Preview
Cause No.2016-49450
HEMANT GAJARAWALA, Individually § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
DEVSJ CONCRETE, LLC, derivatively on behalf §
Of Texas Concrete Enterprise IV, LLC § HARRIS COUNTY, TEXAS
Intervenor Plaintiff §
§
vs. §
§
SOMAIAH KURRE §
§
Defendant § 80 JUDICIAL DISTRICT
PLAINTIFFAND INTERVENOR PLAINTIFF’S AMENDED MOTIONS IN LIMINE
Before commencement of the voir dire examination of the jury panel, laintiff Hemant
Gajarawala Mr. Gajarawala , and Plaintiff Intervenor DEVSJ Concrete, LLC (“DEVSJ”) (Mr.
Gajarawala and DEVSJ are collectively referred to as “Plaintiffs”) respectfully move the Court
to order that the Defendant Somaiah Kurre’s (“Defendant”), both in his individual capacity and
derivatively on behalf of Texas Concrete Enterprise IV, LLC, respective counsel, and through
such counsel any and all witnesses, refrain from making any mention or interrogation, directly or
indirectly, in any manner whatsoever concerning any of the matters hereinafter set forth, without
first approaching the bench and obtaining a ruling from the Court outside of the presence and
hearing of all prospective jurors and jurors ultimately selected in this suit.
The matters set forth in this Motion in Limine (“Motion”) are not admissible for any
purpose and have no bearing on the issues or the rights of the parties in this case. Permitting
interrogation of witnesses, comments to jurors or prospective jurors, or offers of evidence
concerning any of the matters in this Motion would prejudice the jury and cause the Plaintiffs
irreparable harm; objecting to such statements, questions or evidence, even when objections are
sustained, will not prevent prejudice but will reinforce the impact of impermissible evidence.
The following matters are the subject of this Motion:
Page of
Any argument, testimony or evidence presented by the Defendant or on his behalf that he
did not read any contract or other legal binding document that he signed
Authority
The proposition that failure to read a contract is no grounds for avoiding performance
under the same contract is a longstanding and well established principle of American
jurisprudence. As the United States Supreme Court explained long ago:
It will not do for a man to enter into a contract, and, when called upon to
respond to its obligations, to say that he did not read it when he signed it, or
did not know what it contained. If this were permitted, contracts would not
be worth the paper on which they are written. But such is not the law. A
contractor must stand by the words of his contract; and, if he will not read
what he signs, he alone is responsible for his omission.
Upton v. Tribilcock, 91 U.S. 45, 50, 23 L.Ed. 203 (1875).
This legal principle has trickled down from the United States Supreme Court to Texas
Courts. See also generally Williams v. Adams, 696 S.W.2d 156, 159 (Tex. App.Houston
[14th Dist.] 1985, writ ref'd n.r.e.) (“A person who signs a contract is presumed to know its
contents; and, absent a finding of fraud, his failure to read it will not discharge his obligations.”);
Thigpen v. Locke, 363 S.W.2d 247, 251 (“In anarm's length transaction the defrauded party must
exercise ordinary care for the protection of his own interests and is charged with knowledge of
all facts which would have been discovered by a reasonably prudent person similarly situated.
And a failure to exercise reasonable diligence is not excused by mere confidence in the honesty
and integrity of the other party.”) Salinas v. Beaudrie, 960 S.W.2d 314, 320 (Tex. App.Corpus
Christi 1997, no pet.) (“We note that parties to an arms length transaction are charged with a
duty to read what they sign, and the failure to do so constitutes negligence.”) Nat'l Prop.
Holdings, L.P. v. Westergren, 453 S.W.3d 419, 42526 (Tex. 2015) (quoting El Paso Field
Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 810 (Tex. 2012) (“[I]t is not the courts'
role ‘to protect parties from their own agreements.’)
AGREED: _________ GRANTED: _________ DENIED: _________
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Any argument, testimony or evidence presented by the Defendant or on his behalf
concerning the Memorandum of Understanding, dated July 30, 2015 (the “MOU”) that
would violate the Parol Evidence Rule. A true and correct copy of the MOU is attached
as Exhibit “1”.
Authority
The Parol Evidence Rule generally prevents enforcement of prior or contemporaneous
agreements that are not consistent with the terms subsumed within the four corners of a contract.
See Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 (Tex. App.Houston [1st Dist.]
