2011-64922 / Court: 055

Filed 11 October 25 P5:04

Chris Daniel - District Clerk
Harris County
ED101J016561519
By: Nelson Cuero

CAUSE NO. _________________

v.
LEAH SCHENK, M.D., OBSTETRICAL &
GYNECOLOGICAL ASSOCIATES, PLLC,
FEMPARTNERS, INC., FERTILITY
SPECIALISTS OF HOUSTON, PLLC,
TEXAS ANDROLOGY SERVICES, LLC,
AND TOBIE DEVALL

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

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LAYNE HARDIN AND KATHERINE

LEBLANC

_______ JUDICIAL DISTRICT

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PLAINTIFFS ORIGINAL PETITION

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TO THE HONORABLE JUDGE OF SAID COURT:

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Come now, Layne Hardin and Katherine LeBlanc, Plaintiffs, and files this Original

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Petition complaining of: Leah Schenk, M.D., Obstetrical & Gynecological Associates, PLLC,

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FemPartners, Inc., Fertility Specialists of Houston, PLLC, Texas Andrology Services, LLC, and

I. Parties

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Tobie Devall, Defendants, and for causes of action show the following:

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Plaintiff Layne Hardin is an individual residing in Sulphur, Calcasieu Parish, Louisiana.

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Plaintiff Katherine LeBlanc is an individual residing in Sulphur, Calcasieu Parish,

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Louisiana.

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Defendant Leah Schenk, M.D., is an individual and a physician duly licensed to practice

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medicine in the State of Texas. Defendant resides in Harris County, Texas, and can be served at
her place of business located at 7900 Fannin Street, Houston Texas 77054.
Defendant, Obstetrical & Gynecological Associates, PLLC, is a Texas Professional
Limited Liability Company, with an office located at 7900 Fannin, Houston, Texas 77054,
which can be served with service of process by serving its registered agent, S. Mark Cone, 7900
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Fannin, Ste. 3030, Houston, Texas 77054. Obstetrical & Gynecological Associates, PLLC
(OGA) is a professional limited liability company located in Houston, Harris County, Texas.
OGA is a superficially distinct entity that is sufficiently interrelated with FemPartners, Inc. so as
to constitute a single, integrated enterprise.

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Defendant, FemPartners, Inc. (FemPartners) is a foreign business corporation

organized and existing under the laws of the State of Delaware with an office at 1300 Post Oak
Blvd, #600, Houston, Texas 77056, which may be served by serving its registered agent for

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service of process, Jack T. Thompson, 1300 Post Oak Blvd., #600, Houston, Texas 77056.

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FemPartners, Inc. is a superficially distinct entity that is sufficiently interrelated with OGA so as

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to constitute a single, integrated enterprise.

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Defendant, Fertility Specialists of Houston, PLLC (Fertility Specialists), is a Texas

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Professional Limited Liability Company, with an office located at 7900 Fannin Street, Houston

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Texas 77054, which may be served by serving its registered agent for service of process,

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Obstetrical and Gynecological Associates, PLLC, 7900 Fannin, Ste. 3030, Houston, Texas

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77054. Fertility Specialists of Houston is an affiliate of OGA.

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Defendant, Texas Andrology Services, LLC, (Texas Andrology) is a Texas limited

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liability company, with an office located at 7900 Fannin, #1030, Houston, TX 77054, which may

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be served by serving its registered agent for service of process, Obstetrical and Gynecological
Associates, PLLC, 7900 Fannin, Ste. 3030, Houston, Texas 77054.
Defendant, Tobie Devall is an individual residing in Sulphur, Calcasieu Parish,

Louisiana and can be served at her place of business at 2244 Swisco Road, Sulphur, Louisiana,
70665.

II. Discovery
Plaintiffs intend to conduct discovery under Level 3 of Texas Rules of Civil Procedure
190.4.
III. Venue and Jurisdiction

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Venue is proper in Harris County, Texas because all or a substantial part of the events
giving rise to this litigation occurred in Harris County, Texas. This court has jurisdiction over
this matter because the amount in controversy is within the jurisdictional limits of the District

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IV. Facts

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in the State of Texas and has an office in Houston, Texas.

