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Fanning Harper Martinson Brandt & Kutchin, P.C. is pleased to provide you with our Winter 2014 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, Special Education Law, School Law, Commercial Trucking Litigation, Premises Liability, Land Use, Zoning, and Regulatory Taking, Insurance Law, and Homeowners Association Law. Please call us with your questions or comments.




THOMAS P. BRANDT and FRANK VALENZUELA obtained an important appellate victory involving the Texas Whistleblower Act.  The Fort Worth Court of Appeals agreed with their argument that an employee does not properly initiate his employer’s internal grievance process, as required by the Whistleblower Act, if he lies to the employer about being happy with the actions it had taken to address his concerns, but then subsequently sued the entity on those very same grounds.  The court of appeals held that an employee does not properly initiate a grievance process if he interferes with the employer’s investigation by misleading the employer.

THOMAS P. BRANDT and JENNIFER KELLEY obtained an appellate victory for a risk pool that provides coverage for school districts and their employees in a case involving expunction.  The trial court, without notice or a hearing, ordered the risk pool to expunge its records of any documents relating to an arrest of one of its member’s employees.  The documents were necessary to ongoing litigation involving the risk pool and its member.  We filed an accelerated appeal, arguing lack of notice and an opportunity to be heard.  On February 3, 2014, the Dallas Court of Appeals reversed the trial court’s order and remanded for further proceedings consistent with its opinion, including that the risk pool be given reasonable notice of the new expunction hearing.


ROCKY LITTLE recently won a jury trial with a unanimous verdict in favor of the Defendants in a personal injury case involving a Plaintiff who suffered multiple fractures of both heels requiring several surgeries.  Although the Plaintiff sought to recover about $700,000, the jury found that the Defendants’ negligence, if any, did not proximately cause the occurrence.  Rather, the occurrence was caused by the Plaintiff’s own negligence.

THOMAS P. BRANDT and STEPHEN D. HENNINGER obtained a summary judgment in a case by a former student against a west Texas college. The Plaintiff alleged that the west Texas college violated his substantive due process rights by penalizing him for the late submission of a research paper in an English course, and assigning a failing grade for the paper. The Plaintiff claimed this resulted in a grade of D for the course, which in turn caused him to lose his football scholarship at the University of New Mexico.  The Court granted the west Texas college’s motion for summary judgment and dismissed Plaintiff’s lawsuit, finding he had failed to state viable claims. Previously, THOMAS P. BRANDT and JOSHUA SKINNER had obtained dismissal of Plaintiff’s claims against the individual professor who had made the grading decision.

THOMAS P. BRANDT and JOHN F. ROEHM III obtained a dismissal of a federal lawsuit against a North Texas County and its Sheriff.  Plaintiff alleged that the County and its Sheriff committed unlawful employment practices, discriminated against the Plaintiff on the basis of age and sex and retaliated against the Plaintiff in violation of Title VII and the Texas Labor Code.

FRANK VALENZUELA and LAURA O’LEARY obtained no-evidence summary judgments from a state district court in Tyler, Texas, for a golf club and two of its officers on invasion of privacy claims of intrusion upon seclusion and public disclosure of private facts.  The former employee-Plaintiff argued that the club and two of its officers invaded his privacy concerning sexted pictures and a video that were presented to the club and its officers by club members and which appear to have served as part of the bases for the Plaintiff’s ultimate termination.  Frank and Laura argued that the Plaintiff had no evidence to establish his claims, and the court agreed.

THOMAS P. BRANDT, STEPHEN D. HENNINGER, and JOHN HUSTED recently obtained a victory for a large North Texas city’s employee retirement fund. The Plaintiff was a former employee of the City who brought suit following a denial of ongoing disability benefits for an on-the-job injury. Plaintiff alleged the denial of his benefits was improper and sued on theories of negligence, violation of fiduciary duty, breach of contract, unjust enrichment, and violation of the due process protections of the Texas Constitution. Plaintiff sought at least $553,767.83 in damages. We filed a plea to the jurisdiction on the basis of various immunities, which the trial court granted, dismissing all claims against the Fund and its Board.

ROCKY LITTLE and JENNIFER KELLEY obtained a no-evidence summary judgment from a Tarrant County state district court for an owner and a property manager of an apartment complex  in a premises liability lawsuit. Parents of a twenty month old who fell from a third-floor apartment window that had been unlocked and opened by the child’s mother alleged that the apartment complex had a duty to install window locks/guards to restrict how high the window would open.  Rocky Little and Jennifer Kelley argued that the parents failed to produce any evidence that the apartment complex owed the parents such a duty, and the court agreed.

