SUCCESS BASED ON LONG LASTING
RELATIONSHIPS FORGED IN INTEGRITY,
EXCELLENCE, COMMITMENT AND TEAMWORK.

Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with our Winter 2012 Newsletter and Legal Update.  Below you will find information regarding successes and activities of our attorneys.

Please click the hyperlinks for updates regarding Constitutional/Civil Rights, Local Government, Products Liability, Employment Law, School Law, Commercial Trucking Litigation, Premises Liability, Zoning, Land Use and Taking, and Insurance Law.  Please call us with your questions or comments.

VICTORIES AND HONORS

MARTINSON, BRANDT NAMED IMPACT PLAYERS

DON MARTINSON and THOMAS BRANDT were recently named “Impact Players” of 2011 by Texas Lawyer.  Martinson and Brandt were recognized by Texas Lawyer newspaper for their work in achieving favorable rulings in two of the state’s most closely watched appellate cases in 2011. 

Mr. Brandt was named to this list for his part in obtaining a significant victory before the entire assembled United States Court of Appeals for the Fifth Circuit in the famous “Candy Cane” case. 

Mr. Martinson was recognized for his part in successfully arguing in the matter of In Re Universal Underwriters of Texas Insurance Company before the Texas Supreme Court and obtaining a significant victory not only for his client but for the entire insurance industry in Texas. 

To read the firm’s news release on these “game-changing” victories, click here.  To view the article in the December 19 issue of Texas Lawyer, click here.

DISTRICT COURT VICTORIES 

THOMAS BRANDT and JOHN F. ROEHM III successfully represented a North Texas Police Department sued in federal court for federal constitutional violations.  A motion to dismiss was filed on behalf of the Police Department.  The Magistrate Judge has recommended that the motion be granted and the case be dismissed.

THOMAS BRANDT, FRANCISCO J. VALENZUELA, and LAURA O’LEARY successfully represented a major North Texas school district in a case involving allegations of whistleblower retaliation, national origin employment discrimination, and employment retaliation.  After a hearing on the District’s motion for summary judgment, an associate judge entered summary judgment in favor of the school district.  An appeal is pending before the District Court.

FRANCISCO J. VALENZUELA successfully obtained the dismissal with prejudice of the claims of 17 plaintiffs in a case about federal privacy rights, negligence, and negligence per se.  The dismissal of the 17 plaintiffs was premised on the plaintiffs’ failure to prosecute their claims and respond to discovery, as well as their failure to comply with court orders.

GERALD LOTZER and DEAN FOSTER obtained a summary judgment on behalf of a window blind distributor with regard to product liability, breach of warranty, and negligence claims that were asserted on behalf of a minor plaintiff.  The minor plaintiff was alleged to have severed a portion of her finger when she wrapped the cord around her finger. 

THOMAS BRANDT and JOHN D. HUSTED successfully represented a North Texas sheriff and various officers sued in federal court for alleged civil rights violations and a series of state law claims, including false imprisonment, invasion of privacy, and malicious prosecution.    A motion to dismiss was filed on behalf of the officers.  The court granted the motion and dismissed all claims in the case.

THOMAS BRANDT and JOHN F. ROEHM III successfully represented a North Texas city which was sued in federal court for excessive force and having deficient policies, practices and customs regarding use of force.  A motion to dismiss was filed and Plaintiff chose to dismiss her suit with prejudice.

THOMAS BRANDT and JOHN F. ROEHM III represented the President of the Board of Trustees of a major North Texas school district who was sued by a former teacher for business disparagement.  The teacher alleged that the Board President’s comments to the press during an interview prevented him from being hired as a teacher.  A motion for summary judgment was filed on behalf of the Board President on the grounds of immunities and First Amendment protection.  The court granted the motion and dismissed the case.

THOMAS BRANDT and JOSHUA SKINNER successfully represented a North Texas school district and several of its officials who were sued for various civil rights violations arising out of injuries sustained by a disabled student.  The District Court dismissed with prejudice all of the claims brought against the individual school officials.  The District Court also dismissed Plaintiff’s §1983 claim based upon the state-created-danger theory and Plaintiff’s claims for punitive damages.

