Practice Areas & Industries: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Practice/Industry Group Overview

As of January 1, 2008, the Appellate Practice Group was actively engaged in 59 appeals, 13 in the Federal courts and 46 in the State courts. The Group has handled cases in the U.S. Supreme Court and the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits, and the State appellate courts in Alabama, Georgia, Louisiana, Mississippi and Tennessee.

The Baker Donelson Appellate Group includes attorneys who are strong brief writers and effective oral advocates. The issues we have handled on appeal are as diverse as the Firm's litigation practice. Our attorneys understand firsthand the types of concise, intelligent arguments expected by appellate courts.

Our attorneys are often retained to handle post-judgment proceedings and appeals at the request of trial counsel, the client or the client's insurance carrier. We have also prepared amicus briefs for trade associations or other parties interested in an appeal. We work closely with trial counsel to give our clients the benefit of both the trial attorneys' knowledge of the case and the appellate attorneys' unique skills and experience. If retained before trial, we also are able to assist trial counsel in preserving issues when an appeal is anticipated.

Baker Donelson's appellate attorneys are involved in various professional organizations designed to improve appellate practice, including the American Academy of Appellate Lawyers, American Bar Association Appellate Practice Committees, the Defense Research Institute Appellate Practice Committee, and state bar association sections and committees.

Our attorneys include the founding chair of the Appellate Practice Section of the Alabama State Bar; a Georgetown University faculty member teaching Constitutional Law; members of the former Tennessee Appellate Court Nominating Commission; a former U.S. District Court Judge; a retired Circuit Court Judge; and the former chair of the Tennessee Judicial Selection Commission. Many of our attorneys have served as law clerks or staff attorneys on federal or state courts of appeals, including the Supreme Courts and Courts of Appeals of Alabama, Mississippi and Tennessee, and the United States Courts of Appeals for the Fourth, Fifth, Sixth, Eleventh and Federal Circuits. Click for lists of our former State Supreme Court Clerks, Federal Court Clerks and State Court of Appeals Clerks.

Representative Appellate Matters

• Successfully obtained reversal of 11th Circuit decision for CSX Corporation before the U.S. Supreme Court, on issue of whether the state of Georgia had over-valued CSX's property in Georgia for property tax purposes. Saved the client several million dollars for the tax year at issue and subsequent tax years.
• In the Supreme Court of Tennessee, obtained a decision that class actions are not allowed under Tennessee Consumer Protection Act. Reversing the trial court, the Supreme Court also held that class certification is inappropriate in fraud and negligent misrepresentation cases based upon non-uniform oral communications.
• Successfully represented national income tax preparation service before Tennessee Court of Appeals in reversal of regulatory classification of enhanced service warranty as "insurance." Court of Appeals adopted and applied test for determination of when contracts for future services constitute insurance subject to state regulation and clarified standard of review of an agency's interpretation of statute.
• Successfully defended trial court's dismissal of lawsuit by Catholic visionary seeking personal control over assets of nonprofit organization that had declined to follow visionary's instructions. Issues included First Amendment, civil Racketeer Influenced and Corrupt Organizations Act (RICO), fraud, implied trust, Georgia Charitable Solicitations Act and breach of fiduciary duty.
• On issue of first impression in the United States Court of Appeals for the Eleventh Circuit, overturned the trial court's order permitting employees discharged for refusing to sign an arbitration agreement to sue for wrongful retaliation under Title VII, ADEA and ADA.
• Successfully defended trial court's finding of civil and criminal contempt against opposing counsel for willful violations of protective order in civil RICO action.
• Participated in successful appeal to the United States Court of Appeals for the Sixth Circuit from jury verdict of over $7.8 million. Issues included the adequacy of the verdict form and double recovery/election of remedies.
• On issue of first impression, overturned the federal district court's award of ERISA penalties to the wife and children of client's former employee based on failure to advise them of their COBRA rights.
• Successfully defended an appeal to the United States Court of Appeals for the Sixth Circuit by the mother of a jail suicide victim. The Court held that the trial court's grant of summary judgment for the defendants based on qualified immunity in a 42 U.S.C. § 1983 case was proper. Also successfully opposed a petition for writ of certiorari in the United States Supreme Court in the same case.
• On an issue of first impression, obtained decision dismissing claims by doctor concerning statements made to peer review committee. Case was resolved under the Tennessee Peer Review Law and the Health Care Quality Improvement Act.
• Overturned a federal district court's $500,000 judgment against a hospital client based on changes in medical care benefits for retirees. The issues included preemption, vesting of benefits, estoppel, fiduciary duty, and compensatory damages under ERISA.
• Successfully defended an appeal by an alleged heir to the land comprising the Spindletop Oil Field in Texas, now controlled by several oil companies. The court affirmed dismissal of all claims of the heir and upheld the trial court's injunction precluding the filing of any such cases in the future in the Eastern District of Tennessee without prior permission of a judge of that federal district court.
• Obtained decision of the Alabama Supreme Court striking down a city licensing ordinance as an unconstitutional tax on interstate commerce.
• Successfully defended in the United States Court of Appeals for the Eleventh Circuit client's right to sue competitor for trademark and trade dress infringement under the doctrine of progressive encroachment even where client had arguably delayed bringing claims for more than a decade.
• Successfully defended patent infringement findings of court concerning flea traps in the United States Court of Appeals for the Federal Circuit.
• Successfully defended a jury's findings of trade dress infringement and design patent infringement concerning women's apparel and accessories in the United States Court of Appeals for the Federal Circuit.
• Successfully defended an appeal to the Sixth Circuit Court of Appeals by an employee seeking to avoid the forum selection clause contained in an employment contract. The Court affirmed the propriety of the removal of the case to federal court and found the forum selection clause designating Brazil as the appropriate forum wholly enforceable.
• Successfully represented Medicaid managed care organizations and state trade association in United States Court of Appeals for the Sixth Circuit in action seeking fairness hearing on Medicaid class action settlement imposing significant new burdens on MCOs.
• Secured affirmance of judgment in Tennessee Supreme Court dismissing supplier's materialman's lien claim against owner and general contractor.
• Represented tax service in Tennessee Court of Appeals in enforcement of arbitration clause against refund anticipation loan recipient and punitive class of recipients.
• Secured affirmance of judgment dismissing Tennessee Consumer Protection Act claims by former network hospital against managed care company.
• Represented managed care company in enforcement of arbitration clause in network physician agreement. Trial court held clause unenforceable; Tennessee Court of Appeals reversed.

For more information on this practice area, contact Appellate Group leader George T. Lewis.

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