2014 FHMBK YEAR IN REVIEW
SUCCESS BASED ON LONG LASTING
RELATIONSHIPS FORGED IN INTEGRITY,
EXCELLENCE, COMMITMENT AND TEAMWORK.
Happy New Year from your friends at FHMBK! We are very thankful for the many blessings we have received this past year and we look forward to many more in the coming year. We are also pleased to provide you with our 2014 Year In Review newsletter highlighting information from 2014 we hope will be beneficial to you in the coming year.
Please click the hyperlinks for significant decisions in 2014: Local Government, Constitutional and Civil Rights Law, Products Liability, Employment Law, Special Education Law, School Law, Automobile and Trucking Litigation, Premises Liability, Land Use, Zoning, and Regulatory Taking, Homeowners Association Law, and Insurance Law. Please call us with your questions or comments.
SIGNIFICANT VICTORIES AND HONORS IN 2014
HONORS AND ANNOUNCEMENTS
TEXAS SUPER LAWYERS
FHMBK attorneys Don Martinson, Thomas Brandt, and Joshua Kutchin earned selection to the 2014 edition of Texas Super Lawyers, which recognizes the state’s top attorneys.
In addition to being selected to the 2014 edition of Texas Super Lawyers, Don Martinson was also named in Best Lawyers magazine’s 2014 Survey Results for Insurance Law in the Dallas area. To read the media release in its entirety, click here.
Joshua A. Skinner and Francisco J. Valenzuela again earned recognition as two of the state’s top young lawyers with selections to the 2014 Texas Rising Stars list. This is the fifth consecutive selection to the exclusive annual listing for both attorneys.
FHMBK Recognized as a Tier One Law Firm
U.S. News and World Report recently recognized FHMBK as a “Tier One” law firm in the area of insurance law in North Texas. The recent designation was a tremendous honor reserved for a very select few law firms. We are extremely pleased by this recognition in the field of insurance law.
APPELLATE COURT VICTORIES
Victory in Whistlerblower Act Case
THOMAS P. BRANDT and FRANK VALENZUELA obtained an important appellate victory involving the Texas Whistleblower Act. The Fort Worth Court of Appeals agreed with their argument that an employee does not properly initiate his employer’s internal grievance process, as required by the Whistleblower Act, if he lies to the employer about being happy with the actions it had taken to address his concerns, but then subsequently sued the entity on those very same grounds. The court of appeals held that an employee does not properly initiate a grievance process if he interferes with the employer’s investigation by misleading the employer. To read the opinion, click here.
Landmark Victory in Bullying Case
THOMAS P. BRANDT, JOSHUA SKINNER and LAURA O’LEARY obtained a victory before the Fifth Circuit Court of Appeals in a case involving a special education student who hung himself at school. The Court held that in order for a student to recover under Section 504 of the Rehabilitation Act on the basis of a failure to provide necessary educational services, the student must first show that he was denied a free, appropriate public education under the Individuals with Disabilities Education Act. The Court applied a deliberate indifference standard in assessing the plaintiffs’ allegations of ullying and found that the school’s pattern of active responses to incidents involving the student precluded a finding of deliberate indifference. To read the Fifth Circuit Court of Appeals’ opinion in its entirety, click here.
Another Victory in the famous Candy Cane Case
THOMAS P. BRANDT and JOSHUA SKINNER obtained another appellate victory in the long-running “Candy Cane” case, in which elementary school students brought suit against school officials alleging that they had violated the students’ First Amendment free speech rights by allegedly preventing them from distributing various religious materials at school during the school day. This most recent victory involved a claim by the father of one of the students, alleging that his free speech rights were violated because he was not permitted to pass out religious materials to other parents during an in-class party. The Fifth Circuit granted qualified immunity to the educator defendant, pointing out the difficulties faced by school officials when they address religious speech in public schools. Please click here to read the Fifth Circuit’s opinion.
Victory in the Kountze Cheerleader Case
THOMAS P. BRANDT and JOSHUA SKINNER won an important appellate victory on behalf of a small southeast Texas school district in this nationally publicized dispute about whether high school cheerleaders can put religious messages on run-through banners at football games. We successfully argued that the case should be dismissed because the school district took prompt action and resolved the controversy. The district court entered an order against the school district, but the Beaumont Court of Appeals reversed that decision, holding that the district court should have dismissed the plaintiffs’ claims. The plaintiffs have announced that they plan to seek review from the Texas Supreme Court. To read the entire opinion, please click here.
DISTRICT COURT VICTORIES
ROCKY LITTLE won a jury trial with a unanimous verdict in favor of the Defendants in a personal injury case involving a Plaintiff who suffered multiple fractures of both heels requiring several surgeries. Although the Plaintiff sought to recover about $700,000, the jury found that the Defendants’ negligence, if any, did not proximately cause the occurrence. Rather, the occurrence was caused by the Plaintiff’s own negligence.
