Filed 12 October 19 P3:24

Chris Daniel - District Clerk

Harris County
ED101J017140395
By: deandra mosley

CAUSE NO. 2011-64922

LAYNE HARDIN AND KATHERINE
LEBLANC

IN THE DISTRICT COURT OF

VS.

TEXAS ANDROLOGY SERVICES, LLC,

AND TOBIE DEVALL

55TH

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HARRIS COUNTY, TEXAS

JUDICIAL DISTRICT

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COUNTERCLAIM
AGAINST PLAINTIFF, LAYNE HARDIN

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NOW INTO COURT, through undersigned counsel, comes defendant, TOBIE

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DEVALL, who, with respect, represents that:

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LAYNE HARDIN is an individual of the full age of majority and resident of Calcasieu

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Parish, Louisiana, and is the plaintiff in the principal demand herein.

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TOBIE DEVALL is an individual of the full age of majority and resident of Calcasieu

II.

DISCOVERY

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Parish, Louisiana, and is the defendant in the principal demand herein.

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The principal demand in this matter is already being conducted under Level 3 of

III.

VENUE AND JURISDICTION

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Texas Rules of Civil Procedure 190.4.

Venue and Jurisdiction have already been established in the principal demand of
this case because all or a substantial part of the events giving rise to this litigation occurred
in Harris County, Texas, and the amount in controversy is within the jurisdictional limits of
the District Courts of Harris County, Texas.

IV.

FACTS

On or about January 25, 2002, counterclaim-defendant, LAYNE HARDIN, stored

eight (8) vials of his sperm in a cryopreservation facility known, at the time, as West

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Houston Fertility Center.

At the time of the cryopreservation of the afore described eight (8) vials of sperm,
LAYNE HARDIN was in a relationship with Katherine LeBlanc.

At the time of this

cryopreservation, LAYNE HARDIN signed an agreement with West Houston Fertility

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Center that, in the event of the dissolution of his relationship with Katherine LeBlanc,

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Center would be placed with Katherine LeBlanc.

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decisional authority of the eight (8) vials of cryopreserved sperm at West Houston Fertility

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At some point after the storage of his cryopreserved sperm, LAYNE HARDIN ended
At no time after the dissolution of this

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his relationship with Katherine Lel3lanc.

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relationship did LAYNE HARDIN or Katherine LeBlanc contact West Houston Fertility

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Center to inform it or its staff that their relationship had, in fact, dissolved.

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Following the dissolution of his relationship with Katherine LeBlanc, LAYNE

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HARDIN began a relationship with TOBIE DEVALL.

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At some point during the initial phases of their relationship, LAYNE HARDIN and

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TOBIE DEVALL began discussing about the potential of having children; however, LAYNE
HARDIN had already had a vasectomy. Nevertheless, LAYNE HARDIN informed TOBIE

DEVALL that he had sperm stored in Houston, and that she could use the sperm to attempt
to become pregnant. At no time did LAYNE HARDIN ever inform TOBIE DEVALL that
Katherine LeBlanc had decisional authority of said sperm, and there was no other reason
that TOBIE DEVALL would have suspected otherwise. Thus, LAYNE HARDIN fraudulently

misrepresented to TOBIE DEVALL that he had ownership, control, or otherwise decisional

authority of said sperm.
LAYNE HARDIN then began searching for fertility specialists in Houston who could

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inseminate TOBIE DEVALL with his cryopreserved sperm. LAYNE HARDIN located Leah
Schenk, M.D., a fertility specialist with Obstetrical & Gynecological Associates in Houston,
Texas.

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On March 3, 2008, LAYNE HARDIN and TOBIE DEVALL consulted with Dr. Schenk

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regarding TOBIE DEVALLs chances of becoming pregnant. At this consultation, LAYNE

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HARDIN represented to Dr. Schenk that he had eight (8) vials of sperm cryopreserved at

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West Houston Fertility Center that he wanted to be used for TOBIE DEVALLs insemination

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procedure. At no time during this examination or thereafter did LAYNE HARDIN ever

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inform Dr. Schenk that Katherine LeBlanc had decisional authority of said sperm, thus

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fraudulently and intentionally misrepresenting to both Dr. Schenk and TOBIE DEVALL that

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he had ownership and control of said sperm.

