INTERESTING CASES: July 5, 2017

Sallee S. Smyth

1.Hardin v. Obstetrical & Gynecological Assoc. P.A., 2017 Tex. App. LEXIS 5159 (Tex. App. – Houston [1st Dist.] June 6, 2017)(Cause No. 01-15-01004-CV)

Layne and Katherine had one child together and lived in a small community in Lousiana. Layne decided to have a vasectomy but the couple agreed to freeze and store some of Layne’s sperm in the event they wanted to consider having more children in the future. The couple entered a storage contract with OGA, a cryopreservation lab in Houston, and stored 8 vials of Layne’s sperm. The contract provided that if the couple separated, Katherine would have exclusive control over decisions regarding the use of Layne’s sperm. Several years later Layne began a relationship with Tobie, a young woman from their community and this affair ended Layne and Katherine’s relationship. Layne and Tobie discussed having a child but Tobie has concerns about her fertility. Tobie became aware that Layne had sperm stored at OGA and she and Layne consulted with OGA about the possibility of becoming pregnant. Layne and Tobie eventually separated without any plans or agreements to have children. Tobie on her own began fertility treatments. Layne and Tobie briefly reconciled but separated again permanently. Thereafter, Tobie went to OGA and obtained two vials of Layne’s sperm which she used for insemination and she became pregnant. According to Layne and Katherine, neither of them gave Tobie consent to use the sperm. The news of Tobie’s pregnancy was upsetting to both Layne and Katherine. Tobie apparently claimed to members of the small community that Layne had consented to her use of his sperm. Tobie entered into a new relationship and eventually married. She did not allow Layne to participate in the birth and she rebuffed his efforts to have a relationship with the child. Layne admittedly avoided Tobie and the child around the community. Tobie’s husband sought to adopt the child under Louisiana law and Layne opposed it but the trial court in that proceeding found that Layne had not asserted any real effort to have a relationship with the child and terminated his rights. Ultimately, Layne sued Tobie for IIED and sued OGA for breach of contract. Katherine sued Tobie for IIED and conversion and sued OGA for breach of contract and conversion. The case was ultimately tried to a jury who reached a verdict in favor of Layne and Katherine on their claims and awarded damages. The court granted a JNOV as to damages for the IIED claims, determining that there can be no mental anguish damages awarded as compensation for the birth of a healthy child. The court sustained the verdict on liability and Layne and Katherine appealed. The COA considered two competing principles of law. First, Texas law recognizes that victims of conduct that is utterly intolerable in a civilized community should have a reasonable opportunity to redress their injuries. Second, Texas law holds that mental anguish stemming from the birth of a healthy child is not a compensable injury. The COA evaluated each of these principles and determined that the intrinsic value of human life, the importance of promoting stable, the inherent difficulty in proving damages under such circumstances and the public policy against mental anguish damages for the birth of a health child all outweighed a person’s right to seek damages for IIED under the circumstances presented in this case. The COA was not asked to address whether genetic material, such as sperm, is considered property for purposes of the tort of conversion. The COA did recognize that Layne had asserted mental anguish damages beyond those that stemmed solely from the child’s conception and birth and that based on evidence supporting liability as to Tobie and OGA, the issue of damages should be remanded. As far as Katherine was concerned, she had no genetic ties to the child and thus the COA found that her mental anguish damages for IIED relating to the child’s birth were likewise barred on public policy grounds but also her mental anguish damages regarding conversion were too speculative. As to Layne and Katherine’s breach of contract claims against OGA the COA found that they could not recover mental anguish damages relating to the child’s conception, birth, existence or rearing, but stopped short of holding that mental anguish damages would be precluded in all circumstances surrounding similar contracts for the storage and use of genetic materials. The case was remanded as to Layne’s mental anguish damage claims against Tobie for her other conduct outside of the conception and birth of the child which the jury had found injurious. All other aspects of the judgment were affirmed.

2.In re Eddins,2017 Tex. App. LEXIS 5140 (Tex. App. – Dallas June 6, 2017, orig. proceeding) (mem. opinion) (Cause No. 05-16-01451-CV)

H and W had two children. The divorced in 2015 based on the terms of a MSA which designated them as JMC, W having primary rights, H was given a SPO and paid guideline child support plus $13,000 per month towards the children’s competitive rodeo activities. In 2016 H filed an enforcement petition against W and a MTM, seeking equal possession time and requested orders to facilitate communications between the parties regarding the children. Over the next two months the parties reached various agreements regarding their communications, W’s communications with H’s new wife (W2), counseling for the children, terms for neutral exchange locations and make-up visits for H. H then amended his enforcement petition three separate times, asserting violations against W dating back to 2015 regarding missed visitations and multiple charges connected with W’s alleged vulgar texting, derogatory comments and bad behaviors in front of the children. H asked that W be held in contempt for her verbally abusive behavior and other violations, claiming that W was engaging in a pattern of alienating the children from him. Although H’s enforcement action and his MTM did not contain any request for a change in conservatorship or contain the statutory affidavits that might have permitted such relief under temporary orders, at the end of the enforcement hearing the trial court held W in contempt and ordered immediate possession of the children to H until further order of the court. The next day H filed an amended MTM with the requisite affidavit seeking temporary SMC. The court held a temporary hearing three days later on H’s motion and found that H should be named temporary SMC and that retaining possession of the children with W would ensure that they had no relationship with their father and this was not in their best interest. The court ordered a child custody evaluation and signed a separate order holding W in contempt and awarding H fees. W sought mandamus relief. The COA found that the trial court’s initial orders at the conclusion of the enforcement hearing were void since they were not supported by the pleadings and were issued without notice to W of those claims. The COA further found that the evidence did not support a finding of significant impairment warranting a temporary change in custody. The COA noted that to support such finding there must be evidence of bad acts or omissions committed against the children. The COA cited to cases holding that the acts of a parent justifying such a finding normally involve bad acts that are more grave then mere violations of a court order or alienation of a child from a parent, unless it is proven to be extreme. Here the COA found that the evidence only supported a dysfunctional relationship between H and W and that H had actually only missed two periods of possession. The COA found that the evidence did not rise to the level required for a wholesale change of custody on a temporary basis. Mandamus granted.

3.Pidgeon v. Turner & City of Houston, 2017 Tex. LEXIS 654 (Tex. June 30, 2017) (Case No. 15-0688)

Pidgeon, a taxpayer, sought an injunction in the trial court prohibiting the City of Houston to provide benefits to same sex spouses of City employees legally married outside Texas. Then Mayor Parker opposed the request. The trial court granted the injunction and the Mayor filed an interlocutory appeal. While that appeal was pending the U.S. Supreme Court decided Obergefell v. Hodges, 135 S.Ct. 2584 (2015), recognizing same sex couples right to marry. The 14th Court of Appeals reversed the trial court’s temporary injunction in light of the Obergefell decision and remanded the matter back to the trial court for further proceedings. Pidgeon sought review by the Texas Supreme Court. The Supreme Court determines that the COA decision does not bar Pidgeon from seeking relief on remand and does not bar the Houston Mayor from opposing such relief. The Supreme Court finds that the ramifications of the Obergefell decision, beyond the approval of same sex marriage, is undetermined, even as recognized by the US Supreme Court’s decisions to grant writs of certiorari in other cases with tangential issues. Stay tuned.

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