THOMAS P. BRANDT and STEPHEN D. HENNINGER obtained a summary judgment in a case by a former student against a west Texas college. The Plaintiff alleged that the west Texas college violated his substantive due process rights by penalizing him for the late submission of a research paper in an English course, and assigning a failing grade for the paper. The Plaintiff claimed this resulted in a grade of D for the course, which in turn caused him to lose his football scholarship at the University of New Mexico. The Court granted the west Texas college’s motion for summary judgment and dismissed Plaintiff’s lawsuit, finding he had failed to state viable claims.
THOMAS P. BRANDT and JOHN F. ROEHM III obtained a dismissal of a federal lawsuit against a North Texas County and its Sheriff. Plaintiff alleged that the County and its Sheriff committed unlawful employment practices, discriminated against the Plaintiff on the basis of age and sex and retaliated against the Plaintiff in violation of Title VII and the Texas Labor Code.
FRANK VALENZUELA and LAURA O’LEARY obtained no-evidence summary judgments from a state district court in Tyler, Texas, for a golf club and two of its officers on invasion of privacy claims of intrusion upon seclusion and public disclosure of private facts. The former employee-Plaintiff argued that the club and two of its officers invaded his privacy concerning sexted pictures and a video that were presented to the club and its officers by club members and which appear to have served as part of the bases for the Plaintiff’s ultimate termination. Frank and Laura argued that the Plaintiff had no evidence to establish his claims, and the court agreed.
THOMAS P. BRANDT, STEPHEN D. HENNINGER, and JOHN HUSTED obtained a victory for a large North Texas city’s employee retirement fund. The Plaintiff was a former employee of the City who brought suit following a denial of ongoing disability benefits for an on the-job injury. Plaintiff alleged the denial of his benefits was improper and sued on theories of negligence, violation of fiduciary duty, breach of contract, unjust enrichment, and violation of the due process protections of the Texas Constitution. Plaintiff sought at least $553,767.83 in damages. We filed a plea to the jurisdiction on the basis of various immunities, which the trial court granted, dismissing all claims against the Fund and its Board.
ROCKY LITTLE and JENNIFER KELLEY obtained a no-evidence summary judgment from a Tarrant County state district court for an owner and a property manager of an apartment complex in a premises liability lawsuit. Parents of a twenty month old who fell from a third- floor apartment window that had been unlocked and opened by the child’s mother alleged that the apartment complex had a duty to install window locks/guards to restrict how high the window would open. Rocky Little and Jennifer Kelley argued that the parents failed to produce any evidence that the apartment complex owed the parents such a duty, and the court agreed.
THOMAS P. BRANDT, STEVE D. HENNINGER, and JOHN HUSTED obtained a significant victory defending a major North Texas school district from a former school district administrator’s Title VI, Title VII, and ADEA claims of race and age-based discrimination and retaliation. A U.S. Magistrate Judge has recommended that summary judgment be granted and that the administrator take nothing by any of her claims.
THOMAS P. BRANDT and JOHN F. ROEHM III obtain dismissal for a Northeast Texas County and its district attorney and assistant district attorney in a case pending in the U.S. District Court, Northern District of Ohio. Plaintiff alleged that the assistant district attorney, along with a City police officer, placed false information in a national law enforcement database that Plaintiff’s vehicle was stolen which resulted in Plaintiff’s seizure and arrest in Ohio. The assistant district attorney was sued for violating Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights under the U.S Constitution and the district attorney and County were sued under supervisory theories of liability. The court ranted their motions to dismiss.
FRANK VALENZUELA obtained orders in state court granting a city’s and an appraisal district’s pleas to the jurisdiction focused on assertions of governmental immunity concerning breach of contract, negligence, fraud, promissory estoppel, and declaratory judgment claims.
THOMAS P. BRANDT, JOSHUA SKINNER, and JOHN HUSTED obtained a significant victory on behalf of the current and former councilmembers of a major north Texas city in a federal lawsuit brought by a former city employee. Upon consideration of FHMBK’s motion for partial dismissal, the Court dismissed all claims, including due process and race discrimination claims, alleged against the councilmembers and ordered that the councilmembers be dismissed from the lawsuit with prejudice.
MARC H. FANNING obtained three summary judgments for two well-known grocery store chains in the North Texas area, disposing of three slip and fall premises type of cases in favor of our clients.
THOMAS P. BRANDT and STEPHEN D. HENNINGER obtained a victory in U.S. District Court for a large city in the metroplex in an employment discrimination case. Plaintiff, a former Captain with the City’s Fire Department, sued the City alleging age discrimination when he was not promoted to Battalion Chief on multiple occasions. Plaintiff maintained the City’s Fire Department had a policy of not promoting anyone over the age of 50 to the rank of Battalion Chief. The Court granted the City’s motion for summary judgment and dismissed all claims, finding there was no evidence that any discrimination occurred and that the plaintiff was not promoted because he was not the best candidate for the position.
