Appellate

Unlike the large law firms that have separate appellate practice groups, the attorneys at Subashi & Wildermuth handle client cases from beginning to end.  As we work towards winning the case in the trial court, we recognize that we also have an obligation to shape the record for appeal.  In addition, as active trial attorneys, we approach appellate brief writing and oral arguments differently than attorneys who only handle appeals.  Rather than formalistic legal arguments set forth in massive briefs, we understand the need to tell the story in a compelling way even on appeal.

The attorneys at Subashi & Wildermuth counsel clients on all issues related to the litigation of appeals.  We pull from our broad practice areas to ensure that an administrative appeal in a school termination action is given the same care as a million dollar products liability claim.  Our attorneys have argued appeals in nearly every state appellate court and the Sixth Circuit Court of appeals.

Representative Experience

• Ogilbee v. Bd. of Edn. of Dayton Pub. Schools (Apr.20, 2010), 2nd App. No. 23432, 2010 WL 1732715, 2010-Ohio-1913. Public school employee, who allegedly suffered from multiple chemical sensitivity, failed to establish that board of education treated the alleged impairment as substantially limiting a major life activity and, thus, failed to establish that she had a “disability,” precluding recovery on disparate-treatment discrimination claim.
• Med. Assur. Co., Inc. v. Dillaplain, 186 Ohio App.3d 635, 929 N.E.2d 1084, 2010-Ohio-841. The Second Appellate District found there was insurance coverage for the physician in a medical malpractice case because the “previous reported” exclusion to coverage did not bar coverage for medical incident that had been reported to another insurance carrier after the policy’s retroactive date.
• Hubbell v. City of Xenia, 115 Ohio St.3d 77, 873 N.E.2d 878, 2007-Ohio-4839. The Ohio Supreme Court held that a trial court’s decision denying a motion for summary judgment on the issue of sovereign immunity was a final appealable order regardless of whether the trial court stated the decision was due to the existence of genuine issues of material fact.  The Court overruled existing appellate precedent.
• Kidwell v. City of Union, Ohio (2007), 550 U.S. 935, 127 S.Ct. 2258, 167 L.Ed.2d 1092. Plaintiffs petitioned the Supreme Court to hear a First Amendment case in which the certain taxpayers sued city claiming it was unlawful for the city to spend public money to oppose citizen initiatives and to promote proposed tax levies.  At the urging of the City of Union, the Court denied the plaintiffs’ petition.
• Knapp v. Nationwide Agribusiness Ins. Co. (June 17, 2005), 2nd App. No. 20613, 2005 WL 1415039, 2005-Ohio-3060. Teacher who was injured in automobile accident while returning home from hobby shop to purchase model airplane for use in class was not “performing duties related to” school district’s business within meaning of school district’s insurance policy because school did not request or require teacher to go to hobby shop, and teacher’s employment contract did not require him to purchase materials for use in class.
• Foubert v. Lyons (2004), 543 U.S. 1033, 125 S.Ct. 808, 160 L.Ed.2d 596. In a rare summary decision, the United States Supreme Court granted the police officer’s petition for certiorari and overturned the decision in favor of the plaintiff all at the same time.
• Pope v. Trotwood Madison City School Dist. Bd. of Educ., 2nd App. No. 20072, 2004 WL 541121, 2004-Ohio-1314. The court of appeals concluded the school district and coach were immune from liability following the tragic death of middle school student from injuries sustained in gym class.
• Congrove v. Wausau Ins. Companies (Feb. 18, 2003), 4th App. No. 02CA8, 2003 WL 928485. Employee of local school district brought an action against the school district’s insurer, seeking underinsured motorist coverage in connection with automobile accident that was admittedly outside scope of his employment based upon the Scott-Pontzer case.  The firm kept many of these Scott-Pontzer cases going in the state appellate courts to give the Supreme Court time to overrule its holding, which saved our clients millions of dollars.  

• Jump v. Nationwide Mut. Ins. Co. (Nov. 2, 2001), 2nd App. No. 18880, 2001 WL 1345954, 2001-Ohio-1699. Commercial umbrella liability policy is not an automobile policy for which UM/UIM coverage was required.

Amicus Curiae

• Elston v. Howland Local Schools, 113 Ohio St.3d 314, 865 N.E.2d 845, 2007-Ohio-2070. On behalf of the Ohio School Boards Association, Buckeye Association of School Administrators, Ohio Association of School Business Officials, Ohio Education Association, and Ohio Federation of Teachers.

The court concluded that a political subdivision is immune from liability if the injury complained of resulted from an individual employee’s exercise of judgment or discretion in determining whether to acquire or how to use equipment or facilities unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner, because a political subdivision can act only through its employees. R.C. § 2744.03(A)(5).

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