trial, the Kentucky Supreme Court not only vacated a multi-million-dollar verdict, but also clarified several products liability issues that will guide manufacturers through the litigation process to defend their products. First, the Supreme Court emphasized a trial judge’s role as “evidentiary gatekeeper” to ensure that only admissible evidence is presented to a jury and rejected the trial court’s admission of 78 other tree stand incidents. Second, the opinion confirmed that a design defect claim requires proof of “an alternative, safer design that is practical under the relevant circumstances.” In so doing, the Supreme Court rejected various purportedly alternative designs proposed by the plaintiffs, finding that those options were either not safer or not feasible when this tree stand was manufactured.	Torts	Supreme Court of Kentucky
Shepherd v. Perry, Case No. 2023- CA-0388 (Ky. App. 2023)(writ of mandamus challenging replacement of estate administrator denied). FBT’s appellate team, led by Griffin Terry Sumner, represented three sons challenging their father’s purported last will and the role of the father’s sibling as executor of the estate and in creating the purported will. After the trial court removed the father’s sibling as executor and appointed a neutral, third-party public administrator, FBT successfully opposed the former executor’s petition for writ of mandamus in the Court of Appeals of Kentucky. [Further appeal pending Kentucky Supreme Court.]	Trusts and estates	Kentucky Court of Appeals
Lipp v. Univ of Cincinnati, No. C-220312, 2023 WL 2941578, at *1 (Ohio Ct. App., Apr. 14, 2023) (affirming dismissal of claims by university students that school’s vaccination policies were constitutional and otherwise unlawful). FBT’s trial team, including Ryan Goellner, served as special counsel to the Ohio Attorney General in defending claims by several students that the University of Cincinnati’s Covid-19 health policies (including vaccination and masking) were unconstitutional and unlawful under state statutes. The trial court dismissed all of the claims. FBT’s appellate team then obtained a unanimous decision affirming the dismissal due to the plaintiffs’ lack of standing to pursue their claims.	Government	Ohio Court of Appeals
Quigley v. Detroit Airlines N. Terminal Consortium, Inc., 2023 WL 3668115 (Mich. Ct. App., May 25, 2023) (reversing and remanding order denying motion to dismiss for failure to state a claim). FBT’s appellate team, led by Ryan Goellner, successfully obtained a stay and interlocutory review of the trial court’s decision denying a motion to dismiss in a wrongful death action against Schindler Elevator Corporation arising from a fatal fall on an escalator at the Detroit Airport, which resulted in reversal of the order and remand to the trial court to apply the correct legal standard for dismissal.	Torts	Michigan Court of Appeals
Isaacs v. Fireman’s Fund Insurance Company, 2022 WL 495980 (Ky. App. 2022). FBT’s appellate team, led by Griffin Terry Sumner, successfully represented a target insurer in a high profile plaintiff’s appeal from the dismissal of bad faith claims against multiple insurers. The Court of Appeals of Kentucky affirmed the dismissal of the bad faith claims, expanding precedent to the first party contest and rejecting arguments that a lack of discovery should have precluded dismissal. The Kentucky Supreme Court denied a request for discretionary review.	Insurance	Kentucky Court of Appeals
Doe v. Flores, 661 S.W.3d 1 (Ky. App. 2022) (affirming dismissal of defamation claims based on social media posts for lack of personal jurisdiction). FBT’s appellate team, led by Jason Renzelmann, successfully represented nationally prominent journalists in a appeal that affirmed dismissal of claims related to allegedly defamatory social media posts based on lack of personal jurisdiction. Deciding an issue of first impression in Kentucky, the court held that merely posting a comment on social media about a resident of the state did not, without more, suffice to show that the defendant purposefully availed themselves of a Kentucky forum or otherwise had sufficient contacts with the state to confer personal jurisdiction.	Procedure/jurisdiction	Kentucky Court of Appeals
Marquette ORRI Holdings, LLC v. Ascent Resources-Utica, LLC, 199 N.E.3d 199 (Ohio App. 2022). FBT’s appellate team, led by Matt Blickensderfer, successfully represented the producer-lessee in a case of first impression involving overriding royalty interests in oil and gas leases.	Energy law	Ohio Court of Appeals
