2018 YEAR IN REVIEW

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 our 2018 Year In Review 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, Premises Liability and Automobile and Trucking Litigation, Land Use, Zoning, and Regulatory Taking, Homeowners Association Law, and Insurance Law.

TEXAS LAWYER RECOGNIZES FHMBK’S YEAR OF BIG VICTORIES

FHMBK is pleased to announce that its litigation team, led by Thomas P. Brandt, has been selected by Texas Lawyer as Litigation Department of the Year finalist. “We are humbled by this award and are grateful to our clients for entrusting us with their legal needs,” said Brandt.

“This award is a testament to our team of dedicated and talented legal professionals who have consistently delivered incredible results while maintaining the highest standards of integrity. The track record of success we have compiled for our clients grows out of the firm’s core values of integrity, excellence, commitment, and teamwork.” An awards banquet was held Wednesday, September 19, 2018 at the Belo Mansion to honor and celebrate those firms and attorneys who have excelled in the State of Texas. To access the Texas Lawyer article, click here.

 

FHMBK BEST LAW FIRM FOURTH YEAR IN A ROW

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 ATTORNEYS NAMED SUPER LAWYERS

 

FHMBK is once again proud to have four of its attorneys named to 2018 list of Texas Super Lawyers. This is the tenth consecutive Super Lawyer selection for both DON MARTINSON and JOSHUA T. KUTCHIN. This is the eight selection for THOMAS P. BRANDT and GEORGE L. LANKFORD.

DON D. MARTINSON and GEORGE L. LANKFORD also received the honor of being selected by their peers for inclusion in the 25th Edition of The Best Lawyers in America for Insurance Law.

 

 

RISING STARS

FHMBK is proud to announce that Members FRANK VALENZUELA and JOHN D. HUSTED** have been selected to the 2018 Texas Rising Stars list. This is the ninth consecutive year Mr. Valenzuela has been honored among the state’s top young lawyers. This is Mr. Husted’s third time being named to the list.

 

 

VAUGHAN, HARDY BECOME MEMBERS

Fanning Harper Martinson Brandt & Kutchin, P.C. would like to congratulate KATHRYN VAUGHAN and LINDSEY HARDY on becoming Members with the firm.

Since joining the firm in 2015, Ms. Hardy has contributed significantly to the firm in the area of insurance defense litigation.

Ms. Vaughan joined FHMBK in 2016 and since that time has distinguished herself in the area of insurance coverage and coverage litigation.

Please join us in congratulating Ms. Vaughan and Ms. Hardy for this significant accomplishment.

UNITED STATES SUPREME COURT VICTORY

VICTORY IN POLICE SHOOTING CASE BEFORE THE U.S. SUPREME COURT

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.

U.S. FIFTH CIRCUIT COURT OF APPEALS VICTORIES

VICTORY AGAINST ALL ODDS; OVERTURNING A $1 MILLION VERDICT

Our prospects for success in this emotional, high-profile case seemed remote after the jury returned a $1 million verdict against our client. It’s not easy to overturn a jury’s verdict – but we did.

THOMAS P. BRANDT, LAURA O’LEARY, and KATHRYN VAUGHAN obtained an appellate victory in this high-profile disability discrimination case brought against a North Texas school district by a profoundly disabled young man. The parents of the young man believed that he had been abused by a teacher at the school district. The jury, despite the evidence, was persuaded by the emotional impact of the young man who was vulnerable and unable to communicate. Against all odds, we were able to convince both the district court and the appellate court that the jury’s verdict was based on emotions and not on evidence. The plaintiff sued the school district in federal court, alleging claims for disability discrimination under the Rehabilitation Act and the Americans with Disabilities Act. After a two week trial, the jury returned a verdict in favor of the plaintiff. After the trial, the district court granted the school district’s motion for judgment as a matter of law, finding that no reasonable juror could have found the school district liable. On appeal, the Fifth Circuit Court of Appeals, after oral arguments, affirmed the district court’s dismissal of the lawsuit, finding that the plaintiff had not presented evidence of intentional discrimination by the school district against the disabled student.