THOMAS BRANDT, JOSHUA SKINNER and LAURA O’LEARY successful represented a local governmental entity in a suit which sought declaratory relief, damages and attorney’s fees.  The suit focused on the ownership of a 124 acre parcel of real property.  The District Court in Collin County agreed with our arguments and granted our plan to the jurisdiction.  All claims against the entity and its former president were dismissed with prejudice.

THOMAS BRANDT and JOSHUA SKINNER, along with a North Texas City Attorney’s office, its police department, and the Attorney General’s office, successfully prosecuted a nuisance abatement action against a topless bar in Arlington.  As a result of the joint efforts, the topless bar agreed to close its doors for one year, the maximum time for abatement under the nuisance abatement statute.

THOMAS BRANDT and JOSHUA SKINNER obtained the dismissal of breach of contract claims against a West Texas junior college and one of its professors.  The plaintiff, a former student, brought suit alleging that the college and professor had failed to follow various policies or procedures relating to the grading and evaluation of written assignments.  Motions to dismiss were filed on behalf of the defendants.  The court dismissed the breach of contract claims, holding that there was no waiver of governmental immunity as to the college and that the professor was not a party to the “contracts” in question.

MARC FANNING recently won three separate Summary Judgments for a well known grocery store chain the North Texas area.

HONORS AND ANNOUNCEMENTS

• Marc Fanning was asked to speak at the 14^th Annual Fraud Conference Sponsored by Texas Department of Insurance in Austin being held February 28 – 29, 2012.  Marc will be speaking on Wednesday the 29^th on the topic of “The Examination Under Oath.”  To read the firm’s recent media release regarding Marc’s presentation, click here.
• Thomas Brandt was selected, once again, to serve on the planning committee for the State Bar of Texas’ legal seminar entitled “Suing and Defending Governmental Entities.”  The course will be held in Austin in July of 2012.
• Frank Valenzuela spoke at the Belo Mansion to the St. Thomas More Society, a Catholic lawyers’ group in Dallas, at its February 2, 2012, luncheon on the topic of “Religion in Schools: Morgan v. Swanson and Hosanna Tabor”.
• Frank Valenzuela has been selected to present a paper on the Americans with Disabilities Act, as it concerns employment discrimination and retaliation, at the State Bar of Texas’ “Suing and Defending Governmental Entities” seminar in July, 2012 in Austin, Texas.
• Ellen Dorn was recently quoted in the Dallas Morning News concerning her expertise in estate planning.  In the article entitled “How to Leave a Digital Legacy for Your Heirs,” Ellen offered her advice concerning the best practices for handling digital assets. Ellen emphasized that it is important to communicate to those in your life whom you trust, or to your attorney, what it is that you own, what it is that you value, and how that information can be accessed upon your death.

To find out more about these attorneys, or more about our firm, please visit our website at www.fhmbk.com.

This newsletter is established for informational purposes only.  Nothing in this newsletter should be construed as individual advice, and the use of the e-mail link for communications with the firm or any individual member of the firm does not establish an attorney-client relationship.

SUCCESS BASED ON LONG LASTING
RELATIONSHIPS FORGED IN INTEGRITY,
EXCELLENCE, COMMITMENT AND TEAMWORK.

Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with our Fall 2011 Newsletter and Legal Update. Below you will find information regarding successes and activities of our attorneys.

Please click the hyperlinks for updates regarding Constitutional/Civil Rights, Local Government, Products Liability, Employment Law, School Law, Commercial Trucking Litigation, Premises Liability, Zoning, Land Use and Taking, and Insurance Law.  Please call us with your questions or comments.

VICTORIES AND HONORS

FHMBK OBTAINS SIGNIFICANT VICTORY IN FAMOUS “CANDY CANE” CASE

FHMBK attorneys Thomas P. Brandt, Joshua Skinner and David Upham obtained a significant victory before the entire assembled United States Court of Appeals for the Fifth Circuit in the famous “Candy Cane” case – a case involving issues of qualified immunity and free speech in elementary schools.  Lead counsel Thomas P. Brandt successfully argued the case against two former solicitor generals of the U.S.: Ken Starr, currently the president of Baylor University and Paul Clement.  The Fifth Circuit Court agreed that the two elementary school principals represented by FHMBK were entitled to qualified immunity from Plaintiffs’ claims.  Click here to ready the entire opinion.