2008, pet. denied) (“When the parties have concluded a valid, integrated agreement, the parol
evidence rule precludes enforcement of a prior or contemporaneous inconsistent agreement…
written instrument presumes that all prior agreements relating to the transaction have been
merged into it and will be enforced as written and cannot be added to, varied, or contradicted by
parol testimony… When parol evidence is determined to be inadmissible, ithas no legal effect
and merely constitutes proof of facts that are immaterial and inoperative.”); Baroid Equip., Inc.
v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.Houston [1st Dist.] 2005, pet. denied)
Under the parol evidence rule, if the parties have integrated their agreement into a single
written memorial, all prior negotiations and agreements with regard to the same subject matter
are excluded from consideration, whether they were oral or written”);Garner v. Fid. Bank, N. A.
244 S.W.3d 855, 859 (Tex. App.Dallas 2008, no pet.) (“ Evidence that violates the rule is
incompetent and without probative force, and cannot properly be given legal effect.”);
Maranatha Temple, Inc. v. Enter. Products Co., 893 S.W.2d 92, 103 (Tex. App.Houston [1st
Dist.] 1994, writ denied) (Parol evidence rule precluded enforcement of alleged oral agreement
that contradicted and varied the terms of a Memorandum of Understanding (“MOU”),
specifically the MOU was fully integrated agreement that clearly stated its purpose and the
respective obligations of the parties, including a settlement of claims and a description of th
considerationexchanged for its execution)
AGREED: _________ GRANTED: _________ DENIED: _________
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Any argument that Mr. Gajarawala should be treated more or less favorably because of
his race, gender, national origin, nationality, religion, marital status, occupation, or
financial status
AGREED: _________ GRANTED: _________ DENIED: _________
That no reference be made to settlement discussions, demands, or offers. Plaintiffs’
willingness or reluctance to settle or any other matter touching or concerning efforts or
lack of efforts to settle prior to or during the trial of this cause is inadmissible. See
Birchfield v. Texarcana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987); City of
Houston v. Sam P. Wallace & Co., 585 S.W.2d 669, 673 (Tex. 1979); McGuire v.
Commercial Unions Ins. Co.431 S.W.2d 347, 352 (Tex. 1968).
AGREED: _________ GRANTED: _________ DENIED:
That counsel for Defendants shall be prohibited from committing the jury in advance to
any act or give any particular weight to a particular matter or witness (e.g., not call a
certain witness, or award a particular dollar figure). Texas General Indemnity Co. v.
Mannhalter, 290 S.W.2d 360 (Tex. Civ. App.Galveston 1956, no writ
AGREED: _ GRANTED: _________ DENIED:
From attempting to impeach a witness with a question and an answer in a deposition
before approaching the bench, if there was an objection to the form of the question that
has not yet been ruled upon by the Court.
AGREED: _________ GRANTED: _________ DENIED:_________
With regard to Defendant’s counterclaims related to Defendant’s execution of a
Correction Warranty Deed and accompanying Deed of Trust that were executed by
Defendant, it is anticipated that Defendant, or witnesses aligned with him, will seek to
introduce evidence or testimony that the land that is subject to those executed and
recorded public records belongs to a company other than Texas Concrete Enterprise IV,
LLC or that such documents were obtained by some act of Mr. Gajarawala that was
allegedly fraudulent Defendants and any witness testifying at his behst or on his behalf,
should be barred from introducing any argument, testimony or evidence regarding (1) the
General Warranty Deed that transferred land from Shree Radha, LLC to Texas Concrete
Enterprise 4, LLC, (2) regarding the subsequent Correction Warranty Deed that
transferred land from Shree Radha, LLC to Texas Concrete Enterprise IV, LLC, and (3)
the Deed of Trust related thereto because such testimony is in violation of the “unlawful
acts rule” aka in pari delicio. A true and correct copy of the deposition transcript of
Somaiah Kurre is attached hereto as Exhibit “2.”
Page of
Authority
The Unlawful Acts Rule is a doctrine of Texas Jurisprudence that dates back to 1888,
when the Supreme Court set out the maxim that “…a plaintiff cannot recover for his
claimed injury if, at the time of the injury, he was engaged in an illegal act. The Gulf C.
& S.F. Ry. Co. v. Johnson, 71 Tex. 619, 62122, 9 S.W. 602, 603 (1888). Texas courts
have applied this rule, along with public policy principles, to prevent a plaintiff from
recovering claimed damages that arise out of his or her own illegal conduct. See, e.g.,
Saks v. Sawtelle, Goode, Davidson & Troilo, 880 S.W.2d 466 (Tex.App. San Antonio
1994, writ denied); Rodriquez v. Love, 860 S.W.2d 541 (Tex.App. El Paso 1993, no pet.);
Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441 (Tex.App. Hous. [1st Dist.]
