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Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with our Fall 2015 Newsletter and Legal Update. Below you will find information regarding successes and activities of our attorneys.

Please click the hyperlinks for updates regarding Local Government, Constitutional and Civil Rights Law, Products Liability, School Law, Employment Law, Automobile and Trucking Litigation, Premises Liability, Land Use, Zoning, and Regulatory Taking, Insurance Law, Homeowners’ Association Legislative Update, and Special Education. Please call us with your questions or comments.   


DON MARTINSON and JENNIFER KELLEY obtained a victory in a health care liability lawsuit before the Supreme Court of Texas in a case involving the Texas Medical Liability Act.  At issue before the supreme court was whether a health care employee’s workplace injury claim constituted a health care liability claim, thereby invoking the expert report requirements of the Texas Medical Liability Act.  After briefing on the merits, the Texas Supreme Court denied the petition for review filed in the supreme court by the opposing party.


THOMAS P. BRANDT and FRANCISCO J. VALENZUELA obtained a victory for a North Texas city before the Fifth Court of Appeals in Dallas, Texas.  The court of appeals affirmed the lower court’s granting of a plea to the jurisdiction in the city’s favor.  The court ruled that there was no waiver of governmental immunity concerning the plaintiff’s negligent representation and fraudulent inducement claims based on the assessment and collection of taxes.  The court held in favor of the city on the plaintiff’s declaratory judgment and breach of contract claims because the plaintiff failed to challenge independent grounds raised by the city as to why jurisdiction did not exist.  On the plaintiff’s promissory estoppel claim, the court noted that, though the plaintiff mentioned that he had raised such a claim, he failed to provide legal briefing on it and also failed to explain why the city’s immunity was waived for such a claim.  The court affirmed the granting of the city’s plea to the jurisdiction.

THOMAS P. BRANDT, JOSHUA SKINNER and DAVID UPHAM filed an amici brief on the United States Court of Appeals for the Second Circuit in a case out of Connecticut that involved a $41 million jury verdict against a school for damages from an alleged insect-borne illness.  The FHMBK’s amici brief was filed on behalf of The Association of Boarding Schools and the North American Montessori Teachers’ Association, arguing that the judgment against the school violated public policy because it could have the effect of curtailing routine outdoor activities for children around the country.  The Second Circuit agreed that the case raises substantial public policy issues and, consequently, has submitted the case to the Connecticut Supreme Court, requesting that the Supreme Court resolve the certain issues of law.  FHMBK’s amici brief is available here.

THOMAS P. BRANDT, STEHPEN D. HENNINGER and JOSHUA SKINNER obtained a final victory on appeal for a local school district in a case arising from the discipline of a student for fighting.  The student was assigned to in-school suspension for his involvement in the fight.  The parents sued the school district to stop the school from enforcing its disciplinary decision.  FHMBK obtained an initial victory before the trial when the district court agreed to grant the school district’s plea to the jurisdiction.  The parents appealed and obtained an emergency stay of the discipline.  On July 28, 2015 the Dallas Court of Appeals vacated its stay order and dismissed the parents’ appeal. The final victory for the school district is now complete.


THOMAS P. BRANDT and LAURA O’LEARY obtained a victory in a lawsuit alleging constitutional violations against a city in connection with the detainment of a citizen for mental health evaluation.  The plaintiff brought claims against the city alleging that she had been subject to an unreasonable search and seizure of her person, false imprisonment, and excessive force by a police officer employed by the city.  The plaintiff further alleged that the city maintained policies or customs that exhibited deliberate indifference to the Constitutional rights of the city’s residents and that the city had a policy or custom of inadequately training and supervising its police officers.  The court dismissed all claims with prejudice and entered final judgment in favor of the city.

THOMAS P. BRANDT and STEPHEN D. HENNINGER obtained dismissal of multiple defendants in  a lawsuit alleging Title IX and Constitutional violations. Plaintiffs sued the school district and 13 individual employees following an alleged sexual assault of their daughter by other students at a party. Plaintiffs claimed that the district and employees failed to take adequate steps to protect their daughter from harassment and bullying at school, and to investigate the alleged assault and take action against the perpetrators. After the individual defendants filed motions to dismiss arguing that no valid causes of action had been asserted against them, the plaintiffs dismissed all of their claims against the individual defendants, with prejudice.

THOMAS P. BRANDT, JOHN F. ROEHM III, and NICHOLE M. PLAGENS obtained a victory for a Dallas area Homeowners Association in a counter-claim filed by an owner in the 191st District Court in Dallas, alleging, in part, that the HOA’s governing documents formed a contract between the parties, that the HOA had breached that contract, and that the owner was entitled to recovery of attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code which allows a prevailing party to recover attorney’s fees for a breach of contract claim.  Mr. Brandt successfully argued that the Owner was not entitled to recovery of attorney’s fees for its breach of contract claim, because seeking enforcement of the governing documents did not meet the standards for recovery of attorney’s fees on an oral or written contract as anticipated under Chapter 38.    Upon consideration of FHMBK’s motion for partial summary judgment, the Dallas district court dismissed the plaintiff’s claim for attorney’s fees.   The remaining claim for damages was minimal and the dismissal of the Owner’s claim for attorney’s fees was instrumental in effectuating a favorable settlement for the HOA.