Hawaii Dept. of Human Services, Div. of Vocational Rehab. v. U.S. Dept. of Education, Rehab. Services Administration, 46 F.4th 1148 (9th Cir. 2022) (reversing in part and affirming in part Department of Education arbitration award of priority for blind vendors in bids for cafeteria service contracts). FBT’s appellate team, led by Ryan Goellner, represented the Hawaii Department of Human Services in a dispute with the United States Army over the priority to be applied to the Department’s state-licensed blind vendors for the award of a multimillion-dollar cafeteria service contract at a Hawaii Army base. From an adverse arbitration decision against the Department, FBT prosecuted a partially successful appeal to the district court, and then obtained complete success in the Ninth Circuit. The court’s precedential decision resulted in immediate priority for blind vendors in the Army’s cafeteria contracts in Hawaii, and binds the Army and federal agencies to apply the priority for blind persons in awarding these types of contracts across the western U.S.	Government	United States Court of Appeals for the Ninth Circuit
Mosley v. Arch Specialty Insurance Company, 626 S.W.3d 579, 582 (Ky. 2021)(affirming dismissal of bad faith claims and confirming a plaintiff’s “steep burden” of proof). FBT’s appellate team, led by Griffin Terry Sumner, represented one of the insurers facing an appeal of the dismissal of bad faith claims after limited discovery. The Kentucky Supreme Court’s opinion emphasized noted a plaintiff’s “steep burden” of proof in third-party bad faith claims. The Supreme Court’s opinion firmly established that Kentucky law requires a plaintiff to establish that the insured’s liability is “‘beyond dispute.’” Thus, “when an insured’s liability is unclear, bad-faith claims fail as a matter of law because the insurer has a reasonable basis for challenging the claim.” Indeed, an insurer has a contractual duty to its insured to provide a defense in such circumstances. The Mosley Court emphasized that even in prior cases where there was “evidence that the insured might be liable,” if the plaintiff could not “‘eliminate[] the reasonable possibility’” that the jury could find for the defendant insured, “no bad faith claim could stand as a matter of law against the insurance company.” Honing in on this point, Kentucky’s Supreme Court held that “[w]hen liability is clear or ‘beyond dispute,’ a claim must be paid . . . . But when liability is not clear or disputed, an insurer may pursue its defense and contested liability until its duty under KUCSPA is triggered.”	Insurance	Supreme Court of Kentucky
Louisville Gas & Elec. Co. v. Federal Energy Regulatory Comm’n, 988 F.3d 841 (6^th Cir. 2021) (vacating FERC order interpreting tariff and ordering payment of credits). FBT’s appellate team, led by Matt Blickensderfer and Jason Renzelmann, represented an investor-owned utility in a successful appeal that vacated an order of the Federal Energy Regulatory Commission (“FERC”), interpreting a tariff and ordering the utility to pay credits to a transmission customer for transmission capacity that the customer reserved from the Midwest ISO, but did not use. The Sixth Circuit held that FERC’s order was contrary to the plain language of the tariff provision, which required payment of credits only for ISO charges that were actually incurred by the customer in connection with a purchase or sale of energy.	Government	United States Court of Appeals for the Sixth Circuit
Blakeley v. Consolidated Insurance Company, 2021 WL 1327172 (Ky. App. 2021)(affirming declaration of no coverage under liability policy). FBT’s appellate team, led by Griffin Terry Sumner, successfully represented an insurer in a coverage dispute involving a farm liability policy. The case involved allegations of fraud and intentional misconduct against the insureds and, thus, the question of whether the insureds were entitled to a defense and/or indemnification under the policy because of a covered “occurrence.” The Court of Appeals clarified the application of both prongs of the fortuity test described in earlier precedent. First, under the “intent” prong of the fortuity analysis, the court held that the alleged intentional harm could not constitute an “accident” or “occurrence.” “[A]loss or harm is not fortuitous if the loss or harm is caused intentionally by [the insured].” Second, even if the alleged conduct were considered to be negligence, it would still not qualify as an accident or occurrence under the “control” prong of the fortuity analysis. Even if the insureds were considered to be merely negligent, the court held that the insureds “were in control of such negligence rendering it something other than a ‘chance event.’”	Insurance	Kentucky Court of Appeals
Floyd County Mutual Insurance Association v. CNH Industrial America LLC, 18 F.4th 1024 (8th Cir. 2021). FBT’s appellate team, led by Matt Blickensderfer, successfully represented a manufacturer of agricultural equipment in this case of first impression about Iowa’s economic loss doctrine.	Torts	United States Court of Appeals for the Eighth Circuit
