NEWSLETTER AND LEGAL UPDATE: 50th ANNIVERSARY EDITION

OUR VISION:

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:

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;
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.