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On October 26, 2009, with LAYNE HARDINs full knowledge and consent to TOBIE

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DEVALL, TOI3IE DEVALL underwent intrauterine insemination with two (2) vials of

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LAYNE HARDINs cryopreserved sperm by Dr. Schenk, which resulted from the fraudulent

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and intentional misrepresentations of LAYNE HARDIN.

V.

CAUSE OF ACTION

Counterclaim for Fraudulent and Intentional Misrepresentations

by Layne Hardin to Tobie Devall

Counterclaim-Defendant,

LAYNE

HARDIN,

fraudulently

and

intentionally

misrepresented to TOBIE DEVALL that he had ownership, control, or otherwise decisional

authority of the sperm used by TOBIE DEVALL in the intrauterine insemination procedure

on October 26, 2009. Because of these fraudulent and intentional misrepresentations by

LAYNE HARDIN, TOBIE DEVALL agreed to said intrauterine insemination procedure using

the cryopreserved sperm stored by LAYNE HARDIN and Katherine LeBlanc with West

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Houston Fertility Center on January 25, 2002.

LAYNE HARDINs actions were fraudulent and intentional since:

1. He represented to TOBIE DEVALL that he was the owner of, in control of, or

otherwise had decisional authority of the cryopreserved sperm ultimately used

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in the intrauterine insemination of TOBIE DEVALL on October 26, 2009;

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2. The afore described representations were false because LAYNE HARDIN had

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entered into an agreement with Katherine LeBlanc on January 25, 2002 that in

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the event of the dissolution of their relationship, Katherine LeBlanc would have

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decisional authority of said sperm; and

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3. At the time he made such representations to TOBIE DEVALL, LAYNE HARDIN

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knew that such representations were false because he was fully aware and

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cognizant of the afore described agreement with Katherine LeBlanc.

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Due to the fraudulent and intentional misrepresentations of LAYNE HARDIN,

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TOBIE DEVALL was sued by Katherine LeBlanc for claims of intentional infliction of

In the event TOBIE DEVALL is found liable to

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emotional distress and conversion.

Katherine LeBlanc for said claims, she will suffer great harm and incur extensive damage,
all due to the sole and exclusive fraudulent and intentional misrepresentations of LAYNE
HARDIN.

Therefore, in the event TOBIE DEVALL is found liable to Katherine LeBlanc for any
sums, those sums should be paid, in whole, by LAYNE HARDIN as any such damages will be

due directly and exclusively from the fraudulent and intentional misrepresentations of
LAYNE HARDIN to TOBIE DEVALL.
VI.

ATTORNEYS FEES

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Counterclaim-Plaintiff, TOBIE DEVALL, is entitled to recover reasonable and

necessary attorney fees against Counterclaim-Defendant, LAYNE HARDIN, for breach of
contract due to fraudulent and intentional misrepresentations to TOBIE DEVALL.
VII.

PRAYER

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For all of these reasons, Counterclaim-Plaintiff, TOBIE DEVALL, prays that

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Counterclaim-Defendant, LAYNE HARDIN, be cited to appear and answer and the Court

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award damages unto TOBIE DEVALL for any damages she may be found liable to Katherine

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LeBlanc in the principal demand of this case, including reasonable and necessary attorneys

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fees, prejudgment and post-judgment interest on all damages, court costs, and all other

Respectfully submitted:
NEWMAN, HOFFOSS & DEVALL, LLP

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relief allowed by law.

:E HOFFOSS, JR. (TX 24071602)

30 Hodges Street
Lake Charles, Louisiana 70601
Telephone: (337) 439-5788
Facsimile:
(337) 436-5430
Email: jlhoffoss nhdlawvers.com
ATTORNEY FOR TOBIE DEVALL