Appellate Advocacy

The skills exemplified by Stites & Harbison attorneys – excellent writing and analysis, and the ability to present matters in an interesting and understandable manner tailored for a variety of audiences – make our attorneys superb advocates for their clients in all aspects of litigation, including post-trial motions and appellate advocacy.

The possibility of an appeal should be considered from the time a complaint is filed through the end of the trial or hearing. Trial counsel must keep in mind the need to shape and preserve the record for appeal. To this end – and because trial counsel are generally the most knowledgeable about the facts and issues of their cases –virtually every litigator in our firm has appellate experience as well as trial court experience.

In addition, a number of Stites & Harbison attorneys focus their practice on appellate advocacy.

Stites & Harbison attorneys have practiced in every federal appellate court in the country (including more than 20 attorneys admitted to the United States Supreme Court), and multiple state appellate courts.

Three current Stites & Harbison lawyers have argued cases before the United States Supreme Court.

Stites & Harbison’s appellate services are based largely on the client's needs. Some clients wish to retain new counsel to handle an appeal, and Stites & Harbison has often been hired to serve in such a role. In this circumstance, we can offer a new perspective unaffected by the emotions associated with a trial.

We can also serve as a resource to any trial counsel the client wishes to keep active on the appeal. In this role, we can offer strategic or analytic assistance to trial counsel; determine whether to file an appeal and the best and most effective issues to raise; review draft briefs and motions for substantive content and compliance with court rules; and provide technical experience to ensure compliance with court deadlines and rules.

In Kentucky, Stites & Harbison has had extensive experience in not only handling appeals but also in filing, and responding to, motions for discretionary review before the Kentucky Supreme Court. The Kentucky Supreme Court can pick and choose which cases it wishes to hear and decide; as such we are well-versed in what may be of interest to that Court.

Finally, Stites & Harbison also is often retained to represent amicus who have a unique interest in an issue before an appellate court. We can guide a client through the appropriate steps and file amicus curiae briefs to make sure the appellate court has all relevant information and arguments before it.

Recent Experience

Some of our recent appellate experiences are listed below.

Sixth Circuit Court of Appeals

• Popeck v. Rawlings Company, Inc., No. 19-5092 (6th Cir. Oct. 16, 2019) (affirming dismissal of a variety of employment-related claims)
• Gentry v. Tennessee Board of Judicial Conduct, 2018 U.S. App. LEXIS 9713 (6th Cir. May 29, 2018) (affirming dismissal of claims asserted against opposing party’s lawyers)
• Mischler v. Bevin, 887 F.3d 271 (6th Cir. 2018) (dismissal of appeal on grounds that it was from a non-final and non-appealable order)
• In re Perkins, 581 B.R. 822 (6th Cir. BAP 2018) (challenge to bankruptcy court’s determination that Chapter 12 debtor did not exceed aggregate debt limit for family farmers)
• Spa Rental LLC v. Somerset-Pulaski County Airport Board, 884 F.3d 600 (6th Cir. 2018) (affirming summary judgment granted on discrimination claim)
• Barber v. Lincoln Nat’l Life Ins. Co., 722 Fed Appx. 470 (6th Cir. 2018) (challenge to denial of claim for disability benefits)
• Kaufmann v. FAA, 722 Fed. Appx. 438 (6th Cir. 2018) (affirming FAA’s Record of Decision on Regional Airport Authority’s implementation of safety plan)
• Bailey v. Aramark Corp., 2018 U.S. App. LEXIS 1162 (6th Cir. Jan. 17, 2018) (appeal dismissed as being premature)
• Smith v. Queener, 2018 U.S. App. LEXIS 346 (6th Cir. Jan. 4, 2018) (affirming dismissal of case against attorney)
• Isco Industries v. Douglas P. Fleming, LLC, 2018 U.S. App. LEXIS 336 (6th Cir. Jan. 4, 2018) (dismissing appeal as being from a non-appealable order)
• Marshall v. Rawlings Co., 854 F.3d 368 (6th Cir. 2017) (2-1 reversal of summary judgment granted employer on employment-related claims)
• Mischler v. Clary, 2017 U.S. App. LEXIS 14319 (6th Cir. May 16, 2017) (affirming dismissal of a variety of claims against the Kentucky Supreme Court and two of its employees)
• Wieck v. Board of Trustees of the Kentucky Ret. Sys., 2017 U.S. App. LEXIS 27810 (6th Cir. Feb. 16, 2017) (dismissal of premature appeal)
• Bailey v. Ingram, 2017 U.S. App. LEXIS 24036 (6th Cir. Aug. 30, 2017) (affirming dismissal of civil rights claim based on failure to exhaust administrative remedies)
• Lyles v. RDP Co., 702 Fed. Appx. 385 (6th Cir. 2017) (affirming finding that quarry operators were entitled to a prescriptive easement)
• 859 Boutique Fitness, LLC v. Cyber Franchising, LLC, 699 Fed. Appx. 457 (6th Cir. 2017) (affirming dismissal of claims against franchisor for misrepresentation and Kentucky Consumer Protection Act violations)
• RQSI Global Asset Allocation Master Fund Ltd. v. Apercu Int’l PR LLC, 683 Fed Appx. 497 (6th Cir. 2017) (investor claim against investment advisor)
• Higgins v. BAC Home Loans Servicing, Inc., 673 Fed. Appx. 514 (6th Cir. 2016) (affirming dismissal of landowners’ complaint based on theory that Kentucky required recording of transfer of promissory notes)
• Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084 (6th Cir. 2016) (challenge to settlement of class action lawsuit)
• Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016) (application of the Hague Abduction Convention)
• Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016) (resolving challenge to Kentucky’s Code of Judicial Conduct)
• Harris v. Nationwide Mut. Fire Ins. Co., 832 F.3d 593 (6th Cir. 2016) (addressing preemptive breadth of National Flood Insurance Act)
• Meade v. AT&T Corp., 657 Fed Appx. 391 (6th Cir. 2016) (affirming summary judgment on disability discrimination claim under Americans With Disabilities Act)

