AT GALLAGHER & KENNEDY
We have substantial experience pursuing and defending civil, criminal, and administrative agency appeals in Arizona and New Mexico courts, other state courts, and federal courts of appeal including the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit, District of Columbia Circuit, and Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits.
Our services include:
- Evaluating the time, cost, and risks involved in settling a case versus appealing.
- Advising counsel during trial should an appeal be necessary.
- Representing parties in an appeal from a trial court judgment.
- Bringing a “special action” directly to an appellate court to correct a trial court error.
- Handling appeals from administrative bodies, such as tax appeals from the Department of Revenue and rulemaking challenges to federal agencies.
- Preparing “friend of the court” or “amicus” briefs on behalf of clients and public interest groups on issues that affect their business and public policy.
Our team handles appeals not only when we have assisted in the trial of a case, but also on referral from outside clients or attorneys seeking new counsel on appeal for a fresh perspective. We provide intelligent and persistent advocacy for businesses and individuals involved in complex serious and high-stakes disputes such as:
- Civil rights
- Class actions
- Commercial contracts
- Commercial lending
- Construction claims
- Constitutional issues
- Copyright infringement
- Criminal defense
- Election law
- Employment disputes
- Environmental issues
- Insurance coverage
- Medical malpractice
- Products liability
- Professional liability
- Real estate
- Regulatory issues
- Securities fraud
- Tax issues
- Torts
- Trusts and estates
Gallagher & Kennedy attorneys have served as judges (pro tem) on the court of appeals, completed judicial clerkships with various appellate courts, and earned national and local recognition for their appellate work, as well as board certification in civil appellate law.
REPRESENTATIVE EXPERIENCE
COMMERCIAL & BUSINESS CASES
- Argued before the Ninth Circuit Court of Appeals and affirmed the trial court’s dismissal of a commercial lawsuit against our client, but also to order the plaintiff not to make any further filings in the case.
- Argued before the Ninth Circuit Court of Appeals and obtained reversal of the District Court’s Rule 12(b)(6) dismissal of plaintiffs’ class action claims brought under Arizona’s Securities Act against directors and officers of an Arizona-based marketing company that previously published one of the largest in-flight catalogs.
- Defended a multimillion-dollar judgment in the Eighth Circuit Court of Appeals in a dispute over sales proceeds from hotels in Minnesota and Iowa.
- Argued, successfully, before the Tenth Circuit Court of Appeals to reinstate the clients’ federal securities fraud action after a federal district judge had dismissed the claim.
- Obtained summary judgment in U.S. District Court against an investor’s fraud and other claims seeking $63 million from our farm management client and other defendants arising from its investment in numerous mandarin orchards in California. The investor appealed, and the Ninth Circuit affirmed the summary judgment.
- Defended an Arizona data business in litigation brought by Experian Information Systems, one of the largest corporations in the United States, where Experian sought $17 million in damages for alleged copyright infringement and misappropriation of trade secrets. We obtained summary judgment in federal district court, the Ninth Circuit affirmed dismissal of the copyright claim, and Experian agreed to abandon the case in its entirety in return for a nuisance value payment of $25,000. Experian Information Solutions, Inc. v. Nationwide Marketing Servs., Inc., United States District Court No. 2:13-cv-00618-SPL, 893 F.3d 11976 (9th Cir. 2018).
- Defended clients in appellate challenges to a $9.75 million jury verdict in a commercial contract case from 2008-2010. County of La Paz v. Yakima Compost Co., 224 Ariz. 590, 233 P.3d 1169 (App. 2010). The Arizona Supreme Court declined to review the decision, and the judgment was later paid in full, with interest, totaling more than $14 million.
- Obtained reversal of trial court decision to dismiss client’s commercial contract claims arising out of a large public construction project by the Arizona Court of Appeals. The case then settled on favorable terms. Aercon Florida, L.L.C. v. Ames Const., Inc., 2007 WL 5448139 (Ariz. App. Nov. 15, 2007).
- Affirmed trial court’s opinion in sovereign immunity case. John Corp. v. City of Houston, 214 F.3d 573 (5th 2000).
- Reinstated jury’s verdict in lender liability case, where client Allied Bank-West was awarded damages from Merrill Lynch for failing to honor its commitment to replace pledged securities. Allied Bank-West, N.A. v. Stein, 996 F2d 111 (5th 1993).
- Represented insurer in case involving D&O coverage/securities fraud claims. Gastar Exploration, Ltd. v. U.S. Specialty Ins. Co., 412 S.W.3d 577 (Tex. App. — Houston [14th] 2013, pet. denied).
- Affirmed trial court’s decision that the statute of limitations on claims of coverage/trade dress infringement restarted each day the trademark was used. Two Pesos Inc. v. Gulf Ins. Co., 901 S.W.2d 495 (Tex. App. – Houston [14th] 1995).
- Represented local owner of medical condominiums in Arizona Supreme Court, upholding Court of Appeals’ opinion in their favor. Earle Investments, LLC v. Southern Desert Medical Center Partners, No. CV-17-0160-PR.
TAX MATTERS
- Served as lead counsel representing Chevron U.S.A. in multi-million-dollar transaction privilege tax case against the Arizona Department of Revenue in Arizona Court of Appeals. Mark not only persuaded the Court to reverse the trial court’s decision, but also obtained an award of attorneys’ fees for Chevron. Chevron U.S.A., Inc. v. Ariz. Dep’t of Rev., 238 Ariz. 519, 363 P.3d 136 (App. 2015).