Gabbard v. Madison Local School District Board of Education (pending at the Supreme Court of Ohio). Representing the Madison (Ohio) Local School District in this case that involves the power of school districts to authorize individuals to carry firearms on school property. The case turns on issues of statutory construction.	Government	Supreme Court of Ohio
Maas v. Maas, 2020-Ohio-5160, 161 N.E.3d 863 (1st Dist. 2020) (affirming summary judgment in favor of independent directors and dismissal of breach of fiduciary duty claims). FBT’s trial team, including Ryan Goellner, represented the independent directors of a local company against various breach of fiduciary duty claims and obtained a complete dismissal of the claims at summary judgment. The appellate team then received a unanimous opinion applying the business judgment rule and affirming that decision on appeal.	Corporate law	Ohio Court of Appeals
Reister v. Gardner, 164 Ohio St.3d 546, 174 N.E.3d 713 (Ohio 2020). This case involved whether Ohio’s litigation privilege barred breach-of-fiduciary duty claims against directors of a nonprofit trade association. The directors had rejected a favorable settlement offer, leading to a $43 million judgment against the association. FBT’s appellate team, led by Matt Blickensderfer, convinced the Supreme Court of Ohio to hold unanimously that the litigation privilege did not bar the claims, and the Court reversed the unfavorable court of appeals ruling to the contrary.	Corporate law	Supreme Court of Ohio
City of Athens v. McClain, Tax Commissioner, 163 Ohio St.3d 61, 168 N.E.3d 411 (Ohio 2020). FBT’s appellate team, led by Matt Blickensderfer, represented a coalition of more than 150 Ohio municipalities in a constitutional challenge to portions of two tax statutes passed by the Ohio General Assembly. The legislation at issue centralized collection of municipal corporate taxes at the state level and allowed the state to retain a portion of the collected taxes to cover the cost of the centralized administration scheme. The Supreme Court of Ohio upheld the centralized collection but struck down the state’s attempt to withhold any of the collected municipal taxes.	Government	Supreme Court of Ohio
Higgins v. Kentucky Sports Radio, LLC, 951 F.3d 728 (6^th Cir. 2020) (affirming dismissal of defamation and incitement claims against radio host on First Amendment grounds). FBT’s appellate team, led by Griffin Terry Sumner and Jason Renzelmann, successfully represented a sports radio talk show and its host in an appeal that affirmed dismissal of incitement and defamation claims by an NCAA basketball referee, who claimed the defendant incited listeners to harass him and his business. The Sixth Circuit held that the allegations of the referee’s complaint were insufficient to avoid First Amendment protection for the host’s speech, because the challenged statements themselves did not expressly or implicitly encourage or incite listeners to engage in illegal or harassing conduct.	Torts	United States Court of Appeals for the Sixth Circuit
Bell Helicopter Textron, Inc. v. Dobbs, 2019 WL 2484691 (Ky. Ct. App. 2019)(vacating $22 million jury verdict). FBT’s appellate team, led by Griffin Terry Sumner, successfully appealed the $22 million jury verdict. The case involved a triple-fatality crash of a medical transport helicopter that had been manufactured by FBT’s client. The Court of Appeals of Kentucky vacated the jury verdict and remanded the case for a new trial with an opinion that emphasized appropriate evidentiary limitations at trial, especially in products liability cases. The Court of Appeals’ opinion held that the trial court had improperly excluded certain deposition testimony from a Bell employee about the cause of the crash that contradicted other portions of the same deposition presented by the plaintiffs. The opinion also held that the trial court had erroneously allowed the plaintiffs to present a chart of past “service difficulty reports” for a variety of Bell’s helicopters with no proof of the substantial similarity required for other incidents evidence.	Torts	Kentucky Court of Appeals
State ex rel. More Bratenahl; Meade v. Village of Bratenahl et al., 157 Ohio St.3d 309, 2019-Ohio-3233, 136 N.E.3d 447 (Ohio 2019) (reversing summary judgment for village council that conducted secret ballot voting in violation of public records law and remanding for injunction and judgment against council). As counsel for amici curiae Ohio Coalition for Open Government, Reporters Committee for Freedom of the Press, and Ohio Association of Broadcasters, FBT’s appellate team, led by Ryan Goellner, successfully assisted the citizen plaintiff in obtaining the Supreme Court of Ohio’s review and unanimous reversal of lower court decisions permitting secret ballot voting by a municipal council in violation of the Ohio Open Records Act, and also obtained in the decision clarification of the fundamental requirement that the public must have meaningful access to meetings of public bodies in the state of Ohio. Read decision.	Government	Supreme Court of Ohio