1993, no pet.). Courts have interpreted this defense to mean that if the illegal act is
inextricably intertwined with the claim and the alleged damages would not have
occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of
law See Ward v. Emme, 37 S.W.3d 500, 503 (Tex.App. San Antonio 2001, no pet.)
(holding that because appellant would not have suffered alleged injury in absence of
illegal conduct, trial court properly granted summary judgment against her) (emphasis
added); Saks, 880 S.W.2d at 470; Dover, 859 S.W.2d at 451.
Argument
prove his claim of fraud as plead, Defendant (and Shree Radah, LLC and its other
members/managers) would have to prove, as Defendant has already testified via the attached
Deposition transcript, that he executed a General Warranty Deedin 2011, as the authorized act of
Shree Radah, LLC and its other members and managers, transferring the approximately 4.6 acres
of land in Fort Bend County to a fictitious company with the express purpose of defrauding the
County and other taxing entities. Stated simply Defendant cannot prove his claim of fraud
related to the 4.6 acres and the correction warranty deed or deed of trust without first establishing
that he and his Shree Radah, LLC business partners committed intentional unlawful acts.
AGREED: _________ GRANTED: _________ DENIED:_________
It is further ORDERED that if any party’s counsel proposes any theory of admissibility
concerning the matters granted above. Counsel is ordered to first request a ruling from the Court
outside the presence and hearing f all prospective jurors and jurors ultimately selected in this
cause.
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SIGNED this the ______ day of _________________, 201
THE HONORABLE JUDGE PRESIDING
Respectfully Submitted,
ATHERN
By:/s/ Isaac Villarreal
Isaac Villarreal
Texas Bar No.
ivillarreal@mccathernlaw.com
Eric M. Utermohlen
Texas Bar No. 24103974
euermohlen@mccathernlaw.com
2000 West Loop SouthSuite 185
Houston, Texas 77027
Tel. (832) 533
Fax (832) 213
ATTORNEYS FOR PLAINTIFFAND
PLAINTIFF INTERVENOR
CERTIFICATE OF SERVICE
I hereby certify that on this day of February, 2018, a true and correct copy of the
foregoing and/or attached was served on each attorney of record or party in accordance with the
Texas Rules of Civil Procedure as follows:
John D. Charbonnet, Jr. Via E file
OCHMAN HARBONNET
12012 Wickchester, Suite 150
Houston, Texas 77079
jdcharbonnet@kdclaw.com
Attorney for Defendant
/s/ Isaac Villarreal
Isaac Villarreal
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Preview
Cause No.2016-49450 HEMANT GAJARAWALA, Individually § IN THE DISTRICT COURT OF § Plaintiff, § § DEVSJ CONCRETE, LLC, derivatively on behalf § Of Texas Concrete Enterprise IV, LLC § HARRIS COUNTY, TEXAS Intervenor Plaintiff § § vs. § § SOMAIAH KURRE § § Defendant § 80 JUDICIAL DISTRICT PLAINTIFFAND INTERVENOR PLAINTIFF’S AMENDED MOTIONS IN LIMINE Before commencement of the voir dire examination of the jury panel, laintiff Hemant Gajarawala Mr. Gajarawala , and Plaintiff Intervenor DEVSJ Concrete, LLC (“DEVSJ”) (Mr. Gajarawala and DEVSJ are collectively referred to as “Plaintiffs”) respectfully move the Court to order that the Defendant Somaiah Kurre’s (“Defendant”), both in his individual capacity and derivatively on behalf of Texas Concrete Enterprise IV, LLC, respective counsel, and through such counsel any and all witnesses, refrain from making any mention or interrogation, directly or indirectly, in any manner whatsoever concerning any of the matters hereinafter set forth, without first approaching the bench and obtaining a ruling from the Court outside of the presence and hearing of all prospective jurors and jurors ultimately selected in this suit. The matters set forth in this Motion in Limine (“Motion”) are not admissible for any purpose and have no bearing on the issues or the rights of the parties in this case. Permitting interrogation of witnesses, comments to jurors or prospective jurors, or offers of evidence concerning any of the matters in this Motion would prejudice the jury and cause the Plaintiffs irreparable harm; objecting to such statements, questions or evidence, even when objections are sustained, will not prevent prejudice but will reinforce the impact of impermissible evidence. The following matters are the subject of this Motion: Page of Any argument, testimony or evidence presented by the Defendant or on his behalf that he did not read any contract or other legal binding document that he signed Authority The proposition that failure to read a contract is no grounds for avoiding performance under the same contract is a longstanding and well established principle of American jurisprudence. As the United