THOMAS P. BRANDT, STEVE D. HENNINGER, and JOHN HUSTED obtained a significant victory defending a major North Texas school district from a former school district administrator’s Title VI, Title VII, and ADEA claims of race and age-based discrimination and retaliation. A U.S. Magistrate Judge has recommended that summary judgment be granted and that the administrator take nothing by any of her claims.

THOMAS P. BRANDT and JOHN F. ROEHM III obtain dismissal for a Northeast Texas County and its district attorney and assistant district attorney in a case pending in the U.S. District Court, Northern District of Ohio. Plaintiff alleged that the assistant district attorney, along with a City police officer, placed false information in a national law enforcement database that Plaintiff’s vehicle was stolen which resulted in Plaintiff’s seizure and arrest in Ohio.  The assistant district attorney was sued for violating Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights under the U.S Constitution and the district attorney and County were sued under supervisory theories of liability.  The court granted their motions to dismiss.


On December 4, 2013, THOMAS P. BRANDT orally argued a case before the United States Court of Appeals for the Fifth Circuit in New Orleans.  The case, which has garnered national attention, involves the tragic death of a fourth grade boy who was found hanging in a school bathroom.  This widely publicized case involves allegations of bullying and alleged failures of school officials to properly handle the boy’s special education needs.  After we obtained a summary judgment victory before the trial court, the Plaintiffs appealed.  On appeal, the United States Department of Justice intervened on behalf of the Plaintiffs and participated in the oral argument before the Fifth Circuit.  In light of the significance of the case and the national attention it has gained, the National School Board Association filed a brief in support of our position on appeal.  This case, when decided, should clarify issues regarding the interpretation of Section 504 of the Rehabilitation Act and of 42 U.S.C. §1983.

On January 9, 2014, DON MARTINSON argued a case pending before the Supreme Court of Texas.  The appeal arises from a contract between Texas cotton farmers and a national cotton buyer that includes a mandatory arbitration agreement.  The court of appeals affirmed the trial court’s ruling that the arbitration agreement in the contract was substantively unconscionable, and it concluded that the cotton buyer had waived its right to ask that any unconscionable terms in the arbitration agreement be severed by failing to raise the issue in the trial court. The issues before the Supreme Court of Texas are: (1) whether a provision in an arbitration agreement can be held to be unconscionable without a showing of actual prejudice and (2) whether the right to severance can be waived if it is not raised in the trial court by the party seeking to sever the unconscionable provisions and enforce the remaining provisions of an arbitration agreement.  The case being argued is Venture Cotton Cooperative et al. v. Freeman et al, case number 13-0122, in the Supreme Court of Texas.  To view the oral argument in its entirety, click here.

On February 5, 2014, THOMAS P. BRANDT orally argued the latest installment of the Candy Cane Case before the United States Court of Appeals for the Fifth Circuit in New Orleans.  This appeal involves a parent-to-parent free speech claim brought by Doug Morgan against elementary school principal Lynn Swanson.  Mr. Morgan contends that Ms. Swanson violated his rights when she told him that he would need to place his “Legend of the Candy Cane” laminated bookmarks on a table in the school library as opposed to passing them out to other parents at the school- sponsored party in the 3rd grade classroom.  The district court granted Ms. Swanson qualified immunity and Mr. Morgan appealed.


LAURA O’LEARY and AMANDA BIGBEE, General Counsel for Keller Independent School District, gave a joint presentation entitled “Section 504 Litigation:  A Moving Target” at the Great Ideas Convention sponsored by the Texas Council of Administrators of Special Education.  This convention was held in Austin January 21-23, 2014. For link to the presentation paper, click here.

JOSHUA SKINNER has, once again, been asked to speak to the annual State Bar Bill of Rights Conference in May. Josh will be speaking on the topic of criminal law update.


FHMBK is proud to announce that DON MARTINSON and BARRY FANNING have recently celebrated their 40th anniversary in the practice of law with the firm.  Don and Barry were classmates in the November 1973 graduating class of the Baylor University School of Law and immediately began their legal careers with the firm when it was then known as “Fanning and Harper.”  Barry distinguished himself as an outstanding trial lawyer and has enjoyed numerous successful results for the firm and our clients.  Don has distinguished himself not only in the court room but has developed a state wide reputation as an insurance coverage and appellate attorney appearing numerous times before various Courts of Appeal and  the Texas Supreme Court. Congratulations to Don and Barry on this milestone in their careers.

On February 20 and 22, 2014, NICHOLE PLAGENS helped judge the Region 10 39th Annual National Trial Competition held at the Tarrant County Family Law Center.  One winning team will advance to the national competition to be held in Austin, TX, March 26 -30, 2014.