INSURANCE COVERAGE
- Noted award of appellate attorney’s fees should be conditioned on which party prevails in products liability/indemnity case. United Medical Supply Co. v. Ansell Healthcare Products, Inc., 476 S.W.3d 84 (Tex. App. – Dallas 2015, pet. denied) and Ansell Healthcare Products, Inc. v. United Medical Supply Co., 355 S.W.3d 736 (Tex. App. – Houston [1st]. 2011, pet. denied).
- Affirmed trial court’s decision in favor of insurer client in ERISA /medical coverage case. McDonald v. Provident Indemnity Life Ins. Co., 60 F.3d 234, (5th 1995).
- Affirmed trial court’s judgment in favor of landlord client. Straus v. Kirby Court Corp., 909 S.W.2d 105 (Tex. App. – Houston [14th] 1995).
- Reversed trial court’s summary judgment to award life insurance benefits to former employee no longer covered under its policy. Life Ins. Co. of North America v. Klingler, 730 S.W.2d 32 (Tex. App. – Corpus Christi 1987).
ENVIRONMENTAL CLAIMS
- Affirmed trial court’s decision that disgorgement is an equitable remedy that a court may award based on breach-of-fiduciary-duty/environmental claims. Bigham v. SE Texas Environmental, LLC, 458 S.W.2d 650 (Tex. App. – Houston [14th] 2015, no pet.).
- Affirmed in part trial court’s decision in case involving a purchase and sale agreement relating to oil and gas leases. Chesapeake Louisiana, L.P. v. Buffco Production, Inc., 564 Fed.Appx. 751 (5th 2014).
- Affirmed trial court’s opinion in favor of client in a case involving the Deceptive Trade Practices Act. Sweco, Inc. v. Continental Sulfur & Chemical Co., 808 S.W.2d 112 (Tex. App. – El Paso 1991) (DTPA)
- Reversed trial court’s decision not to award attorneys fees in case involving mining rights. Murphy Farrell Development v. Sourant, 229 Ariz. 124 (App. 2012).
PROFESSIONAL LIABILITY
- Obtained dismissal of a multi-million-dollar malpractice claim on behalf of a leading law firm, and successfully defended the judgment on appeal. Goble v. Manning, 2011 WL 1376147 (Ariz. App. April 12, 2011).
- Affirmed trial court’s summary judgment in favor of law firm client in a legal and accounting malpractice suit. Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441 (Tex. App. – Houston [1st] 1993).
TRUSTS & ESTATES
- Represented a client in a substantial trust case, obtaining a complete victory both in the trial court and in the Arizona Court of Appeals. Matter of estate of Ford, 2018 WL 326508.
CRIMINAL DEFENSE
- Successfully overturned a jury verdict against plaintiffs based on erroneous jury instructions.
- Handling criminal appeals in municipal courts and in administrative hearings.
PLAINTIFFS PERSONAL INJURY
- Argued before the Arizona Supreme Court that the elder abuse statute under the state’s Adult Protective Services Act applies to all healthcare facilities, not just hospitals, resulting in a broadened, remedial revised statute. Kuhfuss v. John C. Lincoln, CV-13-0272-PR (May 6, 2014).
- Affirmed trial court’s decision that intentional infliction of emotional distress is not available as an independent cause of action unless the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor's reckless conduct in a trucking accident case. Johnson v. Standard Fruit & Vegetable Co., 984 S.W.2d 633 (Tex. App. – Houston [1st] 1997).
SPORTS LAW
- Defended the Arizona Cardinals in a suit seeking to enjoin the team from enforcing certain rights and restrictions the Cardinals claimed in a public street adjoining its stadium in Glendale. After appealing the trial court’s preliminary injunction against the team, the Arizona Court of Appeals vacated the injunction for our client. City of Glendale v. B&B Holdings, Inc., 1 CA-CV 07-230 (April 24, 2008).
- Affirmed trial court’s decision that because accident occurred on public roadway outside the control of the raceway, the raceway owed no legal duty to motorist who collided with a vehicle attempting to turn onto the raceway’s premises. Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760 (Tex. App. – Houston [1st] 1994).
GOVERNMENTAL LIABILITY
- Represented the State of Arizona before the Arizona Court of Appeals, which affirmed the trial court’s dismissal of a class action lawsuit brought against the State that claimed hundreds of millions of dollars in damages stemming from the “alternative fuel” legislation. Baker v. Arizona Dept. of Revenue, 209 Ariz. 561, 105 P.3d 1180 (2005).
- Assisted Arizona’s Independent Redistricting Commission in reversing a trial court’s decision that invalidated the Commission’s decennial redistricting plan as unconstitutional. After filing a brief in the Court of Appeals supporting the Commission’s plan, the Arizona Court of Appeals reversed the trial court’s decision in our client’s favor. Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Com’n, 211 Ariz. 337, 121 P.3d 843 (App. 2005).
- Challenged the constitutionality of the Arizona bail scheme at the Arizona Court of Appeals and the Arizona Supreme Court.
- Secured reversal by the Arizona Court of Appeals of a trial court’s determination that the Arizona Adult Protective Services Act did not apply to hospitals.
- Obtained stay of trial court order from the Arizona Court of Appeals during an appeal in order to allow a state-wide election to proceed under a redistricting plan that the trial court had rejected.
- Represented the Arizona Department of Transportation before the Arizona Court of Appeals and Arizona Supreme Court, successfully defending a challenge to the legality of more than 900 easements granted to the Department between statehood and 1967, which were improved with roads and highways forming an essential part of the state’s transportation infrastructure. Plaintiffs claimed that insofar as the easements were on State Trust Land, they violated the federal Arizona-New Mexico Enabling Act. The Supreme Court ultimately affirmed the trial court’s dismissal of the case. Mayer Unified School Dist. v. Winkleman, 219 Ariz. 562, 201 P.3d 523 (2009).