DISTRICT COURT VICTORIES

VICTORY IN THE “CLOCK-BOY” CASE

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.

JURY TRIAL VICTORY IN AN EMPLOYMENT CASE ALLEGING RACE DISCRIMINATION AND RETALIATION

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!

VICTORY IN FIRST AMENDMENT FACEBOOK CASE

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.

VICTORIES IN EXCESSIVE FORCE CASES

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.

In a case which was broadcast on a local news station and involved video of a law enforcement officer using force, we obtained judgment in favor of the officers, the sheriff, and the county.

THOMAS P. BRANDT and JOHN F. ROEHM III achieved a dismissal of a lawsuit against a North Texas county, its sheriff, and several deputies. Plaintiff sued the Defendants in federal court alleging claims for First Amendment free speech; Fourth Amendment for unlawful search and entry, false arrest, manufacture of probable cause, excessive force, and malicious prosecution; and Fourteenth Amendment for denial of medical care and equal protection. Plaintiff also sued the county for failure to train, supervise, discipline, and discharge personnel.

PARENTAL RIGHTS CASE VICTORY

In a case involving concerns about possible child abuse, a parent sued a school district, a superintendent, a teacher, and a counselor alleging that they had interfered with his parental rights.

THOMAS P. BRANDT and JOHN F. ROEHM III achieved a dismissal of a lawsuit against a North Texas school district, superintendent, a teacher, and counselor. Plaintiff alleged claims under the First, Fourth, Fifth and Fourteenth Amendment for interference with his familial association/child-parent relationship and privacy. The school district and the individual Defendants filed motions to dismiss arguing the Plaintiff had failed to state a claim for relief and that the individual Defendants are entitled to qualified immunity. The district court granted the motions and dismissed Plaintiff’s claims with prejudice.

FALSE ARREST/EXCESSIVE FORCE CASE VICTORY

In a case alleging false arrest and excessive force arsing out of police encounter at a residence, we obtained a judgment in favor of the city and its police officers.

STEPHEN D. HENNINGER and CAROLINE SILEO achieved a dismissal of a suit against a North Texas city and several of its current and former police officers. The Plaintiff sued in federal court, alleging claims for false arrest and excessive force after an encounter with police at a residence. The city filed motions to dismiss, arguing that Plaintiff had failed to adequately plead any legal claims against the Defendants. The district court agreed and entered an order and judgment dismissing all claims with prejudice.

MALICIOUS PROSECUTION CASE VICTORY

In a case which arose out of a failed political campaign and a failed criminal prosecution of the defeated candidate, we were able to obtain a recommendation for dismissal by the U.S. magistrate judge.

THOMAS P. BRANDT and JOHN F. ROEHM III achieved a recommendation from the U.S. Magistrate Judge to dismiss a lawsuit against a North Texas county. The Plaintiff sued in federal court alleging claims for malicious prosecution under the Fourth and Fourteenth Amendments. The Plaintiff sued the County for the actions of its former County Judge. The county filed a motion to dismiss for failure to state a claim for relief. The U.S. Magistrate Judge issued a Report recommending the granting of the motion to dismiss which was adopted by the district court.

POLICE SHOOTING CASE VICTORY

In a high-profile police shooting case which left one young man dead and another wounded and which led to the conviction of the officer, we obtained judgment in favor of the city’s police chief.

THOMAS P. BRANDT and JOHN D. HUSTED successfully defended the Chief of Police of 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 chief, as FHMBK successfully argued that the chief was not deliberately indifferent in the hiring and training of the police officer involved in the shooting.

CIVIL RIGHTS VICTORY

In a civil rights case arising from a fatal shooting, we obtained judgment in favor of a county sheriff and two investigators.

THOMAS P. BRANDT and CAROLINE SILEO successfully defended a county sheriff and two investigators against a lawsuit brought by a prisoner stemming from the incidents surrounding his criminal conviction for shooting and killing his father. The prisoner alleged various state and civil rights claims, and FHMBK filed a motion to dismiss with prejudice. The court agreed and dismissed the claims with prejudice.

DISABILITY DISCRIMINATION VICTORY

In a case brought by parents of a disabled student asserting discrimination based on disability, we were able to obtain judgment in favor of a North Texas school district.