FHMBK ATTORNEY NAMED TEXAS LAWYER’S APPELLATE LAWYER OF THE WEEK              

As a result of the victory in the “Candy Cane” case, FHMBK attorney Thomas Brandt was named “Appellate Lawyer of the Week” by Texas Lawyer.   To read the article naming Mr. Brandt as “Appellate Lawyer of the Week”, click here.

DISTRICT COURT VICTORIES

Thomas Brandt and John Roehm successfully represented a sheriff who was sued by a detention officer for violation of the Title VII, age and sex discrimination, and the Texas Labor Code.  A motion to dismiss the sheriff was granted by the Court.

Thomas Brandt and John Roehm successfully represented a North Texas city which was sued by the railroad for a taking – i.e. destruction of personal property.  The city filed a Plea to the Jurisdiction which was granted and the city was dismissed from the suit.

Marc Fanning won five Motions for Summary Judgment for his clients over the last six months.  These favorable decisions were based on “no evidence” on the liability issues in slip and fall cases for a well known grocery store chain which has stores in both Tarrant and Dallas Counties.

Thomas Brandt and John Roehm successful defended several North Texas City Council members and City officials who were sued for allegedly acting without legal authority when an amended gas well permit was issued.  A plea to the jurisdiction was filed on the grounds of lack of standing and immunity.  The court granted the plea and dismissed the claims against these defendants.

Joshua Skinner successfully represented a Central Texas County Commissioner who was sued for malicious prosecution and defamation.  The suit arose out of a heated dispute involving flooding of the plaintiff’s property.  The plaintiff was arrested and charged with retaliation for allegedly threatening to shoot the County Commissioner.  After he was found not guilty of the criminal charges, Plaintiff sued the County Commissioner.  The court granted the County Commissioner’s motion to dismiss pursuant to section 101.106 of the Texas Civil Practice and Remedies Code.

HONORS AND ANNOUNCEMENTS

• Don Martinson and Thomas Brandt each celebrated significant milestones in their careers having earned and maintained for 25 years and 10 years, respectively, the AV Preeminent Rating from Martindale-Hubbell.  The AV Preeminent Rating is the highest possible rating for both legal ability and ethical standards.  It is described by Martindale-Hubbell as the pinnacle of professional excellence earned through a strenuous Peer Review Rating process.
• Directors Don Martinson, Thomas Brandt and Joshua Kutchin have once again been named as SuperLawyers by Texas Monthly.
• FHMBK was a proud sponsor of this year’s annual Red Mass.  The purpose of the Red Mass is to pray for divine assistance to everyone who is involved in the legal profession. The Red Mass is held each year on the Sunday preceding the September 1st opening of our Texas courts.  The Red Mass is organized each year by the St. Thomas More Society of Dallas.  FHMBK attorney Ellen Dorn serves as president of the Society and FHMBK attorney Thomas Brandt serves as a director.
• FHMBK was the proud sponsor of a table at the Arlington Police Foundation luncheon held September 13, 2011 to honor the victims and heroes of the 9/11 tragedy.  FHMBK attorneys Thomas Brandt, John Roehm and Joshua Skinner attended this inspiring event.
• FHMBK attorneys Thomas Brandt, Joshua Skinner, and Frank Valenzuela were chosen to make a presentation to the Texas Association of School Administrators/ Texas Association of School Boards 2011 Convention at the Austin Convention Center. The title of their presentation was “Religion in Schools”.  School officials from all over Texas attended and asked pressing questions about relevant issues in their own school districts.  A copy of the paper that accompanied the presentation may be found by clicking here. 

To find out more about these attorneys, or more about our firm, please visit our website at www.fhmbk.com.

This newsletter is established for informational purposes only.  Nothing in this newsletter should be construed as individual advice, and the use of the e-mail link for communications with the firm or any individual member of the firm does not establish an attorney-client relationship.