Kirst v. Ottosen Propeller & Accessories, Inc., 784 F. App’x 980 (9th Cir. 2019) (affirming summary judgment in favor of defendant where plaintiff sought damages exceeding $1million). FBT’s appellate team, led by Ben West, successfully represented a 14 CFR Part 145 propeller repair station in the appeal of a summary judgment in favor of the client, where the plaintiff sought damages exceeding $1 million for personal injury and the loss of an airplane. Plaintiff, a pilot and aircraft owner, alleged that the client had sold him a propeller with loose bolts, which caused the propeller to come off in flight, leading to a crash that injured the plaintiff and resulted in the loss of the aircraft. The United States Court of Appeals for the Ninth Circuit affirmed the trial court’s summary judgment in favor of the client, holding that the plaintiff pilot had failed to produce evidence to support his claims, and failed to establish that any actions by the client caused plaintiff’s damages.	Torts	United States Court of Appeals for the Ninth Circuit
United Specialty Insurance Company v. Cole’s Place, 936 F.3d 386 (6th Cir. 2019). Successfully represented insurer and obtained an affirmance of the District Court’s declaration that a nightclub’s insurance policy did not cover criminal actions of shooter in parking lot. Read decision.	Insurance	United States Court of Appeals for the Sixth Circuit
Markwest Liberty Midstream & Resources v. Nutt, 2018 WL 527209 (2019). Successfully appealed and obtained reversal of preliminary injunction entered against midstream natural gas distributor limiting client’s access to landowner’s property to service pipeline and maintain right-of-way.	Energy law	Supreme Court of Appeals of West Virgina
Neff v. Wal-Mart Stores E., LP, 113 N.E.3d 666 (Ind. Ct. App. 2018). Successfully represented employer based upon immunity under the Shoplifting Detention Act.	Torts	Indiana Court of Appeals
Louisa Community Bank, Inc. v. Mullins, 2018 WL 3493095 (Ky. App. 2018). In appeal involving issues of first impression regarding the shareholder voting provisions of the Kentucky Business Corporation Act, successfully represented board members of community bank invalidating attempted hostile takeover of bank and its board by other shareholders. Read decision.	Corporate law	Kentucky Court of Appeals
Harms v. Chase Home Finance, LLC, 552 S.W.3d 516 (Ky. 2018). Successfully represented a mortgagee in persuading the Kentucky Court of Appeals to affirm reformation of a mortgage and deed.	Property law	Kentucky Court of Appeals
National College of Kentucky, Inc. v. WAVE Holdings, LLC, 536 S.W.3d 2108 (Ky. App. 2017). Successfully represented local TV station and reporter and obtained affirmance of judgment in favor of media entities on defamation claims arising from news story. Read decision.	Torts	Kentucky Court of Appeals
NASCAR Holdings, Inc. v. Testa, 152 Ohio St.3d 405, 2017-Ohio-9118, 97 N.E.3d 414 (Ohio 2017). Represented NASCAR in this appeal involving appellate jurisdiction. The Board of Tax Appeals had dismissed NASCAR’s appeal on jurisdictional grounds. The Supreme Court reversed and reinstated the appeal in a 6-1 decision. Read decision.	Procedure/jurisdiction	Supreme Court of Ohio
Ennin v. CNH Indus. Am., LLC, 878 F.3d 590 (7th Cir. 2017). Obtained affirmance of summary judgment order in favor of employer on employee’s claims under Title VII, the Americans with Disabilities Act, and the Family and Medical Leave Act. Read decision.	Employment	United States Court of Appeals for the Seventh Circuit
Arthur v. MacAllister Mach. Co., 83 N.E.3d 783 (Ind. Ct. App. 2017). Obtained affirmance of summary judgment for machine lessor and holding that lessor had no duty to inquire about application of machinery or offer training to customer’s employee.	Torts	Indiana Court of Appeals
Superior Steel, Inc. v. Ascent at Roebling’s Bridge, LLC, 540 S.W.3d 770 (Ky. 2017). On behalf of subcontractor and sub-subcontractor, successfully persuaded the Kentucky Supreme Court to reinstate $1 million jury verdict in favor of our clients for work performed on luxury condominium complex. Read decision.	Construction	Supreme Court of Kentucky
Steel Creations By and Through KESA v. Injured Workers’ Pharmacy, 532 S.W.3d 145 (Ky. 2017). Representing a workers’ compensation insurer, persuaded court to vacate an adverse judgment in an appeal involving issues of first impression about the interpretation of pharmaceutical reimbursement rates throughout the workers’ compensation system. Read decision.	Torts	Supreme Court of Kentucky
Louisville Gas & Elec. Co. v. Kentucky Waterways All., 517 S.W.3d 479 (Ky. 2017). Successfully obtained a reversal of lower court’s orders invalidating an operating permit issued by state regulators pursuant to their delegated authority under the federal Clean Water Act. Addressing an issue of first impression, the Kentucky Supreme Court held that state regulators were not required to set ad hoc “best professional judgment” limitations on pollutants that were not subject to any numerical limits in the applicable EPA national effluent limitation guidelines, which were in effect at the time the permit was issued. Read decision.	Environmental	Supreme Court of Kentucky