Federal Circuit Court of Appeals

• Continental Refining Co., LLC v. Hartford Steam Boiler Insp. & Ins. Co., 769 Fed. Appx. 355 (6th Cir. 2019) (affirming summary judgment in insurance coverage dispute due to admissions during discovery)
• Zagg Intellectual Prop. Holding Co. v. Tech 21 UK, 684 Fed. Appx. 959 (Fed. Cir. 2017) (affirming order of United States Patent and Trademark Office)
• Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350 (Fed. Cir. 2016) (vacating summary judgment granted competitor on claim of patent infringement)
• Reed Elsevier, Inc. v. Muchnick,130 S.Ct. 1237 (2010). Authored amicus curiae brief to the United States Supreme Court on behalf of the American Intellectual Property Law Association in a copyright infringement class action.
• Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023 (8th Cir. 2010). Convinced the Eighth Circuit to affirm the district court’s denial of class certification on behalf of our client in a case related to interest crediting practices on annuities.
• Euclid Chemical Co. v. Vector Corrosion Technologies, Inc., 561 F.3d 1340 (Fed. Cir. 2009). Represented patent holder before the Federal Circuit in dispute over assignment of the patent and whether the opposing party has settled or abandoned some of its claims relating to the patent.
• Paducah & Louisville Railway Co. v. Quixx Corp., 294 Fed. Appx. 995 (6th Cir. 2008). Successfully represented client in appeal by railroad from summary judgment granted to our client on claim that its work on rail car caused train derailment.
• White v. Howmedica, 490 F.3d 1014 (8th Cir. 2007). Successfully represented medical device manufacturer in appeal upholding the trial court’s exclusion of an untimely identified expert witness.
• Fox v. Desoto, 489 F.3d 227 (6th Cir. 2007). The Sixth Circuit affirmed summary judgment in favor of our client, the Louisville Regional Airport Authority, on claims arising from plaintiff’s arrest at the Louisville International Airport.
• Crenshaw v. Antokol, 206 Fed. Appx. 560 (7th Cir. 2006). The Seventh Circuit affirmed summary judgment granted to our client who alleged that parties to a prior lawsuit had conspired against her.
• B. L. Harbert International, LLC v. Hercules Steel Co., 441 F.3d 905 (11th Cir. 2006). Represented the prevailing party in an arbitration proceeding and the federal litigation which followed. The Eleventh Circuit clarified the high standard that must be met by a party challenging an arbitration award.

