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Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with our Spring 2018 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, Motor Vehicle Litigation, Premises Liability, Land Use, Zoning, and Regulatory Taking, Homeowners Association Law, and Insurance Law.


THOMAS P. BRANDT, JOHN F. ROEHM III and JOHN D. HUSTED obtained a victory at the U.S. Supreme Court when the court denied the plaintiff’s writ of certiorari.

FHMBK represented a North Texas city and its police officers in a case involving the shooting of a home owner during a search warrant. The police officers [SWAT Team] were executing a search warrant late at night when one of the officers observed a gun pointed at him sticking out between two doors. The officer fired two shots and hit the plaintiff’s hand as he held the gun. The home owner filed suit in state court against the City and its police officers asserting state law claims. We filed a motion to dismiss the claims against the police officers which was granted by the state court. The home owner amended his petition to include, in addition to his state law claims, federal constitutional claims against the dismissed officers and the City for false arrest, unreasonable search/seizure, excessive force, and failure to train/supervise. We removed the case to federal court and filed motions to dismiss the home owner’s new claims. The district court granted our motion and the home owner appealed. The Fifth Circuit Court of Appeals affirmed the federal district court’s decision. The home owner then filed a writ of certiorari with the U.S. Supreme Court.

Our victory for our clients became final when the United States Supreme Court agreed with our position by refusing to accept the case for review. We were very pleased to obtain this victory before the highest court in the land.



THOMAS P. BRANDT, STEPHEN D. HENNINGER, and LAURA O’LEARY obtained dismissal of a lawsuit against a Texas city and four of its police officers which was brought on behalf of a high school student who was arrested for possessing a hoax bomb when he brought a homemade device to school. The student, who became known as “Clock-Boy” in the media, claimed that the City and its police officers violated his Fourth Amendment rights in connection with his arrest. The United States District Court dismissed the lawsuit, holding that the plaintiff had not adequately pled a violation of his Fourth Amendment rights and that the police officers were entitled to qualified immunity in connection with the student’s arrest. The Court also found that the student had not adequately pled his claim that the City failed to train its police officers.


THOMAS P. BRANDT and STEPHEN D. HENNINGER recently obtained a jury trial victory for a North Texas public school district. The Plaintiff was a former employee of the district who was terminated for insubordination. Plaintiff sued the district, alleging that he was actually terminated in retaliation for making claims of racial discrimination against several district employees, and asserting that the allegation of insubordination by the district was a pre-text. The case was tried to a jury which returned a verdict finding that the school district had not retaliated against the Plaintiff. We are pleased with this jury trial victory!


THOMAS P. BRANDT and JOHN D. HUSTED successfully defended a north Texas City from a federal lawsuit brought by the family of a teenager who was shot multiple times by an off-duty police officer previously employed by the City. Specifically, the federal court dismissed the plaintiff’s failure to train and hiring claims against the City, as FHMBK successfully argued that any alleged constitutional violation suffered by the teenager was not caused by a policy, custom or practice of the City.


THOMAS P. BRANDT and JOHN F. ROEHM III obtained a dismissal of multiple claims filed against a School District, the Superintendent, a teacher aide, and an independent counselor arising out of alleged interference with parental rights. Plaintiff asserted claims under Section 1983 for violations of his First, Fourth, Fifth and Fourteenth Amendment rights against all defendants. Plaintiff sued the individuals in their official and individual capacities. Plaintiff also asserted state law claims of invasion of privacy against the counselor, gross negligence against the counselor, and interference with possessory right in a child against the School District, the superintendent, the teacher aide, and counselor. Motions to dismiss were filed for all defendants and the motions were granted in part. The United States District Court dismissed Plaintiff’s Section 1983 claims and state law claims against the School District; dismissed Plaintiff’s Section 1983 claims against the counselor in his official and individual capacities; dismissed Plaintiff’s 1983 claims against the superintendent and teacher aide in their official capacities; dismissed Plaintiff’s state law claims against the superintendent; dismissed Plaintiff’s state law claims against the teacher aide; dismissed Plaintiff’s Section 1983 claims for violation of his Fourth Amendment rights against the superintendent and teacher aide in their individual capacities. Plaintiff has remaining Section 1983 claims against the superintendent and teacher aide in their individual capacities for violation of his right to familial association under the First and Fourteenth Amendments.


THOMAS P. BRANDT, FRANK VALENZUELA, and LAURA O’LEARY obtained dismissal of a lawsuit against a Texas county, a sheriff, and personnel from the sheriff’s office in one of the first cases in the country involving a sheriff’s Facebook page and alleged deletions of comments from the Facebook page. The plaintiff claimed that county personnel violated her First and Fourteenth Amendment rights by deleting a comment she made on the sheriff’s office’s Facebook page and by preventing her from making further comments on the Facebook page. The United States District Court dismissed the lawsuit, holding that the plaintiff had not adequately pled a violation of her free speech rights because her allegations did not support a finding of viewpoint discrimination by county personnel. Because she had not adequately pled an underlying constitutional violation, the Court also dismissed the plaintiff’s due process claim. Additionally, the Court found that the sheriff and sheriff’s office personnel were entitled to qualified immunity because the law concerning use of social media was not sufficiently clear as to put county personnel on notice that their alleged actions would violate the plaintiff’s First Amendment rights. We had previously defeated the plaintiff’s motion for a preliminary injunction in this lawsuit. In rejecting the plaintiff’s bid for preliminary injunctive relief, the Court explained that the plaintiff had not demonstrated a substantial likelihood of prevailing on the merits of her First Amendment claims because Facebook has the right to control the contents of its platform, and because removal of plaintiff’s comment would most likely be construed as compliance with Facebook’s policies, which the sheriff’s office must follow in order to utilize the Facebook platform.


