2021 FALL NEWSLETTER

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 Fall 2021 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, School Law, Employment Law, Automobile/Trucking Litigation, Premises Liability, and Land Use, Zoning, and Regulatory Taking.  For our Texas Insurance Law Updates for 2021, see separate section below.

APPELLATE COURT VICTORIES

THOMAS P. BRANDT, JOHN F. ROEHM, III and LAURA O’LEARY obtained a final victory for a municipality in a lawsuit involving the tragic drowning of a law enforcement officer who was swept away by flood waters while working an off-duty assignment at a private residence. The officer’s widow asserted tort claims against the town in which the private residence is located.
Agreeing with the town’s arguments, the appellate court held that the plaintiff did not provide timely written notice of her claims as required under the Texas Tort Claims Act and that the town did not have actual notice of the claims. For these reasons, the plaintiff did not establish a waiver of the town’s governmental immunity.

The Dallas Court of Appeals also adopted the town’s argument that the town’s coordination of off-duty work by a law enforcement officer for a private party was a governmental function, not a proprietary function. This holding is important for law enforcement officers, towns, cities, and counties more broadly, because it means that tort claims arising from law enforcement officers’ off-duty assignments may fall within the protections of the Texas Tort Claims Act and may be subject to governmental immunity.  The appellate court granted the town’s plea to the jurisdiction and dismissed all claims against the town.

 

THOMAS P. BRANDT, LAURA O’LEARY, and CHRISTOPHER BRANDT obtained victory in a lawsuit by a substitute teacher against a school district. The substitute teacher alleged claims under Title VII, asserting that she had been subjected to discrimination on the basis of her race. Finding that the substitute teacher failed to demonstrate administrative exhaustion of her claims, the district court dismissed the Plaintiff’s claims in their entirety. The Fifth Circuit Court of Appeals affirmed dismissal of the substitute teacher’s claims, finding that she waived the only argument she raised on appeal.

 

DISTRICT COURT VICTORIES

STEPHEN D. HENNINGER, JOHN F. ROEHM, III, and CHRISTOPHER BRANDT obtained a victory for a Central Texas County and its former District Attorney. The Plaintiff was one of many persons arrested following an outbreak of violence by two rival motorcycle clubs at a restaurant. Plaintiff sued the County and the District Attorney, asserting he was falsely arrested. He asserted claims under the First, Fourth, and Fourteenth Amendments. Our office filed a motion for summary judgment, seeking dismissal of all claims. The District Court granted the motion and dismissed all claims against the County and the District Attorney.

THOMAS P. BRANDT, JOHN D. HUSTED, LAURA O’LEARY, and CHRISTOPHER BRANDT obtained a significant district court victory on behalf of an east Texas county and four of its jailers against federal claims of deliberate indifference brought by a pretrial detainee who suffered catastrophic injuries after he attempted suicide by hanging while in custody. The plaintiff alleged that the officers had knowledge that he was a significant suicide risk, and that they failed to take appropriate measures to address the risk when he was temporarily placed in a solitary cell at his request, where he eventually attempted to hang himself with a ligature that was in the cell. Officers rescued and resuscitated the detainee upon discovering him hanging, but he suffered major injuries from the attempted suicide. After multiple summary judgment motions and oral argument, the district court issued its opinion and final judgment granting summary judgment on all claims asserted against all defendants.

 

STEPHEN D. HENNINGER obtained a victory for an employee of a North Texas public school district. The employee was the driver of a vehicle that was involved in a collision with the Plaintiffs’ vehicle. Plaintiffs sued both the school district and the driver, individually. Our office filed a motion to dismiss the driver from the case, arguing he was not properly sued under the Texas Tort Claims Act. The District Court granted the motion and dismissed the employee from the case.

 

Congratulations to FRANK VALENZUELA and CHRISTOPHER BRANDT for successfully defending a North Texas city and its police chief against various Texas constitutional and statutory claims concerning Governor Abbott’s executive orders restricting entry into bars and restaurant seating capacity due to the COVID-19 pandemic. We filed a plea to the jurisdiction with the state court. Soon thereafter, the plaintiff requested an order of non-suit.