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Courts of Harris County, Texas. Defendant FemPartners, Inc. is a foreign corporation registered

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On or about January 25, 2002, Layne Hardin (Layne) and Katherine LeBlanc

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(Kathy), his domestic partner at the time, went to West Houston Fertility Center (WHFC),

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now Texas Andrology, for the purpose of storing Laynes sperm prior to his undergoing a

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vasectomy. Layne and Kathy entered into an agreement with WHFC for sperm cryopreservation

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and the agreement included consent for sperm cryopreservation and four separate and distinct

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instructions regarding the clients wishes as to the disposal and use of the stored sperm. The

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stated purpose of the signed and initialed consent and instructions was to provide WHFC with

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legally binding directions and guidance concerning [the clients] wishes. The consent states,
among other things, the following:
Unless otherwise instructed by a written agreement and delivered to West
Houston Fertility Center, Ltd.,
I, Layne Hardin (patient-male) hereby indicate my wishes for disposition of sperm
on the following specified contingencies:
1. In the event of the death, I wish the frozen sperm to be:
Placed in the Decisional Authority of Surviving Partner, Kathy Leblanc.
2. In the event of dissolution of couple or divorce, the frozen sperm will be:
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Placed in the Decisional Authority of Kathy LeBlanc.

3. In the event of failure to pay storage fees, provide address information to West
Houston Fertility Center, or expiration of the storage period, the sperm will be Discarded.
4. In the event of death of both male and female partners, the frozen sperm will be:
Discarded.
The WHFC representative, Connie Riegel, quickly went over the agreement and both Layne and

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Kathy initialed each of the four separate and distinct instructions and both signed the consent on
January 25, 2002 along with WHFC representative. On this date, Layne stored eight vials of
sperm with WHFC.

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On or about February 2006, Kathy LeBlanc and Layne ended their relationship.

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At some point, Layne and Tobie Devall began their relationship as domestic partners.

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On or about March 3, 2008, Layne and Tobie Devall consulted with Dr. Leah Schenk of

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OGA regarding Tobie Devalls chances of getting pregnant with insemination.

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Tobie continued to visit Dr. Schenk without Layne being present.

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At no time did Layne give written agreement to the insemination of Tobie Devall with his

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sperm.

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At no time did Layne give consent for Tobie Devall to be inseminated with his sperm that

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was being cryo-preserved.

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On or about January 2009 through May 2009, Layne and Tobie Devall were no longer

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domestic partners and were dating other people.

On or about June 2009 through October 20, 2009 Layne and Tobie Devall were dating
but were not domestic partners.
On or about October 20, 2009, Layne and Tobie Devall were no longer dating.
On or about November 19, 2009, Tobie Devall announced to Layne that she was pregnant
with his child and that she was inseminated on October 26, 2009.
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Kathy was not contacted for her consent to release the sperm to OGA or Dr. Schenk.
In December, 2009 Tobie Devalls pregnancy was confirmed by a pregnancy test. Shortly
thereafter, Layne called Dr. Schenks nurse and was told that he had six remaining vials of sperm
left in storage and she confirmed that two vials were used to inseminate Tobie Devall.

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In July 2010, a baby boy was born as a result of this insemination and his mother, Tobie
Devall, refuses to include Layne, the biological father, in the childs life.

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V. Count One Suit for Ordinary Negligence Against Dr. Leah Schenk, Individually,
Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc., Fertility Specialists of
Houston, PLLC, Texas Andrology Services, LLC and Tobie Devall

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Pursuant to Rule 28 of the Texas Rules of Civil Procedure, suit is brought against Dr.

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Leah Schenk, Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc.,

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Fertility Specialists of Houston, PLLC, Texas Andrology Services, LLC, and Tobie Devall.

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Pursuant to Rule 28, said Defendants are required to identify their true names.

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Plaintiffs sue Schenk, et al and Tobie Devall for ordinary negligence.