JOSHUA SKINNER and LAURA O’LEARY obtained a traditional summary judgment in state court in favor of a community college district in an employment discrimination case. The plaintiff, a former police officer, claimed that he was subject to a hostile work environment and that his employment was terminated for racially discriminatory reasons. Upon consideration of FHMBK’s traditional motion for summary judgment, the Court dismissed all claims.
ROCKY LITTLE won a jury trial with a unanimous verdict in favor of the defendant in a personal injury case in County Court in Dallas. The jury found that the auto accident was caused solely by the plaintiff’s own negligence.
FRANK VALENZUELA and LAURA O’LEARY obtained a victory on behalf of a golf club and board members in a lawsuit brought by a former employee alleging tortious interference with an employment contract, conspiracy to tortiously interfere with an employment contract, intrusion upon seclusion, and conspiracy to intrude upon the plaintiff’s seclusion. Upon consideration of FHMBK’s no-evidence and traditional motions for summary judgment, the state district court dismissed the plaintiff’s claims with prejudice.
THOMAS P. BRANDT and JOHN HUSTED obtained a total victory in a case in which they were defending an Austin-area school district from a suit brought by a former school counselor of the school district alleging race discrimination and retaliation claims. Due to the counselor’s dilatory tactics and conduct during the discovery process, FHMBK filed a motion for sanctions, seeking monetary sanctions and requesting that the case be dismissed. After briefing and oral argument, the Court granted the motion for sanctions, dismissed the case, and awarded monetary sanctions against the plaintiff.
THOMAS P. BRANDT and JOHN F. ROEHM obtained a victory in Dallas District Court for school officials and a school district in a child neglect/child endangerment case. The plaintiff sued multiple school officials and the school district claiming that they failed to supervise, secure and protect her child while he was at school. The Court granted a motion to dismiss the school officials and granted a plea to the jurisdiction for the school district.
FRANK VALENZUELA and NICHOLE PLAGENS obtained a victory on behalf of a non-profit company in a lawsuit filed by a former employee alleging, in part, claims of intentional infliction of emotional distress and negligent supervision. Upon consideration of FHMBK’s motion for partial dismissal, the federal district court dismissed the plaintiff’s claims.
FRANK VALENZUELA and NICHOLE PLAGENS obtained a victory on behalf of an automobile dealership before the Equal Employment Opportunity Commission (the “EEOC”) that had issued a Determination finding retaliation. FHMBK submitted a request for reconsideration, including newly developed evidence, showing that the claimant’s termination was not retaliatory. Subsequently, the EEOC issued a Rescission of its prior Determination and issued the claimant a right to sue letter.
In the latest quarter, MARC FANNING won five Motions for Summary Judgment involving premise liability issues thus avoiding trial, further expense and work up of the cases on behalf of the firm’s retail and grocery store clients.
THOMAS P. BRANDT and JOHN D. HUSTED achieved a total victory defending a north Texas city and the city’s police chief against a citizen’s Fourth Amendment unreasonable search and seizure and state law negligence claims. The citizen alleged that she was sexually assaulted by a city police officer and that the assault was the result of police department policies and the police chief’s failure to properly train, supervise or monitor the offending officer. Mr. Brandt and Mr. Husted filed a plea to the jurisdiction, arguing that the City and Chief were immune from the plaintiff’s claims and that her claims were barred by the statute of limitations. In lieu of responding to the plea to the jurisdiction, the plaintiff’s attorney conceded the case at the hearing on the plea.
THOMAS P. BRANDT, STEVE HENNINGER, and NICHOLE PLAGENS obtained a victory on behalf of a county in a lawsuit filed by a former employee alleging, in part, claims of color discrimination and gender discrimination, a disparate impact claim, violations of section 1981, and seeking punitive damages. After a hearing on FHMBK’s motion for partial dismissal, the federal district court dismissed the plaintiff’s claims with prejudice.
JOSHUA SKINNER and JOHN HUSTED obtained a summary judgment victory in federal court in favor of a community college district in a Title VI discrimination claim brought by a student. The student claimed that the college district operated its financial aid department in a racially discriminatory manner. Upon consideration of FHMBK’s motion for summary judgment, the magistrate judge recommended dismissal of all claims.
