Appellate

Experience

Werden v. Children's Hospital Medical Center Appellate Briefing

The firm represented Children's Hospital in a case alleging medical malpractice.  A defense verdict was affirmed on appeal.

Represent Client on Multiple Challenges from Other Company

We represented The Procter & Gamble Company (P&G) in a lawsuit filed by Definitive Solutions Company, Inc. (DSC) in the Hamilton County, Ohio Court of Common Pleas. DSC sued its former employees and their new employer, as well as P&G, when those employees left DSC. DSC asserted claims against P&G for breach of contract, promissory estoppel, tortious interference with business relationships, misappropriation of trade secrets, and civil aiding and abetting. After extensive discovery, P&G moved for, and was granted, summary judgment on each of DSC’s claims.

A bench trial on various claims DSC asserted against the other defendants was held in 2014. The trial court ruled against the former employees and awarded DSC damages. DSC ultimately settled with its former employees, and it appealed the trial court’s decision granting P&G summary judgment on the breach of contract and tortious interference claims.

On appeal, DSC claimed that P&G breached an agreement not to “directly solicit for employment” employees who had worked on its account and also that P&G had tortiously interfered with DSC’s relationship with the employees. The First District Court of Appeals rejected both of DSC’s arguments and affirmed summary judgment for P&G. The Court of Appeals found that the agreement between DSC and P&G prohibited solicitation for employment, not solicitation of another company to perform work. The Court also found nothing in P&G’s conduct that rose to the level of tortious interference.

See Definitive Solutions Co., Inc. v. Sliper, 1st Dist. Hamilton App. No. C-150281, 2016-Ohio-533.

Labor & Employment – NLRA

Michael Hawkins served as lead counsel for the respondent before the United States Supreme Court in a National Labor Relations Act (NLRA) dispute between the NLRB and a residential care facility. Mr. Hawkins briefed and argued the case before the Supreme Court, successfully arguing that the NLRB had applied the incorrect test to determine whether registered nurses working at the facility were “supervisors.”

Bankruptcy – Sovereign Immunity

Kim Martin Lewis served as lead counsel for the respondent before the United States Supreme Court in a bankruptcy appeal. Ms. Lewis briefed and argued the case before the Supreme Court, successfully asserting States do not enjoy sovereign immunity against claims asserted by bankruptcy trustees.

Patent Law – Alleged Infringement

John Luken served as lead appellate counsel to the appellees in a patent dispute concerning alleged infringement of two patents of directed beverage can ends and the methods of joining them to can bodies. Mr. Luken briefed and argued the case in the Federal Circuit, obtaining affirmance of a favorable ruling from the trial court.

Ohio Willow Wood v. Alps South

John Luken served as lead appellate counsel for The Ohio Willow Wood Company (OWW), a manufacturer of prosthetic products, which came to Dinsmore after it had lost an infringement trial against a competitor, been enjoined from selling new products, held in contempt of the injunction, and ordered to pay nearly $20 million in damages to its chief competitor.

On behalf of OWW, Mr. Luken and the Dinsmore appellate team successfully obtained a stay of the contempt order from the Federal Circuit, which allowed OWW to begin selling its products again. After briefing and argument, the Federal Circuit reversed the lower court’s judgment and dismissed the complaint for lack of standing, thereby overturning the judgment against OWW. Mr. Luken also successfully opposed a petition for rehearing and rehearing en banc.

Experience appellate work, including counterfeit products

Thomas Drennan has experience with appellate work in Illinois, Minnesota, California, Louisiana, and New York. In Illinois, his appellate experience includes the representation of an employer in connection with a claim for contribution and indemnification arising out of a written contract between the parties relating to electrical work at a power generating station. Mr. Drennan successfully argued before the appellate court that the indemnity obligations included in the written contract did not extend to the indemnitee’s own negligence. In New York, he represented an insurance company in a matter involving a company selling shampoo that closely mirrored a popular name brand shampoo. He successfully argued before the appellate court that the client’s denial of coverage was correct, and there was no coverage under the relevant policy of insurance.

Successful representation of client in elementary school disciplinary case.

We successfully represented our client, an elementary school, in a lawsuit challenging the principal’s decision to suspend two students for intimidating behavior. After a bench trial, a Hamilton County Court of Common Pleas judge found in favor of the school and dismissed the lawsuit. The Court ruled that the school had not abused its discretion in determining the manner in which the two students would be disciplined.

The First District Court of Appeals affirmed the decision in favor of our client, holding the school handbook was not a contract, and, even if it was, the school did not abuse its discretion. It was an important decision in several respects. It reaffirmed the broad discretion given to private schools in disciplinary matters. It was the first appellate court in Hamilton County to address the issue of student discipline in the private elementary school context. And it was the first court in Ohio to squarely answer the question of whether a grade school handbook constitutes a binding contract on the school. In answering that question in the negative, Judge DeWine’s majority opinion represents a significant victory for private schools moving forward and only increases the burden student/parent plaintiffs face in challenging a disciplinary decision.