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Defendant Texas Andrology, formerly WHFC, owed a duty to Plaintiffs, as parties to a

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written agreement, to perform the services as contracted. The contract was for storage and

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disposition, as directed in the agreement. Texas Andrology breached that duty by failing to

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exercise reasonable care to avoid a foreseeable risk of injury to others. Texas Andrology

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negligently released the sperm, which was the subject of the agreement, to Dr. Schenk, Fertility
Specialists and OGA. Defendant Texas Andrologys breach proximately caused Plaintiffs
economic and emotional injury.
Defendant Dr. Schenk, Fertility Specialists and OGA owed a duty to Plaintiffs to exercise
reasonable care to avoid a foreseeable risk of injury to others. Dr. Schenk, Fertility Specialists,
and OGA knew of the risk of injury to Plaintiffs if they did not exercise reasonable care in
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obtaining the sperm that was the subject of the cryo-preservation agreement. Defendant Dr.
Schenk, Fertility Specialists and OGA breached this duty by failing to review the consent
agreement on file or failing to honor the consent agreement. Furthermore, Dr. Schenk, Fertility
Specialists and OGA breached this duty by failing to secure Plaintiffs consent to modify the

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original agreement. Defendants Dr. Schenk, Fertility Specialists and OGAs breach proximately
caused Plaintiffs economic and emotional injury.

Defendant FemPartners, as managing company for OGA, owed a duty to Plaintiffs to

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exercise reasonable care to avoid a foreseeable risk of injury to others. FemPartners, Inc. knew of

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the risk of injury to Plaintiffs if they did not exercise reasonable care in managing the OGA

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clinic and establishing policies and procedures that safeguard individuals. FemPartners breached

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this duty when the consent and disposition agreement between WHFC and Plaintiffs was not

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honored and one of OGAs patients was inseminated with sperm which was wrongfully and

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negligently obtained from Texas Andrology. Defendant FemPartnerss breach proximately

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caused Plaintiffs economic and emotional injury.

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Defendant Tobie Devall, as an individual, owed a duty to Plaintiffs to exercise reasonable

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care to avoid a foreseeable risk of injury to others. Tobie knew of the risk of injury to Plaintiffs if

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she did not exercise reasonable care in obtaining consent to use the cryo-preserved sperm which

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was not hers to have. Tobie breached this duty by authorizing the insemination and receiving the
insemination which resulted in the birth of a child. Defendant Tobie Devalls breach proximately
caused Plaintiffs to suffer economic and emotional injury as a result of her actions.

VI. Count Two Suit for Gross Negligence Against Dr. Leah Schenk, Individually, Obstetrical
& Gynecological Associates, PLLC, FemPartners, Inc., Fertility Specialists of Houston, PLLC,
Texas Andrology Services, LLC, and Tobie Devall

Pursuant to Rule 28 of the Texas Rules of Civil Procedure, suit is brought against Dr.

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Leah Schenk, Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc.,
Fertility Specialists of Houston, PLLC, Texas Andrology Services, LLC, and Tobie Devall.
Pursuant to Rule 28, said Defendants are required to identify their true names.

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Plaintiffs sue Schenk, et al and Tobie Devall for gross negligence. Defendants actions

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amounted to gross negligence. The Defendants acts or omissions, when viewed objectively from

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the defendants standpoint, involved an extreme degree of risk, and the defendants had actual,

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subjective awareness of the risk but proceeded with a conscious indifference to the rights, safety,

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or welfare of others.

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Defendants gross negligence proximately caused Plaintiffs economic and emotional

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injury.

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VII. Count Three - Suit for Negligent Misrepresentation Against

Texas Andrology Services, LLC

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Plaintiffs sue Defendant Texas Andrology for negligent misrepresentation.

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Defendant Texas Andrology, formerly WHFC, materially represented to Plaintiffs in the

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course of defendants business that the sperm would be stored and only used or discarded
according to the consent and disposition agreement. This material representation was false
because Texas Andrology released two vials of the sperm to Dr. Schenk, Fertility Specialists and
OGA without Plaintiffs consent and outside the consent and disposition agreement. Defendant
Texas Andrology did not exercise reasonable care or competence in communicating this
information to Plaintiffs as they were entering into the agreement with defendant. Plaintiffs
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relied on Defendant Texas Andrologys material representations and Plaintiffs acted in reliance
to these material representations. Defendant Texas Andrologys negligent misrepresentations
proximately caused Plaintiffs economic and emotional injury.
VIII. Count Four - Suit for Fraud in the Inducement Against Texas Andrology Services, LLC

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Plaintiffs sue Defendant Texas Andrology for fraud in the inducement.