States Supreme Court explained long ago: It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission. Upton v. Tribilcock, 91 U.S. 45, 50, 23 L.Ed. 203 (1875). This legal principle has trickled down from the United States Supreme Court to Texas Courts. See also generally Williams v. Adams, 696 S.W.2d 156, 159 (Tex. App.Houston [14th Dist.] 1985, writ ref'd n.r.e.) (“A person who signs a contract is presumed to know its contents; and, absent a finding of fraud, his failure to read it will not discharge his obligations.”); Thigpen v. Locke, 363 S.W.2d 247, 251 (“In anarm's length transaction the defrauded party must exercise ordinary care for the protection of his own interests and is charged with knowledge of all facts which would have been discovered by a reasonably prudent person similarly situated. And a failure to exercise reasonable diligence is not excused by mere confidence in the honesty and integrity of the other party.”) Salinas v. Beaudrie, 960 S.W.2d 314, 320 (Tex. App.Corpus Christi 1997, no pet.) (“We note that parties to an arms length transaction are charged with a duty to read what they sign, and the failure to do so constitutes negligence.”) Nat'l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 42526 (Tex. 2015) (quoting El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 810 (Tex. 2012) (“[I]t is not the courts' role ‘to protect parties from their own agreements.’) AGREED: _________ GRANTED: _________ DENIED: _________ Page of Any argument, testimony or evidence presented by the Defendant or on his behalf concerning the Memorandum of Understanding, dated July 30, 2015 (the “MOU”) that would violate the Parol Evidence Rule. A true and correct copy of the MOU is attached as Exhibit “1”. Authority The Parol Evidence Rule generally prevents enforcement of prior or contemporaneous agreements that are not consistent with the terms subsumed within the four corners of a contract. See Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 (Tex. App.Houston [1st Dist.] 2008, pet. denied) (“When the parties have concluded a valid, integrated agreement, the parol evidence rule precludes enforcement of a prior or contemporaneous inconsistent agreement… written instrument presumes that all prior agreements relating to the transaction have been merged into it and will be enforced as written and cannot be added to, varied, or contradicted by parol testimony… When parol evidence is determined to be inadmissible, ithas no legal effect and merely constitutes proof of facts that are immaterial and inoperative.”); Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.Houston [1st Dist.] 2005, pet. denied) Under the parol evidence rule, if the parties have integrated their agreement into a single written memorial, all prior negotiations and agreements with regard to the same subject matter are excluded from consideration, whether they were oral or written”);Garner v. Fid. Bank, N. A. 244 S.W.3d 855, 859 (Tex. App.Dallas 2008, no pet.) (“ Evidence that violates the rule is incompetent and without probative force, and cannot properly be given legal effect.”); Maranatha Temple, Inc. v. Enter. Products Co., 893 S.W.2d 92, 103 (Tex. App.Houston [1st Dist.] 1994, writ denied) (Parol evidence rule precluded enforcement of alleged oral agreement that contradicted and varied the terms of a Memorandum of Understanding (“MOU”), specifically the MOU was fully integrated agreement that clearly stated its purpose and the respective obligations of the parties, including a settlement of claims and a description of th considerationexchanged for its execution) AGREED: _________ GRANTED: _________ DENIED: _________ Page of Any argument that Mr. Gajarawala should be treated more or less favorably because of his race, gender, national origin, nationality, religion, marital status, occupation, or financial status AGREED: _________ GRANTED: _________ DENIED: _________ That no reference be made to settlement discussions, demands, or offers. Plaintiffs’ willingness or reluctance to settle or any other matter touching or concerning efforts or lack of efforts to settle prior to or during the trial of this cause is inadmissible. See Birchfield v. Texarcana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987); City of Houston v. Sam P. Wallace & Co., 585 S.W.2d 669, 673 (Tex. 1979); McGuire v. Commercial Unions Ins. Co.431 S.W.2d 347, 352 (Tex. 1968). AGREED: _________ GRANTED: _________ DENIED: That counsel for Defendants shall be prohibited from committing the jury in advance to any act or give any particular weight to a particular matter or witness (e.g., not call a certain witness, or award a particular dollar figure). Texas General Indemnity Co. v. Mannhalter, 