Kentucky Supreme Court

• Lake Cumberland Reg. Hosp., LLC v. Adams, 536 S.W.3d 683 (Ky. 2017) (rejecting stand-alone tort of negligent credentialing)
• Brown-Forman Corp. v. Miller, 528 S.W.3d 886 (Ky. 2017) (reversal of injunctive relief relating to bourbon distilling process)
• Indiana Ins. Co. v. Demetre, 527 S.W.3d 12 (Ky. 2017) (appeal from significant bad faith verdict against insurer)
• Barber v. Bradley, 505 S.W.3d 749 (6th Cir. 2016) (resolving division of property issues in dissolution of marriage)

State Appellate Courts

Kentucky

• Reed v. Citizens Bank, N.A., 2017 Ky. App. Unpub. LEXIS 827 (Ky. App. Nov. 9, 2017) (affirming summary judgment in foreclosure action)
• Bardstown Capital Corp. v. Nationstar Mortgage, LLC, 2017 Ky. App. Unpub. LEXIS 807 (Ky. App. Nov. 3, 2017) (affirming dismissal of claim relating to cancellation of sale of auctioned property)
• City of Audubon Park v. Louisville Regional Airport Authority, 2017 Ky. App. Unpub. LEXIS 772 (Ky. App. Oct. 20, 2017) (municipal ordinance prohibiting solicit of easements without first obtaining permit from municipality struck down)
• Shields v. University of Louisville Foundation, 536 S.W.3d 706 (Ky. App. 2017) (affirming interpretation of contract as creating a right-of-way easement)
• Town & Country Bank & Trust Co. v. KHV, LLC, 2017 Ky. App. Unpub. LEXIS 485 (Ky. App. July 7, 2017) (dismissing appeal as being from a non-final order)
• Nebraska Alliance Realty Co. v. Brewer, 529 S.W.3d 307 (Ky. App. 2017) (reversal of class certification order)
• Smith v. Smith, 2017 Ky. App. Unpub. LEXIS 445 (Ky. App. Jun. 16, 2017) (rejection of traditional classification of land entrants in premises liability cases; case currently before the Kentucky Supreme Court)
• Drakes Creek Holding Co. v. Franklin-Simpson County Board of Zoning, 518 S.W.3d 174 (Ky. App. 2017) (upholding issuance of conditional use permit)
• Spann v. Wells Fargo Bank, N.A., 2017 Ky. App. Unpub. LEXIS 202 (Ky. App. Mar. 17, 2017) (affirming dismissal of claim against mortgage holder)
• Homestretch Logistical Solutions, Inc. v. Johnson Lawrence Walker Ins. Co., 2017 Ky. App. Unpub. LEXIS 115 (Ky. App. Feb. 24, 2017) (affirming dismissal of claims against insurer)
• Grant Thornton, LLP v. Yung, 2016 Ky. App. Unpub. LEXIS 890 (Ky. App. Sep. 16, 2016) (upholding fraud verdict against accounting firm but partially reducing $80,000,000 punitive damage award; case currently before the Kentucky Supreme Court)
• G.A.D. v. M.R., 2016 Ky. App. Unpub. LEXIS 622 (Ky. App. Sep. 9, 2017) (vacating order modifying child custody)
• Patmon v. Hobbs, 495 S.W.3d 722 (Ky. App. 2016) (reversing judgment relating to alleged diversion of business opportunity)
• Hashemian v. Louisville Regional Airport Authority, 493 S.W.3d 843 (Ky. App. 2016) (affirming summary judgment based on doctrine of res judicata)
• 3M Co. v. Engle, 328 S.W.3d 184 (Ky. 2010). Convinced the Kentucky Supreme Court to reverse the Court of Appeals and allow our clients to depose plaintiffs’ attorneys, where plaintiffs had impliedly waived attorney-client privilege.
• Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69 (Ky. 2010). The Kentucky Supreme Court affirmed summary judgment in favor of our client and joined the majority of states holding that defective construction is not an “occurrence” and, thus, not covered under a commercial general liability insurance policy.
• Fluke Corp. v. LeMaster, 306 S.W.3d 55 (Ky. 2010). Authored amicus curiae brief to the Kentucky Supreme Court on behalf of the Product Liability Advisory Council, Inc., in a case involving the statute of limitations and the boundaries of the doctrine of equitable estoppel.
• Miller v. Johnson Controls, Inc., 296 S.W.3d 392 (Ky. 2009). Successfully represented taxpayer in action challenging Kentucky’s prohibition against the filing of combined tax returns under the unitary business concept.