Defendant Texas Andrology made a representation to Plaintiffs, at the time the contract
was entered into, that the eight vials of sperm would be stored and disposed of as agreed in the

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January 25, 2002 agreement. The Texas Andrology representative, quickly and without detail,

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explained the four contingencies and asked the Plaintiffs to initial and sign the agreement. Texas

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Andrology stated the agreement was legally binding and would be followed when in practice

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Texas Andrology knew at the time this was a false statement and that their policies and practices

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were faulty and that there were no safeguards protecting the patients wishes and directives.

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Texas Andrology made these representations with the intent that Plaintiffs act on it. As a result

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of Texas Andrologys fraud, Plaintiffs suffered economic and emotional injury.

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IX. Count Five - Suit for Violation of the Texas Deceptive Trade Practices Act (DTPA) Against
Dr. Leah Schenk, Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners,
Inc., Fertility Specialists of Houston, PLLC, and Texas Andrology Services, LLC

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Pursuant to Rule 28 of the Texas Rules of Civil Procedure, suit is brought against Dr.

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Leah Schenk, Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc.,
Fertility Specialists of Houston, PLLC, and Texas Andrology Services, LLC, hereinafter
collectively referred to as Schenk, et al. Pursuant to Rule 28, said Defendants are required to
identify their true names.
Plaintiffs bring suit for false, misleading, and deceptive practices under the Texas
Deceptive Trade Practices Act (DTPA).

Plaintiffs are consumers under the Texas DTPA

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because plaintiffs are individuals who sought or acquired services by purchase. Schenk, et al
violated the Texas DTPA because Schenk, et al engaged in false, misleading, or deceptive acts or
practices that Plaintiffs relied on to their detriment.
Specifically, Texas Andrology represented that the services purchased had characteristics

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which they did not have. Texas Andrology represented, among other things, that the sperm
would be stored and disposed of as agreed and that the sperm was rightfully obtained and
inseminated.

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In addition, Texas Andrology violated DTPA because they made a representation to

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Plaintiffs that the eight vials of sperm would be stored and disposed of as agreed in the January

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25, 2002 agreement. The WHFC representative, quickly and without detail, explained the four

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contingencies and asked the Plaintiffs to initial and sign the agreement. Texas Andrology stated

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that the agreement was legally binding and would be followed when in practice Texas Andrology

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knew at the time that this was a false statement and that their policies and practices were faulty

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and that there were no safeguards protecting the patients wishes and directives. Texas

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Andrology made these representations with the intent that Plaintiffs act on it and Plaintiffs relied

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upon them to their detriment.

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Defendants Dr. Schenk, Fertility Specialists, OGA, FemPartners and Texas Andrology

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(Schenk, et al) violated DTPA because of their unconscionable actions or course of actions.
Defendant Texas Andrology released the cryo-preserved sperm that was in their safekeeping to
Dr. Schenk and OGA in violation of the contract between Texas Andrology and Plaintiffs.
Defendants Dr. Schenk, Fertility Specialists and OGA obtained the sperm without reviewing the
consent for disposition of the sperm and inseminated the wrongfully obtained sperm. Defendant
FemPartners, Inc. established policies and procedures which promoted and allowed the practice
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of obtaining and inseminating wrongfully obtained sperm by physicians in their managed clinics,
specifically Dr.Schenk and Fertility Specialists practicing in OGA.
Because Defendant Schenk, et al acted knowingly and intentionally, Plaintiffs are entitled
to recover treble damages under Texas DTPA, Texas Business & Commerce Code section

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17.50(b)(1).

Schenk, et als conduct was a producing cause of the economic damages incurred by
Plaintiffs.

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Schenk, et als conduct was a producing cause of mental anguish suffered by Plaintiffs,

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for which Plaintiffs are entitled to recover damages. Schenk, et als conduct was committed

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knowingly because, at the time of the acts and practices complained of, Schenk, et al had actual

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awareness of the falsity, deception, or unfairness of the acts or practices giving rise to Plaintiffs

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claim. Schenk, et als conduct was committed intentionally because, at the time of the acts and

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practices complained of, Schenk, et al had actual awareness of the falsity, deception, or

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unfairness of the act or practice and acted with a specific intent that Plaintiff act in detrimental

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reliance on the falsity or deception.