THOMAS P. BRANDT and JOHN F. ROEHM, III obtained dismissal of a lawsuit against a North Texas County, its Sheriff and personnel from the Sheriff’s Office for alleged constitutional violation arising out of the execution of a writ of attachment. Two County deputies, along with a City police officer and members of Child Protective Services, went to Plaintiff’s home to remove a minor child under a writ of attachment. Plaintiff refused to allow them to take her child and hit one of the deputies. The Plaintiff was restrained by the deputies and arrested. The Plaintiff claimed that her First Amendment rights were violated when she was arrested by County deputies for questioning their authority to be in her home; her Fourth Amendment rights were violated by County deputies for unlawful search and entry, false arrest, manufacture of probable cause, excessive force, and malicious prosecution; her Fourth Amendment rights were violated by County personnel at the Jail for fabrication of evidence and County Sheriff for stigma-plus libel; her Fourteenth Amendment rights were violated by County personnel at the Jail for denial of medical care and denial of equal protection. The Plaintiff brought claims against the County for denial of medical care, denial of equal protection, stigma-plus libel, and failure to train, supervise, discipline, and discharge personnel. The district court dismissed Plaintiff’s claims against the County, its Sheriff, and Sheriff personnel on the grounds of failure to state a claim and the County personnel’s qualified immunity.



Fanning Harper Martinson Brandt & Kutchin, P.C. congratulates MARC FANNING on celebrating his 40th anniversary in the practice of law.

Marc graduated from Baylor University School of Law in 1977 and was admitted to the State Bar of Texas in 1978. In addition to successfully defending civil lawsuits filed against his client insurance company insureds and self-insured businesses, Marc serves as the Chairman of the Board of the law firm.



For a fourth consecutive year, U.S. News and World Report recognized FHMBK as a “Tier One” law firm in the area of insurance law in North Texas for 2018. This designation is a tremendous honor reserved for a very select few law firms and we are once again extremely pleased by this recognition in the field of insurance law.



FHMBK is proud to announce that FRANK VALENZUELA, Member, JOSHUA A. SKINNER, Of Counsel, and JOHN D. HUSTED, Member, have been selected to the 2018 Texas Rising Stars list. This is the ninth consecutive year Mr. Skinner and Mr. Valenzuela have been honored among the state’s top young lawyers. This is Mr. Husted’s third time being named to this list.


FHMBK is pleased to announce the addition of two new associates to the firm. CAROLINE SILEO and DAN P. TROIANO joined FHMBK in November 2017.

Ms. Sileo graduated cum laude from Southern Methodist University Dedman School of Law in May 2017. Her practice areas include civil rights and employment litigation, local government defense, school law, and appellate advocacy.

Mr. Troiano also graduated with honors from SMU Dedman School of Law in May 2017. His practice areas include insurance litigation and coverage, insurance defense litigation, and appellate advocacy.


JENNIFER L. KELLEY’S article, “Great American Insurance Co. v. Hamel: Fully Adversarial Trial” was published in the Fall 2017 Edition of the Journal of Texas Insurance Law.

THOMAS P. BRANDT spoke to the St. Thomas More Society of Dallas (Catholic Attorney’s Guild) on the subject of the regulation of sexually oriented businesses. Mr. Brandt spoke about his team’s successful defense of the City of Dallas in the Exxxotica lawsuit. In that suit, we successfully defended the City’s decision to refuse to lease the convention center to Exxxotica for its traveling expo.

JENNIFER L. KELLEY spoke to local insurance adjusters in January of 2018 about the MCS-90 and its role in trucking insurance. The presentation focused on the applicability, analysis, and effect of the MCS-90 endorsement on underwriting risk, claims handling, and liability exposure for insurance carriers writing auto liability insurance for motor carriers engaged in interstate commercial trucking. The MCS-90 is a creature of national public policy designed to shift the burden of collecting on a judgment from a presumably blameless injured member of the public (plaintiff) to presumably deep-pocketed insurers. The MCS-90 endorsement creates a surety, obligating the insurance carrier to provide minimum recovery for judgments entered against insured motor carriers, but it also allows the insurance carrier to reserve the right to later seek reimbursement from the motor carrier for monies it pays on behalf of that motor carrier.

THOMAS P. BRANDT spoke to the Catholic Physician’s Guild on February 6, 2018 on the topic of Conscience Protections for Physicians.

THOMAS P. BRANDT presented at this year’s University of Texas School Law Conference held February 22 – 23, 2018. Mr. Brandt presented an Update on Civil Rights Litigation. Mr. Brandt’s speech focused particularly on recent litigation involving Title IX and Section 504 of the Rehabilitation Act.

DANIEL T. TROIANO recently spoke to local insurance adjusters about evolving tender and lien issues in personal and commercial lines insurance.


On March 23, 2018, THOMAS P. BRANDT will be participating in a panel discussion on religious liberty at Baylor School of Law.

During the Texas Association of School Board’s Risk Management Fund Members’ Conference being held May 3-4, 2018 in Austin, Texas, THOMAS P. BRANDT will be addressing conference attendees with a presentation on student free speech.

The Texas Bar CLE’s 2018 Advanced Government Law course will be held in San Antonio, Texas July 19 – 20. THOMAS P. BRANDT will be presenting a speech on the effect of Section 504 of the Rehabilitation Act on law enforcement. The title of his speech is “Square Pegs in Round Holes: Cops as Healthcare Providers and Social Workers.” Also participating at this year’s course from FHMBK is FRANK VALENZUELA. Mr. Valenzuela will be presenting a Whistleblower Update.