Domestic Violence Survivors’ Support Group, Inc. v. West Virginia Department of Health and Human Resources, Office of Health Facility Licensure and Certification, 239 W.Va. 566, 797 S.E.2d. 543 (March 1, 2017). Secured reversal of agency’s denial of a behavioral health center license to a non-profit domestic violence counseling center that was based upon the agency’s erroneous interpretation of its own licensure rules and related statutory exemption for counselors working at non-profits.	Government	Supreme Court of Appeals of West Virgina
Cowing v. Commare, 499 S.W.3d 291 (Ky. App. 2016). Successfully represented employer in action alleging discrimination and retaliation. Addressing an issue of first impression, the Kentucky Court of Appeals held that the intracorporate conspiracy doctrine barred claims that a manager aided and abetted the employer in discriminatory employment practices. Read decision.	Employment	Kentucky Court of Appeals
Carson v. ALL Erection & Crane Rental Corp., 811 F.3d 993 (7th Cir. 2016). Successfully defended summary judgment order in favor of equipment lessor because the plaintiff failed to offer evidence that would allow a reasonable jury to find the lessor’s conduct was a proximate cause of the plaintiff’s injury. Read decision.	Torts	United States Court of Appeals for the Seventh Circuit
Young v. Durrani, 2016-Ohio-5526, 61 N.E.3d 34 (1st Dist. 2016). Successfully argued that Ohio’s four-year statute of repose for medical claims is constitutional and applies to various related claims that arise from the medical treatment, care, or diagnosis of a patient.	Torts	Ohio Court of Appeals
Wright v. Ecolab, 461 S.W.3d 753 (Ky. 2015). Successfully represented an employer in persuading the Kentucky Supreme Court to dismiss the appeal of judgment in favor of the employer, in what has become a landmark case on appellate jurisdictional issues. Read decision.	Procedure/jurisdiction	Supreme Court of Kentucky
Coppage Constr. Co., Inc. v. Sanitation Dist. No. 1, 459 S.W.3d 857 (Ky. 2015). In landmark case concerning the scope of sovereign immunity in Kentucky, successfully represented a contractor in a suit against the second largest public sanitation district in Kentucky and persuaded the Kentucky Supreme Court to reverse the lower courts’ ruling that the sanitation district was an arm or agency of the state, which was entitled to immunity from suit to the same extent as the state government. Read decision.	Government	Supreme Court of Kentucky
Highland Mining Co. v. W. Va. Univ. Sch. of Med., 774 S.E.2d 36 (W.Va. 2015). Successfully defended the state’s largest university in lawsuit and appeal brought by mining company seeking documents related to scholarly research on the environmental impacts of surface coal mining.	Government	Supreme Court of Appeals of West Virgina
Smith v. Tarr, 2015 W.Va. LEXIS 12, 2015 WL 148680 (W.Va. 2015). Filed amicus curiae brief on behalf of the West Virginia Judicial Association, an organization of West Virginia state court judges, in connection with lawsuit challenging the constitutionality of the confidentiality requirements of West Virginia’s judicial disciplinary process.	Government	Supreme Court of Appeals of West Virgina
Deans & Homer, Inc. v. Kentucky Public Protection Cabinet, Department of Insurance, 451 S.W.3d 659 (Ky. Ct. App. 2014). Successfully represented an insurance company who had been administratively cited with promoting the unauthorized sale of insurance in connection with products provided to self-storage operators who chose to offer addendums to their rental agreements that waived the operators’ default exclusion from liability for certain losses to customers’ property. FBT persuaded the Kentucky Court of Appeals that the addendums to the rental agreements were not themselves insurance products, and therefore were not required to be sold by licensed agents. Read decision.	Insurance	Kentucky Court of Appeals
State ex rel. Doner v. Zehringer, 139 Ohio St.3d 314, 2014-Ohio-2102, 11 N.E.3d 1152 (Ohio 2014). Successfully represented the Ohio Department of Natural Resources and its Director in this contempt proceeding involving underlying eminent domain actions that the Supreme Court of Ohio had previously ordered the Department to file. Before Frost Brown Todd’s representation began, the Supreme Court of Ohio had held the Department and its Director in contempt for delays in initiating the eminent domain actions. Subsequently, after Frost Brown Todd began representing the Department and its Director, the property owners filed a second contempt motion based on events in the underlying actions. The Supreme Court unanimously rejected the property owners’ second contempt motion. Read decision.	Government	Supreme Court of Ohio
