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
What Sets Us Apart
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 appellate team has a breadth and depth of experience handling appeals, including those in these areas:
- Class actions
- Civil Rights
- Constitutional law
- Contractual/commercial disputes
- 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.
United States Courts of Appeals
Higgins v. Kentucky Sports Radio, LLC, 951 F.3d 728 (6th Cir. 2020). Successfully won affirmance of an order dismissing all claims by an NCAA referee against a popular sports radio show, website, and on-air personalities. The referee alleged comments on the show and website encouraged fans to make harassing communications and leave negative reviews of his business. The Court held those claims were properly dismissed because they were barred by the First Amendment. Read decision.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Gable v. Patton, 142 F.3d 940 (6th Cir. 1998). Representing the Governor of Kentucky, successfully defended Kentucky’s sweeping campaign finance reform law.
Supreme Court of Indiana
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.
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.
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.
Northwestern School Corporation v. Linke, 763 N.E.2d 972 (Ind. 2002). Successfully defended school drug testing policies against Indiana Constitutional challenge.
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.
Indiana Court of Appeals
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. Read decision.
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. Read decision.
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. Read decision.
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. Read decision.
Supreme Court of Kentucky
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.
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.
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.
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.
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.
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.
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.
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.
Kentucky Court of Appeals
Bell Helicopter Textron, Inc. v. Dobbs, 2019 WL 2484691 (Ky. App. 2019). Representing a helicopter manufacturer in appeal of a $22 million jury verdict on product liability claims, persuaded the Kentucky Court of Appeals to vacate the jury verdict based on multiple evidentiary errors at trial. Read decision.
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.
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. Read decision.
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.
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.
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.
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.
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.
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.
Supreme Court of Ohio
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.
Reister v. Gardner (argued and pending at the Supreme Court of Ohio). Representing a judgment creditor for whose benefit a court-appointed receivership was established. This case, brought by the receiver, asks whether Ohio’s litigation privilege bars breach-of-fiduciary duty claims against directors of a nonprofit trade association whose decision to reject a proposed, no-cost settlement led directly to a $43 million judgment against the association.
City of Athens v. McClain, Tax Commissioner (pending at the Supreme Court of Ohio). Representing 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 purports to require municipalities to adopt a state-prescribed municipal tax code.
State of Ohio ex rel. More Bratenahl, et al. v. Village of Bratenahl, et al., — Ohio St.3d –, 2019-Ohio-3233, — N.E.3d — (2019). Served as counsel to amici curiae Ohio Coalition for Open Government, Reporters Committee for Freedom of the Press, and Ohio Association of Broadcasters in obtaining a favorable decision from the Ohio Supreme Court clarifying that Ohio’s Open Meetings Act does not permit a public body covered by the act to vote by secret ballot. The Court had never addressed this issue under the act, which represents an important protection of citizens’ right to know how local governments make decisions and act. Read decision.
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.
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.
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. Read decision.
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.
Ohio Courts of Appeals
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. Read decision.
Supreme Court of Appeals of West Virginia
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. Read decision.
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. Read decision.
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. Read decision.
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. Read decision.
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. Read decision.
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. Read decision.
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. Read decision.
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.
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. Read decision.
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).
Meet the Team
Read these case studies to learn more about who we are and what we do for our clients.
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