THOMAS BRANDT, FRANK VALENZUELA, and LAURA O’LEARY prevailed on motions to dismiss on behalf of a large Texas school district and one of its teachers in federal district court in the Northern District of Texas. Plaintiffs were parents asserting claims individually and on behalf of their disabled son. Plaintiffs claimed alleged violations of the Americans with Disabilities Act, assault, civil rights violations under 42 U.S.C. Section 1983, and intentional infliction of emotional distress. FHMBK filed motions to dismiss all of Plaintiffs’ claims, and the court granted the dismissal.

SEXUAL HARASSMENT/RETALIATION VICTORY

In a case involving claims of sexual harassment and retaliation, we obtained summary judgment in favor of a North Texas school district.

THOMAS P. BRANDT and STEPHEN D. HENNINGER obtained summary judgment for a North Texas school district in a case filed under the Texas Commission on Human Rights Act. Plaintiff alleged that he was sexually harassed by a co-worker and sued for a hostile work environment. He further alleged that the school district unlawfully retaliated against him when he complained about the sexual harassment by terminating him. The school district contended that the Plaintiff had been fired for his own improper and sexually harassing behavior. The school district filed a motion for summary judgment seeking dismissal of all claims, which was granted by the district court.

HONORS AND ANNOUNCEMENTS

NEWEST ADDITIONS TO THE FIRM

FHMBK is pleased to announce the addition of two new associates to the firm. CAROLINE SILEO and CHRISTOPHER T. BRANDT.

Ms. Sileo joined FHMBK in November 2017. She 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. Brandt joined FHMBK in November 2018. He is a recent graduate of Southern Methodist University Dedman School of Law after obtaining his Bachelor of Arts from the University of Notre Dame. Mr. Brandt’s work will focus on civil rights, employment law, and appellate law.

SPEECHES AND PRESENTATIONS

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.

THOMAS P. BRANDT participated in a panel discussion on Religious Liberty at the Baylor University Law School on March 23, 2018. The discussion was sponsored by the Baylor Law School chapter of the Federalist Society.

THOMAS P. BRANDT and Janet Spugnardi, Deputy City Attorney for the City of Irving, made a presentation at the Judge Abner V. McCall Inn of Court meeting held September 12 at Baylor University. Mr. Brandt and Ms. Spugnardi spoke on Strategies and Pitfalls When Dealing with the Media in High Profile Litigation.

THOMAS P. BRANDT spoke at this year’s Advanced Government Law Course held in San Antonio on July 19, 2018 on the topic of “Square Pegs in Round Holes – Cops as Healthcare Providers and Social Workers”.

FRANK VALENZUELA also spoke at the Advanced Governmental Law Course presenting on July 20, 2018 an update on the Texas Whistleblower Act.

THOMAS P. BRANDT spoke at the 2018 TML-IRP Attorney Workshop on August 24, 2018. Mr. Brandt’s presentation focused on ADA issues in law enforcement.

FRANK VALENZUELA spoke at this year’s Texas Advanced Paralegal Seminar on Civil Rights in Schools: A Litigation Update on September 27, 2018.

THOMAS P. BRANDT and LAURA O’LEARY spoke at the annual General Assembly of the Catholic Bar Association in Dallas on October 12, 2018 on the topic of Transgender Litigation.

FHMBK’S INSURANCE LAW NEWSLETTERS

For access to FHMBK’s most recent Insurance Law newsletters, click the links below:

 

June 2018	September 2018
July 2018	October 2018
August 2018	November 2018

 

UPCOMING EVENTS

LAURA O’LEARY will be joining S. Anthony Safi, of Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C., in El Paso, Texas in presenting at the University of Texas School Law Conference in Austin on February 28, 2019. Mr. Safi and Ms. O’Leary will be speaking on “The Crossroads: Section 504, the ADA, and Chapter 21.” The presentation will provide a comparison of the causes of action for employment discrimination based on disability under Section 504, the Americans with Disabilities Act, and Chapter 21 of the Texas Labor Code, plus a brief look at recent developments in Section 504 student litigation