MARC FANNING obtained favorable ruling on a motion for summary judgment involving a premises liability case for his client who is a regional grocery store owner.

JOSHUA KUTCHIN and JENNIFER KELLEY also obtained a favorable ruling on a motion for summary judgment involving a premises liability case for their client who is regional commercial property company.

Thomas P. Brandt, Francisco J. Valenzuela and John D. Husted successfully defended a north Texas school district in a lawsuit brought by a former vice-principal alleging that the school district violated the Texas Open Meetings Act when the district pursued an appeal of the vice-principal’s prior lawsuit without having conducted a school board vote on whether or not to appeal. FHMBK defeated the vice-principal’s motion for summary judgment while at the same time successfully arguing for summary judgment on the school district’s behalf.


FHMBK would like to congratulate Don Martinson for his recognition in the 2016 edition of The Best Lawyers in America. This is Mr. Martinson’s third consecutive Best Lawyers selection.  Selection is based upon nominations made by clients, other attorneys, and law firms, in addition to research by the Best Lawyers editorial team.

2015 SuperlawyersFHMBK is also pleased to announce that firm attorneys Don MartinsonThomas Brandt, and Joshua Kutchin have once again earned selection to the 2015 Texas Super Lawyers listing.

This is the seventh consecutive Super Lawyers selection for both Mr. Kutchin and Mr. Martinson and the sixth selection for Mr. Brandt.  For additional information about this honor, please click here for the most recent media release.

FHMBK is also pleased to announce that Lindsey Hardy has joined the firm as Of Counsel.  Lindsey has experience as a trial attorney in the areas of civil tort defense and products liability defense.


THOMAS P. BRANDT spoke at the Texas Bar CLE 2015 Advanced Government Law Boot Camp and Annual Course held in Austin from July 22 – 24, 2015.  Mr. Brandt spoke at the boot camp on July 22nd on the topic of Individual Immunity.

THOMAS P. BRANDT also served as the moderator at the Texas Bar CLE 2015 Advanced Government Law Boot Camp and Annual Course on Friday, July 24th during a panel discussion on Disciplining and Defending Police Officers and Municipalities Post-Ferguson.

FRANCISCO J. VALENZUELA spoke at the Texas Bar CLE 2015 Advanced Government Law Boot Camp and Annual Course on July 23rd providing attendees with an update on the Texas Whistleblower Act.

JOSHUA SKINNER was featured on a podcast for the Federalist Society, speaking on the Supreme Court’s decision in Kingsley v. Hendrickson.    Click here to listen to the podcast in its entirety.

THOMAS P. BRANDT spoke at the Texas Municipal League Intergovernmental Risk Pool 25th Annual Attorney Workshop on August 21, 2015, in Austin on the topic of White, Brown, Black, and Blue:  Disciplining and Defending Police Officers Post-Ferguson.


FullSizeRenderAttorneys and staff from FHMBK participated in the 15th Annual Freedom Run 5K & Bill Carollo One-Mile Walk, on September 10, 2015.  The Freedom Run was first organized after the tragic events of September 11, 2001, and it is an opportunity to remember and honor first-responders who make sacrifices on a daily basis.  The event is organized by the Dallas Association of Young Lawyers, and the proceeds go to The Assist the Officer Foundation.  The Foundation provides financial assistance to officers who are facing the loss of income due to serious injury, life-threatening illness, or other catastrophic event, or to families who have lost first-responders in the line of duty. 


THOMAS P. BRANDT and LAURA O’LEARY are scheduled to speak at the 2015 TASA/TASB Convention in Austin.  Mr. Brandt and Ms. O’Leary will be joined by Amanda Bigbee, General Counsel for Keller Independent School District, in their presentation, “Anatomy of a School Lawsuit: What to Expect When You Get Sued.”  This session will take place at 8:45 a.m. on Friday, October 2, 2015.  Please come join us if you are attending the conference.

FRANCISCO J. VALENZUELA is scheduled to speak at the 2015 TASA/TASB Convention in Austin.  Mr. Valenzuela will be presenting an update on the Texas Whistleblower Act along with Valerie Carrillo, General Counsel for the Fort Worth Independent School District, at 12:30 p.m. on Friday, October 2, 2015.

THOMAS P. BRANDT, JOSHUA A. SKINNER and NICHOLE M. PLAGENS are scheduled to speak on “Police Excessive Force Litigation and Issues Post Ferguson” for a State Bar of Texas Webcast on November 17, 2015, starting at 2:00 p.m.  You can register for the webcast CLE presentation here.

NICHOLE M. PLAGENS is scheduled to speak at the 2015 NBI Seminar on Texas Special Education Law in Dallas, Texas on December 8, 2015.   Ms. Plagens will be presenting on the Framework of Special Education Law and reporting on recent developments and case law in the area.  Information on attending the conference can be found at www.nbi-sems.com.  For online registration, enter product code 70406.