See D.T. v. St. Gabriel Consol. School, 1st Dist. Hamilton App. No. C-150640, 2016-Ohio-784

Representation of a large commercial shopping center in appeal

Seth Schwartz served as lead counsel for a dispute relating to contractual payments and title insurance for a large commercial shopping center in Toledo, Ohio. Our client appealed a decision of the Federal District Court. This dispute involved contractual interpretation issues, extensive discovery, extensive motion practice concerning the interpretation of the overlapping land agreements and applicability of the title insurance policy. The parties reached an agreement to the satisfaction of our client.

Appellate Counsel to Manufacturer in Precedent-Setting Case Regarding Scope of Manufacturer’s Liability Under Doctrine of Equitable Estoppel

Successfully defended equipment manufacturer through appeal, establishing significant favorable precedent in product liability law in Kentucky regarding application of doctrine of equitable estoppel and statute of limitations discovery rule.

Fluke, Inc. v. LeMaster, 306 S.W.3d 55 (Ky. 2010). Click HERE to view the decision.

Commercial Real Estate Litigation; Land Use and Zoning

Represented national restaurant chain in commercial real estate litigation (trial and appellate court levels) and related local zoning proceedings.

Appellate Counsel in High Profile Litigation Involving Personal Guaranties on Failed Real Estate Construction Loans

As counsel to the Kentucky Commissioner of Insurance in his capacity as Liquidator of Kentucky Central Life Insurance Company (KCL), secured reversal of trial court's order denying the enforceability of over $100 million in personal guaranties owed to client, as well as reversal of $ 1 million in discovery sanctions imposed by the trial court against our client and its former law firm. Case was followed closely by press due to involvement of prominent real estate developers and serious implications for all creditors and shareholders of KCL.

Continued representing Liquidator of KCL upon remand in what became the largest continuous lawsuit of that $1 billion statutory insolvency. After several years of litigation, the case was resolved by confidential settlement.

Commissioner of Insurance, Janie A. Miller, in her capacity as Liquidator of Kentucky Central Life Ins. Co. v. Webb, Nos. 1998-CA-2487-MR, 2000-CA-0039-MR, 2000-CA-0212-MR, 2000-CA-2619-MR, 2000-CA-2638-MR, 2002 Ky. App. LEXIS 1462 (Ky. App. July 12, 2002).  Click HERE to view the decision.

Adoption Proceeding

Represented foster parents who were attempting to adopt the foster child that had been living with them for almost three years. The maternal grandmother of the child, who had been named in the original abuse and neglect petition, was also attempting to adopt the child. The West Virginia Department of Health and Human Resources recommended that the child be removed from the foster parents and adopted by the grandmother. The Guardian ad Litem recommended that the child remain where he was and be adopted by the foster parents. We presented the only expert testimony that the child’s best interest was served by remaining with the foster parents and being adopted by them. The Circuit Court ordered the child to be immediately removed from the foster parents and placed with the grandmother for adoption. We filed an appeal to the West Virginia Supreme Court. The Supreme Court overturned the Circuit Court and found that it had not properly considered the best interest of the child, which supersedes the grandparent preference in both the DHHR policies and case law, in making its ruling. The Supreme Court ordered that the child be returned to the foster parents and placed with them for adoption. The grandmother and DHHR filed a motion for rehearing that was denied by the Supreme Court. The clients are in the process of moving forward with the adoption.

Anonymous Plaintiff v. City / Village

Briefed municipal taxation issue to Ohio Supreme Court. Court principally adopted brief to overturn prior case law and establish new standard for municipal pre-emption.

Anonymous Plaintiff v. Insurance Company

Plaintiff filed suit for defense and indemnification under homeowners and personal umbrella policies. The carrier denied coverage because the policyholder engaged in excluded business pursuits and intentional acts. After extensive discovery over contested facts, the carrier obtained summary judgment in a lengthy court opinion on all multiple and independent grounds briefed.

Anonymous Plaintiff v. Insurance Company

Obtained summary judgment for carrier on pollution exclusion. Decision upheld after briefing and oral argument to state court of appeals.

Anonymous Plaintiff v. Insurance Company

Plaintiff filed suit for benefits under a life insurance policy. The carrier denied coverage because the policy terminated and the reinstatement application was still pending when the policyholder passed away. We removed the case to federal court and obtained summary judgment, defeating a cross-motion for summary judgment which attempted under a state supreme court decision to have coverage bound upon tender of the application. After briefing and oral argument, the Third Circuit Court of Appeals affirmed summary judgment for the carrier.