 

STEPHEN D. HENNINGER and CHRISTOPHER BRANDT obtained a victory for a North Texas public school district. Plaintiffs were students of the district and passengers on a school bus that was involved in a tragic accident which killed one of the students on board and injured many more. The school district attempted to settle all of the claims with the passengers before any suit was filed. Plaintiffs were part of those negotiations, but did not settle with the district, even though they were advised that the district would be paying out its statutory limits of liability under the Texas Tort Claim Act to other claimants. Plaintiffs later filed suit. Our office filed a plea to the jurisdiction and motion for summary judgment, arguing that the suit could not proceed as the district had already paid out its statutory limits of liability under the Texas Tort Claims Act and could have no further monetary liability to anyone, as a matter of law. The District Court granted the motion and dismissed the case against the school district.

LAURA O’LEARY and JOHN HUSTED obtained a victory on behalf of a school district in a lawsuit involving a claim of First Amendment retaliation by a paraprofessional who was terminated. The plaintiff claimed that he was terminated because he made political social media posts. Agreeing with our arguments, the court found that the plaintiff failed to allege a sufficient basis for municipal liability and that the plaintiff failed to establish that his social media posts related to a matter of public concern. The court dismissed the plaintiff’s claim against the school district.

THOMAS P. BRANDT, LAURA O’LEARY, and JOHN F. ROEHM, III recently wrote amicus briefs on behalf of organizations representing Texas counties, in a lawsuit relating to bail setting. Tom, Laura, and John initially wrote an amicus brief in support of a defendant’s petition for rehearing en banc before the Fifth Circuit Court of Appeals. When the Fifth Circuit granted the petition, we wrote an amicus brief on the merits, supporting the defendant county. Our briefs addressed the roles of various types of county judges and their status as policymakers for their counties. Because the lawsuit involved a federal court imposing a structural injunction relating to state criminal processes, we also raised concerns about issues of comity. The en banc Court heard oral argument in late May, during which several judges referred to cases or arguments from our briefing. The Court has not yet issued its opinion in this matter.

THOMAS P. BRANDT and JOHN D. HUSTED obtained a complete victory on behalf of an east Texas county, its Sheriff, and four officers in a federal lawsuit brought by an arrestee asserting federal claims of unlawful detention and excessive force, and state law claims of assault and battery. The arrestee claimed that the officers used excessive force while taking him into custody at the conclusion of a lengthy, multi-unit car chase that eventually ended in the arrestee ramming his truck into multiple law enforcement vehicles. A taser was used in the officers’ efforts to handcuff and take the arrestee into custody after he was pulled from his vehicle. FHMBK had previously obtained summary judgment on behalf of the County, the Sheriff, and two of the officers, and recently obtained final judgment upon the court granting the summary judgment motions of the two remaining officers.

THOMAS P. BRANDT and JOHN D. HUSTED obtained a federal court victory on behalf of a west Texas county, its Sheriff, and one if its officers against constitutional claims brought by an inmate alleging violations of his rights of religious freedom, freedom of expression, and due process. The inmate’s claims arose from allegations that the county jail prevented the inmate from receiving a copy of the Koran that was mailed to him and likewise prevented him from sending outgoing mail. As this inmate had previously brought related claims arising from the same or similar operative facts in an earlier lawsuit that FHMBK obtained dismissal on behalf of the county defendants, the court granted dismissal in this case on the basis of res judicata. The court further held that to the extent the inmate’s claims in his lawsuit were not addressed in the first lawsuit, they must be dismissed because he failed to show that he was deprived of a constitutional right by any custom or policy of the county.