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X. Count Six - Suit for Intentional Infliction of Emotional Distress Against Dr. Leah Schenk,
Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc., Fertility
Specialists of Houston, PLLC, Texas Andrology Services, LLC, and Tobie Devall

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Pursuant to Rule 28 of the Texas Rules of Civil Procedure, suit is brought against Dr.
Leah Schenk, Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc.,
Fertility Specialists of Houston, PLLC, and Texas Andrology Services, LLC, hereinafter
collectively referred to as Schenk, et al. Pursuant to Rule 28, said Defendants are required to
identify their true names.
Plaintiffs sue Schenk, et al and Tobie Devall for intentional infliction of emotional
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distress. Defendant Texas Andrology recklessly or intentionally released the cryo-preserved

sperm that was in their safekeeping to Dr. Schenk and OGA in violation of the contract between
Texas Andrology and Plaintiffs. Defendants Dr. Schenk, Fertility Specialists and OGA recklessly
or intentionally obtained the sperm without reviewing the consent for disposition of the sperm

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and inseminated the wrongfully obtained sperm. Defendant FemPartners, Inc. recklessly or
intentionally promoted and allowed the practice of obtaining and inseminating wrongfully
obtained sperm by physicians in their managed clinics, specifically Dr.Schenk and Fertility

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Specialists practicing in OGA. Defendant Tobie Devall recklessly or intentionally requested the

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sperm, allowed the procurement and received insemination of the wrongfully procured sperm.

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There were eight vials of frozen sperm in cryo-storage for disposition by Plaintiffs as

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they directed and now Plaintiffs have only six vials of frozen sperm. The two vials of sperm

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cannot be returned or replaced. Defendant Schenk, et als and Defendant Tobie Devalls conduct

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was extreme and outrageous in character, and so extreme in degree, as to go beyond all possible

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Defendants conduct proximately caused Plaintiffs damage in that it caused

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bounds of decency, as to be regarded as atrocious and utterly intolerable in a civilized

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Plaintiffs to suffer severe emotional distress. In particular, Defendants conduct was the direct

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and proximate cause of severe disappointment, indignation, wounded pride, shame, despair,

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humiliation, and grief. In addition to severe emotional distress, the Plaintiffs have suffered in the
past and will continue to suffer additional damages as a proximate result of Defendants conduct
in that, in all reasonable probability, Plaintiffs will continue to suffer this mental pain and
anguish for a long time into the future. There is no alternative cause of action that would provide
a remedy for the severe emotional distress caused by the Defendants conduct.

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XI. Count Seven - Suit for Breach of Contract Against Texas Andrology Services, LLC.
Plaintiffs sue Texas Andrology for breach of contract.
Plaintiffs went to West Houston Fertility Center (WHFC), now Texas Andrology
Services, LLC, for the purpose of storing Laynes sperm prior to his undergoing a vasectomy.

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Plaintiffs entered into an agreement with WHFC for sperm cryopreservation and the agreement
included consent for sperm cryopreservation and four separate and distinct instructions regarding
the patients wishes as to the disposal and use of the stored sperm. The stated purpose of the

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signed and initialed consent and instructions was to provide WHFC with legally binding

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directions and guidance concerning [the patients] wishes. The consent states, among other

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things, the following:

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Unless otherwise instructed by a written agreement and delivered to West

Houston Fertility Center, Ltd.,
I, Layne Hardin (patient-male) hereby indicate my wishes for disposition of sperm
on the following specified contingencies:
1. In the event of the death, I wish the frozen sperm to be:
Placed in the Decisional Authority of Surviving Partner, Kathy Leblanc.
2. In the event of dissolution of couple or divorce, the frozen sperm will be:
Placed in the Decisional Authority of Kathy LeBlanc.
3. In the event of failure to pay storage fees, provide address information to West
Houston Fertility Center, or expiration of the storage period, the sperm will be Discarded.
4. In the event of death of both male and female partners, the frozen sperm will be:
Discarded.