Anonymous Plaintiff v. Self-Insured Large Corporation

We handled multiple Scott-Pontzer claims for Self-Insured Large Corporation, including one lawsuit alleging seven figure damages. All claims were appropriately denied or dismissed based on arguments as to the inapplicability of the Scott-Pontzer line of cases to self-insureds. We also filed an amicus curiae brief in the Ohio Supreme Court arguing the same and urging reversal of Scott-Pontzer. The court then abandoned Scott-Pontzer in a contemporaneous case.

Anonymous Plaintiffs / Claimants v. Insurance Company

Serving as national counsel, we provide coverage opinions and advise carrier as to appropriate and consistent claims handling for multiple property claims, including hurricane, wind, fire, vandalism, water damage, hail, and similar perils. Where applicable, we manage local counsel and help shape strategy for discovery, briefing, trial, and settlement. We have defended depositions, defended subpoenas, and mediated claims on the client's behalf. We also directly defend such claims regionally. We have performed similar functions as national coordinating counsel for mold, Y2K, and liability/casualty claims.

Anonymous Plaintiffs v. Debt Purchaser

We serve as national coordinating counsel for Debt Purchaser in the appropriate handling of consumer debt collection and the defense of FDCPA and related litigation, including class action litigation. We manage local counsel and coordinate all aspects of litigation.

Appellate Counsel in FELA Action

Successfully litigated appeal in FELA action, protecting defense verdict at trial. Appeal involved numerous evidentiary issues, including regarding proper scope, subject, and admissibility of fact witness and expert testimony.

Rossi v. CSX Transp., Inc., __ S.W.3d __, 2010 Ky. App. LEXIS 233, 2010 WL 5128637 (Ky. App. 2010). Click HERE to view the decision.

Appellate Counsel to Kentucky Bankers Association on Issue of State Agency’s Statutory and Regulatory Authority

Represented nominal party on behalf of interests of Kentucky Bankers Association before Kentucky Supreme Court regarding scope of authority of Kentucky Department of Financial Institutions to grant geographic charters to state credit unions.

Members Choice Credit Union v. Home Federal Savings & Loan Association, 323 S.W.3d 658 (Ky. 2010). Click HERE to view the decision.

Capital Plus, Inc. v. Parker Enterprises, et al.

Obtained judgment in excess of $2 million, plus punitive damages in excess of $2.1 million, costs and attorneys' fees in a complicated commercial transaction.  The verdict was upheld upon appeal to the 1st District Court of Appeals.

CBS Personnel Services LLC, et al. v. ARC Staffing, et al.

Counsel for plaintiffs alleging breach of employment agreements containing non-competition provisions, misappropriation of trade secrets and services in a staffing industry, and unfair competition. The case settled after CBS secured a preliminary injunction against the defendants.

City

Successfully prosecuted multiple property annexations for City in front of County Commissioners, including appeal to Court of Common Pleas.

City / Village v. Property Owners

Tried eminent domain suit to conclusion. Jury award in between both sides' fair market value expert testimony. In separate cases, successfully defeated challenge to right-to-take before settling.

Dever v. Casheer Appellate Briefing

Our firm represented Children's Hospital against a §1983 claim based on a report of suspected child abuse made to County child welfare authorities.  The Hamilton County Court of Appeals affirmed dismissal of the complaint.

Farmer, Executrix v. Meuser, Executor - Will Contest

Represented several family members of the deceased, who challenged his will as being the product of lack of testamentary capacity and undue influence. The trial court instructed the jury that the appropriate standard to prove undue influence and testamentary capacity was the stricter standard of clear and convincing evidence, rather than the preponderance of the evidence standard typically applied in civil lawsuits. The Court of Appeals ruled in favor of our clients on this issue and decided that the proper standard of proof in undue influence and testamentary capacity cases is preponderance of the evidence rather than the stricter clear and convincing evidence.

Gaskill v. Robbins - Division of Marital Property

Represented client in division of marital property in what would become a landmark case in the Kentucky Supreme Court. The client was a sole practitioner in oral surgery, and following a divorce, the dispute centered around the distinction between personal goodwill and enterprise goodwill in the division of the oral surgery practice. The Supreme Court ruled that goodwill of a professional practice is divided into personal goodwill and enterprise goodwill, and only enterprise goodwill is considered marital property for division in a divorce.

Geneva Hager v. Large National Insurance Company

Our firm defended a large national insurance company on claims that it violated the Kentucky Unfair Claims Settlement Practices Act in implementing claim handling processes for casualty claims involving soft tissue injuries arising from minor impact automobile accidents which the plaintiff contended were improper. Class certification was denied, and thereafter the insurance company won a defense verdict in a highly publicized trial of the bad faith claim of the individual plaintiff who had sought $1.45 billion in damages.