• Dubin Orthopedic Center, P.S.C. v. Commonwealth, 294 S.W.3d 421 (Ky. 2009). Represented amicus curiae American Medical Association and Kentucky Medical Association in case in which the Kentucky Supreme Court recognized that a physician could bill for physical therapy evaluation notwithstanding a Kentucky statute which prohibited any person to bill for physical therapy unless the physical therapy was under the supervision of a licensed physical therapist.
• Mammoth Medical, Inc. v. Bunnell, 265 S.W.3d 205 (Ky. 2008). Convinced the Kentucky Supreme Court to grant extraordinary relief and prevent a potential defendant from filing a declaratory judgment action seeking adjudication of the potential defendant’s defenses. The filing of such a declaratory judgment action would have deprived our client, the aggrieved party and the potential plaintiff, of its right to file its lawsuit in the forum of its choice.
• American General Home Equity, Inc. v. Kestel, 253 S.W.3d 543 (Ky. 2008). Convinced the Kentucky Supreme Court to reverse the Court of Appeals and provide guidance on when a party’s litigation conduct amounts to an implied waiver of its right to enforce a contractual right to arbitrate.
• King Drugs, Inc. v. Commonwealth, 250 S.W.3d 643 (Ky. 2008). The Kentucky Supreme Court reversed both the Franklin Circuit Court and the Court of Appeals in reinstating a favorable tax ruling for our client by the Kentucky Board of Tax Appeals.
• Cape Publications, Inc. v. University of Louisville Foundation, 260 S.W.3d 818 (Ky. 2008). The Kentucky Supreme Court recognized our client’s right to honor promises of confidentiality made to its donors.
• Dunn v. Kentucky Farm Bureau Mutual Ins. Co.,2009 Ky. App. Unpub. LEXIS 422 (Ky. App. 2009). Kentucky Court of Appeals affirmed summary judgment granted our client in class action lawsuit concerning interest to be paid on insurance claim payments. The affirmance included the dismissal of the class claims prior to any motion to certify the plaintiff class.
• Cincinnati Insurance Co. v. Hofmeister, 2008 Ky. App. LEXIS 313 (Ky. App. 2008). In a lengthy opinion, the Kentucky Court of Appeals reversed a $28.5 million bad faith jury verdict against our client, Cincinnati Insurance Company. The Kentucky Supreme Court subsequently denied the opposition’s motion for discretionary review.
• Wesibord/Etkin/Goldberg v. Gainesway Management Corp., No. 2007-CA-00280-MR (Ky. App. 2008). Successfully represented members of a horse syndicate alleged to have violated the agreement that governed the syndicate. The Court of Appeals affirmed the summary judgment granted our clients by the trial court.
• Crider v. Monarch Engineering, Inc., No. 2003-CA-000588-MR (Ky. App. 2008). Successfully argued that builder of a water tower was entitled to assert the up-the-ladder defense in an action brought by the estate of a subcontractor’s employee who fell to his death while painting the water tower.
• Cissell v. KFC Corp.,2007 Ky. App. Unpub. LEXIS 3 (Ky. App. 2007). Successfully represented KFC in action alleging negligence, slander, libel, unlawful imprisonment, outrageous conduct, and violations of the plaintiff’s civil rights.
• Haven Steel Products, Inc. v. Cowan, No. 2008-CA-00295-MR (Ky. App. 2007). Obtained reversal of a $5.9 million jury verdict against manufacturer of rotary cutter blades installed on a mower based on the erroneous admission of evidence.
• Commonwealth v. AutoZone Development Corp., No. 2006-CA-002175-MR (Ky. App. 2007). Successfully represented taxpayer in upholding a decision of the Kentucky Board of Tax Appeals that the taxpayer was entitled to a tax deduction for dividends paid to shareholders.