Huffman v. Hilltop Companies, LLC, 747 F.3d 391 (6th Cir. 2014). Obtained a reversal on an issue of arbitrability. We represented Hilltop Companies in the successful appeal of a federal district court’s refusal to compel arbitration of cases brought under the Fair Labor Standards Act. The district court had denied a motion to compel arbitration despite the existence of arbitration clauses in the plaintiffs’ independent contractor agreements with Hilltop, because those agreements contained survival clauses that did not include the arbitration provision as a term that survived the expiration of the agreements. In a case of first impression at the federal appellate level, the Sixth Circuit reversed and compelled arbitration. The court of appeals held that the absence of the arbitration clause from the list of surviving provisions was insufficient to overcome the presumption that an agreement to arbitrate disputes survives the expiration of a contract. Read decision.	Procedure/jurisdiction	United States Court of Appeals for the Sixth Circuit
Bowden v. Agnew, 2 N.E.3d 743 (Ind. Ct. App. 2014). Obtained reversal of punitive damages award and attorneys’ fees against business and its owner and holding that a failure to distribute revenue in accordance with agreement does not constitute conversion.	Torts	Indiana Court of Appeals
Maurer v. Speedway, LLC, 774 F.3d 1132 (7th Cir. 2014). Obtained affirmance of jury verdict in favor of premises owner and holding that the district court properly excluded evidence of a municipal ordinance because the plaintiff was not among the class of persons protected by the ordinance. Read decision.	Torts	United States Court of Appeals for the Seventh Circuit
State ex rel. York v. W. Va. Real Estate Appraiser Licensing And Certification Bd., 760 S.E.2d 856 (W. Va. 2014). Obtained favorable ruling from the Supreme Court of Appeals of West Virginia against state licensing board for failing to comply with applicable requirements governing the resolution of professional licensure and disciplinary proceedings.	Government	Supreme Court of Appeals of West Virgina
Va. Citizen Action Group v. PSC of W. Va., 758 S.E.2d 254 (W. Va. 2014). Successfully defended Monongahela Power Company, a subsidiary of First Energy, in appellate challenge to the acquisition of a power plant in Harrison County, West Virginia and the Public Service Commission’s approval of a $257 million acquisition adjustment in the purchase price.	Government	Supreme Court of Appeals of West Virgina
Anonymous, M.D. v. Hendricks, 994 N.E.2d 324 (Ind. Ct. App. 2013). Secured reversal of order denying motion to compel arbitration and holding that a matter remains arbitrable, despite the unavailability of the arbitrator designated in the parties’ agreement, if the agreement provides a method of selecting an alternative arbitrator.	Procedure/jurisdiction	Indiana Court of Appeals
Lipker v. AK Steel Corporation, 698 F.3d 923 (6th Cir. 2012). Obtained a reversal in this ERISA benefits action against AK Steel for alleged miscalculation of surviving spouse benefits under the company’s pension plan. The district court granted summary judgment in favor of the plaintiff. We secured a reversal in the Court of Appeals, which held that the company had correctly interpreted its plan and correctly calculated benefits. The decision effectively cut off a potential flood of other lawsuits and liabilities, including a simultaneously pending class action. Read decision.	Employment	United States Court of Appeals for the Sixth Circuit
Guy v. Lexington-Fayette Urban Cty. Gov’t, 488 F. App’x 9 (6th Cir. 2012). Represented a municipality in a putative class action brought by former participants of youth programs operated by a non-profit corporation that received funding from the municipality. The plaintiffs alleged they were abused by the director of the non-profit, and claimed the municipality was liable for deliberate indifference to the director’s conduct. The Sixth Circuit affirmed the district court’s denial of class certification and its dismissal of the vast majority of individual plaintiffs’ claims on statute of limitations grounds. Read decision.	Government	United States Court of Appeals for the Sixth Circuit
Bidwell v. University Medical Center, Inc., 685 F.3d 613 (6th Cir. 2012). In a case of first impression, successfully represented client against claims related to the transfer of employees’ retirement account assets into Qualified Default Investment Alternative (“QDIA”) funds under newly issued Department of Labor (“DOL”) rules. Read decision.	Employment	United States Court of Appeals for the Sixth Circuit