290 S.W.2d 360 (Tex. Civ. App.Galveston 1956, no writ AGREED: _ GRANTED: _________ DENIED: From attempting to impeach a witness with a question and an answer in a deposition before approaching the bench, if there was an objection to the form of the question that has not yet been ruled upon by the Court. AGREED: _________ GRANTED: _________ DENIED:_________ With regard to Defendant’s counterclaims related to Defendant’s execution of a Correction Warranty Deed and accompanying Deed of Trust that were executed by Defendant, it is anticipated that Defendant, or witnesses aligned with him, will seek to introduce evidence or testimony that the land that is subject to those executed and recorded public records belongs to a company other than Texas Concrete Enterprise IV, LLC or that such documents were obtained by some act of Mr. Gajarawala that was allegedly fraudulent Defendants and any witness testifying at his behst or on his behalf, should be barred from introducing any argument, testimony or evidence regarding (1) the General Warranty Deed that transferred land from Shree Radha, LLC to Texas Concrete Enterprise 4, LLC, (2) regarding the subsequent Correction Warranty Deed that transferred land from Shree Radha, LLC to Texas Concrete Enterprise IV, LLC, and (3) the Deed of Trust related thereto because such testimony is in violation of the “unlawful acts rule” aka in pari delicio. A true and correct copy of the deposition transcript of Somaiah Kurre is attached hereto as Exhibit “2.” Page of Authority The Unlawful Acts Rule is a doctrine of Texas Jurisprudence that dates back to 1888, when the Supreme Court set out the maxim that “…a plaintiff cannot recover for his claimed injury if, at the time of the injury, he was engaged in an illegal act. The Gulf C. & S.F. Ry. Co. v. Johnson, 71 Tex. 619, 62122, 9 S.W. 602, 603 (1888). Texas courts have applied this rule, along with public policy principles, to prevent a plaintiff from recovering claimed damages that arise out of his or her own illegal conduct. See, e.g., Saks v. Sawtelle, Goode, Davidson & Troilo, 880 S.W.2d 466 (Tex.App. San Antonio 1994, writ denied); Rodriquez v. Love, 860 S.W.2d 541 (Tex.App. El Paso 1993, no pet.); Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441 (Tex.App. Hous. [1st Dist.] 1993, no pet.). Courts have interpreted this defense to mean that if the illegal act is inextricably intertwined with the claim and the alleged damages would not have occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of law See Ward v. Emme, 37 S.W.3d 500, 503 (Tex.App. San Antonio 2001, no pet.) (holding that because appellant would not have suffered alleged injury in absence of illegal conduct, trial court properly granted summary judgment against her) (emphasis added); Saks, 880 S.W.2d at 470; Dover, 859 S.W.2d at 451. Argument prove his claim of fraud as plead, Defendant (and Shree Radah, LLC and its other members/managers) would have to prove, as Defendant has already testified via the attached Deposition transcript, that he executed a General Warranty Deedin 2011, as the authorized act of Shree Radah, LLC and its other members and managers, transferring the approximately 4.6 acres of land in Fort Bend County to a fictitious company with the express purpose of defrauding the County and other taxing entities. Stated simply Defendant cannot prove his claim of fraud related to the 4.6 acres and the correction warranty deed or deed of trust without first establishing that he and his Shree Radah, LLC business partners committed intentional unlawful acts. AGREED: _________ GRANTED: _________ DENIED:_________ It is further ORDERED that if any party’s counsel proposes any theory of admissibility concerning the matters granted above. Counsel is ordered to first request a ruling from the Court outside the presence and hearing f all prospective jurors and jurors ultimately selected in this cause. Page of SIGNED this the ______ day of _________________, 201 THE HONORABLE JUDGE PRESIDING Respectfully Submitted, ATHERN By:/s/ Isaac Villarreal Isaac Villarreal Texas Bar No. ivillarreal@mccathernlaw.com Eric M. Utermohlen Texas Bar No. 24103974 euermohlen@mccathernlaw.com 2000 West Loop SouthSuite 185 Houston, Texas 77027 Tel. (832) 533 Fax (832) 213 ATTORNEYS FOR PLAINTIFFAND PLAINTIFF INTERVENOR CERTIFICATE OF SERVICE I hereby certify that on this day of February, 2018, a true and correct copy of the foregoing and/or attached was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure as follows: John D. Charbonnet, Jr. Via E file OCHMAN HARBONNET 12012 Wickchester, Suite 150 Houston, Texas 77079 jdcharbonnet@kdclaw.com Attorney for Defendant /s/ Isaac Villarreal Isaac Villarreal Page of