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The consent was signed on January 25, 2002 by Plaintiffs along with WHFC representative

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Connie Riegel. On this date, Layne stored eight vials of sperm with WHFC. Layne paid for the
first year of storage and has continued to pay for storage according to the contract.
Texas Andrology breached this contract by releasing for insemination two vials of the
cryo-preserved sperm without Plaintiffs consent as directed by the January 25, 2002 agreement.
Because Texas Andrology breached the contract, Plaintiffs have suffered emotional
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damages and economic damages.

XII. Count Eight - Suit for Civil Conspiracy Against Dr. Leah Schenk, Individually, Obstetrical
& Gynecological Associates, PLLC, FemPartners, Inc., Fertility Specialists of Houston, PLLC,
Texas Andrology Services, LLC and Tobie Devall
Pursuant to Rule 28 of the Texas Rules of Civil Procedure, suit is brought against Dr.

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Leah Schenk, Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc.,
Fertility Specialists of Houston, PLLC, and Texas Andrology Services, LLC, hereinafter
collectively referred to as Schenk, et al. Pursuant to Rule 28, said Defendants are required to

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identify their true names.

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Defendants Dr. Leah Schenk, OGA, FemPartners, Fertility Specialists, Texas Andrology

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and Tobie Devall acted in tandem (two or more persons acted together) to engage in false,

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misleading, or deceptive acts or practices. Specifically, Defendants represented that the services

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purchased had characteristics which they did not have. Defendants represented, among other

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things, that the sperm would be stored and disposed of as agreed and that the sperm was

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rightfully obtained and inseminated. Defendants established these practices and policies and

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were aware of the application and the resulting risks to the patients/clients/Plaintiffs. Defendants

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fraudulently induced Plaintiffs to enter into a safekeeping agreement knowing that the practices

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patients/clients/Plaintiffs. Furthermore, Defendants acted with gross negligence.

In furtherance of the conspiracy, Texas Andrology fraudulently induced Plaintiffs to enter
into a contract and either intentionally or recklessly released the sperm which it should have held
in safekeeping for Plaintiffs. Dr. Schenk, Fertility Specialists and OGA, either intentionally or
recklessly, wrongfully obtained and inseminated the sperm. FemPartners either intentionally or
wrongfully established the policies and procedures that allowed the wrongful procurement and
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insemination of the sperm and managed the clinic which acted on this conspiracy. Furthermore,
Tobie Devall intentionally or recklessly requested the insemination of the wrongfully procured
sperm and completed the conspiracy against the Plaintiffs.

Defendants benefited financially from the conspiracy.

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There was a meeting of the minds on the course of action, or in this case mis-action.

As a result of Defendants civil conspiracy to commit false, misleading, or deceptive acts

or practices, in addition to fraudulently inducing Plaintiffs to enter into a safekeeping agreement,

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and to act with gross negligence, Plaintiffs suffered economic and emotional damages.

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XIII. Count Nine - Suit for Conversion Against Dr. Leah Schenk, Individually, Obstetrical &
Gynecological Associates, PLLC, FemPartners, Inc., Fertility Specialists of Houston, PLLC,
Texas Andrology Services, LLC and Tobie Devall

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Pursuant to Rule 28 of the Texas Rules of Civil Procedure, suit is brought against Dr.

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Leah Schenk, Individually, Obstetrical & Gynecological Associates, PLLC, FemPartners, Inc.,

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Fertility Specialists of Houston, PLLC, and Texas Andrology Services, LLC, hereinafter

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collectively referred to as Schenk, et al. Pursuant to Rule 28, said Defendants are required to

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identify their true names.

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Plaintiff Kathy LeBlanc sues Defendant Schenk, et al and Defendant Tobie Devall for

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conversion.

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As a result of the dissolution of Layne and Kathys relationship, Kathy had decisional
authority granted by the January 25, 2002 agreement between Kathy, Layne and Texas
Andrology, formerly WHFC, over eight vials of Laynes sperm. The eight vials of cryopreserved sperm were her personal property, by agreement and circumstances, and she had the
exclusive right of possession of all eight vials.

