In the Interest of B.N.L.-B.
2012 Tex. App. LEXIS 5503
| Tex. App. | 2012Background
- Aguirre, a sperm donor, signed a Donor Agreement obligating him to indemnify Logan for costs if he sought a legal relationship with the child.
- The Donor Agreement and the Agreement Regarding Visits were supplemented by a Virginia consent order governing visitation; the Consent Order stated costs incurred by a party enforcing the agreement should be borne by the breaching party.
- Aguirre intervened in a Texas SAPCR seeking conservatorship and Logan sought indemnification for attorney’s fees under the Donor Agreement.
- The trial court awarded Logan $62,200.86 in attorney’s fees against Aguirre and denied Aguirre’s fee request.
- On appeal, Aguirre challenges novation/modification of the Donor Agreement, the indemnity construction, waiver issues, and the sufficiency of the fee evidence; the court remands for fee-amount determination while affirming the rest of the SAPCR order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Novation of the Donor Agreement | Aguirre contends the Consent Order novates the Donor Agreement. | Logan argues no novation entered and the Donor Agreement remains in effect. | Consent Order did not novate the Donor Agreement. |
| Modification of the Donor Agreement by the Consent Order | Aguirre argues the Consent Order expressly modified/eliminated the Donor Agreement. | Logan contends modification limited to visitation terms; not an entire discharge. | Consent Order did not modify the Donor Agreement in its entirety. |
| Waiver of indemnity provision | Aguirre claims Logan waived indemnity by actions related to the Consent Order. | Logan did not preserve this argument for appeal. | Waiver argument not preserved; overruled on merits. |
| Sufficiency and segregation of fees | Aguirre asserts insufficient segregation of recoverable vs. unrecoverable fees. | Logan contends fees were recoverable under the Donor Agreement. | Evidence did not show proper segregation; remand for proper segregation; amount reversed. |
| Aguirre’s recovery from Logan under the Consent Order | Aguirre seeks fees under paragraph 10 for enforcement actions. | Logan argues paragraph 10 was not triggered and no fee entitlement. | Consent Order did not obligate Logan to pay Aguirre’s requested fees; relief denied. |
Key Cases Cited
- Fulcrum Cent v. AutoTester, Inc., 102 S.W.3d 274 (Tex.App.-Dallas 2003) (novation requires clear intent and extinguishment of the old contract)
- Chastain v. Cooper & Reed, 257 S.W.2d 424 (Tex. 1953) (novation only when second contract clearly substitutes for first)
- TX. C.C., Inc. v. Wilson/Bames Gen. Contractors, Inc., 233 S.W.3d 562 (Tex.App.-Dallas 2007) (contract modification requires consistent reading of terms; not a discharge of all provisions)
- Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695 (Tex.App.-Dallas 2008) (whether a contract is modified depends on parties’ intent; fact question)
- In re 2IR, Inc., 324 S.W.3d 564 (Tex. 2010) (illusions of mutuality if promises lack consideration or are non-binding)