The award to Judge Boyle was given at a reception following the annual Society’s Red Mass at the Catholic cathedral in downtown Dallas.  The Society sponsors the annual Red Mass on the Sunday preceding the September 1st opening of our Texas courts.  The Red Mass is offered to invoke divine guidance and strength during the coming term of the Court.

Click here for presentation paper, “Religion in Schools.”

5^th Circuit Court Rules 10-6 in Favor of Granting PISD Principals Qualified Immunity

 Thursday, Sept. 29, 2011 – Fanning Harper Martinson Brandt & Kutchin P.C. (FHMBK) led the charge in successfully convincing the U.S. 5^th Circuit Court of Appeals in New Orleans to decisively rule on Tuesday that two Plano Independent School District elementary school principals are immune from liability for allegedly preventing students from passing out religious-themed items to their fellow classmates during school hours.

Known as the “Candy Cane” case, Morgan et al v. Swanson and Bomchill (Case No. 09-40373) was orally argued by lead counsel Thomas Brandt in front of the entire assembled 16-member 5th Circuit Court on May 23.  By a 10-6 vote, the Court agreed that principals Lynn Swanson and Jackie Bomchill deserved qualified immunity from being assessed punitive damages for their actions, reversing a district court’s ruling that could have subjected each of the principals to monetary damages.  (See http://www.ca5.uscourts.gov/opinions/pub/09/09-40373-CV3.wpd.pdf for the Court’s opinion).

Brandt and fellow FHMBK attorneys Joshua Skinner and David Upham argued that Swanson and Bomchill followed the school’s policy, the directions of their supervisors and the advice of the school’s lawyers.  The case originated in 2001 and has wound its way through various courts for much of the past eight years.

Among those expressing support of the principals’ actions was the Texas Association of School Boards Legal Assistance Fund, the National School Board Association, the Texas Association of School Administrators, the Association of Texas Professional Educators, The Texas Elementary Principals and Supervisors Association, and Plano Independent School District.  The cost of the litigation was paid by Plano ISD’s liability coverage through the Texas Association of School Boards Risk Management Fund, a not-for-profit risk pool that specializes in providing coverage to Texas school districts. 

“Our members in the TASB Risk Management Fund are pleased with the ruling of the federal appeals court and we know that district administrators are relieved to have closure,” said Dubravka Romano, associate executive director of Risk Management Services for the Texas Association of School Boards, the Fund’s administrator.  “This case has been in the courts for almost a decade, and this decision marks what we hope is the final chapter.”

Opposing arguments were led by the Liberty Institute and former solicitors general of the United States, Paul Clement and Kenneth Starr.  

Brandt, the head of FHMBK’s local government and employment law practice, told the Associated Press on Tuesday, “I’m, of course, very pleased with that ruling.  It’s been a long, hard fight.  [Lynn and Jackie] are both very happy with the answer to their prayers.”

(1)        Any provision in a “Construction Contract”[1] that requires an indemnitor[2] (usually a subcontractor or vendor) to hold harmless or defend a party (usually the property owner, developer, or general contractor) against a claim caused by the fault of the indemnitee (usually a property owner, developer or contractor) is void and unenforceable.

(2)        An exception to the rule stated above is made for bodily injury claims filed against the indemnitee by an employee of the indemnitor in which the employee seeks money damages from the indemnitee.

(3)        A provision in a construction contract that requires the purchase of “additional insured” insurance coverage by the indemnitor is also void and unenforceable if it requires or provides coverage that is otherwise barred by paragraph (1) above.

The unequal bargaining power of property owners, developers and general contractors in their negotiations with subcontractors and vendors has caused a shift of responsibility for providing liability insurance coverage for that groups’ liability exposure to the subcontractors and vendors hired by them.  This Bill stops that practice in the construction contracts described herein that are executed after January 1, 2012.

Click here to read House Bill 2093 in its entirety.

SUCCESS BASED ON LONG LASTING
RELATIONSHIPS FORGED IN INTEGRITY,
EXCELLENCE, COMMITMENT AND TEAMWORK.

Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with the 50th Anniversary Edition of our Newsletter and Legal Update. Below you will find information regarding successes and activities of our attorneys.

Please click the hyperlinks for updates regarding:  Civil Rights Law, Products Liability, Employment Law, School Law, Commercial Trucking Litigation, Premises Liability, Local Government, and Insurance Law. Please call us with your questions or comments.

VICTORIES AND HONORS

FHMBK OBTAINS SIGNIFICANT VICTORY FOR THE INSURANCE INDUSTRY—IN RE UNIVERSAL UNDERWRITERS

Don Martinson successfully argued before the Texas Supreme Court and obtained a significant victory not only for his client but for the entire insurance industry in Texas.  In this case of first impressions, the Supreme Court of Texas agreed with Mr. Martinson’s arguments concerning the obligations and burdens relating to the use of the appraisal clause in property insurance policies.   In In Re Universal Underwriters of Texas Insurance Company, the Court ruled: 

1. That the obligation to demand appraisal in a first party property insurance claim does not arise until the parties reach an “impasse” in their efforts to settle the claim, and; 
2. That the party resisting appraisal must prove that it was prejudiced by any delay by the other party in demanding appraisal following the date on which “impasse” was reached, before it can assert that the party requesting appraisal has “waived” its right to do so.

Don Martinson represented Universal in the trial court and before the Supreme Court of Texas.  

“CANDY CANE” CASE DRAWS NATIONAL ATTENTION CONCERNING EN BANC APPEAL

Thomas P. Brandt recently argued before the entire assembled United States Court of Appeals for the Fifth Circuit in the so-called “Candy Cane” case.  This case involves issues of qualified immunity and free speech in the elementary school setting.  Mr. Brandt argued that two elementary school principals should be granted qualified immunity from Plaintiff’s First Amendment claims because the law regarding the conduct at issue was not clearly established.

A number of prominent national advocacy organizations have weighed in on FHMBK’s en banc appeal in the “Candy Cane” case.  The National School Board Association (NSBA) filed an amicus brief in support of FHMBK’s position on behalf of two elementary school principals.  “I am very pleased to have the assistance of NSBA as well as numerous state organizations.  These organizations help to underscore the importance of this case,” said Thomas P. Brandt, FHMBK’s lead counsel in the case.  The state organizations which have filed amicus briefs in support of the two elementary school principals are TASB-LAF; TEPSA and ATPE. 

Mr. Brandt argued the case against two former solicitor generals:  Ken Starr, the president of Baylor University and Paul Clement, an attorney in private practice. 

We are currently awaiting a decision from the Fifth Circuit on this appeal.  FHMBK attorneys working on the appeal are Thomas P. Brandt, Joshua Skinner and David Upham.

DISTRICT COURT VICTORIES

Rocky Little successfully defended a personal injury lawsuit which arose from a six-car rear ender chain accident. The three plaintiffs were in the front car, and the defendant was driving the last car.  The Plaintiffs alleged that their car, as well as the four behind them, were at a complete stop waiting at a red light.  The defendant admitted striking the fifth car, and pushing it into the fourth car, but denied that his impact caused the plaintiffs car to be struck. The plaintiffs claimed medical expenses of about $18,000 plus intangible damages.  The jury found that the defendant’s negligence, which was admitted, did not cause the plaintiffs car to be struck.  A Take-Nothing Judgment in favor of the Defendant was granted by the Honorable Wade Birdwell, Judge of the 342^nd District Court of Tarrant County.

John F. Roehm III successfully represented a Constable who was sued in small claims court for unlawfully seizing exempt personal property during a Writ of Execution and damaging the seized property. The case was tried to a jury and the jury found no liability on the Constable.   

Thomas P. Brandt and John F. Roehm III successfully represented a City which was sued for taking private property and creating an intentional nuisance.  FHMBK filed a plea to the jurisdiction asserting that the Plaintiff did not allege a valid takings claim and thus, the City’s governmental immunity from suit has not been waived.  The plea was granted by the court and the City was dismissed from the case.   