On December 4, 2013, THOMAS P. BRANDT orally argued a case before the United States Court of Appeals for the Fifth Circuit in New Orleans. The case, which has garnered national attention, involves the tragic death of a fourth grade boy who was found hanging in a school bathroom. This widely publicized case involves allegations of bullying and alleged failures of school officials to properly handle the boy’s special education needs. After we obtained a summary judgment victory before the trial court, the Plaintiffs appealed. On appeal, the United States Department of Justice intervened on behalf of the Plaintiffs and participated in the oral argument before the Fifth Circuit. In light of the significance of the case and the national attention it has gained, the National School Board Association filed a brief in support of our position on appeal. This case, when decided, should clarify issues regarding the interpretation of Section 504 of the Rehabilitation Act and of 42 U.S.C. §1983.
On February 5, 2014, THOMAS P. BRANDT orally argued the latest installment of the Candy Cane Case before the United States Court of Appeals for the Fifth Circuit in New Orleans. This appeal involves a parent-to-parent free speech claim brought by Doug Morgan against elementary school principal Lynn Swanson. Mr. Morgan contends that Ms. Swanson violated his rights when she told him that he would need to place his “Legend of the Candy Cane” laminated bookmarks on a table in the school library as opposed to passing them out to other parents at the school-sponsored party in the 3rd grade classroom. The district court granted Ms. Swanson qualified immunity and Mr. Morgan appealed.
SPEECHES AND PUBLICATIONS
LAURA O’LEARY and AMANDA BIGBEE, General Counsel for Keller Independent School District, gave a joint presentation entitled “Section 504 Litigation: A Moving Target” at the Great Ideas Convention sponsored by the Texas Council of Administrators of Special Education. This convention was held in Austin January 21-23, 2014. For a link to the presentation paper, click here.
THOMAS P. BRANDT was interviewed by Phil Alvarado of Fox4 News in Dallas in February 2014 regarding Mr. Brandt’s representation of former Dallas police officer, Amy Wilburn. The case arises out of a policy shooting that occurred in December of 2013. Plaintiff alleges that he was unarmed when Officer Wilburn shot him.
On April 2, 2014, FRANK VALENZUELA appeared as a guest on the “GRN Live” morning show on 910 AM to discuss legal issues concerning the Affordable Care Act and the Hobby Lobby case before the U.S. Supreme Court.
JOSHUA SKINNER spoke at the annual State Bar Bill of Rights Conference on recent developments in the law affecting criminal suspects, defendants and incarcerated individuals. JOHN F. ROEHM and JOHN HUSTED are co-authors with Josh on the paper published in conjunction with the talk.
JOSHUA SKINNER was featured on a podcast for the Federalist Society, speaking on the Supreme Court’s decision in Plumhoff v. Rickard, which involves the application of the doctrine of qualified immunity to police officers who used lethal force against a suspect fleeing in a motor vehicle. The podcast is available at http://www.fed-soc.org/multimedia/detail/plumhoff-v-rickard-post-decision-scotuscast. Josh also did an earlier podcast about the Supreme Court oral argument.
FRANK VALENZUELA spoke at this year’s State Bar Government Law Boot Camp on July 30, 2014, about recent legal developments in Texas Whistleblower Act jurisprudence. JOHN HUSTED and Mr. Valenzuela co-authored the paper published in conjunction with the talk. To read their paper, click here.
JOSHUA SKINNER spoke at the annual State Bar Government Law Boot Camp on July 30, 2014. Josh spoke on the topic of “Basics of Qualified Immunity.” THOMAS P. BRANDT and NICHOLE PLAGENS were co-authors with Mr. Skinner on the paper that was submitted in conjunction with the talk. To read their paper, click here.
THOMAS P. BRANDT spoke at the 2014 Suing & Defending Governmental Entities conference held in Austin, Texas on Friday, August 1, 2014. Mr. Brandt spoke on the subject of Qualified Immunity. To read his paper, click here.
THOMAS P. BRANDT, LAURA O’LEARY, and PAULA WALKER, Executive Director of Special Education for Lewisville Independent School District, spoke at the 2014 TASA/TASB Convention in Dallas on September 26-28. Their presentation addressed bullying and school iability and discussed recent changes in state law regarding bullying, administrative guidance about schools’ responses to bullying, and recent litigation involving claims of bullying.
On September 25th, 2014, JOSHUA KUTCHIN presented a seminar in Irving, Texas, to the Horace Mann Insurance company and Teachers’ Insurance Company, entitled Texas Claims Update, intended to inform participants about recent changes in Texas law and to provide TDI-approved continuing education credit for those in attendance.
THOMAS P. BRANDT spoke at Texas Municipal League Intergovernmental Risk Pool 2014 Annual Attorney Workshop in Austin, Texas at August 22, 2014. His presentation addressed First Amendment Retaliation. To read his presentation paper, click here.
On July 24, 2014, FRANK VALENZUELA appeared as a guest on the “GRN Alive” morning radio show on 910 AM to discuss recent appellate court rulings concerning the Affordable Care Act.