Experience
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.
Lach v. Man O’War, LLC - Breach of Fiduciary Duties
We represented our client, who was a limited partner in a shopping center limited partnership. Our client did not consent when the general partners changed from limited liability partnership to limited liability corporation, which changed some of the rights associated with a limited partner. The Kentucky Supreme Court ruled that this change in the form of the entity without obtaining the consent of the limited partner was breach of fiduciary duties by the general partners.
Charging Order Against Three LLCs Reversed
After a judgment had already been entered, the defendant hired Dinsmore to represent him in connection with the plaintiffs’ collection efforts. The plaintiffs claimed our client was a member of three limited liability companies, and they asked the trial court to charge his alleged membership interests. We opposed the plaintiffs’ motion for charging order because our client was not an owner of any of the LLCs, as evidenced by their operating agreements. Nevertheless, the trial court granted the plaintiffs’ request. The First District Court of Appeals reversed, finding the trial court “lacked competent evidence of [our client’s] membership” in the companies. The First District held: “when determining if an individual is a member of a limited liability company for the purpose of R.C. 1705.19, the trial court must consider records maintained by the company for the purpose of its corporate governance that name those owners entitled to receive distributions and share in the profits and losses of the company.” Because “the only records of the limited liability companies before the trial court established” that our client was not a member of the LLCs, the trial court erred in granting the plaintiffs’ motion for charging order.
Stanfield v. On Target Consulting, 1st Dist. Ham. App. No. C-160890, 2017-Ohio-8830.
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
Patent Law – Alleged Infringement
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.
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
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
Anonymous Plaintiff v. City / Village
Anonymous Plaintiff v. Insurance Company
Anonymous Plaintiff v. Insurance Company
Anonymous Plaintiff v. Insurance Company
Anonymous Plaintiff v. Self-Insured Large Corporation
Anonymous Plaintiffs / Claimants v. Insurance Company
Anonymous Plaintiffs v. Debt Purchaser
Capital Plus, Inc. v. Parker Enterprises, et al.
City
City / Village v. Property Owners
Dever v. Casheer Appellate Briefing
Farmer, Executrix v. Meuser, Executor - Will Contest
Gaskill v. Robbins - Division of Marital Property
Geneva Hager v. Large National Insurance Company
Kelley v. Fedde - KY Child Custody
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