Welsh Development Company v. Warren County Regional Planning Commission, 128 Ohio St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215 (Ohio 2011). Obtain a reversal in a case involving appellate jurisdiction over agency appeals in Ohio. The court of appeals had held that Welsh Development failed to perfect its administrative appeal based on its interpretation of the statutes governing appeals in Ohio state courts. The Ohio Supreme Court accepted our discretionary appeal to establish clear standards for Ohio administrative appeals. In a unanimous decision, the Supreme Court held that Welsh Development’s appeal had been properly filed, and it articulated clear standards for filing such appeals.	Procedure/jurisdiction	Supreme Court of Ohio
Jent v. Kentucky Utilities Co., 332 S.W.3d 102 (Ky. App. 2010). Represented utility clients in the Kentucky Court of Appeals and Franklin Circuit Court (the Kentucky state capitol), successfully defeating property owners’ challenge to the companies’ authority to acquire property by eminent domain to complete construction of a transmission line necessary to implement a newly constructed generating plant in a project valued at $1B. Read decision.	Energy law	Kentucky Court of Appeals
Kentucky Public Service Commission, et al v. Commonwealth of Kentucky, 324 S.W.3d 373 (Ky. 2010); Kentucky Public Service Commission, et al v. Commonwealth of Kentucky, 320 S.W.3d 660 (Ky. 2010). Represented Duke Energy in two appeals of challenges by the Kentucky Attorney General to orders of the Kentucky Public Service Commission relating to the clients’ tariffs for Economic Development Riders and Accelerated Main Replacement Rider. In both cases, FBT successfully persuaded the Supreme Court to reverse the Court of Appeals’ decision, and affirm the validity of the tariff provisions. Read decision.	Energy law	Supreme Court of Kentucky
Associated Press v. Canterbury, 688 S.E.2d 317 (W.Va. 2009). Represented the West Virginia Judicial Association, an organization of West Virginia state court judges, in connection with a Freedom of Information Act seeking the disclosure of certain judicial records.	Government	Supreme Court of Appeals of West Virgina
Alliance Health Group LLC v. Bridging Health Options, LLC, 553 F.3d 397 (5th Cir. 2008). Obtained an affirmance on a forum selection clause issue. This case of first impression in the Fifth Circuit involved an issue of interpretation of forum selection clauses on which three other circuits had split. The Fifth Circuit accepted our client’s position that a clause requiring litigation “in” a particular county permitted litigation in federal court, and not just the state court for that county, so long as the federal courthouse was physically located in the county in question. Read decision.	Procedure/jurisdiction	United States Court of Appeals for the Fifth Circuit
Marion County Election Bd. v. Schoettle, 899 N.E.2d 642 (Ind. 2008). Represented the Marion County GOP, obtained emergency Supreme Court transfer and then received a favorable decision in an election matter on the eve of the 2008 General Election.	Government	Supreme Court of Indiana
Ignazio v. Clear Channel Communications, 113 Ohio St.3d 276, 865 N.E.2d 18 (Ohio 2007). Obtained a reversal in a case relating to unenforceable arbitration provisions. The court of appeals had held that Clear Channel’s employment arbitration agreement was unenforceable because of an objectionable provision. The Ohio Supreme Court accepted our discretionary appeal in order to set standards for severability of contract provisions. The Supreme Court held 6-1 in our client’s favor that the unlawful provision of the arbitration agreement was severable and the remainder of the agreement enforceable. Read decision.	Procedure/jurisdiction	Supreme Court of Ohio
Divita v. Ziegler, 2007 WL 29390, 35 Media L. Rep. 1225 (Ky. App. Jan. 05, 2007). Successfully represented a television station in an appeal from a defense verdict in a defamation case involving several questions of first impression under state law, including the scope of liability of media employers under negligent supervision theories for allegedly defamatory statements made by on-air personalities. Read decision.	Torts	Supreme Court of Kentucky
Alberici Constructors, Inc. v. Ohio Farmers Insurance Company, 866 N.E.2d 740 (Ind. 2007). Successfully argued before the Indiana Supreme Court on behalf of the Surety Association of America, in a case which established that coverage under a performance bond is not extended to any entity more remote than a second tier labor or material supplier on a state highway project.	Construction	Supreme Court of Indiana