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Defendant Schenk, et al, who legally acquired possession of Plaintiffs sperm, wrongfully
exercised dominion and control over the property by using it in a way that departed from the
conditions under which it was received.
Defendant Tobie Devall wrongfully exercised dominion over Plaintiffs sperm when she

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asked Defendant Schenk, et al to inseminate her after the break-up of her relationship with
Plaintiff Layne Hardin.

Defendant Schenk, et als acts and Defendant Tobie Devalls acts amounted to a clear

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repudiation of Plaintiff's rights and a demand for the return of the property would have been

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useless so a demand for the return of the property is not required.

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Defendant Tobie Devall maliciously converted Plaintiffs property when she wantonly

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and maliciously appropriated the sperm which was not hers to have or use, and was impregnated,

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and delivered a child.

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Defendants wrongful acts proximately caused injury to Plaintiff, which resulted in the

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loss of the use of the two vials of sperm.

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As a direct and proximate cause of Defendants negligent and intentional acts, Plaintiffs

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suffered great mental pain and anguish, and in all reasonable probability will continue to suffer

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in this manner for a long time into the future, if not for the balance of their natural life. By
reason of the injuries described above, Plaintiffs have suffered losses and damages in a
reasonable sum that far exceed the minimum jurisdictional limits of the Court, and Plaintiffs sue
these defendants, jointly and severally, for this sum.
XV. Attorney Fees
Plaintiffs are entitled to recover reasonable and necessary attorney fees against Schenk, et
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al under Texas Business and Commerce Code, Section 17.50(d) and under the Attorney-fees-as
damages theory (see Turner v. Turner, 385 S.W.2d 230, 234 (Tex. 1964); Lesikar v. Rappeport,
33 S.W.3d 282, 306 (Tex.App.Texarkana 2000, n.p.h.).
Plaintiffs ask for attorneys fees for violations of DTPA when they committed fraudulent

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misrepresentation. Defendants acted knowingly and intentionally and as such Plaintiffs are
entitled to recover treble damages under Texas Deceptive Trade Practices Act, Texas Business &
Commerce Code Section 17.50(b)(1).

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The recovery, as damages, of attorney fees is allowed under equitable grounds because

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the Plaintiff was required to prosecute and defend litigation as a consequence of the wrongful

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acts of the Defendants. This suit would have never been brought but for the wrongful and

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negligent acts of Schenk, et al.

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XVI. Demand for Jury

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Plaintiff demands a jury trial and tenders the appropriate fee.

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XXVII. Prayer for Relief

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For these reasons, Plaintiff asks that Defendants be cited to appear and answer and the court

ial

a) Economic;

C

award the following damages:

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of

fic

b) Mental anguish and emotional;

c) Exemplary;
d) Treble damages under DTPA;
e) Prejudgment and postjudgment interest on past and future damages for all claims
f) Reasonable and necessary attorney fees per Business and Commerce Code Sec. 17.50(c)
& (d) and per equity, attorney-fees-as-damages theory (see Turner v. Turner, 385 S.W.2d
16

230, 234 (Tex.1964); Lesikar v. Rappeport, 33 S.W.3d

.3d 282, 306 (Tex.App.Texarkana
(Tex.App.
2000, n.p.h.); and reasonable and necessary attorney fees per CPRC Section 38.001(8)
(breach of an oral or written contract);
g) Costs of suit;

ist
ric
tC
ler
k

h) All other relief, in law and in equity, to which Plaintiffs may be entitle.

Respectfully submitted,

lD

THE BERNSEN LAW FIRM

Michelle R. Brister
State Bar No. 24043488
2626 Calder, Suite 102
Beaumont, Texas 77702
Tel: (409)832-2233
Fax: (409)832-2299
ATTORNEYS FOR PLAINTIFFS

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of

fic

ial

C

op
y

O

ffic

e

of

C

hr

is

Da

nie

David E. Bernsen
State Bar No. 02217500
Christine Stetson
State Bar No. 00785047
Deborah L. Verret
State Bar No. 24072405
420 North MLK, Jr. Parkway
Beaumont, Texas 77701
409-212-9444
409-212-9411 (FAX)

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