Tennessee

• Goodman v. Nationstar Mortgage, LLC, 2018 Tenn. App. LEXIS 331 (Tenn. App. June 18, 2018) (affirming dismissal of action seeking to enjoin foreclosure sale)
• Vance v. Vance, 2018 Tenn. App. LEXIS 136 (Tenn. App. May 16, 2018) (affirming in part, reversing in part trial court determination of child support and extraordinary education expenses)
• Kinard v. Nationstar Mortgage, LLC, 2018 Tenn. App. LEXIS 119 (Tenn. App. Mar. 2, 2018) (reversing dismissal of claim for implied covenant of good faith and fair dealing against mortgage assignee)
• Karsonovich v. Kempe, 2018 Tenn. App. LEXIS 104 (Tenn. App. Feb. 27, 2018) (affirming judgment that alimony provision was not ambiguous and not against public policy)
• Gentry v. Gentry, 2017 Tenn. App. LEXIS 838 (Tenn. App. Dec. 28, 2017) (affirming trial court determination that business was wife’s separate property)
• Moore v. Moore, 2017 Tenn. App. LEXIS 608 (Tenn. App. Sep. 11, 2017) (dismissing appeal as being from non-final order)
• Voya Ret. Ins. & Annuity Co. v. Johnson, 2017 Tenn. App. LEXIS 716 (Tenn. App. Oct. 27, 2017) (appeal from determination of proper beneficiary in interpleader action)
• Jones v. BAC Home Loans Servicing, LP, 2017 Tenn. App. LEXIS 464 (Tenn. App. July 12, 2017) (affirming dismissal of action seeking rescission of foreclosure sale)
• In re Braylin D., 2017 Tenn. App. LEXIS 81 (Tenn. App. Feb. 7, 2017) (reversing order changing the designation of the primary residential parent)
• Spirit Broadband, LLC v. Armes, 2017 Tenn. App. LEXIS 49 (Tenn. App. Jan. 27, 2017) (affirming judgment based on application of clean hands doctrine)
• Kucinski v. Ortega, 2016 Tenn. App. LEXIS 608 (Tenn. App. Aug. 24, 2016) (affirming award of alimony in futuro to spouse)
• Colonial Pipeline Co. v. Morgan, 263 S.W.2d 827 (Tenn. 2008). Successful appeal on behalf of a client challenging the constitutionality of specified portions of state tax code in which the trial court had dismissed the lawsuit due to an alleged failure to exhaust administrative remedies. The Tennessee Court of Appeals reversed, and the Tennessee Supreme Court affirmed the Court of Appeals.

Indiana

• Cadorath Aerospace Lafayette, LLC v. Ricks, No. 18A-CT-2953 (Ind. App. October 17, 2019) (reversing trial court’s finding of personal jurisdiction over defendants )
• Svabek v. Lancet Indem. Risk Retention Group, Inc., 86 N.E.3d 230 (Ind. App. 2017) (affirming rescission of insurance policy)
• Walters v. JS Aviation, 81 N.E.3d 1160 (Ind. App. 2017) (reversing summary judgment in premises liability action)
• Aviation Consultants US, Inc. v. Timken Alcor Aero. Techs., Inc., 79 N.E.3d 1015 (Ind. App. 2017) (affirming summary judgment on claims relating to damage to aircraft)

Georgia

• Danbert v. North Ga. Land Ventures, LLC, 697 S.E.2d 204 (Ga. 2010). The Georgia Supreme Court affirmed the trial court’s judgment in favor of our client denying plaintiff’s request for a permanent injunction and writ of mandamus in a case regarding property regulation.
• Reese Developers, Inc. v. First State Bank, 701 S.E.2d 505 (Ga. App. 2010). The Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to our client in a case related to a creditor’s choice of remedies.
• Vibratech v. Frost, 661 S.E.2d 185 (Ga. App. 2008). Successfully defended a default judgment obtained in the trial court, with the Georgia Court of Appeals exploring the reach of Georgia’s long-arm statute.

Ohio

• Health Alliance of Greater Cincinnati v. The Christ Hospital, 2008 Ohio App. LEXIS 4191 (Ohio App. 2008). The Ohio Court of Appeals affirmed the trial court’s recognition of our hospital client’s right to withdraw from a health alliance, which was found to have breached a duty to the hospital.