Cincinnati Bell Telephone Company v. Kentucky Public Service Commission, 223 S.W.3d 829 (Ky. App. 2007). Representing a telephone company, obtained reversal of order of the Kentucky Public Service Commission, which would have required telephone utilities to pay refunds of certain rates collected following a change in federal regulatory policy, based on the Commission’s determination that the utilities were on notice that the state Commission had a policy to follow changes in federal regulatory policy and the utilities therefore should have unilaterally adjusted their own rates following the change in federal policy. FBT successfully argued that the Commission’s order was precluded by the filed rate doctrine and the prohibition on retroactive rate-making, and obtained a published opinion regarded as a seminal Kentucky decision concerning the filed rate doctrine. Read decision.	Government	Kentucky Court of Appeals
Schultz v. Ford Motor Company, 857 N.E.2d 977 (Ind. 2006). Successfully represented Ford Motor Company before the Indiana Supreme Court in affirming a jury verdict for the manufacturer. The issue on appeal was the continuing effect to be given an evidentiary presumption accorded to a Federal Motor Vehicle Safety Standard.	Torts	Supreme Court of Indiana
Fletcher v. Graham, 192 S.W.3d 350 (Ky. 2006). In a case of first impression, successfully represented the Office of the Governor in an appeal concerning the scope of the Governor’s constitutional pardoning power. Read decision.	Government	Suprme Court of Kentucky
Scovill v. WSYX/ABC, 425 F.3d 1012 (6th Cir. 2005). Obtained a reversal on an issue concerning enforceability of certain arbitration provisions. In this employment discrimination lawsuit, the Sixth Circuit accepted our client’s arguments and reversed the district court’s severance of certain aspects of an arbitration agreement while affirming the district court’s findings that the dispute was arbitrable and the arbitration clause lawful. Read decision.	Procedure/jurisdiction	United States Court of Appeals for the Sixth Circuit
Fletcher v. Stumbo, 163 S.W.3d 852 (Ky. 2005). Represented the Office of the Governor before the Kentucky Supreme Court in an appeal concerning the constitutional power of the Governor to continue the operations of state government following the legislature’s failure to enact a budget. In a case of first impression, we successfully argued that the Governor had the authority to continue expending funds in the absence of a budget for, among other things, state services guaranteed by the state constitution, including the operation of public schools, and to comply with federal. mandates. Read decision.	Government	Suprme Court of Kentucky
Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979 (Ind. 2005). Appellate court ordered Complaint dismissed because our attorneys successfully established an administrative review requirement had not been met.	Government	Supreme Court of Indiana
Sprouse v. Manchin, 2005 W. Va. LEXIS 197 (W.Va. 2005). Successfully defended the Governor in proceeding filed by Senate minority leader challenging the Governor’s ability to convene extraordinary sessions of the Legislature and to delineate those items of business that the Legislature may consider during such extraordinary sessions.	Government	Supreme Court of Appeals of West Virgina
Perdue v. Wise, 607 S.E.2d 4244 (W.Va. 2004). Represented the Governor of the State of West Virginia in a constitutional challenge to a proposed $4 Billion bond issuance, the proceeds of which were to provide for the redemption of the unfunded actuarial accrued liabilities of three public retirement systems.	Government	Supreme Court of Appeals of West Virgina
Northwestern School Corporation v. Linke, 763 N.E.2d 972 (Ind. 2002). Successfully defended school drug testing policies against Indiana Constitutional challenge	Employment	Supreme Court of Indiana
Gable v. Patton, 142 F.3d 940 (6th Cir. 1998). Representing the Governor of Kentucky, successfully defended Kentucky’s sweeping campaign finance reform law.	Government	United States Court of Appeals for the Sixth Circuit

Our Reputation

Our successful track record, determined advocacy, and creative insight mean that our appellate team is well-known and highly regarded by counsel and courts throughout our footprint. We are proud to count among our ranks several former clerks for notable appellate court judges, as well as a member of the exclusive American Academy of Appellate Lawyers.

Our reputation is enhanced by the fact that many of our appellate advocates wrote the book – literally – regarding appellate rules and practice in their respective jurisdictions. Major publications include:

Authors of Kentucky Appellate Practice (Thomson/West 2006 – present).
Co-author of Ohio Appellate Practice, five editions (Thomson/West 2004-2008).
Editor-in-chief of the Sixth Circuit Practice Manual (Anderson 2006).
Co-drafters of the Indiana Rules of Appellate Procedure (2000, 2002, 2008).
Contributors to the Indiana Appellate Practice Manual (2008).
Authors of the Indiana “Appellate Law Update” for Res Gestae (2002-present).
Authors of the “Indiana Appellate Practice Column” in the Appellate Advocate (2002-present).
Contributing author to The Appellate Practice Compendium (ABA 2013).
Contributing author to Staying and Superseding Judgments: A National Compendium (ABA 2007).