Thomas P. Brandt and John D. Husted successfully represented a school district in a case involving allegations of negligence, gross negligence and assault of a student. Mr. Brandt and Mr. Husted filed a plea to the jurisdiction on the grounds that the school district’s governmental immunity had not been waived and orally argued the plea before the 158^th Judicial District Court. In response, the Plaintiffs dismissed all claims against the school district.

Thomas P. Brandt and Francisco J. Valenzuela, as reported in the Winter 2011 Newsletter and Legal Update, successfully moved the court to grant qualified immunity to the Superintendent and Principal of a local school district in a case involving allegations of student-on-student sexual harassment.  More recently, on March 16, 2011, the Court entered a final judgment in favor of the Superintendent and the Principal. 

Thomas P. Brandt and Francisco J. Valenzuela successfully represented a school district and its former athletic director in a case involving allegations of due process violations, employment retaliation, and slander.  FHMBK filed motions for summary judgment.  On March 24, 2011, the court entered summary judgment in favor of the school district and the athletic director.  As the athletic director was granted educator immunity, FHMBK sought an award of attorney’s fees.  On July 27, 2011, the court awarded attorney’s fees in our favor in the amount of $44,983.50. 

Thomas P. Brandt, Joshua Skinner, Laura O’Leary, John Husted, and Francisco J. Valenzuela successfully represented a City in a case involving a state and federal Takings claim.  FHMBK filed a motion for summary judgment on res judicata grounds, arguing that the Plaintiff should have asserted his Takings claim in his first litigation against the City, in which FHMBK previously successfully represented the City.  On July 29, 2011, the court granted summary judgment in favor of the City.

Thomas P. Brandt and Joshua Skinner successfully represented a county in East Texas in a First Amendment retaliation case in the United States District Court for the Northern District of Texas.  The plaintiff alleged that his employment with the county sheriff’s department was terminated in retaliation for his criticism of the county judge.  FHMBK filed a motion for summary judgment and the district court granted the motion and dismissed the case.

Thomas P. Brandt and Joshua Skinner successfully represented three assistant district attorneys in an employment discrimination case in the United States District Court for the Eastern District of Texas.  The plaintiff alleged racial discrimination in violation of Title VII, the United States Constitution and other federal laws.  FHMBK filed a motion to dismiss based on qualified immunity and the district court granted the motion and dismissed the case against the individual defendants.

Thomas P. Brandt and Joshua Skinner successfully represented a large city in the metroplex in a lawsuit filed against it and a developer by various homeowners seeking to stop redevelopment of nearby property.  The plaintiffs sought to enjoin the development by challenging the city’s approval of the mixed-use development.  The plaintiffs alleged that the city had violated state law regarding approval of changes to a zoning ordinance or regulation.  FHMBK filed a brief with the court explaining why the city’s actions complied with state law and the district court dismissed the case.

HONORS AND ANNOUNCEMENTS

• FHMBK recently celebrated its 50^th anniversary at a luncheon held June 16th to honor founding partners Robert A. Fanning and Harlan Harper, Jr.   
• Josh Skinner, a member of the firm, was profiled in the April 2011 edition of Super Lawyers for his role in the “Candy Cane” case. 
• FHMBK is pleased to announce that Ellen E. Dorn has joined the firm as an associate. 
• Thomas Brandt was selected as the Course Director for the 23^rd Annual Suing and Defending Governmental Entities Seminar, sponsored by the State Bar of Texas.    
• As part of a one hour ethics presentation at the 23^rd Annual Suing and Defending Governmental Entities Seminar, Ellen Dorn of FHMBK narrated a dramatic reading of the Trial of Thomas More.  This presentation also had Texas Supreme Court Justice Debra Lehrman serving as the presiding judge at the trial.  Tom Brandt and Josh Skinner participated by reading other roles at the trial. 
• Josh Skinner spoke at the 23^rd Annual Suing and Defending Governmental Entities Seminar on the topic “Individual Immunities.”

This newsletter is established for informational purposes only.  Nothing in this newsletter should be construed as individual advice, and the use of the e-mail link for communications with the firm or any individual member of the firm does not establish an attorney-client relationship.