 

Oral Arguments Before the U.S. Court of Appeals for the Fifth Circuit

On April 26, 2021, THOMAS P. BRANDT orally argued on behalf of McLennan County and its former district attorney in a case arising out of the “Battle at Twin Peaks” which occurred on May 17, 2015. The case, involving consolidated appeals, was heard by Chief Justice Priscilla Owens, Judge Edith Brown Clement, and Judge Stephen Higginson. See _Redding v. Swanton_, No. 20-50769 and _Wilson v. Stroman_, No. 20-50367. The central issue in these appeals concerns whether Plaintiffs adequately alleged that Defendants tainted the grand jury process which led to their indictments.

On August 4, 2021, FRANK VALENZUELA represented two teachers at oral argument before the Fifth Circuit Court of Appeals in a First Amendment case regarding the recitation of the Pledge of Allegiance by a public school student. We previously obtained qualified immunity and summary judgment for the teachers from a federal district court in Houston, and this oral argument was part of the student’s appeal of the district court’s decision.

On October 5, 2021, FRANK VALENZUELA represented an east Texas sheriff before the Fifth Circuit Court of Appeals in a case arising from a pre-trial jail detainee allegedly being sexually assaulted by a jailer. The plaintiff is claiming that the sheriff improperly hired and inadequately supervised the jailer. The sheriff is seeking the reversal of the federal district court’s denial of qualified immunity.

TEXAS INSURANCE LAW UPDATES

For FHMBK’s Coverage Group’s 2021 Insurance Law Updates, please click the links below:

• 2021 Texas Legislation – Recent Bills That Passed
• January 2021 Update
• February 2021 Update
• March 2021 Update
• April 2021 Update
• May 2021 Update

 

HONORS AND ANNOUNCEMENTS

Congratulations to THOMAS P. BRANDT and JOSHUA T. KUTCHIN for being named to the 2021 Texas Super Lawyers list. This is Tom’s 12th time being named to Texas Super Lawyers list and Josh’s 13th time.

Also, FHMBK congratulates THOMAS P. BRANDT and GEORGE LANKFORD for their inclusion in the 2022 edition of the Best Lawyers in America. Tom was recognized for his work in Education Law and Employment and Labor Litigation. George was recognized for his work in Insurance Law.

 

FHMBK is proud to announce that JOHN D. HUSTED was once again named to the Texas Rising Stars list for 2021. This list recognizes exceptional attorneys who are 40 or younger and/or have less than 10 years experience practicing law.

 

FHMBK is also proud to introduce the newest addition to the firm.  ANGELA PROMBERGER  joined us in the summer of 2021 as an associate.

Angela received her undergraduate degree in history from the University of Dallas and her law degree from Texas A&M University School of Law. Her practice areas include civil rights and employment litigation, municipal defense, school law, and appellate advocacy.

 

 

SPEECHES AND PRESENTATIONS

FRANK VALENZUELA and LAURA O’LEARY presented at the Advanced Government Law Course sponsored by the Government Law Section of the state bar. Frank and Laura spoke on the topic, “Transgender Issues of Importance to Governmental Entities.” The Course took place on July 29-30, 2021.

UPCOMING EVENTS

LAURA O’LEARY and FRANK VALENZUELA will be presenting at the Texas Public Charter Schools Conference, “Stronger Together.” Laura and Frank will be speaking on the topic, “Transgender Issues of Importance to Charter Schools—Latest Developments.” The Conference will take place on October 27-29, 2021.

FRANK VALENZUELA will serve on a panel discussing recent religious freedom decisions from the U.S. Supreme Court at the DFW Alliance for Religious Freedom Summit on Friday, October 29, 2021.

LAURA O’LEARY will once again serve on the planning committee for the University of Texas School Law Conference. The 2022 Conference is scheduled for February 17-18.

OUTSIDE THE FIRM

Congratulations to FRANK VALENZUELA for being ranked #1 for the U.S. Supreme Court’s October 2020 Term in FantasySCOTUS (https://fantasyscotus.net) , a fantasy league for predicting the votes of individual U.S. Supreme Court justices and case outcomes.

LAURA O’LEARY continues to pursue her passion of racing small sailboats. She and her sailing partner, Gene Soltero, have won five regattas so far this season. Here are Laura and Gene sailing on Lake Manawa in Council Bluffs, Iowa.